ONTARIO COURT OF JUSTICE
DATE: 2025-03-28
COURT FILE No.: Toronto 4811-998-22-10007426-00
BETWEEN:
His Majesty the King
— AND —
Yinuo Liu
Before Justice Christine Mainville
Heard on August 8, September 11, 12, 13, December 12, 2024 and January 24, 2025
Reasons for Judgment released on March 28, 2025
Marnie Goldenberg ............................................................................ counsel for the Crown
Brian Greenspan and Anna Zhang ............................................ counsel for the accused
Mainville J.:
[1] The accused Mr. Liu and the complainant Ms. Yu were international students at the University of Toronto, and in a dating relationship. Ms. Yu testified that in November of 2022, she learned that Mr. Liu was cheating on her. On December 4, 2022, after she confronted him with this information, she says he threatened to kill himself with a knife and what appeared to be a real firearm. She had seen this weapon before at his home.
[2] The police seized and analyzed this weapon, which turned out to be an airsoft bb handgun. They also seized an airsoft bb rifle from the accused’s residence, along with police paraphernalia.
[3] Ms. Yu testified that Mr. Liu had sent her and posted on social media a photo of himself in a police uniform. She had also seen him wear this uniform inside his apartment. She testified that he represented himself as a police officer, that she believed he was a supervisor with the Toronto Police Service (TPS), and that that is why she believed he had real firearms.
[4] After Ms. Yu reported the matter to the police and a search warrant was executed at Mr. Liu’s residence, he was charged with assault, forcible confinement and criminal harassment by threatening conduct in respect of the December 4th incident. He was also charged with possession of three weapons for a purpose dangerous to the public peace, and wearing a police uniform in a manner to have people believe he was a peace officer.
[5] Ms. Yu was the central witness for the prosecution. The parties agreed on certain facts set out in an agreed statement of facts, and I heard from police officers involved in the search of Mr. Liu’s residence and analysis of the weapons seized. Mr. Liu did not call a defence.
[6] The issue for me to decide is whether the Crown has proven the charges beyond a reasonable doubt. In this case, this primarily turns on Ms. Yu’s credibility and reliability.
The Principles to be Applied
[7] Mr. Liu is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt.
[8] Reasonable doubt is based on reason and common sense. It is logically connected to the evidence or lack of evidence. It is not enough for me to believe that Mr. Liu is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
[9] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether the witness was trying to tell the truth and if the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence.
[10] Testimony can be assessed through a non-exhaustive list of factors, including the plausibility of the evidence; the presence of independent supporting or contradicting evidence; the internal and external consistency of the evidence; the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, the witness’ demeanour while testifying.
[11] I will assess the elements of the offences as needed in my below analysis.
General Credibility and Reliability Assessment
[12] I found serious issues with Ms. Yu’s evidence. The animosity and resentment she still feels towards Mr. Liu is palpable. It was apparent throughout her testimony that much of what she had to say was intended for his ears. Remarks were made that were clearly directed at him and intended to send a message to him. They were not responsive to the questions asked. Emotional reactions such as mocking laughs were signals to him.
[13] I do not place much weight on Ms. Yu’s demeanour, which may also have in part been the product of nerves, but the whole of her testimony made clear the intent of her complaint to the police and testimony before the court: this was retribution.
[14] This sentiment is captured quite plainly in text messages Ms. Yu sent a friend shortly before the December 4th incident, after Ms. Yu had been informed of Mr. Liu’s cheating. These messages were sent in the context of Ms. Yu having informed Mr. Liu that she was returning to China. She informed the friend that she had “hoodwinked” her ex-boyfriend, and stated: “When you stage a play, do the whole thing”. She wrote to the friend that she was “laughing to death”.
[15] When confronted with these messages in cross-examination, Ms. Yu questioned whether she had in fact lied to Mr. Liu when she told him she was going to China, testifying that her plans were simply not finalized when she told him, and she ultimately decided against it. She explained the “hoodwinking” message by stating that this was a friend she was not particularly close to, so she did not want to share her plans.
