Court File and Parties

Court File No.: Toronto 4817-998-10-70017439-00

Date: 2012-03-23

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

R. v. Jason Muyco

Before: Justice Feroza Bhabha

Heard on: February 24th, March 12th and 13th, 2012

Reasons for Judgment released on: March 23rd, 2012

Counsel:

Ms Stacey Siopis for the Crown

Ms Jennifer A. McKendry and Ms. Carole J. Piovesan for the accused

BHABHA J.:

A. Introduction

[1] On the 9th of February 2010, Jason Muyco was charged with one count of sexual assault on G.E. arising from an incident alleged to have occurred on January 18th 2010.

[2] Mr. Muyco's trial took place over two and a half days and ended on March 13th, 2012. I acquitted Mr. Muyco at the conclusion of his trial and gave brief oral reasons for my decision. I indicated that I would provide more fulsome reasons indicating how I arrived at my decision. These are the reasons supporting my findings.

B. Overview

[3] At the relevant time, Mr. Muyco was working as a medical assistant at the clinic where the complainant attended for a routine colonoscopy.

[4] The procedure was performed by a Doctor Fisher and the defendant assisted the doctor throughout the procedure.

[5] The complainant, G.E., was sedated but conscious during the procedure.

[6] The complainant alleged that the defendant sexually assaulted him during the procedure in the doctor's presence. He recalled that he was fondled multiple times under a paper drape. On his evidence, the touching could not have been accidental or unintentional.

[7] The defendant testified in his own defence and denied the assault. He had no specific memory of the complainant's procedure. Much of his testimony was focussed on his role and responsibilities during the procedure as well as the positions of the three people in the room at various points before and during the procedure.

[8] The defence called Doctor Fisher who performed the colonoscopy. He testified that, the sedative, Versed, is routinely administered during colonoscopies. As well, a painkiller, Demerol, is also administered to manage pain or discomfort. The complainant received both drugs in addition to a muscle relaxant at the beginning of his procedure intravenously and all at once.

[9] Doctor Fisher had only a partial recall of the complainant's colonoscopy. He corroborated the defendant's evidence as to the different roles and responsibilities of the doctor and the assistant during the procedure. He also testified as to their proximity and respective positions relative to the patient throughout the procedure.

[10] Doctor Fisher gave evidence about the different phases of the procedure and when and how a patient is repositioned to facilitate the navigation of the scope within the colon. It was his evidence that he did not notice anything unusual during the complainant's procedure, nor did the complainant say anything to him during the procedure or immediately afterwards when he escorted him to the recovery room.

[11] The defence also called a psychiatrist who was qualified as an expert in psychopharmacology. He testified that anaesthesia-induced sexual hallucinations are an uncommon but well documented pharmacological phenomenon accepted in the medical community. It was his opinion that the complainant's belief that he was sexually assaulted was most likely attributable to drug-induced hallucinations.

[12] The central issues in this case were the credibility of the defendant and the reliability of the complainant's testimony given the medications that he had administered to him.

C. The Position of the Parties

[13] The defence position was that the defendant's denial was credible and that, in any event, on the totality of the evidence the court should have a reasonable doubt as to the defendant's guilt.

[14] The defence submitted that the allegation was objectively highly improbable given: a) the many responsibilities of the assistant during the procedure; b) the frequent need to reposition the patient during the procedure; c) the very close proximity of the doctor to both the patient and the assistant during much of the procedure; d) the doctor's evidence that he did not notice anything unusual during the colonoscopy; and e) the expert evidence of the hallucinatory side effects of the sedative, Versed.

[15] The position of the crown was that the complainant was both a credible and reliable witness. The complainant asked the court to accept the complainant's testimony that he experienced extreme pain during the procedure and remained conscious throughout. By implication, the complainant's position was that these factors undermined the defence theory that the sedative caused the complainant to hallucinate all of the alleged fondling. The crown's theory was that even though Doctor Fisher was in the room with the defendant throughout the procedure and in close proximity to both the defendant and the complainant, that: a) the doctor's attention was focussed on the monitor, and b) there were brief opportunities for the fondling to take place.

[16] Notably, the crown did not submit that the defendant was an untruthful witness. The crown's submission simply put was that this case was an appropriate case for the application of R. v. W.D..

D. The Facts

D.1 The Complainant's Evidence

[17] Mr. G.E. is forty-four years old. He works as a firefighter. He testified that on the date of the alleged incident he attended at the Upper Canada Lower Bowel Clinic for a routine colonoscopy. It was not his first time having such a procedure; it was in fact his third. He had been a patient of the doctor who performed the procedure for a number of years.

