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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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.

Ontario Court of Justice

DATE: 2022 01 09 COURT FILE No.: Scarborough 19-35003259

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

K.F.C.

Before: Justice R. Wright

Heard on: July 11, 12, 13, 14, 15, 18, 19, 25, 26, and 27, 2022 Reasons for Judgment released on: September 1, 2022

Counsel: Melissa Mandel, counsel for the Crown John Rosen, counsel for the accused K.F.C.

R. WRIGHT J.:

[1]

Introduction

K.F.C. stands charged with two counts of sexual assault: the Crown alleged two violent instances of forced oral/vaginal assault on the complainant, Q.Z. (who was his elderly mother's caretaker) that purportedly took place in K.F.C.'s mother's apartment on June 29, 2019. K.F.C. testified in his defence and denied that any of the alleged sexual conduct occurred.

2With such differing accounts, the Crown’s case largely stands or falls on my findings of credibility and reliability on the whole of the evidence tendered at this trial. The burden of proof rests upon the Crown to satisfy me beyond a reasonable doubt that each of the essential elements of the offences alleged has been proven.

3Because K.F.C. testified, this is a case to which R. v. D.W., [1991] 1 S.C.R. 742 also applies. If I accept the evidence upon which the defence relies, then I must acquit. If I do not accept that evidence but am left in a state of reasonable doubt by it, I must also acquit. Finally, I must acquit K.F.C. of the offences charged unless satisfied, beyond a reasonable doubt, on the evidence I do accept, of K.F.C.'s guilt. As a matter of logic, it follows that if, after a consideration of all the evidence, I cannot decide whom to believe, I must find K.F.C. not guilty.

Undisputed Facts

[4]

Undisputed Facts

In June of 2019, Q.Z. was working as a live-in caregiver for K.F.C.'s elderly mother. She worked six days per week, usually having Sunday as her day off (when K.F.C. or one of his three adult siblings would take over care of their mother). She would return to work most weeks at 10 AM on Monday morning. However, sometimes an alternate day off was arranged to accommodate schedules.

5The four C. siblings took turns caring for their mother to accommodate Q.Z.'s day off. When it was K.F.C.'s turn, he would take his mother overnight to his residence. The other three siblings would spend the night at their mother's condo when it was their turn to care for her.

6The condo was located on the sixth floor of a senior's assisted living facility which had a 24-hour security desk at the entrance to the building (and security video of the vestibule). The condo was a two-bedroom condo, with one-and-a-half bathrooms. The only bathroom with a tub/shower was in the main bedroom (which was occupied by K.F.C.'s mother). The main bedroom was located adjacent to an open-concept kitchen/living room. Q.Z. had a small bedroom nearer the front door of the condo.

7Q.Z. had worked for K.F.C.'s mother and resided in the condo since May of 2018. Q.Z. spoke the same dialect as K.F.C’s mother, which was a necessity for the position and had made filling the role more challenging. K.F.C.'s older sister H.C.F. handled the employment of Q.Z. and was the person who paid her for her work or for overtime hours. On her day/night off, Q.Z. resided a short distance away with her adult daughter in a basement apartment.

8On the morning of June 29, 2019, K.F.C.'s mother had a fall while in her washroom. She fell in such a way that her walker blocked the door from being opened. Q.Z. telephoned K.F.C. just before 8 AM and he attended the building, arriving at 8:07 AM. EMS was already in the unit along with K.F.C.'s brother, G.C. EMS transported K.F.C.'s mother to Hospital; K.F.C. went with her in the ambulance, leaving his car parked at the building.

9K.F.C.'s mother was kept at the hospital until almost 1:30 PM, returning home with H.C.F. at 1:55 PM. K.F.C. did not remain at the Hospital with his mother; once both of his sisters had arrived, he accepted the offer of a ride back to the building from his brother-in-law. K.F.C. is seen re-entering his mother's building on the security video from June 29, 2019, at 11:52 AM and leaving the building at 1:42 PM.

10It is in that 1 hour and 50 minutes that K.F.C. is alleged to have sexually assaulted Q.Z.

The Evidence of Q.Z.

[11]

The Evidence of Q.Z.

Q.Z. testified that she was 65-years old and had been 62 in June of 2019. She moved to Canada from China in 2012. She had only an elementary school education. As part of her employment for K.F.C.’s mother, she would ensure meals every day, assist her to make sure she did not fall, and accompany her at all times. She would also clean and do laundry.

12On the morning of June 29, 2019, K.F.C.’s mother went to the washroom and fell. Q.Z. found her in the bathroom, blocking the door. Q.Z. pulled the security cord and building security was summoned to assist. She telephoned the sons and daughters and both K.F.C. and G.C. attended almost immediately. An ambulance was also called. Q.Z. could not recall the exact time she had found the mother. The walker was blocking the doorway. Q.Z. was eventually able to get into the washroom but unable to pick up the mother until assistance arrived.

13K.F.C.’s mother was taken to the hospital and Q.Z. remained in the condo, alone. She was watching television and cleaning up. K.F.C. called her once to give her an update, which was that not very much had happened to his mother, and then called again an hour or an hour and a half later to say that they were still waiting for another procedure, she thought an x-ray.

14Sometime after 12 PM K.F.C. re-attended at the building. He phoned up to the unit and said he wanted to come up and sit for awhile. He came up and knocked at the door. She let him in and said, “don't you have a key,” and he replied, “I did not want to scare you.” He came into the condo. He brought coffee which he put on the table and sat down.

15After he sat at the table, he said he had pain and was tired and that she should massage his shoulder. She was at the sofa. When he asked her to massage him, she said, “no I cannot massage” and he said words like I am the boss asking to have massage, I am the boss I pay you, I hired you, and I want you to massage. She testified that she then went to him and massaged him until her hands were very tired. When she got tired, she stopped, and he expressed dissatisfaction that she had “stopped already.”

