ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-70000809
DATE: 20150710
BETWEEN:
HER MAJESTY THE QUEEN
– and –
B.Z.
Daniel Brandes, for the Crown, Respondent
Lisa White, for B.Z.
HEARD: June 30 and July 2, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT
[1] Even in our hyper-sexualized social-media driven world, where sexual gratification is just a swipe or a click away, no still means no. Sexual assault is not seduction.
[2] The accused, B.Z., is an amateur fashion photographer. The complainant, A.Y., is a student and would-be model. On July 30, 2012 B.Z. was 33. A.Y. was 18. They met on a social networking site a few days prior to July 30. They made a date for a photo shoot. When the day arrived, the accused took a large number of photos while the complainant wore different outfits. They then looked at the photos. She says that he started kissing her. She physically resisted his advances but he was stronger than her. She asked him to use a condom. He then sexually assaulted her. Later that night she wrote an anonymous email to the Toronto Police, reporting the assault.
[3] His story is different. He says that the young, impressionable would-be model tried to kiss him. He says he resisted her. She stormed away, angry. He says that they never had sex, consensual or otherwise.
[4] For the reasons that follow, I find B.Z. guilty. I reject his evidence. I do not find it to be plausible. It does not leave me in a state of reasonable doubt. In contrast, I accept A.Y.’s evidence.
FACTS
[5] In July 2012 A.Y. was a student at the University of Toronto. She was in Canada on a student visa. She was bored as she was not working or studying during the summer. She was using a social networking app called Momo on her phone. Momo is similar to Facebook. It allows people to see who is online. It also allows users to see whether other people are nearby. Many Chinese-speaking people use the app. In fact, there is no English version. The complainant had her age, her gender, and her status as a student on her profile.
[6] A.Y. testified that B.Z. contacted her on Momo, although B.Z. testified that it was actually A.Y. who contacted him. She checked out B.Z.’s profile. She said that he claimed on his profile that he was a professional photographer, although in cross-examination she agreed that she could not be sure if he ever used the term professional. There were a lot of photographs of beautiful female models. His profile said that he would provide free photography for new models. She was impressed. She knew one of the models, C., from school.
[7] I have reviewed some of B.Z.’s work and his blog. I can well believe that A.Y. would have thought that B.Z. gave the impression that he was a professional photographer.
[8] A.Y. testified that there were many people who said “hi” to her on Momo and she did not respond. She was interested in photography services so she replied to him. He sent her a link to his Facebook page. There were a lot of people on Facebook who followed him.
[9] B.Z. testified that it was A.Y. he contacted him. He said that he was working for an I.T. company and it was part of his job to be familiar with different messaging apps. That was why he was on Momo. He was also curious to see what kind of people were on Momo, to see their behaviour. B.Z. said that portrait photography was a hobby and that he never did it professionally. He said that A.Y. was intrigued by his Facebook photographs and wanted to emulate the style. She wanted to do a photo shoot.
[10] They agreed to make a date for a photo shoot on Monday July 30, 2012. They exchanged telephone numbers. He told her that she had to bring colourful, sexy clothing to the photo shoot.
[11] On July 30, A.Y. went to B.Z.’s condo as agreed. His condo doubled as his studio. She waited in the lobby, as he was late. They went up to his condo. They both agreed that they chatted and got to know each other. She said she had a boyfriend. He said he had a girlfriend. He told her that he owned 5 properties. Her impression was that he was a fashionable avant-garde photographer. She also got the impression that he was trying to impress her with his possessions and his real estate holdings.
[12] B.Z. testified that he was disappointed in the clothing that A.Y. brought. He explained that he likes to take photographs in the style of Yasumasa Yonehara, a famous Japanese photographer. Yonehara’s style is colourful and erotic. A.Y. brought a black dress and nothing colourful. Although A.Y. liked the Yonehara style she was not familiar with his work until she saw some magazines in B.Z.’s condo. B.Z. was surprised that a Chinese woman of A.Y.’s generation was unfamiliar with the style of Yonehara’s photography.
