R. v. Vu

R. v. Vu Collection Decisions of the Court of Appeal Date 2025-03-31 Neutral citation 2025 ONCA 242 Docket numbers COA-24-CR-0203 Judges Fairburn, J. Michal; Dawe, Jonathan; Code, Michael A. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Vu, 2025 ONCA 242[1] DATE: 20250331 DOCKET: COA-24-CR-0203 Fairburn A.C.J.O., Dawe J.A. and Code J. (ad hoc) BETWEEN His Majesty the King Appellant and Quang Vu Respondent Owen Goddard, for the appellant Sandra Kimberg, for the respondent Heard: January 9, 2025 On appeal from the acquittals entered by Justice Michael K. Wendl of the Ontario Court of Justice on January 29, 2024. Fairburn A.C.J.O.: A. Overview [1] This is a Crown appeal from acquittals on two counts of sexual assault and one count of forcible confinement. The acquittals followed the trial judge’s decision to dismiss the Crown’s similar act evidence application. [2] The complainants (A.M. and Z.L.) were two women who, during the same time frame and within the same geographic area, were invited by an Asian male driving a light-coloured car to take a free Uber ride. He told each of them the same thing: that he was an Uber driver and that he was looking to boost his star rating. He offered them a free ride in exchange for a good rating. Once in the car, he asked them about the size of their breasts and sexually assaulted them by touching their breasts. [3] It turns out that a very similar story was used on five other women within the same time frame and the same geographic area. The women described being approached by an Asian male driver who offered them a free Uber ride. Four women described the car as light coloured, either a white or silver car. Four of them did not take the driver up on the offer, and the fifth managed to get out of the car after she was asked about the size of her breasts but before anything else happened. [4] The Crown brought a similar act evidence application at trial, seeking to elicit the testimony of these five other witnesses. The application was blended with the trial proper in this judge-alone trial. It was dismissed and the respondent was acquitted. [5] This is a two-issue Crown appeal from the acquittals: (i) did the trial judge err in law in dismissing the similar act evidence application; and, (ii) if so, did it have a material bearing on the verdict? [6] The answer to both questions is “yes”. As I will explain, the trial judge erred in law in failing to consider the proposed similar act evidence holistically. Instead, he considered the evidence in silos and focussed solely upon small differences between witness accounts. Had the trial judge applied the correct analytic approach, a very different picture would have emerged: that there was an Asian male, in the same geographic area, around the same time period, driving a light-coloured vehicle, approaching women while they were walking on the street alone, posing as an Uber driver and offering to give them free rides in exchange for good ratings. The erroneous exclusion of this evidence deprived the Crown of critical evidence needed to prove identity, which ultimately had a material bearing on the verdicts. [7] Accordingly, the appeal must be allowed and a new trial ordered. B. Facts [8] This was a judge-alone trial in the Ontario Court of Justice. The key issue at trial was identity. The Crown relied heavily on its proposed similar act evidence to prove this issue. [9] In total, seven women testified to events that occurred within a two-month time frame (August 12 to October 13, 2020) in the City of Hamilton. The critical features of their evidence are distilled in a chart at Appendix A to these reasons. [10] Each woman described being approached by an Asian male on foot while they were walking alone on main streets within the city. He identified himself as an Uber driver and told the women (except for one who immediately interrupted him once he said he was an Uber driver) that he needed help to get stars or good ratings. They described the man as being somewhere between 5’4’’ and 5’9’’ with a slim to medium build. He was described by many as well dressed and clean shaven. He was described by each woman as speaking good English and easy to communicate with. The women were also consistent in estimating his age. Except for one who thought he was close to her age, which was 36, the rest all placed him in his twenties. [11] All the women described the car he drove, except for one woman who did not observe it. The women who saw it said that it was a light-coloured car, either white or silver. Some described it as a white Honda Accord. Some described it as “sporty” looking, or a “sports edition”. For those who were asked, they remembered it had tinted windows. Some described it as clean and new. [12] The final incident described at trial occurred on October 13, 2020. N.B. testified that on that date an Asian male emerged from a “silverish, almost a white – light silver”, “sporty” four-door car and approached her while she was alone walking on the street. He said that he was an Uber driver. This alarmed her because she had seen a news story warning women that a man posing as an Uber driver and offering free rides had sexually assaulted women. She immediately interrupted the man, saying “no”. N.B. consciously