R. v. Burgar Date:, 2013 BCPC 388

Citation: R. v. Burgar Date: 20130802 2013 BCPC 0388 File No: 224204-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH PAUL BURGAR EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI BAN ON PUBLICATION 486.4(1) CCC Counsel for the Crown: K. Gagnon Counsel for the Defendant: A. Glouberman Place of Hearing: Vancouver , B.C. Dates of Hearing: July 16-19, 22, 29-30, August 2, 2013

Date of Judgment: August 2, 2013 A Corrigendum was released by the Court on June 19, 2014. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT: The accused is charged with sexually assaulting the complainant, C.P., who has since reverted to the name C.F., on or about April 16th, 1999, in Burnaby, British Columbia, contrary to s. 271 of the Criminal Code . Evidence of the Complainant [ 2 ] I will begin with the evidence of the complainant. The complainant testified that in the Spring of 1998, she sustained a spinal injury as a result of a fall.

When she woke up in hospital, she was paralyzed from the neck down. She was in hospital for 10 days and then at GF Strong for approximately six months for rehabilitative treatment. When she was released from GF Strong, she was able to drive and could also walk with two canes. She eventually weaned herself from the use of the two canes. By April 1999, she was using one cane only, but was trying to walk without any cane at all. [ 3 ] On April 16, 1999, the complainant made arrangements to meet a friend at Central Park near the SkyTrain station in Burnaby, British Columbia.

She was going to leave her car in Central Park and her friend was going to drive her to White Rock for a physiotherapy treatment. At approximately 12:00 noon, the complainant arrived at the parking area. She noted some cars parked nearby and several people in the park itself. [ 4 ] After parking the car, she walked to the park's public washroom facilities which were close to the parking lot. On her way to the washroom, she noted a man seated at a bench reading a book. She also noted another man sitting on a rock. The complainant went into one of the washroom stalls.

It took a few moments to prepare herself because she still had difficulty squatting. [ 5 ] Once she was seated on the toilet seat, she heard a door bang. I understood this to be the outside door. At that point, the complainant was seated on the toilet with her shorts pulled down. Immediately after hearing the bang, she saw a man on his knees on the floor. She saw him through the open area of the washroom stall door, that is, the area between the bottom of the stall door and the floor. She said she could see him from the waist down. The man was playing with his penis using his right hand.

His penis was hard. [ 6 ] The complainant said she had locked the stall door and was seated on the toilet trying to go to the bathroom. The man banged the stall door open and forced his body up against her. She tried to scream, but the man pushed his left hand on her mouth. He told her to shut up. His body was against her. His penis was against her chest. The complainant said she did not see his face. She did not see anything else because his whole body was against her. The man tried to push her head down against his penis. However, she moved her head back somewhat, but she could not move much.

The man's whole weight was on her. [ 7 ] The complainant described how the man was positioned. He had his left leg in front of her and his right leg on her left side. He was "curved" against her. She said she could feel him when he was "jerking off." When he finally stopped and he released, she felt a hot wet feeling on the chest area. She inferred from that that he had ejaculated. She said the moment he stopped masturbating, she pushed herself forward. She fell on her hands and knees. [ 8 ] The man backed up and jumped out. He turned around and then ran out the main door of the washroom.

She got a side view of him and what he was wearing. The complainant said it felt like the incident took a long time, but from the time she saw the man on his knees on the floor to the point of ejaculation the whole thing was about five minutes. [ 9 ] The complainant said she started screaming. She pulled herself up off the floor by using the toilet paper dispenser as an aid. She said she only contacted the floor with her hands and her knees. She was wearing dark blue navy shorts and a matching dark blue navy tank top as well as underclothes.

The complainant said the tank top she was wearing did not contact the floor. She said the shorts contacted the floor because she fell on her knees. The complainant struggled to get out. She pulled her panties up and then went to the exit door. [ 10 ] The complainant screamed at the man who was seated on the bench. She asked whether he had not heard her scream and told him that a man had just attacked her. The complainant said she asked the man to help her to her car. She told him she was going to go home. He helped her to her car.

The complainant said the man did not touch her, but she asked him if she could hold his arm. He then gave her his name and number on a piece of paper. [ 11 ] The complainant got into her car. She put on her seatbelt but held the seatbelt strap off her chest because she did not want the seatbelt to get dirty by coming in contact with what she described as "the mess" that was on her chest. The complainant said she felt wet and sticky in the chest area. She was also wet on the breastbone. She also had a scratch on the left side of her jaw. [ 12 ] She drove home to North Burnaby where she lived.

The complainant believes she got home about 12:25 p.m. She then called 911 from her home. She also called her boyfriend. The police went to her home as did her boyfriend. It appears he got there before the police. Her boyfriend helped her take off her clothes. He told her not to touch them. He folded her clothes inside out. She grabbed a plastic grocery bag where he put the clothes. She then gave the plastic bag with the clothes to the police officer, Constable Li. [ 13 ] The complainant said she took a bath right after she took off her clothes. No samples were taken from her skin.

The complainant said she did not touch her tank top after the semen got on it. When her boyfriend helped her remove her clothes, he did not touch the area of the tank top on which the man had ejaculated. The complainant said the shorts and top she was wearing that day were clean. They had been washed before the incident. [ 14 ] Because of her 1998 injuries, the complainant could not write very well so she asked Constable Li to write the statement out for her. The complainant described the man in the washroom as five-feet-eight inches tall, Caucasian. The side of his face had acne. His

hair fell down his neck. She did not notice any facial hair or glasses. The man was wearing a dark grey vest with a blue jean jacket underneath. He had on blue jeans and dirty white/grey runners. [ 15 ] In the statement, the complainant also described what happened, who had helped her, the man she had seen on the rock as well as the man who was reading a book. The complainant said that the significance of the man sitting on the rock was that he looked strange to her. He was sitting essentially under the SkyTrain track. He was wearing a vest that was silver/grey and shiny with jeans and runners.

