R. v. Boden Date:, 2011 BCPC 366

Citation: R. v. Boden Date: 20111209 2011 BCPC 0366 File No: 209475-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA JOSEPH BODEN BAN ON PUBLICATION S. 517(1) C.C.C. BAN ON DISCLOSURE S. 486.4(1), S. 486.4(2) C.C.C. RULING ON VOIR DIRE AND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.F. GIARDINI Counsel for the Crown: Michaela Donnelly Counsel for the Defendant: Kevin Westell Place of Hearing: Vancouver, B.C.

Dates of Hearing: Dec. 15-22, 2010; Jan. 27, 28, 31; Feb 1, 3, 4; 7, 8,16; Mar 23; May 13; Jun 29, 2011 Date of Judgment: December 9, 2011 A corrigendum was released by the Court on December 21, 2011; the corrections have been made to the text and the Corrigendum is appended to this document. I. OVERVIEW [ 1 ] Joshua Joseph Boden is charged with several offences under the Criminal Code (“the Code ”). Certain orders were made relating to restrictions on publication and disclosure.

In particular, pursuant to s. 486.4(1), I ordered that any information that could identify the complainants or any non-police witnesses must not be published. Accordingly, in these reasons I have used initials for the names of the complainants and non-police witnesses instead of their full names. A. The charges [ 2 ] Mr. Boden is charged:

a) that he sexually assaulted N.G. on August 13, 2009;

b) that he sexually assaulted J.S. on August 25, 2009;

c) that he sexually assaulted S.H. on September 7, 2009;

d) that he wilfully obstructed a police officer, Constable Gibson, in the execution of his duties on September 7, 2009; and

e) that he assaulted a police officer, Constable Gibson, in the execution of his duties on September 7, 2009. B. The issues on the sexual assault charges [ 3 ] From the Crown’s perspective the legal issues on the sexual assault charges are:

a) The admissibility and relevance of the out-of-court descriptions, including statements/selections made in the photographic line up, given by a witness who later identifies the accused in court;

b) The admissibility of the facts of one sexual assault as circumstantial evidence of the guilt of the accused of another sexual assault (i.e. similar fact evidence).

c) The admissibility and/or weight of post-incident conduct. The Crown seeks to rely on post-incident conduct for a limited purpose in respect to each of the three charges. The Crown does not seek to rely on post-incident conduct to prove identity or the actus reus . [ 4 ] From Mr. Boden’s perspective the central issues with respect to the sexual assaults are:

a) In relation to N.G. and J.S., has the identity of the assailant as Mr. Boden been proven beyond a reasonable doubt?

b) With respect to the sexual assault on S.H., Mr. Boden concedes he touched S.H. on the buttocks. However, he maintains there is evidence to support a defence it was a mistake. Therefore, has the Crown proven the mens rea for the sexual assault beyond a reasonable doubt? C. The issues on the assault/obstruct police officer charges [ 5 ] The issues on the assault/obstruct police officer charges are:

a) Did the police breach s. 10(

a) of the Charter by not telling Mr. Boden immediately why he was under arrest?

b) Did the police breach s. 7 of the Charter by using excessive force in the course of Mr. Boden’s arrest?

c) If there was a breach of s. 10(

a) and/or s. 7 should all evidence relating to Mr. Boden’s arrest be excluded?

d) Were the police acting within the lawful execution of their duty when they arrested Mr. Boden? In particular, and separate from the s. 7 Charter challenge, did the police use excessive force in the course of Mr. Boden’s arrest? [ 6 ] Given the various issues to be addressed as well as scheduling considerations the Crown and defence agreed that:

a) all the evidence on all the charges would be called within a single voir dire ;

b) their submissions on all the issues, including admissibility and exclusion, would be (and in fact were) made at the end of the voir dire ;

c) once the court makes a decision regarding the various issues (e.g. the admissibility and Charter issues) all admissible and relevant evidence will become evidence in the trial proper. D.

Summary of circumstances [ 7 ] In late August 2009 police officers in the Vancouver Police Sex Crimes Unit were investigating a number of sexual assaults that had occurred in the downtown area of Vancouver. In early September the police issued a public warning giving brief details about how the sexual assaults had occurred and a very brief physical description of the suspect. At that time the police had focused on Mr. Boden as a possible suspect in those sexual assaults. Consequently, they began surveillance on Mr. Boden on September 6, 2009.

The surveillance continued and on September 7, 2009, the surveillance of Mr. Boden took the police to the Broadway and Commercial Drive area of Vancouver. There a police officer observed Mr. Boden approach an unknown woman from behind and grab her right buttock. The police officer heard the woman scream. The officer then watched Mr. Boden walk along beside her and follow her into the Skytrain station on the south side of Broadway and Commercial. The woman involved in that incident was S.H. [ 8 ] The police continued their surveillance of Mr. Boden immediately after the incident with S.H. They saw Mr.

Boden follow S.H. up the escalator to the platform of the Skytrain station on the south side of Broadway. They later saw Mr. Boden watch S.H. as she left the platform and went down to the ticket area at street level. The police saw Mr. Boden cross from the south side of the Skytrain station to the Skytrain station on the north side of Broadway. He did so using an elevated walkway that runs across Broadway. When Mr.

Boden got to the north side of the Skytrain station at Broadway and Commercial he went down to the street level, walked through the ticket area, and then jaywalked across Broadway to the south side of Broadway. The police saw Mr. Boden standing at the entrance of the Skytrain on the south side of Broadway and then saw him going to an alley-way on the west side of the Skytrain station. The police saw Mr.

Boden leave the alley-way and continue walking on Broadway going west towards Commercial Drive. [ 9 ] Constable Gibson, a dog handler, and police service dog Teak (“PSD Teak”) had been sent to the area of Commercial and Broadway in case Mr. Boden fled from the police. Constable Gibson was walking northbound on the east side of Commercial Drive when he heard on the police radio that Mr. Boden was running southbound on the east side of Commercial heading directly toward him. Constable Gibson stationed himself close to a CIBC parking lot where he later attempted to place Mr. Boden under arrest.

He eventually deployed PSD Teak. The details of what occurred at the CIBC parking lot will be reviewed in more detail in these reasons in the

section dealing with the assault/obstruct charges. Eventually, Mr. Boden fled across Commercial Drive going west towards 10 th Avenue. He ended up in a parking lot adjacent to a Mac’s store. Mr. Boden was eventually arrested in that parking lot. In the course of the arrest, which involved a number of police officers and PSD Teak, Mr. Boden ran toward two police officers one of whom was Constable Gibson. He ran full force into Constable Gibson’s chest area. After a protracted struggle, Mr.

Boden was arrested for the sexual assault of S.H. and the assault and obstruction of a police officer. [ 10 ] A few days after Mr. Boden’s arrest, the police issued a media release about the arrest. The release contained a tip line telephone number and a general request that anyone with information relating to the case call the police. On September 11, 2009, the Vancouver Sun newspaper published an

article about Mr. Boden which was accompanied by one photograph of two black men. The police subsequently received a voice mail message from J.S. on September 14, 2009, and a call from N.G. on September 15, 2009. The police conducted further investigations, including photo pack presentations, and later also charged Mr. Boden with sexually assaulting N.G. and J.S. II. THE SEXUAL ASSAULT CHARGES A. The sexual assault on N.G. [ 11 ] N.G. is a Caucasian woman. At the time of the assault she was 25 years old. She had shoulder length light brown or sandy blonde hair and was approximately 5’ 6” tall.

She was described by the Crown as naturally pretty and athletic. She was wearing tight black leggings, a light violet cashmere sweater that went down past her buttocks, and boots. [ 12 ] N.G. worked at a law firm with offices at Burrard and Georgia in Vancouver. On August 13, 2009, at approximately 2:00 p.m., she was returning from her lunch break to her office at 1030 West Georgia. She entered the building from an entrance on Alberni Street and walked into the public elevator lobby area. She noticed a black man walking behind her from the Alberni entrance.

