R. v. Boalag, 2016 NLPC 113

IN THE PROVINCIAL COURT OF NEWFOUNDLAND AND LABRADOR JUDICIAL CENTRE OF ST. JOHN’S Citation: R. v. Boalag , 2016 NLPC 0113 A00338 Date: August 2, 2016 Docket: 0113A00338, 0113A01151 BETWEEN: HER MAJESTY THE QUEEN AND: SOFYAN BOALAG ORDER PROHIBITING IDENTIFICATION OF COMPLAINANT S. 486.4 CRIMINAL CODE The identity of the complainants and any information that would disclose the identity of the complainants shall not be published in any document or broadcast in any way. Before: The Honourable Chief Judge P. Goulding Place of Trial: St. John’s, NL Dates Heard: June 1 – 30, 2016

Summary : The accused was charged with multiple offences including sexual assault with a weapon, sexual assault causing bodily harm, and sexual interference against six victims. The credibility of the victims, DNA evidence and eyewitness identification became critical issues at trial. He was found guilty of offences relating to three of the victims. Appearances : Trisha L. McCarthy Counsel for Her Majesty the Queen Jeffrey K. Brace Counsel for the Accused

Jerome P. Kennedy, Q.C., appeared as Amicus Curiae Authorities Cited: CASES CONSIDERED: R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144; R. v. Ibrahim, 2014 ONCA 157; R. v.Villaroman, 2016 SCC 33. STATUTES CONSIDERED: Criminal Code, R.S.C., 1985, c. C-46 REASONS FOR JUDGMENT GOULDING, C.J.: INTRODUCTION [1] Sofyan Boalag is charged with multiple offences of sexual assault with a weapon, sexual assault causing bodily harm, robbery,possession of stolen property, and carrying a concealed weapon.

He is further charged with sexual interference, overcoming resistance bychoking, resisting arrest, assault with a weapon, possession of a weapon dangerous to the public peace and possession of a prohibitedweapon. (For ease of reference the charges are attached as “Appendix A” and the relevant Criminal Code provisions as “Appendix B”.)The charges relate primarily to six women, one of whom, S.L., refused to testify. All of the offences allegedly occurred betweenSeptember and December of 2012 in the downtown area of St. John’s. The victims testified that a weapon was used.

Most victimsrecounted being vaginally penetrated. None of the victims knew the attacker. Eyewitness identification, credibility and DNA evidenceare crucial to the prosecution’s case. PRIMARY ISSUES [2] These are the main issues in this trial: 1. Did the sexual activity occur? 2. If so, did the victims consent to this activity? 3. Did the attacker use a weapon? 4. Did the attacker carry a concealed weapon or possess a weapon for a purpose dangerous to the public peace? 5. Did the attacker rob the victims? 6. Was Sofyan Boalag the attacker?

7. Did Sofyan Boalag resist the police? 8. Was Sofyan Boalag carrying a prohibited weapon when he was arrested by the police? 9. Did Sofyan Boalag possess stolen property? EVIDENCE AT THE TRIAL The Incident Involving L.N. Evidence of L.N. [ 3 ] In early September 2012, at approximately 2:30 a.m., L.N. was walking alone on her way to a friend’s house. Although employed in the sex trade she was not working that night. She was approached by a male she had never met before. He told her there was a young girl being assaulted in the bushes and she followed him to the secluded area.

He offered her money for oral sex which she refused because she thought he was an undercover police officer. [ 4 ] Suddenly he grabbed L.N. by the hair and as she started to walk away, held a knife to her calling her a “(expletive) bitch”. The assailant moved the knife down by her bottom and told her to pull down her pants. She was afraid and complied. He turned her around and made her perform fellatio on him. The male put the knife by her face and pushed her head back and forth. The knife was five to six inches long and had a thick handle. He told her to stand up, and turn around.

His pants were undone and down to his knees. She was holding herself up against a fence when he bent her over and penetrated her vagina with his penis. After two minutes he ejaculated. Before he left he told her that he wanted her to be on the corner next Friday. [ 5 ] She did not go to the police or the hospital that night. L.N. suffered from drug addiction at that time, had a criminal record and did not think she would be believed. She saw her attacker again sometime later at a friend’s house.

She was so afraid she left the house and sat on the front door step until he ran out of the house. [ 6 ] When the police interviewed her on December 9, 2012, she could not identify her attacker by proper name but referred to his nickname as “Luigi”. L.N. described him as a foreign person with dark brown eyes. When she watched a news story which showed Sofyan Boalag’ s picture and connected him to sexual assaults in the same area where she was attacked, L.N. recognized him right away as the person who had sexually assaulted her. She now knew his name and she sees his face every night in her sleep.

L.N. identified the accused in the courtroom as her assailant. The Incident Involving I.H. Evidence of I.H. [ 7 ] On September 29, 2012, at 4:34 a.m., before I.H. left her house she sent a text message to her friend which said, “So getting raped”. It was dark and she saw four young males outside. I.H. acknowledged being afraid to walk at night and to having “an irrational fear of men behind her”. Nevertheless, she went to a local coffee shop to see her friends. At around 5:55 a.m., I.H. had left the coffee shop and was walking her small dog along a road near a condominium complex. The street was deserted.

She heard footsteps behind her. She pulled her dog to one side for it to urinate. A male with his hood up grabbed her from behind, put his arm around her neck and told her not to speak. She felt a sharp object to her back. [ 8 ] He dragged her down between the houses and told her repeatedly that he was going to kill her. She told him she could not breathe. He started pulling on her jogging pants. They were behind a white house with apartments in the back. She resisted by dragging

her feet to avoid being taken to a nearby wooded area. He continued to hold the sharp object to her back. With his arm around her neck he managed to pull her pants down and started rubbing her vagina with his hand. At some point he dropped the object in the grass, bent her over, and penetrated her vagina with his penis. She noticed a piece of carved wood with a point lying in the grass He was thrusting, kept calling her “baby” and saying he was going to kill her. She did not know how long it lasted or if he fully penetrated her.

She did not scream because she was afraid he would kill her. [ 9 ] Although he never inquired as to her age during the incident, she told him she was 14 years old (her actual age was 15) and had never done this before. I.H. wanted him to stop. She kept looking back when he was thrusting and saw one side of his face. I.H. testified that he was not Caucasian and had brown eyes, black hair with a mole on the cheek bone area on the left hand side of his face. There was a street light and moon light but the area behind the house was barely lit.

She had never seen this man before. [ 10 ] I.H. kept repeating that she had to work at 7 a.m. and would come back at 3 p.m. He told her to return then, said that he lived “right here” and pointed to the back of the house. When he released her she walked slowly up the driveway and pulled up her pants. She noticed he was not behind her so she ran up the middle of the road. I.H. flagged down a truck and requested the driver take her to the coffee shop but was refused. An off- duty police officer stopped his car and brought her to the coffee shop.

I.H. explained that she was suffering from social anxiety disorder and did not want to go to the police station with strangers. She wanted to go to a place where she felt safe and to be with her friends. I.H. did not want to attend the hospital without her mother. [ 11 ] Shortly thereafter, I.H. was conveyed by ambulance to the hospital. She was in pain between her legs and her throat was sore. [ 12 ] I.H. denied “consentual” sexual intercourse or falsely “crying rape”. [ 13 ] I.H. saw a photo of Sofyan Boalag from a local media outlet when he was arrested in December 2012.

She testified she suffered a panic attack and was one hundred per cent certain he was her attacker when she saw his entire face. Police Evidence [ 14 ] At 6 a.m., on September 29, 2012, Constable Gosse was driving home after finishing his night shift. I.H. flagged down his car, ran towards him and got into the passenger side of the car. He identified himself as an off-duty police officer. She was crying and upset and told him she had been raped. I.H. described her assailant as about six feet tall, in his thirties, white but dirty looking, and was wearing a black leather jacket with a hoodie underneath.

She refused to go to the police station and insisted they go to a local coffee shop. When they arrived on the coffee shop’s parking lot, I.H. jumped out of the car before it came to a complete stop. Constable Fahey arrived with Constable Layden at the coffee shop and spoke with I.H. at 6:22 a.m. He then went to the area described by I.H. No one was there. He noticed a wooden stick in the grassy area behind the white house.