[18] On the day of the incident, he arrived at the clinic at around 9:45 a.m. He testified that he was taken into the procedure room at 9:55 where he met with Doctor Fisher. The doctor explained the procedure to him. In particular, he recalled being told that he would be administered a local anaesthetic during the procedure.

[19] Mr. G.E. recalled that during the procedure he was wearing a hospital-type gown that was open in the back. He was not wearing any clothing underneath the gown.

[20] Doctor Fisher had an assistant who was present during the procedure. Mr. G.E.'s impression of the assistant as relayed to the police was that the assistant was gay. He based this impression on the assistant's voice which to his ears sounded feminine. He told the police that the assistant also had an accent.

[21] The complainant described the assistant as an Asian male with a heavy build, black hair parted to one side. He could not recall the assistant's name or being formally introduced to him. He identified the defendant in court.

[22] The complainant drew a sketch of the procedure room noting where the door and the bed were located within the room. He recalled that after he was asked to lie on his left side, the doctor manoeuvred the scope from behind on one side of the bed while the assistant stood in front of him on the other side of the bed.

[23] He recalled that at one point during the colonoscopy the assistant stroked his forehead with one hand in what he described as "a motherly fashion". He also testified that at the same time that the assistant did this he also stroked the complainant's penis with his other hand.

[24] The complainant denied that the pain medication and the sedative had the expected effects. He recalled that unlike his other colonoscopies, on this occasion he was in "excruciating" pain during the procedure and was awake throughout as a result.

[25] While he conceded that a person's level of awareness could be dulled by the medications, he did not feel that to be the case with him on this occasion. He also denied the possibility that he was sweating from the pain and that the assistant could have merely been wiping the sweat from his brow.

[26] Mr. G.E. recalled that the assistant stroked his penis and cupped his testicles on four to five separate occasions during the procedure. The stroking lasted for up to ten to fifteen seconds whereas the cupping lasted from five to ten seconds. In between the fondling, the assistant applied pressure to his abdomen, as directed by the doctor.

[27] On cross-examination, Mr. G.E. recalled that every time he was fondled he was lying on his left side and that Doctor Fisher was in the room the entire time.

[28] He also recalled that all of the fondling happened under the paper sheet with the assistant's gloved hand. He never actually saw the assistant fondle him.

[29] Mr. G.E. was adamant in cross-examination that the medications did not cause him to imagine the fondling. He maintained that he did indeed actually feel the doctor's assistant touch him inappropriately on each of the four to five occasions.

[30] The complainant recalled that the doctor appeared focussed on the wall-mounted screen facing the doctor. It was five to six feet away. He conceded that the doctor gave the assistant instructions throughout the procedure.

[31] The complainant testified that he did not say anything about the fondling to the doctor or the assistant at the time because he was focused on the pain and the procedure itself. He thought at the time that this could not be happening to him.

[32] The complainant denied in cross-examination the possibility that his certainty about any sexually inappropriate behaviour only crystallized after the incident. He denied that when he told the police words to the effect that "during the procedure I was fondled which I believed afterwards was inappropriate" suggested that he was uncertain at the time. He attributed his choice of words to being inarticulate. In his words: "I put it the way I put it".

[33] Mr G.E. acknowledged that after the procedure when he was no longer in pain or under the effects of the sedative that he did not make a complaint about the assistant to the doctor even though he had an opportunity to do so as he was escorted out of the room by the doctor. He explained that there were other patients in the area on the way to or in the recovery room which meant there was no privacy.

[34] The complainant explained that after the procedure he returned to the fire hall and disclosed the incident to his colleagues. He also spoke to a friend who is a police officer: Detective Barnes, the investigating officer's partner. Mr. G.E. testified that the reason for his delayed formal disclosure to the police was because he wanted to speak to his wife about the matter and also because his friend Detective Barnes suggested he speak to the doctor first.

[35] The complainant was asked very pointedly in cross-examination how finding out the assistant's role beforehand from the doctor could possibly be relevant to a complaint of sexual assault of the nature here. When asked if he needed to be a medical practitioner to know if fondling was part of the procedure, Mr. G.E. explained "that is why I asked for clarification".

D.2 Doctor Fisher's Evidence

[36] Doctor Murray Fisher is a gastroenterologist. He owns a medical practice at the clinic where the complainant was his patient.

[37] He identified a series of photographs depicting the layout of the waiting area, as well as examination room #2 where the complainant was scoped on the day in question. These were marked as exhibit 2-1 to 2-16. In the series of photographs one can see, amongst other things, the location of the bed/table, the screen, a trolley, monitoring equipment, two chairs, a sink, a scale, a countertop underneath the screen, as well as the position of the single door leading into the room. The location of the door in the photographs is different from the complainant's recollection as depicted in his drawing in exhibit #1.