[13] Prior to taking photos B.Z. gave A.Y. a drink. She said it had alcohol and she only took a few sips because she doesn’t really drink. B.Z. denied that he gave her alcohol. Nothing really turns on whether the drink contained alcohol. A.Y. wore her black dress while B.Z. took a series of photographs. According to A.Y., he told her how to pose, as she had no experience. He gave her props. They then took a break and A.Y. changed into a men’s tank top that B.Z. gave her. They then took a second series of photographs. They sat down together to look at them.
[14] A.Y. testified that B.Z. then started kissing her on the mouth. She resisted. He said that it was common for models and photographers to have sex so that they could understand each other. He said that he did not have sex with A.Y.’s acquaintance C. because she was a virgin, and that he only kissed her. He continued to touch A.Y. She told him to stop. Finally he said “alright, alright, I won’t make love to you”. He then asked her to sit on the edge of the bed, but assured her that he would not try anything else. He then pushed her down on the bed, using enough force that she could not resist. He then pulled off her clothing and tried to penetrate her although she pushed back. She realized that he was determined to have sex with her and asked him to use a condom. He produced one, but she was not sure if he used it or not. When he was finished, she went to the bathroom and got dressed. She found a lot of liquid inside her vagina. She was very angry and demanded to see the condom. He refused to show it to her. He suggested that she come back on Wednesday to get the photos. She said “we’ll see”. He then guided her to the lobby of his condo, and took her to the taxi stand. He held her hand.
[15] B.Z. testified that he did not instruct A.Y. to pose. He said that she was improvising. After the second session they sat together to look at the photos. He held the camera while scrolling through them. At that point she was leaning in close to him. He then felt A.Y. kiss his cheek. He said he was surprised and shocked. He reminded her that he had a girlfriend and she had a boyfriend. He said that she became very upset. She slammed down magazines. He agreed that he suggested that she come back on Wednesday to pick up the photos and that she said: “we’ll see.” They then left his condo. He accompanied her to the lobby. He denied that he held her hand. He texted her the next day but she did not respond. He heard no more until he was arrested for sexual assault.
[16] A.Y. testified that after she got home she did a Google search for the nearest police station. She sent an email to the 52 Division mailbox of the Toronto Police. The email subject line was “something awful happened to me last night.” The email then said “I don’t want others to know about it, but I feel I have to tell someone, so I decide to tell the police in this way.” The email went on to describe the sexual assault in some detail. It did not differ in any significant way from the evidence that she gave at this trial.
[17] A.Y. testified that she sent the email anonymously from an old email account. She was embarrassed at her naivety and ignorance. She said that she checked that account for several days after she sent the email but gave up because she received no response. Several months later, she checked again on her iPad. There was a response from the Toronto Police dated January 10, 2013. That was about seven months after she sent the original email. In the return email the police officer apologized for the late response. The officer explained that the general mailbox had not been checked in a while and gave instructions on how to make a report to the police. A.Y.’s boyfriend saw the email. He asked what happened. She told him. He insisted that she had to go to the police so that B.Z. would not sexually assault another young woman.
ISSUES
[18] The test to be applied in a case of this nature was set out by Cory J. in R. v. W.(D.), [1991] 1 S.C.R. 742. The evidence is to be approached in this manner:
(1) Do I believe the accused? If not, does his evidence leave me in a state of reasonable doubt?
(2) Even if I am not left in a state of reasonable doubt by the accused’s evidence, do accept that the Crown has proven the offence beyond a reasonable doubt?
[19] A criminal trial is not a credibility contest. A trial judge does not simply decide who is more credible. Rather, the accused is entitled to the benefit of the doubt arising from his evidence. If the accused is not believed or believable, he is still entitled to the benefit of any doubt arising from the whole of the evidence, or lack of evidence. If I do not know whom to believe, the accused is entitled to an acquittal: R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont.C.A.); R. v. C.W.H. (1991), 68 C.C.C (3d) 146 (B.C.C.A.).
[20] I now turn to the analysis.
ANALYSIS:
1. Do I believe the accused? If not, does his evidence leave me in a state of reasonable doubt?
[21] I do not believe the accused and I do not find that his evidence was plausible. In other words, his evidence did not leave me in a state of reasonable doubt.
