Trial judge convicted accused of sexual assault of neighbour’s five-year-old daughter. Complainant testified during horseplay where accused blew on children’s stomachs he performed oral sex on her. Accused denied sexual contact but admitting to nature of horseplay with children. Forensic expert testified deposits of accused’s DNA found in complainant’s underwear but not from external vaginal swab. Forensic expert testified secondary transference of DNA to underwear could not be ruled out. Trial judge stated in reasons she agreed with expert DNA could not have been deposited to underwear other than through oral sex on complainant. Trial judge using finding concerning forensic evidence to bolster credibility of complainant and reject evidence of accused. Appeal allowed and new trial ordered. Trial judge critically misapprehended forensic evidence by stating deposit could only have been through oral sex and wholly ignored negative result of vaginal swab. Misapprehended evidence relied on to make crucial credibility assessments at trial. Correctly apprehended forensic evidence tended to bolster accused’s admission to non-sexual oral contact with children. Forensic evidence tended to undermine complainant’s evidence oral sex occurred.
R. v. C. (M.M.) (Apr. 23, 2014, Ont. C.A., Alexandra Hoy A.C.J.O., H.S. LaForme J.A., and G. Pardu J.A., File No. CA C54917) 112 W.C.B. (2d) 788.