[38] Doctor Fisher did not have a clear recollection of the complainant's procedure. On his evidence, Mr. G.E.'s colonoscopy was a fairly routine and ordinary procedure. He could only recall one particular aspect of it: the defendant crouching to wipe the patient's perspiring brow. Much of his evidence related to the clinic's general practices and procedure and the various steps in the colonoscopy procedure itself. He also described his role and that of the assistant as well as their interactions, and physical positions during the procedure. With very few exceptions, his evidence corroborated the defendant's.

[39] The doctor testified that the patient is usually met by the assistant and escorted into the examination room where preliminary questions are asked of the patient. The patient is then weighed and his blood pressure and pulse are taken. The patient is asked to undress from the waist down and to get under the paper drape on the table. The assistant leaves while the patient undresses. All this happens before the doctor arrives.

[40] Doctor Fisher testified that in 2010 the Upper Canada Lower Bowel Clinic did not use the hospital-type gown described by the complainant. As well, patients are only ever asked to undress from the waist down. Patients are encouraged to dress comfortably and they wear their own clothes from the waist up.

[41] Once the doctor is in the room, the sedation is administered. The sedation is prepared by the assistant beforehand. The patient is under a paper drape at all times for privacy.

[42] The complainant's chart shows that the normal procedures were followed in terms of the pre-scope stage. The doctor recognized the defendant's distinctive handwriting on the complainant's record for the date in question noting the patient's blood pressure, weight, and pulse.

[43] The complainant's medical records indicate the medications he received prior to the procedure: Versed, Demerol and Buscopan, a smooth muscle relaxant. These were administered intravenously and bolus, but with a separate syringe for each medication.

[44] Doctor Fisher testified that Versed is a sedative while Demerol is a painkiller. The doses administered to the complainant on January 18th, 2010 were standard doses: 1.5 mg of Versed, 75 mg of Demerol and 20 mg of Buscopan. With the exception of the Buscopan, medications and doses administered were the same as had been administered to the patient on two prior procedures.

[45] The doctor explained in cross-examination that the reason that the complainant was administered Buscopan in addition to the other medications on this occasion was because he was quite tense. He explained that Buscopan does not affect the patient's "cerebration"; it just relaxes the bowel.

[46] The medications take effect within a minute and the patient typically becomes subdued.

[47] Doctor Fisher prepared a diagram of the colon in order to explain the different stages of the procedure as they relate to when and why the patient has to be repositioned. He testified that the typical patient is manoeuvred into five or six standard positions during the colonoscopy. On average the patient remains in each position for 2-3 minutes.

[48] Doctor Fisher explained that the sedation is administered when the patient is on his back. Once the patient is sedated he is asked to face the screen and to shift to the patient's left side. After the doctor performs a digital rectal exam, the area is prepared for the scope and the scope is inserted into the patient's rectum.

[49] Doctor Fisher noted that the assistant stands behind him at the beginning of the procedure. Once it starts, the assistant brings the trolley into position near the foot end of the bed closer to the doctor. The doctor conceded in cross-examination that the focus of his attention is directed to the monitor but he maintained that the monitor does not occupy him full time.

[50] While the patient starts out on his left side, as the doctor moves up the colon to the sigmoid, the patient has to be repositioned onto his stomach. The patient is face down at this time and usually has little difficulty getting into this position.

[51] However, when the doctor gets to what is known as the splenic angle the patient has to get on his right side. The assistant often has to assist with bringing the patient's hand underneath them. The patient is now facing the doctor and away from the screen. The next position has the patient on his stomach and then when the scope is near the hepatic angle the patient is repositioned again. This repositioning happens again until the final step when the patient is on his right side when the removal process takes place.

[52] Doctor Fisher testified that the entire procedure lasts from fifteen to thirty-five minutes and no two examinations are the same.

[53] Doctor Fisher also described in detail the duties of the assistant during the procedure. He had previously reduced this explanation to writing in a document entitled "Duties of the nurse during colonoscopy". He had previously provided it to the police.

[54] Doctor Fisher testified that it is not uncommon to perform a number of procedures in a day, back to back. His evidence, which was confirmed by the defendant, was that the nurse or assistant is very busy during the procedure and does not have any spare time.

[55] At the beginning of the procedure, the assistant is positioned at the foot of the bed or near the sink. The assistant moves up and down in the area between the table and the screen. He is at either end but not in the middle of the table where he would obscure or interfere with the doctor's ability to see the screen. The assistant is in the area of the patient's knees only when changing the patient's position.

[56] Doctor Fisher could not recall if the defendant had to assist in flipping the complainant onto his stomach, but the repositioning is easily done. If the patient needs help with extending his legs while repositioning him, the doctor assists.