He was Caucasian and had dark brown hair. [ 16 ] That man was significant to her because of the way he was sitting and staring. There was no one else around him. When she came out of the washroom, the man on the rock was not there. The only person who was in the vicinity was the man who had been reading on the bench. Everyone else had gone. [ 17 ] On May 20, 1999, the complainant met with Constable Li who showed her a photo line-up. She made a selection. She said that when she made the selection, she was scared about the procedure and was still in shock. She was not 100 percent sure of the person she identified.

She was only 90 percent sure. The complainant said she only observed her attacker's face for a matter of seconds. She observed the man's face from the side whereas the faces of the men's pictures in the photo line-up were all face-forward. The complainant acknowledged she was shown another line-up at a later date by a male officer. She did not make any selection at that time. [ 18 ] In cross-examination, defence counsel covered a number of issues including the following.

The complainant thought that the opening between the floor of the washroom and the bottom of the stall door was 18 inches and may have been as much as 24 inches. She did not recall if the stall door opened outwards. She remembered that the door was pushed towards her when she was sitting on the toilet. [ 19 ] The complainant was asked whether, when the man kneeled on the ground and was masturbating, she attempted to scream. She said she tried screaming. The door went bang and he was on her immediately.

The complainant said it was less than a minute from the time she entered the stall and sat on the toilet to the time she saw the man kneeling on the floor. She said she heard someone come in. Then he was at the door and, within a minute, he was masturbating. [ 20 ] The complainant was asked questions regarding whether she may have touched the door or the walls of the stall. She acknowledged she did not have her crutches, but she said that she could walk without crutches. However, her physiotherapist had told her to use a cane.

She said that when she did not have the cane, she grabbed furniture or a wall for balance. However, she said she was balanced enough and not wobbling. The complainant denied that she grabbed the wall of the stall. She also denied the possibility that her body touched the wall of the stall or the door. [ 21 ] It was put to the complainant that there was a strong likelihood she touched something in the bathroom. The complainant said she did not lean on anything. She just grabbed the handle to get in. The complainant said the man shoved the door and threw his body against her. He tried to lower her head.

He put his left hand on her face and the other hand on his penis. She denied that he was some distance from her. She said he was right up against her. [ 22 ] The complainant agreed that the description she gave of the man who came into the stall was remarkably similar to the description of the man she had seen on the rock outside the washroom. [ 23 ] With respect to the photo packs, the complainant agreed that in the first photo pack line-up in May 1999 she made a selection, but was only 90 percent sure. She agreed she chose the man in photo number 6.

She agreed that man had a full head of hair which appeared to be very dark in the photograph. She agreed that a photograph shown to her of Mr. Burgar taken in 1997 depicted an individual who had blond hair and no acne. I pause to note that at one point she had described acne as being one of the features she had observed on the man who fled the scene. [ 24 ] The complainant was shown another photograph of Mr. Burgar taken in 1999. She agreed that in that photograph Mr. Burgar's hair was ash blond and he was balding and his hair was not touching the collar.

She agreed he had a short haircut. [ 25 ] The complainant was shown a third photograph of Mr. Burgar taken in 2000. She said in that photograph, Mr. Burgar's hair looked like it was ash blond in the front, and on the side above his ears, it was brown. She would describe the person in that picture as being bald from the temple, but could not see the back of his head. The complainant agreed that the facial features and hair in the photographs of Mr. Burgar were different from the photo number 6 that she had chosen in the May 1999 photo lineup. Evidence of Douglas Slinger [ 26 ] On April 16, 1999, at about noon, Mr.

Slinger was in Central Park reading a book. He was taking a course nearby and had gone to the park during the lunch break. He was sitting approximately 50 yards from the washroom. As he was reading, he heard a scream. It took him a second to realize the scream was coming from the washrooms. He ran over and encountered a woman who was quite distraught. The woman told him that someone was in the washroom. He asked her if she was all right. She told him she was shaken, but all right. [ 27 ] He walked her to her car and gave her his name and address.

As to others being in the park, he noticed a woman with a baby carriage and perhaps someone walking a dog. He could not recall anyone else. Mr. Slinger said he could not describe the woman and could not recall what she looked like. [ 28 ] He explained he provided a statement to the police at the time. He reviewed that statement to refresh his memory, but apart from the details he gave in evidence his memory was not refreshed. [ 29 ] In cross-examination, Mr. Slinger said that he first heard the woman scream before she exited the bathroom.

She screamed before he got to the bathroom, but he did not recall her asking him any questions. The woman may have said, "A man has just attacked me," but he could not recall that. He just remembered running to her after hearing her scream. He said he did not ask her to stay put so

that the police could attend. He could not recall whether the woman was determined to leave or not. [ 30 ] He recalled walking to her car, but did not believe she leaned on him for support. He did not believe she took his arm. He did not remember the woman having any difficulty with mobility. Mr. Slinger said that when he ran to the washroom she was just exiting. He only took one step into the washroom building. He did not recall any exchange with the woman where she asked why he had not arrived earlier.

Evidence of Constable Li [ 31 ] On April 16, 1999, Constable Li was on duty in Burnaby and was dispatched at 12:18 p.m. to what was described as a sexual assault in Central Park. She went to Central Park, searched the area, but found no one. The description given to Constable Li of the assailant was, "White male, five-foot-eight, white runners, blue jean jacket, blue jeans, silver/grey jacket on top, dark hair collar length." [ 32 ] Constable Li then went to the complainant's house and arrived there in about 20 to 30 minutes. The complainant was there with her partner.

