Court File and Parties
Ontario Court of Justice
Date: 2017-07-20
Court File No.: Newmarket 16-01193
Between:
Her Majesty the Queen
— and —
Pin Chen
Judgment
Evidence heard: July 10, 11, 13, 14, 2017
Delivered: July 20, 2017
Counsel:
- Ms. Vanessa Szirmak — counsel for the Crown
- Mr. Martin Kerbel — counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Chen owns and operates a beauty salon in Markham. Three of his clients complained to police that he repeatedly touched their breasts in a sexual manner while he was cutting or colouring their hair. Mr. Chen is accused of:
- sexual assault on WZ November 26th, 2015,
- sexual assault on AE December 11th, 2015,
- sexual assault on DK December 22nd, 2015.
[2] The Crown submits that the repeated touching, the manner of the touching, the accused's statements to two of the complainants, and the fact of multiple complaints all prove that the women were sexually assaulted as alleged. The defence submits that the complaints are fabrications and the women were not touched in the manner they described. If they were touched, any contact was unintentional and not for a sexual purpose.
[3] The issue for decision — whether the Crown has proved beyond a reasonable doubt that the alleged acts of non-consensual touching of a sexual nature occurred. The credibility of the witnesses is central to that determination.
The Evidence
[4] WZ is 27 years old. She is a graduate of the University of Toronto and now works as a manager at an ice cream store. She has no criminal record.
[5] WZ testified that she went to the One Plus One salon in the Pacific Mall for a hair cut. This was her second visit there but her first time with Mr. Chen. The owner offered to do a permanent hair treatment to straighten her curly hair and she had the time so she agreed. He said he'd stay late after the 8 p.m. closing to complete the 2-3 hour procedure.
[6] At the wash station he washed and conditioned her hair. He pushed her up afterwards with two hands on the back of her waist "right above her butt" which she found unusual. He asked her about the size of her waist. The hair cut started normally with typical conversation about family and interests. WZ said the conversation changed when Mr. Chen started asking her about the men she was seeing. He asked her if she was interested in having affairs. He asked if she was happy with her boyfriend and whether she ever enjoyed having, "a little fun" outside of her ordinary relationship. She told him she was very happy with her boyfriend and they were in a long-term relationship. She was uncomfortable with the conversation but didn't consider it a big problem.
[7] Mr. Chen had to check WZ's hair to ensure that the length was even on both sides. She had long hair past her breast area. WZ testified that as he checked her hair the side of his hand passed over her breast. She agreed in cross-examination that she thought it was an accident at first. Then it happened two or three more times. The second and third times he contacted her breast with the palm of his hand. The last time he touched her breasts his hand went under the bottom of her breasts as if he were trying to measure her size. His hands were palm-up touching the bottom of her bra for five seconds. She felt very uncomfortable so she raised her hands forward, holding her cell phone to cover her breast area. He put her hands back down. Mr. Chen then asked her directly about her bra cup size. He attempted to slide his hands over her breasts again but she held up her hands as if she was busy on her cell phone to block him.
[8] WZ wanted the treatment to be over quickly so she could leave. She said Mr. Chen asked her if she was, "open minded" and whether she was interested in having sexual affairs with someone who was not her boyfriend. Once the treatment ended and she was cleaned up, the accused said he had a cream that would help her hair and he asked her to go into a back room with him so he could show her the product. She watched him go into a dark room with salon products on one side and what appeared to be a small bed with blankets on it on the other side. The sight of the bed terrified her so she refused to go in. His voice became aggressive and that scared her. She stepped away and he came out with the product. She paid and then she left.
[9] WZ went to her car and texted two friends about what had just happened. While she was texting, Mr. Chen came out of the salon and knocked on her window. She thought she'd forgotten something so she lowered her window. He told her she should check her messages on her phone. She testified that he sent her a flurry of messages over We Chat about her hair and whether she knew what he was trying to do in the back room. He asked whether she was going to come back. She didn't respond. She had earlier followed his Salon through that app.
[10] WZ was annoyed but she didn't report the incident to the police until early January after she saw a York Regional Police media release. She reasoned that she was not physically hurt in the incident and she preferred not to have to formally report it, but when she realized that something similar might have happened to others she felt she should come forward. WZ had purchased a package of 10 treatments and she did go back one more time but she had her hair done by another employee. She subsequently decided to abandon the further treatments she'd paid for.