[57] As well, during the procedure, if the scope becomes looped, the assistant is asked to apply pressure on the abdomen depending on the particular corner being navigated. When this is happening, the doctor and the assistant are in constant communication and the doctor can see on the screen where the pressure is being applied and if it is being effective. Any pressure applied is always applied over the sheet, not under the sheet. The more pain the patient is in the more frequently pressure needs to be applied.

[58] Doctor Fisher testified that he never saw the defendant's hands near the complainant's genitals. He described the genital area as being generally not easily accessible given that the patient's knees are bent and the patient's arm or arms are in the way. Doctor Fisher testified that fifteen seconds is a long time. If anything unusual or strange were happening he would expect to notice it. Although his focus is on the screen he has peripheral vision and often looks at the assistant when communicating with him.

[59] Doctor Fisher testified that he never once during the procedure saw the defendant touch the patient inappropriately. The assistant would have been no more than three feet from the doctor on the opposite side of the bed.

[60] When asked in cross-examination if it was possible that the patient's genitals could be touched while being repositioned, Doctor Fisher's responded that it is "highly unlikely". He noted that he had performed over twenty thousand colonoscopies and had never heard of that happening. In his words, "I cannot buy that as a possibility //…// I cannot imagine it happening".

[61] Doctor Fisher further explained in cross-examination that for approximately 85% of the procedure, the patient is out of reach of the assistant. In light of that and the multiple tasks performed by the assistant, it was his opinion that the scenario suggested by the prosecution was not very likely.

[62] As noted at paragraph 38 above, Doctor Fisher's only specific recollection of the complainant's procedure was seeing the defendant squatting at the head of the table mopping sweat from the complainant's brow. He did not agree with the complainant's description of it as a "motherly" gesture, nor did he see the defendant's other hand extended, or near the patient's genitals. Doctor Fisher described the defendant's action as simply something that nurses do to keep a patient comfortable.

[63] Doctor Fisher rates each colonoscopy he performs on a scale of 1-10 with 10/10 reflecting extreme ease with which the procedure was carried out. He rated this particular colonoscopy an 8/10, the same as the patient's second colonoscopy even though the patient experienced more pain on this occasion. He recalled that the complainant was perspiring and verbally indicated his discomfort. However, it was not so negative that the doctor ever considered abandoning the procedure.

[64] Doctor Fisher also testified that during the colonoscopy, aside from carrying out tasks specific to that particular procedure, such as documenting data relating to the patient and the procedure, checking the monitor, the assistant also typically completes tasks related to the previous procedure and prepares for the next procedure as well. For example, the scope from the previous procedure is cleaned, and the medication for the next procedure is prepared. This leaves little idle time for the assistant.

[65] Lastly, Doctor Fisher denied the suggestion that he had an interest in suppressing or minimizing a complaint of sexual assault because it would be bad for business or his reputation. He said if he saw a sexual assault occurring, he would report it. He denied any concerns about civil liability as the doctor who supervised the defendant. He noted that the clinic is insured and he and his employees are covered for legal costs to defend such a claim under the Canadian Medical Protective Association ("the CMPA").

[66] The doctor testified that he continues to employ the defendant at the clinic but at the defendant's own request the defendant no longer has direct contact with patients.

D.3 The Defendant's Evidence

[67] Mr. Muyco is twenty-nine years old and is from the Philippines. He obtained a diploma in nursing in 2002 in the Philippines. It was a four-year general nursing degree. Thereafter, he worked as a registered nurse in the intensive care unit of a hospital for four years before immigrating to Canada in September 2006.

[68] He worked as a live-in caregiver looking after children for two years until he got his temporary residence. He started working at the UCLB clinic in 2009. He received two weeks training. His sister also works at the clinic. That was his connection to the clinic.

[69] The defendant denied fondling the complainant. Although it was atypical for him to work with Doctor Fisher, he testified that he had no specific recollection of the complainant's colonoscopy. He did not remember Mr. G.E. at all, nor did he have any recollection of this particular day.

[70] At the time of the complainant's procedure, the defendant worked at the clinic two to three days a week and was usually assigned to work with Doctor Dicum. On average, Doctor Dicum performed eight procedures a day that were booked forty-five minutes back to back. On a typical day the defendant arrived at the clinic at 7:00 a.m. as the first procedure is scheduled for 7:30 a.m.

[71] Mr. Muyco described himself as "meticulous" and someone who enjoys being organized. He described in detail how he prepared the room, the equipment and the needles for the medication at the start of each day: he replaces and counts out the supplies he will need, makes sure the scopes are scrupulously clean and all machines are functioning.

[72] After the room is readied, he collects the patient after getting the chart from reception. He then asks the patient to confirm their date of birth and tries to put them at ease before taking them to the procedure room. There he takes the patient's blood pressure, pulse, and weight, all of which he records in the patient's chart.