[22] The premise of B.Z.’s evidence is implausible. He said that he was primarily interested in Momo because he was looking at different messaging apps in order to see how they worked. His company was interested in aggregating these apps. He was doing competitive analysis. B.Z. also said that for personal reasons he was curious to see people’s behaviour on these apps. If that was the case, then why did his profile include photographs of attractive young female models? Why did he advertise that he provided photography services for free? Why did he send A.Y. a link to his Facebook page, where she could see the type of photography he did and the number of followers he had? I find that he used the Momo app for the specific purpose of meeting young women. It is much more likely that he contacted A.Y. than the other way around, and I accept her evidence and reject his on this point.
[23] I would not go so far as to say that B.Z. used the app to prey on young women; rather, it was a way of meeting them. He obviously would not be the first artist or musician to take advantage of his art in that way.
[24] B.Z. denied that he had any sexual interest in the young would-be models. He said that he simply advertised his free photography services because he liked to take portrait pictures. At the same time, he testified that he was interested in photography as art and took many artistic photos. He appears to have followers on his blog and his Facebook page and that these people obviously think he has talent. To my untrained eye, he does appear to have talent. That said, I am highly sceptical of his claim that he does not have any romantic or sexual interest in the models he shoots and only photographs them for the sake of art. Those two things are not mutually exclusive. As the Crown pointed out in cross-examination, he has few, if any, male subjects. The photos reveal a sexually charged atmosphere – which, I find, was the point. Furthermore, Momo is also used as a dating app. To accept B.Z.’s claim would be rather like accepting some of the more famous spurious claims, of which “the cheque is in the mail” is the most famous.
[25] Most importantly, the idea that A.Y. decided to go to the police and claim she was sexually assaulted because B.Z. spurned her makes no sense given how her contact with the police developed. She deliberately hid her identity and then did not pursue the matter when the police did not respond instantly. She only went to the police when her boyfriend insisted. Her behaviour was inconsistent with a desire to see B.Z. arrested and charged. Her behaviour was much more consistent with that of a sexual assault victim who was embarrassed than with a woman spurned and seeking revenge. Obviously, B.Z. is not responsible for A.Y.’s behaviour, but in the context of these facts the defence theory does not make sense.
[26] B.Z. testified that he suffered from a knee injury. He said that the knee injury would have prevented him from using force on A.Y. He said that he was injured on the property of Wal-Mart. Minutes of settlement were entered into evidence. The minutes show that Wal-Mart paid B.Z. $100,000.00 in 2014. This document certainly shows that there was a settlement but it does not say anything more. A.Y. testified that B.Z. walked perfectly fine. A letter from Cloud Care Clinics dated July 2, 2013 from Dalyce Lees, a registered physiotherapist, indicated that in 2009 B.Z. suffered from a fall and tore ligaments in his right knee. The letter indicated that he still suffered from the injury, required a cane to walk, and was in constant knee pain. I note that the letter was filed without objection from the Crown, although it is clearly hearsay. I suspect that it was produced in connection with his lawsuit against Wal-Mart and should be viewed in that light. I also note that there was no expert evidence regarding B.Z.’s ability to use physical force. In other words, it is still a question of B.Z.’s credibility on this point.
[27] I do accept B.Z.’s evidence that he had a knee injury and was suffering from it in 2012. That said, it is difficult for me to envision how this would have prevented him from using the force of his upper body on A.Y. A.Y.’s testimony was that he pushed her on the bed and physically restrained her. Obviously B.Z. is not required to prove anything, let alone his innocence, but I do not believe that his knee injury prevented him from using force on A.Y. It is true that he is not a large man. On his evidence he weighed 125-pounds in 2012 and weighs 130-pounds now. Even then, he is certainly bigger and stronger than A.Y., who is a very small woman weighing less than 100-pounds. Very little force would have been required on this very small woman.
[28] I do agree with Ms. White that B.Z. testified in a straightforward, non-argumentative manner. The problem is not his demeanour. The problem is that his story does not make sense.
2. Has the Crown proven the offence beyond a reasonable doubt?
[29] The Crown’s case rests entirely on the credibility and reliability of the A.Y. This, of course, is not unusual in a case of this nature. I found her both credible and reliable.
[30] Ultimately, I found A.Y. to be credible for the following reasons:
• A.Y. readily agreed to factual errors in her testimony both before me and at the preliminary inquiry and explained the reasons for them. She did not argue with counsel, but took her time to try and answer the questions.
