ONTARIO COURT OF JUSTICE
CITATION: R. v. Ciftci, 2019 ONCJ 46
DATE: 2019 01 25
Toronto Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MUSA CIFTCI
Before Justice L. Feldman
Heard on September 12, 13, 2018
Reasons for Judgment released on January 25, 2019
K. Stratos.............................................................................................. counsel for the Crown
A. Hussain................................................................. counsel for the accused Musa Ciftci
FELDMAN J.:
[1] Musa Ciftci entered a not guilty plea to sexual assault. It is alleged that after repairing a refrigerator at the complainant’s apartment Mr. Ciftci improperly touched certain parts of her body for a sexual purpose. Mr. Ciftci denies the allegations.
[2] The Crown called the complainant, J.G. in support of its case. Mr. Ciftci testified in his own behalf. He also called his wife, Manjola Lacka, who was the superintendent of the apartment building where these events occurred, and Louiza Qylfai, an administrator at the same building, as witnesses for the defence.
[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the prosecution.
The Evidence
[4] J.G. lives with her fiancé in an apartment at […] Ave. in Scarborough. She is 63 years old and has some disabling conditions, including fibromyalgia and epilepsy. She is also clinically blind. On Nov. 23, 2017, Mr. Ciftci, an assistant superintendent, came to the complainant’s apartment to fix the refrigerator. Ms. J.G. was alone. She says the defendant spoke to her in accented English the entire time he was in the apartment. In her opinion, “he has no difficulty with English”.
[5] Mr. Ciftci wanted to plug in a hair dryer to use to melt the ice in the freezer as part of the repair process. Ms. J.G. told the court that because the outlet was defective she first unplugged the coffee machine to prevent an electrical short. She says that while she was doing this, the defendant came up behind her and pressed his erect penis into her bottom. She pushed him away. She claims he apologized but said he wanted to have sex with her.
[6] Ms. J.G. says she got away and left to sit down in a living room chair in front of the television. She claims Mr. Ciftci followed her in after a few minutes and began to suck on her right ear. To do this he would have had to lean from the left side over the back of her chair that was pressed up against a lamp and other furniture. She says she turned around and pushed him away. She told the court he again said that he was sorry but wanted to have sex with her.
[7] Ms. J.G. says he next began sucking on her neck. She pushed him away. She recalls that he once again said he was sorry but that he wanted to have sex with her. What followed, she contends, was that the defendant reached under her sweater and grabbed each breast. Again she pushed him away. She says he apologized, telling her once more that he wanted to have sex with her, following which he began to massage her foot after coming in front of her and bending down between her legs in order to do so. She pushed him away. She says the defendant repeated his desire apparently in the exact same words.
[8] Ms. J.G. testified that during the course of these alleged assaults she told Mr. Ciftci many times to leave, but he refused, indicating he intended to finish his work. He returned to the kitchen and did so, after which he left. She claims he told her he would return on Monday, with money, to have sex with her. Ms. J.G. says that while the defendant was still there she called her fiancé who told her to call the police, which she did.
[9] The complainant told the court she had not called the police earlier as she was afraid of the accused who was taller than her. She also did not leave the apartment as her fiancé had told her never to leave without locking the door as he didn’t trust the people working in the building. Despite his direction, he had not given her a key. Her reasoning in the circumstances is questionable.
[10] Shortly after the defendant left, Mr. Ciftci’s wife came up to ask the complainant how the refrigerator was working. Ms. J.G. says she told Ms. Lacka what her husband had done to her. The complainant informed her that she had called the police. She says Ms. Lacka threatened to have her evicted if she did not apologize to her husband for making the allegation. The superintendent does not have that authority.
[11] When the police came, they took saliva samples from the complainant’s ear, neck and the inside of her mouth. The saliva from the ear and neck had a male’s DNA, in addition to that of the complainant. Ms. J.G. told the court that her fiancé had not touched her ear or neck the previous night or morning, as “we hardly hug or cuddle at all”.
