R. v. Chen, 2022 ONCJ 380

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Chen , 2022 ONCJ 380 DATE: 2022 08 22 COURT FILE No.: BRAMPTON 20-11472 BETWEEN: HER MAJESTY THE QUEEN — AND — ZHI YUAN CHEN

Before Justice A.R. Mackay Heard on May 2, 3, 4, 5, 2022 Oral Reasons for Judgment given on July 19, 2022 Written Reasons for Judgment released on August 22, 2022 Sarah Burton………………………………………...……..…….. counsel for the Crown Maya Borooah . ………………………………………………….. counsel for the accused MACKAY J.: Overview [ 1 ] Mr.

Chen is charged with two counts of sexual assault, two counts of sexual interference, and with making pornography available to a person under the age of 18 for the purpose of facilitating an offence under s. 153(1) of the Criminal Code . [1] [ 2 ] The complainant, GLZ, alleged that when she was approximately between the ages of 12 and 14, the accused looked after her while her mom was away for the Christmas holidays and possibly for a March break. During this time, Mr. Chen would touch her in a sexual manner and, on one occasion, touched her vagina. In addition, GLZ alleged that Mr.

Chen exposed both her and his daughter, Yuki (Yu), to pornography, some of which included child pornography. [ 3 ] Mr. Chen testified and the defence also called Mr. Chen’s wife, Wen Jing Lin, and his daughters, Yuki and Muzhen (Mary Jane). [ 4 ] As in all criminal cases, the Crown has the burden of proving all elements of each offence beyond a reasonable doubt. The main issue for me to determine in this case is the reliability and credibility of the witnesses. Credibility [ 5 ] The test to be applied in trials in which credibility is the real issue is well known and was set out by Justice Cory in R. v.

W. (D.) [2] and other case law. [ 6 ] In R. v. J.J.R.D. , [3] , Doherty J.A. added the following qualification of W. D. at para. 53 that: An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence. [ 7 ] More recent cases from the Ontario Court of Appeal, R. v. C.L. and R. v.

CG , [4] have underlined the fact that when applying W. D. and J.J.R.D. , that a trial judge in finding an accused guilty has an important obligation to clearly and adequately explain why he or she has chosen not to accept the accused’s exculpatory evidence. It is not enough for the trial judge to simply state that he or she believes the complainant and not give reasons as to why they have rejected the accused’s evidence. [ 8 ] The following passages from Duncan J. of the Ontario Court in R. v. Jaura , [5] are also very helpful: In

summary, it is my view that the case law establishes that, in a "she said/he said" case, the Rule is that a trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant , provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant's evidence. Quite apart from case authority, there is ample reason to conclude that this must be the Rule.

If it were otherwise, there would effectively be a legal corroboration requirement imposed in these cases and the undoing of years of reform in this area. Alternatively, the issue of guilt would turn on whether the trial judge could identify and articulate that little something extra over and above the complainant's evidence - that flaw in the accused's evidence or its presentation - that would become the additional crumb on which a conviction could be supported.

Reasons for judgment would become an exercise in highly subjective nit picking of the accused's evidence, disingenuously disguising the real reason for its rejection. Finally, if the Rule was otherwise, it would be necessary for this to be explained to juries. [Emphasis in original; footnotes omitted.] [ 9 ] The analysis set out by W.(D.) requires me to consider whether I believe the evidence of Mr. Chen, or whether it raises a reasonable doubt relative to the allegations of GLZ.

Even if I do not believe his evidence and find that it does not raise a reasonable doubt, I must then go on to consider GLZ's evidence and the evidence as a whole to determine in the context of the entirety of that evidence whether the Crown's evidence that I accept proves Mr. Chen to be guilty beyond a reasonable doubt of one or more of the counts of which he is charged. [ 10 ] I am required to give Mr. Chen's evidence a fair assessment and allow for the possibility of being left in a reasonable doubt, but

at the same time it is open to me to reject his evidence and convict on the basis of the acceptance of the evidence of GLZ within the context of the evidence as a whole. I am not permitted to simply choose the evidence of one of the principal witnesses over that of the other, but as the Court of Appeal observed in R. v. Hull [6] : W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest.

Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses.

On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused. [ 11 ] Turning now to assess the evidence. GLZ [ 12 ] I will commence with the complainant’s evidence. [ 13 ] GLZ was 23 years old at the time she testified. She advised that the sexual offences occurred after 2010 when she first came to Canada from China and before she started Grade 10 which was in 2013.

She believed she was between the ages of 12 and 14 when the offences took place. [ 14 ] GLZ’s mother and her younger sister would return to China during the long school breaks and leave GLZ with Mr. Chen and his two daughters, Yuki (Yu) and Muzhen (Mary Jane). Yuki is two years older than GLZ and Mary Jane is approximately 8 years younger than the complainant. GLZ believed that the offences occurred during two Christmas breaks or during a Christmas break and a March break. Mr. Chen’s wife worked in China and was away as well. Mr. Chen’s wife may have been home for part of one of GLZ’s visits.

Yuki was GLZ’s best friend during this time period. The following is GLZ’s version of the allegations and the context in which she says they occurred. [ 15 ] Mr. Chen noticed that GLZ was scratching her crotch area a lot and he told GLZ that she should clean her genitals thoroughly and emphasized that she should flip open the hood that covers her clitoris. He used a slang phrase meaning a little ‘P’ in Chinese. This was the first time that he began to bring up sexual topics with her. [ 16 ] The discussion of the clitoris made GLZ very curious, and she began to ask Mr. Chen questions about it.

At this time, she checked in the shower to see if she had a clitoris and later asked Mr. Chen what it looked like and where she could find it. At some point Mr. Chen, GLZ and Yuki looked online at photos of the female anatomy and pictures of a clitoris. Mr. Chen, Yuki and GLZ, would talk about whether GLZ had a clitoris or not weekly and sometimes daily. Sometimes both Mr. Chen’s daughters would be present. GLZ said it was a ‘hot topic’ in the house. [ 17 ] On a few occasions Mr. Chen offered to help GLZ find her clitoris. He said that she would have to be naked and laying down flat.

She declined his offer. [ 18 ] On one occasion however, Mr. Chen, under the context of putting ointment on her injured knee, put his hand down her pants and touched her vagina. She was sitting on his lap and the topic of the clitoris came up and he asked if he could check. She agreed and he reached inside her underwear and touched her labia under her clothing for a few seconds. He advised her that the area he touched was flat and this led her to the believe that she may not have a clitoris. [ 19 ] No one was present when this occurred.

His older daughter was usually in the shower when he massaged her knees and the younger one was probably sleeping. [ 20 ] GLZ could not recall if this had occurred during the Christmas break or during the March break. [ 21 ] GLZ believes that during the second time she stayed with Mr. Chen and his daughters that he began to show them his classical movies. One of the movies included Silence of the Lambs. This was the first time that he started to touch her on her other body parts. They all sat on a couch which GLZ described as a large circular one which unfolded to a round bed. [ 22 ] Mr.