Constable Li assisted in getting a statement from the complainant in that she wrote the statement for her. The complainant was upset, emotional, tearful, and shaky. [ 33 ] The complainant gave her a t-shirt and a pair of shorts. Constable Li could not remember how these two items were packaged. Constable Li recalled that it was a dark blue tank top and a pair of dark blue shorts. She observed a white substance on the front of the tank top. Later, she placed those items into an exhibit locker at the detachment. That was at approximately 2:46 p.m. on April 16, 1999. [ 34 ] She used gloves in handling the clothing.

She did not add any biological materials to the clothing. She did not allow the clothing to make contact with any other exhibits. Constable Li said she had no contact with the part of the clothing that had semen on it. It had been at least four months since she had handled any item with semen. [ 35 ] Constable Li went to see the complainant approximately one month later. A man had been arrested in Vancouver for a sexual act. As a result, a photo line-up was presented to the complainant. The complainant chose photo number 6.

That was not the suspect who had been involved in the Vancouver incident. [ 36 ] Constable Li's other involvement in the investigation was that she received a statement from Doug Slinger on April 23rd, 1999. [ 37 ] In cross-examination, Constable Li was asked about the packaging of the clothing. She said she could not be sure whether the clothing she was given was already in a plastic bag. She said the ideal situation is to put exhibits into an exhibit bag which is sterile. Constable Li said it would not be the best practice to place the clothing in a shopping bag.

She said if the clothing had been given to her in a shopping bag, she would have placed it all together into the exhibit bag. [ 38 ] Constable Li said she had one page of notes in her notebook as well as a typed police report. The notes in her notebook were short and were written two days after the incident. There were no substantial details about her discussion with the complainant in her notebook.

However, Constable Li said all her notes were contained in the police report which was written the same day she conducted the investigation. [ 39 ] Constable Li said that on April 16th, she prepared the exhibits and she also prepared a typed report called a continuation report. The next day she prepared a handwritten second continuation report. [ 40 ] In further cross-examination, the defence also elicited the following from Constable Li. The description Constable Li obtained of the assailant was from the complainant.

She then provided that description to the General Investigation Unit, (Sexual Crimes) at the Burnaby detachment. She acknowledged that in her continuation report of the incident she noted that the stall door had been pulled open. [ 41 ] Constable Li did not check the washroom in Central Park. Accordingly, she did not look for the gap between the door and the floor, nor did she photograph the crime scene.

Constable Li acknowledged it should have been done but was not. [ 42 ] Constable Li acknowledged it would have been helpful to determine the condition of the door in that it would have been helpful to determine reliability and to gain a conviction or exculpate the assailant. She acknowledged it would have been helpful to check out the lighting in the washroom. [ 43 ] She did not take a photograph of the clothing when it was given to her. She recalled the shorts and tank top and believed the substance on them was dry.

She agreed a photograph of the clothing would have been helpful. [ 44 ] Constable Li said she had many things on her mind that day and her primary concern was looking for the suspect, which she did, and attending to the victim. Constable Li also acknowledged it would have been helpful to attend the crime scene to see if there was semen on the washroom stall and to examine the scene for fingerprints. Constable Li indicated she had only been a police officer for two years in 1999, but she had a supervising officer who reviewed her paperwork. Evidence of the Accused [ 45 ] I now turn to Mr. Burgar's evidence. Mr.

Burgar testified that on previous occasions he had been convicted for committing indecent acts in public places. However, he denied committing the acts described by the complainant in the case before this court. [ 46 ] Mr. Burgar acknowledged he had been arrested on a charge of indecent exposure in Central Park. Initially, he could not remember the date, but when his criminal record was reviewed with him by his counsel he identified a conviction in 2001 when he was convicted of committing an indecent act in a public place in Burnaby.

In cross-examination, he explained that this incident had occurred in Central Park. However, it had not occurred in a washroom. The 2001 incident, for which he was convicted, occurred on one of the walking trails by the golf course.

[ 47 ] Mr. Burgar was asked in direct examination whether he had ever exposed himself or ejaculated in a woman's washroom at Central Park. Mr. Burgar testified he had done so on one occasion and one occasion only. Earlier in his testimony, he had explained that in April 1999, his common law wife worked downtown and sometimes he drove her to work. On occasion, he stopped at Central Park. He explained that he told himself he was going to go for a walk, but in reality he was looking for an opportunity to expose himself. [ 48 ] Mr.

Burgar testified he could not specifically pick the dates and times when he had gone to Central Park. In cross-examination, Mr. Burgar said he could not recall the date or the year of the one occasion that he had been in the women's washroom in Central Park. However, he knew it was before 2001 because after the 2001 conviction he never went back to Central Park. [ 49 ] In cross-examination, he also said that on the day he had been involved in an incident in the women's washroom at Central Park he had not been arrested. It should be noted that although Mr.

Burgar candidly acknowledged he entered the women's washroom at Central Park on one occasion, he absolutely denied that occasion was the one described in evidence by the complainant. [ 50 ] I now turn to the details of the one incident Mr. Burgar described as occurring in the washroom at Central Park. Mr. Burgar said on that occasion he was walking along an abandoned railroad track near Central Park at about Kingsway and Patterson Street when he saw a Caucasian woman walking from the direction of the Patterson Street SkyTrain to the washroom.

He saw the woman enter the washroom and waited about 30 seconds before he entered. [ 51 ] Mr. Burgar said he went into the washroom building and checked the area where the sinks were to see if anyone else was there. He then entered a stall that was beside the stall occupied by the woman. He stood on the toilet and looked over the top of the stall. He did that to see if the woman was finishing up in the washroom. If she was finishing up, he did not want to expose himself. Mr. Burgar said it did not look like the woman was finished. [ 52 ] Mr.

Burgar decided that he was going to try to expose himself from underneath the stall door. He knelt in front of the stall door and, while kneeling, tried to slide his knees and other parts of his body under the stall door. Mr. Burgar said he was trying to slide straight in. His knees were bent and his feet out from his legs. However, the stall door opening was too low. Therefore, he could not expose himself. He could not slide underneath the door far enough and therefore could not get his penis out. Mr.

