COURT FILE NO.: CR-19-30000177-0000

DATE: 20200129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Y.G.

Brian Moreira, for the Crown

Cemal Acikgoz, for the Defense

HEARD: January 27 & 28, 2020

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

[1] Z.O. and Y.G. met on a dating app. Z.O. says they had four encounters. She says that on the third encounter Y.G. assaulted and sexually assaulted her. She says that on the fourth encounter he asked for money and said he would harm her and her family if she did not pay up. Y.G. testified that they met once. He said that nothing like that happened. He was at Service Ontario renewing his vehicle licence sticker at the time Z.O. testified that he extorted her.

[2] The police charged Y.G. with assault; sexual assault, and extortion.

[3] I find that Y.G.’s alibi is persuasive. I am not satisfied beyond a reasonable doubt that he is guilty of extortion. I have a reasonable doubt about the other two counts as well. For the reasons that follow, I find Y.G. not guilty on all counts.

FACTS

[4] In October 2017, Z.O. met with Y.G. They met on the dating app Badoo. Z.O. was a student at University of Toronto. She was also working. They connected online, chatted over the app, and exchanged numbers. They texted and spoke to each other. They eventually met up. At that point, their stories diverge.

[5] Z.O. testified that she and Y.G. met four times. The first time, he picked her up at Kings College Circle at the University of Toronto. It was in October 2017. She believes that they went for coffee at a Tim Horton’s drive-through although she does not fully remember. They purchased coffee and talked in Y.G.’s car. He then dropped her at her house.

[6] Z.O. testified that they met a second time a few days later. They went to a Harvey’s near University of Toronto. They then went to a bank. He needed a bank loan. The bank was at a plaza but she was not sure where. They went into the bank. He was denied the loan. They then got back into the car. Y.G. then picked up a telephone call. The call was connected to the car over Bluetooth. That meant Z.O. could hear the call through the car’s speakers. He eventually told her that he was married but the marriage was fraudulent. He had only married his wife to obtain permanent residence in Canada. She thought it sounded shady. They had an argument. She indicated that she did not want the relationship to go any further. Z.O. testified that she was also married. Her husband was in Turkey in the military at that time. Y.G. dropped her at home and she walked to her apartment.

[7] Z.O. testified that they had a third encounter. She was studying at a friend’s place. At about 10:00 pm Y.G. texted her. After some discussion with her friend, she agreed to meet him. Y.G. initially went to the wrong address. He was mad because she had originally texted an incorrect address. He eventually found the condo and picked her up. He started driving very fast and was very aggressive. He took her to a park in Scarborough. It may have been near Warden Avenue but she was not sure. She did not know where she was. They parked in the parking lot of the park. He was very angry. He leaned over to kiss her. She said she did not want to. He became upset and cursed at her. He called her a whore. He hit her. She hit him back. He punched her in the face, in her eye. He was touching her breasts and pinching her thigh. He tried to unzip her jeans. He even commented that she wasn’t wearing a bra. He said that she wanted what he was doing or else she would have worn a bra. Eventually she got out of the car. He persuaded her to get back in. He then drove her to a bus stop. She got out of the car and went home. She did not know which bus stop and could not recall where she was.

[8] Z.O. testified she did not have contact with Y.G. after the incident in the park until May 2018. There were no texts or encounters. On May 17, 2018 Z.O. was leaving class at the McLellan Laboratory on the University of Toronto St. George campus with her friend. It was approximately 2:30 or 3:00 pm. Y.G. came up behind her. He grabbed her arm. He said that he needed money. He said that he would harm her, and harm her loved ones. He knew where she worked and where her brother went to school. He said he knew she worked in the area of Don Valley Parkway and Eglinton Avenue. He also said he would tell everyone in the small Turkish community that she was a slut and a whore. She was very scared. She thought about it and went to the police on May 19, 2018.

[9] Y.G. testified that he and Z.O. met on Badoo in 2017. He said that they met once. He picked her up on a Sunday in October from the St. George campus at University of Toronto. He knew it was a Sunday because that was his day off work. He had to check the address and the route to get there using wifi at home. His phone did not have data. He drove his car there. They met and she got into his car. Z.O. said she was hungry so they went to a Harvey’s. He told her that he was married and that his brother-in-law and sister were in Canada. He told her he had some business at a bank. She agreed to help him apply for a line of credit because his English was not good. She found a CIBC branch on her phone. They went there. They stayed at the bank for about 15-20 minutes. She then said she wanted to go home. He drove her. She lived in Etobicoke. When they got to her apartment she asked him not to go into the parking lot as she did not want her family to see him with her. They discussed her family. She asked where his wife was from. He told her that she was Jamaican but born in Canada. She mocked him and asked why he married a Jamaican woman when there were so many Turkish ladies. The conversation lasted about 15 or 20 minutes. She told him that she was married but that her husband was in Turkey. She then left the car. He testified that there was no discussion of a romantic relationship because he was married. He had told her earlier it would just be a friendly evening.

