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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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

Ontario Court of Justice

Date: October 30, 2017

Court File No.: Halton 1663/15

Between:

Her Majesty the Queen

— and —

Serage Arbad

Before: Justice Lesley M. Baldwin

Heard on: June 1, September 8, September 14, 2016 and July 31, 2017

Reasons for Judgment released on: October 30, 2017

Counsel:

• L. Jago — counsel for the Crown
• B. Neil — counsel for the accused Serage Arbad

Judgment

BALDWIN J.:

Charges

[1] Serage Arbad stands charged that, on or about the 2nd day of May, 2015, at the City of Burlington, he did break and enter a dwelling house, situated at […] Avenue, unit #67, and did therein commit a sexual assault, contrary to s. 348(1)(b) of the Criminal Code.

[2] He stands further charged that, on or about the 2nd day of May, 2015, at the City of Burlington, he did break and enter a dwelling house situated at […] Avenue, unit #39, and did therein commit a sexual assault contrary to s. 348(1)(b) of the Criminal Code.

Issue

[3] Date and jurisdiction were admitted at the outset of trial. The issue in this case is identity.

Evidence Overview

[4] During the course of this trial, the Court heard evidence from J.C. who lives at […] Avenue, Unit #67; C.D. and her husband B.D. who live at […] Avenue, unit #36; Serage Arbad; and Officer Ryan Lahie in reply.

[5] Nineteen exhibits were filed with the Court including an Agreed statement of Fact filed as Exhibit #1 which includes (1) that police conducted a dog track which ended at unit #31 (where two suspects were located and briefly detained) which was inconclusive; (2) that a search warrant was executed on Mr. Arbad's residence and no items were found related to items taken in the break-ins; (3) that Jacob Moynan who resides at unit #31 and Liam Nyland (who was at that residence but was of no fixed address at the time) were originally detained in relation to these matters.

[6] Exhibit #16 states that a package of Accord cigarettes and a used cigarette butt were found by police in the backyard of Unit #37.

[7] Exhibits #10(a) and (b), are Reports from the CFS, which analyzed the discarded cigarette butt with a DNA sample obtained from another discarded cigarette butt smoked by Serage Arbad that concluded that the discarded butt referred to above cannot be excluded, at 15 STR loci, as the source of the profile obtained for Serage Arbad with a Random Probability Match[1] of 1 in 1.0 quintillion.

[8] Exhibit #18 is the Statement of Officer Scott Heyerman of the HRPS. It states as follows:

I, Scott HEYERMAN, am a Police Officer with the Halton Regional Police Service and have been so employed since September 2003. I hold the rank of Detective Constable and am presently assigned to the Burlington Street Crime Unit where my primary duties are to investigate various drug and criminal offences.

On May 2nd 2017 at 4:44am I was dispatched to […] Avenue #67 in the City of Burlington. It was reported that a female complainant was sleeping in her residence and woke up to her neighbour kissing her leg. The complainant yelled at him to get out of her house and the male said he was looking for his girlfriend, "X." and then walked out of the back door.

At 4:58 am I arrived on scene and other officers who were already on scene had a male in custody in front of unit #31.

As I was walking up to the scene through the complex, a woman identified herself as the complainant and told me that the person under arrest wasn't the same person who was in her house. She informed me the male in her house lived with his mother two doors down from unit #31 and that the mother drove a green Hyundai. The complainant advised the male in her house was wearing black pants with a white stripe on the side and a black Element hooded sweatshirt.

I walked to unit #33 and found a tanned Hyundai in the driveway with Ontario licence plate 'AVMD909'. A PARIS query of the vehicle revealed that the Hyundai was registered to Rita ARBAD of that address.

Officer STEWART advised me that the male from unit #33 was outside in front of unit #33. I came over and saw the male with no shirt on wearing black pants with white stripes down the sides.

When Officer LAHIE placed the male under arrest, the female who identified herself as the complainant walked down the side walk and told me that the male under arrest was definitely the suspect

After the male suspect was transported away l was tasked with interviewing another complainant, C.D. of unit #39. She stated a male traced a finger on her back and she woke up. The male she saw was awake and left the house out of the rear door. C.D. woke her husband B.D., who went outside and saw a male running towards units 29-36 wearing a black hoodie and black pants with a stripe down the side.

This concludes my involvement in this matter.

[9] Exhibit #19 is a Supplemental Occurrence Report prepared by Officers M. Urie and A. Syring of the HRPS. It relates to the investigation of another suspect named Liam Nyland later during the day of May 2nd, 2015. The Report of this investigation was prepared on May 3, 2015. This Report was filed on consent at the end of all the evidence and was not put to any of the witnesses for comment.