Burgar explained that from inside the stall the woman in the stall would have been able to see his knees and part of his leg. [ 53 ] Mr. Burgar said on that occasion he was fully clothed and had only unzipped his pants. He was wearing underwear and was trying to pull his penis out. He said that other than his hands, he did not believe any other portion of his body was exposed underneath the stall of the washroom door. At a later point in direct examination, he was asked whether his pants' zipper was undone. He said he believed it was.

He said that was because he thought he was trying to get his penis out, but since there was no room he could not do so. [ 54 ] Mr. Burgar said his hands were the only part of his body that were not covered. He said he has an amputated index finger on the right hand as well as another finger which is badly scarred. Mr. Burgar said his hand would have been visible because he was trying to get his hand into his pants. Mr. Burgar said he was only on his knees in that position for a short period of time. [ 55 ] Mr. Burgar said that was the first time he had been in a women's washroom.

It was also the first time he had tried to slide under the stall door. He had never tried that before and has never tried it since. When he found he could not slide as much of his body under the door as he wished, he slid out from underneath the stall door. [ 56 ] Mr. Burgar said he stood up and masturbated standing up against the outside door of the stall he had tried to slide under. In direct, he said he ejaculated onto the door. He wiped the semen from his hands onto the door and onto the doorjamb. He was not sure how long he masturbated, but thought it maybe was a few minutes. [ 57 ] Mr.

Burgar said he had no interaction with the woman inside the stall. When he was trying to slide under the stall door, the woman inside did not scream. Additionally, when he was masturbating outside the stall door, he did not say anything and neither did the woman inside the stall. At another point in his direct testimony, Mr. Burgar was asked whether he heard anyone scream during the activity he described on this one occasion. He said he did not hear anyone scream. [ 58 ] Mr. Burgar could not recall what area of the door was hit by his ejaculate. He thought it was probably waist high or lower.

However, when he wiped his hands on the door, it was probably in an area that was chest high. In direct, Mr. Burgar was asked why he deposited semen on the door. He said he did not know. [ 59 ] Mr. Burgar said he did not use the sinks after the event because, in case the woman came out, it would be more frightening for her to see him there. He said that whenever he exposes, there is a distance between him and the person he exposes to so that much of the fear is eliminated. Usually, he exposes from his car to someone in another car so there is a distance and a feeling of security.

He thought a person locked in a washroom stall would feel more secure. [ 60 ] Mr. Burgar thought some of the semen ended up on the floor, but he could not say for sure. Mr. Burgar said his decision to wipe his hands on the door was deliberate. He did that to get the semen off his hands and that was the closest thing available to him. He said he did not use a sink because he thought it would more frightening for the woman if she came out of the stall and he was still there. As already noted, Mr. Burgar said he usually exposes himself from a distance. [ 61 ] Mr.

Burgar was asked to describe the opening at the bottom of the door of the washroom stall. He said he has worked in construction, and from that experience he knows that such stall doors are installed with a 9 to 12-inch opening off the floor. He could not specifically say what the size of the opening in the Central Park washroom stall was. He said part of his body had gotten under the opening of the stall door. He got to halfway up the zipper area of his pants, probably where his hips started. He thought his body was about two feet inside the washroom stall. [ 62 ] Mr.

Burgar said he believed the stall door opened inward. He said all stall doors open inward. He also said he has been in public washrooms before and has pushed on the doors. It is hard to make them move. He gave an example of being at Surrey Place Mall where some kids had locked a stall door and then somehow gotten out. He said he pushed on the stall door, but it did not move.

[ 63 ] Mr. Burgar said the incident he described (in the washroom at Central Park) took maybe four to six minutes altogether, but he was not sure. During that time, he did not hear the woman utter anything. He heard absolutely nothing. After he wiped his hands, he left. Mr. Burgar said he closed the door firmly so the woman would hear that he had left. He did not hear or see that woman emerge from the stall. [ 64 ] Mr. Burgar went from the public washroom to his car in the parking lot. When asked to describe what he was driving, he said it was probably a van and probably a white Dodge caravan.

He did not recall seeing other vehicles in the parking lot. [ 65 ] Mr. Burgar was asked how it was possible for him to stop by Central Park. He said with the moving business (I presume he meant his own moving business) there would be days when he was not working and that gave him time to stop. If he had been working for the cartage company, that would not give him any opportunity to go to the park unless it was at the end of the day. [ 66 ] Mr. Burgar did not recall the time he stopped on the day of the incident he described. He said it could have been anytime between 9:00 a.m. and 1:00 or 2:00 p.m. [ 67 ] Mr.

Burgar sometimes drove his girlfriend to work. She started at 7:30 a.m. However, he did not specifically recall the one incident he described at Central Park as occurring after he dropped off his girlfriend. I have also used the term common law wife. I am referring to the same person. [ 68 ] On the occasion Mr. Burgar described, he did not see anyone else nearby, but then he did not really look. He never heard anyone screaming from within the bathroom. He said that from the time he left the washroom and arrived where his car was parked, it took five to 10 minutes for him to leave the area. Mr.

Burgar said he probably went home, but did not remember. [ 69 ] As noted, Mr. Burgar described he has an amputated index finger on his right hand and another finger is scarred. In direct examination, he was asked what length of time he had used his hand so that it would be visible. He said it became pretty evident that he could not accomplish what he had set out to do so he estimated his hand would have been visible five, 10, 15 seconds at the most. [ 70 ] Mr. Burgar was asked why he did not attempt this type of exposure again. He said it was not his style.