[16] This answer and her entire testimony about these text messages makes no sense. Ms. Yu was evasive in response to this line of questioning and tried to change the subject. I entirely reject her explanation of this series of messages. They plainly demonstrate that she was intent on teaching Mr. Liu a lesson.
[17] After the December 4th incident and just prior to going to the police, Ms. Yu learned that Mr. Liu had in fact cheated on her with not just one, but several women. She confronted him alongside several other individuals and posted negative comments on social media about him. She encouraged people to share her negative posts widely. She sought evidence against him to bring to the police. She fabricated a fake phone call about someone threatening her in an effort to have him admit to carrying a knife and gun. She already had text messages admitting as much, but thought they were not specific enough – she agreed with the suggestion that she wanted to make sure she nailed him.
[18] Ms. Yu in fact admitted in her testimony that she wanted to teach Mr. Liu a lesson in how to respect a lady properly. She agreed that she was very angry when she found out he was cheating on him, as she was deeply in love with him. After Mr. Liu was charged, she sent him a message asking if he was remorseful about cheating on her.
[19] It is abundantly clear that Ms. Yu wanted to teach Mr. Liu a lesson after learning that he had cheated on her. She still had this agenda at trial, as reflected by some of her answers that were intended to send him a message, rather than being provided in an effort to tell the truth plainly and directly, to the best of her ability.
[20] While her feelings are understandable, the extent of her animus toward Mr. Liu – which clearly continues to this day – causes me to approach her evidence with great caution. It was apparent to me that several answers she provided were untruthful or intended to mislead. She at times contradicted herself, providing answers in response to certain questions that suited her in that moment, despite those answers being wholly implausible or contradicting things she had previously stated. In several instances, she failed to directly answer the questions asked.
[21] I certainly cannot say that Ms. Yu testified in a fair and balanced manner. She was not candid in her responses or trying as best she could to assist the court in arriving at the truth. She was an untrustworthy witness.
[22] I therefore have serious concerns about the credibility of her evidence, which informs my analysis of whether the Crown has proven all essential elements of the offences charged.
Events Leading up to December 4th
Impersonating a Peace Officer
[23] Mr. Liu is charged under s. 130(1)(a) of the Criminal Code that between August 1st and September 30th, 2022, not being a police officer, he wore a uniform in a manner to have people believe he was a peace officer.
[24] The Crown argues that I may find that Mr. Liu impersonated a peace officer within this timeframe based either on his representations to Ms. Yu or his social media post that depicted him in what resembles a police uniform.
[25] I first address the representations that Ms. Yu claims Mr. Liu made to her, and her testimony that she believed him to be a police officer based on his representations that he was the youngest serving supervisor for the TPS.
[26] Ms. Yu knew that, like her, Mr. Liu was a 19-year-old full-time student at the University of Toronto on a student visa. She believed this to be the case not only based on his representations, but based on the fact that they attended a class together.
[27] When questioned about how she could therefore have believed him to also be a TPS supervisor, Ms. Yu explained that she did not know how the police system works here in Canada. But even if she could have believed, on his word, that he was a TPS supervisor, she testified that she also believed him to be an Air Canada pilot because he owned an Air Canada captain uniform, and she claims he once asked her to drive him to work. She also indicated that Mr. Liu purported to be an American citizen who was going to fight on behalf of the American military, and that he was also the prince of Laos. She giggled as she testified to the latter.
[28] In my assessment, her claim that she genuinely believed him to be a police officer based on representations he made is not believable.
[29] Ms. Yu acknowledged that, although she had seen Mr. Liu in his police outfit, she never saw him exit his apartment or apartment elevator with it.
[30] She reported that she did see him wearing it in pictures he posted on social media. When asked in direct examination whether there was any message about why he was in that uniform in the associated social media, she answered no.
[31] In cross-examination, Ms. Yu acknowledged that the picture of Mr. Liu in the police outfit had been posted on his Instagram account on October 31st, 2022. Another was followed by a pumpkin emoji. Ms. Yu claimed that it wasn’t until this very moment, in cross-examination, that she realized he was posting on Halloween. She also claimed she had received the picture from Mr. Liu earlier, in June, though not through a social media posting.