16He asked her if there was a towel he could use to take a shower. She went and got a towel for him, and he entered the bathtub in the main bedroom and took off his clothes to take a shower. She handed him the towel before he entered the bathroom. After he took off all of his clothes, he suddenly came out to her in the living room and said, “come take a shower with me.” He dragged her into the bathroom and tore off her clothes. He then used a lot of soap to clean her. He forcefully pressed her down and used soap to clean her private parts and clean his parts. He dragged her there forcefully, ruthlessly, and pressed her down and used a lot of soap to wash her pubic area. He kept rubbing her and told her to hold his penis and stroke it. This occurred in the bathtub in the bathroom of the main bedroom.

17Q.Z. said she kept saying no but he was able to hold her hand to stroke or rub his penis. Her testimony was that she was forced to do it, she did not want to do it, she was scared, and he pressed her hand so hard until it hurt. K.F.C. did not say anything during this. She was crying. He just kept rubbing and scratching her hard and it was painful.

18Q.Z. testified that this ended after he had finished cleaning himself. He left the bathroom. Because he went outside of the bathroom, and he had used so much soap on her, Q.Z. rinsed herself clean in the tub. She didn't dry herself off. She was trying to get to her clothes and put her clothes on because she believed he was out in the living room, but he came back into the bathroom and ruthlessly tore off her clothes again. She had tried to grab them as quickly as possible. She was frightened. He pressed her shoulders hard and he pressed her down toward the floor. She tried to resist several times. He used his left knee to press upon her right shoulder and press her down on her knees, and then used his left hand to squeeze her mouth open, and he stuffed his penis into her mouth. She found this terrifying.

19She described his penis as very big and as hardly fitting in her mouth, but he ruthlessly stuffed it in. She could not move and felt dizzy. She could not speak but whispered in a low voice “I am dying” and could not breathe. He kept it in her mouth stroking it back and forth. This went on for quite a long time. He had to press her kneeling on the floor very hard which caused her back pain that lasted up until the time of trial. She further testified that the forceful stuffing into her mouth made her mouth “broken and bleeding,” which she did not notice until later when she spat out some saliva and noticed that there was blood.

20Because he stuffed it for so long and she was saying she could not breathe, he stopped. He then dragged her to his mother's bed. She was crying and trying to shove him away, but he swung her onto the bed. He pressed her down, pulled her legs to the edge of the bed, and bent them hard. He lifted her legs and put them onto his shoulders and bent them so hard that he caused her pain. This contributed to the back pain that she felt up until the time of trial. They were both naked. Immediately after he lifted her legs onto his shoulders, he stuffed his penis into her vagina. She described this as “so painful” and stated that whenever she thinks of it, she has nightmares. He did not say anything, but she was crying and shouting that it was painful and that he was raping her.

21She testified that this went on for a long time. She described it as “goddamn painful.” When he was “kind of satisfied,” he stopped; she was dizzy and did not say anything. She could not say whether he had used a condom, or whether he had ejaculated, but she guessed he had and believed that was why he had stopped. She said, “you raped me.” He walked out to the living room where he put on his top and pants. She went into the shower to rinse herself clean. She did not have a towel, so she came back out and put her clothes on, still wet, and then went immediately toward her room to get clothes to change.

22She testified that while she was still looking for clothes in her room he came into her room. He took off all his clothes again and tore her clothes off again. She shouted about how painful it was and he pressed her down and did it again. He said it “was comfortable.” He pushed her down onto the bed, forcefully pressing her and pinning her hands so that she could not move. He stuffed his penis into her mouth again. She tried to resist. She described it as going on for a long time, but not as long as the first time. After a while he took his penis from her mouth and put it into her vagina again. He pulled her hands to the back of his neck to hug his neck. He pulled both of her legs around his back and said, “this is comfortable.” This went on for some time. He then added the insertion of his finger to her vagina. She told him it was very painful, but he did not stop. She was crying and told him it was painful and that his fingernails were hurting her, but he kept saying it “was comfortable.” He also kissed her face while this was happening.

23She testified that his ended when the phone rang. He was “doing his thing thrusting in her” and the condo phone rang which allowed her to move away to answer the extension that was in her room. It was H.C.F. saying that the mother would be home in approximately 10 minutes and Q.Z. would need to come down with the wheelchair to transport her up to the condo.

24She told K.F.C. that his mother was on the way, but he did not leave until she pushed him out and banged the door closed. She said she felt shame and wanted him to leave. She had to get dressed to go downstairs. He also got dressed, but to her perception did not want to leave. He said your chest is very pretty. After that she pushed him forcefully out of the apartment. She did not want to talk about what had happened, so she got dressed and wheeled the wheelchair out.

25She testified that she did not consent to any of the sexual activity that she described.

26Q.Z. went downstairs to the front entrance of the building with the wheelchair. K.F.C.'s mother hadn't arrived yet. She saw a neighbor come around who asked about the wheelchair. Q.Z. answered, “nothing happened I am just waiting for the mother.” H.C.F. arrived with her mother and Q.Z. wheeled her up to the unit. Q.Z. testified she felt pain and it was uncomfortable, but she continued to work as normally and did not want to show any impact. She said this was hard for her at the time, but she continued to work.

27Once back in the condo, Q.Z. made a meal for K.F.C.'s mother and H.C.F. They then ate together. They chatted until K.F.C. telephoned. He spoke to H.C.F. on the phone. Q.Z. testified that K.F.C. was scared on this call, asking “how come you are still there?” She did not hear him say this but testified that H.C.F. had told Q.Z. he had asked her this after she hung up. Q.Z. believed he was scared that she had told H.C.F. what had happened.

28H.C.F. stayed at the condo until nearly 10 PM. Shortly after she left, G.C. arrived. There had been an earlier arrangement for G.C. to stay over Saturday into Sunday instead of Sunday into Monday, so Q.Z. had a different day off than usual. Q.Z. left the apartment to go to her daughter's place. She would typically ride her bicycle between the two residences. This night, she tried to ride her bicycle, but it was so painful because of the assaults that she got off the bicycle and forced herself to walk it home (the distance being approximately a 5-minute bike ride). She did not tell her daughter what had happened because of the shame she felt.