• A.Y.’s decision to send an email and not follow up is very consistent with the behaviour of a victim who is ashamed of her own gullibility. Wanting to remain anonymous is common among victims of sexual assault. A.Y. said as much herself. She called herself ignorant. I would use different words. I would say that she was young and naïve.
• Thus most importantly, I find A.Y.’s email, sent contemporaneously with the events, to be corroboration of her evidence.
[31] There were certainly problems with A.Y.’s reliability. I will mention just a few.
[32] A.Y. initially testified at the preliminary inquiry that B.Z. tried to kiss her after the first photo session. She testified at trial that it was after the second session. When confronted with the earlier evidence, she explained that after the preliminary inquiry she looked at her initial statement to the police and at her email. She said that she was clear that the assault was after the second session. Although the sequence of events is not unimportant, I am satisfied that this change of evidence does not impact on A.Y.’s overall reliability.
[33] Photographs of the apartment taken in May, 2012 show that there were large industrial dividers in the apartment. B.Z. testified that he took photos of the condo to send to his parents as he was quite proud of his design work. I accept this evidence. A.Y. denied that there were any dividers. She was clearly mistaken. It is unrealistic to expect that A.Y. – or anyone – would remember details about the placement of furniture with clarity in 2015 about an event in 2012. She visited the accused’s condo once and was likely there for less than two hours.
[34] The accused has large and obvious scars on his abdomen from an operation when he was a child. A.Y. did not see any scars. She testified that she did not move her eyes to his genitals as she did not want to see. That, of course, is entirely believable given the circumstances. Furthermore, there was no allegation that oral sex took place.
[35] The complainant initially testified that she wore tight shorts or leggings under her dress, but it is clear from the photos that she did not. A.Y. testified that she started off wearing her tight shorts under her dress, and then took them off when B.Z. asked. It is clear from the photographs that A.Y. did not wear her shorts in any of the photographs. I find that what happened was that B.Z. asked her to take them off prior to taking photos. In any event, I do not think that much weight can be placed on whether or not A.Y. wore shorts or leggings under her dress and when she took them off. The nature of her underclothes is a minor point.
[36] Finally, A.Y. suggested that the photography sessions each took more than an hour. She initially testified that she left B.Z.’s apartment at around midnight. In fact, the time stamp on the photographs indicated that each was about a half-hour or less. It also seems clear that the second photo session ended at 9:25 pm. A.Y. agreed in cross-examination that she could have left at 10:00 pm. In my view, this is also a minor error. Human memories of time are malleable and inherently unreliable. The important point is not whether A.Y. recalled the exact sequence and timing of events, but whether I am left in a state of reasonable doubt by her errors. I am not.
[37] I find that these issues of reliability do not affect the A.Y.’s overall version of events.
[38] The photographs of the photo shoot were entered into evidence. The photos show A.Y. in a series of sexy, provocative poses. She uses props in some of them. The photos were put to A.Y. in cross-examination. If the photos were used to show that she was the sexual aggressor, and therefore to buttress B.Z.’s story, I reject the premise. A.Y. may have wanted a series of photos of herself in sexy poses, but that does not mean she wanted to have sex with B.Z.
[39] In my view, what happened was this: B.Z. typically used these sessions in order to attract young women to his condo. No doubt some of these women were attracted to B.Z.’s talent and sophistication. That is why I find A.Y.’s comment that B.Z. said it was quite normal for models and photographers to have sex so believable. As I noted earlier, B.Z. would not exactly be the first artist or musician to do this. I find that B.Z. tried to have sex with A.Y. She refused. He pressured her. She resisted, but a slight 100-pound woman may not be capable of putting up strong resistance, even to a man with a knee injury. Of course, A.Y. was under no obligation to fight back. A simple “no” was enough to convert a refused seduction into a sexual assault. Her plea to him to at least use a condom did not change her “no” into a “yes”. This was a simple case of B.Z. failing to heed the familiar admonition that “no means no”.
DISPOSITION
[40] I find the accused guilty.
R.F. Goldstein J.
Released: July 10, 2015
COURT FILE NO.: 14-70000809
DATE: 20150710
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
B.Z.
REASONS FOR JUDGMENT
R.F. Goldstein J.