ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-21-30000423
DATE: 20220906
BETWEEN:
HER MAJESTY THE QUEEN
– and –
XU WEI
Accused
Joseph Hanna, for the Crown
Margaret Bojanowska, for the Accused
HEARD: May 9-13, May 26, 2022, June 8 and 9, 2022 and September 6, 2022
b.a. Allen j.
PUBLICATION RESTRICTION NOTICE
An Order restricting publication in this proceeding was made pursuant to section 486.4 the Criminal Code. Any information that could identify the Complainant shall not be published in any document, broadcast or transmission.
REASONS FOR JUDGMENT
BRIEF OVERVIEW
[1] The accused, Xu Wei, is before the court charged with one count of sexually assaulting the complainant, HYL, contrary to s. 271 of the Criminal Code.
[2] On February 5, 2019, Mr. Wei and HYL met for their third date at the Scarborough Town Centre. They had met on a Chinese dating site. They decided to go to Mr. Wei’s home. HYL alleges that while there, Mr. Wei pushed her onto his bed and performed a number of sex acts on her. She alleges he attempted to penetrate her vagina with his penis, that he digitally penetrated her, touched and bit parts of her body, asked her she perform oral sex on him, masturbated and ejaculated in front of her. Some ejaculate was deposited on pieces of her clothing. HYL’s evidence is that she did not consent to this sexual activity.
[3] Mr. Harpreet Grewal accompanied HYL to the police station where she made a statement and attended the hospital where a nurse performed a physical examination and prepared a rape kit.
THE TRIAL PROCEEDING
[4] This matter proceeded over 9 days as a judge-alone trial. HYL testified with a Mandarin interpreter. The Crown called HYL, her friend Mr. Grewal, the friend who accompanied her to the police, and Lucksicka Sivakumar, the nurse who examined HYL. A defence was not called.
[5] Ten exhibits were filed. An Agreed Statement of Facts was filed by the Crown. It contains agreement between the parties as to testimony HYL provided at the discovery proceedings on September 23, 2021 and at trial that she did not provide to the police on February 5, 2019.
LEADING UP TO THE INCIDENT
[6] HYL met Mr. Wei on an online dating site called “Tan Tan” in December 2018 where he introduced himself as “Felix”. She and Mr. Wei met in person on two occasions prior the incident before the court occurred. On the first and second meetings on January 2 and 9, 2019 they went to dinner. The plan for the second date was to go to the lake in Scarborough to have lunch. But that plan did not materialize. For their third date on February 5, 2019, they planned through WeChat, a social media platform, to meet at the Scarborough Town Centre.
[7] HYL said, because the plan for the second date fell through, she expected to go to the lake on the third date and get lunch. However, her evidence is that Mr. Wei texted her to say he had to “tidy up.” HYL said she did not understand what he meant, whether he was going to change his clothes or to tidy up his home. She asked what he meant but he never explained. She asked him to pretend she had not asked that question because she was embarrassed he might think she wanted to go to his home.
[8] HYL and Mr. Wei met at Scarborough Town Centre around 4:07 pm. They went in Mr. Wei’s car to his home which was nearby. When they arrived Mr. Wei entered his home leaving HYL in his car. He eventually asked her to come into his home. An inconsistency arose about how this was communicated by Mr. Wei.
[9] At trial HYL said she could not recall if Mr. Wei communicated this to her face-to-face or by WeChat. At the discovery proceedings in September 2021 she testified that they communicated about this by WeChat. She explained the inconsistency in terms of an impression she had at discovery, two years after the incident, that they had spoken through WeChat. She acknowledged she did not have a call record for the time she was in his car outside his home. HYL was not sure in the end how they communicated about her entering the home.
THE INCIDENT
[10] HYL testified that when she entered the home, she had the impression that no one else was there. Mr. Wei led her upstairs to his bedroom. She made certain observations about his bedroom. They had certain verbal exchanges. She asked Mr. Wei about his English exam. He asked her to hang up her coat and sit on the bed. She hung her coat but told him she preferred to stand.
[11] The defence cross-examined HYL on why she never mentioned to the police in 2019 her observations, the verbal exchanges and what occurred before he pushed her onto the bed. She explained she would not have been able to focus on those details when speaking to the police. On re-examination she stated that when speaking to the police she described what happened as quickly as possible and only focused on the things that had the most impact on her.
[12] Other inconsistencies in her evidence were explored regarding the chronology of events that occurred before, during and after the sexual assault.