The grass appeared to have been recently trampled. [ 15 ] Constable Layden obtained an initial description of the suspect from I.H.: 30-40 year old male, leather jacket, slim build, appeared Caucasian but dirty. At the hospital a further description was given: white hoodie, black jacket, five foot eight inches tall, one hundred and forty pounds, and a silver ring on his right hand. Photographs [ 16 ] Photographs of the area taken on September 29 th show a broken piece of wood pointed at one end lying in the grass. The grass appeared to have been trampled.

Constable Crocker, the identification officer who took the photographs commented that where the length of wood was found the grass was clearly stepped on - evenly spaced apart as if someone had been standing or kneeling. She placed the wood in an exhibit bag and sealed it. [ 17 ] I.H. identified photographs of her underwear as those she was wearing at the time of the incident.

The Piece of Wood [ 18 ] The length of wood found at the scene was entered as an exhibit. It appeared to be about a foot long and tapered at one end. Medical Evidence [ 19 ] I.H. was examined by a pediatrician on September 29 th . After a complete physical examination she noted that I.H. had an abrasion about one centimeter by one centimeter near the front (mid-line) of her neck. There was a small abrasion on the outer left aspect of her outer vaginal opening and disruption of the tissue in that area. The doctor followed the procedure for the collection of swabs and used the sexual assault kit for that purpose.

She testified that all samples such as external vaginal swabs, and oral swabs were placed in separate envelopes and vials and sealed. I.H.’s clothing was also collected by medical staff. [ 20 ] That same day Constable Rossiter received I.H.’s biological samples and clothing from the doctor. He passed these exhibits to Constable Cynthia Crocker who placed all of the clothing in a sterilized exhibit room. She used gloves to prevent cross-contamination and separated all of the clothing.

When she received the bagged clothing, she noted that one bag contained I.H.’s underwear, bra, headband, socks, tank top and jogging pants. Upon examination with a forensic light she noted some of the clothing, especially the underwear, fluoresced. She noted that this light works particularly well for detecting semen or other bodily substances. The Incident Involving B.P. Evidence of B.P. [ 21 ] About 4 a.m. in early December 2012, a man approached B.P. for sex. They went up an alleyway. She accepted the money he offered but refused to perform any sex acts.

He choked her from behind with his arm around her neck and pulled out a switchblade knife. He wanted his money back. During the struggle he slashed her face causing a three to a three and a half inch cut. He left. The cut bled for one to one and a half hours. She did not seek medical assistance. [ 22 ] B.P. described her assailant to the police on December 6 th as having dark hair, dark eyes, short and curly hair. She told the sketch artist he had thick hair, a baseball hat and a brush cut.

When confronted with these discrepancies, B.P. replied that she cannot forget a face. [ 23 ] She identified Sofyan Boalag in the courtroom as her assailant. B.P. had seen Sofyan Boalag on the news and remembered him. She acknowledged to having had an opiate addiction at the time of the attack and had possibly consumed drugs the night the incident occurred. B.P. further acknowledged her extensive criminal record. She did not recall pointing out the perpetrator when shown photographs by the police.

Video of Photo Line-Up Identification Process [ 24 ] On December 10, 2012, B.P. was shown a photo line-up of 12 individuals. B.P. viewed these photographs and commented that her attacker was darker than the males in the photo line-up. Sofyan Boalag was depicted in photograph number eight. The Incident Involving F.S. Evidence of F.S. [ 25 ] In early December 2012, F.S. was socializing with several women she met at a local club. The event was called “French Fridays” which was an opportunity to meet other francophone people in the community. She told these female companions she was from

France. They decided to go to a bar where they could dance. They arrived there about 1:30 a.m. or 2 a.m. [ 26 ] When the bar was closing, F.S. and one of her female companions went outside to have a cigarette. Two men joined them. One man was red headed and the other was of Arab origin. The man of Arab origin invited F.S. and her companion back to his house. He spoke to them in English. She was not interested and did not ask for his name. F.S. had been drinking and felt “a little bit intoxicated”. She estimated that she had “80% of her capacities”.

Although she had told the police that she was drunk that night, F.S. explained that at the time her English was not good enough to make qualifications. She wanted them to know that she had been drinking. F.S. recalled consuming three to four glasses of wine; one shooter and one rum and coke drink between 9 p.m. and 4 a.m. [ 27 ] F.S. and her companions walked to a local hotel on Duckworth Street. She decided to go home and walked up the stairs by the courthouse. She encountered the same man she had met at the bar. He was alone. At the top of the stairs she said “good evening”. He invited her to his place.

She told him that each person should go to her or his own place and gestured in one direction for her and another direction for him. She continued to walk and chose a short cut by a school. At the end of the school property she noticed someone following her. She walked faster. [ 28 ] A brief moment later she felt a knife to her throat. A male said in English “It’s a knife. Do what I say”. He led her behind a school and held her by the arms. He pushed her against an enclosure which held propane gas tanks. She could not see him. It was very dark and he told her to remove her pants.

F.S. refused and asked “why?” He replied that he had a knife and for her to do what he said. She told him she would do so if he put the knife down. She felt the knife on her stomach. F.S. had a shopping bag in one hand which held her shoes. He was holding the bag. She was wearing a winter coat, winter shoes, leggings and a dress. [ 29 ] He told her he had a knife and if she did not want to be injured to pull down her leggings and panties. She complied. [ 30 ] He put his head between her legs and performed oral sex on her.

She asked him repeatedly why he was doing this to which he replied, “for your pleasure and mine”. F.S. tried to avoid being vaginally penetrated by telling him she was a virgin. He told her he knew this was not the case, and inserted his finger into her vagina. He then penetrated her vagina with his penis and told her not to worry because he was wearing a condom. She did not see a condom, hear any sounds associated with a condom being used or feel the sensation of a condom. When she told him she was a virgin, he asked her if she had a boyfriend in France.

F.S. recalled that she had told the two males she spoke with outside the bar that she was from France. [ 31 ] Every time she tried to free herself she felt the knife. Whenever she stopped fighting he put the knife in his pocket. F.S. thought about escaping but she was trapped. He was behind her the entire time. Her two hands were holding onto the enclosure and her right shoulder was against the wall. In order to escape she had to maneuver past him. [ 32 ] F.S. tried many things to distract him. She was so very cold. F.S. told him when he started touching her to do what he wanted because he was going to kill her.

He replied that he would not kill her. F.S. told him to look at her and kiss her. She wanted to see his face before she died. He did not kiss her. She did not see his face but remembered he had a long nose. At one point he said that he had seen her at the bar. She knew he was Arabic. When he was penetrating her and having intercourse with her, he could not ejaculate and she made him promise to Allah that he would stop in another two minutes. A short time after the two minutes had elapsed, he stopped. [ 33 ] He asked for money for a taxi. She replied that she had none.

He took everything in her pockets, her purse and BlackBerry. He told her to stay for five minutes before leaving. [ 34 ] She waited a couple of minutes before she walked home. Later that morning she showered and went to the police station. [ 35 ] The clothes she was wearing that night were placed in evidence bags by the police. [ 36 ] She went to the hospital and was physically examined. Samples of fluid were taken from her vagina. [ 37 ] In Court she identified as hers a BlackBerry which she had purchased in France. The name of the service provider was Bouygues.

There was a memory card inside the BlackBerry with photographs of her friends, family and field trips. She identified a

BlackBerry box she brought back from France. F.S. asserted this was the box in which the BlackBerry had been packaged for sale. In so doing she noted that the box displayed a price in Euros. [ 38 ] F.S. could not recall if she had identified anyone as the perpetrator when she was shown a photo array of the males coming into the bar. However when shown the same photo array in Court, she commented that if she had chosen one photograph at the time it would have been number two. She remembered the male in photograph number two as her assailant.

F.S. acknowledged that since the incident she had seen news articles about Sofyan Boalag. She further acknowledged that shortly after the incident she had told the police sketch artist that if she had to rate from one to ten her memory of the attacker’s face she would answer zero. F.S. stated she had been afraid at the time to provide any information which would identify the wrong person. Medical Evidence [ 39 ] F.S. was examined by sexual assault examiner Nurse Black on December 1 st who noted a bruise to her upper thigh and other injuries. F.S. appeared anxious and was crying.