She and the black man both waited for an elevator in the lobby. When an elevator arrived they both walked into it. There was no one else in the elevator except N.G. and the black man. N.G. stood with her back to the back of the elevator and her face facing the elevator doors. She had an iPod on and was listening to music. She kept her iPod on because she had a feeling the man wanted to talk to her but she did not want to have a conversation with him. N.G. did not recall who pressed the elevator floor buttons first, but she pressed the button for the 11 th floor and the man pressed the button for the 9 th floor.

When the elevator stopped at the 9 th floor, the man stepped on the threshold of the elevator door, peeked out and stepped back into the elevator. N.G. said the man moved his finger around in a random manner and then pressed the button for the 14 th floor. [ 13 ] The elevator next stopped on the 11 th floor. As N.G. was walking out the man pinched her “butt”. At that point she was on the threshold of the elevator door. She described the pinch as not being a hard pinch. It was not a full handed grab. N.G. demonstrated a pinch with a thumb on top with two fingers below.

She said it could have been a “swipe” with an open palm using the tips of the forefingers. The grab was quick. N.G. turned around and asked the man, loudly and clearly: “What the fuck are you doing?” N.G. thought she said that three times. He told her: “I am trying to close the door”.

N.G. then said to him: “You pinched my butt.” The man very calmly repeated: “I am trying to close the door.” N.G. said the last words she said to the man were: “You fucking pig” and then left. [ 14 ] In her testimony N.G. described the man as follows: - black male, - very dark, not very light, medium colour like Beyonce, - mid 20’s, - hair in corn rows from the front to the back of his head, - length of the corn rows was probably to the bottom of his ear lobes, - about 6’ tall, - average build, but someone who goes to the gym, - broad shoulders, - no piercings in his ears.

N.G. said it was difficult to tell the man’s exact body proportions because he was wearing a baggy tracksuit. The tracksuit was made up of pants and a zip-up top in a matching

colour. She said it was hard to remember what colour the tracksuit was. She said it was not all black, not all white, not all grey. [ 15 ] After the assault N.G. was seething. She felt very violated. She went straight to her office and spoke to one of her co-workers. She then went downstairs to speak to a security guard. There were no security guards for the building, however, there is a CIBC bank at lobby level which had a security guard. N.G. went to CIBC and told the security guard what had happened.

The security guard spoke to another person at the bank and then called a woman named Vicki who was responsible for the building. N.G. went upstairs to the 14 th floor to check if the male had gone into any of the offices there. While on the 14 th floor N.G. ran into Vicki who had already checked the 14 th floor herself. N.G. had a conversation with Vicki and asked about what may have been captured by the video cameras in the lobby. Vicki said that she would check that out. In the meantime N.G. returned to her office. [ 16 ] About 20 minutes later either Vicki or someone from the security office went to see N.G.

The person told her they had something on video and asked her to have a look at it. N.G. went to the security office. She told the security personnel what time she had returned from her lunch. They re-wound the security camera video from the lobby to 2:00 p.m. N.G. watched the video. On the video she saw herself walking into the elevator lobby area from the Alberni Street entrance. Behind her she saw the man who had grabbed her butt in the elevator. She watched the video for a few moments. She and the man were shown waiting outside the elevator and later getting into the elevator.

She continued to watch the video of the elevator lobby area for a few minutes and saw other people going in and coming out of the elevators. She next saw the same man leaving an elevator. It was the same elevator she and the man had used. On the video she saw the man leave the building. [ 17 ] The Crown asked N.G. how she recognized the man on the video. She recognized him because of his characteristics. She pointed to his hair style, his physical features, his skin colour, his height and weight, his tracksuit, and the fact that he walked into the lobby right after her.

N.G. said she watched the video in presence of “security people”. They were the ones who played the video. At one point, while she was watching the video, she saw a particular frame where there was a clear view of the man. The security people paused the video, took a snap shot of that part of the video and put it on a disc. N.G. returned to her office. She saved the image from the disc onto her computer and then printed a copy of the picture on an office printer. She eventually gave the disc to Detective Constable Heard. A photograph of that image was entered as an exhibit in these proceedings.

It depicts the lobby of 1030 West Georgia; the time stamp is 2:07 p.m. The photograph shows a black man, wearing a tracksuit comprised of track pants and jacket. The colour appears to be either a very dark navy blue or black. The jacket has a wide horizontal white stripe across the chest, white lining in the hood area, white patches by the shoulders, and a thin white stripe down the front parallel to the zipper. The jacket has a slash pocket with a thin white stripe on the top and white cuffs at the wrists.

The man in the photograph has his hair in corn rows. [ 18 ] N.G. did not contact the Vancouver Police when the incident occurred because she reported the incident to security and a lady at the bank. She thought it was security’s job to take care of these things. She did not obtain a copy of the actual video and by the time police became involved the video footage was no longer available. [ 19 ] On September 11, 2009, N.G. was at home when she received a call from one of the lawyers from her office. The lawyer told her she had read an

article about a black man going around the West End who had sexually assaulted a woman. Alberni Street was specifically mentioned. The lawyer read the man’s description from the article. N.G. could not recall the exact description, but she did recall that part of the description was that the man had corn rows. N.G. said: “...the description she gave me and the actions that he did and just the location, right away I was like, oh, my god, that’s him, that’s him, without seeing any picture or anything. Just by that description I was, like, oh my goodness, I can’t believe it.” [ 20 ] N.G. said she went online, found the

article and read it. She also tried to find some pictures of the man to see if it was the same person. N.G. got the name from the

article and used that name to find the pictures. The man named in the

article was Josh Boden. She found four pictures in total. One of the pictures was from 2008; the others were older from approximately 2004. She said she definitely recognized the face, although he had a different hair style. She also went on YouTube and searched for his name. She found a short video, not longer than a minute, where he was “doing some kind of football spiel”. N.G. said she could see more of his body in the video. She also heard his voice. She said the voice was “a definite match”.

She concluded that this person was definitely the man who had been in the elevator. [ 21 ] N.G. first called the police on September 15, 2009. On September 16, 2009, N.G. had a telephone discussion with Detective Constable Apcar to provide some details before an interview was scheduled. When she spoke to Detective Constable Apcar she told her the tracksuit her assailant wore was red. The next day, September 17, 2009, N.G. met with Detective Constable Heard. Another officer, Constable Oliver met with N.G. to conduct a photo pack presentation.

N.G. was later interviewed by Detective Constable Heard. [ 22 ] When Constable Oliver conducted the photo pack presentation, N.G. did not make a selection the first time she reviewed all the photographs. She reviewed the photographs a second time and selected a photograph of Mr. Boden. N.G. qualified her selection of Mr. Boden’s photograph by saying she was 65% sure that the individual in the photograph she had selected was her assailant. She said the individual in the photograph looked older than her assailant.

She also said: “I just wanna make it super clear that’s that like I’m not 100% sure”. [ 23 ] N.G. was asked whether she had done any further internet searches or seen any photographs in the newspaper after the photo pack presentation. N.G. said that much later she came across an

article on the internet that essentially described the incident that had happened to her. She also said that, at some point, after September 17, 2009, she received a telephone call from Detective Constable Heard. N.G. thought the conversation may have occurred towards the end of September 2009. Detective Constable Heard told her the man charged in connection with the incident involving her had been released from custody and was on bail. The man had a condition prohibiting him from being in the area of downtown Vancouver. [ 24 ] On September 24, 2009, Vancouver police officers executed a search warrant on Mr.

Boden’s home in Surrey. They found a tracksuit jacket that appeared similar to the jacket worn by the man depicted in the still photograph from the security camera video at 1030 West Georgia Street. The tracksuit jacket was dark blue in colour . It had a wide horizontal white stripe across the chest, white patches by the shoulders, white lining in the hood area, a thin white stripe down the front parallel to the zipper, slash pockets with a thin stripe on the top and white cuffs. The jacket was found in a green plastic bag in Mr. Boden’s bedroom. That jacket was marked as an exhibit in these proceedings.