[11] AE is 26 years old and works as a medical office administrator. She has no criminal record. On December 11, 2015 she called in sick to work as she was fighting depression. She decided to get her hair done to lift her spirits so she went to the One Plus One salon. She'd been there before with her boyfriend and other friends.
[12] She asked to have her hair dyed blonde. She had long hair past her breast area. The process proceeded normally but at one point the accused checked her hair length. He reached around and held out her hair and she then felt him lift up her breasts with both hands. The contact was light enough and brief enough that she felt it might have been an accident. She let it go. Later as she was getting her hair rinsed he reached back towards her and touched her left breast while asking if she was ok. After this second contact she became confused but she told Mr. Chen she was fine. She was touched a third time when Mr. Chen tucked her smock into her bra strap. His hand went inside the cup of her bra. Then his hand slid down and grazed over her nipple area. She estimated that the adjustment of her towel took 30 seconds to a minute. She didn't believe the towel had needed adjusting and his reaching into her bra area placed the towel too low so was unrelated to the hair dye procedure. She became very uncomfortable and wanted the procedure to end so she could leave. Mr. Chen tried to adjust the towel several times for no apparent reason so she tried to push him away. She decided while in the salon that she would call the police after she left. During all of this their conversation in English was ordinary and Mr. Chen maintained a business-like demeanor with the other two employees present in the salon. She explained in cross-examination that she didn't confront Mr. Chen and tell him to stop touching her breasts because she just wanted to finish the dye procedure and leave.
[13] The accused walked AE out of the salon, touching her on her mid-back which made her feel uncomfortable. He said goodbye and as he did so he again touched her breast over her jacket. She felt like saying, "are you kidding me?" as he'd groped her one more time as she left. She wasn't keeping a count at the time, but she estimated that he touched her breasts, "at least seven times". After she left the salon she called the police emergency number. She never went back to the salon.
[14] DK is 45 and has her own online business. She completed business management training before coming to Canada. She has no criminal record.
[15] On December 22nd, 2015 she went with her twin 15 year old daughters to the accused's salon at the Pacific Mall. The twins paid for their hair dye procedure and the accused offered to do DK's hair. They agreed on a reduced price. As his other staff dealt with the twins in another area Mr. Chen said to DK that he, "wants one of them". She cautioned him not to joke like that as they were only 15. He told her even if they were young he could teach them, where the context showed he was referring to teaching them about sex. He said if she agreed they could all go to the salon any time and it would be free. She wanted to slap him but she didn't as she didn't want her twins to panic during their hair procedure.
[16] Mr. Chen took hold of DK's two arms as if she were a good friend. She relaxed and he told her to sit down and pick a colour. She pointed at one colour but he slapped her hand away in a light, friendly way and told her, "not that one it's not going to look good on you." She said he then, "went straight to my boobs." His right hand touched her left breast for a few seconds. He squeezed her breast. DK became angry and shouted at him, "you're too much". He touched her skin in her breast area. His hands were under her breasts and they contacted the lower part of both breasts. The contact was with skin underneath her clothing. She screamed and stood up. She told him she'd call the police. She was panicked but with some restraint as she did not want her daughters to panic. She called her husband and mentioned to one of the other workers that she needed help. She explained in cross-examination that it did not appear like the others working at the salon wanted to get involved in her dispute with the owner. She was upset and crying. Her husband came to the salon and later the police were called. She didn't remove her daughters earlier as she was concerned about leaving the harsh chemicals in their hair which might burn their scalp. She never went back to the salon.
[17] DK's husband AK is a construction electrician. He's 45 and has no criminal record. He waited in the car for his wife and daughters at the salon, but came to the salon when his wife called. She was very upset when she called and she asked him to come right away. He arrived at the salon with limited information, knowing that there had been some kind of argument between his wife and the owner. When he entered, the accused came up to him and put his arms around him to guide him into the salon. Mr. Chen said, "sorry, sorry, sorry", "I'm a good looking man, I'm interested in one of your daughters". DK testified that he found it normal for a man to say he likes one of the pretty daughters.
[18] Mr. Chen kept saying sorry to AK so AK told him if he was sorry he should say so to his wife. Mr. Chen did not apologize to DK. When the twins were both done the family left the salon. During the car ride home AK told her husband what had happened in the salon. They contacted the police.