[32] Though Ms. Yu may have received the picture of Mr. Liu in uniform or a similar one earlier in time, in a one-on-one communication with him, I reject her evidence that she never previously realized that the social media post of him in uniform was related to Halloween.
[33] Yet Ms. Yu never disclosed that the police uniform photograph she identified as having been posted by the accused on his social media was posted on Halloween. Instead, she denied in examination-in-chief that there were messages in his social media explaining why he was in that uniform.
[34] Moreover, the text messaging evidence shows that Mr. Liu in fact advised Ms. Yu to call the police when he believed she was being threatened (based on a ploy she had concocted). This is incongruent with him being a police officer himself or representing as much. While he could have deemed it more appropriate for her to reach out to the police rather than getting involved himself, at no time does Ms. Yu make reference to him being a police officer when he tells her to call the police. Nor does he.
[35] Similarly, Ms. Yu does not make any reference to her purported belief that he is a police officer when Mr. Liu sent her a picture of the long gun and tells her it’s an airsoft gun. Nor does he. In fact, he tells her it is an airsoft gun, which is precisely what it is. Ms. Yu testified that she believed the firearms Mr. Liu had were real because she believed him to be a police officer. She also however testified that she believed an air gun was a gun that can be used for hunting.
[36] Even if Ms. Yu did not know what an airsoft gun was, or that that is not typically the type of weapon carried by the police, Mr. Liu cannot be taken to have known that. The point is that he was honest with her about what the gun was, which is relevant to his intent in showing her the picture. The airsoft gun message undermines her assertion that he had been representing himself to her as a police officer.
[37] Ms. Yu may well be naïve, but her account that she genuinely thought Mr. Liu was a police officer, based on representations he would have made, is completely unbelievable.
[38] Granted, in order to prove the charge, there is no requirement that the complainant (or any other person) have believed the representation to be true. As stated in R. v. Palinker, [2008] O.J. No. 1403, at para. 73, “the issue is whether the statement was intended and made”.
[39] But Ms. Yu’s lack of candor regarding what she believed based on Mr. Liu’s representations bear on what representations were in fact made by Mr. Liu and in what manner. Given the above concerns and the other credibility issues I have referenced with respect to Ms. Yu’s testimony, I am not prepared to rely on her account that any representations about being a police officer were seriously made by Mr. Liu in such a way that he intended them to be taken seriously. This suggestion is also undermined by the later Halloween post and the airsoft gun message. It is also undermined by the fact that, on her version, he would also have represented himself to be a number of fantastical things.
[40] Nor can I convict Mr. Liu based on representations made to others, more specifically by posting a photo or photos of himself in a police-type uniform, even though these do not hinge on Ms. Yu’s testimony. I find that these were posted in relation to Halloween, as was acknowledged by Ms. Yu.
[41] I note that the timeframe of the charge does not cover October 31st. But leaving aside this date issue, the picture posted on Halloween with a pumpkin emoji suggests that any representation of him being a police officer that could be taken from that (as opposed to a representation of him being in a police costume) was not meant to be taken seriously. In other words, I cannot find that Mr. Liu was trying to pass as a police officer by posting that picture on Halloween day. As stated above, this public post also undermines the suggestion that Mr. Liu ever intended to falsely represent himself to anyone as a police officer, or that he did so in anything more than jest.
[42] The Crown argues that the accused’s clothing depicts a uniform, not a costume. But the fact that the outfit is of good quality and looks realistic does not make a costume less of a costume, if that is the intent.
[43] While Mr. Liu’s outfit does look like a real police uniform, it appears to be available for public purchase from a storefront location and does not coincide with TPS uniforms. In fact, the police badge seized from Mr. Liu’s apartment has an eagle and American flag on it. While the Crown does not need to prove that the uniform belongs to or is an imitation of a particular police service, nor is there evidence that Mr. Liu in fact wore that badge when making any representations of being a TPS officer, the disparities further undermine the claim that he intended to falsely represent himself as a police officer.