The Crown did not lead any evidence with respect to the track pants. B. The sexual assault on J.S. [ 25 ] J.S. is a Caucasian woman. At trial she appeared to be in her 30’s. She had blonde hair that fell three inches below her shoulder, but on the day of the assault it was in a ponytail. She was 5’ 10½” tall. She was described by the Crown as naturally pretty and athletic. She was wearing grey sweatpants, not tight, not baggy and a black hoodie. [ 26 ] On August 25, 2009, J.S. travelled to Vancouver on the Skytrain on her way to meet a friend at the seawall.

She took the Skytrain from the Waterfront Station to the Burrard Street Skytrain station. J.S. walked to the second level of the Skytrain station and was going up the last (second) set of escalators when the incident occurred. She first saw the man she believed later assaulted her when she walked by him on the second level platform of the Skytrain station. She saw him out of the corner of her eye as she passed him. She heard him make a comment to the effect of “hey” or “hey babe”. When she saw him he had just come down the escalator.

When she heard the man make the comment, he was just stepping off the down escalator and she was just stepping on the up escalator. [ 27 ] J.S. was texting at the time. She was looking down at her phone which she was holding with both hands. She said she “was absorbed into my phone”. Five seconds after J.S. stepped on the up escalator she felt someone grab her buttock aggressively from behind and simultaneously wrap an arm around the front of her chest area. She described the grab as a “full hand grab”. The grab on her buttock was quick and firm. She found this offensive and shocking.

She turned immediately and said to the man: “What the fuck are you doing”. The man behind her was the same man who had muttered at her a few moments earlier. The only other person on the escalator was a Mexican man who was at the very top of the escalator and was just getting off. J.S. looked straight into the man’s face. He had a blank cold expression on his face. His response to her was: “What? What?” [ 28 ] J.S. ran up the rest of the escalator steps. When she got to the top she ran into what she believed was the entryway to the Bentall Centre.

She stopped briefly in order to try to see her assailant come up the escalator. She wanted to get a description of him and what he was wearing. J.S. saw the man at the top of the escalator; he was looking from side to side. At trial J.S. described the man as follows: - a mulatto male with lighter skin; - between 26 – 30 years old; - between 6’ – 6’2” tall; - medium athletic build; - wearing silver headphones around his neck; - wearing a white sleeveless mesh shirt with red piping and the number 24 on the back; - wearing baggy, denim basketball shorts below the knee;

- wearing white shoes; - his hair was braided in cornrows that fell to the base of his neck. [ 29 ] At approximately 10:45 a.m. J.S. left the Burrard Street Skytrain station and walked to English Bay where she was to meet her friend. On the way she called 911 and reported the incident. This was about 10 – 15 minutes after the incident. She provided the 911 operator with a description of her assailant and what he was wearing. That description included that he was wearing a white mesh type basketball shirt.

However, in the course of describing the shirt she told the 911 operator she didn’t know what number was on it. [ 30 ] When she arrived at English Bay she met with two officers from the Greater Vancouver Transit Authority Police (“GVTAPS”) outside the Sylvia Hotel. Constable Bentley was the officer who took J.S.’s written statement. At the top of her written statement J.S. hand wrote the following: “I was leaving the platform of Burrard Station, going up the escalator, when a man came behind me and grabbed me in a sexual manner.” The remainder of the statement consists of a question-and-answer

section that was hand written by Constable Bentley. In that portion of the statement Constable Bentley recorded what J.S. told her about the assailant’s shirt. That note includes the statement “white shirt with maybe red piping and # 24 on back.” This was the first reference to the number 24 in statements made by J.S. to the police. In cross-examination J.S. said before leaving the transit police officers one of them told her a suspect matching the description of the assailant had been seen in Surrey. [ 31 ] Several weeks later, J.S. was at her sister’s house. While she was there she was looking through a newspaper, she thought it might have been the Province. She saw an

article and an accompanying photograph. She thought the man in the photograph had an afro and was wearing sunglasses. The

article was about Mr. Boden, though she did not know his name at the time, and described an incident or incidents unrelated to her. The

article contained a request by the Vancouver Police that anyone with information contact them. J.S. said when she noticed the man and the description of what he was doing she believed the man featured in the

article was the person who had grabbed her at the Skytrain. She called the police department and later spoke to Detective Constable Heard. [ 32 ] J.S. gave Detective Constable Heard a description of the assault and her assailant when she spoke to him on September 14, 2009. The description included the information that her assailant was wearing a white basketball jersey, which might have been a Chicago Bulls jersey, but she was not certain, with the number 24 in red on the back. J.S. said she later received a telephone call from Detective Constable Heard who asked her not to look at any media coverage.

She said she did not read any media coverage but might have seen a picture of Mr. Boden’s face when passing newspaper vendors in the city. When she saw those newspaper vendor photographs she understood the man she was looking at was Josh Boden. [ 33 ] On September 29, 2009, Constable Schell made a photo pack presentation to J.S. The photographs in the photo pack included a copy of the booking photograph of Mr. Boden that had been taken after his arrest on September 7, 2009. That photograph was selected by J.S. as the photograph of her assailant.

After the photo pack presentation was completed, during an interview, Detective Constable Gill told J.S. she had picked the suspect the police believed was responsible for assaulting her. [ 34 ] During the interview J.S. gave Detective Constable Gill a statement which included a description of the assault and of her assailant. That description included the statement that he was wearing a white knit mesh basketball jersey with red on the sleeves. At that time she was not sure if she could remember the number. She said that it was “number 2 or something”.

When she said that she had not reviewed the statement she had provided to the GVTAPS officers a month earlier at English Bay. Detective Constable Gill told J.S. that Constable Bentley had written that she had described the shirt as white, with red piping and the 24 on the back. J.S. said she could not remember the number “right now” but if she “said that at the time then…. “ [ 35 ] On September 24, 2009, members of the Vancouver Police executed a search warrant at Mr. Boden’s home in Surrey. One of the items they found in Mr. Boden’s bedroom was a white “Toronto Raptors” jersey with a red number 24 on the back.

The police also found a number of pairs of long denim shorts that would reach below a person’s knees and a pair of white running shoes similar to those worn by J.S.’s assailant. C. The sexual assault on S.H. [ 36 ] Counsel for Mr. Boden acknowledged at trial that Mr. Boden did, in fact, touch S.H. However, Mr. Boden asserts there is evidence from S.H. herself which supports a defence that he did so under the mistaken but sincere belief that S.H. was his girlfriend. Accordingly, the issue in respect to the incident involving S.H. is whether Mr.

Boden had the intent, commonly referred to as mens rea , to commit a sexual assault. [ 37 ] S.H. is a Caucasian woman in her 30’s. She had pale blonde-brown hair (that was more on the blonde side because it was summer time) that fell below her shoulders. She was 5’ 4” to 5’ 5” tall. She was described by the Crown as naturally pretty and athletic.

She was wearing tight black leggings and a navy blue sweater that fell just below her buttocks and flat shoes. [ 38 ] On the evening of September 7, 2009, S.H. travelled on the Skytrain to Commercial Drive and Broadway to shop for groceries at a Safeway store on East Broadway that is very close to the Skytrain station. S.H. got off the Skytrain at the station located on the south side of Broadway and Commercial Drive. She took the escalator down to the street level and got out on the south side of Broadway. From there she walked east to the entrance of the Safeway.

She was in the Safeway for approximately 20 minutes buying groceries. She carried what she bought in two big cloth bags. She carried the two cloth bags, along with her purse, over her shoulders when she walked back to the Skytrain station along Broadway. The distance from the Safeway to the Skytrain station is less than one city block. There were not a lot of people along her route that day. [ 39 ] S.H. was halfway between the Safeway and the Skytrain station entrance when she felt someone grab the right side of her buttocks from behind.

She described the grab as follows: “-- when he grabbed me he grabbed me on the right side of my buttocks, and it wasn’t like a pat or a slap, when he grabbed me he used his whole hand it was quite - - quite a passionate, or like it was an intimate, it was a personal grab.” She said she was grabbed in a way in which her husband would grab her. She described it as being grabbed “in a possessive way.” S.H. said when the man grabbed her, he used his full hand and sort of squeezed a little. It was not a pat. She said it lasted maybe two seconds. [ 40 ] S.H. was caught off guard and screamed.