tried to remember his licence plate number as he got back into his car and drove away. She then texted her daughter the licence plate number so that she would have it recorded in her phone. [13] At trial, N.B. described the man she encountered on October 13, 2020 as an Asian male, about 25 to 27 years of age, around 5’7’’ or 5’8’’, of medium build, and wearing black glasses, a three-quarter-length camel-coloured cashmere coat, and grey slacks. He was wearing a golf hat, but she could see a “buzz cut around the side of his head.” [14] The October 13th incident involving N.B. was the respondent’s undoing. The police used the licence plate information provided by N.B. (BJDZ 484) to narrow the search for the light-coloured “sporty” vehicle. In doing so, the police discovered a white Honda Accord Sport car that was owned by the respondent, with the licence plate number of BZDJ 484 affixed to it. By simply reversing the Z and the J, this was exactly the licence plate number that N.B. registered in her phone as the purported Uber driver left the scene. [15] Notably, the car had been sold by a Hamilton Honda dealership to the respondent who lived in Hamilton. Even more notably, the respondent’s white Honda Accord Sport car with tinted windows matched the vehicle caught on surveillance videos at the locations and at around the times when four of the women had been approached by the Asian male who said he was an Uber driver. [16] After the respondent’s arrest, the police obtained a production order for records of the respondent’s cell phone activity between August 12 and October 13, 2020. The Crown led cell tower data that showed the respondent’s cellphone had pinged towers near each of the incidents around the general time that they were occurring, although it could not be said whether the cell towers were the closest in proximity to the locations where the women were approached. C. TRIAL judge’s reasons [17] The trial judge provided his similar act ruling and judgment at the same time. [18] He called the similar act application as one of “count-to-count extrinsic evidence”. By this descriptor, I take the trial judge to mean that he was being asked to do two things: (i) apply the evidence intrinsic to the charges across counts; and (ii) to admit the evidence extrinsic to the charges, from the five non-victims who testified, into the trial. [19] The trial judge then noted that it was his task to determine whether the similar act evidence should be “admitted on the balance of probabilities”. He noted that admissibility was to be determined by weighing the probative value versus the prejudicial effect of the evidence. He said that his first task was to “determine if there are enough similarities between the acts to determine on the balance of probabilities whether it was the same person” and then to establish whether there was “some evidence linking the accused to the acts.” [20] He also noted that where similar act evidence is elicited to prove identity, such as in this case, the “demand for similarity between the acts increases”, calling upon a threshold test of “strikingly similar.” As he said, the demand for a “high degree of similarity” arises from the “driver of … cogency in relation [to] the similar fact evidence”, which is the “improbability of two persons who have displayed the same configuration of matching characteristics in committing a crime.” [21] Although the trial judge did not cite any law, he was not required to do so. At a high level, in just a few brief passages, he generally summarized the law correctly. [22] The trial judge then pointed out that there were six separate incidents, two of which involved the charges and four of which involved similar act witnesses. In fact, there were seven separate incidents, five of which involved similar act witnesses. The trial judge overlooked the evidence of A.P. Like the others, A.P. was walking alone on a street in Hamilton when she was approached by an Asian male who said he was an Uber driver and who offered her a ride in exchange for a rating. [23] The trial judge then proceeded to assess the differences between witness accounts. He found that the “most significant hurdle” for admission of the evidence was the different ways in which the witnesses had described the suspect, ranging from what the trial judge described as 25 to 36 years of age and between 5’4’’ and 5’9’’ in height. The trial judge also emphasized that the purported Uber driver was described as both very slim and on the medium/muscular side. His hair was described as “short and bristly” to “swept to the side.” [24] In the trial judge’s view, an Asian male driving a white Honda Accord Sport was not a “distinctive feature” because there are over 4,000 such cars “in the GTA or in Ontario alone.” To the trial judge, the “sheer number of similar looking vehicles in this province has a potential to raise the likelihood of coincidence.” Moreover, the trial judge pointed out that one of the complainants described the car as a light silver hatchback. Also, one person was uncertain if the car had two or four doors. And one described a pattern in the interior of the car that did not match the floor of the respondent’s car. Another could only say that the car was white. [25] As for the