[44] There is also no evidence that Mr. Liu ever exited his apartment building in uniform. Ms. Yu acknowledged that when she saw Mr. Liu wearing the uniform, he was inside his apartment. She only saw him head to the elevator with it on one occasion.
[45] Mr. Liu was clearly interested in collecting not only police paraphernalia but other types of uniforms, such as a pilot uniform. This informs his purpose in possessing and sporting a police uniform. This case is very much unlike the factual scenarios in Palinker or R. v. Vollrath, 2016 ABPC 130, which the Crown relied on, where the accused were convicted after personating a police officer for the purpose of perpetrating a sexual assault and an abduction, respectively.
[46] The above points undermine the suggestion that the accused wore his outfit in a manner to have people believe he was a peace officer, or in fact intended Ms. Yu or anyone else to actually believe he was a peace officer. The Crown has not proven that the accused intended on making such a representation. Nor has it proven beyond a reasonable doubt that he in fact made any such representation to Ms. Yu.
[47] An acquittal will therefore follow on count one.
Possession of a Weapon for a Dangerous Purpose
[48] At the time of closing submissions, the Crown invited a dismissal of count four relating to Mr. Liu having possessed a weapon for a dangerous purpose prior to the incident of December 4th.
[49] Proof of the other weapon possession counts is informed by the events of December 4th, to which I will now turn.
Events of December 4th
[50] The events of that day began with Mr. Liu’s efforts to meet with Ms. Yu after she had learned, earlier in November, that he had cheated on her during the course of their relationship. They exchanged text messages which were filed in evidence.
[51] Ms. Yu testified that Mr. Liu attended her apartment building where he waited from about 1 to 6 pm, in an effort to apologize for his conduct. They argued including over the phone, and around 6 pm, she finally met with him. He drove her to a dance class downtown and returned to pick her up after her class. They then decided to go eat at a restaurant in Scarborough.
[52] Ms. Yu explained that they ordered their food and Mr. Liu apologized. They had an argument and Ms. Yu ended up leaving the restaurant before eating. She planned to take an Uber home, but Mr. Liu followed her out and said he would drive her.
[53] At first, Ms. Yu did not want to get in the car as she was very angry, but he persuaded her. She wanted to hear what he had to say. She says he was holding her underarm but not in a violent way – like “pushing her but without force”. This constitutes one of the ways in which the charge of assault is said to have been made out.
[54] Ms. Yu then testified that once they got into the vehicle, Mr. Liu took out a gun that was hidden in the car. She had sat in the back seat, and he entered the back seat as well after retrieving the gun from the driver’s door. Ms. Yu indicated that she had seen the gun many times before. She identified a picture of a gun that resembles a handgun.
[55] Mr. Liu was agitated and asked her what he could do for her to believe him (that he had not cheated on her). He took out a large kitchen knife from the back door driver’s side seat and was waiving the knife and gun – in turn – in front of her, saying he was going to injure himself. He was trying to persuade her to take the gun and strike him. They were seated about a meter apart, and though she did not recall specifically, the weapons may have come within a half meter of her. This is the other way in which the Crown says the assault charge is made out, given that a threatening action where the person has the present ability to effect his purpose can constitute an assault under s. 265(1)(b) of the Code.
[56] Ms. Yu stated she was in a panic because she wasn’t sure whether Mr. Liu would do something terrifying and mistakenly injure her or himself. She was shocked and scared and did not believe he would really do such a thing. She then confronted him and stabilized him emotionally, and he put the weapons down, on the arms between the two front seats. They were later placed in the back side door, and Mr. Liu drove Ms. Yu home. They continued to argue on the way home.
[57] Ms. Yu also testified that there was another longer gun in the car, in the middle area between the front and back seats. It was in a bag, but she had seen the gun and bag previously, in Mr. Liu’s apartment.
