R. v. Chen, 2023 BCSC 745

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Chen, 2023 BCSC 745 Date: 20230405 Docket: 32939-1 Registry: Vancouver Rex v. Da Wei Chen Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, referred to in this judgment by the initials N.G. or S.B. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice W.A.

Baker These Reasons for Judgment have been anonymized for publication purposes Oral Reasons for Judgment Counsel for the Crown: A.C.L. Ip (not in attendance) J.M. Madden Counsel for the Accused: A.J. Bonfield Place and Date of Trial/Hearing: Vancouver, B.C. January 16-20 & 23-25, 2023 Place and Date of Judgment: Vancouver, B.C. April 5, 2023 [ 1 ] THE COURT: These are my reasons for decision. [ 2 ] The defendant, Mr. Da Wei Chen, is charged with two counts of sexual interference of a person under the age of 16 years, contrary to s. 151 of the Criminal Code , R.S.C. 1985, c.

C-46 , [ Criminal Code ]. [ 3 ] The first count is alleged to have occurred between January 1, 2021, and March 17, 2021, against a complainant known in these proceedings as S.B. The second count is alleged to have occurred between January 1, 2021, and June 16, 2021, against a complainant known in these proceedings as N.G. [ 4 ] The allegation in relation to S.B. is that when she was 12 years old, she and her friend N.G. met up with Mr. Chen one evening near Granville Street in Vancouver, B.C. The exact date is not known, but it is believed to be a few days before March 17, 2021. N.G. left S.B. with Mr.

Chen around midnight. When S.B. and Mr. Chen were alone, Mr. Chen undid his pants and forced his penis into S.B.'s mouth. S.B. tried to move away, but he pushed her head onto his penis. [ 5 ] The allegation in relation to N.G. is that Mr. Chen arranged for N.G. to stay in a hotel room on Hastings Street in Vancouver, British Columbia. N.G. and Mr. Chen were together in the hotel room sometime after midnight. N.G. was sleeping and woke up when Mr. Chen laid down beside her, tried to take her pants off, and placed his fingers in her vagina.

The exact date of the incident is not known, but it is believed to be in the first half of 2021. [ 6 ] In each instance, pursuant to s. 151 of the Criminal Code , the Crown must prove that the alleged touching occurred, that each of the complainants were under the age of 16 years old at the time, and that Mr. Chen engaged in such touching for a sexual purpose. [ 7 ] There is no dispute that each complainant was under the age of 16 years old at the time of the alleged touching by Mr. Chen.

I am also satisfied that if the touching is proven, the touching was for a sexual purpose. [ 8 ] The only question for each of the allegations is whether the Crown has proven beyond a reasonable doubt that Mr. Chen sexually touched each of the complainants as alleged. The Law [ 9 ] Of particular importance in this case are two principles: the first being the analytical framework applicable in relation to the evidence of child witnesses in a criminal trial; the second being the assessment of credibility in trials involving crimes of a sexual nature.

Credibility and reliability issues relating to the complainants [10] In this case, both of the complainants were under the age of 16 at the time of the alleged incidents. N.G. was 14 years old at thetime of the alleged incident and was 16 years old at trial. S.B. was 12 years old at the time of the alleged incident and was 14 years old atthe time of trial. [11] I allowed the complainants to testify from outside the courthouse using video technology.

I also admitted the videorecordedpolice statements of each complainant made in 2021 as part of their direct evidence. [12] In assessing the credibility and reliability of the evidence of children, courts must use a common sense approach and should notrely on the test for assessing the credibility of adult witnesses: R. v. D.W.L., 2018 BCSC 2480 at para. 80. [13] Flaws in the child's evidence, particularly with respect to details as to time and location, do not necessarily detract from thecredibility and reliability of the child's testimony.

Their testimony must be considered in the context of their age at the time of the eventsin question: D.W.L. at paras. 84 to 86. [14] In D.W.L., relying on R. v. F.(C.C.), (SCC), [1997] 3 S.C.R. 1183, the court addressed the use at trial ofvideorecorded testimony of a child: [88] The Supreme Court of Canada in F. (C.C.) ruled on when viva voce testimony contradicts the video statement. In F. (C.C.), thechild complainant adopted her video statement in examination-in-chief. In cross-examination, the child complainant made viva vocestatements that contradicted the video statement.

If the child complainant contradicts her video statement in cross-examination, this doesnot automatically mean that the video is wrong or unreliable. It is open to the trial judge to find: (1) that the inconsistencies areinsignificant, and (2) the video evidence is more reliable than the viva voce evidence at trial: F. (C.C.) at para. 47. [89] The witness’s adoption of video evidence primarily goes to threshold reliability necessary to warrant admission. The reliabilityassessment does not end here.

However, factors employed in determining threshold reliability help the court in continuing its reliabilityassessment to the extent that presence of those factors illustrate a minimum level of reliability of the evidence. [90] The Supreme Court of Canada expressly rejected the notion that the child complainant must remember the events spoken aboutin the videotape as being true: see F. (C.C.) at para. 40.

The witness’s assurance that they were honest during the video recording was“sufficient indication of trustworthiness” for threshold reliability and admission for the truth of its contents via adoption: F. (C.C.) atpara. 37. [91] The Court in F. (C.C.) at para. 44 recognized that the lack of specific memory might pose a problem for reliability, because if achild cannot remember an event spoken about in the video statement, how can they be cross-examined on that issue? Cross-examinationis not the only guarantee of reliability: see F. (C.C.) at para. 44, citing R. v. Khan, (SCC), [1990] 2 S.C.R. 531 [Khan];R. v.

Smith, (SCC), [1992] 2 S.C.R. 915; R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740. It is enough ifthe child can be cross-examined on whether they were being truthful at the time they made the statement: see F. (C.C.) at para. 44. [92]

Section 715.1 has other “built-in guarantees of trustworthiness and reliability”, as described in F. (C.C.) at paras. 40 and 44:

a) the requirement that the statement be made within a reasonable time;

b) the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor, and assess the personalityand intelligence of the child; and

c) the requirement that the child attest that she was attempting to be truthful at the time that the statement was made. [93] These indicia “provide enough guarantees of reliability to compensate for the inability to cross-examine as to the forgottenevents”. However, Cory J. wrote that the “dangers of convicting based on the videotape alone “was sage advice and should be followed”:see F. (C.C.) at para. 44. [94] An adopted video statement and viva voce evidence together become the child complainant’s evidence in chief.

If there aredifferences between the viva voce evidence and the video testimony, the trial judge should assess the “circumstances in which the videowas made, the veracity of the witness’ statements, or the overall reliability of the evidence … in determining how much weight thevideotaped statement should be given”: F. (C.C.) at para. 46, including if the video statement should be given more weight than the vivavoce testimony. The assessment will involve recourse to the factors cited above and generally concerning the credibility and reliability ofchildren and their evidence. [95] Commenting on R. v.

Meddoui (1990), (AB CA), 61 C.C.C. (3d) 345 (A.B.C.A.), a decision of the AlbertaCourt of Appeal which was upheld by the Supreme Court of Canada as the proper test for the adoption under s. 715.1, the Supreme Courtfound that: F. (C.C.) at para. 37. . . . a very early account can be of more probative value than present testimony, particularly if the present memory is faulty or it isdifficult for the witness to articulate it in court. [96] This is because a “videotape made shortly after the event is more likely to be accurate than the child’s viva voce testimony,given months later, at trial”: see F. (C.C.) at para. 41, and it is possible for the trial judge to prefer the video statement to the viva vocetestimony. [15] I accept this analysis by the court in D.W.L. reflects the correct statement of the law to be applied to the evidence of thecomplainants in this case.