[13] HYL initially testified at trial that Mr. Wei forced her onto the bed and then pulled her socks, pants and underwear down to her ankles. On cross-examination HYL said Mr. Wei started to remove her clothes as she fell to the bed, that she fell to the bed partly because he was removing her clothes.
[14] HYL testified further about the removal of her clothing. She said she was not certain whether her underwear were ever completely removed from her body. She stated that while Mr. Wei moved her sweater and bra to expose her breasts, neither item was completely removed from her body.
[15] The defence also cross-examined HYL regarding her evidence at the discovery proceedings where she testified that Mr. Wei held her hands behind her back before he forced her to the bed. She responded at trial that she was not certain whether Mr. Wei held her hands behind her back before pushing her onto the bed.
[16] HYL testified that by this point she had asked Mr. Wei several times to stop because she did not consent to what he was doing.
[17] A further inconsistency was put to HYL about Mr. Wei biting her breasts. HYL went to the washroom at some point during the incident. She went to the bathroom after him. On examination in-chief she said Mr. Wei bit her nipples and waist or lower back area. After being shown her police statement on cross-examination, HYL stated she was uncertain whether he bit her breasts both before and after she went to the washroom or just after going to the washroom.
[18] HYL went on to describe the struggle on the bed as she repeatedly told him, “No”. On examination in-chief, HYL described Mr. Wei putting on a condom, opening her legs, and pushing his penis near her vagina. She said Mr. Wei held her hands at times in the front of her body and at other times behind her back and grabbed her arm with his hand. Mr. Wei then digitally penetrated her.
[19] HYL described it being painful when her hands were behind her back and explained that at some point she freed one of her hands and used it to block his hand. She explained she told Mr. Wei “no” at least ten times by then.
[20] The defence cross-examined HYL about a further area of inconsistency in her evidence.
[21] In the discovery proceedings she testified that Mr. Wei made further attempts to penetrate her with his penis following his attempt to digitally penetrate her. She was asked which sequence was the truth. Did he attempt penis penetration followed by digital penetration? Or was penis penetration followed by digital penetration, followed again by attempted penis penetration? HYL’s response was that she did not really recall the sequence.
[22] The presence of blood from the sexual encounter attracted attention at the hospital, at the police station and subsequently in the forensic investigation.
[23] HYL noticed blood coming from her vagina when Mr. Wei was digitally penetrating her. When questioned about the blood, HYL responded that she was not menstruating and that Mr. Wei caused the bleeding. She explained in-chief that her period had finished five days before the sexual encounter with Mr. Wei. HYL was confronted on cross-examination with areas of her testimony where, according to the defence, she seemed uncertain about this:
“... one or two days before. It's not - may not be one or two days before, but I'm certain that by then my period has ended”; "I would say it stopped a few days prior to that"; and "It was not one or two days. It was five. It was stopped about five days ago.”
[24] HYL also testified blood was deposited on a sleeve of her white sweater and she repeated that it got there as a result of her using her hand to block her vagina when Mr. Wei was penetrating her digitally. She also saw blood on the bed sheets. HYL never relented in her certainty that her period had ended by February 5th.
[25] HYL was asked about another inconsistency regarding going to the washroom.
[26] As noted above, at trial in-chief, HYL stated that Mr. Wei went to the washroom first and gave her what she thought was toilet paper to clean up and then she went to the washroom after he left that room. The defence questioned her about her evidence at discovery and in her police statement that she went to the washroom after Mr. Wei. She accepted, given the police statement was made on the day of the incident, that the police statement would be more accurate on this point.
[27] The defence also questioned HYL about opportunities she may have had to act to protect herself while Mr. Wei was in the washroom. She conceded she did not put her pants on or call 911 or a friend when Mr. Wei went into the washroom.
[28] On examination in-chief, HYL described that when they were both out of the washroom Mr. Wei touched her on her breast and leg, pressed his body against hers, kissed and bit her breasts and asked her for oral sex which she refused. She recalled, with the attempt at oral sex, that Mr. Wei’s penis was close but did not touch her mouth. The defence questioned HYL as to why she told the nurse there had been no attempt at oral penetration. She guessed that it was because she was embarrassed. However, she accepted that what she told the nurse on the day of the incident would be more accurate.
[29] A further inconsistency was put to HYL about telling the police Mr. Wei bit her waist after she returned from the washroom. She said she was not certain of the sequence of Mr. Wei’s action. She was not sure whether the biting of the waist happened earlier in the encounter or not.
[30] HYL was questioned on her evidence about Mr. Wei ejaculating during the encounter.
