WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: July 16, 2018
Court File No.: Toronto
Between:
Her Majesty the Queen
— and —
Z.C.
Before: Justice S. Chapman
Heard on: February 7, 8, 9 and June 12, 2018
Reasons for Judgment released on: July 16, 2018
Counsel:
R. Liberman — counsel for the Crown
J. Neuberger — counsel for the accused Z.C.
CHAPMAN J.:
Overview
[1] As a result of events said to have taken place between February 1 and October 30 of 2016, the accused faces a number of serious charges including: sexual assault, assault, forcible confinement, theft, mischief and uttering a death threat. The trial proceeded on February 7, 8 and 9 and concluded with submissions on June 12.
[2] There were two witnesses at trial: Ms. F.Y. and the accused, her former husband, Mr. Z.C. They provided very different versions of events. In determining whether or not the Crown has proven its case beyond a reasonable doubt, the sole issue I must decide is one of credibility.
[3] In doing so, it is important to bear in mind that a criminal case is not a credibility contest. The issue is not who I believe more, or which version of events is more likely. Rather, I must be satisfied beyond a reasonable doubt of the guilt of the accused in order to find him guilty of the offences alleged.
[4] This requires an analysis of the evidence.
The Nature of the Allegations
[5] Ms. F.Y. and Mr. Z.C. met in August of 2015. They started a romantic relationship at the end of August and just six months later were married on February 17, 2016. He was 19 years old. She was twenty. Between August and February of 2016 they mostly got along. However, just before they got married there was an argument. Ms. F.Y. testified that the accused threw his shoes and cell phone at her and that she was bruised. Despite this argument, they both agreed to go through with the marriage on February 17, 2016. It was a civil ceremony attended only by her friends and not his.
[6] There are no allegations of domestic violence between February and June of 2016. However, Ms. F.Y. testified that on June 19 the accused forcibly confined and sexually assaulted her. On that date they had an argument over his going out with his friends and not her. According to the complainant, the argument took place in Mr. Z.C.'s car. She testified that she was worried because it was a closed in area so she decided to get out of the car to avoid further conflict. As soon as she got out of the car he drove away. She then phoned her friend who lived close by and asked her to pick her up and drive her home. As she was walking towards her friend's home the accused drove back and forced her into his car. He grabbed her by one arm dragged her towards his parked car. She struggled with him but he succeeded at pushing her into the back seat of his car. She didn't say anything as he drove them home. When they arrived home he stopped the car and she told him that she needed to get something out of her own car. She then went to her car and drove away because she feared for her safety.
[7] When she got away, Ms. F.Y. testified that she went to Yonge Street and Finch Avenue, bought some food and stayed in her car for quite a while. She went home later that night and the accused was not there. She turned off her cell phone and started to charge it. She then got into the shower. According to the complainant, the accused returned home and took her directly out of the shower and dragged her by the arm into the bedroom. She had no clothes on. He pushed her onto the bed and started kicking her in the left thigh area. As he assaulted her, he told her that he was very angry with her for having driven away from him earlier in the day as he ran after her car. He continued to hit her with his hands all over the body. He then tried to cover her face with a pillow. She told him that she could barely breathe and he removed the pillow. She asked to return to the shower and he insisted on having sexual intercourse with her first. She told him that she did not want to but he proceeded nonetheless. She lay there "just like a dead person" and stopped struggling as she felt it was useless. After intercourse, she returned to the shower.
[8] The next set of allegations relate to events said to have occurred at some point between August 22 and September 17 of 2016. According to the complainant, during this time frame, both she and the accused were working at a cellphone store in the Pacific Mall. She was a salesperson and he was working fixing phones. They had a verbal argument that escalated. He kicked over the chair, causing her to fall to the floor. This was during hours when the store was open and the mall was busy. She then grabbed her purse and started to leave the store. He grabbed the purse away from her and threw it on the floor. As she bent down to pick up the items from the purse that had fallen on the floor, he stepped on her hand. She then called a friend and asked her to pick her up. The accused overheard the conversation and told her that she could not leave the store until it closed. She called her friend back and this time he knocked the phone from her hand and damaged it. She then tried contacting her friend on her iPad and he took it, as well as her money, bankcard and keys, away from her. She eventually took the bus home that day.
[9] On September 18, 2016 the complainant and the accused went to China for a month. They travelled to China together but mostly visited their own families in different cities. Mr. Z.C. also visited the complainant and her family in her home town. He stayed in a hotel and they got together. When they did, the complainant found pictures of the accused kissing another woman and became very upset. She took a cab home. Later that evening she went back to his hotel room to discuss divorce. He apologized to her and started banging his head on the wall. He then slapped her on the face. He told her that he did not mean to slap her and again apologized. As she went to leave, he pushed her onto the bed. As he did so, her head hit the clothes-stand near the bed. It was very painful and she lay on the bed for some time before leaving the hotel and returning to her parent's home.