Chen sat in the middle between GLZ and his older daughter. Mr. Chen sat with his arms around them, and his hand would start reaching to the side of GLZ’s body. He would touch the side of her breast, earlobe, shoulder, and her whole side down to her thighs. He did not full-on touch her breast or her nipple. Mr. Chen did this throughout the movies. There was one distinct movie scene GLZ recalled when he touched her thighs, back and forth.

The scene was scary, and she was a bit shaky. [ 23 ] The scene involved the character Clarice, a police officer, when she was in the basement looking for Hannibal, and Hannibal was wearing something that allowed him to see in the dark. Hannibal was in the back of Clarice, and he was about to shoot her in the head. GLZ got very nervous, and her legs were shaky and that was when Mr. Chen was going back and forth on her thigh. At the same time, Mr. Chen told Yuki that GLZ was so scared her legs were shaking. This was the first movie they watched where he started to touch her in this manner.

The touching was all done over her clothing. [ 24 ] Eventually Mr. Chen showed the girls pornography. GLZ distinctly remembered two movies. One was a Japanese pornographic movie which they watched many times. It was of a young Japanese girl. At some point Mr. Chen mentioned that she looked very young, like around 14 years old. In the beginning of the movie there was a closeup of the girl’s face. The man behind the camera was asking the girl questions. GLZ did not understand anything because she did not understand Japanese. But Mr.

Chen’s daughter, Yuki, was trying to learn Japanese and knew some basic conversational Japanese and she told them that the guy behind the camera asked the girl what her blood type was. GLZ could not remember the answer.

[ 25 ] After the questions were asked of the Japanese girl, the next scene showed the girl lying flat. “She did not appear very sexy”. She was lying flat, wearing a skirt and then the man behind the camera took her underwear off. Only his hands and penis were visible. The camera focused on her underwear after he took off her panties and then the camera did a closeup of the girl’s genitalia. She also recalled seeing a stain in the girl’s underwear. The recording captured the girl’s hymen. The opening of her hymen was very small. GLZ remembered questioning whether the girl was a virgin or not.

GLZ could not recall if she did so silently in her head or out loud. After this the man had intercourse with the girl. Throughout the whole time the girl just lied there while the man had sex with her. [ 26 ] Mr. Chen advised the girls that he thought the man who had sex with the girl was in his 40s. He also said that the girl appeared to be 13 or 14 years old. [ 27 ] Each time Mr. Chen showed her this movie, Yuki, his older daughter, was present. [ 28 ] The theme of the second pornographic movie was based on the story of Snow White and the Seven Dwarfs.

The reason why GLZ could remember this movie specifically, was because the actors were dwarfs and she recalled being very shocked. In the movie there was a queen, a prince, a princess and the seven dwarfs. Eventually, at the highest point in the movie, nine or more people were all having sex at the same time. GLZ believes that she saw this movie only once. Yuki was also present for this movie.

She could not recall if she watched it on the TV or a computer. [ 29 ] GLZ did not tell her mother about what happened because she felt ashamed. [ 30 ] The abuse ended because GLZ never spent holidays at the Chen family home after Grade 9 because her father ended up leaving China to look after GLZ and her sister. [ 31 ] GLZ went to the police in October 2020 because sometime around May she had felt depressed for a few weeks and a lot of the trauma that happened in the past resurfaced. What occurred between her and Mr. Chen just started “recircling” in her head.

She felt at that point that she needed to tell someone. At first, she told a friend and later she told her boyfriend. Her boyfriend supported her in going to police to tell her story. This was the first time she believed that she had enough support to tackle it. [ 32 ] At the time she went to the police her relationship with Mr. Chen and his family was still good. She had always pretended like nothing had happened. In the past the families had often gotten together.

But, when her parents went back to China semi-permanently, there was a lot less contact. [ 33 ] In cross-examination GLZ was asked a lot of questions about what her boyfriend told police and counsel suggested that some of the details he relayed were different from hers. The boyfriend never testified and GLZ did not adopt any of the suggestions provided by counsel. [ 34 ] GLZ agreed that she was very close to Yuki during the time in question. GLZ was “pretty positive” that she was in Grade 9 when she would have stayed at Mr. Chen’s house.

Eventually GLZ went to another high school and she and Yuki were not as close. When the girls attended university, they stayed in touch but were not in contact very often. However, they did get together a handful of times during this period of time. [ 35 ] The defence did not suggest that there was any specific motive for GLZ to make up the allegations. It is important to keep in mind that this is not required. However, GLZ was, during the alleged time period and after, on good terms with Mr. Chen and his family. At one point during GLZ’s cross-examination she cried when counsel suggested that Mr.

Chen did not drive her to art class without his daughters in the car. GLZ explained that the reason she cried was because she thought a lot of Mr. Chen during that time in question. She recalled showing him a picture of an apple on a chair with cloth she had sketched. Mr. Chen was admiring the picture when they came back from art class. GLZ said his opinion mattered to her.

She stated: “It makes me emotional because I thought that I looked up to him and I cared what he thought of me”. [ 36 ] GLZ explained that she was auditioning to get into the Cawthra art program and, therefore, was attending art classes much more frequently than his daughter was.

If his daughters were in the car the conversation about her apple sketch would not have happened as she would have been in the back bench seat where the girls sat together. [ 37 ] GLZ was cross-examined with respect to things she wrote in notes she made prior to her police interview on November 11, 2020 and how some of this information was not provided to police or stated during the trial. The notes, refer to jot notes she made in preparation for her interview, and they were eventually turned over to the defence. [ 38 ] In examination-in-chief GLZ mentioned that a lady named Jessie Chen stayed at Mr.

Chen’s home during part of her stay. In her notes she wrote that Jessie had visited during one of her stays, however, she did not mention this to police. GLZ explained that she did not mention to police that Jessie was present for part of the time she stayed at Mr. Chen’s because she was not there to witness anything that would be called into question. However, she did give the names of people she had told about the abuse. [ 39 ] I did not find this omission to affect GLZ’s credibility or reliability.

It would be impossible for a witness to recall all the details surrounding the time period of a historical sexual assault on each occasion she is asked to recount them. The fact is she remembered this detail prior to her police interview and after. In addition, Mr. Chen himself confirmed that Jessie Chen had stayed in his home when GLZ was there. [ 40 ] GLZ believed that the sexual jokes might have been going on a little bit as well when Jessie was in the home because she recalled that Jessie said to her that she should not be so open with a person of a different gender.

This conversation took place in GLZ’s home. GLZ stated that the jokes were not to the same degree as when no adult was present. She did not think at the time to tell police about it as the jokes were not criminal. [ 41 ] In re-examination, GLZ explained that when she said Mr. Chen may have made sexual jokes when Jessie was present what she meant was that the jokes were inappropriate. She recalled the following example. Jessie either bought or made tiramisu and later ended

up having diarrhea. Mr. Chen made a lot of jokes about feces. The way tiramisu is, translated in Chinese, Mr. Chen played around with the word “tira” part of tiramisu; in Chinese it means you are pulling up your pants and ‘pooping’. GLZ remembered that there were a lot of jokes around feces and even the anus and diarrhea. [ 42 ] It was these types of jokes that she recalled Mr. Chen making in Jessie’s presence and many of these comments were directed at Jessie.