Vaginal swabs, vaginal pool washings and other swabs were taken. These were either put in the freezer in a locked room or in a secure locker to which only the sexual assault nurse examiners have access. Nurse Black could not recall whether F.S.’s clothing was bagged separately with the bags being sealed but she stated it was protocol to do so. Nurse Black noted that while showering could wash away some evidence it was unlikely that evidence located inside the vagina would be affected since semen can remain inside the vagina for quite some time. Nurse Mackey transferred some samples from the locker to the freezer.

There was some ambiguity as to the exact date the samples were given to the police but it appeared that these were transferred to the police on December 4 th with the transcription of the examination prepared on December 7 th . Photo Array [ 40 ] On December 5, 2012, the police exported the CCTV camera footage from the bar F.S. had attended prior to the attack. Although F.S. could not identify her attacker, she told police that it might have been one of the males she had spoken with at the bar. The video covered the time frame from November 30 th at 8 p.m. to December 1 st at 4 a.m.

A forensic video technician was asked to prepare a photo array of ten males coming into the bar. He was given no parameters for selecting these people but was instructed to include two males (persons of interest) who were seen on the camera footage. He prepared the ten person photo array making sure they all displayed their left profiles. The male in photograph number two, who was one of the persons of interest, was of different ethnic origin, while some of the other males in the photo array were Caucasians. [ 41 ] On December 9, 2012, F.S. was shown this photo array.

She was asked to identify the males at the bar and was told that they may not be there. No other instructions were provided. After initially selecting one photo, then another, F.S. selected photograph number two but was not sure if this was the male she had been speaking with in the bar. [ 42 ] In the interim (December 8 th ) Constable Murphy prepared an internal memorandum which was circulated by email to all police officers.

In it she summarized the nature of the sexual assault complaints, attached two of the photographs contained in the photo array which had been produced from the exported CCTV camera footage, and requested assistance to identify these males. Two police officers responded to the email and each separately identified Sofyan Boalag as depicted in one of the photographs. (This photograph was number two in the photo array shown to F.S.) The Incident Involving M.H. Evidence of M.H. [ 43 ] M.H. was downtown drinking on December 9 th .

She was walking to an after-hours club when she met a man who offered to light her cigarette. M.H. described herself as “very drunk” and invited this man to come with her to the club to “party”. She did not have money to pay the cover charge. The man told her he did not have his wallet and needed to go to his house. She agreed to accompany him but told him she would not go inside. [ 44 ] They walked up the steps by the St. John’s City Lock-up. M.H. said he had a grip on her arm. He did not tell her where he lived and after they walked for a while she began to feel uncomfortable. He kept repeating “it’s up here”.

She tried to turn back more than

once. She went behind a church. When she tried to turn around, he smacked her head against the barbed wire in front of a window. She felt a knife at her throat. He told her if she did not do what he wanted he would kill her. She faced a wall and he held his arm tightly against the back of her neck. He lifted up her skirt and ripped her underwear (thong) with either a knife or his hands. She tried to fight him and fell to the ground. He threw her phone away. She was face down to the ground and on her knees. He flipped her over on her back and pulled his pants down.

She begged for him to stop and started calling out for help. He told her it would be over soon and if she did not “shut up” he was going to “(expletive) kill” her. Her assailant said “You like it because your pussy’s wet. Don’t act like you don’t like it”. He then penetrated her vagina with his penis. She did not know if a condom was used but knew he ejaculated. The assailant put his hands around her neck and squeezed until she lost consciousness.

When she regained consciousness she looked for her black iPhone and could not find it. [ 45 ] M.H. ran from the area and fell to her knees when she saw police and asked them to help her. Her legs were covered in blood. She was bruised and scratched. During the encounter she glanced at the knife but could not describe it. She stated, on cross-examination, that she had done nothing to indicate that she had wanted anything sexual from him. Police Evidence - December 9 th [ 46 ] A few minutes before 4 a.m., Constable Roche and Constable Cahill heard M.H. crying for help.

She was very frantic, extremely upset and told them she had been raped. Constable Kirby was called to assist M.H. who was crying constantly and distraught. Constable Kirby noticed that M.H. was wearing only one earring. The area around the church was searched. An earring was located. Other items including a condom wrapper were also seized. M.H. described her assailant to Constable Roche as six feet tall, skinny, with long black hair, brown eyes and of aboriginal descent. Photographs [ 47 ] Photographs were taken of M.H. on December 10, 2012, which showed scratches or abrasions to her hand, leg, and lower back.

There was a red mark on the back of her right shoulder. The area above her right eye was slightly swollen. [ 48 ] M.H.’s torn thong was on the ground next to a corner wall of a church. An earring was also located nearby. Video Evidence [ 49 ] Video footage showed M.H. just after 3 a.m. with a man in the area of a local restaurant which is a short distance from the steps next to the St. John’s City Lock-up. M.H. spoke with the male for a few minutes. He then walked ahead of her on the steps and reached for her hand. The video did not provide a clear close up image of the male’s face.

Medical Evidence [ 50 ] Sexual assault nurse examiner Mackey saw M.H. at the hospital at 4 a.m. on December 9 th . Nurse Mackey described M.H. as extremely distraught, upset and crying uncontrollably. M.H. was shaking and crying throughout the entire examination. M.H. said she had been raped and expressed anger towards her assailant. Nurse Mackey noted bruises, abrasions and a small tear in her labia minora. Each

article of clothing was packaged individually, put in paper bags and sealed closed with tape and glue. Vaginal swabs and other swabs were taken from M.H. Evidence which required drying was placed in a locked cupboard. Vaginal pool washings and other fluids were stored in the freezer. There were no notations in the chain of custody report as to when some of the evidence was transferred from the locker to the freezer. [ 51 ] On December 9, 2012, at 2 p.m., sexual assault nurse examiner Cashin passed over to Constable Rossiter all the evidence that had been collected from M.H.

All samples had been sealed in either containers or envelopes and had been in a secure locker or in the freezer. Photo Line-Up

[ 52 ] Constable Ghaney prepared the photo line-up. He required the assistance of an out-of-province police force to find 11 other males who looked similar to Sofyan Boalag. From these 12 photographs he produced three line-ups. In line-up number one Sofyan Boalag was number six; line-up number two Sofyan Boalag was number eight; and in line-up number three he was number 12. Photo line-up number one was shown to M.H. on December 10, 2012, at 4:29 p.m. by Constable Duff who was unassociated with the investigation.

After being given instructions, M.H. looked through the photographs for five or six minutes and then selected number six. She said, “This is the man that raped me”. Surveillance [ 53 ] On December 9, 2012, a police officer conducting surveillance on Sofyan Boalag watched him drop a lit cigarette to the ground as he went into a convenience store. The officer put on a latex glove, retrieved the lit cigarette and waited for it to extinguish. He then placed it in an envelope which he later that same day put in an evidence locker at police headquarters. There was nothing else in the locker.

The locker was then secured. Arrest [ 54 ] On December 10, 2012, the police were conducting surveillance on Sofyan Boalag. The accused and a female companion went inside a local mall. While other officers followed them inside, Constable Crocker remained in the parking lot with his unmarked police car parked front on to Sofyan Boalag’ s vehicle. At 4:59 p.m., as Constable Crocker was notified that the accused was to be arrested for sexual assault with a weapon, he noticed that Sofyan Boalag and his companion were walking towards their vehicle.

By the time Constable Crocker got out of his car, the accused was sitting in the driver’s seat and his companion was in the front passenger seat. Constable Crocker approached their vehicle and knocked on the window. He was wearing his police coat and had his badge in his hand. Constable Crocker opened the door and told Sofyan Boalag he was being arrested for sexual assault with a weapon. The accused replied “what, what…”. Constable Crocker spoke to the female companion who, in turn, spoke to the accused.

