WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.— In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Brampton/13-9716

Date: 2014-11-28

Ontario Court of Justice

Between:

Her Majesty the Queen

• and -

Jainarine Bisram

Before: Justice James Stribopoulos

Heard on: January 22, 23, April 17, 23, July 3, 21, and September 4, 2014

Reasons for Judgment Released: November 28, 2014

Counsel:

Ms. Erin Norman — for the Crown

Ms. Kathy Jalali & Mr. David Amin — for the Accused

STRIBOPOULOS J.:

I. Introduction

[1] The accused, Jainarine Bisram, is charged with two offences. First, it is alleged that he sexually assaulted S.H. And further, it is alleged that by doing so he breached a probation condition that required him to keep the peace and be of good behaviour. The Crown elected to prosecute these charges by indictment and the accused elected to be tried before me.

[2] The events that are the focus of this trial occurred in a park that is immediately adjacent to the Westwood Mall, in the City of Mississauga. There is a beer store located in the parking lot of the mall in rather close proximity to the park. A great many people hang out and drink in the park, especially during the summer months. In July of 2013, both the accused and S.H. regularly frequented the mall and the park.

[3] Shortly before 6:00 p.m. on Tuesday July 23, 2013, S.H. was lying beneath a tree in the park, in close proximity to a laneway that runs behind the mall and between the beer store and the park. She was in a partial state of undress, having apparently lowered her pants and underwear in order to urinate and then either falling asleep or passing out drunk. The Crown alleges that while she was in this state, Mr. Bisram had intercourse with S.H. without her consent. According to the Crown, S.H. was incapable of consenting due to her lack of consciousness and/or level of extreme intoxication.

[4] The case against Mr. Bisram is circumstantial. S.H. did not testify because she passed away in the fall of 2013, several months before the trial commenced. Although S.H. made several statements to police soon after the events in question, the Crown's application to introduce these for the truth of their contents under the principled exception to the hearsay rule was unsuccessful. Without the complainant, the Crown's case relies on the evidence of four witnesses who testified about their observations of the accused and the complainant in the park. Some of these witnesses also attributed peculiar comments to the accused, reportedly made by him to the witnesses after he was accused of having sex with S.H. Finally, the Crown adduced evidence that a short time after the events in the park, Mr. Bisram's penis was swabbed and that subsequent analysis of that swab revealed the presence of S.H.'s DNA.

[5] Mr. Bisram testified in his own defence. He denied that sexual intercourse took place or was attempted. He maintained that his interactions with S.H. were entirely innocent, with him scrambling to pull up her underwear and pants to protect her privacy as the witnesses approached. Mr. Bisram also denied making the peculiar statements that were attributed to him by some of the witnesses. Further, he offered an innocent explanation for how S.H.'s DNA came to be found on his penis. Lastly, defence counsel emphasized that testing of vaginal swabs taken from S.H. shortly after the alleged sexual assault did not reveal the presence of Mr. Bisram's DNA. Had Mr. Bisram ejaculated inside of S.H., the evidence established that his DNA would have been present in abundance when the swabs were taken.

II. The Evidence at Trial

[6] The parties agreed that in the interests of efficiency, the evidence on the trial and on two voir dires should be heard concurrently. There were two evidentiary issues that would have otherwise required separate hearings: the first, dealing with the admissibility of the various statements made by S.H. to the police (as noted above, these statements were ruled inadmissible) and the second, relating to the voluntariness of Mr. Bisram's statement to police following his arrest (the defence ultimately conceded the voluntariness of this statement). As a result, a fair amount of the evidence heard at trial did not relate to what is ultimately the live issue in this case.

[7] Mr. Bisram readily conceded being subject to a probation order at the relevant time that included a condition that he keep the peace and be of good behaviour. As a result, the question that is central to the determination of both counts is whether the Crown has established beyond a reasonable doubt that Mr. Bisram sexually assaulted S.H. on July 23, 2013. If the Crown proves that charge, it follows that Mr. Bisram is guilty of breaching his probation order. I will therefore focus my summary of the evidence on that which bears upon the sexual assault allegation, this includes: (a) the evidence of the eyewitnesses; (b) the evidence regarding S.H.'s condition; (c) the DNA evidence; and (d) the evidence of the accused.

(a) The evidence of the eyewitnesses

[8] The Crown called four witnesses who testified regarding their observations of the accused and S.H. in the park. Some of the witnesses also testified regarding statements that they alleged Mr. Bisram made when he was accused of having sex with S.H. There were some differences as between the evidence of the four witnesses, so a careful review of their evidence is necessary.

i. Adam Slade

[9] On July 23, 2013, Adam Slade was working as a security guard at the Westwood Mall. At approximately 5:45 p.m. he was just leaving work. He was driving in his car down a laneway that is located behind the mall, between it and the park. He testified that he was driving southbound, at a rather slow rate of speed, with the mall to his right and the park to his left on the other side of a chain-link fence. As he neared the beer store he looked to his left, into the park. It was clear and sunny at the time.

[10] In the park, Mr. Slade noticed what appeared to be a man on top of a woman. He did not notice anyone else around in the park. Mr. Slade described the man as being over top of the woman, in a "push up" position, with his hands planted on the ground, with one hand on each side of the woman around shoulder level and her lying beneath him. Mr. Slade testified that the man's face was about six inches away from the woman's face. He could not see anything below their waists, as they were located on an incline sloping away from his vantage point. Mr. Slade recognized the woman as "S," a regular from the area who he had seen on a couple of occasions in an intoxicated condition. He did not know the man.

[11] According to Mr. Slade, he became suspicious of what he saw because the woman did not appear to be moving and the man seemed to be looking around as though he was concerned about being seen. Mr. Slade was sufficiently troubled by what he observed that he turned his car around in order to drive past the location again. As he did so, he testified that the man looked at him; but that the woman still did not appear to be moving. At this point, Mr. Slade telephoned a colleague who was still on duty (Jason Schrank). Mr. Slade testified that he told Mr. Schrank that, "there was a man on top of a woman in the grass behind the beer store", that it "did not look right", and said that he should "check it out." Trusting that his colleagues would follow up, Mr. Slade went on his way. He estimated that his observations of the man and woman lasted only about 15 to 20 seconds.