The other jokes that GLZ described earlier, which included questions about masturbation and the clitoris, were not mentioned when Jessie was present. [ 43 ] The jokes directed to GLZ in Jessie’s absence were different in nature. She believed that the jokes Mr. Chen made were with the intent to groom her into thinking that she was overly sexual.

This is why she did not think that Jessie’s presence was as relevant to the other events in her statement. [ 44 ] As a teenager she had a tendency to blame herself for everything that happened to her and when Jessie made the comment to her that she should ‘watch her words’ she made a connection in her own head and correlated the way Mr.

Chen treated her to perhaps being at fault for this behavior, in that she was not watching her words while she was talking to a man. [ 45 ] In GLZ’s mind these jokes or comments made in Jessie’s presence were different in nature because the comments he made when no adults were around were directed towards her and her sexuality [ 46 ] In her notes GLZ said that they watched pornography frequently with Mr. Chen over one of her stays. In chief, however, GLZ stated she was not sure whether it happened over both of her stays. I do not find this to be a serious inconsistency.

In court she did indicate she was not sure if it happened over both stays. [ 47 ] GLZ maintained that despite the fact that that there was no sexual conversation when Mr. Chen would touch her on her side from her earlobe, the side of her breast, down to her thighs, that this was done with a sexual intention. It made her uncomfortable and she knew it was wrong.

GLZ referred as well to the context that it was done while they sat in the dark watching movies when no one could see that he was touching her. [ 48 ] GLZ was questioned about why she said at trial that most of the sexual conversations occurred when the younger daughter was not around but did not say this in her police statement. GLZ stated it was quite contextual in her opinion and she would not have thought about it without people asking her about it. She explained that Mr. Chen, herself, and his daughters were together 24 hours a day 7 days a week. Mr. Chen was not working and was around a lot.

There were many things that happened, some with zero relevance and others that had more importance. She did not know that the presence of Mary Jane was an important detail. The fact of whether Mr. Chen made sexual jokes in front of both daughters or not, did not seem to be an important detail. The jokes were mostly not explicit sexual jokes, rather they had sexual undertones to them.

In addition, Mary Jane was very young and it was unlikely that she would understand the jokes. [ 49 ] One thing GLZ did say in her police statement, however, is that they would watch pornography when the younger daughter was asleep. [ 50 ] In GLZ’s notes she put down the first time she stayed at Mr. Chen’s was December 2011 to January 2012. These notes were not intended for anyone; she made the notes to assist her in recalling details of the time period and events. They were made to help her “comb through her memory”. She advised that she could not be 100% sure of the time period.

However, she was able to narrow it down to occur between the time she came to Canada and prior to Grade 10. GLZ was 12 when she came to Canada.

She believes there was a second time period and thought that one was longer than the other stay. [ 51 ] In examination-in-chief GLZ said the following: I think ever since it started after we watched the Silence of the Lambs, he would it [sic] every time he had a chance, meaning every time we were watching a movie or when we were alone, we watched a lot of movies, so, many times, and during the entire stay probably until there was a second adult who came out with, if there was. [7] [emphasis added] [ 52 ] With respect to the passage above, Ms. Borooah pointed out that she did not say this to police.

GLZ did add, however, that she remembered that sometimes when Yuki would take a shower, Mr. Chen would touch her. He touched her earlobe and her hair. GLZ advised that she could not exclude that he touched her at other times. She said her previous statement, that he would touch her every time he had a chance when he was alone with her, “could be an assumptions”. [8] GLZ’s evidence in this area does call into question her reliability and credibility about these details. However, she did say on more than one occasion that she was not sure about certain details and that she may have made assumptions.

GLZ made it known when she had a clear recollection of an event and when she did not. [ 53 ] GLZ agreed that the additional piece of information that Mr. Chen touched her hair and earlobe when she was alone was a new detail. She explained that she thinks she did not tell police about this because she was not sure that it would be considered sexual touching, even though that was the feeling she had. Counsel put to her that she had already described earlier that the touching on her side from her earlobe to the thigh was sexual.

However, GLZ said for those other times the touching would go everywhere, including the side of her breasts. GLZ confirmed what details she recalled clearly in the following passage: But I, like I also said yesterday, the only time that I have the very clear memory of it happening was when we were watching the Silence of the Lambs and I just remember it happening over and over again. But the other times that it happened, I cannot find in my memory the exact setting I was in when he was touching me. ...

But I remember that he did it a lot when we were watching shows. [9] [ 54 ] GLZ agreed that in terms of remembering times when they were alone, she was less clear. The one incident she was clear on when they were alone was when Mr. Chen touched her vagina.

[ 55 ] Ms. Borooah put to GLZ that in both her notes and in her police interview she stated that Mr. Chen repeatedly watched Japanese pornography on one of his laptops with her and Yuki. However, in examination-in-chief she said that she recalled watching Snow White and the Seven Dwarfs on the TV in the living room. This issue was cleared up in re-examination. Counsel inadvertently put to GLZ that she had told police that she had watched both pornographic movies on a laptop.

After the witness reviewed her statement and her notes, she was able to confirm that she never specifically stated that she watched Snow White and the Seven Dwarfs on a laptop. GLZ agreed that she could not recall for certain where she watched the pornography, and she could not recall if she watched it once or twice. She remembered a bigger screen than a laptop. However, with respect to the Japanese pornography, she was pretty sure it was only on the laptop. [ 56 ] GLZ was very clear on the content of the pornography and that she watched it with Yuki and Mr.

Chen, but she could not say for certain on which device. I did not find her inability to recall the specific device they watched the pornography on to be significant. [ 57 ] When the topic of sexual jokes came up in cross-examination GLZ emphasized that the jokes were more nuanced. She asked a few times for permission to provide examples of those jokes and finally was permitted to do so. [ 58 ] One joke involved her telling Mr. Chen how she slept, and he said that sounded like the position one would be in when having sex. She recalled that both daughters were present for this joke.

GLZ also referred to a time when she had a water bottle between her thighs, and he joked saying that she liked to have cylindrical objects between her legs. She could not recall his exact words. She believed that both daughters were also present because she was sitting in the middle, in the back seat of the car. GLZ described the vehicle as having three rows. If she had been alone with him in the vehicle, she would have been in the front passenger seat, and this is how she made the inference that Mr.

Chen’s two daughters were probably also there. [ 59 ] GLZ gave another example of what she meant by the sexual jokes made by Mr. Chen. She told Mr. Chen that she was very sexually naive before she met him and Mr. Chen laughed and said something in his language. It kind of meant ‘like old pig’ but it was similar in sound to GLZ’s last name in which the underlining meaning was that she was not sexually naive at all. This last joke was not one she mentioned to police or in chief, however, it is clear that no one asked GLZ to recount all the jokes that Mr. Chen made.

She believed that his daughters were also present when this comment was made. After hearing the examples GLZ provided, I would agree that the sexual jokes were more nuanced. [ 60 ] GLZ advised police that Mr. Chen would regularly ask her if she masturbated but she did not tell the court about this. While this omission is an important one, it does not largely affect her credibility. GLZ agreed that she did not choose to give evidence about this issue of masturbation, but she thought the Crown would get to it.