evidence of N.B., the trial judge said in his reasons that she had “provided two possible licence plates for the suspect vehicle”, namely BJDZ 484 and BDJZ 484. The trial judge also noted that a police officer had testified that the licence plate number BDJZ 484 was listed as missing and that, therefore, it was “entirely possible that [N.B.] remembered the plate correctly and the suspect was using a stolen or missing plate.” [26] In fact, N.B. did not give BDJZ 484 as the licence plate number. What N.B. actually testified to was that the licence plate was BJDZ 484, although she acknowledged that she has dyslexia and that this may have caused her to confuse her B’s and D’s. And the officer found the respondent’s car – a white Honda Accord Sport car bought in Hamilton – by simply reversing the J and Z, his licence plate number being BZDJ 484. [27] The trial judge also recounted that N.B. had testified that it was the second time she had been approached by this same male, and yet the description she gave of him on the first encounter did not match the respondent’s appearance. Specifically, the trial judge noted that N.B. testified that during the first encounter a few months earlier, the male was wearing a t-shirt and, even though he had a full arm sleeve tattoo, she did not notice any tattoos on him.[2] [28] The trial judge then moved on to consider the cellphone evidence, which he found was “not sufficiently probative”. Although he acknowledged that the evidence did not exclude the respondent, it did not reveal how far the respondent would have been from a cellphone tower when there was a ping. For the trial judge, the evidence was “not corroboratory enough.” [29] Therefore, the trial judge concluded as follows: Ultimately, the lack of consistency between the various counts; the substantial dissimilarities, in terms of the description of the age and of the physical appearance of the accused, other than a Asian male; the time of day; and the location of the incidents, I cannot find on the balance of probabilities and again, the various descriptions of the vehicle, depending on the inside, when it relates to Ms. [L.] and the outside of the vehicle being different to Ms. [M.]. Again, she described it as a light silver hatchback. I cannot find on the balance of probabilities that it was the same person who committed all of these offences. Therefore, I do not admit the similar fact in relation to the two counts before the court [there were three counts] relating to Ms. [L.] and Ms. [M.]. [30] Accordingly, the evidence was excluded and the respondent was acquitted on all counts. D. Analysis (1) Overview [31] Under s. 676(1)(a) of the Criminal Code, R.S.C. 1985 , c. C-46, the Crown may appeal to this court against an acquittal in proceedings by indictment “on any ground of appeal that involves a question of law alone”. [32] The Crown contends that the trial judge erred in law by failing to conduct a holistic analysis of the similar act evidence. Instead of looking at the clear similarities that existed across the various witness accounts, the trial judge focused solely on minor dissimilarities and excluded the evidence based only upon those perceived dissimilarities. Had the trial judge applied the correct analytic approach, he would have noted the striking similarities at work across the seven witness accounts notwithstanding a few minor dissimilarities. The Crown further contends that the trial judge’s erroneous approach resulted in the exclusion of powerful identification evidence, which had a material bearing on the verdicts. [33] The respondent submits that the trial judge did not err in law: he correctly identified the legal test to be applied but found that the evidence called by the Crown lacked sufficient probative value to find, on a balance of probabilities, that the acts in question were committed by the same person. It is not for this court, says the respondent, to revisit factual findings and reweigh the evidence afresh, especially on a Crown appeal. Accordingly, the appeal should be dismissed. [34] As I will explain, I am persuaded that the trial judge erred in law and that his error had a material bearing on the verdicts. (2) Similar Act Evidence [35] The sole issue at trial was one of identity: was the respondent the purported Uber driver offering to exchange free rides for good ratings? Undoubtedly, the Crown needed the similar act evidence to prove its case. [36] Similar act evidence is presumptively inadmissible. The Crown holds the onus of establishing, on a balance of probabilities, that the evidence should be admitted. That onus is met where the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. Although the trial judge did not refer to any case law, he correctly summarized these legal principles. [37] The probative value of the evidence comes from the objective improbability of coincidence: Handy, at paras. 47-48. The prejudice comes from both moral and reasoning prejudice that may result from the admission of the evidence. Moral prejudice concerns itself with whether the trier of fact will decide the case based upon the perceived bad character of the accused. Reasoning prejudice comes from the injection of delay and complexity into the trial: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 65, 68; Handy, at para. 31. Some of these concerns are attenuated in judge-alone trials such as this one: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 88; R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 27, 33; and R. v. MacCormack, 2009 ONCA 72, 95 O.R. (3d) 21, at paras. 