29On the holiday Monday, she returned to work after her day off, and continued to work as though nothing had happened. She was aware that K.F.C. had a family trip planned starting on July 4. In the days before that trip, he phoned her several times. She testified that sometimes she would answer the phone when he would call and sometimes she did not answer. When asked to recount these conversations she indicated he asked if she had told his sister. She responded that she did not dare to. In several of the conversations he said he wanted to have sex with her again. He told her that if they had sex several more times it wouldn't be as painful anymore. She indicated some of these phone calls occurred on her cell phone. She testified that after June 29 she did not initiate any phone calls to K.F.C.

30On Wednesday, July 3, a government worker came to help with bathing K.F.C.'s mother. Q.Z. was outside of the building where she saw a friend, B.T. (who had helped her get the job with the C. family). She asked B.T. if she had any other job prospects for Q.Z. B.T. asked if there was an issue with her employer. She cried and told B.T. what had happened, that K.F.C. had raped her.

31B.T. told her employer, who had family living in the building, what had happened, and her employer wanted Q.Z. to make a police report. On the evening of July 6, a week after the alleged assaults, B.T. arranged a meeting with Q.Z. and her employer. They met in the building, in a common room, and Q.Z. agreed after speaking to them to go to the police. Q.Z. went to the hospital where there was a physical examination. Then, on July 7, she gave a police statement.

32She testified that after going to the police on July 7, she had a conversation with H.C.F. in which Q.Z. told her she wanted to quit the job. H.C.F. asked if it was because there was more work due to her mother's condition and told Q.Z. not to quit. Q.Z. disclosed that she had made a police report and that K.F.C. had raped her. H.C.F. told Q.Z. that she would support Q.Z. and that Q.Z. should not quit the job. Q.Z. testified that H.C.F. hugged her and she cried for a long time. She testified that H.C.F. commiserated with her and provided details about sexual issues in her own marriage, and told her that there were issues in the K.F.C.’s marriage.

33On July 9, Q.Z. was fired. This occurred downstairs in an office of the building. G.C. is the family member who told her she was fired, although H.C.F. was present, but did not say anything. Q.Z. asked if she could have another day to gather her things. G.C. called building security to have her removed and told her the things would be sent to her. Q.Z. testified that she was owed an amount of overtime that had not been paid to her.

34She was asked to describe the injuries that she experienced as a result of the assaults. In addition to the lingering back pain, she'd indicated that there was injury to her vagina which included swelling that was very painful: she described the pain as unbearable. She described it as persisting. She described being unable to sleep at night and having nightmares.

35In cross-examination, Q.Z. answered questions about her prior relationship with and knowledge of K.F.C. They did not have a friendship. She did not see him often. He wasn't someone she took an interest in. She agreed she knew a lot about him including that he was married, had four sons, lived in a big house in the Midland and Finch area, knew he worked in real estate, and thought that he was a rich man. When it was put to her that she thought he was rich she responded it was “not as though I was trying to get close to him.”

36She acknowledged that in June 2019, she and her daughter were having problems with the landlord of their basement apartment, including a leaking issue. It was suggested to her that she talked to K.F.C. about helping her find a new apartment to get away from that landlord. Q.Z. denied that this type of conversation occurred, stating that while she had told K.F.C. about the problems in the basement apartment, she had not sought his help in trying to find a new residence.

37Telephone records became an exhibit in the trial. Q.Z. was challenged with those records. It was suggested she had called K.F.C. on Sunday, June 9. She responded that she that did not phone him herself. She was shown the phone bills which show:

(1) an outgoing call from her cell phone to K.F.C.'s for one minute at 1:01 PM; (2) an incoming call from his number to hers at 1:39 PM for 22 minutes; (3) an outgoing call from her phone to his at 9:56 PM for two minutes; and, (4) an incoming call from his phone to hers at 10:36 PM for 49 minutes.

38When she was shown these phone calls, she responded that she did not directly ask him, he had phoned and asked about what was going on with the apartment and that kind of thing. She now agreed that he had offered to help find a place and that she said if there was anything suitable, she would move. She now agreed that he said he would look around with friends to see if he could find anything suitable.

39She was shown a record of a phone call on June 16, and it was suggested that it was K.F.C. calling about the same issue, finding a new residence. She stated she didn't remember. It was suggested that in between the phone calls of June 9 and 16 he had also spoken to her in-person at the condo about finding a new residence. She said he had told her “If you give me money, I will look for a place” and he had meant give him money “in the hand.” She was shown a record of a call June 21 for 11 minutes at 8:39 AM. Her response was that she did not want him to look for a house for her. She was then shown the whole series of calls from June 21, and it was suggested that these calls were about the difficulties with her basement apartment. She disagreed. She said these phone calls were just about his mother.

40It was suggested to her again that the series of phone calls in June related to the troubles in her basement apartment. She testified that he was just trying to make her look bad or cause her trouble, that he was accusing her of wanting to get to him because he is rich. She said all of these phone calls were about his mother and what was going on with his mother. They did not talk about real estate, only about his mother.

41It was again suggested that she had placed several calls to him. She said she would only call him if she was calling him back. In the mornings, he would call about his mother and whether she was waking up. She then added that he asked her in these phone conversations to find a girl for him. Every morning he would call and ask her to introduce him to a girl. On the Sunday, she had telephoned him to say that the girl “did not agree” and that she would only agree if he could get a house for her. She acknowledged that she had not mentioned this “getting a girl for him” to police: she said it was a previous situation and she felt she would not have to talk about it.

42Q.Z. was also cross-examined about the morning of June 29. She testified that she was already awake when she heard the mother fall. She agreed she pulled the security cord and building security called an ambulance. She then began calling family and G.C. was the first of the children to arrive at the building. She agreed, when shown stills from the security video of the building, that K.F.C. arrived and came up after 8:07 AM.

43She was again shown the phone records and agreed that she received a call from K.F.C. around 10 AM in which K.F.C. told her they were doing more tests. She agreed he called her again at 10:46 AM. That phone call lasted 38 minutes. She agreed that in this phone conversation they talked about what had happened to K.F.C.'s mother. She did not agree that part of the conversation was that she needed to be more diligent in the future. Her position was that K.F.C. was comforting her over the course of this phone call. She also denied that in this conversation he told her he was going to come to the apartment.