[73] Mr. Muyco confirmed Doctor Fisher's evidence that he has never provided a hospital-type gown to a patient. The patient is given is paper sheet and told to remove their clothing from the waist down.

[74] He testified that once the doctor arrives he assists with the intravenous administration of the medication by securing the needle with the tape. The patient is then asked to lie on his left side. When necessary, he assists the doctor to position the patient by moving the patient's legs. He then moves the trolley to the foot end of the bed. At this initial stage of the procedure he stands behind the doctor to provide the doctor with the lubricant and finger "cot" the doctor uses to perform the digital rectal exam.

[75] After the assistant flushes water in the colon scope, the doctor inserts the scope into the patient's rectum. At this time the defendant goes to the trolley where the keyboard is to enter information onto the monitor. He then proceeds to the working area (the counter) where he records the amount of sedation administered. This is recorded in a separate notebook.

[76] While the doctor proceeds with the scope, he prepares supplies and medication for the next patient as well as cleans the scope used on the prior procedure, unless the doctor requires his assistance. If assistance is needed, it is either to reposition the patient or to apply pressure to the abdomen when the doctor experiences a loop or resistance in advancing the scope. Given the multiple tasks performed, if assistance is needed, the assistant's gloves have to be removed and fresh ones put on.

[77] The defendant explained that the most of the time it is the doctor who is moving the patient and he simply assists the doctor with that task.

[78] Mr. Muyco readily conceded in cross-examination that when repositioning a patient he may need to touch a number of places on the patient's body. He testified the majority of the time he is moving the arms and sometimes the legs. For most of the procedure the patient's knees are bent. When moving the lower body, his hands are on the patient's knees or feet. When he moves the patient's legs, he is at the foot end of the bed.

[79] When pressure is applied to the patient's abdomen, the assistant is in constant contact with the doctor to make sure the doctor's instructions are being followed. He also advises the patient that pressure will be applied before doing so. He will check the monitor to make sure pressure is in fact being applied at the location of the loop. Depending on where he is standing, he may need to bend slightly to be careful not to obscure the doctor's view of monitor.

[80] Mr. Muyco testified that he uses two hands to apply pressure and demonstrated with one hand placed over the other, fingers interlaced, using the heel of the bottom hand. In cross-examination, he testified that he could not recall ever using one hand, when applying pressure.

[81] Pressure is usually applied to the lower left quadrant of the abdomen. Mr. Muyco did not hesitate to concede in cross-examination that it would be possible to inadvertently come into contact with the genital area when applying pressure to this area.

D.4 The Expert Evidence

[82] Doctor Joseph Jeffries is a staff psychiatrist at the Centre for Addiction and Mental Health. He obtained his medical degree in Ireland in 1963. He has been practicing psychiatry since 1969, and is a member of the Royal College of Physicians and Surgeons. He was nominated as a Fellow of the Canadian Psychiatric Association in 2009 and has since been elevated to "distinguished fellow" of the same association. He was appointed as an associate professor of psychiatry in 1978 and of pharmacy in 1983.

[83] He has for most of his professional career had a special interest in medications. He was Chairman of Pharmacy and Therapeutics Committee at the (then) Clarke Institute. His particular area of specialty is psychopharmacology.

[84] In 1998, Doctor Jeffries developed a handbook for nurses called Clinical Handbook of Psychotropic Drugs. He continues to be a co-editor of the clinical handbook, which is recognised as the authoritative handbook on psychotropic drugs.

[85] Doctor Jeffries testified that he has been qualified to give evidence in the area of psychopharmacology in both the criminal courts and civil arenas between fifteen to twenty times.

[86] He was qualified as an expert in the area of psychopharmacology and proffered his expert opinion in this case.

[87] Doctor Jeffries testified that in July of 2010, he prepared an opinion on whether the intravenous administration of the drugs Versed and Demerol during a colonoscopy may have induced the complainant's sexual fantasies or hallucinations.

[88] Doctor Jeffries explained that he has always had an interest in benzodiazepines. Valium or diazepam belongs to this family of drugs. Diazepam is like Versed. Versed is the brand name of a drug known as midazolam, which is a benzodiazepine. It is used by anaesthetists, and also by dentists during dental surgery and by doctors performing endoscopies. It is a sedative. It makes you sleepy. Demerol is a narcotic that is a popular painkiller. It too has a sedative effect.

[89] Doctor Jeffries referred to the seminal work of a Professor Dundee, a dentist in the U.K., who has published most extensively on the subject and is referenced in his opinion.

[90] Doctor Jeffries in arriving at his opinion reviewed the verbatim transcripts of the complainant and of Doctor Fisher. He also relied on his broad knowledge in the field as well clinical handbooks and related articles on the subject.