56, 68-69. [38] As the trial judge noted, where the proposed evidence is directed at the issue of identity, the law insists upon a “high degree of similarity” or “striking” similarity”: R. v. Arp, [1998] 3 S.C.R. 339, at para. 45; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20; R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 98; and R. v. Atwima, 2022 ONCA 268, 161 O.R. (3d) 481, at para. 39. The reason for a heightened bar for similarity relates to the driver of cogency when it comes to the similar act evidence being used to establish identity: “the improbability that two persons would display the same configuration of matching characteristics in committing a crime”: Perrier, at para. 19; see also, Handy, at para. 78; and Atwima, at para. 39. [39] There exist occasions where acts are so strikingly similar that they will constitute the offender’s signature or trademark: Arp, at para. 45; see e.g., R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at paras. 5, 10, 12, and 24. In those situations where signatures or trademarks do not exist, striking similarities can still arise from an “accumulation of commonalities” that, when considered together, are sufficient to reveal an improbability of coincidence that two or more people would display these matching characteristics: Arp, at para. 45; Handy, at para. 81. [40] In assessing whether the proffered evidence has this cumulative effect, Binnie J. in Handy, at para. 82, provided a list of helpful considerations: (a) proximity in time between the acts; (b) the extent to which they are similar in detail; (c) the number of acts said to be similar; (d) the circumstances surrounding or relating to the acts; (e) the distinctive feature(s) that may be involved in the acts; (f) whether there exist any intervening events; and (g) “any other factor which would tend to support or rebut the underlying unity of the similar acts.” [41] Accordingly, similar act evidence is not considered on a piecemeal basis. Rather, the goal is to consider whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actor. If so, the trial judge must go on to the second stage and determine whether the evidence is linked in some way to the accused: R. v. Woodcock, (2003), 14 C.R. (6th) 155 (Ont. C.A.), at para. 81; Arp, at paras. 54-56. There need only be “some evidence” linking the accused to the acts: R. v. Sweitzer, [1982] 1 S.C.R. 949, at p. 954; Perrier, at para. 24; Durant, at para. 91; and Atwima, at para. 42. To be sure, this is a “low evidentiary threshold”: Jesse, at para. 63. (3) The Trial Judge Erred in His Legal Analysis [42] Although the trial judge stated the overarching legal principles governing the admissibility of similar act evidence correctly, he erred in his analytical approach to determining the probative value of the proffered similar act evidence. Specifically, the trial judge’s assessment of the evidence reveals a clear misapprehension of the law: R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 11; R. v. Hodgson, 2024 SCC 25, 438 C.C.C. (3d) 315, at para. 34; and R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24. [43] Rather than looking at the factors connecting the similar acts to the circumstances set out in the charges – such as proximity in time, similarity in detail, number of occurrences, circumstances surrounding the similar acts, distinctive features unifying the incidents and so on (see Handy, at para. 82) – the trial judge focussed strictly on differences between witness accounts, however small they may have been. At no point did he draw back, as he was legally required to do, and look to the overarching similarities across the witnesses’ accounts. Had the trial judge done so, he would have seen that, despite a few small differences, the accounts were strikingly similar including in relation to what happened, what was said, what the Asian male looked like and what his car looked like. [44] To be clear, there was nothing wrong and much right with the trial judge looking to differences when calibrating the probative value of the evidence. In fact, that was required. But one cannot do this calibration until one looks to the broader picture and first understands the similarities, the strength of which can be diminished by dissimilarities depending on their nature and how many there are. It is here that the trial judge erred in law by failing to consider the similarities that threaded their way through each of the seven women’s accounts. [45] With only a few deviations, the similarities included the following: ▪ the incidents occurred over a two-month period of time ▪ the incidents occurred in the same geographic area ▪ there were seven incidents ▪ the women were walking alone on a street in Hamilton ▪ the women were approached by an Asian male who was on foot ▪ he said he was an Uber driver ▪ he offered them a free ride in return for a good rating ▪ he was driving a light-coloured vehicle ▪ he spoke good English