[10] Y.G. testified that Z.O. called him at some point later. It was about 10 or 11 in the evening. He was in Ottawa for work. Y.G. is a truck driver. Z.O. told him that she was drunk and high. She wanted him to pick her up and drive her home. He said he could not because he was in Ottawa. After that he blocked her phone. She sent him a friend request through Facebook about 4 to 6 months later. He blocked her profile. They have had no contact since then.

[11] Y.G. further testified that on May 17, 2018 he was at work. He arrived at work at 8:00 am and left work at 1:42 pm. He provided a screenshot of a video of himself punching out of work. His car needed a new sticker. He recalled the date because is birthday is May 19. He went Wendy’s to have lunch. He then went to Service Ontario at Lawrence and Kennedy. He left Service Ontario at around 2:30 or 2:45. He then went home. His wife was working that day and they were expecting a child.

ISSUES AND ANALYSIS

[12] In my view, the issues are these:

(a) Do I believe Y.G. or find that his evidence leaves me with a reasonable doubt?

(b) Does the Crown’s evidence persuade me beyond a reasonable doubt that Y.G. is guilty?

(a) Do I believe Y.G. or find that his evidence leaves me with a reasonable doubt?

[13] The Crown theory is that Y.G. should not be believed. In his email to the police he indicated that he was at Service Ontario from 2:30 pm to 5:00 pm. That was clearly untrue. The Crown argues that it undermines his alibi on the extortion charge. It also undermines the whole of his evidence and I should not believe him.

[14] I disagree. I found Y.G. to be a credible witness, especially on the extortion charge. Y.G. provided an alibi for his whereabouts on May 17, 2018. The alibi is very persuasive. It causes me to have a reasonable doubt on all the evidence.

[15] Y.G. was arrested on May 24, 2018. He was released from custody, although it is not clear to me whether he was released on May 24 or May 25, 2018. On May 25, 2018, he sent an email to the officer in charge of the case. He said that he wanted to explain his side of the story. He recounted the events of the day he said that he met Z.O. once. He also provided a chronology of his whereabouts on May 17, 2019. He then stated:

I can prove all this with texts throughout the day from my wife and my time card at work that details when I punch in and punch out.

[16] An alibi must be disclosed in a timely manner. Justice Martin explained the principle in R. v. Dunbar and Logan (1982), 1982 CanLII 3324 (ON CA), 68 C.C.C. (2d) 13 (C.A.) at para. 180:

The governing principle is that a failure to disclose an alibi at a sufficiently early time to permit it to be investigated by the police is a factor to be considered in determining the weight to be given to the alibi evidence.

[17] The key point about an alibi is that it must be disclosed in order to give the police the opportunity to investigate. The Supreme Court of Canada made this point in R. v. Cleghorn, 1995 CanLII 63 (SCC), [1995] 3 S.C.R. 175. At paragraph 3, Iacobucci J. quoted Cumming J.A.in R. v. Letourneau (1994), 1994 CanLII 445 (BC CA), 87 C.C.C. (3d) 481 (BCCA):

It is settled law that disclosure of a defence of alibi should meet two requirements:

(a) it should be given in sufficient time to permit the authorities to investigate…

(b) it should be given with sufficient particularity to enable the authorities to meaningfully investigate… [citations omitted]

[18] In my view, the alibi provided by Y.G. was timely and particular. I have little difficulty giving it significant weight, especially as it is supported by real evidence. Ministry of Transport records confirm that Y.G. renewed his sticker at a Service Ontario location on May 17, 2019 at 2:31 pm. He used his credit card. Z.O. testified that she left class between 2:30 and 3:00 pm that day, approximately. Y.G. provided a screen shot taken with his phone of the surveillance video at his workplace in Scarborough. It showed him punching out of work at 1:42 pm.

[19] I accept Y.G.’s explanation that his English was not good. He dictated the email of May 24 to his wife. She made an error saying that he was at Service Ontario until 5:00 pm. I accept that explanation because it is clear that on May 25, 2018 he would have known little about the case. He was arrested the previous day. Crown counsel agreed that all Y.G. would have had was a synopsis. It is difficult for me to see that he would have been farsighted enough to concoct such a lie.

[20] I also find that it would have been extremely difficult for Y.G. to get from Scarborough at 2:31 to the St. George campus by 3:00 pm. That would have meant that he had to leave Scarborough at 2:31, drive downtown in the middle of the day, find a parking spot at the St. George campus, and then find Z.O. during the brief period that she was walking from her class to her car. As a judge living in the Toronto community, I think I can take judicial notice that the University of Toronto is a large institution spread out over much of the area bounded by Bloor Street, College Street, Spadina Avenue, and Bay Street. Y.G. is a new immigrant to Canada. He testified that he needed assistance with navigation from a GPS or other system on other occasions. Even if Z.O.’s timing was off and the time was later than 3:00 pm, it is still difficult to find that Y.G. could have found her in the middle of the campus short time allotted. It would have required exquisite timing and extreme luck to find her before she got into her car and drove away. There is no evidence that Y.G. knew Z.O.’s class schedule or location, or even that she was registered for the summer session. I accept Y.G.’s evidence.