He preferred exposing and he did not like to have the victim feel uncomfortable. Looking back at it, he decided it was not appropriate because the victim could feel fear because she was trapped in the stall. He said it was not something he did. He likes to keep his distance from the victim because he wants to give the victim an opportunity to walk by and leave. [ 71 ] Mr. Burgar categorically denied that on April 16, 1999, he entered a stall in a public women's washroom at Central Park. He also categorically denied he masturbated against a woman in a stall or that he ejaculated on her clothes.

He said he did not do that on any other day, against the complainant or anyone else. [ 72 ] In cross-examination, Mr. Burgar said on the day he described ejaculating against the stall door he was not arrested. He could not recall anything significant happening that day. He thought he had probably gone home immediately after and was probably driving his white caravan as best he could remember. That day he was probably wearing jeans and steel-toed boots. He usually wears steel-toed boots because they are very comfortable.

He could not recall the day of the week that the incident he described in the washroom occurred. [ 73 ] Mr. Burgar confirmed he ejaculated on the stall door. He was asked how he got semen on his hands. He said that when he masturbated, he got semen on his hands. He said probably most of the ejaculate landed up on his hands, but he was not absolutely positive. He wiped what remained on his hands on the doorjamb. He acknowledged he did not wash his hands. However, he did not get semen on the steering wheel of his car because he wiped his hand on a handkerchief he had with him.

He said his nose constantly runs. [ 74 ] Mr. Burgar admitted he was uncertain about a number of details such as where he was working, the time he was in the bathroom, the vehicle he was driving, whether he went home or not, some of the details of his criminal record. It was suggested to him that the event he described had never occurred and that the story he told was false. He denied that was so. It was also put to him that he committed the offence described by the complainat. He denied that was the case. DNA Evidence [ 75 ] I now turn to the DNA evidence.

The clothing, that is one pair of shorts and one tank top worn by the complainant on the day of the April 16, 1999 incident, was sent for forensic DNA analysis at the RCMP forensic laboratory in 2002. [ 76 ] The evidence presented at trial from Ms. Crossman established that two samples were taken for analysis, one from the tank top and one from the pair of shorts. The sample from the tank top came from a cutting measuring one-by-three centimeters taken from the left chest area of the tank top.

The sample from the shorts came from a one-by-two centimeter cutting taken from the front left leg of the pair of shorts. [ 77 ] Ms. Crossman said if only one potential suspect is identified, the practice is to take only one or two samples per item. Furthermore, in this case, because semen had been identified as a biological material, one sample per item was deemed sufficient. [ 78 ] The analysis of the two samples showed that the biological material extracted from the front left leg of the shorts came from one unknown male individual.

That profile was designated as Male Number 1. [ 79 ] Analysis of the biological material extracted from the left chest area of the tank top showed that there was a major male profile and a trace component. The major male profile matched the Male 1 profile from the left leg of the shorts. [ 80 ] Ms. Crossman explained that the trace profile found on the tank top sample indicated the presence of another person's DNA. However, there was not enough of the trace profile to make a meaningful comparison. There was sufficient information to determine it came from a different source than the one identified as Male 1.

[81] Ms. Crossman said it was determined that the trace profile was human DNA, but testing could not determine whether it wasmale or female. Ms. Crossman also said they expected to find the DNA of the wearer on clothing worn by her. Accordingly, thepresence of a trace component of DNA on one of the samples was not unusual. The fact there was a trace component did not make itnecessary to examine other areas. Ms. Crossman said the indication was there was only one semen donor. Therefore, there was noreason to check more samples. [82] In cross-examination, Ms.

Crossman confirmed that DNA analysis does not determine when or where the biological materialwas deposited, how it was deposited, or the veracity of a witness's claim as to how the material was deposited. She acknowledged that atransfer of biological material was more likely to occur if the material was wet rather than dry. [83] She acknowledged that if an item was folded up, a wet stain could transfer from one location to another on the same garment. Ms.

Crossman was asked if there had been ejaculation on the chest area and a deposit all over whether, in the process of removal andfolding of the clothing, it could have been transferred anywhere. She said it was possible, but unlikely that an entire stain would movesomewhere else. It was possible that part of the liquid material could move elsewhere. It was also possible that material from thecomplainant's garment could move from a lower area to the upper chest area. [84] Ms. Crossman was asked whether material in a liquid form would mean that movement or transfer was very likely.

She saidthat was not very likely because something like fabric will absorb a lot of liquid, therefore transfer from fabric is less likely. [85] Following execution of an ITO on the accused, a sample of biological material obtained by Constable Bonnet was examined bythe RCMP forensic laboratory. It was also compared to the DNA profile previously obtained from the tank top and shorts of thecomplainant. [86] The conclusions reached by the forensic specialist, based on the

interpretation and comparison of the above-noted genetic data,were as follows: (

a) The DNA typing profile obtained from the left leg of the shorts previously designated at Male 1 matched that of the knownsample provided by the accused. The estimated probability of selecting an unrelated individual at random from the Canadian Caucasianpopulation with the same profile is one in 35 billion. (

b) The DNA typing profile obtained from the left chest area of the tank top was of mixed origin consistent with having originatedfrom two individuals. The profile of the major component matched that of the known sample provided by the accused. The estimatedprobability of selecting an unrelated individual at random from the Canadian Caucasian population with that same profile is one in 35billion. Legal Principles [87] I now turn to the legal principles applicable to this case. A person charged with a criminal offence is presumed to be innocentuntil the Crown has proven his or her guilt beyond a reasonable doubt.

The onus of proving guilt never switches from the Crown to theaccused. [88] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada said that proof beyond areasonable doubt does not involve proof to an absolute certainty. It is not proof beyond any doubt, nor is it an imaginary or frivolousdoubt. In R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144, the court pointed out that the burden of proof placed on the Crownlies much closer to absolute certainty than to a balance of probabilities. [89] In R. v.