[12] After police eventually arrived, Mr. Slade was summoned back to the location. On his return, he saw the woman being taken away by emergency personnel on a stretcher, and the man seated in the back seat of a police cruiser. After returning to the scene, Mr. Slade went directly to 21 Division where he provided police with a videotaped statement. He prepared his notes regarding the events the next morning when he was back at work. Beyond the initial phone call in which he relayed information to his colleagues and suggested that they investigate further, he denied speaking to the other witnesses about his observations.

ii. Amer De Vera

[13] Amer De Vera is a security guard at the Westwood Mall who was working along with a partner (Jason Schrank) on the evening of July 23, 2013. Mr. De Vera testified that it was approximately 5:45 p.m. when Mr. Schrank received a phone call from Adam Slade. (Mr. Schrank shared the gist of the call. In essence, Mr. De Vera understood that Adam Slade had reported that there was "a male on top of a female … behind the beer store in the park".) As a result of that call, Mr. Schrank, Mr. De Vera and Mr. Ramkhalawan, who is a friend of the two security guards and happened to be visiting with them and having a coffee at the time, headed towards the area of the park behind the beer store.

[14] According to Mr. De Vera, it took the men between two and three minutes to get to that location from where they had been in the mall when they received the call. As they approached, Mr. De Vera testified that from a distance of about twenty metres away, through the fence, beneath a tree in the park, he could see "a guy lying on top of someone on the ground". It was clear and sunny at the time. Initially, he could not see very much, but after they walked around the fence and entered the park he could see them better.

[15] Mr. De Vera testified that the woman's pants and underwear were down, positioned at the middle of her thigh. The woman appeared to be asleep. She was flat on her back, arms at each side, legs close together, her eyes were closed and she was snoring loudly. According to Mr. De Vera, the man was standing right over her body, closer to her legs, he was bent over at the waist and he seemed to be trying to pull up the woman's pants. The man appeared to notice them and he seemed to be hurried and desperate in his efforts to pull up the woman's underwear and pants as they approached. At the same time, the man slapped the woman's face in an apparent effort to wake her.

[16] Mr. De Vera testified that the man was wearing blue jeans that were unbuttoned, that his belt was loose and that the waist of his pants was positioned around the middle of his thighs. The pants were so low that Mr. De Vera could see that the man's underwear was blue, but not so low that he could determine if they were briefs or boxers. During cross-examination, Mr. De Vera acknowledged that the man's genitals were not exposed.

[17] As they moved closer, Mr. Schrank took the lead and approached closest to the man and woman, while Mr. De Vera stood back. He testified that Mr. Schrank asked the man if he was trying to have sex with the woman, to which the man responded that "It was natural," that "It was free" and that "He had an arrangement". Mr. De Vera acknowledged that he did not mention the "It was free" comment in his statement to police; but he insisted that he also remembered the man saying it.

[18] Mr. Schrank then approached the woman and began checking on her, to see if she was still breathing. Although Mr. Schrank was pinching the woman, she would not wake up. According to Mr. De Vera, the woman remained unconscious until after the arrival of the fire department. He testified that the woman finally woke up when one of the firefighters began rubbing her chest with his knuckles.

[19] By about 6:00 p.m. the police had also attended and the man was placed in handcuffs. After being woken up, the woman initially appeared to be confused. Once she realized that the man was being arrested, she appeared to be shocked by this and began defending him. Mr. De Vera testified that he heard the woman explain that her pants and underwear were down because she was, "Going for a pee under the tree."

[20] Mr. De Vera testified that the man remained after their arrival and never made any effort to flee the location. He also testified that the man and the woman both frequented the mall on a daily basis, so he was familiar with each of them although he did not know their names. During his testimony, Mr. De Vera identified the accused as the man from the park.

[21] Mr. De Vera prepared notes regarding these events after the police arrived. He testified that he had completed his notes by 6:20 p.m. He denied speaking with Mr. Slade before the latter left for 21 Division that evening. Further, he denied showing his notes to anyone else, or looking at anyone else's notes before he prepared his own.

iii. Brandon Ramkhalawan

[22] On the early evening of July 23, 2013, Brandon Ramkhalawan was having a coffee with his friends, Jason Schrank and Amer De Vera, at the Westwood Mall. At a certain point, Mr. Schrank and Mr. De Vera received a call from one of the off-duty security guards. Immediately after the call, they asked him if he wanted to go for a walk and he agreed to accompany them. He understood that the call related to someone being passed out. The three men then headed in the direction of the beer store.

[23] According to Mr. Ramkhalawan, it was still daylight and the lighting was good. He estimated that it took them about five minutes to walk to the location. As they approached, he testified that he could see, initially through the fence, a woman lying on her back. The woman's head was tilted to the side and her eyes were closed. She appeared to be unconscious. Although the woman's top was covering her upper body, her tights appeared to be down around the middle of her thighs. Once they rounded the chain-link fence, it became apparent to Mr. Ramkhalawan that the woman was unconscious.

[24] Mr. Ramkhalawan testified that as they approached he could see a man positioned over the woman. The man was on his knees, bent over the woman. The man's belt was loosened and his pants were lowered to an area below his genitals. Mr. Ramkhalawan did not remember seeing the man's zipper lowered but he did remember seeing the man's underwear. The man's genitals were not exposed. During cross-examination, Mr. Ramkhalawan acknowledged sometimes seeing people wear their pants even lower than this.

[25] According to Mr. Ramkhalawan, it appeared as though the man was surprised by their presence. He seemed to respond by trying to wake the woman up. He could hear the man saying, "Wake up, wake up" and he appeared to be slapping the woman's face lightly in order to wake her.

[26] Once they were closer to the area, Mr. Ramkhalawan remembered the security guards questioning the man, and he recalled the man saying, "It's fine. It was arranged". It was Mr. Ramkhalawan's impression that the man was intoxicated; a conclusion he formed because the man's speech was slurred and he was unsteady on his feet.