Sofyan Boalag put the car in gear, refused to get out of the car and would not put the car in park when told by the officer to do so. Constable Crocker had to physically remove him from the car which involved a short struggle and resulted in them falling to the ground. Constable Carter arrived, tried to assist which resulted in him falling on top of the accused. When questioned as to whether Sofyan Boalag understood what was happening, Constable Crocker replied that he “wasn’t sure if he didn’t understand”. [ 55 ] Constable Mackey received instructions that he and Constable Doiron were to arrest Sofyan Boalag.

When they arrived at the parking lot of a local mall, he noticed a number of officers trying to arrest the accused who was struggling very hard. He assisted Constable Doiron in placing the accused in the back seat of their car where his Charter rights and police caution were read. [ 56 ] Constable Doiron noticed upon his arrival at the parking lot that Constable Crocker and Constable Carter were trying to remove Sofyan Boalag from his car. Constable Doiron assisted. It was a difficult task and all officers fell to the ground with the accused.

When the struggle stopped and everyone was standing, Constable Doiron handcuffed the accused and explained to him the reason for the arrest. A search of the accused produced an iPhone, a BlackBerry, a wallet, identification, money and a knife. Constable Doiron placed the knife in a property exhibit bag and retained all of the other items. Constable Doiron was confident the accused understood his rights and police caution when he read them to him. [ 57 ] As a precautionary measure, Sofyan Boalag was conveyed to police headquarters in a marked police unit which was outfitted with a silent patrolman.

He exercised his right to counsel and was later photographed. The photographs showed an abrasion on his right check. The accused had a mole on the right side of his face. Sofyan Boalag’s jacket was seized. It was a leather jacket with a zipped up liner (which resembled a hoodie) inside. The Knife [ 58 ] Constable Doiron passed over to Constable Ghaney the knife and two phones that he had seized from the accused. Constable Ghaney described the knife as a silver Amazon Dragon push button with a handle that would fit in the palm of a person’s hand.

The knife was 19- 20 centimeters in length with a nine centimeter blade length. There was a braided cord design in the knife’s handle. Constable Ghaney photographed the knife. On December 11, 2012, Constable Chris Young requested to see the knife which was shown to him by

Constable Ghaney. Constable Young identified the knife as an Amazon Piranha which is a prohibited weapon in Canada since the blade was forced open when pressure was applied to the button on the left side of the knife. [ 59 ] Constable Ghaney returned the knife to the exhibit bag and testified that he retained custody over it since that time. The iPhone and the BlackBerry [ 60 ] Constable Murphy selected one of the phones from the table where they had been placed a short time after being seized from Sofyan Boalag. It was a functioning BlackBerry but had no SIM card.

Constable Murphy turned the BlackBerry on and saw that it had a French service provider. She then selected another phone. She noted it had the contact information of M.H.’s brother. She also noticed there was an esthetics exam listed in the phone’s calendar. Constable Murphy knew that M.H. went to a local college and believed it to be M.H.’s phone. The DNA Evidence [ 61 ] On October 18, 2012, Constable Cynthia Crocker, prepared her request for forensic laboratory analysis. She wrote that she had observed staining on I.H.’s underwear and other garments under the forensic light source.

She was advised, in writing, dated October 22, 2012, that her request had been accepted for submission under Laboratory File 2012N-8300. Three exhibits were accepted: CC#18 - I.H.’s blood sample, CC#23 - I.H.’s vaginal swab and CC#8 – I.H.’s underwear. Cst. Crocker sent these exhibits by courier to the RCMP National Forensic Laboratory Services in Ottawa. [ 62 ] Constable Crocker received a chain of custody report from the laboratory which outlined the movement of exhibits within the Forensic Laboratory Services system. Upon reviewing this report she did not notice any changes or breaks in the chain of custody.

Constable Crocker testified she had received a report from the laboratory on January 4, 2013 which noted that an unknown male profile (semen) had been found on I.H.’s underwear. When she became aware that two sexual assault incidents had been reported which may have been related to I.H.’s case she requested, on January 14, 2013, the laboratory to compare the unknown sample from I.H.’s underwear to the cast-off sample from Sofyan Boalag. [ 63 ] On December 18, 2012, Constable Ghaney sent a number of exhibits to the RCMP National Forensic Laboratory Services in Vancouver.

These included vaginal swabs, taken from F.S. and M.H. These were assigned file #2012N-9703 and file #2012N-9715 respectively. The cast-off sample of Sofyan Boalag was also included. Constable Ghaney testified that all exhibits had been properly sealed with no sign of tampering. There was no opportunity for cross-contamination since pre-cautions had been taken to ensure the samples would not have come into contact with each other.

Since some of M.H.’s samples were frozen, a form of dry ice was included in the packaging to prevent the samples, if waylaid in transit, from thawing, thereby potentially affecting them. (Steps were also taken to ensure the integrity of the samples.) The courier tracking information provided a

summary of the exhibits’ shipment and its various locations until its delivery on December 20, 2012, to the RCMP National Forensic Laboratory Services in Vancouver. The chain of custody reports summarized the movement of the exhibits within the laboratory and between laboratories and when the exhibits were returned. They also documented the staff involved in those activities. [ 64 ] It became necessary to obtain a DNA sample from the accused. On February 28, 2013, the DNA warrant was executed at the City Lock-up.

Although the officer testified that the warrant was read to the accused, this was not captured on the video recording of the procedure. Prior to taking the sample, the accused requested, and was given, legal advice. When the sample was obtained, it was placed in a secure cabinet at the police headquarters where only the property control staff had access. [ 65 ] Constable Ghaney packaged the warrant sample for shipment and noticed that there was no sign of tampering with the envelope containing the sample.

The sample was sent by courier, on March 12, 2013, to the RCMP National Forensic Laboratory Service in Ottawa. The courier tracking information recorded its arrival in Ottawa on March 13, 2013. The warrant sample was identified by the laboratory as Exhibit RAS1. [ 66 ] A known sample from B.P. was also sent for forensic testing.

[ 67 ] Thomas Suzanski was qualified as an expert in DNA analysis, testing and

interpretation of the results. He testified that DNA typing has become very discriminating and that the term “match” does not properly convey a true sense of the meaning of a conclusion. It is necessary to give it statistical significance. There are quality assurance procedures and accreditations in each of the RCMP forensic laboratories which are audited every two years. There is record keeping, ensuring the instruments produce reliable results. Each staff member is qualified to perform his/her tasks.

The work is peer reviewed once a year with proficiency tests twice a year. [ 68 ] There is a standard operating procedure for the work carried out in the laboratories. Tests are performed in a specific manner. Gloves are changed, instruments are cleaned and exhibits are handled one at a time to prevent cross-contamination. The chain of custody reports, created in the laboratories, are not relied upon by him and do not assist him. He normally does not refer to them. [ 69 ] Mr. Suzanski testified that he was asked to assume this case and testify for other colleagues.

This required him to re-interpret the DNA analysis reports and prepare a

summary. In his three page report, he wrote that he personally reviewed the contents of RCMP laboratory files 2012N-8300, 2012N-9715, and 2012N-9703 and agreed with all the

interpretations and conclusions by the Reporting Scientists as outlined in the six issued reports. [ 70 ] RCMP laboratory file 2012N-8300 related to I.H. In the report dated 2013-01-04, semen was identified on exhibit CC8, inside the crotch of I.H.’s underwear. The DNA typing profile obtained from exhibit CC8 was that of an unknown male, Male 1. I.H. was not the source of the profile. [ 71 ] In the report dated 2013-04-11, the DNA typing profile previously designated as Male 1 matched that of the known sample, Exhibit RAS1 (Boalag).

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 130 billion. [ 72 ] RCMP laboratory file 2012N-9715 related to M.H. In the report dated 2013-01-15, human semen was identified on Exhibit MG3A (vaginal swab of M.H.). The DNA typing profile obtained from Exhibit MG3A (vaginal swab of M.H.) was of mixed origin consistent with having originated from two individuals. The profile of the female component matched that of the known sample Exhibit MG5 (M.H.).

The profile of the male component matched the profile obtained from Exhibit MG6 (cigarette butt cast off sample reportedly from Sofyan Boalag). The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 130 billion. [ 73 ] In the report dated 2013-04-15, the DNA typing profile obtained from Exhibit MG3A (vaginal swab of M.H.) was of mixed origin consistent with having originated from two individuals. The profile of the female component matched that of the known sample, Exhibit MG5 (M.H.).