[91] Doctor Jeffries gave evidence of a clinically recognized pharmacological and psychological phenomenon, where anaesthetics, particularly Versed, administered intravenously can induce sexual fantasies or sexualized false memories of being molested. The phenomenon is not common, but it is a clinically recognized side-effect of the drug.

[92] In the doctor's professional opinion:

the medication-induced experiences such as may have occurred in this instance are a distinct phenomenon, with sexual arousal occurring under narcosis and a dream-like experience of sexual happenings with a diminished capacity to recognize them as "dreamed", so that they are actually believed by the patient to be true, much like a psychotic patient's imaginings become delusions. The content is sometimes influenced or heightened by physical sensations.

[93] The doctor explained that when the paper sheets or drapes used during the colonoscopy move and rub against the genitalia this could have been misperceived as sexual stimulation. He also considered the fact that the colonoscopy procedure itself involved the insertion of a scope into a sexualized area of the body and this could have been a factor in the patient's misperception.

[94] Doctor Jeffries testified that the administration of Demerol may have had a synergistic effect. Had the patient actually fallen asleep, he may not have had any memory of the procedure. The fact that the patient still perceived pain or discomfort means that he was likely only half-asleep, making him more susceptible to sensory misperceptions.

[95] Lastly, Doctor Jeffries explained that the patient who awakens from a semi-conscious or twilight state may have a fragmented "recollection" which he will then try to make sense of. The fact that the complainant perceived the defendant to be gay, could have fed into the misperceived stimulation especially if he was trying to make sense of it all after the fact.

E. Applicable Legal Principles

[96] The legal burden of proof is on the crown. It remains on the crown and never shifts. An accused person does not have to prove his innocence.

[97] In every criminal case the accused person is presumed to be innocent, unless and until the crown proves each essential element of the offence beyond a reasonable doubt.

[98] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It was not enough for me to believe that Mr. Muyco was possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, I am mindful that reasonable doubt does not require the crown to adduce proof beyond all doubt, nor is it proof to an absolute certainty.

[99] The court must weigh and consider the totality of the evidence and after this is done, the court must ask the question: has the crown proven the alleged offence against the accused beyond a reasonable doubt?

[100] As I noted at the outset, one of the main issues in this case is credibility. It is not always an easy task. The court must consider many factors including the witness's powers of observation, his memory, the passage of time, interest in the outcome, demeanour and the reasonableness or probability of a particular version of events, particularly against the backdrop of uncontroverted facts. A witness may testify to what he sincerely believes is true, yet he may be honestly mistaken.

[101] It has been said that in cases where the evidence is conflicting, credibility cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the existing conditions. The real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A) at pages 356 to 357.

[102] In assessing the credibility of the witnesses in this case, I reminded myself of the principles articulated by the SCC in R. v. W.D.:

1st: If I believed the evidence of the accused, I was required to acquit him.

2nd: If I did not believe the testimony of the accused but was left in reasonable doubt by it, I was still required to acquit him.

3rd: Even if I was not left in doubt by the evidence of the accused, I was required to ask myself whether, on the basis of the evidence which I did accept, I was convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[103] Lastly, it bears noting that the direction given the by the Supreme Court of Canada in R. v. W.D. does not apply to each piece of evidence individually but rather to the evidence as a whole.

F. Analysis and Findings of Fact

[104] Firstly, applying the principles in R. v. W.D., I found the defendant to be a credible and forthright witness. He denied fondling the complainant and had no specific recollection of Mr. G.E.'s procedure on the day in question.

[105] I considered whether his claim of having no memory of Mr. G.E.'s colonoscopy was a convenient excuse to avoid detailed and potentially perilous questions about the events in question and the possibility of contradicting himself or being contradicted by Doctor Fisher's evidence. I concluded that it was not.

[106] It makes sense that he would not have a specific memory of a routine or ordinary procedure he assisted with three weeks before he was made aware of the complaint. Mr. Muyco works at a clinic that specializes in colonoscopies. On the undisputed evidence, on average he assisted with eight procedures a day, two to three times a week. The colonoscopies are booked back to back forty five minutes apart. He would therefore have assisted with dozens of colonoscopies between the 18th day of January – the day of the alleged sexual assault and the day of his arrest three weeks later. Unless the procedure or patient was unusual in some respect, the failure to recollect the event in detail or at all is neither unexpected, nor suspect in the circumstances.

[107] Doctor Fisher described Mr. G.E.'s procedure as a fairly routine one. He assigned it a rating of 8 out of 10 in terms of ease with which he completed the procedure. That is some indication that the procedure was not, for the doctor at least, unusual or particularly memorable. He too was unable to recall any specific details save for the defendant mopping the complainant's brow.