It is very difficult if not impossible for a witness to recount every detail about all the interactions they had with a person they say abused them in some fashion. For the most part, a witness is confined to give answers to questions they are asked. [ 61 ] In GLZ’s police statement she said when Mr. Chen asked her if she masturbated in the shower she would just smile or say “no”. At trial she also added immediately after that her reply to Mr. Chen was just “conjecture” as she did not masturbate. [ 62 ] Ms.

Borooah put to GLZ that the sexual jokes and talk about clitoris did not take place at the dinner table because Mr. Chen’s wife would be on Facetime or a video call on the iPad at the table. [ 63 ] GLZ recalled that Ms. Lin would call but she did not remember that this happened each time at dinner time. She also said it was not like they turned on the video right when they sat down at the dinner table. [ 64 ] GLZ agreed that she and Yuki could have shared pornographic content with each other as teenagers. She did not recall watching pornography separately from Mr.

Chen but said it probably happened. [ 65 ] She advised that she had no access to the pornography or to the specific movie about Snow White and the Seven Dwarfs video and that Mr. Chen was the source of the pornography. [ 66 ] GLZ agreed that she could have watched pornography with another friend of theirs named Michelle. GLZ stated that while this could be true, she knew with certainty that she watched it with Mr. Chen and his daughter. [ 67 ] I found GLZ to be a credible witness.

In addition, with respect to when she was touched during Silence of the Lambs and later touched on her vagina I found her evidence to be both credible and reliable. With respect to when Mr. Chen first had GLZ and Yuki watch pornography, I also found her evidence to be both reliable and credible. When GLZ recalled events or circumstances during the time period of her interaction with Mr. Chen she would indicate whether she had a clear recollection or not. She did not express any difficulty in her ability to recall when she was touched during Silence of the Lambs and touched on her vagina.

Her evidence was consistent on these two events. In addition, she was able to give significant detail about them. When GLZ could not recall details of other times, she said so without hesitation. At one point GLZ advised that her statement that Mr. Chen had touched her any chance they were alone and every chance he got, may have been “an assumptions”. GLZ was clear that while she believed Mr. Chen touched her many times when they watched movies, she could only recall in significant detail one time which was Silence of the Lambs. Rather than affecting her credibility on this point, in my view it enhances it.

GLZ admitted frequently when she was uncertain about her recollection. Had GLZ attempted to maintain that she could recall with certainty that Mr. Chen had touched her when they were alone or any chance he got, I would have greater concern about her credibility. [ 68 ] GLZ did say that she recalled one incident when Yuki was showering where Mr. Chen touched her earlobe and her hair. She did not think other people would consider this a sexual advance and stated this may be why she did not think to mention this to police.

However, the touching of her whole body, side of breast, along with her ear, she believed to be more obvious touching of a sexual nature. [ 69 ] The case is a historical one; GLZ was approximately 12 to 14 years old when the events occurred. She was attempting to recall details that occurred when she was a child, nine years after the fact. It is important to keep in mind that she was being asked questions no one asked before, and for the first time had to recollect those aspects of the surrounding circumstances.

YUKI (YU) CHEN [ 70 ] I did not find Ms. Chen to be a credible witness. The following is a review of her evidence and my reasons for finding her to not be credible. [ 71 ] Yu Chen was referred to as Yuki during the trial and I will do the same. Yuki was 25 years old when she testified. She is a university graduate and is looking for work. She is 8½ years older than her sister, Muzhen (Mary Jane) Chen. Yuki was 13 years old when she moved to Canada. Her primary caregiver had been her father as her mother was working in China. GLZ and her family were friends with Yuki’s family.

She met GLZ in 2011 at which point they became close friends. When they went to university, she saw her infrequently. [ 72 ] Yuki recalled that GLZ stayed over for an extended period of time in 2012. She arrived before Christmas and left in January. She could not remember GLZ staying over another time but said it was possible. When GLZ stayed over she was 14 years old and in Grade 9, her sister was about 8 years old, and Yuki was 16.

Her father’s friend, Jessie, also stayed at their home for about a week. [ 73 ] During the time period that GLZ stayed with her, they did normal things, such as playing board games and video games. In addition, they would do homework. Her father was not around them when they did their daily activities. In fact, according to Yuki, she did not know where her father was during the day.

Considering her father was home and not working, I found this to be unlikely that she would rarely see him during the day and did not know where he was. [ 74 ] Yuki said during dinnertime they all sat at the table and her mom would do a video call. Her mother did this all the time, every day at the dinner hour.

According to Yuki, her mother was on the video call for the entire dinner and then, when dinner was over, the kids would go to the basement and her dad would continue to talk with her mother. [ 75 ] Yuki stated that her father never watched movies with her and GLZ of any kind and that he never engaged in sexual conversations with the girls. In addition, her father never discussed whether GLZ had a clitoris. Her father never joked about the way GLZ slept and suggested she slept in a position similar to a sex position. Her father never spoke about puberty to her or her sister.

Her father never even discussed menstruation with her or her sister. Yuki never looked at pictures of the female anatomy with her father. [ 76 ] Yuki watched Silence of the Lambs a few times and once during high school. She believed she could have watched this movie with her father. However, she was certain that if she watched the movie with her father, that GLZ was not present. I did not find her assertion to be very credible or reliable.

Given that she could not be certain when she watched it with her father but believed she watched it during high school, how could she be certain she did not watch it with her father and GLZ. [ 77 ] Yuki said that she watches pornography and started to watch it when she was 15, 16 or 17. She watched pornography with GLZ and GLZ’s neighbour, Michelle. It first seemed that she was suggesting that the source of the pornography came from GLZ’s friend.

However, in cross-examination Yuki stated that she was the one who introduced GLZ to pornography. [ 78 ] Yuki stated they watched Japanese pornography and when asked how she knew it was Japanese pornography she said Michelle told her. She could not understand what they were saying in the movie. Yuki could not remember any specific times that she watched pornography with GLZ. It is possible that they watched it when she stayed over during the Christmas break.

If they watched it, they did so on Yuki’s laptop. [ 79 ] Yuki said they did not watch pornography with her father, nor did he ever speak to them about pornography. However, Yuki did recall watching a pornographic movie about Snow White and the Seven Dwarfs. GLZ and her watched pornography about five times together. [ 80 ] Yuki was adamant that her dad did not make jokes with Jessie about the Tiramisu or use a Chinese word, “Tira” which means pulling up pants when joking with Jessie. She stated that her father never made any jokes about feces at the dinner table when Jessie was visiting.

In addition, Yuki testified her dad did not make any jokes at the dinner table and then said he would not make jokes that would make them lose their appetite. [ 81 ] She disagreed that her father had an interest in watching movies or that he had a DVD collection This evidence is inconsistent with her sister’s evidence and, to a certain extent, with Mr. Chen’s. Mary Jane and Mr. Chen’s evidence is reviewed below. [ 82 ] According to Yuki, her 8 year old sister went to bed around 10 or 11 p.m. This was inconsistent with her sister’s evidence who testified she went to bed between 8:30 and 9:00 p.m.

Yuki and GLZ would go to bed past midnight. Her father would not be around when they watched TV in the basement. [ 83 ] Yuki agreed that GLZ took more art classes than she did. Although she initially stated that her father would pick up GLZ from art class, her answered changed after a follow up question. She stated that she would always be in the car when her dad picked up GLZ. This inconsistency may have been that she did not clearly understand the question asked. When she was reminded that Yuki took an additional class, she said she did not recall her dad driving her home alone.