[16] In addition, I refer to the Court of Appeal's decision in R. v. Hernandez-Lopez, 2020 BCCA 12, where the court addressed theissues which can arise with suggestibility in the case of child witnesses. The court noted that it is not unusual for child witnesses to benervous, suggestible, or easily confused, and that some witnesses provide more cogent, clear, and detailed evidence when responding toopen-ended questions, (paras. 30 and 31).

At para. 28, the court stated: [28] I do not quarrel with the proposition that a judge is required to fully consider the quality of the evidence given in bothexamination-in-chief and in cross-examination. I also agree with the proposition that a judge must not approach the assessment of theevidence with a pre-disposition to accept answers given in direct examination over answers given in cross-examination.

This does notmean, however, that a judge is precluded from reaching an honest assessment to the effect that a particular witness’s responses to open-ended questions are more reliable than that witness’s answers to leading ones. [17] One final important aspect of the evidence of the complainants relates to their use of drugs and alcohol, and the impact of suchintoxicants on their ability to remember the events in question. Both complainants had consumed significant amounts of intoxicants at thetime of the alleged incidents and had difficulty remembering all aspects of the alleged events.

The critical issue for the courts is whetheran intoxicated witness has a reliable memory of those events they do remember. In R. v. J.R.B., 2021 BCPC 242 at para. 71, JudgeChallenger held: Memory gaps alone . . . do not automatically render the evidence the witness does recall unreliable. Fragmented memory, even if due tointoxication, is not a complete absence of memory. [18] Similarly in R. v. Kruk, 2022 BCCA 18, the Court of Appeal did not find fault in the trial judge's assessment of the reliability ofthe complainant's memory, even though she was intoxicated and experienced blackouts. [19] In R. v.

Smith, 2021 BCPC 210, the court also assessed the complainant's evidence in light of her intoxication and found hermemory to be reliable. Credibility assessment in crimes of sexual nature [20] In this trial, the question of Mr. Chen's guilt or innocence will not be determined by the court choosing between his evidence andthe evidence of the complainants. The burden of proof remains on the Crown to prove the case beyond a reasonable doubt. As stated bythe Supreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, the fundamental principles relevant to thecorrect analytical framework are: A trial judge may well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, you obviously must acquit; Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [at para. 28] [21] The principles in W.(D.) are set out in the context of jury instructions.

In R. v. Michaud, 2022 NSSC 160, the court summarizedmore recent articulations of the W.(D.) principles in reference to a judge-alone trial: [25] In the subsequent decision of R. v. S. (J.H.), 2008 SCC 30, the Supreme Court of Canada emphasized that the specific questionslisted in W.(D.) were not to be rigidly repeated in a manner that suggested an unintended "level of sanctity or immutable perfection".

Rather and returning to the central theme that inspired the W.(D.) framework: "The main point is that lack of credibility on the part ofthe accused does not equate to proof of his or her guilt beyond a reasonable doubt" (at paragraph 13). Similarly, in the earlier decisionof R v C., 2004 NSCA 135, Cromwell, J.A. (as he then was) confirmed: The W.(D.) principle is not a magic incantation which trial judges acting as triers of fact must mouth to avoid appellate intervention.

Thequestion for the appellate court in a judge alone case is whether, upon consideration of the whole of the judge's decision and theevidence at trial, it appears that the judge did not apply the proper test and therefore did not apply his or her mind to the possibility thatdespite having rejected the evidence of the respondent, there might nevertheless be a reasonable doubt: R. v. Brown (1994), (NS CA), 132 N.S.R. (2d) 224 (N.S. C.A.); Sheppard at para. 65. [at paragraph 21] Evidence of S.B. [22] S.B. testified remotely. There were no technical difficulties with the connection.

I am satisfied I was able to see and hear S.B.well and I am able to properly assess her as a witness. In addition to her oral testimony, I received the video recording of her interviewwith Constable Tracy Stables on June 11, 2021, pursuant to s. 715.1 of the Criminal Code. [23] In her 2021 interview, S.B. said she met a man called Dave through a friend when they were out walking around. She said shemet Dave a few times and when they met him, they did bad substances with him. The bad substances she did were alcohol andmethamphetamine. She also thought one time she did Xanax with him.

She remembered the friends she was with asking Dave to getthem alcohol, which he would do. She remembers Dave giving them methamphetamine. She remembers sometimes he would give themmoney to get something and would tell them they could keep the change.

[ 24 ] On the night of the alleged assault, S.B. remembers being with Dave and N.G. in downtown Vancouver. She remembered it was late at night, close to midnight. She remembers Dave buying vodka for the girls to drink. At some point, N.G. left S.B. and Dave so she could go to buy chaser.

After N.G. left, S.B. remembered being with Dave by a building where there were bushes and grass. [ 25 ] In the interview, S.B., when describing the assault, said, “I remember sitting down onto the grass, kind of blacked out, and then I was, you know, my head was being pushed to, you know.” S.B. described the area where she was assaulted as being on a grassy patch, with a building in front of them and bushes around the grass. [ 26 ] She remembered Dave pushing her head into his penis and his penis being forced into her mouth. She remembered his one hand being on the back of her head, just above her neck.

She remembered his pants were unbuttoned, but were not down around his knees. She did not remember if he said anything to her. She remembered blacking out a few times during the assault. She remembers regaining consciousness and trying to get away, but Dave pushed harder and was more forceful with her. After Dave stopped, they sat back down on a concrete area and she remembers blacking out again.

She did not see Dave again that night. [ 27 ] When S.B. regained consciousness, she was sitting on a bench at a bus stop with her knees pulled up to her chest, in a different place from where she had been earlier with Dave. It was getting light out. She heard her friend N.G. call to her and come over to her. S.B. remembered telling N.G. about what happened with Dave. She did not remember where she and N.G. went after they met that morning. [ 28 ] S.B. said she was scared of Dave. [ 29 ] On June 11, 2021, S.B. participated in a photo pack presentation conducted by Detective Rajtschan.

In that presentation, S.B. identified the person she knew as Dave. On the back of the photograph chosen by S.B., she wrote the words, “That's the man that scares me.” In the videorecording of the photo pack presentation, S.B. identified Dave immediately and without hesitation as the man who assaulted her. [ 30 ] Mr. Chen admitted, pursuant to s. 655 of the Criminal Code , that S.B. went to Saskatchewan on March 17, 2021, and the alleged incident between S.B. and Mr. Chen occurred a few days prior to her going to Saskatchewan.

He also admitted he was the person identified by S.B. in the photo pack presentation. [ 31 ] At trial, S.B. said that in early 2021, she was addicted to drugs and alcohol, and two to three times a week ended up in hospital due to alcohol abuse. Under cross-examination, she agreed that she and her friends were downtown most days and had no difficulty getting drugs or alcohol. She said at times she would drink so much that she had to go to hospital. She denied drinking a whole bottle of alcohol and said she would drink less than that.