[19] Mr. Chen is 33 years old and he's the owner of the salon in question. He has no criminal record. He's married with one child. He was trained as a hair stylist in China, but he has no formal training in Canada and he is not licensed as a hair stylist.
[20] Mr. Chen testified that although he has been in Canada for 9 years he has a very limited understanding of English. He understands some simple terms related to hair styling and he uses books of colours and cuts to show customers the options so that they can point to their choice. Customers choose hair colour from a chart. Most procedures start with him helping place a smock around the client. He tightens the smock with a clasp and never touches the client in or near the breast or bra area. He's never tucked a towel or smock into a customer's bra straps. He explained the procedure to tuck towels into the collar area and agreed there would be no reason to tuck towels into a woman's bra straps.
[21] Mr. Chen couldn't recall whether WZ had been to his salon before. He testified that he did not touch WZ's breasts. When asked if he could have done so by accident he replied, "I'm not sure". He had no sexual interest in WZ. He did not lift up her breasts or ask her about cup size. He could not remember whether she used or appeared to be using a cellphone during the procedure. He did not push her hands down as she described. Their only conversation was about hair style. He could not recall their conversation but he denied the sex related comments attributed to him by the complainant. In cross-examination he confirmed that he didn't remember much of their conversation and he said he was unsure if he asked WZ about her boyfriend. He didn't remember whether she used her cellphone with arms up during the procedure. He did not ask her to come into the hair products room. He admitted that he contacted WZ via We Chat afterwards but it was just casual contact to keep in touch with a customer. Mr. Chen couldn't remember whether there were other customers present when WZ came to the salon that day.
[22] In cross-examination Mr. Chen could not remember whether he spoke to WZ after she left the salon. He didn't remember whether he sent texts to her afterwards. He was not sure whether that was even possible. He couldn't remember whether he texted her saying, "Lets have fun".
[23] Mr. Chen admitted that he did not remember dealing with AE and did not recognize her when she testified. He has never lifted up the breasts of any customer nor has he ever grabbed the breast of any customer. He's never put his hand inside a customer's top and touched her bra or breast.
[24] Mr. Chen did recall DK as the mother of twins. He couldn't remember if she had been in the salon before. He didn't remember whether the twins had been there before. He said he forgot the discussion regarding the price for the hair treatments. He did not say he wanted one of the twins or that he could teach them about sex. He did not remember whether he put his arms around DK and walked her to her chair, but he does that "rarely". He couldn't remember their discussion about hair colour. He denied touching DK's breasts. When asked in examination-in-chief if DK became angry with him at some point during the treatment, Mr. Chen replied, "Yeah she just jumped up." He said she jumped up and yelled at him but he didn't know why. She also threatened to call the police. He could not remember if he asked the other employees for help to find out what DK was saying.
[25] Mr. Chen testified in cross-examination that after putting the smock on DK he went to the small room to get the hair treatment. While inside that room he heard a big scream and he emerged from the room to find chaos in the shop and DK upset. He confirmed he was inside the room when DK screamed and didn't see her jump up out of the chair. He asked an employee to take over work on DK's hair as she was not behaving normally. He couldn't remember what his employee said to DK. He didn't ask why DK was so upset. Mr. Chen did remember that DK said she'd call the police but he couldn't remember when that happened. He was not concerned that his client was upset. He blamed his lack of inquiry in that regard to his inability to speak English. He described his interaction with DK overall as, "very normal" to the point where she screamed.
[26] Later in cross-examination Mr. Chen said that his employee had told him that DK had likely, "seen a ghost." That was the reason he was not concerned. He didn't know why she would call the police about seeing a ghost. After DK became upset Mr. Chen said his salon was in chaos. He couldn't remember the details of who finished the twin's hair.
[27] Mr. Chen was asked in cross-examination whether he approached DK's husband and said, "sorry, sorry, sorry" and he said he didn't remember that. He denied he was apologizing to AK. He couldn't remember if he spoke to AK at all. He couldn't remember whether DK was still upset when her husband arrived. He agreed that he couldn't remember anything after the point that the husband came into the salon. In re-examination, Mr. Chen said that he'd asked his employee what had made DK upset. He couldn't remember what she told him but he said, "All of us saw that and she said she must have seen a ghost."