Yuki then said that she would stay until GLZ finished her additional class. [ 84 ] Yuki agreed that herself, her sister and GLZ would sit in the back together when her father drove them. This confirmed what GLZ described as the seating arrangements. Mr. Chen was inconsistent with Yuki on this point. He was adamant that the girls did not all sit together in the back. [ 85 ] When Yuki was young and hurt herself or scraped her knee, her father would put an oil on her injury. This, in part, confirms what GLZ said about Mr. Chen having an ointment that he would put on the children when they were injured.

When asked if her father would apply the ointment, she said, “no”, that her father would give it to her to apply. While this is very possible it seems more likely that if a

parent is providing medical care to an injury that they would also apply any medication and not make the child apply it. It is also possible that Yuki may have been aware of GLZ’s allegations and wanted to provide further evidence to dispute the possibility that her father put this ointment or oil on GLZ. In each case it is speculation and I do not reject her evidence on this point. [ 86 ] In addition to some of my comments above, the following areas of Yuki’s evidence caused me to question her credibility and reliability. [ 87 ] Each day Mr. Chen and the girls would have dinner around 6 p.m. to 8 p.m.

Her mother would call in from China. Between China and Ontario there is about a 12-hour difference so her mom would be calling in around 6 a.m. to 8 a.m. China time. This evidence was given by Mr. Chen and all of his family. Essentially it was their evidence that the mother was present for each dinner hour by video and at no time during that dinner hour did Mr.

Chen speak about the clitoris or make inappropriate jokes. [ 88 ] When the Crown suggested to Yuki that her mom would be getting ready for work and would not always be on the video call or at least be distracted, Yuki replied that her mother takes her time during the calls and would not be distracted. Even though her mother was getting ready for work, Yuki maintained that her mother’s face would still be in the camera, and she would be talking to them. [ 89 ] Yuki said that her mother would be cooking and would move to the dining room to eat the food that she just cooked.

She said even though her mother would be cooking her main focus was on them. Yuki insisted as well that her mother called in every single night when they ate dinner and never missed a call. [ 90 ] When the Crown asked her about the possibility that her mom may call when they had already started their meals, Yuki answered that her mother would call mostly when they were about to eat. The Crown suggested that because Yuki’s mother would not know what stage they were at in eating their dinner, she may call in when they were partway into the dinner.

However, Yuki’s answer was if they started dinner, before they ate, they would call her mother first; and if her mother had called they would not have started dinner. Earlier she had said it was her mother who would call in each night.

The thrust of her evidence was that each time they had dinner, her mother was on the call from start to finish focusing on them while they ate. [ 91 ] Her version of her mother calling each dinner hour and not missing any point in time during the meal and that her mother would be on the video call either just before or at the commencement of each and every meal until it ended was not believable.

Given the Crown’s cross-examination of the mother on this area, reviewed below, it is clear that her mother was not on each dinner hour, every single second from the moment they sat down for dinner until they finished and went downstairs, observing everything they said or did. [ 92 ] Another area in which Yuki was not credible or reliable was with respect to her recall of who she watched Silence of the Lambs with. [ 93 ] Yuki’s statement that she may have watched Silence of the Lambs with her father on the one hand and yet having certainty that she did not watch this movie with GLZ and her father was not credible.

While it would be understandable that she would not be certain when she watched this movie with her father given the passage of time, how does she have certainty that she did not watch it with GLZ. [ 94 ] I also found the following evidence about her lack of interest in Japanese to be not credible. [ 95 ] Yuki advised that she has never taken any classes to learn Japanese, nor did she do any self-studying of the language. She failed to mention, however, that during the time period in which GLZ was staying with them that she would regularly watch a Japanese animated series.

While there were subtitles, the characters spoke in Japanese. In addition, as discussed below, Mary Jane said Yuki had some interest in Japanese. GLZ said that Yuki translated one line from the Japanese porn movie. While I accept that she likely did not understand much Japanese, this does not mean she did not have an interest or attempt to make others believe that she did understand Japanese. [ 96 ] Finally, another area which contributed to my finding that Yuki was not credible or reliable was her evidence concerning when she watched pornography. Her evidence in this area shifted and morphed.

In chief, Yuki said she could not remember any specific times of when she watched pornography with GLZ. Counsel then followed up with asking her if they watched pornography when GLZ was staying at her house and she replied, “It might have happened”. Ms. Borooah then asked her where they watched it and Yuki replied in the basement. The answer then in effect went from a ‘might’ to a certainty. Yuki said she watched it with her friends and with GLZ and GLZ’s friends. Later she said Michelle first showed her Snow White and the Seven Dwarfs and she showed it to GLZ.

In cross- examination she admitted that Michelle was also her friend and not just GLZ’s friend. [ 97 ] In cross-examination Yuki recalled that she saw Snow White and the Seven Dwarfs with GLZ and that she said she remembered the movie because it was the first time that she watched pornography with GLZ. [ 98 ] Yuki she said that she introduced GLZ to pornography and then later said that she did not know who introduced GLZ to pornography. [ 99 ] Yuki made general statements about what she recalled during GLZ’s stay and provided no details about this time period.

Yuki never allowed for the possibility that she had recalled events incorrectly. Wen Jing Lin [ 100 ] The following is a

summary of Ms. Lin’s evidence. [ 101 ] Ms. Lin and Mr. Chen have been married for 26 years. [ 102 ] In December 2010 / January of 2011 to 2013 she was in China and her husband and children remained in Canada. Ms. Lin agreed that between 2011 and 2014, GLZ’s family and her family had a lot of contact.

[ 103 ] Every day when Ms. Lin was in China she would speak to her family in the morning from 6 a.m. to 8 a.m. and in the evening from 8 p.m. to 11 p.m. China time. [ 104 ] Ms. Lin remembered that GLZ stayed in her house from Christmas 2011 to January 2012. Ms. Lin did not recall that GLZ stayed at her house on any other time period. This was inconsistent with Mr. Chen’s evidence. [ 105 ] Ms. Lin described her family’s dinner hour as follows. Normally, at the beginning of dinner Mr. Chen would turn on the video and then Mr.

Chen would introduce the food to the girls, and she would speak with her children about school and other things. During this time, she had never heard her husband make any sexual jokes in front of the children. Nor did she ever hear her husband speak about the clitoris in front of the children. The family never spoke in public about anything related to sex. [ 106 ] In China Ms. Lin started work at 8:30 in the morning until noon and then from 2 p.m. to 6 p.m. It took her about 30 minutes to get to work. She would wake up at 6:30 a.m. China time, more or less.

She agreed when she went to work there was traffic sometimes. She had no need to check the traffic before she left because it took her the same time, more or less, to get to work. [ 107 ] Ms. Lin agreed that she would have to get ready for work each morning. She would normally cook herself breakfast and she would have a conversation with her family members at the same time. [ 108 ] Ms. Lin did not shower in the morning; she had a bath at night. She agreed that she would take some time to get dressed in the morning. She agreed she would have to change out of her pajamas and get dressed.