The next thing she knew the man was in front of her saying: “I’m very sorry, I thought you were my girlfriend.” She felt extremely embarrassed and nervous. The incident was very shocking to her. S.H. said when she is nervous and embarrassed she often laughs. S.H. believes her response to the man was: “Oh, it’s ok.” She thought she also said: “I thought you were my husband.” At that point S.H. was feeling increasingly embarrassed. Her anxiety was escalating. S.H. wanted the man to go away because she thought he was probably embarrassed as well.

She just wanted to go home. [ 41 ] S.H. continued to walk towards the Skytrain station. The man, who we now know was Mr. Boden, continued to walk beside her and to talk to her. He said things like: “I’m sorry, I hope I didn’t scare you”. S.H. noticed he was on his cell phone and was talking to someone. However, all the while he continued to talk to her and apologize to her. She said, at that point, her feelings changed from being embarrassed to being anxious. Mr. Boden’s behaviour was not the typical behaviour of someone who had just mistaken someone else for their girlfriend.

She thought he should be behaving differently. Instead Mr. Boden continued to talk to her while he was apparently on the cell phone with someone. However, he didn’t seem to be participating in the phone conversation. He was more interested in talking to S.H. [ 42 ] S.H. said she did not hear the phone ring or a vibration or anything along those lines. She believed Mr. Boden picked up the phone shortly after he grabbed her buttocks. She didn’t hear anyone respond on the other end of the telephone either. The one phrase she remembered was Mr. Boden saying: “Where you at.” S.H. said the way Mr.

Boden was talking into the phone raised red flags for her. It didn’t seem to her that he was having a genuine conversation with a person on the other end. She thought it was odd that Mr. Boden would be talking into the phone and then turning and talking to her. It didn’t seem to her that enough time elapsed for the person on the other end to respond to what he was saying. S.H. said the whole thing did not seem to fit the mould of a regular conversation. [ 43 ] S.H. described the way Mr. Boden looked at her while this was going on. Mr. Boden turned around and talked to her while they were walking.

He had a very confident walk. The way he looked at her did not make her believe he felt poorly about what he had done. The best description she could give of the look was that it was like the kind of look she observed many years ago when she used to go out to bars in Vancouver. If someone was trying to pick-up a person they would look the person up and down and smile and exhibit a certain kind of body language. That is what she saw with Mr. Boden.

It was more pick-up body language than “I’m genuinely sorry for what I have done and embarrassed about what I’ve done”. [ 44 ] S.H. proceeded to walk toward the Skytrain station. She entered the Skytrain station and got on the escalator. She turned around and saw Mr. Boden coming up behind her. When S.H. got to the top of the escalator she noticed there were two police officers in uniform talking to two women. She positioned herself a few feet away from the police officers. She was feeling very nervous, really uncomfortable, and unsafe.

She stood a few feet away from the police officers because she felt more comfortable being near them. S.H. thought about talking to the police officers but did not do so because she was nervous. She was worried that if Mr. Boden saw her talking to the police officers that might upset him. Additionally, she was embarrassed about talking to the police about what had happened to her.

[ 45 ] S.H. said the best thing she could come up with to deal with the situation was to wait until the train pulled up, take her time boarding, and then, at the last minute, pretend she had forgotten something and leave the Skytrain car. That is exactly what she did. When the train pulled up she took her time walking towards the open doors. As she got near the doors she pretended she had forgotten something, turned quickly and headed to the down escalator. As soon as she got on the escalator she looked back. She saw Mr. Boden inside the Skytrain car, close to the door, looking out. She described Mr.

Boden as standing in the corner by the door staring at her. When he looked at her he gave her a very intimidating look. He did not look very happy. She explained that after Mr. Boden had grabbed her buttocks his demeanour was friendly, outgoing and flirtatious. However, when he was standing at the doorway to the Skytrain car, the best way to describe his facial expression was frustration. She did not see the Skytrain doors close. [ 46 ] When S.H. arrived at the bottom of the escalator she was approached by an undercover police officer, Constable Silzer, who identified himself as a police officer.

S.H. did not initially believe he was an undercover police officer. She asked him to prove it, which he did by producing identification. Constable Silzer led S.H. to the Safeway and eventually S.H. was taken to the police station. [ 47 ] Constable Silzer was part of a surveillance team that had been watching Mr. Boden that day. Earlier in the day Constable Silzer had watched Mr. Boden walking in Stanley Park with an unknown woman. He had also watched Mr. Boden make apparent efforts to talk to women in downtown Vancouver. Constable Silzer had gone to the Commercial Drive and Broadway Skytrain station.

He placed himself at the north side of Broadway across the street from the Safeway and the Skytrain station entrance on the south side of Broadway. He initially saw Mr. Boden leave the Skytrain station on the south side of Broadway and walk towards the Safeway. Approximately 20 minutes later he saw Mr. Boden come around the corner of the Safeway store on the south side of Broadway. Constable Silzer observed Mr. Boden approach a woman from behind and grab her right buttock area. The woman he saw was S.H. Constable Silzer heard S.H. scream. He then watched as Mr. Boden walked beside her pulling out his cell phone.

Constable Silzer saw S.H. go up the escalator at the Skytrain station. He also saw Mr. Boden standing behind her on the escalator. He saw Mr. Boden bend over towards the left and stare at S.H.’s buttocks. [ 48 ] Another police officer, Constable Fraser, saw S.H. in the Skytrain station immediately after the incident occurred. Constable Fraser saw S.H. on the escalator. She was on one step and Mr. Boden was standing behind her approximately two steps down. Constable Fraser saw Mr. Boden looking directly at S.H.’s buttock area.

He was also looking over his shoulder and back down the escalator. [ 49 ] Constable Confeiteiro also made observations of Mr. Boden’s both before and after the incident. Before the incident he saw Mr. Boden on the southeast portion of the Safeway parking lot which is directly east of the Safeway building. Mr. Boden was looking left, right and behind him. Constable Confeiteiro described Mr. Boden’s head as being on a swivel. Constable Confeiteiro said he did not know what Mr. Boden was looking at. However, from where Mr.

Boden was positioned and the angle he was looking at, he could have looked at the front entrance of the Safeway that faced the parking lot. Constable Confeiteiro said Mr. Boden was in the Safeway parking lot for about 20 to 25 minutes. He then left at a quick sprint and headed towards the front entrance of the Safeway and from there he moved north towards Broadway. [ 50 ] Constable Confeiteiro saw Mr. Boden after the incident when Mr. Boden was crossing on the elevated pedestrian walkway. He was crossing from the south side of the Skytrain station to the north side of the Skytrain station.

Constable Confeiteiro then saw Mr. Boden on the ground level of the Skytrain station on the north side. He saw Mr. Boden standing on the north sidewalk looking directly into the entrance of the south side of the Skytrain station. Mr. Boden jaywalked to the south side across Broadway and stood in front of the entrance way on the south side. He saw Mr. Boden bend over slightly and look up towards the escalator. He next saw Mr. Boden go to the alley-way that is just on the east of Commercial Drive. Mr. Boden was up against a construction fence. Mr.

Boden was looking into the Skytrain area at the ticket level and also cocking his head up and looking toward the escalator. At one point he got down on one knee and continued looking into the ticket level and towards the escalator. After a few moments Mr. Boden left that area in the alley-way and walked westbound on Broadway towards Commercial and turned southbound on Commercial. [ 51 ] Mr. Boden was eventually arrested. As part of the investigation, police officers seized surveillance videos from the Commercial Drive and Broadway Skytrain station and the Safeway store.

A composite video was entered as an exhibit. It shows Mr. Boden before the incident when he first arrived at the Skytrain platform. The video shows Mr. Boden brush by several people as he walked behind S.H., down the escalator, and out of the Skytrain station. It also shows Mr. Boden going into the foyer of the Safeway store and staying there for a brief period and then waiting outside for a short period. Mr. Boden moved out of camera range in the direction of the Safeway parking lot. The video also shows S.H. when she left the Safeway store. She is seen carrying two large shopping bags and a purse. Mr.