She agreed she used methamphetamine as often as she could get it. [ 32 ] Under cross-examination, S.B. agreed that she thought Dave was living near to the corner of Granville Street and Davie Street. S.B. said that when she and her friends hung out with Dave, she thought she saw Dave drink a few shots of alcohol and she saw him doing methamphetamine each time. He would share his pipe of methamphetamine with S.B. and her friends. [ 33 ] Under cross-examination, S.B. said that on the night of the alleged incident, she and N.G. shared methamphetamine with Dave, sharing from his pipe.

She said she and N.G. shared a mickey of vodka. She remembered the location of the incident as being downtown, not in a park. [ 34 ] Under cross-examination at trial, S.B. described the area as being a sidewalk with bushes beside the sidewalk and grass behind the bushes. S.B. was asked where she was when she was drinking with N.G. and Mr. Chen, and S.B. said they were sitting on the side of the building when they were drinking. S.B. was asked to agree they were sitting on a sidewalk near a building with bushes and grass nearby, which she agreed to.

S.B. said the building was white and she had a specific recollection of an unusual staircase in the building. S.B. agreed the sidewalk was lit by lights of cars and street lights. [ 35 ] Following from the questions about where the three of them were sitting while the girls were drinking, S.B. was asked to agree that at some point N.G. left to get chaser, to which she agreed. She agreed she was alone with Mr. Chen and then blacked out. She agreed that her best estimate was that it was midnight. She agreed that it was the middle of the night and dark out.

She agreed that on the sidewalk there were cars and people going by. [ 36 ] S.B. agreed that the only thing she remembers was his penis in her mouth, and she could not say whether it was around midnight or closer to dawn. Finally, she was asked if she thought this happened on the sidewalk and S.B. agreed. [ 37 ] Under cross-examination, S.B. agreed that she consumed methamphetamine and six to seven ounces of alcohol on the night in question. Counsel suggested that that was not enough for her to black out and S.B. disagreed. She said she was blacking out and had not eaten that day.

I note that on the night in question, S.B. was 12 years old. On the videorecording of the interview in 2021, and indeed during her testimony at trial, S.B. presented as a very short and slight girl. [ 38 ] Under cross-examination, S.B. remembered that when she met N.G. in the morning when she woke up on the bus stop bench, she told N.G. right away about what had happened with Dave.

She also agreed she did not know exactly when the incident with Dave occurred, only that it was sometime between midnight and morning when she regained consciousness. [ 39 ] Counsel suggested to S.B. under cross-examination that she had more than six ounces of alcohol to drink that night and more drugs than a little methamphetamine. S.B. agreed it was possible. Counsel then suggested she would have suffered from hallucinations, but S.B. firmly disagreed that was possible.

She said she did suffer from hallucinations when she stopped doing methamphetamine, but that was not the case on the night in question. [ 40 ] Under cross-examination, S.B. agreed she was mistaken about being given Xanax by Dave. She agreed the only drug he gave her was methamphetamine. She remembered him buying alcohol for her and her friends. She denied that Dave may have once tried to buy alcohol for her and her friends but was refused service because he had no identification.

[ 41 ] Under cross-examination, after agreeing that she recalled Dave's penis in her mouth, but did not see his face while that was happening, S.B. agreed that she thought this was happening at the same place N.G. left her on the sidewalk. [ 42 ] S.B. underwent a series of questions which are important to highlight. First, cross-examining counsel asked S.B. to agree that she was still drunk in the morning when N.G. found her, to which S.B. agreed. He then asked her to agree it was possible she had a lot more to drink than half a mickey, to which she agreed.

He then asked if it was possible she had done more drugs and she agreed. He then asked if she agreed a lot happened that night that she did not remember and she agreed. [ 43 ] Counsel then asked S.B. to agree that her memory was so bad, she could not remember what happened with Dave. She disagreed with this proposition clearly and without hesitation. When asked if it was possible she was hallucinating from methamphetamine use, she replied she did not think she was hallucinating.

She was asked if it was possible that Dave left her around the same time that N.G. left and that someone else assaulted her, and she disagreed without hesitation. [ 44 ] Counsel asked her to agree with the suggestion that she had no clear memory of where she went or what she did, because of her state of drunkenness, and S.B. agreed. Counsel then suggested to S.B. that she could not completely reject it or ignore the fact that someone else might have assaulted her that night and it was not Dave.

After a few moments of pause, S.B. then replied, “I guess, yeah.” [ 45 ] A number of minutes later, after a series of questions on different topics, counsel came back to this topic and suggested to S.B. that she could not be certain at all that it was Dave who sexually assaulted her. S.B. disagreed and stated she remembered it being him. Counsel asked her to agree that was her best recollection but she could not be certain. S.B. replied, “I guess so.” [ 46 ] I will deal with the specifics of S.B.'s testimony later in these reasons. However, overall, I found S.B. to be a careful and credible witness.

She did not shy away from difficult questions, including in relation to her drug and alcohol use. She asked for clarification if she did not understand a question. She did not exaggerate her evidence or argue with counsel. She was a forthright witness. Evidence of N.G. [ 47 ] N.G. also testified remotely. There were no technical difficulties with the connection, and I am satisfied I was able to see and hear N.G. well and I am able to properly assess her as a witness.

In addition to her oral testimony, I received the videorecording of her interview with Constable Tracy Stables on July 21, 2021, pursuant to s. 715.1 of the Criminal Code . [ 48 ] On July 21, 2021, N.G. participated in an interview regarding her knowledge of facts related to S.B. N.G. met S.B. in around February of 2021. They used to hang out together with other girls to drink and do drugs. [ 49 ] N.G. remembered contacting Dave one night to ask to meet up with him. She was with S.B. The two girls met Dave and were hanging out with him in the Granville Street area.

She remembered leaving them around midnight to buy pop. When she got back, they were gone. She did not see S.B. again until around 7:00 or 8:00 a.m. the next day, when S.B. called out to her from the bus stop about a block away. N.G. remembered S.B. was crying and was drunk. [ 50 ] N.G. remembered that she, S.B., and Dave had been smoking methamphetamine that night. N.G. remembered that she and S.B. drank a lot of straight alcohol, and that S.B. drank more than she did. N.G. did not remember where the three of them were, but thought they were sitting in an alley.

She remembers Dave telling one of them to go get pop and N.G. agreed to go. When she came back, she could not find them and spent four or five hours walking around, trying to find them. [ 51 ] On July 21, 2021, N.G. also participated in a separate interview regarding the alleged assault on her. In her videorecorded interview, N.G. remembered calling the man she knew as Dave from Waterfront Station, who then sent a taxi for her. She said she did not tell the taxi driver where to take her.

When she was in the taxi, Dave called the taxi driver and N.G. heard Dave tell the taxi driver to go to the liquor store and buy a bottle of vodka, which the taxi driver then did. N.G. remembered she would always ask Dave to get her alcohol, so he just automatically would get it for her. The taxi drove her to the hotel and the taxi left, and Dave and N.G. went into the hotel. She remembered the hotel room had a swipe card which Dave gave her.

She remembered the hotel was located close to Playland. [ 52 ] She could not remember the month or day they went to the hotel, but she remembered it happening after the incident with S.B. that I have just recounted. [ 53 ] In her interview, N.G. remembered staying in the hotel for four to five days. The only person who came to the room during that time was Dave. She remembered him having his meth pipe with him and always smoking methamphetamine. She does not remember Dave ever drinking with her. She remembers him leaving, she assumed to make money. She remembers him coming back with a lot of money.