[27] Mr. Ramkhalawan testified that the woman remained unconscious, despite efforts by him and Mr. Schrank to wake her. For example, they shook her hands, but she remained unresponsive. Mr. Ramkhalawan did not remember the woman snoring. He testified that the woman only woke up after the firefighters arrived and began to press on her chest, which seemed to rouse her.

[28] The woman appeared to be somewhat dazed after waking up. According to Mr. Ramkhalawan, she became upset when police arrested the man, she began to cry and protested to police that he was her friend and told the police they should let him go. The woman also explained that her pants were down because she had gone to "pee". Mr. Ramkahalawan testified that the woman was slurring her words. She also required assistance from the firefighters to get to her feet, and once she was standing she seemed to be "wobbly".

iv. Jason Schrank

[29] Jason Schrank has been working as a security guard at the Westwood Mall for seventeen years. He was working with Amer De Vera on July 23, 2013. He testified that at approximately 5:45 p.m. that evening he received a phone call from Adam Slade, who had just finished working that day. In the call, Mr. Slade said, "You might want to pass behind the rear parking lot by the beer store … there's a male on top of a female and she does not look like she's moving." In response, Mr. Schrank testified that they immediately headed towards the beer store. He estimated that it took them a couple of minutes to walk to the location.

[30] As they approached the location, from about fifty metres away, Mr. Schrank testified that he noticed a male lying on top of a female. He made these initial observations through the chain-link fence that separates the park from the parking lot. It was daylight, so the lighting was good. As they got closer, he recognized both the woman and the man as regulars from the area. He identified the accused as the man and indicated that he knew him by the name, "Omesh". He did not know S.H.'s surname, but he knew her by her first name.

[31] Mr. Schrank testified that as they approached he could see that the accused was directly on top of S.H. She was lying flat on her back, while the accused was facing towards her. Their legs were down a slight slope, so Mr. Schrank could not initially see them. However, their heads were visible and pointed in the direction of the beer store. At the time, Mr. Bisram's face was about a foot to a foot and a half away from S.H.'s face. Mr. Schrank could also see Mr. Bisram's hands, which were positioned on each side of S.H.'s shoulders. His chest was not pressed against S.H.'s chest, but slightly elevated above her body. According to Mr. Schrank, at the time S.H. was completely motionless. Initially, at least, Mr. Schrank could only see the top of S.H.'s head.

[32] As they got closer, Mr. Schrank testified that he called out to the accused and said, "Is that S? What's wrong with S?" to which the accused reportedly responded, "I think she's really drunk." Mr. Schrank testified that after they rounded the fence and closed in on the location, he had a different vantage point than when he made his initial observations; he could now see the pair from the side. As they approached, he could see that S.'s tights and underwear were down around her ankles. The accused was wearing jeans, and his pants appeared to be open; although his genitals were not exposed. As the men moved closer, Mr. Schrank testified that the accused crouched down and appeared to be trying to pull up S.'s tights and underwear. As they arrived at the location, the accused stood up.

[33] At that point, Mr. Schrank asked the accused: "Were you trying to have sex with her?" According to Mr. Schrank, the accused responded, "It's arranged," "It's free," "Don't worry about it," or words to that effect. Mr. Schrank also asked the accused why his belt and pants were undone. The accused's reported response was, "Don't worry about it. Don't worry about it." When Mr. Schrank asked the accused what was wrong with S., he testified that that the accused responded, "Maybe she's very drunk."

[34] At this point, Mr. Schrank approached S.H. and tried to wake her up. He did so by pinching her left shoulder for fifteen to twenty seconds, but this had no effect. Mr. Schrank was sufficiently concerned by her condition that he called for an ambulance, which arrived within three to four minutes, followed by the firefighters and the police. Some of the first responders began a "knuckle rub," which involved rubbing their knuckles along S.H.'s rib cage and this ultimately appeared to wake her up.

[35] Mr. Schrank testified that when S.H. first woke up she seemed, "hazy," "out of it" and "a bit spaced out". He could not say whether this was the result of alcohol or something else. He immediately asked her, "Why are your pants down towards your ankles?" to which she reportedly responded that she was having a "pee". Mr. Schrank testified that he had seen S.H. inebriated on many occasions in the past. In the preceding year, she was someone who regularly hung out and drank in the park behind the mall.

[36] Mr. Schrank also confirmed that when the police were arresting Mr. Bisram, S.H. appeared to be upset and was saying words to the effect of "Don't arrest him. He's my friend."

[37] Mr. Schrank denied speaking with the other witnesses regarding the events of July 23, 2013, either that evening or at any other time.

(b) The evidence regarding S.H.'s condition

[38] As the above summary makes clear, each of the eyewitnesses testified regarding their observations of S.H. in the park. Mr. Slade only saw S.H. for a very brief period, as he drove past her location twice at about 5:45 p.m. on the evening in question. He testified that at that time she was laying flat on her back and did not appear to be moving.

[39] Mr. De Vera, Mr. Ramkhalawan and Mr. Schrank all testified that when they approached the area S.H. was laying on her back, her eyes were closed and she appeared to be motionless. Each witness described her as being unconscious. According to Mr. De Vera, as they came into closer proximity to S.H. he could hear her snoring. In contrast, neither Mr. Ramkhalawan nor Mr. Schrank recalled any snoring. Nevertheless, all three testified that S.H. remained unconscious even after Mr. Schrank began trying to rouse her by pinching her shoulder. All three witnesses testified that S.H. only regained consciousness after firefighters made efforts to wake her that included rolling knuckles against her ribs.

[40] The first police officer in attendance confirmed that S.H. appeared to be unconscious. Constable Adam Thompson received a radio call at 5:56 p.m., and arrived on scene at 6:03 p.m. At that time, S.H. was still unconscious; he could hear her snoring. According to Constable Thompson, S.H. woke up within a few minutes of his arrival, as a result of efforts undertaken by the paramedics who were in attendance. Constable Josh Dicks arrived at the scene at the same time as Constable Thompson. He testified that on his arrival he saw S.H. lying unconscious in the grass. He also noted that she was snoring. Emergency personnel were in attendance and appeared to be assisting her.

