B.C.’s Court of Appeal has rejected the appeal of a man convicted of breaking and entering and sexual assault.
After an August 2023 trial, B.C. Supreme Court Justice Nitya Iyer found Christopher Sharafi guilty of the charges related to the same incident.
In her Oct. 23, 2023 decision, Iyer said there was no dispute that in the early morning hours of Dec. 2, 2001, someone broke into the complainant’s Richmond home and sexually assaulted her.
There was also no dispute that Sharafi’s DNA was found on a swab taken from the complainant when she was examined after the assault, the judge said.
However, Sharafi said he had consensual sex with the complainant some hours before the assault.
“The Crown admits that the presence of Mr. Sharafi’s DNA does not discount the possibility that the complainant was sexually assaulted by someone else,” Iyer said.
Writing for the unanimous three-judge panel, appeal court Justice Peter Willcock said Iyer properly employed a common-sense approach to the assessment of the reliability and credibility of the testimony of the witnesses.
As such, he found no merit to the grounds of appeal made and dismissed the case.
The events
Iyer said she was convinced beyond a reasonable doubt of Sharafi's guilt, saying his evidence lacked credibility.
Iyer said the woman, A.B. (Lodestar Media has changed her initials to protect her identity), was hosting a bachelorette party to celebrate the upcoming wedding of a close friend. After meeting at her home, the group travelled to a downtown Vancouver restaurant and then a few of them moved on to the Dufferin Hotel bar where they stayed until closing time.
The events happened on Dec. 2, 2001, Iyer said in her May 30 sentencing decision.
After arriving home, A.B. went to bed and fell asleep quickly.
She awoke to find a strange man standing by her bed. There was a struggle and he punched her and pulled her off the bed, Iyer wrote. He then sexually assaulted her, the court heard. He stayed for a bit following the sexual assault and then left.
A.B. ran to a convenience store and called police. She was taken to hospital where a DNA swab was taken.
“She was terrified, as evidenced by her running out of her home barefoot and partly dressed on a winter night,” Iyer said before passing sentence. “Her physical injuries were painful. She did not live in her home again, had trouble being alone, and took a three-month disability leave from her job.”
The ruling noted A.B. had small children at the time. It said she had not dealt with the psychological impact of the offences and found the trial re‑traumatizing.
The offences
Police said the man entered through a window with a broken interior latch in the laundry room.
In 2015, while Sharafi was incarcerated on unrelated matters, police obtained an order to take a sample of his DNA. The DNA matched A.B.'s sample and Sharafi was charged in 2020.
Iyer said the central issue in the case was whether or not A.B. met Sharafi at the Dufferin Hotel and had consensual sex.
He testified he was visiting friends in Vancouver’s West End and met A.B. at the hotel. He said he started chatting with her at the bar. He said she allowed him to buy her a drink after which they went outside.
He testified they soon went to his van and had sex.
“He said that when she saw he had not worn a condom, she became angry and said, ‘How do I know you’re not HIV+?’ He said that he responded, ‘Oh, I’m sorry, I am HIV+,’ even though that was not true. He said that she ‘lost it.’”
Iyer said with the passage of time, one would expect Sharafi’s memory to be poor.
“Instead, his recollection of certain details was strikingly clear. This undermines his credibility,” she said, calling some of his testimony evasive.
Moreover, Iyer said, if Sharafi’s account were credible, one of A.B.’s friends would have noticed her absence from the bar.
“These fundamental flaws, together with Mr. Sharafi’s lack of credibility cause me to reject his explanation of how his DNA ended up in (A.B.)’s body that night.”
The appeal
Sharafi contended Iyer erred in her analysis of his credibility and that "two errors, when considered collectively, demonstrated uneven scrutiny of the evidence."
“First, he says the judge misapprehended the evidence of his memory and failed to give weight to evidence that he had specific knowledge about the complainant which confirmed his version of events,” Willcock said.
“Second, he says the trial judge forgave inconsistencies in Crown evidence due to the passage of time but used the same kind and quality of inconsistency to reject (Sharafi’s) evidence,” Willcock said.