[58] The text messages later exchanged between Ms. Yu and Mr. Liu corroborate the fact that Mr. Liu threatened himself in a manner at least akin to what Ms. Yu described. Indeed, Mr. Liu later explains his conduct to Ms. Yu, referencing both a gun and knife. He states that there was some issue with his emotions, he was under a lot of stress, and that he wanted her to forgive him instead of hurting her. He explained the knife as follows: since she was capable of doing that to herself, so was he – he wanted to prove it to her. He wanted to show that they are the same. These paraphrased messages were communicated in Mandarin.
[59] Some aspects of Ms. Yu’s account of the encounter however were undermined in cross-examination.
[60] For instance, Ms. Yu gave the police text messages from December 4th that suggested she had categorically refused to meet with Mr. Liu that day. In testimony, she denied the suggestion that she invited Mr. Liu over or that it was her idea to meet. Her account was that he persisted in his efforts to meet with her in the face of her refusals, waiting downstairs for her for hours.
[61] Ms. Yu acknowledged that she selected and provided the police with those text messages that could prove what she was saying – she did not provide the entire record to the police. She did not provide text messages that immediately preceded the above-referenced messages.
[62] In this earlier message exchange, Ms. Yu texted “Of course we are going to meet,” as she wanted Mr. Liu to face her in relation to his cheating. She later reiterates that they are going to meet as she needs to see how happy or nervous he is.
[63] It can also be inferred from these earlier messages, sent beginning at 1:18 pm, that Mr. Liu was initially elsewhere. It is only after the message where she indicates that they will meet that he makes his way to her apartment building, arriving around 3:26 pm. She then changes her mind about meeting, and says she won’t because she is afraid she will kill him with a knife.
[64] After reiterating that she does not want to meet, Ms. Yu texts Mr. Liu that if he really wants to show he is sorry, he can e-transfer her some money, stating that is better than anything else. She then sent an email address, requesting $1,000. She explained that this was intended to get him to leave her apartment building, because she knew he was not going to pay her. She however added that she felt he should compensate her financially because he had her restrict her social media which had been a source of income for her.
[65] After reiterating “no etransfer, no talk” and “Just empty promises, will wait until I receive payment”, Mr. Liu seeks to confirm that she will not meet with him. At 4:27 pm, she then suddenly asks him if 6 pm is ok, and asks if he’s eaten. Mr. Liu ultimately reattends her home to drive her to dance class for 6:30 pm.
[66] I can infer that Ms. Yu was aware that he was no longer at her building because she texts him to “hurry up and get here”, and he says he is coming. This is followed by “Are you here yet, I need to leave.” After her dance class, she suggested that they go out for lamb soup (to a restaurant she initially claimed not to like, having chosen it because it was cheap – yet later in cross-examination stating she chose it in part because they used to go there often as they have “quite yummy soup”).
[67] This exchange contrasts with Ms. Yu’s initial account that Mr. Liu stayed at her building from 1 to 6 pm, in an effort to meet with her against her wishes. They contradict her testimony in chief which I find purposely sought to cast Mr. Liu in a bad light. These and other text messages filed also show Ms. Yu’s aptitude for manipulation.
[68] The above concerns and the other serious credibility issues I have previously identified lead me to have a great deal of distrust for Ms. Yu’s account of how events unfolded on December 4, 2022.
Assault
[69] The Crown relies on the fact that Mr. Liu is said to have waved the knife and airsoft handgun around in the car – a confined space – to justify convictions on all counts relating to the events of December 4, 2022, including the count of assault.
[70] Indeed, and although there was some suggestion during the trial that the assault related to Mr. Liu grabbing or pulling Ms. Yu’s arm to get her into his car, the Crown in closing submissions emphasized the threat by action in Mr. Liu brandishing the weapons and having the present ability to effect his purpose, as providing a route to conviction under s. 265(1)(b) of the Code.
[71] And yet – even leaving aside Ms. Yu’s credibility issues – there is a lack of specificity to her evidence on this point. Ms. Yu explained that they were seated about a meter apart in the back seat of the car and guessed that the weapons may have come within a half meter of her – but she did not in fact specifically recall this. Ms. Yu did not describe how the two weapons were being waved, towards whom, or even whether Mr. Liu was holding them at the same time. Nor do I know how he was holding them. She never stated that he was waving them in her direction or that he approached her with them.