[10] Exhibit #17 are the pants the accused was wearing when arrested for these offences as testified to by Officer Lahie in reply evidence called by the Crown. They are identified as being a pair of black, white and blue Adidas pants. They were not shown to any of the Crown witnesses or the accused when he was testifying.

Count #1 – The Testimony of J.C.

[11] She was asleep in the upstairs bedroom of her unit. Sometime in the middle of the night, she felt someone kiss her on her leg near her vagina which is not a place where one of her children would kiss her. It woke her up.

[12] She next noticed somebody coming out of her en suite bathroom. The light was on in the bathroom. She recognized the person and pointed to that person as being Mr. Arbad before the Court (who resides at Unit #33).

[13] She said that she had seen this person in the complex before. She did not know his name or what unit he lived in.

[14] She called out to the person and the only response she got was "I'm looking for my girlfriend X."

[15] Ms. J.C. testified that the person was in her house for less than 5 minutes. The male person seemed "kind of out of it" to her. He walked slowly down the stairs, through the house and left by the back door. He turned to face her before he left out the backdoor and she could see his face again.

[16] Initially she thought it might be the son of Rakiya (Jacob Moynan) who resides at Unit 31.

[17] The person in her house was dressed all in black. There were no bright colours on his clothes.

[18] When police arrived and originally detained Moynan outside Unit #31, Ms. J.C. told the police that they had the wrong person. Although Moynan had long hair and the person in her house had short hair, she agreed that they looked similar. (No description was given of Nyland's hair. It is not even captured in the subsequent investigation of him later that day per Exhibit #19.)

[19] Ms. J.C. identified Mr. Arbad as the person who had been in her house. He was standing on the front porch of his Unit #33 at the time watching what was going on outside.

[20] Ms. J.C. testified that she recognized Mr. Arbad from before from the food share. She said she had never had any negative interactions with him. Sometimes she would park her school bus near his Unit and he would be sitting on his front porch and they would say 'hi' to each other.

[21] Ms. J.C. was not shown the pants that Mr. Arbad was wearing during her testimony as they were entered in evidence in Crown reply. Nor were they shown to Mr. Arbad. Exhibit #17 is a pair of black sweatpants with 3 white stripes down the side to the knee that goes right around the leg and then a blue strip from there down. There is also a white Adidas emblem on the pants on the upper left side.

[22] Ms. J.C. was stunned by what had happened. She called the non-emergency police number about 20 minutes later.

[23] She looked out her window and saw the same person turning front door knobs on other units in the complex. She again described the person as wearing all black with a black hoodie.

[24] She saw B.D. from the complex running after the man and she called out to B.D. "he was just in my unit too".

[25] When the police arrived at her unit, they seized a Coors Light bag with some canned beer in it that had been left behind by the person who had been in her house.

[26] Later that day about 10 to 20 people from the Unit tried to convince her that she had identified the wrong man.

[27] Ms. J.C. remained firm in her identification of Mr. Arbad. She testified that "I know who was in my house and it was him. And I know because I've seen him before and I'm sure it was him."

Count #2: Testimony of C.D. and B.D.

[28] C.D. was sleeping upstairs in her bed and her husband B.D. was sleeping on the couch on the main floor not far from the back glass doors.

[29] The Crown submits that Mr. Arbad left the C. Unit and entered the D. Unit through the back doors.

[30] C.D. awoke when she felt a finger sliding up her back. She at first did not see anyone. Then she saw some crouched by the side of her bed by the window on the floor.

[31] The person stood up, mumbled something, and left. She believed from the mumbling that it was a male voice. The person was dressed all in black. She could hear him go down the stairs and leave by the back door.

[32] She woke her husband up who had slept through the event.

[33] Eventually B.D. noticed that a light was on over the stove and some cupboards had been left open.

[34] The D.'s noticed that his cigarette lighter was missing from the coffee table in front of where he had been sleeping. A bottle containing 18 percocet pills was also missing from that table.

[35] C.D. noticed that 2 packages of Accord cigarettes had been taken from her purse.

[36] B.D. went out to the complex to chase the man who had been in their Unit. He saw a male with black pants and white stripes go into a building on the side opposite theirs into a set of townhouses.

[37] As I have noted before the pants entered in Crown reply evidence that the accused was wearing upon his arrest were not put to Mr. B.D. for identification.