[31] At trial, HYL initially testified that Mr. Wei masturbated and ejaculated and that some ejaculate fell onto the bed sheet and her pants and socks. The defence put to her the police statement and her discovery evidence. In her police statement she said Mr. Wei used her pants and socks to wipe up the ejaculate and at discovery her evidence was basically the same as at trial. HYL agreed that she had given the police different evidence in this area.
[32] As well, HYL told the nurse that Mr. Wei had ejaculated on her back. At trial she contended that did not happen and if she told that to the nurse, she could not understand why she would have done so.
[33] HYL asked to leave Mr. Wei’s home and she then returned to the washroom. They quickly left the residence. She accepted a ride in Mr. Wei’s car back to the Scarborough Town Centre.
AFTER THE INCIDENT
Report to the Police
[34] HYL immediately texted her friend, Harpreet Grewal, and told him what happened to her. Over the phone, Mr. Grewal suggested they meet at police headquarters downtown so she could make a complainant. As it turns out, they were directed to attend a police division in Scarborough. He accompanied her to the station.
[35] The defence questioned HYL about the fact Mr. Grewal made the suggestion that she go to the police implying that it was not her own decision. She agreed that Mr. Grewal encouraged her to report. However, she stated that although he encouraged her, she independently wanted to report the sexual assault to the police.
[36] HYL provided a videotaped statement to the police at 9:34 p.m., on February 5, 2019. The transcript of the statement was filed in evidence. The police took several photos of her which were made exhibits at trial. One of the photos depicts blood on a sleeve of her white sweater. She repeated that the blood resulted from Mr. Wei digitally penetrating her.
Grewal’s Testimony
[37] Mr. Grewal testified he received the text from HYL at 5:43 p.m. on February 5th. He said she told him she had been sexually assaulted. He testified that when he spoke to her on the phone her voice sounded “fearful”. Mr. Grewal rejected any suggestion that he pressured her in any way to report the incident to the police. He testified that by something HYL said she made him know that she wanted to go to the police.
[38] Mr. Grewal testified that when they met at the police station he observed her demeanor to be “fearful, in shock, embarrassed”. Mr. Grewal told the court: “for sure I know she was in shock, because she just — she — her — she was just like flustered.” He further explained HYL’s reaction: “Just anger, embarrassment, she was just really — I don’t know how to explain shock. Like it’s just — it’s just— she was just in a state of like she just didn’t know how it happened. Like she was just in shock. And so, but she was angry and embarrassed, I believe from the way she was telling the situation and the way she was kind of looking down the whole time”.
At The Hospital
[39] HYL left the police station and attended Scarborough General Hospital where, in the early morning of February 6th, a nurse, Lucksicka Sivakumar, interviewed her, took photos of various areas of her body, examined her and prepared a rape kit. Her findings were reported in a rape kit comprised of a Forensic Evidence Form and a Physical Examination Form with photos attached, dated February 6, 2019 which are in evidence.
[40] At trial HYL was shown various photos and she provided the following evidence:
• the injury to her left arm shown in the photos resulted from her struggle with Mr. Wei when he grabbed her arm which she demonstrated in court;
• the injuries to her neck and upper back shown in the photos were caused by Mr. Wei during the incident; and
• the injury on her waist depicted in one photo she described as a bite mark caused by Mr. Wei.
Lucksicka Sivakumar’s Evidence
[41] Ms. Sivakumar testified she did not have an independent recollection of her interactions with HYL. Her testimony was guided by her notes and the nursing practice she customarily used with sexual assault examinations.
[42] Ms. Sivakumar addressed the wording of some of the questions on the Forensic Evidence Form she completed during her examination of HYL. For example, one question asks: “Was there penetration or attempted penetration of the patient’s mouth within the last 24 hours by the assailant’s penis?” which Ms. Sivakumar checked off, “No”.
[43] Another question asked: “Did the assailant potentially transfer bodily fluids to a non-genital area on the patient’s skin, for example, external ejaculation, kissing, licking, biting, strangulation?” Ms. Sivakumar noted next to that question that she had taken a skin sample of HYL’s back. Under the heading “Reason Collected?”, she wrote “ejaculation.” Ms. Sivakumar indicated that this information would have come from HYL, and she repeated that she lacked a specific memory of whether HYL offered any elaboration or explanation on this issue.
[44] The Physical Examination Form contains line diagrams of whole human male and female bodies and of various parts of the body. Ms. Sivakumar completed the form making handwritten notes documenting injuries on HYL’s body.