Analysis
[28] I've considered the evidence as a whole and make the findings of fact that follow in that context.
[29] WZ was a calm, direct and forthright witness. She answered questions in a matter-of-fact manner and gave detailed responses. She plainly had a good memory of the day in question. Her description of the incident described a progression from minor contact that could have been incidental to repeated more invasive contact that could only be intentional. The accused's statements at the time show the accused's sexual interest and the purpose behind the contact. Her reaction in blocking the accused's hands with her arms while she pretended to be busy on her cellphone was logical and consistent with her expressed desire to stop the assault and leave. The fact that she came forward in response to a media release was reasonably explained by her reluctance to proceed with a complaint on her own behalf, but her willingness to engage in that process once she realized it might be happening to others. Her odd affirmative response to the suggestion, "that was the first time you realized you'd been assaulted" (post media release) did not make sense in context and was not revisited in cross-examination or re-examination. The whole of her evidence shows that she realized during the procedure at the salon that the accused's touching was for a sexual purpose. It wasn't until the media release that she concluded she needed to come forward.
[30] WZ's evidence was logical and internally consistent. While others may have reacted in a different manner, it's understandable that a young woman with chemicals in her hair would want to finish the procedure and leave without a confrontation. WZ had a detailed memory of the events including the specifics of her conversations with Mr. Chen. I find WZ was a credible and reliable witness.
[31] AE testified in a direct and forthright manner. She reasonably concluded that the first initial contact could have been accidental, but after repeated contact and unusual actions such as tucking a towel into her bra strap where his hand went inside the cup of her bra, she realized that the contact was sexual and intentional. She didn't confront Mr. Chen as she wanted to finish the dye procedure and leave. She complained to police after leaving the salon.
[32] AE's account progressed in a logical manner. She plainly had a detailed memory of the events. Her actions throughout were reasonably explained and consistent with her testimony. The lack of a sexual conversation is reasonably explained by the presence of others in that area of the salon. The accused's actions were plainly of a sexual nature. Her credible evidence is not contradicted by any other evidence or circumstance. I find she was a reliable and credible witness.
[33] DK also had a detailed memory of the events she described. She was responsive to questions both in examination-in-chief and cross-examination. Her account was internally consistent on the key points and also consistent with the evidence of her husband who arrived later. In hindsight she'd likely agree she should not have been patient when the accused made what she took to be joking sexual remarks about her daughters.
[34] When Mr. Chen touched then squeezed her breasts she immediately stood up. Her reaction was a logical response to the accused's action that could not have been accidental. She is older than the two other complainants and she was plainly not afraid to confront Mr. Chen directly in the salon. Her reaction, and the fact that she was upset afterwards, is consistent with her evidence and not reasonably explained by any other circumstance. The fact that she called her husband to attend was logical. Her husband's evidence that the accused repeatedly said sorry to him is consistent with his wife's testimony and consistent only with the assault she described. The accused's statements to the husband about his daughters is consistent with the similar statements described by his wife.
[35] I find that DK was a credible and reliable witness. I make the same finding in relation to her husband.
[36] Mr. Chen repeatedly said he didn't remember details of the three incidents described. On his evidence these were routine hair procedures so they might not stand out in his memory, but his failure to remember many of the details about the incident involving DK which caused what he called "chaos" in his salon was not credible. He was arrested days after that incident on December 30th so the events would have been fresh in his mind. The prior incidents were only a few weeks earlier. I accept that he does not remember his interaction with AE although he remembered dealing with WZ earlier in November. I can place no weight on his general denial of AE's allegations given his complete lack of memory of that incident. Overall I find WZ's lack of memory of specific important details in relation to all three incidents detracts significantly from the reliability of his evidence. His stated lack of memory in relation to the last incident involving DK is not credible and I find that detracts from the credibility of all of his evidence.
[37] Mr. Chen's statements to WZ contradict his evidence that he had no sexual interest in her. His evidence that he is, "not sure" if he could have touched WZ's breasts even by accident is not credible given the repeated contact and the manner of that contact. Her action in holding up her arms to block further touching was consistent with her complaint but not reasonably explained in Mr. Chen's evidence. It's one of the many details he said he couldn't remember. The flurry of messages he sent to WZ after her appointment is consistent only with her evidence and is inconsistent with his description of subsequent casual promotional contact with a customer.