[41] Beyond the apparent difficulty in waking her, there was a fair amount of additional evidence to suggest that S.H. had been drinking heavily on the day in question. For example, after she woke up, the witnesses described her as being "dazed", "confused," and "out of it". Mr. Ramkhalawan testified that her speech was slurred. Similarly, Mr. Schrank expressed the view that she was suffering the effects of alcohol or some other intoxicant. According to Constable Thompson, after S.H. woke up she did not seem to appreciate what was going on.

[42] Constable Aitor Matanza rode with S.H. in the ambulance that transported her to the hospital. They left the scene for the hospital at 6:29 p.m. In Constable Matanza's view, S.H. was obviously impaired by either alcohol or drugs. In coming to this conclusion, he noted that she could not walk on her own and was unsteady on her feet. In addition, she had difficulty maintaining her focus, which meant that he had to repeat each question he posed to her on a number of occasions. She was also slurring her words when she spoke. Finally, even though Constable Matanza had dealt with S.H. on a prior occasion, she did not appear to recognize him.

[43] The Crown also called Constable Sethuraj Sivanolipava who was in the company of S.H. at the hospital almost continuously from about 7:00 p.m. until midnight. He testified that during his extensive dealings with S.H. he could smell alcohol on her breath. He further testified that during his many hours of interaction with her she continued to exhibit signs of intoxication.

[44] Constable Derek Boyce attended at the hospital to interview S.H. on the evening of July 23, 2013. Constable Scott Chadwick joined him. The officers arrived at the hospital shortly after 8:00 p.m. Both officers were of the opinion that S.H. was intoxicated. Each came to this conclusion because her eyes were bloodshot and watery and her speech was slurred. Constable Boyce conducted an audiotaped interview of S.H. in the presence of Constable Chadwick between 8:21 p.m. and 8:28 p.m. He did not bother administering the K.G.B. cautions as he was of the opinion that S.H. would have difficulty understanding the warnings given her level of intoxication. It is also apparent when listening to the audiotape of the interview that S.H.'s speech was rather slurred.

(c) The DNA evidence

[45] Randy Still is a biologist with the Centre of Forensic Sciences. He testified as an expert witness for the Crown on the topic of forensic DNA analysis. Mr. Still provided evidence on that subject generally. He also reported on the results of DNA testing conducted by the Centre of Forensic Sciences on various samples that were collected during the investigation in this case. Finally, he assisted with the interpretation of those results.

[46] DNA determines who we are genetically. As humans, much of our DNA is the same and we therefore have many shared genetic features. There are also differences in DNA that account for many of the differences between people. DNA can be examined to isolate differences that are variable between the population and those differences can then be used for forensic purposes.

[47] Virtually every cell in the human body contains DNA. Some bodily fluids are especially rich sources of DNA; for example, blood, semen and saliva. The DNA of an individual is the same regardless of its source; it is programmed into the individual at a cellular level.

[48] Through a four step laboratory process, DNA can be extracted from bodily samples, quantified, amplified and then through electrophoresis its differences can be made visible so that DNA can be observed and compared. Through this technique, unknown DNA profiles can be compared to known DNA profiles, to determine whether a known person can or cannot be excluded as responsible for the unknown profile. Therefore, forensic DNA analysis can help to identify the guilty, and it can also serve to exonerate the innocent. In this case, the police undertook efforts to harness the forensic power of DNA analysis as part of their investigation.

[49] On the evening of July 23, 2013, police arrested Mr. Bisram soon after they arrived at the park. He was then taken to 21 Division. Shortly after 8:00 p.m. he was placed in an interview room. At approximately 8:50 p.m., Police Constable Ayivie and Detective Hulzebosch entered the room to swab Mr. Bisram's penis in order to collect potential forensic evidence. After some discussion, Mr. Bisram agreed to administer the swabs himself. Two swabs were ultimately collected from Mr. Bisram and subsequently submitted for DNA analysis.

[50] Further, on the morning of July 24, 2013 a nurse at the Trillium Health Care Centre examined S.H. and collected a number of samples from her in order to complete a Sexual Assault Evidence Kit. This included taking a buccal swab from S.H., which would serve as a reference for the generation of her DNA profile. There were a number of other samples collected from S.H. as part of the administration of the kit. This included the collection of an external genitalia swab and an internal vaginal swab. The various samples collected were then submitted for DNA analysis to the Centre of Forensic Sciences.

[51] In this case, testing of the various bodily samples by the Centre of Forensic Sciences yielded some noteworthy results. First, a male DNA profile was generated from both the external genitalia swab and the internal vaginal swab collected from S.H. That profile was suitable for comparison and was uploaded to the National DNA Databank maintained by the Royal Canadian Mounted Police. It yielded a match to a known offender whose DNA profile is contained in the databank; this is someone other than Mr. Bisram. In fact, none of Mr. Bisram's DNA was found on either the external genitalia swab or on the internal vaginal swab taken from S.H.

[52] Mr. Still testified that if a male and female have intercourse, where the male ejaculates inside the female the semen could remain active in terms of DNA for up to seven days. In such circumstances, the amount of active DNA will eventually dissipate over time and with bathing. Accordingly, it seems rather likely that the male whose DNA profile was located on the genitalia and internal vaginal swabs taken from S.H. was someone with whom she had sexual intercourse without a condom at some point over the preceding week. And, given the small amount of DNA involved with both swabs, Mr. Still estimated that the intercourse had likely taken place more than a few days earlier, and probably closer to a week.

[53] In addition, processing of a penile swab taken from Mr. Bisram revealed the presence of two separate DNA profiles, one female and one male. S.H. could not be excluded as the source of the female DNA profile. This gave rise to two possibilities: she was either the source or someone who shared her DNA profile was. Apparently, the probability of the latter being the case was estimated to be 1 in 9.1 quadrillion. The male profile yielded from Mr. Bisram's penile swab was the same as the one obtained from both the genitalia swab and the internal vaginal swab collected from S.H. In other words, the DNA of the male whose profile was contained in the National DNA Databank was linked both to S.H. and to Mr. Bisram.