The profile of the male component matched that of the known sample, Exhibit RAS1 (Boalag). The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 130 billion. [ 74 ] RCMP laboratory file 2012N-9703 related to F.S. In the report dated 2013-01-15, human semen was identified on Exhibit MG5A (vaginal swab, F.S.). The DNA typing profile obtained from Exhibit MG5A (vaginal swab, F.S.) was of mixed origin consistent with having originated from two individuals.

The profile of the female component matched that of the known sample, Exhibit MG8 (F.S.). The profile of the male component was designated Male 1. The donor of the known sample, Exhibit MG8 (F.S.) was not the source of the unknown profile. [ 75 ] In the report dated 2013-04-15, the DNA typing profile obtained from Exhibit MG5A (vaginal swab, F.S.) was of mixed origin consistent with having originated from two individuals. The profile of the female component matched that of the known sample, Exhibit MG8 (F.S.).

The profile of the male component, previously designated as Male 1 matched that of the known sample, Exhibit RAS1 (Boalag). The estimated probability of selecting an unrelated individual at random (from the Canadian Caucasian population) with the same profile is 1 in 130 billion. [ 76 ] Mr. Suzanski noted this is a very large number suggesting strong evidence of association. The DNA evidence is not conclusive that the sample originated from the accused. [ 77 ] He had no concerns that any of the samples had deteriorated prior to testing.

[ 78 ] There was no evidence that B.P.’s blood was on the accused’s jacket. POSITION OF THE PARTIES Counsel for the Crown [ 79 ] Crown counsel argued that none of the complainants who were sexually assaulted consented. These were not isolated incidents. Crown counsel asserted that I.H. was attacked and sexually assaulted as she claimed and her identification of Sofyan Boalag when she saw his entire face on the media is to be believed. She noted that I.H. described her attacker as having a mole on his face and gestured in the area below the apple of the cheekbone.

The accused does have a mole in that area of his face. [ 80 ] F.S. did not voluntarily give her things to her assailant. He threatened he would use a knife and she felt a knife throughout the incident. Although unable to see her attacker, F.S. did identify certain characteristics and aspects of him. She knew he was Arabic, he had told her he had seen her at the bar, and had asked her if she had a boyfriend in France. F.S. had only told her female companions and the two men outside the bar where she was from. The BlackBerry seized by the police from the accused belonged to F.S.

Her pictures were still on the phone and the service provider was from France. The circulation of the internal email which contained two photographs, one of whom was the accused, was an investigative tool to identify the persons depicted. The sole purpose of the photo array, shown to F.S., was to determine whether she recognized anyone from the bar. The results of the cast off DNA showed that the police were now focused on a suspect. [ 81 ] Crown counsel asserted that although M.H. admitted to being very drunk, she could recall the incident. Her attacker threw M.H.’s phone away when she tried to access it.

She glanced at the knife and felt it. Her assailant choked her until she lost consciousness. Crown counsel conceded that the bruises and other injuries to M.H. failed to meet the legal test of “bodily harm”. The photo line-up was balanced and M.H.’s identification of the accused was “compelling”. While M.H. was not shown an iPhone seized from the accused upon his arrest, Constable Murphy noted M.H.’s brother’s name in the contact list and there was an esthetics exam in the appointment calendar.

This is sufficient, according to Crown counsel, to prove the accused possessed stolen property belonging to M.H. [ 82 ] Crown counsel argued that it need not prove the accused was in actual possession of a weapon to establish the offence of sexual assault with a weapon. It is sufficient if the complainant reasonably believed the accused had a weapon and would use it. [ 83 ] Crown counsel further argued that the DNA evidence was pivotal to its case. I.H., F.S., and M.H. all attended at the hospital and the samples were all properly taken, sealed, and preserved. There was no evidence of degradation.

Constable Crocker was satisfied that the exhibits taken from I.H. were successfully delivered to the laboratory for forensic testing. Constable Crocker received the chain of custody report from the laboratory which showed the ongoing thread of continuity inside the laboratory. [ 84 ] Similarly, the Court can rely on the chain of custody reports for the exhibits taken from F.S. and M.H. [ 85 ] She argued that there was no evidence of, or opportunity for, cross-contamination of the samples.

There was no evidence of, or concerns noted, with respect to degradation of the samples when they arrived at the forensic laboratory. [ 86 ] While the statistics from the DNA evidence referred to the Canadian Caucasian population, Crown counsel asserted that if the probability is so rare in one population it will be the same in another. [ 87 ] Crown counsel argued that L.N. saw the assailant during the assault and sometime later when he visited her friend’s house. Although L.N. did not know his name, when she saw him on the news she knew he was her attacker.

She now, according to Crown counsel, “had a name to put to the face”. L.N. could see his face in her sleep since the attack. L.N. pointed to Sofyan Boalag in the courtroom as the perpetrator and commented that he was heavier than before. Crown counsel stated that because L.N. made such a comparison this also shows recognition of the attacker as the accused.

[ 88 ] According to Crown counsel, there is no evidence to support the charge that B.P. was sexually assaulted and conceded that the identification evidence is weaker since B.P. could not point out the accused in a photo line-up.

Nevertheless, B.P. testified that she remembers him although he is “thicker than he used to be” and from her evidence convictions should be entered for assault with a weapon and carrying a concealed weapon. [ 89 ] Crown counsel argued that there was little opportunity for collusion between B.P. and L.N. [ 90 ] Since the accused actively struggled with the police upon his arrest, Crown counsel argued that the offence of resisting arrest has been proven. [ 91 ] The knife seized from Sofyan Boalag was identified as a prohibited weapon; therefore, Crown counsel asserted there should be a finding of guilt for that offence.

Counsel for the Defence [ 92 ] Defence counsel argued that the Crown had failed to prove the offences before the Court beyond a reasonable doubt because it fell short of the evidence required to make these findings. [ 93 ] He asserted that the police were undercover, dressed in plainclothes and in unmarked cars when they tried to arrest the accused. Constable Crocker, who was the first officer to effect the arrest, expressed some uncertainty as to whether the accused understood what was happening around him.

Further, there could have been a language barrier which prevented the accused from understanding what was transpiring at the time. Accordingly, the accused should be acquitted of that charge. [ 94 ] While defence counsel conceded that the knife entered into evidence was a prohibited weapon, he argued that the Crown failed to prove that this was the knife found on the accused when he was arrested.

None of the arresting officers during the trial, including Constable Doiron, was asked to identify the knife. [ 95 ] Neither was Constable Doiron shown the cellular phones which were reportedly taken from M.H. and F.S. by the accused and allegedly found on him when he was searched by the police. During the trial, M.H. was never asked to identify the phone. Although F.S. referenced a French carrier and noted there were pictures which she thought were hers, the memory had been wiped from the phone. [ 96 ] Defence counsel asserted there was never any agreement as to the continuity of the DNA evidence.

The Crown was put on notice in advance of the trial that the defence was making no concessions. Despite this warning, the Crown called many witnesses to give evidence as to how the biological samples were handled, packaged and sent by courier to the forensic laboratories but no evidence as to what happened upon arrival. The critically important evidence that goes to the “heart of identity”, he argued, we know nothing about. The warrant to obtain the blood sample was not read to the accused.

The Crown did not call as witnesses the people at the laboratory who actually conducted the initial tests primarily because it was more convenient for Suzanski to testify. While he might have been qualified as an expert, we do not know the level of expertise, if any, of those who were assigned and performed the work. Counsel for the defence noted that there was no evidence as to precautions which were taken at the laboratories, or whether the equipment was working properly. The Court, defence counsel asserted, cannot assume the DNA evidence was handled properly.

Neither can we assume since the accused is Algerian that the statistic for the Caucasian population of 1 in 130 billion would be an appropriate comparison. Given all of these objections, it would be an error for the Court to rely on Suzanski’s findings. [ 97 ] The defence argued that F.S.’s identity of Sofyan Boalag as the accused was unreliable. She was drunk at the time of the incident, and told the sketch artist she could not identify the person, giving it a rating of zero on a scale of one to ten.