She remembers him also coming back with an Android phone for her to use, because she had no phone at that time. [ 54 ] Part way through her stay, she remembered Dave leaving the hotel room one day around 2:00 p.m. and not coming back until around midnight. She remembers being very drunk. She remembers drinking vodka in the room, and remembers Dave giving her a bottle of Xanax, of which she took nine. [ 55 ] N.G. recalled that the hotel room was large with two beds, a TV, a desk, and one bathroom. N.G. remembered lying on the right side of the bed, which was closest to the door.

N.G. was sleeping and she remembered waking up with Dave on the left side of the bed, trying to pull her sweatpants off. She remembers telling him to stop. She had been drinking vodka and had taken Xanax and felt very light-headed and dizzy. She felt she could barely breathe. She felt she was not able to move. She felt it was hard to even more her arms and said, because of how she was feeling, she was not able to stop him. She remembers he kept trying to take her pants off. He then placed his fingers in her vagina.

N.G. remembers the assault going on between 10 and 15 minutes, and then she did not remember anything else because she blacked out. [ 56 ] N.G.'s next memory was of waking up and Dave was still beside her. Her pants were half off and Dave had no pants on. Dave

woke up and said he would be back. Dave left his dog with her. Because the dog had been left with her, N.G. remembers feeling she could not leave. She remembered the dog being big and black. She thought it was a pit bull. [ 57 ] Eventually she did leave the hotel with the dog. She went to see her sister and went home, and then about 8:00 p.m. she returned to the hotel with the dog. She left the dog in the hotel room and returned home. [ 58 ] N.G. remembers being afraid of Dave after this, as she did not think he would do something like this to her.

She said because of what happened, she slowly stopped hanging out with him. [ 59 ] N.G. remembered that many times the same taxi driver would pick her up at the request of Dave. Sometimes she would get picked up the taxi driver and they would just drive around until they met up with Dave. N.G. remembered that it was usually just her in the taxi, but remembered one time when a couple of her friends were also with her. [ 60 ] On July 21, 2021, N.G. participated in a photo pack presentation conducted by Detective Gilmore. In that presentation, N.G. identified the person she knew as Dave.

In the videorecording of the photo pack presentation, N.G. carefully looked at each photograph. When she came to the photograph of the person she identified as Dave, she examined it carefully and without equivocation identified him. She completed her review of the entire photo pack and did a second review. On the second review, she again confidently identified the person she knew as Dave, as the person who assaulted her. [ 61 ] Mr.

Chen admitted, pursuant to s. 655 of the Criminal Code , that he was the person identified by N.G. in the photo pack presentation. [ 62 ] At trial, N.G. was questioned about the assault she said she suffered in the hotel. She was asked why she did not report the incident with Dave to the police right away. N.G. testified that she told her sister a few weeks after the incident, and her sister told her to report it. However, N.G. testified she was upset and was not ready to talk about it yet.

She finally went to the police after she had processed what had happened to her. [ 63 ] She testified that she met Dave in January 2021, just before her 14th birthday. The last time she saw him was at the end of March or beginning of April 2021. She thought the incident with Dave happened one to one and a half months after she first met him. [ 64 ] At trial, N.G. testified that the night of the incident, she was asleep, but she knew it was Dave who came in because he was the only one with a swipe card to enter the room, and she had fallen asleep with the lights on.

She remembered that when he was touching her vagina, the lights were on and she was facing the wall. She saw his hair while she was on the bed, and she saw him walk past the bed. She said when she woke up, her vagina hurt and did not feel normal. [ 65 ] Under cross-examination, N.G. agreed that the alleged incident between S.B. and Dave happened before the incident between her (N.G.) and Dave in the hotel.

When asked to describe where she was with S.B. and Dave on the night of the alleged assault on S.B., N.G. said they were in an alley with a building and bushes near Granville Street. [ 66 ] When she met S.B. at the bus stop the next morning, she did not recall where they went. She remembered S.B. being upset, but did not recall S.B. telling her about the assault at that time. [ 67 ] Under cross-examination, N.G. agreed that from January to the end of March 2021, she was out drinking and doing drugs almost every night, and sometimes she blacked out from drinking or drug use.

She knew Dave lived in the old Howard Johnson's on Granville Street and usually stayed in that area. All the witnesses referred to this building as the HoJo, and so I will refer to it as such in these reasons. She knew that he was a drug dealer. She agreed that she and her friends were typically out late most nights doing drugs and alcohol and sometimes got into situations where they needed help. If she needed help, she would sometimes call Dave and he would come and help her. She agreed that sometimes Dave would send his taxi driver friend to pick her up and take her somewhere.

She also agreed that she would sometimes wait outside the HoJo for Dave to appear. She disagreed she would wait for hours. She said the longest she would wait was about 45 minutes. She disagreed he told her to stop hanging around. She did not know if Dave was worried she would attract attention by hanging around. She disagreed that she asked to watch Dave's dog for money. [ 68 ] Under cross-examination, N.G. agreed that the alleged assault on her happened at a hotel called the Atrium on Hastings Street near Renfrew Street. She agreed she was only in a hotel with Dave once.

She agreed that Dave left his dog with her and gave her $20 to take care of the dog for the night. She agreed she understood that when he left, Dave was going back to the HoJo to go back to work. [ 69 ] She was asked if she knew what month the incident happened, and she responded she did not know. She was asked if it could have been early April and she agreed that was possible. [ 70 ] Under cross-examination, N.G. agreed that when they went to the hotel, it was already dark out. She agreed that after Dave checked her in, he stayed for about an hour and smoked methamphetamine. She drank alcohol and took Xanax.

N.G. agreed that Dave left her after about one hour, and left her with his dog and a small amount of money. [ 71 ] Counsel suggested to N.G. that the same night Dave left her with the dog in the hotel, she let herself out of the hotel, then came back with the dog, and then left the dog in the hotel room. N.G. did not agree with this proposition and repeatedly stated she spent the day and night in the hotel, and that the events did not all happen on the same day, and she knew it was more than one day. She was not shaken in this evidence.

She agreed that in her videorecorded statement, she told the police she was in the hotel four to five days and agreed that was incorrect. She said she probably did not stay in the hotel that long and it was at most two days. [ 72 ] N.G. agreed under cross-examination that she thought her friend “X” was going to come to the hotel, but said her friend did not come by. When asked if she was in fact in the hotel only one day, N.G. responded she thought it was two or three days. She also agreed she did not remember everything because of the drugs and alcohol she consumed.

Later in the cross-examination, she agreed it was possible she was only in the hotel one day.

[ 73 ] Under cross-examination, N.G. said that in the hotel she took nine Xanax pills, one by one, using vodka to swallow them. She said she had a 40-ounce bottle of vodka, and that was the size of the bottle she usually had. She agreed she drank the whole bottle, but it was not clear from her evidence if it was all drunk at one time. [ 74 ] Under cross-examination, N.G. agreed she asked Mr. Chen to buy her alcohol, but did not recall an instance where he said the store refused to serve him because he did not have identification. She did not remember him often refusing to buy alcohol for her friends and her.