When asked about putting on makeup, she said she puts on very little makeup. She simply brushes her teeth and puts on some lipstick. When it was put to her that she would not get dressed and undressed on the video in front of her family she said it was ‘not so strict’. When asked again, she agreed that she would not get dressed and undressed in front of her family with GLZ present. [ 109 ] With respect to washing her face and brushing her teeth, she said sometimes she would do this on video and sometimes she did not. [ 110 ] Although Ms.

Lin said earlier that she started work at 8:30, she said her hours at work were not that strict so that she would not leave as early as 8:00, even though it took her 30 minutes to drive to work to arrive by 8:30. [ 111 ] According to her version, Mr. Chen would turn on the video link and he would do so at different times during that hour. [ 112 ] Ms. Lin agreed that getting ready for work would take her at 30 minutes, more or less. When it was suggested to Ms.

Lin that given she woke at 6:30 and aimed to leave at 8:00 a.m., there would be about a 30 minute period where she would not necessarily be on a video call with her family. Rather than agreeing with this suggestion, Ms. Lin said that she would sometimes leave the video on its side. [ 113 ] Finally, she agreed that if GLZ was visiting, there would be a 30 minute period where she was getting ready and would not be on video with her family. She agreed that during those times she would really only be on the phone about an hour.

However, when the Crown again summarized her answer, she stated, “I believe that I would spend all that time on.” [10] [ 114 ] According to Ms. Lin there was never any connection problems when she spoke to her family. [ 115 ] The Crown referred Ms. Lin to her answer in chief where she said, ‘basically she spoke to her family every single day.’ She agreed that ‘basically’ did not mean every day. She agreed that if her family was out for dinner they would not speak. [ 116 ] After a number of questions about work commitments Ms.

Lin agreed that there would be some days where she had to get to work early and as a result her time on these calls would be shorter. She also agreed that there could be a morning where she did not have time to call them at all. [ 117 ] Ms. Lin eventually agreed that on those days when her family went out for dinner, or she had to leave for work early, she would not have video calls with her family. However, she said she would still greet her husband in the morning. [ 118 ] The Crown then put to Ms. Lin that saying she spoke to her family every day without missing a call was an exaggeration. Ms.

Lin disagreed and said that there are always exceptions to an everyday habit. [ 119 ] Ms. Lin said her husband did not have a DVD collection of movies. This was inconsistent with Mary Jane’s evidence and to some extent with Mr. Chen’s evidence. She did not recall that there was ever a period of time when Yuki was interested in learning Japanese. While she said her daughter was not interested in learning Japanese, she also did not know that her daughter was interested in pornography as a teenager. [ 120 ] Ms. Lin said that GLZ only stayed at their place for one Christmas holiday. This was inconsistent with Mr.

Chen’s evidence that GLZ stayed a second time during another Christmas holiday. [ 121 ] Similar to Yuki’s evidence, I did not find Ms. Lin’s evidence about the fact that she was always on a video call each time her family was having dinner to be very credible. It was only after several questions by the Crown, that Ms. Lin had to concede that she was not on the video call with her family each day, the entire time they were at the dinner table. Muzhen (Mary Jane) Chen [ 122 ] Muzhen also goes by Mary Jane.

She was 17 at the time of the trial and would have been approximately 8 years old during the time period in question. Mary Jane was friends with GLZ’s younger sister for a few years between 2010 and 2013. She remembered that GLZ stayed with her family on Christmas break in 2011 or 2012. She thinks she stayed only once, and she believed she stayed for 2 weeks.

[ 123 ] Mary Jane could not remember the conversation they had at the dinner table during GLZ’s stay but recalled it was lighthearted. She had no recollection of what was discussed during car rides. She did not talk to her father about puberty. Mary Jane only spoke to her mother about this subject. Mary Jane would not have known what a clitoris was at 7 or 8 so she could not say if this topic was brought up at the dinner table. She did not think that she would know as well at that age what sex would mean.

But as far as she knows her family has not had these types of conversations about sex or clitorises. [ 124 ] Her bedtime when she was about 8 years old would have been 8:30 or 9:00 p.m. and not 10 or 11 as suggested by Yuki. [ 125 ] Mary Jane believed her dad did have a DVD collection and he kept it in a CD folder. He watched more movies on TV, but he also watched movies from his DVD player. [ 126 ] Mary Jane remembered that her sister had an interest in learning Japanese. Yuki and her both watched a lot of Anime growing up. Anime is Japanese animation.

They understood Japanese like a tourist would understand it; they could say “hello” and “goodbye”. Her sister never took any Japanese courses. Other than watching Anime, her sister did not tell her about a general interest to learn Japanese. [ 127 ] It was possible that her sister looked at Japanese on the internet and tried to teach herself. Yuki never translated any of the parts on the Anime. They watched the Anime a few times each week. Back at the relevant time her sister would know more Japanese than she did.

Recently Mary Jane has studied Japanese on her own. [ 128 ] Mary Jane believed that GLZ only stayed with them once. It was her recollection that her sister and GLZ hung out either in her sister’s bedroom or in the living room. This was inconsistent with Yuki and Mr. Chen. [ 129 ] She did not remember staying behind with her sister while her dad picked up GLZ from art class. [ 130 ] Mary Jane remembered Jessie coming to stay with them. [ 131 ] Overall, I found Mary Jane to be a credible witness.

Given that she was about 8 years old at the time of the allegations, she advised that she would not appreciate what sex or a clitoris was and, therefore, could not confirm if this was ever discussed when GLZ visited their home. While everyone, including Mr. Chen, gave evidence that he did not watch any movies from a DVD collection, Mary Jane advised he did watch DVD movies. However, she also stated that her father watched more TV. Yuki and Ms. Lin all testified inconsistently to Mary Jane that Mr. Chen did not have a DVD collection.

Mary Jane provided, as well, some corroboration for the fact that her sister had some interest in the Japanese language. While Yuki said her father did not tell jokes at the dinner table, Mary Jane referred to the dinner hour as being lighthearted. [ 132 ] No one asked Mary Jane about whether her mother made a video call from China with her father, sister and GLZ while they ate dinner each night. Zhi Yuan Chen (Raymond Chen) [ 133 ] Mr. Chen is university educated. He had to leave China because his family violated the China one child policy. He quit his job and they moved to Canada. Ms.

Lin kept her full-time job in China and would come to stay with her family periodically. [ 134 ] His mother tongue is Cantonese. He can understand and speak part Mandarin and English. He is not very fluent in Mandarin. When he was arrested, he spoke to two officers; one spoke English, and another spoke Putonghua Mandarin. He did not 100% understand the questions asked by police and said in a state of confusion he may have ‘spit out a few words in Cantonese’ while speaking to police. [ 135 ] From 2011 to 2013 he was the primary caregiver for his children. [ 136 ] In 2010 to 2012 he took English classes.

He went Monday to Friday from 9:30 to 2:20. He always had homework and he would do a bit after dinner and before bedtime. None of his family mentioned that he attended English classes. It was not discussed whether he attended these classes during the Christmas holiday when GLZ stayed at his home. [ 137 ] Mr. Chen knew GLZ’s mother from high school. [ 138 ] Mr. Chen is the only one in the family that recalled GLZ staying at his house on two occasions. The first being Christmas time in 2011 and the second time being Christmas time in 2012.

