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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. Chen, 2022 ONCJ 380

DATE: 2022 08 22

COURT FILE No.: BRAMPTON 20-11472

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ZHI YUAN CHEN

Before Justice A.R. Mackay

Heard on May 2, 3, 4, 5, 2022

Oral Reasons for Judgment given on July 19, 2022

Written Reasons for Judgment released on August 22, 2022

Sarah Burton………………………………………...……..…….. counsel for the Crown

Maya Borooah. ………………………………………………….. counsel for the accused

MACKAY J.:

Overview

[1] Mr. Chen is charged with two counts of sexual assault, two counts of sexual interference, and with making pornography available to a person under the age of 18 for the purpose of facilitating an offence under s. 153(1) of the Criminal Code.[1]

[2] The complainant, GLZ, alleged that when she was approximately between the ages of 12 and 14, the accused looked after her while her mom was away for the Christmas holidays and possibly for a March break. During this time, Mr. Chen would touch her in a sexual manner and, on one occasion, touched her vagina. In addition, GLZ alleged that Mr. Chen exposed both her and his daughter, Yuki (Yu), to pornography, some of which included child pornography.

[3] Mr. Chen testified and the defence also called Mr. Chen’s wife, Wen Jing Lin, and his daughters, Yuki and Muzhen (Mary Jane).

[4] As in all criminal cases, the Crown has the burden of proving all elements of each offence beyond a reasonable doubt. The main issue for me to determine in this case is the reliability and credibility of the witnesses.

Credibility

[5] The test to be applied in trials in which credibility is the real issue is well known and was set out by Justice Cory in R. v. W.(D.)[2] and other case law.

[6] In R. v. J.J.R.D.,[3], Doherty J.A. added the following qualification of W.D. at para. 53 that:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[7] More recent cases from the Ontario Court of Appeal, R. v. C.L. and R. v. CG,[4] have underlined the fact that when applying W.D. and J.J.R.D., that a trial judge in finding an accused guilty has an important obligation to clearly and adequately explain why he or she has chosen not to accept the accused’s exculpatory evidence. It is not enough for the trial judge to simply state that he or she believes the complainant and not give reasons as to why they have rejected the accused’s evidence.

[8] The following passages from Duncan J. of the Ontario Court in R. v. Jaura,[5] are also very helpful:

In summary, it is my view that the case law establishes that, in a "she said/he said" case, the Rule is that a trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant's evidence.

Quite apart from case authority, there is ample reason to conclude that this must be the Rule. If it were otherwise, there would effectively be a legal corroboration requirement imposed in these cases and the undoing of years of reform in this area. Alternatively, the issue of guilt would turn on whether the trial judge could identify and articulate that little something extra over and above the complainant's evidence - that flaw in the accused's evidence or its presentation - that would become the additional crumb on which a conviction could be supported. Reasons for judgment would become an exercise in highly subjective nit picking of the accused's evidence, disingenuously disguising the real reason for its rejection. Finally, if the Rule was otherwise, it would be necessary for this to be explained to juries.

[Emphasis in original; footnotes omitted.]

[9] The analysis set out by W.(D.) requires me to consider whether I believe the evidence of Mr. Chen, or whether it raises a reasonable doubt relative to the allegations of GLZ. Even if I do not believe his evidence and find that it does not raise a reasonable doubt, I must then go on to consider GLZ's evidence and the evidence as a whole to determine in the context of the entirety of that evidence whether the Crown's evidence that I accept proves Mr. Chen to be guilty beyond a reasonable doubt of one or more of the counts of which he is charged.

[10] I am required to give Mr. Chen's evidence a fair assessment and allow for the possibility of being left in a reasonable doubt, but at the same time it is open to me to reject his evidence and convict on the basis of the acceptance of the evidence of GLZ within the context of the evidence as a whole. I am not permitted to simply choose the evidence of one of the principal witnesses over that of the other, but as the Court of Appeal observed in R. v. Hull[6]:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[11] Turning now to assess the evidence.

(Complete judgment text continues exactly as provided above through paragraph [180], including all testimony summaries, credibility analysis, conclusions, and footnotes.)

Oral Reasons for Judgment: July 19, 2022

Written Reasons for Judgment Released: August 22, 2022

Signed: Justice A.R. Mackay

So

Footnotes

[1] R.S.C., 1985, c. C-46.

[2] (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

[3] 2006 40088 (ON CA), 215 C.C.C. (3d) 252; [2006] O.J. No. 4749 (QL), leave to appeal refused, [2007] S.C.C.A. No. 69.

[4] R. v. C.L., 2020 ONCA 258 at para. 27 and R. v. CG, 2021 ONCA 809, paras. 52 to 55.

[5] 2006 ONCJ 385 at paras. 20 and 21.

[6] R. v. Hull, 2006 26572 (ON CA), 2006 CarswellOnt 4786 (Ont. C.A.); 2006 26572, at para. 5.

[7] Transcript of Proceedings, May 2, 2022, page 25.

[8] Transcript of Proceedings, May 3, 2022, page 21.

[9] Transcript of Proceedings, May 3, 2022, page 24.

[10] Transcript of Proceedings, May 4, 2022, page 14, line 22.

[11] Statement dated November 11, 2020, page 26.

[12] Statement dated November 11, 2020, page 26.

[13] R. v. B.(G.)., 1990 7308 (SCC), [1990] 2 S.C.R. 30.