From the photo array comprised of individuals who were present at the bar that night, F.S. made two selections: number two (purportedly Sofyan Boalag) and number ten (who was of Arab decent). The police ignored the selection of number ten when they sent out the bulletin to their members. They had substituted another individual. The police were ignoring the possibility of another perpetrator. [ 98 ] Defence counsel asserted that there were difficulties with I.H.’s account. She described the person as Caucasian with dirty skin.

An hour before she was allegedly attacked, she sent the text message “I’m getting raped”. Despite being afraid of men and being out at night, she was outside in the dark. All of this raises concerns of potential fabrication especially when she described a “vicious rape” and yet there are no other signs of trauma except for an abrasion to her neck. Her description of the incident with the attacker having one arm

firmly around her neck while his other arm was taking down her pants also calls into question the truth of her story. [99] Although I.H. testified that her attacker wanted her to return to the same place because he lived in that building, there was noevidence as to who lived there. There was insufficient lighting in the area to enable her to provide a description. Her reference to himhaving a mole on his face was not part of her initial description and could very well be attributed to seeing him in pictures in February2013.

Further, I.H. testified that her family had been following the court proceedings. [100] Defence counsel argued that given M.H.’s behaviour towards the stranger she befriended raises issues as to whether sheconsented to the sexual activity to some point. She had never met him before, she had no money or debit card, and wanted him to comewith her to a bar where there was a cover charge. M.H. agreed to go to his house. The video shows M.H. and another person on the stairs- with her chasing him up the stairs. She was “picking up a man and not a man picking up a woman”.

Her account was also inconsistentas to whether a stick was used to penetrate her. Given these concerns with her evidence, the Court must be cautious about accepting it. [101] Counsel for the defence asserted that L.N. did not voluntarily go to the police to give her account. Four months after the incidentshe gave a statement after the police located her. She had never seen her attacker before and gave a very general description of him.While she testified to seeing him on the news, she would have been led to believe through the media reports that this was the personresponsible.

L.N.’s dock identification of Sofyan Boalag was unreliable. Her credibility was also in issue given her criminal record foroffences of dishonesty. [102] Defence counsel argued that B.P. was a reluctant witness with a significant criminal record for crimes of dishonesty. She gave acontradictory statement to the police of her attacker and could not identify the person who attacked her when shown a photo line-up.Sofyan Boalag was featured in that line-up. B.P. described her assailant as wearing a black leather jacket when he cut her with a knife.This cut, according to B.P., bled profusely.

Although this jacket was examined at the forensic laboratory, no DNA evidence was foundlinking Sofyan Boalag to B.P. ANALYSIS [103] Issues One to Five 1. Did the sexual activity occur? 2. If so, did the victims consent to this activity? 3. Did the attacker use a weapon? 4. Did the attacker carry a concealed weapon or possess a weapon for a purpose dangerous to the public peace? 5. Did the attacker rob the victims? [104] The prosecution must prove all of the essential elements of the offences beyond a reasonable doubt; thereby proving its casebeyond a reasonable doubt.

Reasonable doubt has been defined by our highest Court as “much closer to absolute certainty than to abalance of probabilities”. (R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144 at paragraph 242.) When making a determination asto the credibility of witnesses, this is obviously inextricably intertwined with an assessment as to whether the Crown has proven its casebeyond a reasonable doubt. Reasonable doubt remains the live issue in any criminal trial.

A trial is not a contest of one version comparedto the other but rather is an assessment on the basis of all of the evidence as to whether the trier of fact is satisfied of the accused’s guiltbeyond a reasonable doubt. L.N.

[ 105 ] Despite L.N.’s criminal record for crimes of dishonesty, I found her testimony as it related to being forced to perform fellatio on her attacker and to being vaginally penetrated by him without her consent to be credible. I found no inconsistencies in her evidence as it related to whether the incident had actually occurred. It is unfortunate but hardly surprising that L.N. would be reluctant to report the attack given her drug addiction and her criminal record. I accept that her attacker had a knife. She felt the blade by her face and bottom during the attack and saw it.

Her evidence establishes that she was sexually assaulted with a knife and that her attacker carried a concealed weapon. I.H. [ 106 ] Before she went outside just prior to dawn, I.H. sent a text to one of her friend’s which said “so getting raped”. An hour or two later, I.H. reported being sexually assaulted. Was this a terrible coincidence or a fiction? After reviewing the evidence, I am satisfied beyond a reasonable doubt that I.H. was attacked in the manner she described. I.H. was 15 years old when she decided that morning to visit her friends at a local coffee shop.

She often walked before dawn despite her fear of the dark and what she qualified as an irrational fear of men behind her. It is not uncommon for people to act in a manner which could be viewed as incongruent with their fears. I.H.’s description of her attack was poignant and detailed. I do not find it inconsistent that the attack which she described could result in such minimal physical injuries. Neither do I find the description of the attack to be incredible. The attacker could very well, as she described, have had his arm around her neck the entire time during the assault.

Aspects of her account are supported by the physical evidence. [ 107 ] I.H.’s request to the motorist and subsequently to the off-duty police officer to bring her to the coffee shop where she felt safe with her friends is not unusual given her age and emotional vulnerability. That she did not wait until the officer’s car came to a complete stop in the parking lot only reinforces this point. [ 108 ] I.H. testified that her attacker held a pointed object at her back which he dropped into the grass during the assault.

A piece of wood tapered at one end was located in the grass where I.H. said the assault had occurred. The grass was trampled nearby. [ 109 ] Semen was found in the crotch of I.H.’s underwear. This is also significant and tends to support the belief that she is telling the truth about what happened. [ 110 ] I.H. told the attacker she was 14 years old. He called her “baby” throughout the ordeal and threatened to kill her.

He knew her age and proceeded by force. [ 111 ] I am satisfied beyond a reasonable doubt that I.H. was sexually assaulted with a weapon, that her attacker sexually interfered with her, and possessed a weapon dangerous to the public peace. B.P. [ 112 ] B.P. was reluctant to attend court and was arrested in order to comply with her subpoena. She also had a significant criminal record which included crimes of dishonesty.

Nevertheless, B.P. displayed no reticence in providing the Court with the details of being assaulted by knife point and being cut with the knife when she refused to perform any sexual acts. [ 113 ] Her account as to being assaulted with a knife is accepted by this Court. This evidence would also support the offence of carrying a concealed weapon. [ 114 ] There was insufficient evidence to support the charges of sexual assault with a weapon or sexual assault causing bodily harm. F.S.

[ 115 ] The testimony of F.S. was compelling and riveting. She made no effort to embellish or exaggerate. Through the assistance of an interpreter, F.S. described how her attacker performed cunnilingus on her, digitally penetrated her vagina and then penetrated her vagina with his penis. He threatened to use a knife and while she did not see it, F.S. felt the knife’s blade on her stomach. When she stopped struggling he put the knife in his pocket. She thought her attacker would kill her. F.S. admitted to having consumed alcohol that night but not to the point of intoxication.

She recalled with excruciating detail her ordeal. [ 116 ] I accept F.S.’s account and am satisfied that she was sexually assaulted with a knife. I am also satisfied that her attacker carried a concealed weapon and that it was a knife. [ 117 ] After the sexual assault her attacker asked for money for a taxi. When she refused he took her purse and BlackBerry. This was a theft committed after her attacker used personal violence against her. It meets the definition of robbery.

M.H. [ 118 ] I find based on the evidence before me that M.H. was violently sexually assaulted on December 9, 2012 and that her attacker used a knife. Her evidence was forthright and detailed. There is no merit to the assertion that M.H., in agreeing to go with the assailant, was in any way responsible for the violent sexual attack upon her. There was no issue of consent. M.H. was forced against her will to engage in sexual acts. Neither do I find of significance, given the entirety of her account, the inconsistency between her testimony and her earlier statement to the police as to whether a stick was used.

This evidence was elicited during a very heated exchange between M.H. and defence counsel. It was not clear to me that M.H. was asserting that a stick was used during the attack. This point was never explored in any meaningful way. However, even if M.H. was inconsistent on that point, after having heard the entirety of her account, it is of little significance to my findings. [ 119 ] While corroboration is no longer a legal requirement there is evidence of her torn thong. The thong was torn in two places which indicated the use of force by her attacker and/or her resistance to fend off the attack.