[54] Mr. Still testified that the quantity of female DNA located on the penile swab totalled approximately 15 nanograms. By comparison, the amount of male DNA located on the penile swab was significantly less, totalling only about 2 to 3 nanograms. Apparently, the minimum amount of DNA that is necessary in order for there to be enough to be suitable for comparison is 1 nanogram.

[55] Mr. Still testified that if a male and female have intercourse without a condom, one would expect a transfer of the female's DNA through vaginal secretions onto the penis of the male. It could also be expected that some penile cells would transfer to the woman's vagina, even in the absence of ejaculation. However, one would not expect too much transfer from the skin cells of the penis to the vagina. The same results would likely follow where the penis is simply rubbed on the female's genitalia and no penetration takes place.

[56] During cross-examination, Mr. Still was specifically asked about the likelihood of sexual intercourse occurring without a condom between a man and a woman, with the woman's DNA transferring to the man's penis but the man's DNA not transferring to the woman's vagina. He testified that if the man does not ejaculate, he would not expect a large amount of transfer of the male's DNA from the penis to the vagina. Although he would expect some skin cells to transfer during intercourse, he was of the opinion that within the environment of the vagina, where so much female DNA is present, any cells left by the penis may not be detected at all. On other hand, Mr. Still testified that if the male ejaculated one would expect to find a fair amount of the male's DNA within the vagina, assuming the male had a normal level of spermatozoa.

[57] During his testimony, Mr. Still also answered a number of questions relating to a hypothetical scenario that was put to him. In short, he testified that if after urinating a woman wiped her vaginal area with a tissue and then wiped a man's penis with that same tissue, it is possible that the woman's DNA from her vaginal secretions could come to be on the man's penis. Further, Mr. Still agreed that if the woman in this scenario had sex without a condom with another man who had ejaculated inside her vagina, then on the hypothetical just described that man's DNA could transfer, along with the woman's DNA, to the man's penis that is wiped with the tissue.

(d) The evidence of the accused

[58] Mr. Bisram testified in his own defence. He is 40 years of age. Although he is married, he has been separated from his wife for three years. He and his wife have an eleven-year-old son.

[59] Prior to July 2013, Mr. Bisram had known S.H. for a year and a half. They had first met at the park adjacent to the Westwood Mall. Mr. Bisram described S.H. as a friend. He testified that their relationship had never progressed beyond that. Both of them were regulars at the park, where they would socialize and drink.

[60] On the afternoon of July 23, 2013, Mr. Bisram attended the park in order to meet up with a group of friends. After meeting his friends, including S.H., he was offered and drank a can of beer. He stayed at the park for about an hour and a half before being summoned away by a work-related phone call. He returned to the park about forty-five minutes later. By this point, it was late afternoon; Mr. Bisram estimated that it was about 5:00 p.m.

[61] Upon his return, Mr. Bisram testified that he went to the mall and purchased some food. He then made his way towards the park, but as he did so he noticed that there were some police cars parked on a nearby street and it appeared that all the park regulars were receiving tickets from the police for drinking in public. He then met up again with S.H. They sat down and shared the food Mr. Bisram had bought. While doing so, Mr. Bisram testified that he saw a friend who handed him another beer. After that, they made their way back to the park, and sat down in a spot behind the beer store.

[62] Once back in the park, they shared the beer that Mr. Bisram's friend had given him. There was some discussion about buying more beer, but Mr. Bisram did not have any money. At this point, Mr. Bisram testified that another friend happened by and gave him yet another beer that he also shared with S.H.

[63] Mr. Bisram testified that at a certain point S.H. got up and went to urinate in some bushes in the park. At the very same time, he decided to do the same against a nearby tree. According to his evidence, while he was still urinating S.H. came up from behind him, reached around him while holding a tissue, and rubbed the tissue on his penis. Mr. Bisram described this as a prank that occasioned a laugh between them. During cross-examination, Mr. Bisram testified that S.H. engaged in hijinks of this nature all the time. Although she had never snuck up on him and wiped a tissue on his penis before he maintained that she had previously done this very thing to some of their mutual friends.

[64] Mr. Bisram was questioned during cross-examination regarding what happened to the tissue that S.H. used to wipe his penis. He testified that it was left on the grass, along with a couple of beer cans, in close proximity to where he and S.H. were sleeping. When asked why it was not observed by any of the police officers who attended the scene, Mr. Bisram testified that it must have been blown away by the wind. He denied the suggestion that there was no tissue because S.H. never actually wiped his penis as he claimed.

[65] After the penis wiping incident, Mr. Bisram testified that S.H. reported that she was going to take a nap before she proceeded to lay down and do just that. It was then that he first noticed that her tights were down. At this point, he did not attempt to alert S.H. about this. When asked during cross-examination why he had not, Mr. Bisram testified that S.H. was fairly drunk and fell asleep before he had a chance to say anything to her about her state of undress. He testified during direct-examination that he was feeling "a little bit tipsy" himself, so he decided to lie down next to her and also take a nap. In cross-examination, Mr. Bisram acknowledged hugging S.H. as they lay down, placing his arm over her as she was lying on her back. According to Mr. Bisram, it was an ordinary occurrence for him and S.H. to sleep together in the park; he estimated that they had done so on at least twenty-five prior occasions.

[66] During cross-examination, Mr. Bisram was somewhat defensive about his alcohol consumption. Although he initially testified to drinking only three beers that day, when pressed in cross-examination and challenged with the transcript of his police interview, he reluctantly acknowledged telling Constable Kimlin that he had "a lot" to drink that day. At another point during cross-examination, he seemed to acknowledge drinking as many as 8 or 9 beers that day.