[45] Ms. Sivakumar noted injuries to HYL’s right neck, left arm, left abdomen area and to the left side of her back. She also noted a bruise to HYL’s thigh that HYL told her was not related to the incident. Ms. Sivakumar took photos of the injuries she concluded were related to the assault. She explained that she would not have noted injuries as being related to the incident without confirmation of same by HYL.
[46] Ms. Sivakumar noted that HYL reported Mr. Wei had ejaculated on her pants, underwear and the bed. Regarding HYL’s evidence about Mr. Wei’s contact with her breasts, Ms. Sivakumar did not note any injuries to her breasts. Ms. Sivakumar testified she would have made a note of same had she observed an injury. Ms. Sivakumar also made no note of any bite marks on HYL’s body. While she noted no injury or tenderness to the vaginal area she did note HYL could not tolerate a vaginal swab.
ANALYSIS
Overview
[47] Identity is not an issue in this case. There is no issue that HYL was familiar with Mr. Wei having met him previously. Credibility is the central issue, mainly HYL’s credibility. No defence was called as is the right of an accuse to remain silent and put the Crown to its burden to prove beyond a reasonable doubt that he committed an offence. No adverse conclusion can be made of an accused choosing to exercise that right.
[48] HYL faced strenuous cross-examination and I found she made valiant efforts to respond to the questions in an honest and forthright manner. Many of the defence’s areas of questioning called for details that would tax the memories of persons with superior recall. Other areas of questioning did expose inconsistencies in her evidence, some even less consequential than others, that I conclude were together not sufficient to raise a reasonable doubt about Mr. Wei’s guilt.
[49] There were other areas that appeared to be inconsistencies that her evidence dispelled as such. There were other areas of evidence where HYL gave evidence in one forum and not in another that I found were inconsequential to the central issue to be determined.
[50] And, an improper interpretation of some of HYL’s evidence could raise the spectre of prohibited stereotypical thinking on what the appropriate behaviour for a victim of sexual assault should be.
[51] I am mindful that triers of fact must avoid adverse credibility findings based on impermissible stereotypical findings from conduct such as delay in making a complaint or failure to show avoidance behaviour or to display a behaviour change: R. v. Seaboyer; R. v. Gayme, 1991 76 (SCC), [1991] 2 S.C.R. 577 (S.C.C.); R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at paras. 63 – 65, (S.C.C.).
[52] It is recognized as well that victims of sexual trauma frequently encounter memory problems that can affect their recall of the details of the experience. With sexual offences, it must not be automatically inferred that gaps in memory are an indicator of a failure in credibility: R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at para. 29, (S.C.C.) and M.(K.) v. M.(H.),1992 31 (SCC), [1992] 3 S.C.R. 6 (S.C.C.).
[53] Strongly weighing in favour of HYL’s credibility is material evidence that supports her claims - forensic findings on blood evidence and ejaculate and HYL’s physical injuries. I find the forensic evidence serves as confirmation of her allegations: R. v. Primmer, 2021 ONCA 564, at paras. 35 – 39, (Ont. C.A.).
[54] There is also HYL’s post-offence demeanour as portrayed by her friend who described a shocked, embarrassed, angry and fearful HYL. This evidence is circumstantial evidence to corroborate HYL’s testimony about her state of mind shortly after the encounter: R. v. Steele, 2021 ONCA 186, at paras. 94 and 95, (Ont. C.A.).
[55] I found Mr. Grewal to be a credible and genuine witness. I considered the evidence that he and HYL had dated in the past and were friends, friends who, by the time of the incident, had not been in constant contact. I did not get the impression he testified in order to help a friend mislead the court.
[56] For the following reasons, I find the Crown has succeeded to my satisfaction to prove Mr. Wei’s guilt.
Forensics
Blood Evidence
[57] HYL’s evidence was that when Mr. Wei was digitally penetrating her vagina, she saw blood coming from her vagina. She was wearing a white sweater at the time of the assault. She used her hand to block Mr. Wei’s hand which resulted in a blood deposit on the sleeve of her sweater. The presence of blood on her sweater is confirmed in the police photos. The forensic evaluation reported blood on HYL’s sweater as well as on her underwear.
[58] HYL was cross-examined vigorously based on the suggestion that the blood resulted from her being on her menstrual cycle at the time of the assault. HYL adamantly denied this saying that her period had ended by the time of the assault. At trial she said her period had ended about five days earlier. During discovery she went back and forth estimating whether it was two days, three days or five days earlier. But ultimately she concluded that her menstrual period ended five days earlier.