The first time was only for 2 to 3 days. [ 139 ] During GLZ’s first visit, his university classmate, Jessie, also stayed with them. The second time GLZ stayed less than a month. During this time Jessie also stayed at the house for a few days. [ 140 ] Mr. Chen advised that there were DVDs in the house and there was a container that contained DVDs. However, the collection belonged to his youngest sister. She had left it behind for him on one of her visits. [ 141 ] Mr. Chen denied watching Silence of the Lambs with GLZ. He denied ever making jokes involving sexual topics directed towards GLZ. Mr.

Chen essentially denied all of the allegations and many of the surrounding details that GLZ described during her stay with the Chen family. [ 142 ] He stated he never drove GLZ alone to her art class. Yuki would always be in the car. Mr. Chen stated that he would not take two trips to pick the girls up from art class. He did recall that GLZ was able to secure another art teacher to coach her in drawing or painting but he could not recall whether she had extra art classes.

The high school they attended was an arts school. [ 143 ] In cross-examination he agreed that GLZ was able to retain another art teacher and that GLZ was able to obtain an arts Major as a

result of taking arts in high school. He maintained however, that he would not pick up GLZ separately from Yuki. He did not know whether GLZ took additional art classes. [ 144 ] When he drove the girls, Yuki would be sitting in the front and his younger daughter would be in the back along with GLZ. However, on this point, his evidence was inconsistent with Yuki who said the girls would all sit together in the back. Mr. Chen disagreed that Yuki would want to sit in the back with her friend GLZ when she was visiting. He said this would be rare.

This evidence was of some importance as GLZ said on one occasion when Mr. Chen was driving she sat in the middle of Mr. Chen’s daughters in the back, that Mr. Chen made a comment that she liked cylindrical objects between her legs. At the time she had a water bottle between her legs. [ 145 ] He disagreed that GLZ would sit in the front passenger seat if he drove her alone. He said she would be too young to do so for safety reasons. I found that to be unlikely given that GLZ would be 14 years old when attending high school. [ 146 ] Mr.

Chen agreed that for the most part his family speaks three languages: English, Mandarin and Cantonese. However, primarily he would speak Cantonese, some English, and then some Mandarin. [ 147 ] Back in 2010 and 2013 he primarily spoke Cantonese and Mandarin to his daughters. When GLZ visited they spoke Cantonese. When he spoke with his youngest daughter he would communicate in Mandarin. According to Mr. Chen, despite his youngest daughter not being able to communicate in Cantonese, they would speak Cantonese at the dinner table.

His daughter could understand Cantonese but could not speak it. [ 148 ] Despite speaking to his youngest daughter in Mandarin 70% of the time, Mr. Chen said his Mandarin was bad. [ 149 ] At the police station Mr. Chen answered in Mandarin for most of the interview. If he was not able to answer in Mandarin, he would answer in Cantonese. He agreed that, for the most part, he was able to understand the police and answer their questions. [ 150 ] Mr. Chen agreed that given the long flight to China, GLZ’s mother would go to China for at least two weeks. The Crown then reminded Mr.

Chen that it would be unlikely then that GLZ’s mother would leave her in Mr. Chen’s care for only 2 to 3 days. However, Mr. Chen advised that Jessie came to look after her during that time and then took GLZ back to her home. [ 151 ] Mr. Chen disagreed that he would watch movies with his daughters and, if he did, it would be very rare. [ 152 ] He also disagreed that he would have to check on his children throughout the day and evening to make sure they were safe. Mr. Chen said that he would basically let the children do what they wanted to do all day and only made sure that they ate well.

However, he would watch the youngest daughter more closely. He did not monitor his teenage daughter’s use of the internet. It is important to keep in mind however, that the allegation of watching Silence of the Lambs and pornography occurred when Mary Jane was asleep. [ 153 ] Mr. Chen appeared to be inconsistent on whether he watched pornography, whether it was a few minutes or whether it was unintentional. When the Crown would raise an inconsistency with some of his evidence he said that he was not clearly understanding what was said because the officer spoke in Mandarin.

Although he could communicate with his younger daughter in Mandarin, it is possible he did not understand what the officer said. However, at no point were any examples provided to the court where Mr. Chen advised the officer that he could not understand him. [ 154 ] Mr. Chen would not agree that he watched pornography; rather, he said that it would sometimes ‘just pop up’ on his computer. He denied that he would know whether he was watching Japanese pornography. When the officer asked him if he watched Japanese pornography, he said that it would pop up.

He did not tell the officer, as he said in cross-examination, that he could not distinguish if he was watching Japanese from Vietnamese or Korean pornography. In the video statement it was not clear that the officer in Mandarin used the word ‘Japanese’. Given, however, Mr.

Chen would speak to his daughters in Mandarin and in English at times back in 2011 and 2012 and that his daughters were watching Japanese animated shows on a regular basis, it is surprising that he would need the word “Japanese” interpreted in Cantonese or Mandarin. [ 155 ] When the officer asked him if he had a favourite, he said he did not like this kind of movie.

When the pornography popped up, he would “immediately” close it and not watch it. [ 156 ] However, in his police interview after further questioning, he told police that he would watch the pornography “occasionally, I watch for a little bit – just a few minutes.” [11] He said there would also be “pop ups” of pornography on his computer screen. [12] [ 157 ] Mr. Chen then changed his answer at trial to say that some pop ups may stay up for seconds and others could stay up for two minutes before they closed down. He agreed that he did not tell police that he closed the pornography immediately. Mr.

Chen said he did not provide this answer because he was not asked. [ 158 ] The Crown put to Mr. Chen that on the occasion where he said that GLZ only stayed at his house for 2 to 3 days, they also went to Helen’s and GLZ’s home. Helen is GLZ’s mother. On this occasion they cooked a turkey and later forgot about the turkey and left it in the oven. The turkey then began to smell. When police asked him if GLZ’s mother was there he said “yes”. Mr. Chen, in cross- examination, said that he maybe misheard what the officer said because Helen was not present during this time.

It was Christmastime and Helen was not present. He agreed that Helen would not fly to China from Canada for a few days. This could be an inconsistency, or it could be the result of Mr. Chen not fully understanding the officer. [ 159 ] In his police interview Mr. Chen said that GLZ stayed with his family during the holiday season for a couple of years. Mr. Chen disagreed with what he said in the police interview as he said he did not know how many years “a couple” referred to. Again, this could be a situation of Mr. Chen not understanding the officer’s Mandarin or it could be a situation where Mr.

Chen uses this when confronted with an inconsistency. [ 160 ] Although Mr. Chen agreed there was a DVD collection in the house, which was his sister’s, he did not recall Silence of the

Lambs being a part of this collection. However, he agreed with police that he watched Silence of the Lambs several times. He then said in chief that he saw Silence of the Lambs come up on Bell TV. And he “caught” the movie, but he did not watch it. He then explained that he watched the whole movie in China. [ 161 ] When police asked him this question, he did not clearly understand it. Mr. Chen only caught a glimpse of the movie in Canada in 2021. He stated that he can confirm that he did not watch this movie in Canada on TV.