44She agreed that at 11:55 AM he phoned her to say he was on his way up to the condo from the lobby. She agreed she opened the door to him but maintained that he had keys to the door. It was suggested to her K.F.C. was on the phone when he came into the condo; she did not remember. Phone records were shown to her which show a phone call at 11:57 AM on his cell phone for nine minutes. She indicated she did not remember. It was suggested to her that when he finished this phone conversation, he began speaking to her about what had happened to his mother. She denied this.

45Her police statement was put to her as a prior inconsistent statement. It was suggested she had not said to the police anything about refusing to massage K.F.C. or him saying words to the effect of “I am your boss.” She said she had included these items in the second statement she gave in October of 2021. In the context of this, it was suggested to her she had told the police it was not a big deal to ask for a massage in that second statement. She was shown this portion of her statement. She refused to acknowledge that she had said that to police.

46She was shown further phone records that show a call from K.F.C.'s phone to his younger sister at 12:32 PM for two minutes. Q.Z. said she did not remember this call. It was suggested to her that in the period between when K.F.C. came into the apartment and this phone call he had sat down with his coffee, asked her what had happened, and asked her to show him the bathroom to figure out how to stop this sort of issue from happening again. She denied this.

47It was suggested that in her July 7 statement to police she did not indicate anything about K.F.C. washing her vagina and struggling in the shower to stop him. She said she had not been detailed enough in her statement, which was why she made a second statement. It was suggested to her that there was no damage to the shower curtain, and she denied that there was a shower curtain. It was suggested to her that nothing was knocked over in the shower and she responded she was dizzy and forgets. When it was suggested to her that there must have been water on the floor of the bathroom, she responded that he had pulled the curtain to block the water and that the cloth blocked water (although she had previously indicated there wasn't a curtain).

48It was suggested to her that she had not said anything in her July 7 statement about marks, scratches, bruises, or wounds to or bleeding from her mouth. She answered that this was one of the things she had to add to her first statement.

49With respect to her reported back pain and injuries it was shown to her that she walked out of the building on the security video on the night of June 29. It was suggested she was walking normally with no limp or injury. She denied that the video stills show her moving without pain. She testified she was doing her best to make sure no one would notice that she was walking with a limp. She denied that she was able to bicycle and pedal without difficulty. She indicated she tried to ride but got off almost immediately and walked her bike home.

50It was suggested to her that after the mother returned home from the hospital on June 29, the younger sister and her husband came over with food from Congee Queen, and that they all ate the food together. She denied this indicating she did not remember that happening.

51She was again shown phone records showing a call at 4:52 PM to the condo phone line for 18 minutes. She said she didn't know what that phone call was about. It was suggested to her that H.C.F. had left earlier than she had thought, at 5:33 PM, not at 10 PM, and that this was the phone call Mr. Chau had placed to Ms. H.C.F. Q.Z. answered that she didn't remember but that H.C.F. had left and then come back to the condo for the evening meal, after which H.C.F. left late.

52Records of three further phone calls from K.F.C.'s cell phone from June 29 were shown to her: the first at 8:27 PM and then two calls at 8:28 PM. It was suggested that these were calls to her cell phone that didn't go through. It was suggested that her phone was off, and this was the reason the phone calls did not go through. She answered that she was scared so she had turned her cell phone off. She was adamant that there were no phone conversations that evening between her and K.F.C. She was shown the record of another phone call at 8:28 PM from K.F.C.'s cell phone to the condo line, and it was put to her that she was the only person in the house other than K.F.C.'s mother at 8:28 PM and that she therefore must have picked up the phone call, which was 25 minutes long. She maintained that she did not answer any phone calls from K.F.C. that night. When challenged that K.F.C. had called and asked if he could speak to his mother so that the children who were gathered at his house could speak to their great grandmother, Q.Z. responded that she did not answer, that H.C.F. answered. When she was challenged that H.C.F. was not in the apartment at that time (as demonstrated with the building security video stills) she said, “don't make up stories.”

53The phone records also show a number of calls made July 1 to 3. Q.Z. was asked to confirm her evidence-in-chief that she never phoned K.F.C. after June 29. She confirmed that. She was shown her phone records. They show her placing an outgoing call to K.F.C.'s number on July 3. She maintained that she did not talk to him and said, “when he calls and I don't answer, I call back.” She now indicated that she did phone K.F.C. and told him that she didn't want him to phone her at night. She would not acknowledge that she phoned him first (even after being shown the phone records, which show that the first call was from her number). It was suggested to her that, in these phone conversations, she and K.F.C. talked about money. She denied this.

The Evidence of B.T.

[54]

The Evidence of B.T.

B.T. was called by the Crown as the first person Q.Z. disclosed too. She testified that on the Wednesday (July 3) she met Q.Z. outside of the building. Q.Z. told her she needed a new job and could not keep working there. She noticed that Q.Z. was not walking properly and asked her about it. According to B.T., Q.Z. then told her what had happened. She was crying and very sad. It was suggested to her in cross-examination that when she first encountered Q.Z., Q.Z. was riding her bicycle. B.T. answered that Q.Z. was walking her bicycle; this was when she noticed Q.Z. was not walking correctly. B.T. agreed that her perception upon seeing Q.Z. was that she might have just got off of her bicycle.

55B.T. observed some cuts to the side of Q.Z.'s mouth. She also observed redness. She saw bruises on Q.Z.'s leg. It was suggested to her in cross-examination that she had not told the police about the injuries to the mouth. B.T. answered that she wasn't really paying attention to that point, she did not know or recall if she had told police. Her recollection at testifying was of seeing these injuries.

56B.T. told her employer at the building what had happened. Her employer encouraged her to speak to Q.Z. about going to the police. This is how on July 6 Q.Z. came to speak to B.T. and her employer and eventually contact the police.

57B.T. indicated she did not consider Q.Z. a friend. There was a language and age barrier between them. Her evidence was she did not particularly like speaking to Q.Z.

58The Crown also called B.T.'s employer as a witness to explain the process by which police were contacted and Q.Z. came forward to make a statement. For the purposes of these reasons, it is not necessary to summarize that evidence in any detail.

The DNA Evidence

[59]

The DNA Evidence

The one other witness for the Crown was Dr. James Morrow from the Centre of Forensic Sciences. A number of items were submitted to the Centre for testing.