[10] In October of 2016 both the complainant and the accused returned to Canada from China on the same flight. That night they stayed together in their apartment. The complainant testified that the day after they had returned from China, they were still at their apartment when she found out that Mr. Z.C. had been communicating with another young woman. When she confronted him, he got down on his knees and begged for forgiveness. He invited her to slap him. She did. He then choked her around her neck, using both of his hands. It was painful but left no injury. She told him that she was dying and he stopped. She left the apartment that same day and took most of her belongings with her. She spent the night at a friend's home.
[11] The next day Ms. F.Y. returned to the apartment to retrieve the rest of her belongings including her laptop. She testified that when the accused returned her laptop to her that day he had written a letter to her on it. That letter was identified by the complainant and filed as Exhibit 1 at trial. The letter is dated October 20, 2016 and appears to have been written at about 4:00 a.m. In the letter it states: "several days before the marriage because of some argument I assaulted you physically. Now, when I look back, I don't know why I did that. I also feel I am foolish…. But you chose forgiveness and even agreed to marry me, but I on the other hand didn't know what was right from wrong and actually laid hands on you again as you were trying to leave after the argument… ". There are also references in the letter to the decline of the relationship, the accused losing his temper, on occasion, and his desire "to do better". The accused testified and denied that he wrote this letter.
[12] Then, around October 24, there was a night when Ms. F.Y. went out with her friends. By this time she was staying at a friend's home. Mr. Z.C. knew that she had been drinking and offered to drive her home. Eventually she accepted his offer. He picked her up but she soon realized that he was not driving her to her friend's home but instead back to his place. He grabbed her by one of her arms and started dragging her down the stairs leading to his basement apartment in the house. During the struggle she fell down the stairs and hurt herself. She then walked into the living room and started to call an Uber. Mr. Z.C. then took her cell phone away from her. She asked him what he wanted. He said that he wanted to have sex with her. He promised her that she could leave after sex. She didn't want to have sex with him but did not struggle believing that it was hopeless and that she would be permitted to leave afterwards. Following the sexual intercourse he drove her back to her friend's place.
[13] On October 29, 2016, Ms. F.Y. approached the accused at a club that they were both partying at with their respective friends. She testified, in-chief, that she approached him that evening to say hello. They had separated and attended a lawyer's office on October 24 to initiate their divorce and she wanted to talk to him just as a friend. He offered to take her home. This made her angry as she interpreted it as a suggestion that they have sex. She thought it was disrespectful in all of the circumstances. Later in the evening she drove over to his place. She sat in her car and waited until he returned home. When he drove up, they remained in their parked cars, driver's window to driver's window, and talked. Ms. F.Y. testified that the accused told her that she was the one "looking for trouble". She then got annoyed and started to drive away, "but the rear part of his car blocked my way out" and she hit his car. She returned to the front of his house and hit his car again. The complainant testified that she hit the accused's car two times by accident because she was upset.
[14] After the second time that she hit his car, the accused tried to drag the complainant out of her car through the driver's side window. He grabbed her by the collar and, in so doing, scratched her left shoulder area. She was scared and drove back to her friend's place where she was staying. On her way, the accused called her and told her that she could not go home "because you're going to die in my hands." She drove home fast, woke up her roommate and locked all of the doors and windows. The accused arrived and started knocking at her door. She then called the police. The police took pictures of the complainant on October 30. One of those photos was filed as Exhibit 2 in the trial proceedings and clearly shows three scratches on the complainant's left shoulder.
[15] The complainant and her friend also took pictures of her over the course of her relationship with the accused. Those pictures were filed at trial as exhibits 3 A to G. Unfortunately, the photographs are undated. They were sent to police by email, by the complainant, a few weeks following her police interview.