The thong was found by the police shortly after M.H. reported the crime and told them where the attack had occurred. [ 120 ] She had abrasions and her legs were bloody. The prosecutor conceded that the injuries inflicted on M.H. did not meet the legal definition of “bodily harm”. I agree. [ 121 ] M.H. admitted to being very drunk that night. Nevertheless, there was no evidence from the police who first saw her that she was incoherent. She was able to articulate what had happened to her. [ 122 ] She felt a knife at her throat at one point during the sexual assault and saw it just briefly.

I accept this evidence and find beyond a reasonable doubt that a weapon was used. This would also make out the offence of carrying a concealed weapon. [ 123 ] M.H. described being choked towards the end of the attack. I am satisfied from the circumstances which M.H. described, and I accept, that her attacker rendered her unconscious by choking her. [ 124 ] During the attack her iPhone was forcibly removed from her. This constitutes the offence of robbery as enumerated in the Information before me. Issue Six [ 125 ] 6. Was Sofyan Boalag the attacker? L.N.

[ 126 ] L.N. did not know her attacker. Sometime after the incident she saw him again at a friend’s house. She knew him by the nickname “Luigi” and described him to the police on December 9th as a foreign person with brown eyes. When she saw him on the news, L.N. stated she knew he was her attacker and sees his face every night in her sleep. [ 127 ] The case law and legal literature are replete with warnings about the inherent frailty of eyewitness identification. Identification experiments have demonstrated the fallibility of observation and the weakness of memory.

In the matter before me L.N. had not met her attacker before. While she testified to seeing him a second time and recognized him, there was no other connection independent of her recollection. She referred to him as Luigi yet there was no other evidence before me to connect the accused to that name. Her description of her attacker to the police was quite general. Further, when she saw him on the news it was in the context of sexual assaults being committed in the same area where she had been attacked.

Her identification of him in the courtroom must be accorded little weight. [ 128 ] Under all of these circumstances, I find that I cannot accept that the Crown has proven beyond a reasonable doubt that Sofyan Boalag was L.N.’s attacker. I.H. [ 129 ] I.H. described her attacker to Constable Gosse as about six feet tall, Caucasian but dirty looking, in his thirties, and wearing a black leather jacket with a hoodie underneath. She told another officer that her attacker wore a leather jacket, was between thirty to forty years old, and had a slim build.

At the hospital, I.H. described him as wearing a white hoodie, black jacket, approximately five foot eight, about one hundred and forty pounds with a silver ring on his right hand. [ 130 ] I.H. testified that her attacker had a mole on his face and when she saw Sofyan Boalag’s entire face on the media report she knew he was her attacker. [ 131 ] When I.H.’s clothing was packaged into three bags by hospital staff one bag contained her underwear, bra, headband, socks, tank top and jogging pants. Constable Crocker used a forensic light and noted that some of the clothing, especially the underwear, fluoresced.

Constable Crocker testified that this light detects bodily substances such as semen. [ 132 ] The prosecution established through viva voce evidence and documentary evidence the continuity and the integrity of the samples taken from the hospital, to the police station and to the forensic laboratories for testing. The warrant DNA sample was taken pursuant to judicial authorization. While there was some ambiguity as to whether the warrant was read to the accused, I note that before the sample was obtained the accused requested and received, legal advice.

There was no evidence before me that Sofyan Boalag did not understand. [ 133 ] The DNA warrant sample was properly sealed, packaged and shipped to the forensic laboratory in Ottawa. [ 134 ] Thomas Suzanski testified as to the forensic laboratories accreditations based upon quality assurance procedures, the proficiency and qualifications of the staff, record keeping to ensure reliable results, and peer review. [ 135 ] While another scientist issued two reports relating to I.H.’s samples, he reviewed the contents of these files and made his own findings which were in agreement with those originally reported. [ 136 ] In his report filed as an exhibit and during his testimony, he noted that semen was found on the inside crotch of I.H.’s underwear and that the DNA typing profile obtained from the crotch inside the underwear matched that of Sofyan Boalag. (The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 130 billion.) [ 137 ] I accept the testimony and conclusions regarding the scientific findings made by Mr.

Suzanski. I am not persuaded by arguments of defence counsel to the contrary.

[ 138 ] The evidence that Sofyan Boalag’s semen was found on I.H.’s underwear after she was sexually assaulted is compelling. However, I am still required to draw the inference that it was the accused who committed this crime. I must consider the whole of the evidence as it relates to I.H. and consider not only the fact that the DNA evidence was found but the circumstances (the timing and means of the placement) of the accused’s DNA on the items or locations where it was found. (See, for example, the discussion in R. v.

Ibrahim , 2014 ONCA 157 .) [ 139 ] I.H. described her attacker to the police as Caucasian but dirty looking. It is important to note that I.H. was 15 years old when she was attacked and may not have been particularly sophisticated regarding racial differences. Alternatively, the point could also be made that I.H. in describing her attacker as “dirty looking” qualified the word Caucasian.

In other words, her attacker’s skin could have been darker than one would expect for a Caucasian. [ 140 ] The rest of I.H.’s description of her attacker, in particular, his approximate height, build, and age, and leather jacket (with a hoodie) does not eliminate the accused. In other words, while not unique features which can be attributed solely to him neither would they eliminate him as the attacker. [ 141 ] Crown counsel argued that I.H. had testified her attacker had a mole just below his cheek of his face and that the accused has a mole.

This evidence has to be weighed carefully especially since I.H. did not report this distinctive feature to the police after her attack. There was opportunity for I.H. to see the accused on the media or hear a description of him through family members who were following the court proceedings. I put little weight on I.H.’s assertion that she was 100% sure when she saw Sofyan Boalag’s entire face on the media that he was her attacker.

This occurred after he was arrested and charged with sexual assault. [ 142 ] The eyewitness identification evidence alone would be insufficient to support a conclusion that the accused was I.H.’s attacker. [ 143 ] However I am satisfied beyond a reasonable doubt when I consider both the eyewitness identification evidence and the DNA evidence that Sofyan Boalag committed the offences against I.H. Here the evidence is circumstantial.

The fact that the accused’s semen was found on the crotch of the victim’s underwear following the attack as she described makes the inference the only reasonable one under the circumstances. There are no plausible theories or reasonable possibilities related to the placement of Sofyan Boalag’s semen other than that he deposited it when he ejaculated during the assault upon her. ( See R. v. Villaroman , 2016 SCC 33 .) B.P. [ 144 ] There were some inconsistencies in B.P.’s description of her attacker. They related primarily to the attacker’s hair.

On December 10, 2012, B.P. had been unable to identify the accused in the photo line-up. B.P. testified that when she saw the accused on the news she remembered him as her attacker and that she never forgets a face. B.P. pointed to the accused in Court as being responsible for the assault on her. [ 145 ] The identification of the accused in Court by B.P. is highly problematic as direct reliable identification of her attacker. This was the first time B.P. had identified the accused. She had not identified him in a photo line-up when her memory was first tested. It is unlikely to improve with the passage of time.

Prior to testifying in Court she had seen him on television. B.P. admitted to having an opiate addiction at the time of the attack and had possibly consumed drugs that night. [ 146 ] B.P.’s face was cut by her attacker. This cut bled profusely. B.P. testified that her attacker was wearing a leather jacket. There was no evidence that B.P.’s blood was found on Sofyan Boalag’s leather jacket when it was examined at the forensic laboratory. [ 147 ] In the circumstances of this case, I find that the prosecution has failed to prove beyond a reasonable doubt that Sofyan Boalag was B.P.’s attacker.

F.S. [ 148 ] F.S. testified that during the sexual assault her attacker told her that he had seen her at the bar that night. He also asked her if she had a boyfriend in France. She knew he was Arabic and begged him, during the attack, to promise to Allah that he would stop. F.S. had

told her female companions that night that she was from France. She also told the two men outside the bar. One of these men had invited her back to his house. She declined. On her way home, F.S. again encountered the same male she had seen at the bar. He again invited her to his house. She refused and told him they should each go their own way.