Boden is seen, on the video, jogging across the parking lot and walking after her. [ 52 ] The video also shows S.H. after the incident ascending the escalator to the Skytrain platform. Mr. Boden is shown behind her. The video also shows Mr. Boden and S.H. on the platform. S.H. is later seen leaving the platform as Mr. Boden looks directly towards the descending escalator. Mr. Boden is also shown looking over the railing down to the main floor. The video shows Mr. Boden jogging over the elevated passageway that connects the north and south Skytrain stations. Mr.

Boden is shown jogging to the Skytrain station on the north side of Broadway. D. Police investigation and media coverage after Mr. Boden’s arrest [ 53 ] On September 9, 2009, two days after Mr. Boden’s was arrested in connection with the sexual assault of S.H., Detective Constable Heard prepared a media release about the arrest. The release said that Mr. Boden had been arrested in connection with a sexual assault near Commercial Drive and East Broadway. In the release there was a tip line telephone number. People were asked to call if they had any information pertinent to the case.

The release referred to an earlier public warning and said any connections to that public warning were being investigated. The police did not release any photographs as part of that media release. [ 54 ] On September 11, 2009, the Vancouver Sun published an

article written by Kim Bolan. The

article stated that Josh Boden was facing a charge of sexual assault after a number of women reported being groped on the streets of Vancouver. The

article was accompanied by one photograph of two black men. Both men appeared to be wearing a team jersey. The image of the male on the left, which was a side profile, appeared to be that of Mr. Boden with very short hair. [ 55 ] On September 14, 2009, Detective Constable Heard retrieved a voice mail message from J.S. He telephoned her. She gave him a description of what had happened to her, as well as a description of her assailant and his clothing. At that point Detective Constable Heard took no further investigatory steps.

He believed the GVTAPS were still investigating the matter. [ 56 ] On September 15, 2009, Detective Constable Heard had a brief conversation with N.G. He told her they would

schedule an interview at a later date. On September 16, 2009, Detective Constable Apcar had a telephone conversation with N.G who provided a description of what had happened to her as well as a description of her assailant and his clothing. [ 57 ] Detective Constable Heard prepared photographs for a photo pack presentation which was to be shown to N.G. In addition to nine photographs of other black males he included the booking photograph of Mr. Boden that had been taken after Mr. Boden’s arrest on September 7, 2009. All of the photographs showed the head and upper shoulders and the front view of the face.

On September 17, 2009, Detective Constable Heard interviewed N.G. However, he did not participate directly in the photo pack presentation. The photo pack presentation was conducted by Constable Oliver. Mr. Boden raised issues at trial regarding details of the photo line up process with N.G. However, the Crown does not seek to rely on N.G.’s in-court identification and acknowledges the weakness of the photo pack identification. Accordingly, the issues raised by Mr.

Boden regarding the photo pack presentation to N.G. will not be set out. [ 58 ] On September 24, 2009, the Vancouver Police executed a search warrant at Mr. Boden’s residence in Surrey. They seized a number of items from Mr. Boden’s bedroom including the following: a blue tracksuit jacket, a white basketball jersey with the number 24 on the back, long denim shorts and white running shoes. [ 59 ] On the same day, the Vancouver Police held a media briefing.

At that briefing they told the media that Joshua Boden had been charged with two counts of sexual assault, one count of obstructing a police officer and one count of resisting arrest. At that briefing Constable Houghton held up two photographs of Mr. Boden. One was the recent booking photograph and one was a photograph taken a few days later while Mr. Boden was still in custody. [ 60 ] On September 25, 2009, the Province newspaper had on its front page a photograph of Constable Houghton holding the two photographs of Mr. Boden.

The headline on the front page of the Province was: “Public warning over ex-BC Lion: Josh Boden, former receiver, granted bail despite risk to the community”. [ 61 ] On September 29, 2009, Detective Constable Heard gave Constable Schell a copy of a photo pack line up he had put together to be shown to J.S. In accordance with usual police practice regarding photo pack line ups, Constable Schell was not involved in the investigation. Constable Schell showed the photo pack to J.S. At that time J.S. selected the photograph of Mr. Boden as being the photograph of the person who had assaulted her.

Constable Schell testified it was only after J.S. made her selection that Constable Schell recognized the selected photograph as one that had recently been in the media. E. Admissibility of similar fact evidence [ 62 ] In this case the Crown seeks to have the evidence with respect to certain of the sexual assault counts admitted as circumstantial evidence on certain other sexual assault counts. The purpose for which the similar fact evidence is sought to be admitted varies with respect to each count and is set out below:

a) With respect to an N.G. the Crown seeks to rely on the similar fact evidence of the sexual assault of S.H. and J.S. to prove that the accused sexually assaulted N.G.

b) With respect to the J.S. sexual assault the Crown submits there is sufficient evidence to prove beyond a reasonable doubt that it was the accused who committed the assault. Theevidence the Crown relies on in this regard is the evidence of J.S. and clothing found at the accused’s residence. However, the Crown submits, if the court finds this evidence is notsufficient, the evidence of the S.H. and N.G. sexual assaults is admissible as similar fact evidence to buttress J.S.‘s evidence that the accused committed the sexual assault.

c) With respect to S.H. the Crown does not rely on similar fact evidence to prove the accused committed the sexual assault. The Crown submits that the evidence of S.H. and policeofficers as well as other evidence proves beyond a reasonable doubt that S.H.’s assailant was the accused.

d) Last the Crown submits that once it has proven that Mr. Boden was the assailant in each of the three sexual assaults, the circumstances of each assault can be used ascircumstantial evidence to rebut any defense of mistake, accident or other innocent explanation. The Crown acknowledges that such similar fact evidence may also serve to establishthe actus reus and to support the credibility of each complainant, however, that is not the primary purpose for tendering the similar fact evidence. 1.

The law regarding similar fact evidence [63] There is a general exclusionary rule that evidence which goes simply to the disposition of an accused is not admissible if the evidence is adduced solely to show that theaccused is a the sort of person who is likely to have committed the offence in question: see R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717. However, there is a narrowexception to the general rule.

The courts have recognized that an issue may arise in the trial of an offence where evidence of previous misconduct may be so highly relevant andcogent that its probative value outweighs its prejudicial effect; see R. v. Handy, [2009] 2 S.C.R. 908 at para. 41. [64] The test for the admissibility of similar fact evidence requires a judge to balance the prejudicial effect and the probative value.

The onus is on the Crown to satisfy the trialjudge, on a balance of probabilities, that the probative value of the evidence it seeks to adduce outweighs the prejudicial effect in the circumstances of this case: see Handy para. 55. [65] In R. v. Johnson 2010 ONCA 646, Rouleau J.A. writing for the Ontario Court of Appeal noted that before engaging in any balancing between prejudicial effect andprobative value a trial judge must first determine if the presumptive exclusionary rule applies by addressing the following threshold issues:

a) Is the evidence in question discreditable to the accused?

b) Is there some evidentiary link between the similar facts and the accused?

c) Is the evidence capable of being reasonably believed and supporting the inference the Crown is asking the trial judge to make? Once those threshold issues are addressed the court must evaluate the strength or weakness of the probative force of the evidence. The probative force of similar fact evidence isbased on reasoning through probability. It is based on the proposition that it is unlikely the accused would be implicated more than once in offenses which are unique or markedlysimilar. It is the unlikelihood of coincidence that gives the evidence its probative force: see R. v. Arp, (SCC), [1998] 3 S.C.R. 339. [66] A number of factors come into play at this stage of the analysis; namely:

a) the purpose for which the evidence is tendered,

b) the factors relevant to assessing similarity,

c) how to assess similarity in light of the question in issue, and

d) the impact of possible collusion or contamination. Probative value cannot be assessed in the abstract; therefore the issue in question must be clear. Further, the level of similarity required will vary from case to case depending on theissue. Where the issue in question is identity there must be a high degree of similarity for the acts to be admitted. In Arp the court said the test for similarity is at its highest in caseswhere similar fact evidence is tendered to prove identity.