60There were samples taken from Q.Z., both an external genital swab and an internal swab. There was no male DNA detected on the internal swab. There was insufficient male DNA detected in order to move forward with further testing on the external swab. The amount detected fell within the margin of error, so Dr. Morrow could not confirm that there was male DNA present. There was either too small an amount of male DNA to test further or no male DNA. He described one potential for this result as due to the sensitivity of the testing.

61Bed coverings from Q.Z.'s room were also tested to determine if semen could be detected. The entire item was tested using an alternate light source. No semen was detected.

The Evidence of H.C.F.

[62]

The Evidence of H.C.F.

H.C.F. is the older sister of K.F.C. She testified that she was the person who paid Q.Z., and that she managed any overtime.

63On June 29, she received a phone call around 8:30 AM from K.F.C. telling her of the fall. She met K.F.C. and G.C. at the hospital. G.C. had to work so she told him to go, and he left. She remained with her mother through the testing at the hospital. K.F.C. remained at the hospital until their younger sister arrived but was not necessarily with them at all times.

64Once her younger sister arrived, they and K.F.C. discussed someone having to have a conversation with Q.Z. about being more attentive to their mother. The husband of her younger sister drove K.F.C. back to the building because he had left his car at the building. K.F.C. was gone from the hospital before 11:50 PM.

65H.C.F. remained at hospital with her mother until she was cleared to leave at 1:26 PM. She then drove her mother back to the building. She called ahead to tell Q.Z. to come down with the wheelchair, and Q.Z. was waiting when they arrived. Q.Z. appeared smiling, happy to see them, and happy that the mother had been released from hospital. H.C.F. did not notice anything unusual about Q.Z.'s walking or behavior. H.C.F. did not see any injury or bruising. H.C.F. did not notice anything unusual about the condo or any mess or water in the bathroom.

66H.C.F.'s younger sister and her husband came with food from Congee Queen and came up to the apartment, at which point they all ate together. After lunch, H.C.F. put her mother down for a nap. She received a phone call at 4:52 PM from K.F.C. He asked about how their mother was doing, and they discussed the plan for the next day, which involved a family party, and discussed whether they should proceed with it given the fall. K.F.C. did not appear to her to be scared or upset in this phone call.

67H.C.F. left the apartment around 5:33 PM. She testified that she did not return to her mother's condo that night (in part due to the preparation she had to do for the party the next day). She testified that she was not at the condo at 8:28 PM to receive the 25-minute phone call from K.F.C.'s cell phone shown in the records.

68H.C.F. was shown video stills from the security video that showed G.C. entering the condo building at 6:43 PM and leaving at 6:53 PM and identified G.C. in these images. She identified G.C. re-entering the building at 8:55 PM. She also identified Q.Z. on the video leaving the building at 10:17 PM.

69The next day the family party occurred at H.C.F.'s house. Q.Z. did not attend (she had the day off). G.C. brought their mother to the party and took her home after.

70On July 1, H.C.F. went back to her mother's condo to check on her. She received a text from K.F.C. that evening to a family text chain indicating that their mother had not recognized him when he called her.

71H.C.F. returned to the building again on July 2 for a birthday celebration. She had a conversation with Q.Z. who complained to her that she found mom to be more work to look after and was tired. After this date she began to believe that Q.Z. might not remain in the job. She denied that there was any conversation with Q.Z. July 6 or 7 in which Q.Z. told her that K.F.C. had raped her. She denied comforting her or indicating that she believed and would support her.

72On July 8, H.C.F. was present when G.C. fired Q.Z. She testified that this was after they had learned of Q.Z.'s allegations, which had also been brought to the attention of the building management. She had already been thinking about letting Q.Z. go (in part as she had not seemed happy in the job for some time as well as having expressed dissatisfaction in the days after the fall). Once the allegations were made, she was very upset and decided they needed to let Q.Z. go.

73In cross-examination it was suggested that Q.Z. had told her that she could not work for them anymore on July 7. She acknowledged a conversation had occurred, but she had told her to think about it. She knew they would have trouble filling the position. She did not agree that Q.Z. had disclosed the assaults to her. She agreed that Q.Z. seemed tired, but her position was that Q.Z. had not been happy in the job for some time, up to a month. The only change in her demeanor was that she seemed more tired since June 29. She did not agree that there was any overtime owed to Q.Z.

The Evidence of K.F.C.

[74]

The Evidence of K.F.C.

K.F.C. described his relationship with Q.Z. as “very distant” prior to June. He did not have much interaction with her and did not spend much time at his mother's condo. He had more conversations with Q.Z. starting in April after his elder sister passed away. This started off as conversation about whether his mother was well enough to attend the funeral. After this he spoke to Q.Z. a bit more often.

75In May he had a discussion with Q.Z. at a family function where she approached and told him she was unhappy with her living arrangements and had difficulties with her landlord. He told her that, although he worked in commercial real estate, some friends might be able to help. It was left that she would provide information as to what her needs were and how much money she had saved.

76Into June there were more conversations back and forth about real estate. They had a longer conversation in early June, and ongoing discussions about trying to find a place for her to move to through June.

77On June 29 K.F.C. and his family had a plan for his grandchildren to attend Chinese cultural week with him and his wife and stay the night at their house. This plan was delayed by his mother's fall in the morning. He received the call before 8 AM from Q.Z. that his mother had fallen. He called H.C.F., who seemed surprised by the news that their mother had fallen. He attended the condo and then accompanied his mother to the hospital in the ambulance, leaving his car parked at her building.

78He remained at the hospital until mid-morning, after his younger sister arrived. While at the hospital he called Q.Z. on the condo line at 10 AM to update her on his mother's condition as he knew she must be worried. He called Q.Z. at the condo again at 10:46 AM. During this longer conversation he asked about what had happened with his mother, what she had heard, and where she was what time of the fall. He described Q.Z. as defensive in response to this and said he was not getting very clear answers. His sense was Q.Z. was worried she would be blamed for the fall.