or was easy to communicate with ▪ he was described as being in his twenties or, in the case of one witness who was 36, as being around her age ▪ he was described as slim or, in the case of one witness, of medium build ▪ he was said to be well-dressed [46] As for the three women who entered the car, they were each asked about the size of their breasts and the purported Uber driver touched the breasts of the last two. [47] None of these factors were considered by the trial judge when determining admissibility, including the clear signature that emerged: the purported Uber driver’s cover story. Rather, the trial judge erroneously avoided considering the clear similarities between events. Instead, he homed in almost exclusively on what he considered to be dissimilarities between the events. For instance, he noted the height, age and build differential given by the witnesses, ranging from 5’4’’ to 5’9’’ in height, 25 to 36 years of age and slim to medium/muscular build.[3] He also homed in on what he perceived to be dissimilarities in the way that the car was described, for instance, one of the women saying it was light silver in colour and another saying she thought it may have been a two-door hatchback. [48] Dissimilarities of this nature are to be expected. This has much to do with the power of human observation and, more specifically, the challenges related to making observations that can arise when someone is under stress. Although dissimilarities may negate the degree of similarity required to justify admission, they should not be exaggerated: see e.g., R. v. Powell, 2007 CanLII 4024 (Ont. S.C.), aff’d 2010 ONCA 105, 99 O.R. (3d) 671; MacCormack, at paras. 66, 70. To this end, it is perhaps important to recall what was said in Shearing, that “[a]t microscopic levels of detail, dissimilarities can always be exaggerated and multiplied” which can result in a “distortion” of the broader picture: at para. 60. [49] With respect to the trial judge, that is precisely what happened here. The trial judge ignored the similarities he was required to take into account when calibrating the probity of this evidence, focussing instead only on small dissimilarities. By doing so, the analysis became distorted. [50] For example, although the trial judge is right that a white Honda Accord Sport car is not a unique car, what was unique was what the trial judge excluded from his consideration: the car was driven by an Asian male, a male who approached seven separate women, in the same geographic area, over the same two-month period, and told them that he was an Uber driver and he wanted to exchange free rides for ratings. In the case of each of the three women who got into the car, he asked them about the size of their breasts. By concentrating solely on minor dissimilarities – ones that are expected in any human process of recounting observations – the striking similarity between the accounts was lost. [51] Turning to stage two of the similar act analysis, the trial judge also seems to have gone off course in approaching the linkage evidence. Although he did not clearly demarcate when he was assessing similarities between the acts and when he was assessing whether there was a sufficient evidentiary link to the accused, he referred to evidence that was only relevant to establishing a link to the respondent. In analyzing this evidence, the trial judge appears to have applied a more robust test than what was required, namely that there be “some evidence” linking the accused to the events. [52] For instance, when it came to the cell tower evidence, the trial judge said it was not helpful because it was not “sufficiently probative” or “corroboratory enough”. This begs the question, what did the trial judge think was “corroboratory enough”? In my view, looking at the evidence through a proper legal lens, the cell tower evidence gave rise to “some evidence” of a linkage between the respondent and the events. The evidence was that the respondent’s cell phone was operating in the general geographic area as each act unfolded, in and around the times that those acts unfolded. [53] More importantly, the trial judge appears to have applied a higher threshold test than required when it came to the licence plate evidence. Recall that the final witness, N.B., took down the licence plate number of the white Honda Accord Sport. At trial, she testified that the licence plate number she gave had every letter and number correct, in the sense that it matched the respondent’s licence plate number, but for the fact that two letters needed to be placed in reverse order. [54] Looking at the matter through the correct legal lens, the Crown’s case included sufficient linkage evidence: ▪ the respondent owns a white Honda Accord Sport ▪ the respondent lives in Hamilton ▪ the respondent’s cell phone was operative in the area and at the time of the acts ▪ four of the acts were caught on video surveillance and the white Honda Accord Sport car in the video surveillance matches the respondent’s white Honda Accord Sport car ▪ the licence plate number taken by N.B. had every digit from the respondent’s licence plate with only two out of order [55] In conclusion, the Crown had a strong similar act evidence case. (4) The Legal Error had a Material