The court noted that a unique trademark or signature will automatically render the alleged acts “strikingly similar" andtherefore highly probative and admissible. Additionally, a number of significant similarities, taken together may be such that by their cumulative effect they warrant the admission ofthe evidence: see Arp para. 45. [67] Following the analysis in Arp Stromberg-Stein J., in R. v. Kembo 2010 BCSC 914, applied a two-stage analysis to determine the admissibility of similar fact evidence on theissue of identity.

First, the trial judge must determine whether the similarities are such that it is more likely than not that the acts in question are the work of one individual. At thisstage the judge should only consider the manner in which the acts were committed and not the evidence about the involvement of the accused in each act. Second, the trial judgemust determine if there is a link between the similar act and the accused. At this stage of the analysis there must be some evidence on the basis of which the trier of fact can make afinding that the similar acts were those of the accused.

It is not necessary to conclude that the similar acts were likely committed by the accused: see Kembo paras. 53 to 55. [68] Where the issue in question is an issue other than identity the way in which the similar fact evidence is analyzed is different from the cases where the issue in question isidentity. The point is not that the degree of similarity in such a case must be higher or lower than in an identification case. Rather, the point is that the issue is different and thedrivers of cogency in relation to the desired inferences will therefore not be the same: see Handy paras. 77 to 78.

The analysis is not merely a question of numbers. The trial judgeshould not add up the differences and the similarities and see whether one outweighs the other. Instead, the court should start from the inference the Crown is seeking to establishand see if that inference is supported by the similarities between the facts and whether important differences undermine the cogency of that inference. [69] In R. v. Fiorino [2008] O.J.

No. 2962 Rosenberg J.A. noted at paragraph 63 that where the evidence is tendered for multiple purposes, the trial judge must decide whichissues predominate in order to correctly weigh the probative value of the evidence against its prejudicial effect. If the predominant issue for which the evidence is tendered is toprove identity, the measure of the similarity, and hence admission, will probably depend upon a significant degree of distinctiveness.

This would be the case even if the evidencemight also be tendered for some other purpose. [70] The evaluation of the degree of similarity of the acts was discussed in Handy and a number of factors were set out at paragraph 82 for consideration by the trial judge:

a) proximity in time of the similar acts

b) extent to which the other acts are similar in detail

c) number of occurrences of the similar acts

d) circumstances surrounding or relating to the similar acts

e) any distinctive feature(

s) unifying the incidents

f) intervening events

g) any other factor which would tend to support or rebut the underlying unity of the similar acts 2. Analysis regarding admissibility of similar fact evidence [71] In this case, the Crown asks the court to draw two inferences:

a) an inference that tends to support the identification of the accused as the assailant of N.G. and, if necessary, of J.S.

b) an inference, on the basis of the similarity between the incidents and the connection between incidents, both temporally and in relation to the circumstances, that the accusedcould not have accidentally or innocently grabbed the buttocks of three women walking in a public area of Vancouver. [72] Mr. Boden argues that the issue in this case is identity. Accordingly, the central question in determining whether the similar fact evidence ought to be admitted is whether ornot the three incidents are so similar that they were likely committed by the same person. Mr.

Boden argues that, in assessing whether the proffered similar acts are similar enough toprove identity, care must be taken not to act on "generic similarities" of the kinds of features likely to be present in most instances of the same crime. Mr. Boden argues that the

unifying feature of the three incidents is that in each incident a female complainant was groped by a stranger. However, when one looks at the specifics of the three incidents, it isthe differences, and not the similarities, that are striking. [73] I begin by addressing the threshold issues. First, I agree with the Crown that the evidence is discreditable to the accused. All of the evidence the Crown seeks to tender assimilar fact is also the subject of three separate charges of sexual assault against Mr. Boden. Second, there is some evidence linking the accused to the similar facts.

In the case ofS.H., in addition to other evidence, both the complainant and Constable Silzer place the accused at the scene and identify him as the assailant. In the case of J.S. she provided adetailed physical description and identified the accused in court. In the case of N.G. the evidence linking the accused to the sexual assault is not as strong as in the other twoinstances. However, the physical description of the assailant provides a sufficient evidentiary link for the purpose of this aspect of the similar fact analysis.

Last, the evidence givenby the three complainants is capable of being reasonably believed and supports the requested inference. [74] Next, I consider the probative value of the evidence on the issue of identity. As noted the first stage of this aspect of the analysis is to determine whether, on a balance ofprobabilities, the similarities between the three sexual assaults are such that it is more likely than not that they were committed by the same person. The focus at this stage of theanalysis is on the manner in which the acts were committed and not on whether the accused is connected to the incidents.

The Crown provided a chart of the similarities which itclaims are present in all three incidents. The chart is found at Appendix A of these reasons. As noted in my review of the law on this point, the assessment of the similarities doesnot come down to a question of numbers.

Rather, as noted in many cases including Handy, I must focus on the nature of the similarities; namely, whether or not they can properly beconsidered significant. [75] There are a number of factors listed in the Crown’s chart which, in my view, are generic similarities that do not, by themselves, support the identity inference the Crownwishes the court to draw. In R. v. R.B. (ON CA), [2003] O.J. No 4589, Simmons, J.A., writing for the majority, noted that the trial judge had relied primarily on“generic similarities”.

In describing the similarities as generic she said she meant that the identified similarities described general rather than specific aspects of the conduct andcontained limited detail with the result that the identified similarities in that case were likely present in most incidents of sexual touching involving children. She further noted thetwofold risk in relying primarily on generic similarities to support the inference in issue (in that case that the actus reus had occurred):

a) the initial inference arising form the prior conduct becomes so general that it approaches bad personhood; and

b) generic similarities, because of their non-specific character, may mask underlying dissimilarities that could be important to a particular case: see R. B. paras. 62 and 63. [76] In this case, after reviewing the factors listed in the Crown’s chart, I find the following to be generic similarities that are not particularly helpful in establishing the identityinference the Crown wishes me to draw:

a) Time of day – The three incidents all occurred while it was daylight but they occurred at different times of the day i.e. 10:00 a.m., 2:00 p.m., and 7:25 p.m.

b) Location of assault – The three incidents occurred in areas that were close to Skytrain stations. However, the actual locations were different i.e. one incident occurred on thesidewalk near a Safeway store, another incident occurred inside an elevator in an office building, and the third incident occurred on the escalator inside a Skytrain station.

c) Complainant was distracted – Having heard the evidence of the three complainants I would not characterize their state as distracted. They were all on their way somewhere buteach of their activities and their mode of travel was different, i.e. one was carrying grocery bags and walking, another was using her cell phone and ascending on an escalator, and thethird was listening to her iPod while using an elevator.

d) Not known to assailant – The fact the assailant did not know the complainants is not a significant factor going to identity. [77] Of the factors listed in the Crown’s chart the ones which are non-generic factors going to the manner of the sexual assault, are set out below. Are the similarities, based onthese factors, such that they can properly be considered significant?

a) Area of the body touched - In the S.H. and N.G. incidents the assailant touched the buttocks of the complainants. The touching was different in the J.S. incident as the assailanttouched her buttocks and placed one arm across her chest.

b) Nature of touching including duration - In each case the touching was brief but the nature of the touching is difficult to compare with accuracy because of the different ways itwas described by the complainants.

c) Private opportunity – The three incidents occurred when there were few people around. This is a factor to consider but its weight in deciding the similar fact question isnegligible.

d) Description of the complainants - The complainants’ ages ranged from 25 to mid-30’s and the description in the Crown’s chart is accurate. However, I had the opportunity ofobserving the complainants and, other than the fact that they were between 25 to 30ish, shades of blonde hair, athletic and attractive, they did not look remotely alike. There wassome similarity in the clothing of S.H. and N.G. (tight black leggings and a top below the buttocks) but J.S. was dressed in sweatpants and a hoodie top.

e) Description of the assailant - The description of the assailant is very similar in a number of significant respects.

f) Conduct of the assailant during and after the incident - In each case the assailant was calm, quiet and essentially expressionless at the time of the incidents

g) The time frame in which the incidents occurred - The incidents all occurred in a short time frame between August 13, 2009, and September 7, 2007. [78] I have reviewed the factors in the Crown’s chart to determine whether, on a balance of probabilities, the similarities between the three sexual assaults are such that it is morelikely than not that they were committed by the same person. In doing so I have considered both the similarities and dissimilarities among the three incidents. In R. v.