[108] I listened carefully to Mr. Muyco's evidence and he appeared to me to be a sincere witness. It would be a fair characterization of his evidence to say that much of what he described about his role as an assistant spoke to whether he had the opportunity to fondle the complainant multiple times during the procedure while in close proximity to Doctor Fisher without being detected. The objective improbability of the complainant's account was an important consideration in assessing the credibility of Mr. Muyco's denial.

[109] To illustrate, I accept the undisputed evidence that the responsibilities of a medical assistant attending on a colonoscopy at this clinic are such that there is little to no opportunity to touch a patient under the paper sheet for periods of up to ten or fifteen seconds without being detected by the physician. As well, the assistant in order to have access to the patient's genitals would have to be positioned immediately in front of the doctor, and apart from potentially blocking the doctor's view, would also risk detection given that anytime a patient is touched for the purposes of applying pressure to the abdomen, the touching occurs over the sheet.

[110] Another important consideration in assessing the defendant's credibility is the evidence that for most of the procedure, the patient's genitals are not readily accessible, either because the patient's knees are bent or flexed or because the patient's upper limbs prevent easy access.

[111] I also considered that Mr. Muyco made concessions where it was reasonable to do so. He admitted, for example, that it was possible (but unlikely) that a patient's genital area could be inadvertently touched during a procedure. This evidence was potentially more damaging to him than Doctor Fisher's testimony. Doctor Fisher maintained that such a scenario was highly improbable and that he had never heard of such a thing happening in the many years of his practice.

[112] The defendant was not shaken in cross-examination. There were no internal inconsistencies in his evidence. In fact, the crown conceded that his evidence appeared to be sincere and credible. Neither were there any inconsistencies between his evidence and that of Doctor Fisher as to the practices and procedures at the clinic and Mr. Muyco's role during a colonoscopy.

[113] Having concluded that Mr. Muyco was a credible witness whose evidence I accepted, it was not, strictly speaking, necessary for me to proceed to the second stage of the R. v. W.D. analysis.

[114] I, nevertheless, did carefully assess the complainant's evidence against the totality of the evidence. The complainant struck me as a witness who was sincere in the belief that he was assaulted. I was mindful that a sincere witness could be an honestly mistaken witness especially in light of the uncontroverted medical evidence about the normal and expected effects of sedatives, in addition to the expert evidence, which I accepted, of the more uncommon side-effect known as sedative induced hallucinations.

[115] I considered that Mr. G.E. did not have a very clear recollection of many of the details of his visit to the clinic on the day in question. Unlike Mr. Moyco, this was not an everyday occurrence for him. One would expect a sharper or better memory of the details of the incident and the circumstances surrounding it, especially those events preceding the administration of the medication. For example, Mr. G.E. could not recall who greeted him before he went into the procedure room. Neither did he recall that it was the defendant who took his blood pressure, pulse and weight in the room immediately prior to the procedure. Yet, his medical chart confirms that these details were in fact recorded by the defendant.

[116] Similarly, Mr. G.E.'s testimony was that he recalled having been administered a local anaesthetic, not a general anaesthetic. The undisputed evidence is that he would have been face up when the medication was administered to him intravenously, and that the defendant would have been the one to tape the needle to the patient's arm.

[117] Given the sedative effects of the medication he was administered prior to the procedure and the state of "conscious sedation" described by the Doctor Fisher and Doctor Jeffries, the reliability of the complainant's evidence had to be the focus of my assessment of his evidence.

[118] After carefully assessing Mr. G.E.'s evidence against the totality of the evidence that I did accept, I found that even if I had rejected the defendant's evidence, I would have nevertheless have had a reasonable doubt about the defendant's guilt based on: a) my concerns about the reliability of the complainant's evidence; and b) the expert evidence that the hallucinatory side-effects of the anaesthesia could explain the complainant's tactile perceptions.

[119] In addition to the complainant's spotty memory of the events immediately preceding his colonoscopy, in assessing the reliability of Mr. G.E.'s evidence, I also considered the following:

1) Mr. G.E. recalled that he was on his left hand side for most of the colonoscopy and that he was in that position on every one of the four to five times he was fondled throughout the procedure. This is at odds with evidence of both Doctor Fisher and Mr. Muyco. Both the doctor and the defendant testified that the patient is positioned or repositioned up to five or six times during the procedure. The patient starts out on his left side and remains in that position for two to three minutes before he is asked to move onto his stomach. From there he moves back to his right side and back to his stomach, before being moved yet again to his left side. Finally, when the scope is withdrawn, a process that could take several minutes, the patient is usually lying on his right side facing the doctor.