[67] Mr. Bisram testified that he was eventually awakened by the noise of a small engine. It was a motorized bicycle passing by along a nearby path in the park. At this point, Mr. Bisram testified that he again noticed the situation with S.H.'s clothing and decided to try and wake her up. He did so by hitting her face and shaking her head, but she would not wake up. As he was doing so, he testified that he heard a voice saying, "what are you doing, what happened?" At that point, he testified that he looked up and saw three security guards about 20 feet away, on the other side of the fence. He responded to them by saying: "she's drunk, she's sleeping".

[68] Mr. Bisram testified that as the security guards were walking around the fence, he was trying to pull up S.H.'s clothes. He explained doing this because S.H. was his friend and he felt it would be inappropriate for other people to see her with her pants down. When the security guards came closer, Jason Schrank asked him what happened, and he responded that "she is drunk and she is sleeping". At that point, Mr. Schrank told him not to touch her anymore. Mr. Schrank tried to revive S.H., but when he could not do so he called 911 and eventually the fire department arrived. Mr. Bisram denied saying to the security guards anything like "It's natural" or "It's arranged".

[69] Mr. Bisram denied being on top of S.H. at any point. He testified that he was seated on her right side as he endeavoured to pull up her pants. He maintained that he did not touch S.H.'s private areas in any way. He categorically denied either having sex with her or attempting to have sex with her on the date in question or on any prior occasion. During examination-in-chief, when specifically asked by his lawyer whether he had even tried to kiss S.H., he answered with an unequivocal "no". He repeated this answer when the topic was revisited in cross-examination. However, when confronted with the transcript of the interview conducted by Constable Kimlin on the night of his arrest, Mr. Bisram reluctantly admitted to telling the officer that he had kissed S.H. while she slept in the park while her pants were down. During his evidence, however, he denied any current recollection of the kiss.

[70] During cross-examination, Mr. Bisram's evidence as to whether or not he had made sexual advances towards S.H. in the past changed a number of times. Although he ultimately insisted that he had not made any such advances, he reluctantly acknowledged being rejected by S.H. on more than one occasion. He admitted S.H. telling him that he was "not her type" and that "it was not going to happen". But when pressed for details regarding the context of such comments, he maintained that he did not remember.

[71] During cross-examination, Mr. Bisram denied the suggestion that at the time of his arrest he was lonely and sexually deprived. Although he acknowledged that when Constable Kimlin interrogated him, he told the officer that he had not had sex in a year and a half. He maintained that he lied because he felt like the details of his sex life were his own private business. During cross-examination, Mr. Bisram testified that he had actually had sex just a week and a half prior to his arrest.

[72] When asked during cross-examination whether his genitals had ever made contact with S.H.'s genitals, Mr. Bisram said "no". However, on the night of his arrest when he was interrogated by Constable Kimlin and specifically asked whether his penis had ever been inside S.H.'s vagina, Mr. Bisram had suggested that his penis might have come into contact with her vagina a couple of nights before. He told Constable Kimlin that this might have happened because they would sleep together in the park. During cross-examination he elaborated on this, explaining that he would sometimes sleep with his penis hanging out and S.H. would be sleeping close by with her vagina exposed with the two of them sleeping beneath the same blanket. In addition, during cross-examination he testified that there also could have been some incidental contact between their genitals when S.H. would go to the washroom and then sit on him afterwards. He suggested that this was something S.H. would occasionally do as a form of horseplay.

[73] A similar exchange took place when Mr. Bisram was interrogated on the night of his arrest. When interviewed by Constable Kimlin he was initially asked the question: "if there is any reason why they would find her fluids on you?", a question to which he responded, "no". However, when Constable Kimlin reminded Mr. Bisram that his penis had been swabbed and asked him the question again, his answer changed to: "Maybe because we fool around in the park, all day, every day." It is noteworthy that at another point during this interview Mr. Bisram also shared the anecdote regarding S.H. wiping a tissue on his penis as he was urinating. Mr. Bisram's interview with Constable Kimlin began 45 minutes after the penis swabs were collected. One of the officers involved in their collection had specifically told Mr. Bisram that "if you didn't do it, there's gonna be nothing on the swab … so you don't have to worry" and also cautioned him that, "if you did do it, the swab is going to show something and you can explain what that is and why it is and how it go there."

[74] During cross-examination, Mr. Bisram readily admitted his criminal record. It includes prior convictions for impaired driving, assault with a weapon, aggravated assault and breaching a probation order. The last two convictions were entered on May 6, 2013. Mr. Bisram acknowledged that for these last two offences he was placed on probation for twelve months and that the order contained the statutorily prescribed terms, including a condition that he keep the peace and be of good behaviour. He agreed that the order was therefore in effect on July 23, 2013 and that he was aware of its terms.

III. Law, Analysis and Findings

[75] The Crown is required to prove the charges against Mr. Bisram beyond a reasonable doubt. As already noted, if the charge of sexual assault is proven, it necessarily follows that Mr. Bisram would also be guilty of breaching his probation order that was in effect at the time. A person who commits a serious criminal offence like sexual assault quite obviously fails to keep the peace and be of good behaviour.

[76] The essential elements of the crime of sexual assault are well established. The actus reus of the offence consists of three elements: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. With respect to the final element of the actus reus of sexual assault, the absence of consent, Parliament has directed that "no consent is obtained" where "the complainant is incapable of consenting to the activity." The Supreme Court of Canada has made it clear that a person is incapable of consenting if they are unconscious, even if that person expressed their consent in advance.

[77] The mens rea of sexual assault consists of two elements: (1) an intention to touch; and (2) knowledge of, or being reckless or wilfully blind toward a lack of consent on the part of the person touched. Sexual assault is a crime of general intent. As a result, it is not a defence for an accused to fail to appreciate that a complainant is not consenting because of self-induced intoxication.

[78] In this case, the uncontroverted evidence overwhelmingly establishes that at the time of the alleged assault, S.H. was unconscious. Although there was some discussion during submissions as to whether S.H. was merely sleeping or had passed out drunk, from the standpoint of capacity to consent this is a distinction without a difference. In the end, this is not a case that turns on consent. Rather, given the evidence and the positions of the parties, the key question is whether or not the Crown has established beyond a reasonable doubt that Mr. Bisram had, or attempted to have, sexual intercourse with S.H. on the afternoon of July 23, 2013.