79After his younger sister arrived at the hospital, he told his sisters that he was going to speak to Q.Z. at the condo. He met his younger sister's husband outside, and he drove K.F.C. back to the building. K.F.C. arrived at approximately 11:50 AM. He carried in a briefcase with some of his work papers in case there was any waiting so he could catch up on work. Before going up to the condo he called up to tell Q.Z. he was coming. He knocked on the door and she let him in. He was on the phone on a call with a real estate associate when he entered the condo.

80He testified that once he finished that call, he spoke to Q.Z. and asked her to show him where the fall had happened and explained what had occurred. He observed the bathroom door swings inward, meaning it was able to be blocked by his mother's walker. He talked to Q.Z. about how to prevent issues in the future. He spoke to her about not moving his mother if she falls in the future.

81At 12:32 PM he called his younger sister to get an update on his mother's condition. He told her he thought the door to the bathroom should be removed.

82He received a text from his sister (sent at 12:40 PM) asking them to look for a missing shoe for his mother. Q.Z. looked around the apartment for the shoe. She was unable to find it. K.F.C. then looked for it and found it near the front door, under a shoe bench. He had missed a text from his wife at 12:43 PM asking about a water shut-off valve. He called his wife back at 1:03 PM, told her where the valve was, and told her he would be at the condo another 15 to 20 minutes as he was just waiting to see if his mother was going to stay at hospital or be brought home.

83Between 1:05 and 1:08 PM there were several calls to his younger sister (he did not think the first calls got through but was able to speak to her on the third try for three minutes). He was told things were looking good, but they were still waiting for clearance. In cross-examination, he agreed that he knew by the end of this call that his mother was being released from hospital. It was suggested that after this call at 1:08 PM he was anxious to leave and he agreed, yet he remained another 31 minutes in the apartment. When it was put to him that by 1:08 PM he had covered all he needed to with Q.Z. about preventing future falls etc., he disagreed. He said he had more to cover. It was suggested that he had been in the apartment for one hour and 20 minutes by this point in time and must have covered all he needed to, but he maintained that he had more to cover with Q.Z.

84At 1:26 PM his younger sister sent a text message that his mother had been cleared and would be returning to the condo. He testified that in this period of time between speaking to his younger sister and reading the text message of the all-clear he had more conversation with Q.Z. about moving and told her that, given her budget, she may want to move farther away. She told him that she would not be able to continue working for his mother if she lived farther away. After receiving the 1:26 PM text he spoke to Q.Z. further about making sure she stayed close to his mother instead of walking some distance behind her.

85He denied having a shower in his mother's bathroom. He denied pulling Q.Z. into the shower. He denied forcing any sex act upon Q.Z. He left the apartment at approximately 1:39 PM, when his phone records showed he made a call to another real estate associate.

86He was anxious to get home and take the grandchildren to their planned event. At 4:52 PM he called the condo for 18 minutes to get an update, see if his mother was awake, and determine whether they should go ahead with the planned family BBQ the next day. This conversation was with H.C.F.

87At 8:27 PM he tried calling Q.Z. on her cell phone for one minute, and then called again twice at 8:28 PM. He then called the condo phone at 8:28 PM. He explained that he had tried calling Q.Z. on her cell phone first to check to see if his mother was awake. She would typically be awake at that time, but he wasn't sure she would be this day. He wanted the great grandchildren, who were all at his house, to be able to speak to their great grandmother. Q.Z. answered the phone, there was minor discussion about his mother, and then the phone was handed off to his mother. K.F.C.'s wife and the great grandchildren also spoke to K.F.C.'s mother in this 25-minute phone call.

88K.F.C. testified that he next telephoned Q.Z. on July 1 at 8:34 AM. This was a 22-minute call. He indicated he was trying to check up on his mother. In cross-examination he was challenged that this call was before the time his mother would typically be awake (9 AM) and that he therefore would not have been able to receive any new information as to how his mother was. His explanation was that he wanted to let Q.Z. know that he had noticed his mother wasn't 100 percent on the Sunday: she seemed off, her movement slower, not talkative. He said he wanted to let her know that, and ask if she had noticed anything the night before when his mother got home from the family BBQ. He was challenged that the length of the call exceeded what would be necessary for that topic. He said the conversation had turned to real estate and helping Q.Z. find a new residence, as it often did in that timeframe. He was shown a record of another call from him to Q.Z.'s cell phone at 8:56 AM for one minute. He testified he did not remember that call, that maybe it was a mistake calling out. It was suggested to him that Q.Z. had hung up on him and he had tried calling her back. He denied that. He maintained that “whatever the conversation I had with her had nothing to do with having more sex with her and asking to come back.” He was shown record of another call to Q.Z.'s cell phone at 1 PM for one minute. He said he could not remember why he was calling or if Q.Z. had answered that call.

89At 2:58 PM he called the condo line to try to talk to his mother: she didn't know who he was on the phone (the phone records show this to be a 2-minute call). He then called Q.Z. on her cell phone to ask about his mother and tell Q.Z. that she hadn't known who he was. This call was 22-minutes. He said he wanted to check up on his mom and make sure she had lunch, etc.

90He called Q.Z. again on her cell phone at 9:08 PM for one minute to see if his mother was awake, and then called the condo line (also at 9:08 PM) and spoke to his mother for 12 minutes. He believed Q.Z. had answered her cell before he called the condo line but could not remember for sure.

91He testified that he had a very busy workday the next day, July 2, preparing to be away for his family trip. He called Q.Z. at 10:43 PM. He did not remember why he placed this call, but believed it was to see how his mother was. He had a similarly busy workday July 3. He did not call Q.Z. on July 3. However, he received a call from Q.Z. late in the evening. His evidence was he had not left her a message or prompted her call. When she called, they spoke for about 10 minutes (the phone records show a 7-minute phone call at 10:16 PM). K.F.C. believed Q.Z.'s cell phone was dying. The phone records show he called the condo line at 10:26 PM for one minute, and then an incoming call at 10:32 PM, which lasted for 35 minutes. He testified that this call was from Q.Z. She told him she had been thinking about quitting and gave reasons why, including that she was tired and there was more work than she was being compensated for. She complained about overtime pay, and that other caregivers she knew were making more money for less work. His belief was she was trying to get money out of him. It was his perception that the timing of this (as it related to his departure on his family trip) was to put additional pressure on him. He left it that he would speak to his siblings and come up with a plan of some sort and talk to Q.Z. about it when he got back from his holiday.