Accused's Evidence
[16] Mr. Z.C. testified at trial. He denied all of the allegations. He also denied getting into Ms. F.Y.'s WeChat account and creating false messages under her name. If I accept his evidence as true or possibly true, or at least capable of raising a reasonable doubt, I must acquit. I have considered his evidence carefully and concluded that it does not raise a reasonable doubt for these reasons:
During his evidence, the accused tried to paint a distorted picture of his relationship with Ms. F.Y. He testified that he never loved her and only married her as a "favour" for immigration reasons. Yet his correspondence to her, filed in evidence, belies that fact. For example, in an exchange on October 20, he accuses her of only marrying him for immigration reasons and insists that he married her "purely out of love";
Mr. Z.C. insists that Ms. F.Y. was the aggressor in the relationship, but he never mentions that fact in any of his correspondence with Ms. F.Y. or her mother, even when confronted with his own allegations of physical abuse;
Mr. Z.C. agreed that they had an argument in the phone store at the Mall. However, on his version of events, Ms. F.Y.'s cell phone got broken when she threw it at him and not the other way around. However, in cross-examination, he admitted that he bought her a brand new iPhone 7 as a result of the incident – which makes little sense if it was being used as a weapon against him. It makes more sense that he purchased it for her to replace the one he had broken;
Mr. Z.C. sought to minimize the obvious anger he had in this relationship. For example, he tried to maintain in cross-examination that he was not angry with the complainant when she hit his car on the evening of October 29 / morning of October 30 – two times. That's hard to believe. He testified that he only followed her home following this incident because he was worried about her safety. I do not accept his evidence in this regard;
Mr. Z.C. tried to explain the scratches on Ms. F.Y.'s neck, as depicted in Exhibit 2, (a police taken picture on October 30, 2016) by suggesting it happened by accident when he reached in and grabbed the steering wheel of her car, in the hopes of directing it away from his car. The pictures show an injury that clearly looks to be long red scratches on her neck. Mr. Z.C. inflicted those injuries and I don't believe that he did so because he was reaching into her car merely to grab the steering wheel or otherwise by accident; and
Ms. F.Y. testified that following the car "accident", the accused followed her back to her friend's place and started knocking on the door, which frightened her because he had called while en route and threatened to kill her. Mr. Z.C. testified that he never got out of his car and that he certainly did not knock on the door. However, that someone is knocking on the door is clear from the 911 tape of her call to police and I find that it was him.
[17] Perhaps most significantly, Exhibit 16 was put to Mr. Z.C. in cross-examination. Mr. Z.C. admits that he had an electronic exchange with his former mother in law, the mother of the complainant, while she is in China and he was in Canada. In that exchange she accuses him of hitting/beating her daughter, the complainant. In response to the allegation Mr. Z.C. told his former mother in law: "I don't know what my problem is, I can't control my hands." She tells him that in that case he needs to see a psychologist or a psychiatrist to which he responds: "I understand, I very much regret it. I'm working diligently to change/improve." And "I've already made an appointment with my family doctor, adjust my mental state/emotional state. Also need to rely on myself to change". During cross-examination, Mr. Z.C. tried to explain away his apparent admissions on the basis that he was admitting to perhaps using excessive force in repelling Ms. F.Y.'s assaults upon him. I do not accept that evidence and it is contradicted by the plain language of the exchange.
[18] For these reasons, I do not accept Mr. Z.C.'s denial of the allegations. Nor does his evidence raise a reasonable doubt. I am therefore obliged to consider the totality of the evidence in order to determine whether the Crown has proven its case against the accused beyond a reasonable doubt. I find that, with the exception of two counts in the information, it has not for the following reasons.
The Crown's Case
[19] I do find Ms. F.Y. to be generally a credible witness. I think it likely that she did suffer abuse at the hands of the accused. However, there are problems with her evidence that cause me some concern. I did not find her to be entirely forthright with respect to the dynamic in the relationship. For example, she testified in-chief, and maintained in cross-examination, that it was an accident that she hit Mr. Z.C.'s car two times in the early morning hours of October 30, 2016. That is hard to believe, particularly in light of her text message to him earlier that evening, (Exhibit 10) in which she threatens to smash his car and tells him that: "you can go home in a convertible!" That she was mad at him, and even that she hit his car does not itself necessarily undermine her allegation of abuse. However, it is the lie that is problematic. Further, it is not just a lie about an entirely peripheral matter. It suggests that the complainant was not providing the court with a full account of the dynamics associated with at least some of the alleged incidents.
[20] Similarly, after she called the police on October 30, 2016, Ms. F.Y. provided the following troubling advice to the accused by way of text message:
"just don't say you've consumed alcohol and everything should be fine. Remember that. Otherwise, both of us would be driving under the influence." She tells him to "just wait" for the police to arrive. And "at worst I would be paying for your car repair".
[21] There are other problems with her evidence as well:
In cross-examination, Ms. F.Y. at first denied writing disparaging things about the accused on Weibo and even suggested that the comments put to her "could be directed at anyone". However, she eventually admitted to authoring them and that they were indeed about the accused;
Mr. Z.C. testified, during his evidence in chief, that over the lunch break on the second day of trial the complainant posted on WeChat the following message:
"Fuck you, you are done, it's that simple. Come on, fake an account to get a sneak peek into my moments. fuck, an easy person – a nice person is an easy target to the bullies. I am here to get you to die today. Z.C., you fucking disgust me."