[79] Recognizing the importance of never shifting the burden of proof to an accused person, given that Mr. Bisram testified in his own defence, I propose to follow the analytical framework suggested by the Supreme Court of Canada in R. v. W.(D.). As a result, I will begin by analyzing Mr. Bisram's evidence. In accordance with W.(D.), if I believe his evidence, I am required to return a verdict of not guilty. Alternatively, even if I do not believe Mr. Bisram, I must still consider whether his evidence leaves me with a reasonable doubt. If it does, then I must obviously find him not guilty. Further, even if I entirely reject Mr. Bisram's evidence and it does not leave me with a reasonable doubt, I must still go on to consider whether or not on the whole of the evidence that I do accept, that I am satisfied of his guilt beyond a reasonable doubt.

[80] Before assessing Mr. Bisram's evidence, a cautionary note is in order. The evidence disclosed that Mr. Bisram has a criminal record. That record was the subject matter of cross-examination because it is ostensibly relevant to Mr. Bisram's credibility. His most recent conviction was also the subject of evidence given that the sentence imposed included a probation order, which he faces a charge of breaching in this proceeding. Although his criminal record undoubtedly reflects on Mr. Bisram's character and therefore, by implication, his credibility, given that none of his prior convictions relate to crimes of dishonesty, I place very little weight on it in assessing his evidence.

[81] In addition, I recognize that having heard evidence regarding Mr. Bisram's prior criminal convictions, I am not to use this evidence to engage in a prohibited form of reasoning. For example, it would constitute a serious error to reason that because Mr. Bisram is of previously bad character, or has prior criminal convictions, that he is the type of person who would commit the crime charged. Nor am I permitted to use this evidence to blacken Mr. Bisram's character and conclude that he is a bad person deserving of punishment, and to thereby lessen the Crown's burden on this basis.

[82] With all of that in mind, I turn to a consideration of Mr. Bisram's evidence. He testified that he did not insert or attempt to insert his penis into S.H.'s vagina while she lay unconscious. He maintained that beyond an innocent kiss, his only physical contact with S.H. on the date in question was incidental to his efforts to wake her up and pull up her pants. He insisted that he did all of this in order to protect her privacy, as he was concerned about her being seen by the approaching witnesses in her state of undress. I watched and listened carefully to Mr. Bisram as he testified. Much more importantly, I have carefully reviewed and considered the substance of his evidence. In the end, I do not believe him, nor does his evidence leave me in a state of reasonable doubt. Let me briefly explain why.

[83] To begin, there were a number of material inconsistencies between Mr. Bisram's evidence during his examination-in-chief, as compared to testimony he gave during cross-examination and statements he made to police when he was interviewed at the time of his arrest. So, for example, when asked directly during his evidence-in-chief whether he had tried to kiss S.H., he clearly responded, "no". He repeated this answer when the topic was first canvassed during cross-examination. However, when confronted with the transcript of his police interview, he acknowledged telling Constable Kimlin that he had kissed S.H., but insisted that he did not remember the kiss. This same troubling pattern revealed itself in relation to a number of topics as Mr. Bisram testified, including on whether or not his genitals had ever made contact with S.H.'s genitals, whether he had ever made sexual advances towards S.H. in the past, how much alcohol he had consumed on the day in question and the last time he had sex prior to July 23, 2013.

[84] I also found Mr. Bisram's account to be internally inconsistent. On his evidence, his motives were almost chivalrous, endeavouring to wake his friend and to pull up her pants as the witnesses approached out of a concern for her privacy. The difficulty with this claim is that he acknowledged noticing that S.H. had not pulled up her pants after she had urinated and before she fell asleep, yet he did nothing at that time to alert her to this fact or to try to assist her in advance of the witnesses approaching. This was so, even though she was lying out in the open in a public park. Frankly, this makes no sense. If Mr. Bisram motivation truly was to protect his friend, he would have immediately alerted her to the fact that her pants were down when he first noticed this before she laid down to take a nap.

[85] Finally, what I find most fatal to Mr. Bisram's credibility is the rather tortured and simply incredible explanations that he provided for how S.H.'s DNA came to be located on his penis. This pattern of fantastic explanations shifted with ever increasing desperation during his police interview, from inadvertent genital contact while napping, to S.H. sitting on Mr. Bisram's lap after urinating, to the claim that he repeated in his evidence that while he was urinating, S.H. rather inexplicably decided to wipe his penis with a tissue that she had just used to wipe her vaginal area. I simply cannot accept defence counsel's argument that S.H.'s status as a homeless alcoholic might have led her to behave in such an erratic, nonsensical and bizarre manner. Nor does the suggestion that such conduct was a form of horseplay seem remotely possible. Quite simply, it is inconceivable to me that S.H. would find it humorous to rub her vaginal secretions onto a friend's penis as he urinated and, in the process; end up with urine on her hand. No one would possibly consider this amusing.

[86] For all of these reasons, I have rejected Mr. Bisram's evidence. I simply do not believe him, nor does his evidence leave me in a state of reasonable doubt. With Mr. Bisram's evidence pushed off the evidentiary scales, I must still consider whether or not the remaining evidence serves to establish his guilt beyond a reasonable doubt. As I mentioned before, the evidence against Mr. Bisram is circumstantial. Therefore, in order to return a guilty verdict I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that Mr. Bisram is guilty.

[87] The Crown's case depends on the combination of the following: what the eyewitnesses claimed to have seen; what they claimed to have heard; and the DNA evidence. Although the DNA evidence is undoubtedly powerful, given the death of the complainant, without the eyewitnesses, the Crown's case would likely fall short. It is therefore important to carefully consider the evidence of the four eyewitnesses. Defence counsel submits that I should approach their evidence with caution. Although Ms. Jalali does not challenge the credibility of any of these witnesses, she argues that there is a danger that information shared between them has served to undermine the independence of their respective accounts. She submits that I should have a real doubt regarding the reliability of their evidence. She argues that there is a danger that the first security officer, Adam Slade, who could see very little as he passed by from a moving car, at a distance, looking down a slope, mistakenly thought that he saw something sinister and then planted a seed that germinated in the minds of the other witnesses and caused them to assume the worst in what they saw.