J.M.H., 2011 SCC 45, the Supreme Court of Canada pointed out that a reasonable doubt does not need to be based onthe evidence. It may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisitelevel of beyond a reasonable doubt. [90] In cases where an accused person testifies, the trial judge must assess his or her evidence applying the reasonable doubtstandard. This requires the trial judge to direct his or her mind to the question of whether the accused's evidence raises a reasonabledoubt. [91] In R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada suggested an approach to theassessment of an accused person's credibility by using a three-step analysis even in cases where a trial judge is sitting alone. Those threesteps are: (1) the trial judge should ask herself whether she believes the testimony provided by the accused. If so, an acquittal must beentered. If not, (2) the trial judge should consider whether the accused's testimony causes her to have a reasonable doubt concerning theaccused's guilt. If so, an acquittal must be entered.

However, even if the answer to the first two steps is "No", (3) the trial judge mustconsider the totality of the evidence presented at trial and determine whether the accused's guilt has been proven by the Crown beyond areasonable doubt. [92] A fourth step was added by the B.C. Court of Appeal in a subsequent case which states that where the trial judge does not knowwho to believe, she should acquit. [93] The case law makes it clear that a trial is not a contest of credibility between witnesses and that trial judges must be careful notto treat it as such.

Elements of the Offence [94] I now turn to the elements of the offence of sexual assault. Section 265(1) of the Criminal Code defines the offence of assault. Assault can be committed in several ways, but the two I will refer to are set out in s. 265(1)(

a) that is, a person commits an assault when,without the consent of the other, "He applies force intentionally to that other person, directly or indirectly," and then there is 265(1)(b), aperson commits an assault when:

... he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe onreasonable grounds that he has, present ability to effect his purpose ... In this particular case, s-s. (1)(

a) and (

b) of the Criminal Code are potentially applicable. [95] The offence of sexual assault is set out in s. 271(1) of the Criminal Code which states that everyone who commits a sexualassault is guilty of an offence. The Supreme Court of Canada has indicated in R. v. Ewanchuk (1999), (SCC), 131C.C.C. (3d) 481, that the offence of sexual assault is comprised of an assault within any one of the

definitions in s. 265(1) of the Codewhich is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. [96] In R. v. Lutoslawski, 2010 SCC 49 , [2010] S.C.J. No. 49, the Supreme Court of Canada said the test to be applied indetermining whether the impugned conduct has the requisite sexual nature is an objective one. That is, viewed in the light of allcircumstances, is the sexual or carnal context of the assault visible to a reasonable observer? [97] Sexual assault does not require proof of an improper or ulterior purpose. It is clear from s. 265(1)(

a) of the Code that the leasttouching of another person without their consent constitutes an assault. [98] That is the end of my review of the legal principles. I wish to note I was assisted in the case law referred to in this analysis by acase of Judge Gorman of the Newfoundland Provincial Court in a case called R. v. Carey, [2012] N.J. No. 237. Assessment of Credibility [99] I now turn to the assessment of credibility. Assessing the credibility of a witness and the reliability of his or her evidence is notan easy task.

A trial, as I have already noted, is not a contest between the alternative versions of events offered by the Crown and thedefence. Rather, a trial judge must consider all the evidence to determine whether the Crown has proved the accused's guilt beyond areasonable doubt. [100] In this case, the credibility and reliability of the accused and the complainant have been put in issue.

Accordingly, I must assessthe evidence and determine whether I accept all, some, or none of their testimony. [101] Some of the factors I will consider in making this assessment are: opportunity to observe; ability to perceive and remember;consistent and inconsistent statements; internal inconsistencies in the testimony; consistency or inconsistency with other evidence;hostility or self-interest, although with respect to this last factor, I must be cautious in relation to the testimony of the accused because Imust not reverse the onus; and last, the overall sense of the evidence and its inherent plausibility.

Credibility of the Accused [102] I begin by assessing the credibility of the accused. As noted in my

summary of his evidence, the accused candidly admitted hehas been convicted of committing indecent acts in public places in the past. However, he categorically denied that he committed the actsdescribed by the complainant. [103] He acknowledged that on one occasion only he attempted to expose himself in a public washroom in Central Park by slidingunder the stall door opening. He was unsuccessful in doing so and masturbated to ejaculation outside the door of the stall and then left. He denied that the woman who was in the stall at that time was the complainant. [104] Having considered Mr.

Burgar's evidence, my conclusion at step 1 of the W.(D.) analysis is that I do not believe his version ofevents as testified to in court. In particular, I do not believe or accept Mr. Burgar's categorical denial of involvement in the incidentdescribed by the complainant. In reaching this conclusion, I have considered a number of points including the following: 1. He was not a good historian. 2. He could not recall details regarding a number of matters with any clarity. 3. He was unable to remember dates.

For example, he could not recall the date of an incident involving indecent exposure inCentral Park for which he was charged and convicted. It was only when his record was put to him by counsel that he identified the dateat 2001. 4. He could not remember the car he was driving in 1999, but noted that if he had ICBC documents available, he would be able todo so because of an accident he had. This indicates he has no independent recollection of many points in his evidence. This conclusionwas also supported by other references in his evidence to how he remembered things. 5.

He could not remember the date or year of the one occasion he described as exposing himself and masturbating in the women'swashroom in Central Park. 6. His testimony in both direct and cross-examination was replete with answers during which he indicated that: he was not sure, hecould not be specific, he could not say for sure, he could not recall, and he would guess. As well, he often prefaced his comments bysuch words as "usually," "I believe," "I would guess," "probably," and "would have." 7.

Some of the details of his description of the one incident where he claims he attempted to expose himself to a woman in awashroom at Central Park are simply not credible or believable. According to his evidence, he first tried to peer through a crack in thestall door, but could not do so because the door was very tightly fitted. Therefore, he walked into the stall next to the one where theCaucasian woman was sitting, stood on the toilet, and peered over the top of the stall. He claims this was all done without having alertedand with no reaction from the woman in the stall. This assertion is simply unbelievable.