If Mr. G.E. was mistaken about how long he was on his left side but correct about being fondled in this position, then the opportunity or possibility that he was in fact fondled was reduced from four times to possibly once. The undisputed evidence was that at the start of every procedure, when the patient is facing the screen and lying his left side, the assistant is located behind the doctor or is near the trolley at the keyboard and thus out of reach of the patient's genital area. That left only one other occasion when the complainant was on his left side. That is when the hepatic angle was being scoped. This occasion would have to be the one where his brow was being stroked. For the reasons given below, I find that that event did not occur as Mr. G.E. recalled it. In any event, if Mr. G.E. was mistaken about the position he was in when the fondling took place, or how many times it occurred these discrepancies in and of themselves cause a doubt about his accuracy and reliability of his evidence;

2) I considered the complainant's evidence that defendant touched his forehead in "a motherly fashion". This evidence was corroborated in part by Doctor Fisher who testified that he recalled seeing the defendant mop perspiration from Mr. G.E.'s brow once during the procedure. He did not describe it as motherly. Doctor Fisher recalled that the defendant was crouched near the complainant's head at the time. This seriously undermined the complainant's evidence that he recalled that the wiping of the forehead occurred simultaneously with the fondling of his penis. I accept Doctor Fisher's recollection as the more reliable account. It also lends credence to Doctor Fisher's evidence that his attention is not always focussed on the screen and that, in any event, he has peripheral vision. Firstly, I consider that Mr. G.E. was under sedation at the time. Secondly, it would not have been possible for the defendant to have been crouched at one end of the bed and at the same time to surreptitiously have reached all the way over with the other hand to fondle the complainant's penis under the sheet. Even if it did happen as the complainant recalled it, this would have been an unusual position for the assistant to be in both hands reaching in opposite directions one stroking or wiping the head over the sheet, and one stroking the penis under the sheet. I find that such a posture would not likely have escaped the Doctor's notice;

3) Mr. G.E. appeared certain in his testimony that he was given a hospital-type gown to wear during the procedure and that he was completely naked underneath the gown. Yet, the evidence of both the doctor and the defendant was that not only do they not use hospital-type gowns at the clinic, patients wear their own clothes from the waist up. They are only ever asked to remove their clothes from the waist down. I accept the doctor's evidence and this important detail also caused me call into question the complainant's reliability;

4) Mr. G.E.'s recall of the layout of the room, and the location of the door was at odds with the photographs tendered by the defence through Doctor Fisher of the procedure room where the colonoscopy took place. This may appear to be a relatively minor detail, but it is one that I did consider when assessing the complainant's reliability. The positioning of the assistant, the doctor and his own position and orientation on the bed within the room I find were central to his testimony of how and when the assault took place. I asked myself: if he was mistaken about some irrefutable details, might he also be mistaken about others?

5) The complainant did not make any complaint at the time of the assault or within days of incident. In the normal course of deliberating over an allegation of a sexual assault, absent an allegation of recent fabrication, it would be an error of law to consider the absence of a recent complaint. For some time now, the law no longer requires a recent complaint to be made in cases of alleged sexual assaults. However, on the evidence, there is more than an available inference in the particular circumstances of this case that the three week delay was because the defendant may have had doubts himself of what he actually recalled happening during the procedure. I did not accept the complainant's explanation that he is inarticulate and that is why he expressed himself the way he did to the police. His ambiguous language in reporting the incident to the police suggests to me that his certitude that an impropriety occurred only crystallized sometime after the procedure, after he had time to reflect on it and piece it together in the manner described by Doctor Jeffries. If there was no doubt that several instances of sexual impropriety occurred during the medical procedure in the doctor's presence, it makes no sense to me to go back to the doctor to seek clarity about the role and responsibilities of the assistant and then to wait several weeks before making a formal complaint. Given the nature of the fondling described as well as the duration, there could not objectively have been any doubt in the mind of any reasonable person that the alleged activity fell well outside the scope of the assistant's duties.

G. Conclusion

[120] I accepted the defendant's evidence as sincere and credible and acquitted him on that basis. I assessed his denial of any sexual impropriety in light of the objective improbability of multiple incidents of undetected fondling in the presence and close proximity of a doctor during a medical procedure where he was required to perform multiple tasks and take direction from the physician.

[121] For all of the reasons set out above, I concluded that even if I had rejected the defendant's denial, there were too many frailties in the complainant's account such that it would have been extremely unsafe to convict the defendant based on the complainant's evidence alone. In short, it was primarily because of the effects of the medication on his ability to accurately recall the events of the day in question that I found his testimony to be unreliable.

[122] At the conclusion of the trial I determined that the crown had failed to satisfy me beyond a reasonable doubt of Mr. Muyco's guilt. I therefore found the defendant, Jason Muyco, not guilty of the count of sexual assault on G.E.

Released: March 23, 2012

Justice Feroza Bhabha