She did agree that he had told her he would watch her drink to make sure she was safe, and then he told her he would not buy alcohol for her. [ 75 ] N.G. agreed under cross-examination that Dave did not drink with her and the only thing he shared with her was methamphetamine. Under cross-examination, N.G. was questioned about her use of Xanax. When asked to agree he did not give her Xanax, N.G. replied she remembered him giving her some when she first met him.

When asked if, on the night of the hotel incident, she got Xanax from someone else that day, she replied, “It was him that gave it to me though.” She then confirmed he gave it to her two different times. At this point in the questioning, N.G. had slumped down in her chair and looked exhausted. Counsel then asked her to agree that Dave did not give her Xanax in the hotel, to which N.G. replied, “Okay, yeah.” The questioning was then stopped to give N.G. a break, as she appeared exhausted. [ 76 ] Overall, I find N.G. listened carefully to the questions and gave thoughtful answers.

She did not argue or attempt to colour her evidence in any way. N.G. did not embellish her evidence in any way, did not attempt to lessen the negative aspects of her evidence, such as her consistent use of drugs and alcohol during this period of her life, and answered all questions in a thoughtful and clear manner. Where N.G. did not understand a question, she would ask for it to be clarified or explained before she would answer it. I find this demonstrated the care she took with her evidence and was not in any way obstructionist. [ 77 ] I find N.G. was a credible and reliable witness. Evidence of Mr.

Chen [ 78 ] Mr. Chen was born in China and came to Canada when he was approximately 14 years old. His family lived in Montreal initially and then moved to Toronto, where Mr. Chen finished high school. Mr. Chen began university, but left after one year. He then started working as a roofer. He continued to work as a roofer on and off for four years. [ 79 ] Mr. Chen experienced a traumatic event in the fourth year of his career as a roofer. He had been living with his girlfriend, who was a heroin addict. Mr. Chen used cocaine, marihuana, and MDMA. He did not use heroin initially.

He wanted his girlfriend to stop using heroin. He testified that he decided to become addicted to heroin himself, so that they could then withdraw from the drug together. [ 80 ] At some point during this period of addiction and attempts at sobriety, his girlfriend threw herself off the balcony of their 26-storey apartment and passed away. Mr. Chen described himself as lost, unable to work, and going through savings at a rapid pace as a result of his girlfriend's death. Four or five months after his girlfriend's death, he left Toronto and moved in with his parents who had moved to Richmond, B.C. [ 81 ] Mr.

Chen began working as a cook at a number of different restaurants. He had dreams of becoming a chef. After about nine months of working as a chef, he was the victim of a hit-and-run accident where his foot was run over by a car. For reasons that were not clear, he said he was unable to get a lawyer to represent him in an injury claim and he was unable to get unemployment insurance. Mr. Chen lost his job and said his parents would not allow him to continue living with them if he was not working. Mr. Chen began living in his car. [ 82 ] While living in Richmond, Mr.

Chen continued to use cocaine and started to use crystal methamphetamine. Mr. Chen said that he referred to himself as Dave or Asian Dave, and that he was generally known by these names. [ 83 ] Mr. Chen explained that while he owned a car, he only had a learner's permit. Therefore, he could not drive his car unless a person with a full licence was with him. This resulted in him lending his car to people in exchange for them driving him around. At one point, his car was being used by a person who was arrested with large amounts of drugs in the car. His car was impounded. Mr.

Chen required a favour from someone he knew, who had a criminal record, to get the car out of the impound lot. Mr. Chen explained that, in return for this favour, Mr. Chen was required to deliver drugs around town for that individual and act as the getaway driver when that individual stole things. This appears to be the beginning of Mr. Chen's career as a drug dealer. [ 84 ] Eventually things got worse for Mr. Chen. He was robbed of all his identification, credit cards, and personal information. He was unable to get new identification and was unable to access his bank without identification.

His car was confiscated again. He became homeless. [ 85 ] From March 2019 to May 2020, Mr. Chen was living outside on the Downtown Eastside, sometimes couch surfing with friends, and sometimes he stayed with a friend who lived at 375 Princess Avenue. During this time, Mr. Chen was dealing drugs on Hastings Street and selling stolen and other goods that he received in exchange for drugs. [ 86 ] In May 2020, Mr. Chen moved into the HoJo on Granville Street, which had been converted as part of an effort by the province to move homeless people from the Downtown Eastside into housing. Mr.

Chen testified that a notorious, dangerous drug dealer who had been operating out of Oppenheimer Park moved into the hotel at the same time and took control of the hotel. Mr. Chen said all the residents of the building were forced to sell drugs for him. Mr. Chen was content with this arrangement, as he was protected by the dealer and was able to continue his drug use and dealing. With the money he earned from drug dealing, Mr. Chen paid his expenses. [ 87 ] When Mr. Chen was dealing drugs on Hastings Street and living on the Downtown Eastside, he met a young girl named “X”.

He first saw her at 375 Princess Avenue, and then met her again on the sidewalk where he was dealing drugs and selling goods. Mr. Chen

said “X” had her own dope and they started smoking together. Mr. Chen said he saw “X” at first about once a week, and after a while he would see her up to three times a week. She would typically stay with him for about three hours. [ 88 ] One day, six police cruisers came up to him looking for “X”. Mr. Chen was told she was missing and very young. He said “X” looked very young at that time, maybe 14 years old. [ 89 ] After Mr. Chen moved into the HoJo, he saw “X” in the building one day and was surprised, because underage people are not allowed in the HoJo. Mr.

Chen said police frequented the building looking for underage people. [ 90 ] In January 2021, Mr. Chen met N.G. through “X”. N.G. and “X” were in a group of young people hanging out together. Mr. Chen testified that the girls would often text him, asking him to help them get out of trouble. Sometimes he would send a taxi to pick them up. Sometimes he would go to them when they called. Mr. Chen said he would hear from them about three times a week. [ 91 ] Mr. Chen denied giving drugs or alcohol to N.G. or S.B.

He testified he did share drugs with “X”, but the other girls were already high or drunk or both, and already had their own drugs or had taken drugs already. He testified he did sometimes smoke methamphetamine in their presence. He denied selling or giving Xanax to the girls. [ 92 ] Mr. Chen testified the girls were always hanging around the HoJo and Granville Street near where he lived. He said he told them not to hang around him because he was selling drugs and it looked bad. Mr.

Chen testified that the girls would ask him to buy alcohol for them, but he always refused, except for one time when he tried to get alcohol for them but did not have any identification, so could not buy any. [ 93 ] He said he called his taxi driver friend and asked him to buy alcohol for the girls, and then told the girls to call the taxi driver in the future. Mr. Chen testified that he would call his taxi driver at least two times a day. His taxi driver worked for the drug vendor and allowed people carrying drugs to ride in his taxi.

He gave the taxi driver's phone number to the girls and, in his initial testimony, he said the taxi driver would bill Mr. Chen for the girls' trips. [ 94 ] Mr. Chen testified that he told the girls they could earn money from him by walking his dogs. He would pay them $20 to walk the dogs. He said he started to do this because the girls were hanging around the building and he wanted to avoid getting looks from people in the building. Mr. Chen said he also started to give them money or food when they would come around. [ 95 ] Mr. Chen testified that N.G. called him from the waterfront one night.