Also, according to him, at no point during the time that he tried to slide under the stall door and later when he masturbated outside the stall door was there any reaction from the woman in the stall. He maintains there was silence. Neither he nor the woman said anything. It is simply incredible in the circumstances he described that the woman in the stall would not react at all. 8. The accused also asserted, when describing his preferred method of exposing himself to his victims, that he liked to keep his distance so that much of the victim's fear was eliminated.

He also asserted that he thought a person locked in a bathroom stall would feel more secure. He further asserted he likes to keep some distance between himself and the victim and thus give the victim an opportunity to walk by and leave. I find his stated concern for his victims to be insincere and totally at odds with the behaviour he described which focuses on his own self- gratification. Moreover, his analysis about what he claims to do to alleviate the fears of his victims is totally self-serving.

It minimizes his actions and shows complete disregard for the likely real-life effects of his actions on his victims. His testimony in this regard cannot be given any credence. [ 105 ] I now turn to step 2 of the W.(D.) analysis; namely, even though I do not believe the accused, does his evidence raise a reasonable doubt. For the same reasons given in the step-1 analysis, I find the accused's evidence does not raise a reasonable doubt.

He is not a reliable or credible witness and I do not accept his evidence regarding his stated lack of involvement in the matter before the court. [ 106 ] I now turn to step 3 of the W.(D.) analysis; namely, to determine whether the Crown has established the accused's guilt beyond a reasonable doubt. At this juncture, I will review the evidence of the complainant and determine her reliability and credibility. [ 107 ] The defence argued that I should carefully consider the complainant's reliability and credibility. The defence pointed to what it believed were inconsistencies in her description of events.

The defence pointed to the fact that the complainant's evidence differed from that of Mr. Slinger with respect to their interaction. [ 108 ] The defence argued that the door could not have been banged open from the outside as claimed by the complainant. The defence also argued that the complainant did not describe her assailant as someone who looked anything like what the accused looked like at the time. [ 109 ] In this regard, the defence also noted that the complainant did not notice a major deformity in her alleged assailant's right hand, whereas it was demonstrated in court that Mr.

Burgar only had four fingers on his right hand. [ 110 ] It was evident from the complainantr's testimony that the passage of time, 14 years, has had some effect on her recollection of the incident. However, on a review of her evidence as a whole, I am satisfied that, in the main, she was a reliable witness. I accept her evidence that she was at Central Park on April 16, 1999, and used washroom facilities in the park that were close to the parking lot. [ 111 ] I further accept her evidence and find the following as a fact. She was seated on the toilet in a stall with the door locked.

She saw a man on his knees on the floor through the open area of the washroom stall door. She could see him from the waist down. He was using his right hand and touching his penis which was erect. [ 112 ] The man banged the stall door open and forced his body up against her while she was still seated on the toilet. She did not see his face. The man masturbated and she could feel him doing so. She did not see him ejaculate, but felt a hot wet feeling on her chest area.

I find that the ejaculate landed on her tank top. [ 113 ] When the man stopped masturbating, she pushed herself forward and fell on her hands and knees. The man ran out the door. She only got a side view of him and what he was wearing. This was a fleeting glance. The whole incident only took approximately five minutes. The complainant started screaming. She pushed herself off the floor using the toilet paper dispenser as an aid. She only contacted the floor with her hands and her knees.

Her tank top did not come into contact with the floor, but her shorts did because she fell on her knees. [ 114 ] She did not touch her tank top after the ejaculate got on it. In fact, when she was driving home, she held the seatbelt strap off her chest because she did not want the seatbelt to come into contact with the semen on her tank top. The shorts and top she was wearing were clean. They had been washed before the incident. The complainant did not touch the wall of the stall or the door with her clothing. After the incident, there was semen all over her navy blue tank top. In

summary, I accept the complainant's evidence about the incident. [ 115 ] The central issue to be decided in determining whether the Crown has proved its case beyond a reasonable doubt is the identity of the complainant's assailant. The defence submits the evidence before the court is insufficient to establish the accused was that assailant. [ 116 ] In argument, the defence acknowledged that the accused's DNA was located on a "small" area of the tank top and another "small" area of the shorts of the complainant.

However, the defence submitted the DNA evidence alone does not and cannot determine when the DNA was deposited, how the DNA was deposited, or that the DNA was deposited in any other area of the complainant's clothing other than the two small areas submitted for analysis. The defence noted there were many other areas on the complainant's clothing from which DNA could have been extracted; however, it was not.

Consequently, nothing can be said about the origin of any other biological material that may have been on the shorts or tank top. [ 117 ] In addition to the limited sample of DNA found on the complainant's clothing, the defence submits the way the clothing was handled ought to raise concerns. The defence noted that turning the clothes inside out and placing them in a plastic bag was not the accepted procedure for dealing with such exhibits. The defence argued it has not been established in court whether the DNA from one piece of clothing was transferred onto the other.

It is possible that the shorts could have contaminated the top or vice versa. It is also not known how many items of clothing contained the accused's DNA.

[118] In R. v. Antunes, 2010 BCPC 106, which was upheld by the B.C. Court of Appeal, my brother Judge Rideout considered, albeitin different circumstances, the application of DNA evidence in relation to identifying the perpetrator of an offence. He noted that incriminal investigations, DNA evidence can be significant, if not powerful, evidence in identifying a perpetrator to an offence. However,he also noted that DNA evidence is but one part of the criminal case.