[59] I note here that I cannot imagine she would have had a reason to have an exacting memory of the end of her period before being questioned about it in this criminal prosecution. So it stands to reason she might vacillate somewhat in coming to a final estimation.
[60] Whatever the exact number of days, I accept HYL’s evidence that her period had ended and that the blood on her clothing resulted from digital penetration. There is no other viable explanation. Importantly, I also accept HYL’s evidence that she told Mr. Wei “no” many times throughout the assault, including to the digital penetration, demonstrating she was not consenting to what he was doing.
Ejaculation
[61] HYL’s evidence at trial was that Mr. Wei masturbated and ejaculated. Ejaculate was located on her pants and socks. At trial and at discovery, she said the ejaculate fell onto her pants, socks and sheets. In her police statement she said Mr. Wei used her pants and socks to wipe up the ejaculate. On cross-examination she acknowledged giving different information to the police and said she was not certain of how the ejaculate got on her pants and socks.
[62] In any event, the forensic evaluation confirms ejaculate on her pants and underwear. It is of no consequence to my final determination that HYL did not have a steadfast account of exactly how the ejaculate ended up on her clothing given that she was in the throes of being sexually assaulted.
[63] The forensic report also indicates that the reason for taking a swab of HYL’s back was to test for ejaculation. HYL denied telling the nurse that Mr. Wei ejaculated on her back and could not explain why the nurse indicated that.
[64] Ms. Sivakumar was candid in saying she does not recall interviewing and examining HYL. This stands to reason since by the time of trial we are looking back over three years. So, she reasonably resorted to her customary practices in doing forensic and physical examinations. I, of course, find no fault in this. However, Ms. Sivakumar did indicate that the information about the ejaculate on HYL’s back would have come from HYL.
[65] In deciding how much weight to assign to this seeming inconsistency I must consider the nurse’s lack of specific recall of interviewing HYL and the make-up of the Forensic Evidence Form.
[66] The form in large part contains various checklists for answering the various areas of inquiry. There is little room for written comments or a more detailed account. In the section that says “SKIN SAMPLES” where it asks whether bodily fluids were transferred, there is a check mark under “Yes”. Under “Swabs of deposits on skin”, the nurse wrote “back”, among other parts of the body, and under “Reason for collecting?”, “ejaculation” is written.
[67] It is difficult to know what HYL told Ms. Sivakumar. There is no room for a brief narrative. It is difficult to know whether she misheard or misunderstood her. I am not sure whether an interpreter assisted. For those reasons, I cannot attribute much weight to the seeming consistency regarding whether Mr. Wei ejaculated on HYL’s back.
Physical Injuries
[68] The police photos and Physical Evidence Report contain evidence that tends to confirm HYL’s account of the assault. She testified about the injuries depicted on her neck, a scratch near her shoulder on her upper back, an injury near her waist and a prominent bruise on her left arm, all caused during her struggle with Mr. Wei. She said the injury near her shoulder was caused when Mr. Wei was holding her arms behind her back. Regarding the bruise on her left arm, she demonstrated from the witness stand how the bruise on her left arm was caused by him grabbing her arm.
[69] The defence questioned why HYL did not tell the police or mention in discovery Mr. Wei grabbing her left arm. She responded that she did say that Mr. Wei grabbed her. She just did not specify where.
[70] HYL testified for the first time at discovery about Mr. Wei biting her on her breasts. The defence questioned her about this pointing to the forensic examination that shows no such injuries. The nurse found no bite injuries anywhere on her body although HYL also testified she was bit on her waist.
[71] Although this appears to present credibility issues, it is possible that bite marks were not discernible during the examination, perhaps because Mr. Wei did not bite hard enough to leave a mark or because signs of bites had not formed by the time of the examination.
[72] Even if I accept there is an inconsistency regarding bites, that would not be enough to unseat the overall credibility of HYL’s evidence in other areas.
[73] In any event, I have no reason to disbelieve HYL’s account of the injuries and how the visible injuries occurred. The photos confirm her account to my satisfaction. In view of that, the fact that she may not have reported in each forum how each of the injuries happened does not impact my favourable view of her credibility. These are the types of details a victim of sexual assault may not remember on the traumatic day of her assault and on later occasions when asked to speak about her experience.
[74] I find the physical injuries were caused by Mr. Wei’s actions during the sexual assault, conduct HYL did not consent to.