Shearing,2002 SCC 58 , [2002] 3 S.C.R. 33, Binnie J., writing for the majority, cautioned against using an excessively microscopic or macroscopic approach when considering anydistinctive features unifying the incidents of proffered similar acts. He noted that where the line should be drawn is a matter of judgment. This is a close case. However, I am notsatisfied, on a balance of probabilities, that the identified similarities have established a persuasive degree of connection between the three incidents. In this case the similar factevidence sought to be admitted was primarily on the issue of identify.

I find there was no unique trademark or signature. Further, the similarities, taken together, are not such thattheir cumulative effect could lead to the admission of the evidence. [79] Accordingly, the evidence sought to be admitted by the Crown of count-to-count similar facts is not admissible. In light of this ruling I will now consider each of the threesexual assault charges individually to determine whether the Crown has proved the elements of the offence charged. III. ANALYSIS RELATING TO EACH INDIVIDUAL SEXUAL ASSAULT A. Admissibility and relevance of out-of-court descriptions [80] The Crown and Mr.

Boden agree that the primary issue regarding the three sexual assault charges is not what happened or whether the incidents described occurred butrather: (

a) whether it was Mr. Boden who committed the sexual assaults against N.G. and J.S., and (

b) whether Mr. Boden had the requisite intention to commit a sexual assault onS.H. The Crown asserts that the charges against Mr. Boden relating to the sexual assaults on J.S. and S.H. have been proved beyond a reasonable doubt even without the benefit ofsimilar fact evidence. In the case of the sexual assault on N.G., the Crown concedes that the court should not rely on N.G’s in-court identification of Mr. Boden. However, theCrown submits there is other evidence which establishes that Mr.

Boden was N.G.’s assailant. [81] There are two issues I must touch on before undertaking an analysis of each individual charge. The Crown seeks to rely on post-incident conduct in relation to each of thethree incidents not to prove identity but for limited and specific purposes:

a) In the case of N.G. the Crown relies on the explanation offered by the assailant to establish N.G. had an opportunity to observe her assailant and negate any possible defence ofmistake.

b) In the case of J.S. the Crown relies on the fact the assailant stopped at the top of the escalator and looked around to establish J.S. had an opportunity to observe her assailant.

c) In the case of S.H. the Crown relies on the fact that Mr. Boden offered an explanation after the incident, talked with, and continued to follow her up to the Skytrain platform, andwatched her as she left, to negate any possible defence of mistake. The defence does not object to the admissibility of post-incident conduct as long as it is considered only for the limited purposes identified by the Crown. [82] The Crown also seeks to rely on out-of-court descriptions given by the complainants, including statements and selections made during the photo pack presentation process.

The Crown acknowledges that such out-of-court statements are not independent evidence of identification but can be used by the court for the purpose of weighing the strength of the

in-court identification: see R. v. Tat (1997), (ON CA), 14 C.R. (5th) 116; R. v. Campbell

(2006) BCCA 109. The defence acknowledges that such out-of-courtstatements can be used as an aid in weighing in-court identification and accordingly raises no objection to the admissibility of such evidence for this purpose. B. Legal principles regarding identification [83] The case law is replete with references to the inherent unreliability of eyewitness identification evidence. In R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, it wasnoted that by reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of the inherent frailties of eyewitness identificationevidence arising from the psychological fact of the unreliability of human observation and recollection. [84] Eyewitness identification evidence can be notoriously unreliable thus calling for considerable caution by the trier of fact. Especially where the suspect is unknown to theeyewitness there is a danger of honest but inaccurate identification.

This is the problem of a mistake by a convinced and convincing witness: see R. v. Bullock, [1999] O.J. No. 3106where Hill J. summarized some of the cases which deal with the frailties of eyewitness identification, and R. v. Eccles, 2004 BCSC 1281 , [2004] B.C.J. No. 2056. [85] The case law makes it clear that the identification of an accused person for the first time in the dock at trial is understandably suspect. Many cases have drawn the distinctionbetween the credibility of an eyewitness and a determination of the reliability of that witness’ evidence regarding identity. In R. v.

Atfield (1983), 1983 ABCA 44 , 25 Alta.L.R. (2d) 97, Belzil J.A. noted that the accuracy of identification evidence cannot be determined by the usual test of credibility of witnesses, but must be tested by close scrutiny ofother evidence. In cases where the criminal act is not contested and the identity of the accused as the perpetrator is the only issue, identification is determinative of guilty orinnocence.

Its accuracy becomes the focal issue at trial and must itself be put on trial; see Atfield paras. 2 and 3. [86] In Tat, the court noted that, if a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact tomake an informed determination of the probative value of the purported identification.

When such evidence is tendered, the trier of fact is not asked to accept the out-of-courtstatements as independent evidence of identification, but is asked to look at the entirety of the identification process before deciding what weight should be given to the identifyingwitness’ testimony. In this respect, evidence that the witness previously gave a description which matched the accused or previously selected the accused in a line-up serves nodifference evidentiary purpose than would evidence showing that the identifying witness had an ideal vantage point from which to observe the perpetrator of the offence.

Both arefactors which will assist in weighing the witness’ in-court testimony: see Tat paras. 35 – 36. In Campbell Ryan J.A. wrote that evidence of a prior description of an assailantprovided by the witness, including a description recorded in a police officer’s notes, is admissible but only for the purpose of weighing the strength of the in-court identification.

Such evidence cannot be used as substantive evidence of identity. [87] I also note that post-offence events, including but not limited to police identification techniques, may have a tainting or contaminating effect on eyewitness identificationevidence: see R. v. Miaponoose (ON CA), [1996] O.J. No. 3216, R. v. Todish (1985), (ON CA), 18 C.C.C. 159; R. v. Atfield. In Miaponoose,Charron J.A., as she then was, cited with approval the comments in R. v. Smierciak, [1946] O.J.

No. 54 to the effect that if a witness has no previous knowledge of the accusedperson, so as to make him familiar with that person’s appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. Thewitness’ recognition ought to proceed without suggestion, assistance or bias created directly or indirectly. Conversely, if the means employed to obtain evidence of identificationinvolves any act which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed.

N.G.’s identification of her assailant [88] The Crown acknowledges that the court should put little weight on N.G.’s in-court identification of Mr. Boden. The Crown submits, however, that it is clear on the evidencethat when N.G. saw a photograph of Mr. Boden, several weeks after the sexual assault, she recognized him as her assailant. This was despite the fact that the photograph appeared tobe several years old and the person in the photograph had much shorter hair. The Crown notes it appears it was not the photograph or the hairstyle that N.G. recognized but theperson depicted in the photograph.

However, the Crown properly concedes that the internet research N.G. undertook on Josh Boden likely contaminated her in-court identification. The Crown notes that when N.G. was shown the photo pack she selected a booking photograph of Mr. Boden which had been taken only a few days earlier. However, N.G. told theofficer showing her the photo pack that she was only 65% sure that photograph was a photograph of her assailant.

Given the likelihood of contamination caused by N.G.’s viewing ofmedia photos and the weakness of her photo pack identification, the Crown acknowledges N.G.’s in-court identification merits little weight. However, the Crown submits thatN.G.’s evidence about her out-of-court descriptions of the assailant is admissible and relevant in assessing the credibility and reliability of her testimony regarding the description ofher assailant. [89] Mr. Boden submits the eyewitness evidence in N.G.’s case is insufficient on its face and therefore worthy of very little weight. Mr.

Boden points to the weakness of thephoto pack identification and to the tainting of N.G.’s identification based on her exposure to media reports including press reports, photographs and a video. [90] Mr. Boden submits that the balance of the evidence with respect to N.G.’s identification does not add up to identification beyond a reasonable doubt. The Crown tendered ajacket and photographs of a person leaving the elevator on the date of the incident. The still photograph is a photograph of a man wearing a dark navy blue tracksuit with whitemarkings. However, Mr.