[72] I simply do not know anything beyond the fact that Ms. Yu says he waved them. And the gist of her evidence was that Mr. Liu was threatening himself with them. He even offered her the gun so that she could strike him with it. When asked what she feared, Ms. Yu stated that she was afraid he would “mistakenly” injure himself or herself. This implied that she did not perceive this to be his intent – only that an accident could occur.
[73] Though the parties were admittedly in a confined space and any weapon being brandished could certainly be intimidating and indeed threatening, I am not prepared to rely on Ms. Yu’s account that Mr. Liu’s gestures inside the car were threatening to anyone but himself. I have already discussed above my reasons for being unable to believe Ms. Yu’s characterization of events or the details of how these events unfolded.
[74] The threat must be to another person to constitute an assault. I am unable to find that the actus reus has been made out in the present case, nor would I be prepared to find that the requisite mens rea has been proved, as it relates to the threatening gestures related to the knife or bb handgun.
[75] Similarly, I find insufficient evidence of an assault based on Mr. Liu taking Ms. Yu’s arm prior to entering the car.
[76] On Ms. Yu’s evidence, Mr. Liu pulled on her arm gently, and at a time when she was persuaded to get in the car for him to drive her home. In response to the Crown’s question about whether she wanted or consented to being touched in that way, Ms. Yu stated that she did not because she had already ordered an Uber.
[77] I have referred to Ms. Yu’s manipulative tendencies above. The evidence reveals a pattern of her going back and forth on her stated intentions, or claiming something when she meant the opposite. I am not prepared to accept that she had even ordered an Uber or contacted a friend to order an Uber for her, as her evidence on the point was contradictory and made little sense. In my view, telling Mr. Liu that she had an Uber on the way was just another instance of making him believe something that was not true. It is clear from the evidence that despite storming out of the restaurant, she wanted Mr. Liu to follow her and she continued to want to hear what he had to say. As she ultimately accepted, she was content to follow him in his car to hear him out.
[78] Altogether then, I have a doubt on the issue of consent to the touching given the many hidden and fluid intentions behind her statements. Ms. Yu also admitted to the possibility that Mr. Liu took her arm when she was walking away from him into the roadway, such that he was bringing her back onto the sidewalk for her own safety.
[79] In any event, if an assault had been made out on the basis of the arm tug, I would have found that it was de minimis, such that no offence was committed.
[80] Mr. Liu is acquitted on count six.
Forcible Confinement
[81] The Crown’s position is that Mr. Liu confined Ms. Yu in the car by using the weapons or imitation weapon towards her in an intimidating manner. It argues that this created a psychological restraint on Ms. Yu.
[82] I find no evidence of either physical or psychological confinement or restraint to support this charge.
[83] When asked in direct examination whether she felt she could leave the vehicle, Ms. Yu hesitated, stating she was not sure. She said she did not leave when he had the gun and knife in hand because she did not know what to do. Ms. Yu simply did not provide any direct evidence that she felt herself confined because of Mr. Liu’s actions. Even if she had provided evidence of psychological restraint, I would not have been prepared to accept it beyond a reasonable doubt.
[84] As set out above, I am unable to find that the weapons were waved toward her or directed at her in any way. The evidence points to the contrary.
[85] I also find that Ms. Yu at this time understood that the airsoft bb handgun that Mr. Liu held in his hand was not a real firearm. I have already found that Ms. Yu’s claim that she believed Mr. Liu had real firearms at home because he was a police officer cannot be believed.
[86] Ms. Yu recognized the firearm in the car as the one she had previously seen in his apartment. Mr. Liu had also previously shown her a picture of the weapon and indicated it was an airsoft gun. While she may well not have understood quite what that meant, as she testified, she did not ask for clarification at that time. Her testimony that she believed an airsoft gun was something that could be used for hunting is inconsistent with the reason she believed he owned the weapon – because he was a police officer. As indicated, I do not accept her evidence that she nevertheless believed that it was real because she believed Mr. Liu to be a police officer. In my assessment, Ms. Yu understood that Mr. Liu was not a police officer and that his airsoft gun was not a real firearm.