Yuki, however, said that she thinks she did watch this movie with her father in Canada. [ 162 ] When the Crown put to Mr. Chen that he watched the movie with his daughter, that he heard Yuki give this evidence in court, he said he only caught a glimpse of it on Bell TV. [ 163 ] Mr. Chen denied watching Silence of the Lambs with GLZ and stated he never watched any movie with her. He stated that his children occupied the whole of the basement, and he did not interfere with them. [ 164 ] Mr.

Chen advised that China does not have Daylight Savings Time so in the winter there is a 13 hour difference between China and Canada. [ 165 ] Counsel and the Crown jointly confirmed, after doing some research, that China in the winter months is 13 hours ahead of Canada and that 6 p.m. in Canada would be 7:00 a.m. in China. This then would shorten the time that Ms. Lin would be able to observe and see and hear everything said at the dinner table. [ 166 ] Mr. Chen agreed that most of the time he would call his wife.

However, he also said that sometimes his daughters would call their mother when he was cooking and sometimes his wife would call them. The Crown reminded him that Yuki said that Mr. Chen would make the calls to her mother. Mr. Chen said it was not so strict as to who would initiate the calls. This phrase ‘not so strict’ was used on a few occasions by both Mr. Chen and his wife during their evidence. If the ways the calls were made was not so strict in the family, why the need to be on a video call the moment Mr.

Chen and his family sat down at the dinner table and then to remain on the call until the meal and discussion at the table were complete. [ 167 ] Mr. Chen denied that he had inappropriate conversations with GLZ and Yuki at the dinner table and disagreed that he would call his wife after he had inappropriate conversations with GLZ and Yuki. He said that GLZ would also call her parents at this time. [ 168 ] Mr. Chen stated he never applied ointment to GLZ’s knee, nor did he put his hands down her pants.

He had a family first aid kit which included Tylenol, Advil, sunblock, something for mosquito bites and another kind of oil. [ 169 ] He agreed that he pays for all the expenses in the house, the groceries, and meals outside the home for Yuki. [ 170 ] Mr. Chen essentially denied all of what GLZ said. This included, as well, many surrounding details of the time period she stayed with his family. [ 171 ] For reasons already discussed, I did not find Mr. Chen’s evidence concerning the video calls with his wife at the dinner table to be credible.

I also did not find his evidence credible concerning whether he watched Silence of the Lambs in Canada or whether he watched pornography. While I have some concerns about his evidence concerning when he could understand certain points of what was said to him in Mandarin during his police statement, I allow for the real possibility that this could be the case. [ 172 ] Yuki’s evidence about where the three girls sat in Mr. Chen’s vehicle was consistent. Given the fact that these events are not significant to Mr. Chen, it has left me to question his credibility on this issue.

Similarly, his evidence about the fact that GLZ would not sit in the front seat because she was too young to do so, did not ring true. [ 173 ] While Mr. Chen denied ever driving alone with GLZ in his vehicle, his evidence and Yuki’s evidence about GLZ taking extra art classes does in some respect corroborate GLZ’s version that she recalled a day when he drove her home alone from art class. Conclusion [ 174 ] Mr. Chen is presumed to be innocent.

That presumption is only rebutted if and when Crown counsel establishes each and every essential element of a criminal offence to the reasonable doubt standard. [ 175 ] The core of GLZ’s evidence has remained consistent. While there were some inconsistencies, they were minor, and they did not undermine her credibility and reliability with respect to her evidence on when she was touched on her vagina or when Mr. Chen touched her while they watched Silence of the Lambs or when she first watched pornography with Mr. Chen.

I have carefully considered her inconsistencies in the context of all of the evidence adduced at trial, when assessing whether the evidence is capable of proving Mr. Chen's guilt to the reasonable doubt standard. It must be kept in mind that when the offences are alleged to have occurred that GLZ was 14 years old, and that she is now 23. Nine years have passed since the time period in question.

The Supreme Court has adopted a common-sense approach to the credibility and reliability of the evidence of a child witness. [13] Within reason it is to be expected that a person recalling events that occurred as a child will have flaws in their evidence. When I reviewed the evidence of both Yuki and Mary Jane, I have taken into account that they also would have difficulty recalling details of events that occurred so long ago when they were very young. [ 176 ] In the end, after considering the whole of the evidence, including the evidence of Mr. Chen and his family, I did not believe Mr.

Chen’s version of events and it did not raise a reasonable doubt in my mind. [ 177 ] Turning first to count 1 and count 2, the sexual assault and sexual interference charges. After considering all of the evidence, I am satisfied beyond a reasonable doubt, that Mr. Chen touched GLZ’s vagina for a few seconds while he had her on his lap to apply oil or ointment to an injury she had on her knee.

[178] With respect to counts 3 and 4, the sexual assault and sexual interference charges, I am left in a reasonable doubt and there willbe an acquittal on these counts. While I am satisfied beyond a reasonable doubt that Mr. Chen touched GLZ in the manner she describedwhen they watched Silence of the Lambs, I have some doubt that he touched her for a sexual purpose. When the touching occurred, Mr.Chen was sitting in the presence of his daughters while the girls watched a scary and violent movie.

I find it is possible althoughunlikely, that he was touching GLZ to calm her nerves or out of affection and not for a sexual purpose. Despite finding that GLZ was acredible and reliable witness, I allow for the possibility that she was mistaken as to what Mr. Chen’s intention was when he was touchingher. [179] With respect to count 5, while I accept GLZ’s evidence about the fact that Mr. Chen showed both her and Yuki pornographywhich involved a scene where a young girl was penetrated by a male, I am left with a reasonable doubt that Mr. Chen did so in order tosexually exploit GLZ.

His daughter was present and both GLZ and Yuki expressed with some regularity, a curiosity, and a desire towatch pornography. GLZ did not state that Mr. Chen touched her inappropriately during the movies, nor did she claim that he madeinappropriate suggestions to her. I do not accept Yuki’s evidence that she did not watch pornography with GLZ and Mr. Chen. As I havesaid, I did not find her a credible witness. GLZ gave clear and detailed evidence concerning the event and I accept her evidence aboutwatching pornography with Mr. Chen and Yuki.

With respect to Snow White and the Seven Dwarfs, I allow for the unlikely possibilitythat GLZ watched this only with Yuki and that she somehow believed that Mr. Chen was present when he was not. As I have said whenreviewing GLZ’s evidence, she made it crystal clear to the court when she was able to recall an event with certainty and when she couldnot. With respect to this movie, while GLZ gave a lot of detail about the movie, she did not give a lot of detail of the circumstances ofwhat occurred when they watched it.

This was a movie that they had watched several times. [180] Given my reasons above, I find the Crown has proven Mr. Chen guilty of counts 1 and 2. With respect to the remaining counts, Iam left with a reasonable doubt, and he will be acquitted of counts 3, 4 and 5. Oral Reasons for Judgment: July 19, 2022 Written Reasons for Judgment Released: August 22, 2022 Signed: Justice A.R. Mackay So [1] R.S.C., 1985, c. C-46. [6] R. v. Hull, (ON CA), 2006 CarswellOnt 4786 (Ont. C.A.); , at para. 5. [10] Transcript of Proceedings, May 4, 2022, page 14, line 22.