[38] The pants found later that day in the bag which Mr. Nyland claimed were his per Exhibit #19 (black adidas pants) was not put to Mr. B.D. for identification. In that Exhibit it states: "A male named B. who had chased a suspect came over and said that the pants on the ground were the same as the ones worn by the suspect." I also note that Exhibit #19 refers to this bag containing the pants was found during the day behind Unit #31. Although the contents of the bag were seized in this investigation, they were never entered as Exhibits at this trial.

[39] Mr. and Ms. D. have never been able to identify who was in their house.

[40] The Crown relies upon the DNA found on the discarded cigarette butt 2 Units away from the D.'s Unit, found with a package of Accord cigarettes, as proof of the connection between Ms. J.C.'s identification and the D. break-in.

Testimony of Serage Arbad

[41] He lived with his mother and sister at Unit 33.

[42] On the evening of May 1st he was visiting his neighbor Jacob Moynan who lives in Unit 31.

[43] He went over there at 6 or 7 p.m. and hung out playing video games in the basement. Some other people were there including Trent and Liam. He drank a couple of beers.

[44] In cross-examination, he changed that answer and said he had maybe four beers and a shot of gin. He denied being intoxicated but felt he had consumed enough to go home and sleep. He denied consuming any drugs.

[45] He stayed until approximately 11:00 p.m. and then he went home to sleep. He slept on the couch in the living room. He changed out of jeans that he had been wearing into sweatpants.

[46] In cross-examination he said that the pants were black with some red on them. They did not have white stripes.

[47] I note again that the pants marked in Crown reply evidence was not shown to the accused for comment. Nor were the black sweatpants found in the bag said to belong to Mr. Nyland per Exhibit #19 found later that day put to the accused. In fact, these pants were never put into evidence.

[48] He woke up when he heard loud banging. He went outside and saw that the police were at Unit #31.

[49] Mr. Arbad denied being in Ms. J.C.'s or the D's Units. He testified that he has never been in those Units. He denied having any prior knowledge of Ms. J.C. He knew of her and perhaps had exchanged hellos with her. He was nice to everyone in the complex.

[50] He testified that he is an opportunistic smoker and will smoke any brand of cigarettes that his friends give him or is cheap to buy.

[51] He did walk around the back of the Units when he lived there.

Identification Evidence Analysis

[52] I have applied the 3 pronged test set out in R. v. WD in assessing the credibility and reliability of the evidence called at this trial.

[53] I have also cautioned myself as to the potential frailties of identification evidence when prior familiarity has been minimal and the opportunity to observe the suspect has been brief.

[54] The Crown's case depends largely on the identification evidence of Ms. J.C. and the discarded cigarette butt with the accused's DNA found 2 Units down from the D.'s Unit.

[55] There was no evidence as to when this cigarette butt would have been smoked.

[56] The accused testified that he was an occasional smoker and he did walk behind the Units when he lived there. I have no reason to reject his evidence on that point.

[57] According to the testimony of J.C., the man who broke into her Unit said "I'm looking for my girlfriend X".

[58] When police investigated Mr. Nyland later that same day, he said that he had been at Unit 31 the day and evening before. His girlfriend X. had attended the complex and broken up with him. He said that she is 16 years old and goes to school in Toronto. He provided her full name as X.Y.

[59] "Liam Nyland was mentioned as a known associate of Jacob Moynan and was a suspect in a previous 911 at […] Avene Occ 15-63336. A previous 14-31199 (break and enter) showed that Nyland had a girlfriend named X.Y."

[60] "Description of Nyland during contact with D. Cst. Urie: male white, thin build, few days stubble on his face, wearing a black toque with white and green logo, green/black plaid double up shirt, thin nylon black jacket overtop, black nylon basketball shorts below the knee with white trim at the bottom and a white stripe on sides, high top running shoes."

[61] I note that no description of his hair was made; not the colour or the length.

[62] "Jacob Moynan and Liam Nyland are friends, both are also friends with Jahmeal Smith…Moynan and Smith were charged in the previous break and enter at […] which Nyland was also listed as a suspect in."

[63] Exhibit #19 seriously erodes the case for the Crown. There is more evidence pointing to Liam Nyland as the perpetrator of these offences than there is to Serage Arbad.

[64] Accordingly, the Crown has not met their onus of proof, which is proof beyond a reasonable doubt.

Decision

[65] Serage Arbad is found not guilty on both counts.

Released: October 30, 2017

Signed: Justice Lesley M. Baldwin

[1] The Random Probability is an estimation of the probability that a randomly selected individual unrelated to the person in question would coincidentally share the observed DNA profile.