She told him that she needed to get out of there as soon as possible, but had lost the taxi driver's number. She did not want to go home. Mr. Chen said he got his friend to book a hotel close to where N.G. was living near Playland, so N.G. could stay overnight and then go home in the morning. His friend booked a room at the Atrium. [ 96 ] Mr. Chen then called the taxi driver and told him to go to the Atrium. Mr. Chen said the taxi driver had already picked up N.G. at that time, and Mr. Chen told him to drive N.G. to the Atrium where he would meet them. Mr. Chen brought his dog with him. [ 97 ] Mr.

Chen asked N.G. what was going on and she told him she did not want to go home. N.G. asked Mr. Chen if she could invite other people over, but he disagreed. She then asked if she could invite “X” and another girl over, and Mr. Chen agreed. Mr. Chen then left his dog with N.G. for her to keep it overnight. This was his white dog named Gypsy. [ 98 ] Mr. Chen said he was only given one key card for the room. They went up to the room and N.G. took out a bottle of alcohol. Mr.

Chen said he had his pipe with him and that N.G. had a problem with smoking methamphetamine so, out of respect for her, he went into the bathroom every time he smoked. Mr. Chen said he was in the hotel room for about one hour. Mr. Chen denied giving N.G. alcohol, drugs, or Xanax. [ 99 ] Mr. Chen left the room, saying he would be back as soon as possible. He said that N.G. was conscious when he left. They had been discussing who was allowed to come over and that she would look after the dog. Mr. Chen left her with $20. [ 100 ] Mr.

Chen said he left the hotel in a taxi and returned to the HoJo where he ran into “X”. and her friend. He said he saw “X” a few times that night and ultimately “X” did not go to visit N.G. at the hotel. Mr. Chen said the second time he ran into “X”, it was about 2:00 a.m. He said he went back to the hotel after the second time he ran into “X”. He said N.G. had messaged that she had left the dog in the hotel room and had lost the key card. He later said he did not remember when he arrived at the hotel, but he ran into the girls around midnight, then hung around for about 30 minutes, and then went to the hotel.

Even later, he said he was at the hotel between 12:00 and 3:00 a.m., but could not get into the room because he did not have a key. [ 101 ] Mr. Chen said he got to the hotel and argued with the front desk staff for 30 minutes, because he did not have a key, but could hear the dog barking. He said the hotel staff would not let him in until checkout. Just before checkout, he was able to get into the room because the cleaner was there trying to clean up the mess in the room. Mr. Chen saw the dog had trashed the room and defecated everywhere. The manager then arrived and told Mr.

Chen to get out or he would call the police. [ 102 ] During his testimony, Mr. Chen played a recording he said he made of the manager walking down the stairs while talking on his cellphone. The video clearly shows the man coming out of the hotel and the Atrium name is displayed on the hotel. The video shows a white dog on a leash being walked away from the hotel. The day outside was bright and sunny. I accept that the video was taken in and outside the Atrium and that a white dog was with Mr. Chen at that time. Mr.

Chen testified that this recording was made on April 4, 2021. [ 103 ] However, there is nothing in the audio or the video on the recording which would allow me to link the recording to the events described by Mr. Chen in his testimony. For example, there is no discussion between the manager and Mr. Chen to the effect that the dog in the video had been left alone in the room, that Mr. Chen had tried to get the dog out earlier in the morning but had no key, that Mr. Chen had only got into the room when housekeeping had the door open, that the room had only been rented for one night, etc.

[ 104 ] Mr. Chen testified that he picked up his dog the day after he left N.G. in the hotel room and that, other than that one night, he was not in a hotel with N.G. any other time. Mr. Chen denied re-entering the room when N.G. was asleep, getting into bed with her, touching her genitals, or getting out of bed with her while half dressed. [ 105 ] With respect to S.B., Mr. Chen said he did not recognize her and there was no chance he had ever talked to her. He said he had never spoken to her directly or indirectly. He denied being alone with N.G. and S.B. in an alley or a park. He denied being alone with S.B.

He then said there was definitely a possibility she could have been downtown with “X” or N.G. He stated he was being accused of raping someone on Granville Street during the busiest time on Granville Street and that absolutely did not happen. [ 106 ] Under cross-examination, Mr. Chen agreed that by 3:00 a.m., Granville Street is usually deserted. [ 107 ] Mr. Chen was unable to say how much methamphetamine he typically used in a day, nor was he able to say how much money he made dealing drugs. When asked about his typical drug use, Mr.

Chen said that when he was smoking methamphetamine, he would sometimes pass out and sleep for a couple of days. [ 108 ] Under cross-examination, when asked about how he pays the taxi driver he uses, Mr. Chen said he pays the driver for the trips where he asks the driver to pick up other people by just tipping the driver extra. He then said the driver does not bill him and just does the driving as a favour. He then said the driver has never charged him the ride amount. Mr. Chen said the driver did not give the girls rides for money. [ 109 ] Mr.

Chen said he considers “X” a friend and he knew that she was 14 years old. Mr. Chen agreed that N.G. looked even younger than “X”. He said N.G. only hung out with him when she needed something, and she would not leave until she got what she wanted. [ 110 ] Mr. Chen said he eventually bought N.G. a phone so she could stay in contact with him, rather than hanging around the HoJo. [ 111 ] Mr. Chen said the girls brought unwanted attention upon him because he was an adult, 26 years old in 2021. He said the police had been watching him because he was dealing drugs and asked him why he was hanging out with young girls.

Mr. Chen said he did not like the attention the girls brought to him, and so he said he paid for the taxi to look after their rides, gave them food, let them walk his dogs, and gave one of them a cellphone. Mr. Chen said under cross-examination that he was in the hotel room with N.G. for an hour and he smoked methamphetamine a couple of times in the bathroom so he would not set off the smoke alarm. [ 112 ] Under cross-examination, Mr.

Chen stated that, in relation to S.B., he was being accused of stripping naked on a busy street and publicly raping people in the middle of a busy street, in the middle of the night. He stated he was being defamed. [ 113 ] While I will deal with the specifics of his evidence in more detail, overall I found Mr. Chen to be argumentative, lecturing, and rambling throughout his testimony. Simple questions were often met with combative, evasive, and lengthy answers that bore little relation to the question asked. His memory of important facts changed over the course of his testimony.

Many of his answers and explanations strained credulity. Mr. Chen suggested he was bothered by the young girls who would come around looking for him, but he also stated that he considered one of the young girls, “X”, to be his friend. He stated he did not like the girls hanging out near the HoJo because they would attract the police. However, he did nothing to discourage them and, in fact, he said he would give them money, spend time with them, arrange taxis for them, buy them food, and watch over them. [ 114 ] Overall, on the critical facts in relation to the allegations before me, I found Mr.

Chen's evidence to be self-serving and not credible. Findings in relation to the allegations involving S.B. [ 115 ] Mr. Chen argues that S.B.'s evidence is unreliable and should be rejected because she was intoxicated and blacked out. He says she was struggling with alcohol at the time and was suffering from hallucinations due to methamphetamine. He emphasizes the fact that S.B. agreed it was possible she was assaulted by someone other than Mr. Chen. He argues that S.B.'s unreliable evidence has established a reasonable doubt that Mr. Chen interfered with S.B. as alleged. [ 116 ] I do not agree with Mr.