Attempted Oral Penetration
[75] HYL’s evidence at trial is that Mr. Wei asked her to perform oral sex. He put his penis close to her mouth, but not inside her mouth. The forensic evidence form asks: “Was there penetration or attempted penetration of the patient’s mouth within the last 24 hours by the assailant’s penis?” The nurse checked off, “No.”
[76] HYL acknowledged on cross-examination that she did not report that to the nurse. She responded that she did not know why she did not mention the attempted oral penetration. But thought she might have been embarrassed to mention it.
[77] But at trial is not the first time she mentioned attempted oral penetration. She did report that to the police on the day the assault occurred. This is what she told the police:
... then he was at my back ... And to, um, not let me go, and also asked me to, um, do blowjob for him, and I rejected, and he, he touched my breast and he bite, he bite me, um, on my waist ... And also bite my nipples ... And also, and also kissed my body, and he asked me to do something, let him touch or do blowjob for him, then he would let me go, but I rejected.
[78] I do not find HYL’s failure to tell the nurse about the attempted oral penetration to have any appreciable impact on my overall assessment of her credibility. It is not beyond belief that she might have been too embarrassed to repeat that experience to a medical professional.
Other Considerations
[79] No one piece of evidence pointing to HYL’s favourable credibility was sufficient. As I am required to do, I arrive at my decision to believe HYL’s allegations against Mr. Wei on the totality of the evidence I saw and heard.
[80] I find in HYL’s favour that she disclosed the sexual assault immediately to Mr. Grewal after Mr. Wei dropped her off at Scarborough Town Centre. With Mr. Grewal’s support, she moved immediately to report to the police what happened. She followed the customary routine of attending the hospital to get a rape kit done after speaking to the police. In the context of other supportive evidence, I find HYL’s sense of urgency adds some weight to her credibility.
[81] Again, I find the fact that HYL did not recall some details about her experience is understandable given the trauma of a sexual assault. It makes sense that some sexual assault victims cope with their experiences by trying to suppress memories, not by committing the details to memory. For example, a victim often has an inability to recall the sequencing or the chronology of aspects of a sexual assault. This was the case with HYL’s memory of some of the timing of Mr. Wei’s actions.
[82] HYL did not tell the police what she said at trial about what she and Mr. Wei spoke about and did before she was pushed onto the bed. This is inconsequential to the central issues in dispute.
[83] At discovery, HYL testified Mr. Wei communicated with her by WeChat to invite her into the residence. The fact that HYL did not recall, when she was in Mr. Wei’s driveway in his car, whether they communicated face-to-face or by WeChat, in my estimation, is also really of little consequence to my assessment of her credibility.
[84] As well, the fact that HYL was not certain whether ejaculate was deposited on her socks and pants as a result of it falling from Mr. Wei’s penis onto the clothing or whether Mr. Wei used the clothing to wipe the ejaculate up, I think, is again one of those types of details it is not surprising she might not recall or be clear on. I do not assign an adverse credibility finding because of this.
[85] On the question of stereotyping the behaviour of sexual assault victims, I considered the defence’s concern that HYL did not seek help or get dressed when Mr. Wei left the bedroom to go into the bathroom. I also looked at the fact that, following the sexual assault, HYL also accepted a ride from Mr. Wei to the Scarborough Town Centre. Stereotypical thinking would have it that a victim of sexual assault would put her clothes on and call for help at the first opportunity and get away from the perpetrator as soon as she was able to and not accept a ride from him.
[86] As courts have made clear, there is no gold standard of expected behaviour for victims of this type of crime.
[87] I did not receive an explanation for HYL’s choices. But I am sure she had a reason to approach her circumstances in the way she did, a reason besides not truly having experienced a sexual assault. I say this because the court was presented with persuasive evidence that supports her allegations, not the least of which was her post-offence demeanour of fear, shock, anger and embarrassment immediately after she got out of Mr. Wei’s car as evidenced by Mr. Grewal.
CONCLUSION
[88] I find pursuant to s. 271 of the Criminal Code that Xu Wei is guilty of committing a sexual assault against HYL at his home on February 5, 2019.
VERDICT
[89] Xu Wei, will you please stand. I will now announce my verdict. I find you guilty on the sole count on the indictment of sexual assault contrary to s. 271 of the Criminal Code.
Allen J.
Released: September 6, 2022
COURT FILE NO.: CR-21-30000423
DATE: 20220906
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
XU WEI
Accused
REASONS FOR JUDGMENT
Allen J.
Released: September 6, 2022