No denial of her authorship was adduced in reply;
Ms. F.Y. suggested that she approached Mr. Z.C. in the Cargo nightclub, on the evening of October 29, because they had just separated and she wanted to say "hi", like a friend. However, in light of the angry texts she sent him that night, and subsequent events, it would seem highly unlikely that this was her intention that evening. If her allegations are true, she has every right to be angry. But a lie about the events in question undermines her credibility;
When the 911 call was played for her in cross-examination Ms. F.Y. initially declined to admit that it was her voice on the tape;
It is clear from the evidence that Ms. F.Y. was trying to track and control Mr. Z.C. This is not entirely surprising given his admissions of infidelity. However, it does speak to the overall dysfunctional nature of the relationship. In one of her texts to him she asks him: "If I asked you to kill your mom would you?"; and
On October 30 Ms. F.Y. calls for police to attend. She then calls back to cancel the call, apparently because they were taking too long. When she was told that the call could not be cancelled, she contacted the accused and asked him to return to the home. This seems a little strange if she really did fear for her life. She does not mention his purported death threat to her in the 911 call.
[22] The defence argue that I should also not believe Ms. F.Y. about the allegations of abuse because: she does not mention physical abuse in her exchanges with him, she does not seek medical attention, and she continues to socialize with him following the abuse, including asking him for a ride home. None of these things cause me concern in the context of this case. There is no suggestion that any of the physical injuries required medical attention. Further, her failure to report the allegations to the accused and/or her decision to continue to associate with him are not factors that necessarily undermine her credibility. Afterall, this was an ongoing domestic relationship.
[23] In cross-examination a number of "WeChat" and text messages were put to the complainant and said to contain communications between her and the accused starting on October 17, 2016 and following. She admits to having engaged in most of the exchanges, that is those contained in exhibits 4 to 10. Exhibit 10 is problematic for reasons stated above.
[24] Ms. F.Y. denies participating in three other electronic exchanges said to have been initiated by her in November of 2017, January of 2018 and one undated. Those exchanges were subsequently identified by the accused and made exhibits 13, 14 and 15. Ms. F.Y. referred to these messages as "fake". The messages, if written by her, are very angry and threatening. Based on the evidence adduced, there is really no way to determine whether or not she authored the messages. However, on balance, I suspect Ms. F.Y. is the author of those messages. Their content is similar in nature and tone to other exchanges with the accused that she does admit to participating in.
[25] Similarly, Exhibit 1 is a letter the complainant says the accused wrote to her on her laptop. The accused denies writing it. The letter is said to corroborate the complainant's allegations. However, I need to believe that she is being truthful about the authorship of the letter itself in order to have it corroborate her allegation. Corroboration is not required. But when it is offered, it must be independent in order to be useful. Otherwise, it is mere "bootstrapping". The letter contains admissions by the accused, but its authorship is in dispute and not proven beyond a reasonable doubt and therefore I place no reliance upon it.
Conclusion
[26] In conclusion, I find that this was a very young couple in a very dysfunctional relationship. I am not satisfied beyond a reasonable doubt in relation to the majority of the charges against Mr. Z.C. because, for the most part, the complainant's evidence stands alone in providing proof. However, with respect to two incidents I do find that her evidence is sufficiently corroborated such as to satisfy me beyond a reasonable doubt of the accused's guilt. In particular, I find that the accused did assault Ms. F.Y. on the evening of October 29, into the morning of October 30, 2016, when he scratched her neck. That these injuries were inflicted upon her is confirmed by the only police taken photograph adduced in evidence, Exhibit 2, and it was taken that same day. I accept her evidence that Mr. Z.C. tried to pull her out of her car as she was attempting to drive away. I reject his evidence that this was an accident. Contrary to his evidence, clearly he was mad at the complainant and grabbed her out of anger causing clear fingermark scratches on her neck.
[27] As well, I find beyond a reasonable doubt that Mr. Z.C. did throw and break Ms. F.Y.'s cell phone at the Pacific Mall in the later summer/early fall of 2016. It is essentially an agreed fact that he bought her a new phone following this incident and I find that he did so because he was the one that broke the phone. Accordingly, I find him guilty of mischief.
[28] With respect to the remaining charges, I find the accused not guilty.
Released: July 16, 2018
Signed: Justice S. Chapman
Footnote
[1] In the transcript of the trial proceedings of February 9, 2018 it is noted that the audio recording of the proceedings was stopped without direction from the court. I have reviewed my notes and it is clear that court was on break during the twenty minutes in question (3:33 to 3:53 p.m.) and there is nothing missing from the transcript of the evidence.