[38] Mr. Chen testified in examination-in-chief that during the hair procedure DK became angry and, "jumped up". His testimony at that point gave no reason why she might have had that reaction. He remembered she yelled at him but again there was no reason for that on his evidence. She was upset and his salon was in "chaos" but again there was no reason for that according to his testimony. He stated in examination-in-chief that he could not remember if he asked the other employees to help find out what was the matter but he wasn't worried about it.
[39] In cross-examination Mr. Chen gave a different account. He said he was inside the back storage room getting hair product when he heard DK scream and he did not see her jump up from her chair. He said he discussed the matter with an employee who suggested that DK had seen a ghost. He had another employee finish her hair treatment. Mr. Chen's evidence was internally inconsistent on the central points and was not credible.
[40] His evidence in relation to DK was illogical and inconsistent with the external circumstances he described. The external circumstances are consistent with and reasonably explained only by DK's evidence. His claimed lack of memory of the dramatic events that resulted in his arrest was not credible. His apology to DK's husband was inconsistent with his evidence but consistent with her credible testimony.
[41] I've considered Mr. Chen's evidence on each count in the context of all of the evidence on that count and I find that Mr. Chen's evidence was not credible on any count. His evidence was not reliable and I can give it no weight. It does not leave a reasonable doubt either alone or in combination with any other evidence on any count.
Similar Fact Evidence
[42] The Crown submits that similar fact evidence among the three counts is relevant to three issues:
- The evidence negates any claim of accidental or incidental contact
- The evidence shows a pattern of behaviour by the accused
- The fact of other similar complaints supports the credibility of the witnesses
[43] In this trial the central factual dispute on each count is whether the Crown has proved that the actus reus was committed. The three incidents occurred within a narrow time frame. There is a high degree of similarity among the three independent complaints. While such evidence is presumptively inadmissible, the defence concedes and I agree that the similar fact evidence in this case is admissible for the purposes outlined above.
[44] With respect to the credibility of the complainants, I note that the similar fact evidence does not go to the accused's general disposition or propensity. The fact of multiple complaints does not itself enhance the credibility of any of the complainants. However, the fact of multiple similar independent complaints is relevant to the issue of whether the Crown has proved that the alleged acts occurred. The credibility of the witnesses is bound up with the proof of the actus reus and the similar fact evidence is relevant to credibility on that basis. See: R v CRB, [1990] SCJ No 31 at paras 40-41, R v RT 2004 BCCA 633 at para 39, R v White 2015 ABQB 601 at paras 10-41.
[45] Similar fact evidence derives its force from an assessment of probability. What is the likelihood that the three women would independently concoct complaints with so many similar features? See: R v Handy 2002 SCC 56 at para 99.
[46] There's no evidence of collusion in this case. None of the complainants knew each other. Two of the complainants approached the police separately on different days. A third complainant came forward after becoming aware of the investigation through a media appeal, but there's no evidence she learned any details of the other complaints prior to speaking to police.
[47] The three independent complaints occurred within a narrow time frame of just over one month. They all involve the accused touching his client's breasts repeatedly while cutting or dyeing their hair. With respect to two of the complainants, there's no intervening acts that could decrease the probative value of their evidence. I've found that the police media release does not decrease the probative value of WZ's evidence in the circumstances of this case. I've found that the evidence that the acts occurred is otherwise credible independent of this analysis.
[48] The defendant did not say that the sexual touching complained of was incidental to his duties in cutting and colouring the women's hair. His evidence was that the sexual touching did not happen. The complaints of sexual assault do not refer to those initial portions of the session where some contact might have been incidental to the service being performed. The complaints are focused on the repeated invasive touching that the complainants say was plainly intentional. There is no evidentiary basis for a defence of accidental or unintentional touching, but as that defence was referred to in an alternative submission, I find that the similar fact evidence shows the sexual touching was intentional. It defies coincidence that three women would accidentally be repeatedly touched in the breast area in the manner described. The consistent pattern shown in the evidence and the degree of similarity over a short period of time leads inevitably to the inference that the acts complained of occurred and that they were intentional.
Conclusion
[49] I can find no credible evidence that reasonably could leave a doubt on any of the three counts. I find that the Crown has proved the charges alleged beyond a reasonable doubt.
Released: July 20, 2017
Justice Joseph F. Kenkel