All of the admissible evidence must be properly weighed todetermine whether or not the Crown has discharged its burden. [119] In this case, the defence argued that I should not rely on DNA alone in reaching a conclusion about the identity of thecomplainant's assailant. However, the case law makes it clear that a single item of scientific evidence can provide proof beyond areasonable doubt of the commission of

an act if the evidence is considered keeping in mind the theory of the defence, the other evidencein the case, and the overall burden that rests with the Crown. In some cases, a single piece of circumstantial evidence may be such as toexclude reasonable doubt. [120] In this case, I have found as a fact that the complainant's assailant ejaculated on the tank top she was wearing at the time of theincident.

I have also found as a fact that the tank top and shorts were clean at the time the incident occurred and that the complainant'sclothing did not come into contact with the walls or door of the washroom stall. [121] The accused himself admitted he frequented Central Park up to 2002 in order to expose himself.

In fact, the accused admittedbeing in that same washroom and exposing himself, masturbating, and ejaculated, albeit, according to him, in very differentcircumstances and with a different woman. [122] The defence made much of the fact that the complainant gave a description of her assailant that did not match that of theaccused. A review of the evidence indicates that the only common features between the description of the assailant and the accused arethe fact that both were Caucasian and that both were about five-foot-eight. In this regard, I noted that the booking sheet entered inevidence for 1999 described Mr.

Burgar as being 175 centimeters in height. This is approximately five-foot-eight. [123] The complainant's evidence is clear that she only got a fleeting glimpse of the man, from the side, as he was leaving thewashroom building. The case law is replete with references to the fact that identification in such circumstances is often unreliable. Inthe circumstances the complainant found herself in, it is not surprising that her description may be inaccurate. [124] However, in this case there is DNA evidence that establishes Mr. Burgar came into contact with the complainant's top and/or hershorts.

The defence theory is that the DNA material must have been transferred in some other way and that, although there was DNAmaterial, it was only in minute portions of the complainant's clothing. [125] In the Antunes case, the accused's blood was found on four locations of a blood deposit found on a car's airbag. Judge Rideoutreferred to the case of R. v. McLeod, 2010 SKCA 47 , 2010 S.K.C.A. 47, and noted that a trial judge must be alert to thelimitations of DNA evidence and a trial judge must not be overwhelmed by DNA statistical probabilities and attributions.

However,Judge Rideout noted that DNA evidence can no longer be described as novel scientific evidence. The application of DNA evidence inCanada is now common in criminal investigations. [126] In this case, the defence argued that DNA evidence of the accused was only found on two small areas of the complainant'sclothing.

It is clear from the evidence given by the complainant, which I have accepted, that although the sample was taken from onesmall area of the tank top, the semen that was deposited on the tank top all came from her assailant. [127] I do not accept the defence argument that because only two small areas were tested no conclusion can be reached about thebiological material on the rest of the clothing. Given the evidence I accepted from the complainant, I conclude on the basis of areasonable inference that her assailant deposited the semen in more than one minute spot on her clothing.

Her assailant left his semen ona large area of her tank top. [128] I have carefully reviewed the evidence from Ms. Crossman and Ms. Louie and conclude that the Crown has established thetheoretical validity of the scientific techniques used in the DNA testing in this case. The probability of selecting an unrelated individualat random from the Canadian Caucasian population with the same profile as that found in this case is one in 35 billion. [129] In R. v. Stejepanovic, which is a case referred to by my brother Judge Rideout and which is found at 2006 BCCA 169, the caseagainst the appellant was circumstantial.

The DNA of the appellant was found in a stolen car associated with the robbery, but theappellant was unknown to the owner. Mr. Justice Hall commented on the DNA evidence that was admitted at trial as follows: It seems to me that the DNA evidence is, in the circumstances of this case, powerful evidence against the appellant. The gap in timeduring which the vehicle was stolen is a relatively narrow one on either side of the date of the robbery.

The appellant is unknown to theowner of the vehicle and no sensible explanation emerges from the evidence as to how possibly the DNA of the appellant could havegotten on that steering wheel of the stolen Honda Civic other than him being the driver of that car at a point in time around the date ofthe robbery. ... There is thus evidence that the robber drove the vehicle and there is the evidence that the DNA of the appellant was found on thesteering wheel of the vehicle.

In the factual circumstances of this case, I view that DNA evidence as powerful circumstantial evidencethat could properly be used by the judge to support the admittedly less than strong evidence of identification from the eye witnesses...(para. 10 and 11). [130] In this case, I have accepted the evidence of the complainant that: her assailant ejaculated on her tank top, she did not touch thewalls or the door of the bathroom stall, and the tank top and the shorts she was wearing that day had just been washed.

The continuity ofthose items of clothing is not in issue and, although the manner in which they were initially stored by the complainant may not have been

ideal, the evidence before this court is that this had no effect on the validity of the DNA analysis. [ 131 ] I have rejected Mr. Burgar's explanation of how semen may have gotten into that washroom stall as unbelievable. Accordingly, on the evidence I have accepted, I find no sensible explanation emerges from that evidence as to how, possibly, the DNA of Mr. Burgar could have gotten on the tank top of the complainant other than that he was the assailant who deposited the semen during the incident described by the complainant.

In this case, I find that the DNA evidence is powerful circumstantial evidence that I can properly use, to quote from Mr. Justice Hall, to support the "less than strong evidence of identification" by the complainant. [ 132 ] Accordingly, having considered all of the admissible evidence presented at trial, I have concluded that the circumstantial evidence, including the circumstantial DNA evidence, establishes that the accused was the complainant's assailant.

Therefore, at step 3 of the W.(D.) analysis, I find the Crown has established all of the elements necessary on the charge of sexual assault, including the identity of the assailant who I find to be Mr. Burgar. [REASONS FOR JUDGMENT CONCLUDED] CORRIGENDUM - Released June 19, 2014 In the Reasons for Judgment dated August 2, 2013, the following change has been made: [1] On the cover sheet, the “Date of Hearing” date of August 2, 2013, should be changed to “July 16-19, 22, 29-30, August 2, 2013”.