Bearing on the Verdicts [56] The final question is whether the trial judge’s error, which led to the exclusion of the evidence, should result in a new trial. The answer to this question is “yes”. [57] The burden on the Crown in an appeal seeking to set aside an acquittal is a heavy one. An “abstract or purely hypothetical possibility” that the accused would have been convicted had the error been avoided is not sufficient. But this does not mean that the Crown must prove that the verdict would necessarily have been different: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-15, 19; Hodgson, at para. 36; and R. v. T.J.F., 2024 SCC 38, 99 C.R. (7th) 1, at para. 115. The question is whether the error of law “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: Graveline, at para. 14; R. v. Attard, 2024 ONCA 616, 173 O.R. (3d) 337, at para. 44. [58] In this case, the erroneous exclusion of the similar act evidence directly resulted in the acquittals being entered. This is reflected in the trial judge’s reasons. The key issue at trial was identity. The Crown’s case on identity hinged on the similar act evidence. All but two paragraphs of his reasons address the similar act application. Once the trial judge disposed of the application, he explained the basis of the acquittals in two short paragraphs. As he concluded, “[g]iven the obvious frailties on identity, I must acquit.” In my view, the trial judge’s error at the admissibility stage “seriously undermined” his assessment of whether the Crown had proven the case beyond a reasonable doubt: T.J.F., at para. 117. [59] I am satisfied to a reasonable degree of certainty that had the trial judge applied the correct analytic approach and admitted the evidence, the evidence pointing toward the respondent’s identity as the purported Uber driver would have had a material bearing on the verdict: T.J.F., at paras. 118-119. It would have connected the incidents: N.B.’s testimony about the licence plate would have provided a link to the respondent’s car, and his car would have linked to the surveillance video, and ultimately linked the respondent to the women he was alleged to have sexually assaulted. E. Conclusion [60] The Crown appeal is allowed. The acquittals are set aside and a new trial is ordered. Released: “March 31, 2025 JMF” “Fairburn A.C.J.O.” “I agree. J. Dawe J.A.” “I agree. M.A. Code J. (ad hoc)” APPENDIX A: Similar Act Chart J.H. A.M. T.C. K.G. Z.L. A.P. N.B. Description of the Suspect Asian male? Yes Yes Yes Yes Yes Yes Yes Age between 20-30? Yes Yes[4] Yes No Yes Yes Yes Between 5’4” and 5’9”? (5-inch differential) Yes[5] Yes Yes Yes Yes Yes [6] Yes Thin, skinny build? Yes Yes Not asked No Yes Yes No Facial hair? No No No Not asked No No Yes Hair - Black/dark? Yes Not asked Yes Yes Yes Not asked Yes Hair - Short/faded shave? Yes Yes Yes Not asked Yes Yes Yes Spoke English well and/or no accent? Yes Yes Yes Yes Yes Yes Yes Polite/friendly/calm demeanour? Yes Yes Asked but not answered Yes Yes Yes Yes Glasses? Yes Yes Yes Yes No Yes No Clothing – generally dressed well? Yes Yes Yes No recollection No[7] Yes Yes Description of the Incident Incident within a 2-month time frame? Yes Yes Yes Yes Yes Yes Yes Morning/early afternoon? Yes Yes Yes No No Yes Yes Approached on foot? Yes Yes Yes Yes Yes Yes Yes Reason given = Uber driver to get stars/good reviews? Yes Yes Yes Yes Yes Yes No opportunity given[8] Entered vehicle Yes Yes No No Yes No No Asked how big their breasts were and/or commented on bra size? Yes Yes N/A N/A Yes N/A N/A Door locked? Yes Yes N/A N/A Yes N/A N/A Description of the Vehicle White/light-coloured vehicle? Yes Yes Did not observe the vehicle Yes Yes Yes Yes Honda Accord or Civic? Not asked Yes Not asked Yes Yes Not asked Newer vehicle? Yes Yes Not asked Yes Yes Not asked Tinted windows? Not asked Yes Not asked Yes Yes Not asked [1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46. [2] N.B. testified that she interacted with the same individual in the spring/summer of 2020 and that he had black hair with a crew cut (shorter on the sides and longer on top) and was wearing a black t-shirt, tan pants and a gold cross on a thick chain. When the respondent’s phone was seized and searched, a photo was found which showed the respondent – an Asian male, wearing black glasses, a camel-coloured cashmere coat, and a black shirt with a gold chain overtop. His hair was shorter on the sides. [3] In October 2020, the respondent was 24 years old, approximately 5’10” tall and weighed approximately 161 pounds. [4] A.M. said he appeared to be “under 25” which to her could have been under 20 years old. [5] J.H. said he was “a little bit shorter than me” and she was 5’8” in height. In other words, she could have placed him under 5’4” if her definition of “a little bit” was more than 4 inches. [6] A.P. said “he was tall, taller than me” and she was 5’7” in height. On her testimony then, he could have been taller than 5’9” in height. [7] Z.L. recalled he wore blue jeans and a black hoodie. The rest of the women described him as wearing dress pants, dress shirts, dark jeans, grey slacks, etc. [8] The Uber driver did not tell N.B. that he needed stars or a better rating because the moment he mentioned he was an Uber driver, she “shut him down”.