Chen's characterization of S.B.'s evidence. S.B. did not agree she was hallucinating on the night in question. She agreed that when she stopped using methamphetamine, she suffered hallucinations, but she was clear she had not stopped using methamphetamine on the night in question and denied she was hallucinating that night. [ 117 ] S.B. was clear in her interview and in all of her evidence that she did black out from substance abuse on the night in question. However, she did have a clear memory of the assault and of Mr. Chen committing the assault.

I place no reliance on the reluctant agreement S.B. gave to counsel for Mr. Chen when cross-examining her on the possibility that it might have been someone else. I find her answers to those questions are not reliable and were simply answers given by a child to repeated questions where she was asked to acknowledge a possibility. I accept that children are more susceptible to those kinds of leading questions. When I consider the whole of her evidence, including under cross-examination, I find she was certain that Mr.

Chen assaulted her, and only reluctantly agreed to a possibility following a relentless series of questions designed to cause her to question her own memories. [ 118 ] S.B. remembers spending time with N.G. and Mr. Chen on the night in question. S.B. remembers Mr. Chen buying the girls alcohol that night. These facts are corroborated by N.G. [ 119 ] S.B. remembers N.G. left around midnight to buy chaser and this is corroborated by N.G. S.B. remembers waking up in a bus stop away from where she had been earlier and seeing N.G. She remembers being very upset when she woke up.

This is all corroborated by N.G. [ 120 ] Mr. Chen denies knowing or speaking to S.B., but allowed it was possible she was in a group of girls who used to hang around the HoJo waiting for him. S.B. said she met Mr. Chen when she was with a group of girls, including N.G. and “X”, both of whom Mr. Chen

admits to knowing. [ 121 ] S.B. recognized Mr. Chen immediately and without hesitation during the photo pack presentation, and identified him as the man who scared her and assaulted her. [ 122 ] I am satisfied on all of the evidence that S.B.'s evidence on the significant events on the night of the assault is reliable. I accept her evidence that she was able to and did identify Mr.

Chen as the man who assaulted her. [ 123 ] With respect to S.B.'s evidence regarding the location of the assault, in the interview, which was much closer in time to the assault than the trial, S.B., in her own words, described her and Mr. Chen sitting on grass where the assault occurred. The area she described had grass behind bushes against a building. The sidewalk was in front of the bushes and the grass was behind the bushes.

I find S.B.'s description of the location of the assault which she gave in the 2021 interview to be reliable. [ 124 ] I also find S.B.'s admission under cross-examination that the assault happened on the sidewalk to be unreliable.

I find the line of cross-examination questions was confusing for S.B., as it moved quickly between the time and place when the three people were sitting before the assault, to the time and place where S.B. regained consciousness in the morning, to the assault itself, and then concluded with an ambiguous question, “You think this happened on the sidewalk?” to which S.B. agreed. [ 125 ] On the whole of the evidence, I find the assault did not happen on the sidewalk but rather happened on grass, behind bushes, next to a white building as described by S.B. in her own words in the interview taken in 2021. [ 126 ] I reject Mr.

Chen's complete denial of the assault and his denial that he knew S.B. During cross-examination, Mr. Chen was extremely argumentative and evasive. He answered simple questions with long rambling answers. On the specific allegation involving S.B., Mr. Chen became very exercised and stated he was being accused of stripping naked and sexually assaulting an unconscious girl in the middle of Granville Street during its busiest time with people everywhere. He said that that was a ridiculous accusation which defamed him. Of course, the extreme scenario described by Mr.

Chen is not what is alleged to have happened that night. [ 127 ] I accept S.B.'s evidence that the assault happened on a patch of grass behind some bushes. While the sidewalk may have been visible to passing cars, they were not on the sidewalk when the assault occurred, they were behind bushes. I accept S.B.'s evidence that Mr. Chen opened the fly on his pants and pushed her head down to his crotch, forcing his penis in her mouth. There is no allegation that he was stripped naked in the middle of Granville Street. [ 128 ] S.B. does not know when the assault occurred. It was sometime between midnight and dawn. Mr.

Chen agreed in cross- examination that Granville Street is deserted after 3:00 a.m. There is no allegation that the assault happened when Granville Street was at its busiest. [ 129 ] With respect to the evidence of S.B. which I have accepted, I acknowledge that there are parts of the night which she does not remember because she was blacked out. However, I found she was a reliable witness to the evidence she did remember. [ 130 ] I reject the evidence of Mr. Chen in relation to the allegations involving S.B.

His bare denial does not raise a reasonable doubt given the credible evidence presented by the Crown. [ 131 ] I find the Crown has proven beyond a reasonable doubt that Mr. Chen sexually touched S.B. when she was under the age of 16 years and that the touching was for a sexual purpose. Findings in relation to the allegations involving N.G. [ 132 ] Generally, I found N.G. to be a credible witness. In contrast, I did not find Mr. Chen to be a credible witness. As discussed already, he was argumentative, evasive, and rambling with many of his answers.

He contradicted himself on many points. [ 133 ] His explanations for how he came to spend time with a group of young girls and his interactions with his taxi driver in relation to the girls strains credulity. [ 134 ] N.G. testified that Mr. Chen would send a taxi driver to pick her up and take her places, usually to meet with Mr. Chen. In relation to the allegations at issue, she said Mr. Chen sent the taxi driver to pick her up at the Waterfront Station and she heard Mr. Chen tell the driver to take her to the Atrium. She also heard Mr.

Chen tell the driver to buy alcohol for N.G., and they did stop on the way to the hotel to buy vodka. [ 135 ] Mr. Chen does not dispute that his taxi driver picked up the girls, including N.G., at his request. He says he also gave the girls the driver's number and they would use the taxi independent of his involvement. Mr. Chen initially said the driver billed him for the girls' rides, then he changed his evidence to say the driver would just tell him what he owed but did not bill him. Then he said he just gave the driver an extra tip to compensate him for driving the girls.

Then he said that the driver never charged him for the rides and the driver did not give the girls rides for money. [ 136 ] Mr. Chen said N.G. was already in the taxi when he first called the driver to bring her to the Atrium. This differs from N.G.'s evidence that Mr. Chen called the driver to pick her up. I find Mr. Chen's evidence relating to the taxi driver generally unreliable and I reject it in favour of N.G.'s evidence on the night in question. I find that N.G. called Mr. Chen asking for a ride, and Mr. Chen arranged for her to be picked up, and Mr.

Chen told the driver to bring her to the Atrium. [ 137 ] Mr. Chen denied buying alcohol for N.G. or any of the girls. N.G. testified that he routinely bought alcohol for them. S.B. corroborated N.G.'s evidence that Mr. Chen bought alcohol for them. Mr. Chen did admit he asked his driver to buy alcohol for the girls on occasion. I accept N.G.'s evidence that Mr. Chen told his driver to buy alcohol for her on the night she was taken to the hotel. I find N.G. did have a bottle of vodka with her in the hotel and that alcohol was procured by Mr. Chen instructing his driver to buy it.

[ 138 ] N.G. remembered Mr. Chen having his methamphetamine pipe with him in the hotel room and smoking it. Mr. Chen also confirmed that he smoked methamphetamine in the hotel room when he was with N.G. However, Mr. Chen gave two conflicting accounts of smoking methamphetamine. First, he said N.G. did not like it and so he went into the bathroom to smoke it, out of respect for her. Later he said he went into the bathroom to smoke so he would not set off the smoke detector. [ 139 ] I do not accept Mr. Chen's evidence.