Boden notes N.G. told Constable Apcar that the man who assaulted her was wearing a red tracksuit. Additionally, at trial, she told the court that thetracksuit was not all black, not all white, not all gray but some colour and not a shade. Mr. Boden argues that the corroborative evidence led by the Crown; namely, the blue trackjacket and the still photograph, must be seriously questioned in light of the trouble N.G. had recalling the colour of the jacket at trial and when she spoke to Detective ConstableApcar at an earlier date. [91] The Crown has conceded that the in-court identification of Mr.

Boden by N.G. should be given little weight in light of the weakness of the photo pack identification and thelikelihood of contamination of N.G.’s identification by her viewing of media reports and photographs. In my view, the Crown’s concession in this regard was properly made giventhe evidence before the court. However, the Crown submits there is other evidence before the court which buttresses N.G.’s reliability and points to Mr. Boden as her assailant. According to the Crown that other evidence is:

a) The fact that N.G. recognized herself and her assailant in the video of the elevator lobby.

b) The still photograph taken from that video which is consistent with Mr. Boden.

c) The jacket found in Mr. Boden’s bedroom during a police search which is “significantly consistent” with the jacket worn by the man in the still photograph. [92] The question I must consider in relation to this other evidence is whether, by itself, it is sufficient to establish beyond a reasonable doubt that Mr. Boden is the man involvedin the elevator incident. As noted, the court does not have the benefit of the video because it was not retained by the security staff. The fact that N.G. identified herself and herassailant on the video tape is not determinative of the identity of her assailant.

A still photograph, in appropriate circumstances, could assist in identifying a suspect. However, thestill photograph in this case is not of good quality. It is grainy and the facial features of the black man in the photograph are not clearly distinguishable. It is possible it could be aphotograph of Mr. Boden but it is equally possible that it could be a photograph of someone else. The jacket found in Mr. Boden’s home is a piece of circumstantial evidence but itdoes not advance the Crown’s case with regard to identification.

The jacket is similar to the one worn by the man in the still photograph, however, there is nothing so distinctiveabout the jacket that would render it a solid piece of circumstantial evidence going to identification. The other evidence relied on by the Crown is simply insufficient to support Mr.Boden’s identification beyond a reasonable doubt. Accordingly, I find that N.G.’s in-court identification of Mr. Boden as her assailant and other evidence tendered in that regard isnot sufficiently reliable to prove beyond a reasonable doubt that Mr. Boden was N.G.’s assailant. C.

J.S.’s identification of her assailant [93] The Crown relies on J.S.’s in-court identification of Mr. Boden as her assailant. The Crown argues the court must consider the entirety of the identification process whichincludes the 911 call J.S. made immediately after the sexual assault, the description she gave to Constable Bentley later at English Bay, the description she gave to DetectiveConstable Heard, the description she gave to Detective Constable Gill, and her photo pack selection of Mr. Boden’s booking photograph. [94] Mr.

Boden argues that J.S.’s evidence, like that of N.G., was tainted by pre-trial exposure to media reports. Further, Mr. Boden argues that the balance of J.S.’s identificationevidence relied on by the Crown does not meet the criminal standard. Mr. Boden notes that J.S. took ten seconds after the incident to observe her assailant from a location adjacent tothe Skytrain station. She recalled observing a white basketball jersey with red trim. She thought it might have been a Chicago Bulls jersey.

She spoke to a 911 dispatcher and gave adescription of her assailant but told the dispatcher that she did not know the number on the jersey. However, later that day, she recollected that the jersey had the number 24 on theback. Mr. Boden reviewed the circumstances surrounding how the number 24 came up. He acknowledges there is no clear proof that the number 24 was suggested to J.S. from asource other than her own observation.

However, the curious way that J.S.’s memory of this number evolved and the circumstances surrounding the dispatch call to the GVTAPSofficers should be taken into account in approaching this evidence with caution. [95] With respect to the tainting issue, Mr. Boden argues that just days before J.S. participated in the photo pack presentation she had seen a photograph of Mr. Boden in aVancouver newspaper. While she did not read the

article or buy a paper, when she saw the picture, which was on the front page, she understood it to be a picture of Mr. Boden. One

of the exhibits entered into evidence was the front page of the Province newspaper dated September 25, 2009, which ran a cover story on Mr. Boden. On the front page were twophotographs of Mr. Boden, one was the same photograph as one of the photographs in the photo pack which was eventually selected by J.S. Additionally, Mr. Boden argues thatafter the photo pack presentation one of the police officers told J.S. she had selected the photograph of the individual who the police believed had committed the assault. Mr.

Bodenargues that the effect of that information was to contaminate J.S.’s in-court identification to the point that it ought to be given little weight. [96] In addressing the identification made by J.S. I must consider her in-court identification and the description she gave in her testimony. However, as noted in Tat and Campbellin order to assess the strength of the in-court identification and the description provided in testimony, the court is entitled to consider the entire identification process before decidingwhat weight to give to the witness’ in-court testimony. 1.

Factors to consider in evaluating identification evidence [97] In R. v. Powell, (ON SC), [2007] O.J. No. 4196, Ducharme J. set out a synopsis of the factors which have been recognized by the courts as useful inassessing the probative value of eyewitness identification:

a) How much time has lapsed between the identification and the events being described by the witness?

b) Is the witness identifying someone they know or someone they have never seen before?

c) What were the physical circumstances of the sighting?

d) What was the duration of the observation; was it just a fleeting glance or did it take place over a longer time?

e) What was the emotional state of the witness at the time of the sighting?

f) What is the quality of the witness’ description of the person?

g) How does the witness’ description compare to other descriptions provided by other witnesses?

h) Has the eyewitness been exposed to other images of the person being identified?

i) What sort of pre-trial identification did the eyewitness participate in?

j) Has the witness’ identification been influenced by that of other witnesses?

k) How does the eyewitness’ description of the person compare with the person’s appearance at the time of the incident?

l) Was cross-racial identification involved?

m) Is there other circumstantial evidence capable of confirming or supporting the evidence of identification? I will now review these factors, where applicable, in relation to J.S.’s identification of Mr. Boden. Time elapsed [98] The events leading to the charge occurred on August 25, 2009, and J.S. testified at trial on December 21, 2010, that is a period of 16 months. However, as is noted below,J.S. also provided descriptions of her assailant several times soon after the incident and weeks later to the police. Prior knowledge [99] J.S. did not know her assailant.

Physical circumstances of sighting - J.S.’s evidence about her observations of the assailant [100] J.S. initially saw her assailant on the second level of the Skytrain station stepping off the down escalator while she was getting on the up escalator. She was texting so shewas looking down at her phone. However, she noticed him. Her attention was drawn to him because he mumbled something like “hey” or “hey babe”. She did not pay attention. Five seconds after that she felt someone grabbing her.

J.S.’s initial observation was short in duration but her attention was specifically drawn to the man because of what the assailantsaid. [101] The sexual assault lasted about a second. She turned around instantly. The man was standing one step down behind her. She said “What the fuck are you doing?” J.S.looked straight into the man’s face at this point. This part of the incident lasted only seconds. However, this was a second opportunity to observe him. She was standing close tohim and looked him straight in the face. [102] J.S. also observed the man after the incident.

After turning around and confronting her assailant, she ran up the rest of the escalator steps. J.S. went into a doorway. Shestood at the doors, which were made of glass, because she wanted to see if her assailant was behind her and also wanted to get a description. J.S. saw the man at the top of theescalator. He looked from side to side. She made a mental note of what he was wearing and left. Quality of description [103] J.S. made a 911 call about 10 to 15 minutes after the incident.

The description she gave of her assailant was a mulatto male, about 6’2”, medium built, between the ages of 26and 31, hair in corn rows, wearing a white mesh-type of basketball shirt, possibly Chicago Bulls, and long denim shorts. [104] Approximately half-an-hour later J.S. met with two officers from the GVTAPS police and provided an oral statement which was reduced to writing by the officers.

Shedescribed the man who grabbed her as about 6’2”, mulatto, silver headphones around neck, white shirt with maybe red piping and the number 24 on the back, long blue denim shorts,approximately 24 to 30 years old, with hair in corn rows. There are minor differences between this description and

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