A short while later she was sexually assaulted. [ 149 ] F.S. could not provide any description of the accused to the police sketch artist. [ 150 ] The police exported the CCTV footage from the bar’s cameras and a photo array was prepared of ten men who had, that night, been in the bar. This was not a proper photo line-up. It included the accused. F.S. was shown this photo array. She was asked by a police officer if she could identify the male she spoke with at the bar. F.S. was also told that he may not be in the photo array.

F.S. initially chose one photo but then hesitantly selected photo number two. [ 151 ] The circulation of an internal email within the police force of two photographs resulted in an identification of photograph number two as Sofyan Boalag. (The other photograph initially selected by F.S. was not included.) [ 152 ] There is little evidence from which I can conclude that the police, in the early stages of their investigation, were eliminating all potential persons of interest, other than the accused. [ 153 ] I am satisfied that the prosecution has established the continuity and integrity of the samples belonging to F.S. from the hospital to the police station and then to the forensic laboratory. [ 154 ] Similarly, the DNA warrant sample was also properly prepared, sealed, packaged and sent.

There is no issue of cross- contamination. [ 155 ] As stated earlier, I am satisfied that the forensic laboratories are properly accredited and the samples were handled in a professional manner. [ 156 ] The DNA warrant sample, earlier referred to, provided a match according to Thomas Suzanski. He personally reviewed the contents of the files and agreed with the Reporting Scientist. Human semen was identified in the vaginal swab. The profile of the male component previously unknown (semen) matched Sofyan Boalag.

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 130 billion. [ 157 ] While the evidence of F.S. may be insufficient to prove the identity of her attacker, it is not inconsistent with the DNA evidence which connects the accused to the crime. The exported CCTV footage which was later made in a photo array shows the accused at the bar on the night F.S. was sexually assaulted. Her attacker told her he had seen her at the bar.

He knew she was from France. (F.S. had only told a small number of people at the bar although this information could have been shared with others.) She knew during the attack that he was Arabic. [ 158 ] The evidence of the accused’s DNA profile (semen) in the vaginal swab taken from F.S. the day she was sexually assaulted is also compelling for the same reasons I have stated in paragraph 138. [ 159 ] Taking all of these circumstances into account, I am satisfied beyond a reasonable doubt that Sofyan Boalag committed the crimes against F.S.

M.H. [ 160 ] M.H., immediately after the attack, gave a description of the assailant as: six feet tall, skinny with long black hair and of aboriginal descent. The next day during the photo line-up M.H. selected the photograph of the accused as her attacker.

[ 161 ] This was a proper photo line-up and an effective test of her memory. Precautions had been taken to ensure that there were sufficient similarities so that no one person would be selected by chance. There was no evidence that M.H. had been prompted in any way to choose the accused. Prior to the line-up being shown to M.H. the police officer read to her the standard form which cautioned that the person the police were trying to identify may not be present.

The police officer was not associated with the investigation which eliminated the possibility that he might have somehow influenced her selection. [ 162 ] At the time of the attack M.H. stated she was extremely intoxicated. The City Lock-up video shows M.H. with a male walking up the stairs.

The video does not show a close-up of the male’s face, however, the images bear some resemblance to the accused. [ 163 ] There is strong eyewitness identification evidence to connect the accused to the crimes against M.H. [ 164 ] The evidence taken from M.H. was handled properly from the hospital to police headquarters and then to the forensic laboratory.

There was no evidence of contamination and the prosecution established continuity of these exhibits. [ 165 ] I am also satisfied that the cast-off sample and the warrant DNA sample taken from the accused were handled properly and were properly obtained, sealed, packaged, maintained and sent.

There with no chance of contamination or cross-contamination. [ 166 ] I accept the evidence of Thomas Suzanski that there are established procedures in the forensic laboratories with expert staff all being subjected to peer review. [ 167 ] His review of the contents of the files as they related to M.H. found human semen on the vaginal swab taken from M.H.

The profile of the male component (semen) matched that of Sofyan Boalag with the estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 130 billion. [ 168 ] Taking into account the eyewitness identification evidence and the evidence that the accused’s semen was found in swab taken from M.H.’s vagina, I am satisfied beyond a reasonable doubt that Sofyan Boalag was M.H.’s attacker. Issue Seven [ 169 ] 7.

Did Sofyan Boalag resist the police? [ 170 ] A number of police officers were instructed to arrest the accused on the charge of sexual assault with a weapon. Constable Crocker was the first to approach Sofyan Boalag’s car. Constable Crocker testified that he was dressed in a “police coat”. No description was elicited from the officer as to what, if any, distinguishing features this coat would have compared to outerwear worn by civilians. Nevertheless, it is noteworthy that when Constable Crocker approached the driver’s side window of the accused’s vehicle, he had his police badge in his hand.

He knocked on the car window, opened the car door, and told Sofyan Boalag he was being arrested for sexual assault with a weapon. From Constable Crocker’s account it can be inferred that the accused was surprised. The accused refused to put the gearshift in park, and refused to get out of the car. He had to be forcibly removed. [ 171 ] Constable Crocker, during cross-examination, was asked if the accused knew what was happening. Constable Crocker’s comment that he “wasn’t sure if he didn’t understand” is somewhat ambiguous.

Taking into account the actions of the officer when he approached the car with his police badge, knocked on the window to get the accused’s attention before opening the car door and then opened the door and told the accused that he was under arrest, I am satisfied beyond a reasonable doubt that the accused knew Constable Crocker was a police officer in the execution of his duty. The other officers, who came to assist, also became involved in the struggle to restrain the accused. This struggle lasted for several seconds before the accused was subdued.

The offence of resisting arrest has been proven beyond a reasonable doubt.

Issue Eight [ 172 ] 8. Was Sofyan Boalag carrying a prohibited weapon when he was arrested by the police? [ 173 ] Constable Doiron searched the accused when he was arrested. He found a knife which he passed over to Constable Ghaney. During his testimony, Constable Ghaney described the knife given to him by Constable Doiron and stated that it had been in his custody since that time. He photographed the knife.

He also showed it to Constable Young who examined it and identified it as a prohibited weapon which is not permitted in Canada. [ 174 ] I am satisfied beyond a reasonable doubt that Sofyan Boalag was in possession of a prohibited weapon on December 10 th . Issue Nine [ 175 ] 9. Did Sofyan Boalag possess stolen property? [ 176 ] Upon his arrest, the police seized from the accused a BlackBerry and an iPhone. M.H. testified that her phone was forcibly removed from her by the attacker.

Constable Murphy testified that when she selected the iPhone from the table (just shortly after it had been seized) she noticed that it had the contact information of M.H.’s brother. It also displayed in the

schedule an esthetics exam. Constable Murphy stated that M.H. had attended a local college and believed this to be M.H.’s phone. At trial M.H. was not asked to identify the phone. Nor was there any evidence from M.H. that she had ever attended a college, had a brother, studied esthetics, or made such an entry into her phone. The evidence at trial is insufficient to prove beyond a reasonable doubt that Sofyan Boalag possessed stolen property belonging to M.H. [ 177 ] Constable Murphy also picked up a BlackBerry from the table displaying items seized from the accused.

She noted when she activated the phone that the name of a French service provider was displayed. F.S. was shown the BlackBerry in Court. She identified it as hers. F.S. noted the name of the French service provider. While the BlackBerry no longer had a SIM card, a memory card was still inside which displayed photographs of her friends, family and field trips. During the trial, F.S. testified that her attacker took her phone without her permission. Based on all of the evidence, I am satisfied beyond a reasonable doubt that Sofyan Boalag possessed stolen property belonging to F.S.

This evidence also lends support to the finding that it was the accused who sexually assaulted F.S. since the BlackBerry was taken from her during the attack and he was later found to be in possession of it. CONCLUSION [ 178 ] Taking into account the evidence at trial and the legal standard of proof required, I am satisfied that the prosecution has proven its case beyond a reasonable doubt and find the accused guilty of sexual assault with a weapon on M.H., robbing goods from M.H., resisting the police, carrying a concealed weapon on December 9t

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