[21] Crown counsel informed me that the OIC of the case, DC Tindale, did some follow-up investigation when he received the alibi from Y.G. DC Tindale obtained the Ministry of Transportation records. Clearly the alibi permitted D.C. Tindale to do at least some follow-up investigation.

[22] I find that Y.G.’s evidence leaves me with a reasonable doubt on the extortion charge.

[23] On the assault and sexual assault charges, I find that Y.G.’s evidence was believable and also leaves me in a state of reasonable doubt. There was no extrinsic real evidence to contradict him.

[24] Certain things about Y.G.s actions do not entirely add up. I do not understand why Y.G. could not simply go to the bank with his wife. Y.G. testified that she is of Jamaican descent born in Canada. She is obviously a native English speaker. That said, this question was not seriously pursued. Moreover, Z.O. agreed that they went to the bank together. It is somewhat odd, but it is not evidence that would undermine Y.G.’s credibility. I also find it odd that he disapproved of Z.O. because she enjoyed weed and alcohol, but was prepared to meet her when they were both married. He did testify that he was only interested in friendship. I do find it puzzling that under those circumstances they encountered each other on a dating app to meet people for mere “friendship.”

[25] That said, there was no evidence to the contrary. There was nothing otherwise inherently implausible about Y.G.’s evidence. His evidence was consistent. He was not significantly undermined in any way.

(b) Does the Crown’s evidence persuade me beyond a reasonable doubt that Y.G. is guilty?

[26] Even if Y.G.’s evidence did not leave me with a reasonable doubt, the Crown’s evidence would not persuade me to convict. The Crown’s case relies principally on the credibility and reliability of Z.O. I have some significant difficulties with Z.O.’s evidence.

[27] I do not accept Z.O.’s evidence of the events of May 17, 2018. I have three reasons for not accepting her evidence. The first is Y.G.’s alibi. His evidence and her evidence on that point cannot logically co-exist. His evidence is backed up with real extrinsic evidence – if not perfectly backed up, then certainly backed up enough to seriously undermine Z.O.’s version of events.

[28] The second is the inherent implausibility of Z.O.’s evidence. Why would Y.G. track her down in the middle of the day in the middle of the University of Toronto campus, grab her arm, and extort her when he already knew where she lived and claimed to know where she worked? He could have easily approached her at one of those locations at a different time –when (presumably) fewer people would be around. The middle of the St. George campus near Harbord and St. George Street is a busy place and it was the middle of the day. When that question is considered in light of the alibi, Z.O.’s evidence makes little sense.

[29] The third reason is that Z.O. did not disclose evidence from May 17, 2018, in her statement to the police or at the preliminary inquiry. Z.O. did not mention Y.G.’s comment that he knew how many sugars her father took in his tea. This omission would ordinarily be something relatively minor. I would ordinarily be quite open to the argument that in light of other evidence it is of no moment. Given the other problems with Z.O.’s evidence, however, I find that it also undermines her credibility.

[30] I also have difficulties accepting Z.O.’s evidence about the assault and the sexual assault. Z.O. provided photographs of what she said were injuries to her face. She testified that she took those photographs after the sexual assault because she had to explain to her friend why she could not attend a baby shower. In cross-examination, Z.O. agreed that she had been in a car accident in May 2018. She agreed that she attended the hospital some time after the accident. She said that visit was unrelated to the car accident, which she said was a minor collision in a parking lot. Defense counsel suggested that in the photograph she was wearing a neck brace from the accident. He pointed to what appeared to be a plastic brace around her neck. Z.O. adamantly denied it. She said that it was, in fact, her hoodie.

[31] I have examined the photograph. It is clear that whatever Z.O. had around her neck, it was not a hoodie. Crown counsel agreed in submissions that Z.O. was not wearing a hoodie. It does appear to be a neck brace, but in the absence of further evidence I cannot say. I cannot make a finding of fact that she was wearing a neck brace in the photograph. I can make a finding of fact that the item around her neck was not a hoodie.

[32] This finding casts doubt on Z.O.’s evidence about the assault and the sexual assault. I find that I cannot believe her evidence. I cannot find that she was accurate and reliable when she testified that she took a selfie after the accident and it showed bruising caused by Y.G. I reject that evidence. I am, therefore, left in a state of reasonable doubt about the assault and the sexual assault, as well as the extortion charge.

DISPOSITION

[33] I find Y.G. not guilty of all charges.

R.F. Goldstein J.

Released: January 29, 2020

COURT FILE NO.: CR-19-30000177-0000

DATE: 20200129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Y.G.

REASONS FOR JUDGMENT

R.F. Goldstein J.