Warning: This article contains details that may be upsetting to some readers.
A Coquitlam man accused of exposing himself in front of a child near Maple Creek School will be allowed to appeal, following Tuesday’s B.C. Supreme Court judgment.
The court’s initial verdict was “unreasonable,” and “not supported by the evidence,” wrote Justice Kathleen Ker, explaining her decision to quash the conviction connected to the 2019 flashing.
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On October 28, 2019, two parents were running at the oval track near the Maple Creek School while their children – a 12-year-old girl and a nine-year-old boy – played nearby.
The family is not named to maintain the anonymity of the children.
The daughter got ahead of her younger brother. While she was waiting for him to catch up, a man ran diagonally across the field.
The man turned around, lifted up his t-shirt and flashed her before running off in the direction of the nearby trails, according to the judgment.
The girl estimated the incident lasted between 10 and 20 seconds.
She ran back to her brother. Both children immediately went to their parents.
After telling her parents what happened, her father ran in the direction she indicated.
‘That’s the man’
The parents ran to Ozada Avenue and a nearby footpath when they saw a man walking to the path, according to the father’s testimony.
The father testified that he asked his daughter if she could still see the man.
The girl said: “That’s the man there,” the father testified.
While the mother dialed 911, the father pursued the man along the footpath leading to the Coquitlam River Trail.
The father testified that he asked his daughter again if she was sure. She said: “yes, Daddy, that’s definitely him.”
The father eventually apprehended Coquitlam resident Andrew William Dominick, holding him, according to one account, “by the scruff of his neck.”
The father testified that he grabbed the Dominick’s arm and told him: “I need to speak to you.”
The father walked him back to Ozada where Dominick and the family all waited for the police to arrive.
The girl’s account
The flasher was about two metres away from her when he exposed himself, according to the girl’s testimony.
It wasn’t the first time she’d encountered him, she said.
She told her parents: “this was the man who did it before,” referring to an incident several months earlier.
The girl told the court she didn’t talk to her father between describing what happened to her and the moment her father apprehended Dominick on the trail. She also didn’t remember her father saying anything to her during the pursuit.
However, she told the court she remembered nodding to her father after he apprehended Dominick and saying: “That’s him.”
The same man?
She described the flasher as having light skin and ligh-ish brown hair in a man bun.
Asked how she knew it was the same man, the girl said, “I’m not really sure how to explain it. . . . I knew.”
Defense counsel asked the girl – given the number of people with man buns who are about Dominick’s height with a medium build – if it was possible her father grabbed somebody who looked similar to the flasher.
The girl repeatedly said “No.”
“The man here today is the same man,” she told the court. “You can’t really forget someone’s face that easily.”
“What specifically about him was memorable?” counsel asked.
“His face,” she said.
She also testified the man’s penis was “kind of small” – about three inches – and uncircumcised.
When it was suggested that she didn’t tell the police any of this, she said the officer never asked, according to the judgment.
The girl acknowledged the track was busy at that time of day.
Could he run?
Both Dominick’s mother and brother testified that Dominick broke his knee in 2016 and couldn’t jog or walk quickly.
“Mr. Dominick can’t run, therefore he is not the perpetrator;” his defense counsel told the court.
Discussing the chase in court, the father said he: “did not think it was possible” he saw two different people during the pursuit.
In cross-examination, the father agreed he initially: “had only a partial view of his face, and . . . lost sight of the man.”
The girl also “lost visual contact with the man who exposed himself the moment she turned away” and ran to her brother, Ker wrote.
Dominick told the court he’d been planning to meet his brother that night. However, when his brother was unable to leave work early, Dominick decided to walk the Coquitlam Trail.
After doing some stretching, Dominick said he was about to head back to the trail. At that point, he heard the screech of a bike. He turned and saw the girl and her younger brother. After that, he returned to his walk, he said.
He was continuing his walk when he was” “grabbed from behind . . . and held by his neck and left bicep,” he told the court.
Risk of contamination
The original judge found the girl a “credible and reliable” witness.
Following a two-day trial, the provincial court judge found Dominick guilty of committing an indecent act and exposing himself to someone under the age of 16 in a public place. He was sentenced to 30 days in prison.
However, when the case was heard in B.C. Supreme Court last May, Dominick’s defense counsel argued the key issue isn’t honesty but reliability.
Aside from difference between the father and daughter’s testimony, there is also no evidence of the initial description the girl gave to her father, defense counsel contended.
The original judge could see “no motive” why the girl would confirm the identity of the flasher to her father.
However, Supreme Court Justice Ker differed with that conclusion.
There is a risk the girl identified Dominick, “because he was who her father had apprehended,” Ker wrote.
Ker also found there was a “significant risk of contamination of the identification,” stemming from the time the girl spent in Dominick’s presence awaiting the police.
The prosecution’s case rested entirely on the girl’s eyewitness identification, Ker wrote.
“There was not a single item of confirmatory evidence which could minimize the dangers of the eyewitness identification,” she concluded.
The girl’s description was “fairly generic,” and omitted several details, Ker wrote.
Asked if the flasher was wearing a watch, the girl said she didn’t remember. Dominick was wearing a large watch that evening, according to the judgment.
The girl also didn’t mention his facial hair or his shoes. A photograph shows Dominick sporting a goatee and wearing “distinctive yellow running shoes with black laces,” according to the judgment.
“The opportunity to observe the man who exposed himself was really only a matter of seconds, during a likely frightening and stressful situation,” Ker wrote.
Due to several factors including broken visual continuity as well as the girl waiting with the suspect for the police to arrive, Ker wrote that she could not support the verdict.
Dominick’s request for an appeal was allowed.