92He testified that he learned allegations were being made against him when G.C. told him: he believed this was sometime around noon on July 8. Police attended and arrested him around 8 PM.

93In cross-examination it was further suggested that the timing of some of the calls related to his mother's fall were very lengthy for what he described being discussed. His response was that Q.Z. is difficult to talk to, she would speak over him, and he would have to repeat things many times over. He was challenged as to the periods of time between his phone calls on June 29 when he was in the condo: it was suggested that he had had plenty of time in the prior phone call to discuss all that needed to be discussed with Q.Z. about his mother's ongoing care. He disagreed. It was suggested to him that the periods of time while in the condo were much longer than were necessary for the conversations about how his mother fell and Q.Z. being more attentive. He answered that there were other conversations including where she was going to live that were brought up. He did not have a full explanation for the full amount of time these conversations took.

Analysis and Findings of Fact

[94]

Analysis and Findings of Fact

In assessing each witnesses’ testimony, I must consider the credibility and reliability of the account provided. Credibility relates to the witness’s veracity. Reliability relates to the account’s accuracy and whether the witness is mistaken in their narrative. In assessing each witness’s testimonial account, I have considered the following factors:

(1) whether the account is inherently logical, having regard to common sense and human experience, using, as reference points, what the evidence reveals about the witness’s actions, words, and professed state of mind before, during and after the events that ground the allegations before the court; (2) whether the account is internally consistent and coherent; (3) whether the account is consistent with reliable evidence that exists exclusive of any witness’s account; (4) the significance of any inconsistency in the witness’s account, e.g., is it in relation to a key or peripheral point, and to what extent does the evidence otherwise reveal a plausible explanation for it that serves to rehabilitate the account; (5) whether the witness has an interest in the outcome of the case; (6) whether the witness has a youth court or criminal record, the entries of which are probative of dishonesty; (7) whether the witness, exclusive of the accused person before the court, has engaged in discreditable conduct that reflects poorly on his or her credibility or reliability; (8) whether the reliability of the account is undermined by: (a) the circumstances, including those specific to the observer and those specific to what is being observed, under which the observations that ground the account were made; (b) a bona fide diminished recollection of the events over time; (c) intentional and/or unintentional tainting by other sources of information; and (d) any apparent mental, including cognitive and developmental, limitations that are probative of the account’s reliability or unreliability; (9) the witness’s apparent level of sophistication and life experience, particularly as it relates to pre-testimonial contact, in any capacity, with the criminal justice system; and, to a lesser degree, (10) the witness’s after-the-fact and/or testimonial demeanour. (a) In assessing the former, I have been mindful of: (i) the reliability and/or credibility of the individual who testified to the witness’s demeanour; (ii) the lapse in time between the alleged offence and the observed demeanour; (iii) any explanation unrelated to the commission of the alleged offence for the observed demeanour; (iv) the witness’s capacity and/or any motive to feign their demeanour. (b) In assessing the latter, I have been mindful that testimonial demeanour is of particularly limited value because it can be affected by factors entirely unrelated to the witness’s truthfulness and/or reliability, or lack thereof.

95As I assess a given witness’s testimonial account, I am mindful that I may accept some, none, or all of that account.

96In this case, I have completely disparate accounts the critical period of time, between approximately 11:55 AM and 1:42 PM on June 29. The Crown has marshaled the evidence of Q.Z. to support a narrative of violent assaults; the defence has marshaled the evidence of K.F.C. to rebut that narrative. I am mindful that well-established principles of common law preclude me from merely choosing between those conflicting accounts as I work towards my findings of fact. I am obliged to consider all of the evidence before arriving at my verdicts. I must avoid the stark alternatives approach of believing the Crown evidence or the defence evidence, which excludes the legitimate possibility of being unable to resolve conflicting evidence and, accordingly being left in a state of reasonable doubt on whether the Crown has proven the case. There is a body of very reliable evidence, in the form of the security video stills and phone records, which each party has argued is potentially confirmatory.

97In a case with such conflicting accounts, it is impossible not to compare and contrast the evidence of the complainant with the evidence of K.F.C. Engaging in this kind of contrast and comparison does not reflect a misplacement of the burden, rather, it is a consideration of an accused’s evidence in light of the evidence as a whole, including a complainant’s evidence (see R. v. A.J.K., 2022 ONCA 487 and R. v. N.K., 2021 ONCA 13, at para. 10). The burden remains on the Crown to prove all of the essential elements beyond a reasonable doubt.

98In assessing the evidence of K.F.C., I am mindful that a reasoned acceptance of the evidence of Q.Z. may be a foundation for rejecting his evidence. I have considered the evidence of Q.Z., and all of the evidence, in assessing the evidence of K.F.C.

99K.F.C. testified in a forthright and straightforward manner. There were some shortcomings in his memory, in particular as it related to the series of phone calls that occurred after June 29. However, these shortcomings are to be expected and accord with common sense and human experience. They also accord with his evidence of his state of mind over those dates in July prior to his July 4 family trip: busy with work and still worried about his mother.

100What does not accord with common sense and human experience, nor with his testimony about his state of mind and activities in those days, are the durations, timing, and claimed content of those phone calls. His testimony as to his level of busyness with work and family, his preparations for his trip, and his state of mind over his mother's health is at odds with the timing. It is at odds with the duration of those calls. When this was suggested to him in cross-examination, his evidence shifted. The length of the calls was now caused by Q.Z. It was caused by her discussions about real estate. Her speaking over him. By having to repeat himself.

101On July 1, he spoke to her for 22 minutes, calling her at 8:34 AM – he said to get an update on his mother – but this does not make sense. G.C. had returned his mother to the condo the night before. Q.Z. had not had time to interact with his mother at all when he placed this call. The call ended at approx. 8:56 AM when he called Q.Z.'s cell phone again. He claimed this call to be a mistake. But he called her again at 1 PM. He called her again at 3 PM, for another 22-minute phone call. Then on July 2, his very last call of the day, at 10:43 PM, he called her cell phone, and it doesn't appear she answered. July 3, speaking to her at 10:16 PM and then continuing that discussion at 10:32 PM for 35 more minutes: it does not make sense that these calls are about checking on his mother and discussing her need for a new apartment. The time of the calls, the duration of the calls, even seeing Q.Z.'s sometimes lengthy manner of speaking in Court, it simply does not accord with common sense or his own evidence about the demands that were placed on his time over these days.