[88] I have carefully reviewed and closely considered the evidence of Adam Slade, Amer De Vera, Brandon Ramkhalawan, and Jason Schrank. With respect to Mr. De Vera, Mr. Ramkhalwan, and Mr. Schrank, there were some slight differences between them. For example, Mr. De Vera and Mr. Ramkhalwan both testified that when they approached, they could see that S.H.'s underwear was positioned around the middle of her thighs. On the other hand, Mr. Schrank testified that her tights and underwear were down around her ankles. There were also some differences in terms of what they remembered Mr. Bisram saying when he was accused of having sex with S.H. In the end, however, I am not troubled by these slight differences. This struck me as the sort of variation one would expect from different witnesses observing a particular event from somewhat different vantage points and retelling it from different perspectives.

[89] None of these witnesses had any apparent motive to exaggerate what they had observed. Each was very careful not to overstate their evidence. For example, despite what they reported, none of these witnesses suggested that they could see Mr. Bisram actually having intercourse with S.H. Both Mr. Slade and Mr. Schrank acknowledged that they could not see the lower half of the couple's bodies because they were positioned on a slight downward incline. Nor did any of the witnesses actually claim that they saw Mr. Bisram's genitals. Rather, each readily acknowledged the limitations of their observations.

[90] In my view, a careful review of the eyewitness' evidence strongly supports the conclusion that Mr. BIsram was having intercourse with S.H. while she was unconscious. In that regard, it is noteworthy that when Mr. Slade first saw Mr. Bisram, he observed him overtop S.H. in a "push-up" position, with his hands planted on the ground, with one hand on each side of her, at shoulder level, and with his face very close to her face. At the same time, he noted that Mr. Bisram appeared to be looking around as though he was concerned about being seen. These observations are entirely consistent with Mr. Bisram having intercourse with S.H. while she lay unconscious.

[91] What the other witnesses observed when they arrived at the scene some 3 to 5 minutes later serves to fortify that conclusion. Again, despite the passage of several minutes, when they first saw Mr. Bisram, all three witnesses (Mr. De Vera, Mr. Ramkhalawan and Mr. Schrank) each reported that Mr. Bisram was positioned "over" or "on top" of S.H. Mr. Schrank, who has seventeen years of experience as a security guard, gave the most detailed evidence. He testified that when they approached, he saw Mr. Bisram lying on top of S.H., his face was only about a foot to a foot and a half away from her face, his hands were positioned on each side of S.H.'s shoulders, his chest was slightly elevated above her chest, and he appeared to be motionless.

[92] In addition, Mr. De Vera, Mr. Ramkhalawan, and Mr. Schrank each testified about the positioning of Mr. Bisram's blue jeans. Mr. De Vera described his jeans as being unbuttoned, his belt being loose, and the waist being down by the middle of his thighs. Mr. Ramkhalawan had a similar recollection, remarking that the jeans were positioned beneath Mr. Bisram's genitals. According to Mr. Schrank, Mr. Bisram's jeans were actually open. He testified that when he asked Mr. Bisram why his pants were undone, he responded, "Don't worry about it. Don't worry about it."

[93] In addition to the witnesses' observations, Mr. Bisram's comments when he is specifically asked whether he was having sex with S.H. are, when taken together, extremely incriminating. Had Mr. Bisram simply been trying to help pull up S.H.'s pants as he claimed, when he was specifically asked whether he was trying to have sex with S.H. one would have expected him to vehemently deny the suggestion and explain that he was just helping her pull up her pants. Instead, his reported comments overheard by the three witnesses, to the effect that "It was natural," "It's fine," "It was arranged" and "It was free," are, in all of the circumstances, tantamount to a confession.

[94] The above evidence must also be considered along with the DNA evidence. To be sure, the absence of Mr. Bisram's DNA on either the external genitalia or internal vaginal swabs is reason for pause. Nevertheless, I think there is a rather simple explanation for this that is entirely consistent with both the testimony of the eyewitnesses and the biologist from the Centre of Forensic Sciences. In short, this evidence is explained by Mr. Bisram not ejaculating. This completely accords with Mr. Bisram being interrupted by the arrival of the eyewitnesses, which is what their testimony appears to suggest. Finally, the evidence conclusively establishes that S.H.'s DNA was present on Mr. Bisram's penis on the night of his arrest.

[95] Finally, it deserves mentioning that I have also considered S.H.'s reaction when she saw Mr. Bisram being arrested. It will be recalled that this upset her, and that she responded by telling police that Mr. Bisram was her friend and insisting that he not be arrested. In the end, this evidence was of limited probative value with respect to the allegations. Given that S.H. was unconscious at the time of the assault and would therefore not have appreciated what had happened to her, this evidence is really only relevant as to the nature of their relationship more generally and not especially probative of whether or not the accused sexually assaulted her on that day.

[96] In my view, the combined effect of what the eyewitnesses observed in terms of Mr. Bisram being on top of S.H., the fact that he was so positioned for at least 3 to 5 minutes, S.H's state of undress, Mr. Bisram's lowered pants, his incriminating responses when accused of having sex with S.H., and the presence of S.H's DNA on Mr. Bisram's penis later that night, is consistent with only one inescapable conclusion; the Crown has established beyond any reasonable doubt that on July 23, 2013 Mr. Bisram had intercourse with S.H. while she was unconscious and therefore incapable of consenting. Given that finding, the Crown has discharged its burden of establishing each and every element of both the actus reus and mens rea for the offence of sexual assault beyond any reasonable doubt.

IV. Conclusion

[97] For these reasons, I find the accused guilty of both charges. In short, I am satisfied beyond a reasonable doubt that he sexually assaulted S.H. on July 23, 2013, and that by doing so he breached the term of the probation order to which he was subject at the time that required him to keep the peace and be of good behaviour.

Released: November 28, 2014

Justice James Stribopoulos