[87] While the knife was very real, and the events as described could well inspire fear in any person, I am unable to accept her evidence or infer from it that she was intimidated or genuinely fearful during or as a result of this incident. I am simply unable to rely on her account of how she felt, given her tendency to misrepresent her feelings to manipulate or communicate something to Mr. Liu, including in court. It seems to me that, during the car episode, Ms. Yu may have in fact been interested to see just how far Mr. Liu would go to prove that he felt remorseful or cared for her. (On that point, Ms. Yu was inconsistent in her evidence about what Mr. Liu was conveying to her. She both stated that Mr. Liu was apologetic, and that he was trying to persuade her that he had not in fact cheated on her). At most, she seemed to want to remain in the car to ensure that Mr. Liu did not harm himself.
[88] To be sure, Ms. Yu also acknowledged in her testimony that although she initially wanted to take an Uber home, she voluntarily went into Mr. Liu’s car – that he said something persuasive, so she voluntarily went in.
[89] Ms. Yu ultimately did exit the car from the backseat, where she had been sitting when the alleged incident took place, to enter the front seat for the drive home. This demonstrates that she was not restrained or forcefully confined at that time. It also undermines the suggestion that she was so confined prior to that moment in time.
[90] Ultimately, there is insufficient evidence of any forcible confinement and an acquittal on count seven will follow.
Possession of a Weapon or Imitation Weapon for a Dangerous Purpose
[91] Mr. Liu is charged with possessing the knife and airsoft handgun on December 4th for a dangerous purpose. The Crown’s position is that the dangerous purpose relates to Mr. Liu waving these weapons around in the car in proximity to Ms. Yu and placing them on the console in a manner that would have been intimidating.
[92] I have already set out the evidentiary weaknesses relating to the evidence of Mr. Liu waving the weapons around in proximity to Ms. Yu. I similarly cannot find, based on the evidence and the very real issues with Ms. Yu’s testimony, that the weapons being placed on the center console once Mr. Liu had started to calm down was threatening in any way or made her feel threatened. This was instead a de-escalation of a situation that I was unable to find was threatening towards her in the first place. On her own evidence, she had by then taken control of the situation by confronting him, at which point he put them down. She then believes she put the weapons away in the side of the door.
[93] Ms. Yu’s evidence was clearly that Mr. Liu used the weapons or imitation weapon against himself. On her version, he was threatening himself, not her. He was saying that he was going to injure himself and was trying to persuade Ms. Yu to take the gun and strike him with it.
[94] In subsequent text messages, when Ms. Yu questioned why he had brought the knife and gun with him in the car, Mr. Liu wrote that he was emotional, and that he wanted her to forgive him instead of hurting her. He added that he brought the knife because “since you were capable of doing that to yourself, so was I. I wanted to prove it to you”. He reiterated that again and added “It’s like we are the same”.
[95] This is consistent with Ms. Yu’s account that he was trying to gain her forgiveness by threatening to harm himself.
[96] Ms. Yu had previously resorted to the same kind of actions and conveyed them to Mr. Liu in an apparent effort to garner his sympathy or attention. Indeed, despite denying that that was her intention in self-harming, she sent Mr. Liu a picture of harm she had occasioned to herself and wrote that she was looking for someone to be with her. At another point when she again self-harmed, she wrote that she missed him a lot, that she wanted to be able not to love him anymore, and that she was going crazy.
[97] Ms. Yu acknowledged in cross-examination that Mr. Liu told her that he did it to demonstrate his love and affection for her, and that he would do exactly what she had done in the past, which was to harm himself. She also agreed that he may have said if she didn’t forgive him, he was prepared to do as she did and that was to harm himself.