102I heard his responses to cross-examination on these calls. In my view, his evidence shifted to try to explain the durations of the calls. There was inconsistency between his in-chief testimony and cross on their content.

103I do not believe his explanation for these calls. It was my impression after hearing his evidence, and considering his explanations for the calls, that I am simply not hearing the truth. Not hearing the full story.

104I also have issues with his explanation for what took place in the timeframes at issue in the condo on June 29. The conversations he described, the sheer amount of time that, according to him, he spent speaking with Q.Z. either by phone before going back to the condo or while at the condo about how to prevent further issues like this fall does not make sense. It does not accord with his own evidence as to how he assessed that the bathroom door opens inward and would have to be removed, and how he purported to communicate that when he spoke to his younger sister, which he says was communicated in the 12:32 PM phone call. On his own evidence, after communicating that solution to his sister, he spent more than another hour looking for a slipper and telling Q.Z. that she had to be more attentive to his mother, stand closer to her, and not move her if she fell.

105I have serious doubts about his explanation for the timeframes that took place in the condo. I do not believe his explanation.

106I heard K.F.C.'s denials of any sexually assaultive behaviour on Q.Z. on June 29. I must consider that evidence in light of all the evidence.

107Q.Z. was an incredibly difficult witness, both for the Crown in chief and for the defence in cross-examination. Some of the difficulties related to a combination of interpretation and Q.Z.'s level of sophistication as a witness. But those factors simply do not account for some of the significant deficiencies in her evidence.

108What she testified to in the main bathroom began with a violent struggle in the shower. When it was suggested to her that there was no damage, no spilled bottles, no water on the floor, her explanations shifted; there was no curtain to damage, there was no water because there was a curtain. On her evidence there was no “clean-up” by K.F.C., nor did she testify to cleaning up. And H.C.F. testified that, when she returned to the apartment with her mother, there was no disruption. I find that this is a significant inconsistency.

109Q.Z. testified to three times when the same set of clothes were forcibly ripped from her; when suggested to her that there was no damage to her clothes, she said there was damage, but the police did not take them because they only asked her if she had already laundered them. Again, a shift. And this was inconsistent with her prior statements to police.

110There were other serious prior inconsistencies with her first police statement on important issues; in particular the injuries to her, and injuries or bleeding to or from her mouth. I am mindful that B.T. provided some evidence that could be confirmatory of injuries around Q.Z.'s mouth that she said she saw on the Wednesday (although I note that she also had not described these in her police statement). I do not find that the evidence of B.T. on this rehabilitates Q.Z.'s. What B.T. described seeing of redness outside the mouth does not at all accord with what Q.Z. testified to which was injury inside that she noticed as blood when she spat after.

111Q.Z.'s explanation for the phone calls after June 29 also does not accord with common sense and human experience, or with her own evidence as to her state of mind following the 29th. It also shifted when she was confronted with the phone records. She said that K.F.C. called her. She was scared. She did not want to speak to him. Yet she engaged in multiple lengthy calls with him. And she called him herself on July 3, despite adamantly denying she had called him at all. I find her evidence on this then shifted in an attempt to explain the phone records, saying if he called she could call him back. Her testimony was she was terrified, assaulted, afraid of him, and ashamed. Yet her participation in these calls and for this duration does not accord with her testified to state of mind.

112There was also a significant issue with her evidence as to the calls between her and K.F.C. in early June. When it was suggested that she was trying to get help finding a new residence, which she repeatedly denied, she initially said she was not speaking to him about this, then agreed that he was going to look for her, then suddenly shifted her story to say that K.F.C. has asked her to help get him a girl. I find that she invented this evidence (which she had not previously disclosed in either of her prior police statements). It seemed to me designed to embarrass and cast aspersions on K.F.C. and I find it significantly detrimental to her credibility.

113There is other evidence that is contradicted. In particular, her testimony about her conversations with H.C.F. in the days before her firing. This evidence also cast K.F.C. in a negative light. It included purported statements from H.C.F. about a strained marriage and divorce that H.C.F. denied occurred. I have no reason to doubt the evidence of H.C.F. on these points. Despite thorough cross-examination, she was not shaken in her evidence, which was cogent and thoughtful and accorded with the content of the various text messages that were being exchanged by the family about the situation of Q.Z.'s employment, all of which supported H.C.F.'s evidence of her state of mind and the actions that she took.

114H.C.F. was also inconsistent with Q.Z. about what happened in the condo when they returned after the hospital, who brought food, who was there and for how long. Although these are somewhat peripheral details, or certainly would be standing alone, in the context of the other discrepancies in her evidence, in my view, they take on additional significance in this case. In particular, as they supported Q.Z.'s version of her relationship with H.C.F. and her version of K.F.C. being worried that she would tell what had happened.

115Much of Q.Z.'s upset, her emotional reaction in her testimony, seemed to me very genuine. I have trouble imagining why she would make up such a story. The reasons suggested to her in cross-examination did not seem to me to be very likely reasons to do so. But I say this as an aside: it is not for the defence to provide such an explanation. The burden is on the Crown to satisfy the Court beyond a reasonable doubt. This is certainly not a case in which there was a proven absence of a motive to fabricate.

116Despite my misgivings about the veracity of some of K.F.C.'s explanations, when I weigh his denials in light of the evidence of Q.Z., the phone records, the security video, and H.C.F.'s evidence as to the state of the condo when she returned there with her mother on June 29, I find I have more than reasonable doubt the alleged sexual assaults occurred. While I find I am unable to resolve the evidence about the phone calls that followed June 29, my rejection of K.F.C.'s evidence on those calls does not cause me to disbelieve his denials of the sexually assaultive behaviour that were described by Q.Z. I find I am left with a reasonable doubt on the basis of those denials, and he is acquitted of both counts.