[12] In cross-examination, Ms. J.G. also indicated that the defendant kissed her on the cheek “after-the-fact”, although she did not mention this in chief. She believes the defendant was fired.
[13] The Defendant’s Evidence
Mr. Ciftci is 56 years old. In his evidence, he denies touching or kissing the complainant. His responsibilities involved the maintenance of the building, including cleaning, changing the garbage bins and repairing defects in individual apartments. He had been working there for 8 months at the time of these events. He speaks Albanian and Turkish and claims that at the time almost no English. He says that his son, a co-worker or his wife explained tasks to him.
[14] He is currently in an ESL class in Saskatchewan where he settled his family after this complaint. In this regard, he explained that while his employer was prepared to move him to a different building to continue his work, he was devastated by the allegation and decided to move back to Saskatchewan where he had first settled on arrival in Canada 3 years ago.
[15] Mr. Ciftci testified that on Nov. 23 he brought a hair dryer to the complainant’s apartment to melt the ice that was blocking the air tube in the freezer. He said that he then understood very few words in English, although he comprehended more that he could speak. He recalls being yelled at by the fiancé earlier and then by the complainant whom he claimed not to understand, which is what he told his wife. He says that in any case he has trouble getting an erection.
[16] Manjola Lacka recalled that her husband told her the complainant was upset and nervous. She went to her apartment to find out what happened. She knew her husband spoke little English and wanted to clear up any misunderstandings. She says Ms. J.G. was angry and told her the defendant had touched her on her neck and breast and that she had called the police. Ms. Lacka defended her husband. She denies telling the complainant to apologize to her spouse. She says she doesn’t have the authority to evict tenants.
[17] After her husband’s arrest and release, management offered to transfer both of them to a different building. She says Mr. Ciftci decided to find different work and to rebuild their lives in a different province.
[18] Louiza Qylafi is a rental consultant and administrator for a number of buildings, including […] Pharmacy Ave. He says he often interacted with the defendant, although most of his contact was with Ms. Lacka. He would describe Mr. Ciftci’s facility in English at about 10%. He says Ms. J.G. and her fiancé complained a lot and were not easy to deal with. There were no complaints about the defendant from other tenants. He agrees that the accused was not fired, but decided to leave for personal reasons. Mr. Qylafi confirmed that none of the staff have the right to evict tenants, or even recommend such a course of action.
Has the Crown Met its Onus of Proof?
[19] I found the complainant’s evidence to be generally credible. She was consistent in her testimony about having her physical privacy and integrity violated. As well, the saliva samples supported her version of events, although her fiancé was not ruled out by objective evidence.
[20] At the same time, there are some aspects of her evidence that raise reliability concerns. The complainant’s statement that “he has no difficulty in English” is belied by the testimony of Mr. Qylafi. In addition, it is possible, but unlikely, that the defendant used the same exact mantra each time when purportedly rebuffed. Also, the complainant’s reasoning for not walking out of the apartment and seeking assistance when assaulted is difficult to comprehend. Finally, it is also possible that Ms. Lacka demanded an apology and threatened to have Ms. J.G. evicted. But I have some doubt that the superintendent would put her employment at risk of a complaint by a tenant described by Mr. Qylafi as not easy to deal with.
[21] I was not impressed with Mr. Ciftci’s evidence. While I accept he struggled with language, the defence evidence indicated that he was not without some ability to express himself in a rudimentary way, surely necessary to do some of his work for tenants. His mention of erectile dysfunction was more self-serving than helpful. I also view his wife’s evidence as lacking objectivity and place reduced weight on it, unlike that of Mr. Qylafi, a relatively independent witness.
[22] On all the evidence, it is probable that the defendant assaulted Ms. J.G. as she alleges, but I am not satisfied of that fact to the near certainty required in the authorities. In the result, the charge will be dismissed.
Released: January 25, 2019
Signed: Justice L. Feldman