[98] It has not been suggested in this trial that threatening oneself with a weapon is a purpose that is contrary to the public peace. Without deciding the issue, it may be that scaring someone into believing that they will harm themselves could be sufficient to make out the offence. But if the ultimate purpose is self-harm or the threat of self-harm to gain sympathy from another, I do not think it falls within the ambit of the Criminal Code provision of possessing a weapon or an imitation weapon for a dangerous purpose. If it were, one could question whether Ms. Yu’s own actions in harming herself or threatening to harm herself and the manner in which that was conveyed to Mr. Liu, could constitute the offence of using a weapon for a purpose contrary to the public peace.
[99] The defence submits that Mr. Liu’s purpose here was to gain sympathy from Ms. Yu. Even though Mr. Liu did not testify, this is an inference that may reasonably be drawn from the whole of the evidence, and that I cannot exclude beyond a reasonable doubt. Inferences other than guilt do not have to arise from proven facts to raise a reasonable doubt, so long as they are reasonable: R. v. Villaroman, 2016 SCC 33, at paras. 36-37.
[100] Though the test is a subjective-objective one, the Crown must prove that the accused’s purpose was, in all the circumstances, objectively one that is dangerous to the public peace: R. v. Kerr, 2004 SCC 44, at para. 25. I am not satisfied that the Crown has proven this element of the offence beyond a reasonable doubt.
[101] Mr. Liu is therefore acquitted of counts nine and ten.
Criminal Harassment
[102] Finally, the Crown argues that Mr. Liu harassed Ms. Yu under s. 264(2)(d) by engaging in threatening conduct directed at Ms. Yu, based on his use of a weapon in the car on December 4, 2022.
[103] While a single incident can constitute threatening conduct amounting to harassment under this subsection, the Crown must prove not only that the threatening conduct was directed at Ms. Yu, but that Ms. Yu felt harassed and reasonably feared for her safety: R. v. Kosikar, 1999 ONCA 3775, at paras. 19-22.
[104] I have already found there to be insufficient evidence that Mr. Liu’s threatening conduct in the car was directed at Ms. Yu. I also do not accept beyond a reasonable doubt that Ms. Yu felt harassed or feared for her safety.
[105] The Court of Appeal defined the feeling of being harassed as feeling “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”: Kosikar, at para. 25. These terms however are not cumulative: R. v. Kordrostami, 2000 ONCA 5670, at para. 11.
[106] At its highest, Ms. Yu testified that she was afraid because she did not know if Mr. Liu was mistakenly going to injure himself or herself. I do not accept that she felt harassed, as that is defined in the jurisprudence. There was no “sense of being subject to ongoing torment”: Kosikar, at para. 25.
[107] Ms. Yu testified that Mr. Liu had not previously been violent with her or been physical in any way.
[108] Her conduct immediately following this incident is also relevant to this issue. Ms. Yu testified that she continued to see Mr. Liu in the days following December 4th. They texted daily and on various occasions, she willingly got back in his car with him. They again went out for food by themselves.
[109] There was no suggestion that she did this because she felt threatened, or that she was scared and was acting normally to ensure he remained calm. Rather, she testified that she continued seeing him and eating out with him in the following days because he had “not caused her any real damage” and she wanted to hear his explanation about his behaviour. It is also clear from her actions around that time that she wanted to gather evidence against him.
[110] The Crown argues that there is no requirement that the complainant continue to feel scared in the days following, pointing out that people react differently, especially in a domestic context.
[111] Be that as it may, Ms. Yu’s conduct in this case in the days following December 4th belies the suggestion that she felt threatened or had safety concerns flowing from this incident.
[112] Given these issues and the numerous credibility problems I have set out above, I am not prepared to accept Ms. Yu’s evidence that she felt afraid or intimidated or threatened by Mr. Liu’s possession and use of the knife and airsoft gun in the car.
[113] As already stated, there is also no evidence that the weapons were turned on Ms. Yu or brandished at her. I have found that the only threat Mr. Liu made was to himself.
[114] An acquittal will follow on count eight. Mr. Liu is therefore acquitted on all counts.
Released: March 28, 2025
Signed: Justice C. Mainville