Clearly N.G. had no difficulty with methamphetamine, as she testified she routinely smoked it herself and smoked it with Mr. Chen. N.G. did not testify that Mr. Chen smoked in the bathroom. She recalled him smoking while he was with her. I find Mr. Chen attempted to colour his evidence to suggest he was shielding N.G. from his methamphetamine use in some way, which is not credible on the evidence as a whole. [ 140 ] Mr. Chen denied using Xanax or giving Xanax to N.G. N.G. testified that Mr. Chen gave Xanax two different times. She confirmed this testimony several times. Ultimately counsel for Mr.

Chen did elicit a response, "Okay, yeah," from N.G. when asking her to agree that Mr. Chen did not give her Xanax in the hotel. However, in the context of the whole of her evidence, including her positive assertion that "it was him that gave it to me though," and her exhaustion at the point of her final concession, I place no weight on that final concession. I find that on the whole of her evidence, N.G. at most conceded Mr. Chen did not give her Xanax on the night in question, but had given it to her previously. She was clear that Mr. Chen was the source of the Xanax she took that night. I do not accept Mr.

Chen's evidence that he did not supply Xanax to N.G. [ 141 ] Mr. Chen testified that he brought his dog to the Atrium where he met N.G. He said he spent one hour in the hotel and then left N.G. in the hotel room with his dog. He said he left the key card in the room so N.G. could walk the dog. He said he was not back in the hotel room until the next morning when he retrieved his dog that had been left alone in the hotel room. [ 142 ] N.G. agreed that Mr. Chen stayed in the room for about one hour after they checked in and that Mr. Chen left his dog with her.

N.G. testified she was very drunk and had taken nine Xanax and had fallen asleep. She testified that Mr. Chen had a key card and let himself back into the room while she was asleep. N.G. recounted how Mr. Chen assaulted her. She had a very detailed and specific recollection of where she was and how she felt, including that she was dizzy and felt she could hardly move or breathe. She remembered him placing his fingers in her vagina, and the next day her vagina hurt. She remembers seeing his long hair while he was assaulting her. N.G. recalled waking up after the assault with Mr.

Chen in the bed, the lights were on, and she saw him walk past the bed. She recalled him getting up and leaving the dog with her. Eventually N.G. took the dog out of the hotel and then returned to the hotel and left the dog there. [ 143 ] There is disagreement in the evidence respecting how many days N.G. was in the Atrium. During her police interview in July 2021, N.G. said she was in the hotel for four to five days. Under cross-examination, she agreed she was mistaken and it was likely one or two nights.

While she agreed it was unlikely she was in the hotel four or five days, as she stated in her police interview, N.G. repeatedly stated under cross-examination that the events did not all unfold under the course of one day. She insisted that it was not the case that she left the dog in the hotel room on the same night she went into the room with Mr. Chen. She said she was in the hotel room for a day and a night, and possibly two nights. [ 144 ] Mr.

Chen suggests he went back to the hotel room sometime after midnight on the same night he left N.G. in the hotel, but could not get into the room because he did not have a key card. He said he heard the dog barking because it had been left alone. He says he then returned to the HoJo and came back the next day to pick up the dog, and offers the video as supportive evidence of his return to the hotel the morning after the room was rented. I am not persuaded by this evidence. On the evidence before me, I cannot accept the video was taken the morning after the night the hotel room was rented.

There is no reliable evidence before me to establish which night N.G. and Mr. Chen obtained the hotel room or for how many days they had the hotel room. The video could have been taken any number of days after the hotel room was rented, or could have been taken at a time not related to N.G.'s use of the hotel. [ 145 ] I find that Mr. Chen's time estimate, given his evidence that when he is taking methamphetamine he sometimes passes out for up to several days, is not reliable.

Similarly, N.G.'s evidence as to how long she was in the hotel room is not reliable, given the amount of drugs and alcohol she consumed. [ 146 ] I find that the discrepancy in the witnesses' memory of the number of nights N.G. was in the hotel is not significant. Whether the events took place over one night, or one night and a day, or two nights and a day is not significant. There is not an allegation that N.G. was repeatedly assaulted over a number of days.

Such an allegation might make the timing discrepancy more significant, but in relation to the specific allegation of the assault which is before me, I find it is not a significant inconsistency. [ 147 ] There is also a discrepancy in the description of the dog. N.G. remembers it being a black pit bull. Mr. Chen said it was his small white dog. Mr. Chen had two dogs, a black dog and a white dog. N.G. had seen Mr. Chen and his dogs before. I find this discrepancy with respect to which dog was left in the hotel room is not material. Both Mr. Chen and N.G. agree she was left with one of Mr.

Chen's dogs in the room and eventually N.G. left the dog alone in the room. [ 148 ] Generally speaking, there is considerable consistency in the accounts of N.G. and Mr. Chen, except with respect to the assault itself, which Mr. Chen denies in its entirety. Both parties agree that N.G. arrived at the Atrium in a cab driven by Mr. Chen's taxi driver friend. Both witnesses agree Mr. Chen had a dog with him and he spent initially approximately one hour in the room with N.G., where she drank alcohol and he smoked methamphetamine. Both witnesses agree that Mr.

Chen left N.G. in the hotel room with the dog and gave her $20 to look after the dog. Both witnesses agree that at some point N.G. left the hotel room, leaving the dog in the room alone. [ 149 ] Where the witnesses differ is whether Mr. Chen returned to the hotel room using the key card, assaulted N.G., and then left again, leaving the dog and the hotel key card in the room with N.G. Mr. Chen completely denies that he returned to the hotel room while N.G. was still in the room. N.G. gave detailed and consistent testimony, both in the police interview and at trial, describing the assault by Mr.

Chen. [ 150 ] I found N.G.'s recounting of the assault to be credible and reliable. She gave a detailed description of the room, where she was lying, how she was positioned, and who she saw in the room assaulting her. She said Mr. Chen had the key card when he left the first time and used it to let himself back in. She was not shaken under cross-examination on this evidence. She was frank about the intoxicants

she had used, including how she passed out and did not recall everything. Her description of how she felt during the assault was detailed, including that she felt she could not move her arms and could not stop him, and that she felt his fingers in her vagina. [ 151 ] She testified her vagina hurt the next day, consistent with an assault. Her memory of all of the night of the assault was impaired due to intoxicants. However, I am satisfied that the key facts of the assault that she did remember are reliable. [ 152 ] I reject Mr.

Chen's denial of his interference with N.G. and find it does not raise a reasonable doubt in the face of the credible evidence presented by the Crown. I accept the evidence of N.G. and find that it establishes beyond a reasonable doubt that Mr. Chen sexually touched N.G. when she was under the age of 16 years old, and that the touching was for a sexual purpose. Conclusion [ 153 ] Mr.

Chen, please stand. [ 154 ] On Count 1 of touching S.B., a person under the age of 16 years, with a part of your body for a sexual purpose, contrary to s. 151 of the Criminal Code , I find you guilty. [ 155 ] On Count 2 of touching N.G., a person under 16 years of age, with a part of your body for a sexual purpose, contrary to s. 151 of the Criminal Code , I find you guilty. “W.A. Baker J.”