Court File and Parties

Court File No.: Central East – Newmarket – 15-01503 Date: 2015-08-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — J.G.

Before: Justice P.N. Bourque

Counsel:

• M. Montemurro, for the Crown
• P. Nielsen, for the defendant J.G.

Judgment

Released on August 6, 2015

Overview

[1] The defendant is a PSW worker at a nursing home. She assists in the care of elderly ill patients, some with Alzheimer's and dementia.

[2] A fellow PSW worker alleges that in the course of giving a patient a shower, the defendant pushed with her hand against the head of the patient three times and thus committed an assault.

Crown's Case

Witness S.J.

[3] S.J. is a PSW worker of some experience at the nursing home. She stated that she worked with the defendant J.G. who was also a PSW worker and their shifts overlapped in the morning.

[4] The witness states that she went into the room of a patient H.L. and the patient was standing naked in her room and there was feces throughout the room. She knew this patient to have Alzheimer's and to be agitated sometimes and would sometimes become angry and mad and refuse her care. She called for help as she wished to give H.L. a shower and clean the room. J.G. came shortly and the witness asked her to get the "shower chair" and the defendant did.

[5] H.L. sat in the shower chair and the defendant took her to the shower room. The witness stated that some short time after they left the room, she heard H.L. screaming. This screaming ultimately did not stop until H.L. was taken out of the shower room some 10 minutes later.

[6] She states that she went briefly to the shower room and "peeked" inside and then went back to H.L.'s room to get clothes for H.L. She returned and went into the shower room. She saw the defendant standing near H.L. and was giving her a shower. The defendant was standing in front of H.L. who was in the shower chair. She could only see one side of H.L.'s face. She stated that she was in that room for a few seconds. She stated that she looked over for a few seconds and she said that she saw the defendant "push" H.L.'s face some 3 times. She did not describe it in court as a slap or punch. She did not give any indication of the force of the push. She did not give any verbal indication of how far H.L.'s head may have moved. (I note that there was no indication that H.L. had any visible or diagnosed injuries from this action).

[7] The witness left the room and went to H.L.'s room where she continued to clean it. The defendant brought H.L. to the room several minutes later and left her outside the door in the shower chair. H.L. was dressed.

[8] The witness did not speak to the defendant about any of this and some half-hour later stated that she spoke to the nurse about it. She was interviewed by the police later that day. The witness gave evidence about training for difficult patients and the fact that a PSW can call for assistance by pulling a call rope in the shower room.

[9] In her cross-examination, I noted that she went to great pains to try and describe why, when she saw this incident, she did not summon the nurse or indeed speak to the nurse soon after it happened. I do not think her explanations ring true.

[10] She also admitted that the motion she saw from the defendant on the face of H.L. could have been the motion of the defendant wiping the face of H.L. to get off the feces.

[11] With regard to her description of the action as a push, when she was interviewed by the police, she also said it may have been a slap or a hit. It would appear that most of these other words were suggested to her by the police and I believe she told them it was a "push".

[12] Exhibit 1 is video footage of the area outside the shower room. The defendant and the witness S.J. are seen going to and from the shower room in the approximate sequence the witness describes. There is no sound. With regard to her first attendance at the room, she is getting "wipes" and taking them into the room.

[13] Crucially with regard to the time, she could have observed these actions of the defendant, she was in the room for a total of 5 seconds and she admitted that she went to the table in the room and put down H.L.'s clothes before glancing up to make that observations, which are the center of her testimony. In my opinion, the time she would have observed the defendant would have been no more than two seconds. I believe that the video footage is useful in observing the demeanour of the witness S.J. and the defendant. The defendant seems at all times to be slow and deliberate in her movements in contrast to the S.J. who moves quickly. I will comment on this later in the judgment.

Witness C.S.

[14] C.S. is an administrator at the nursing home. She described the training programs for PSW's and also the protocol if residents are resisting care. It was the gist of her evidence that if a resident is resisting, to stand back and wait for them to calm down and if that does not work, to summon the nurse who is available to sedate the resident if need be.

Defence

[15] J.G. testified in her own defence. She has been a PSW worker for 12 years at that nursing home and has had H.L. in her care since H.L. came to the nursing home in 2011. She stated that she knows H.L. very well and does not describe her demeanor that night as anything really out of the ordinary. She regularly swears and becomes agitated and on many occasions she urinates and soils herself at night. On this night, before the incident which forms the subject of this charge, the witness attended on three other occasions to change the clothing and bedding of H.L. (at 11:45, 2:00 and 5:15) and to "clean her up" although this final occasion occasioned a much larger amount of soiling which was spread about the bed and room and indeed the person of H.L. It required that H.L. be given a shower.

[16] The witness stated that she was summoned by S.J. and when she attended H.L. was sitting on the bed. There was feces all over her body, including her face and hair. The defendant went and opened the shower room and got a shower chair. She wheeled it into the room and she and S.J. put H.L. onto the chair and she wheeled her into the shower room. She stated that H.L. banged on the door as they went through (as noted on the video evidence).

[17] She stated that H.L. was waving her arms and acting out in such a fashion not unusual for H.L. The witness did not describe it as anger but "just the way she was".

[18] I note in passing that diagrams were made by S.J. and the witness made a description of the shower room. The whole space is a single room.

[19] The witness states that the H.L. was swearing but in her opinion was not refusing the shower. The witness states that she wheeled her over and began the process. She had asked S.J. earlier to bring some wipes and after a time, she noticed them on the table. She used them at one point for several minutes to get the feces off the head and hair of H.L. She had the wand in one hand and wipes in another. The whole process took several minutes and then she dried and dressed H.L. She stated that H.L. did not resist and put up her arms to assist the witness in dressing her. She stated that she then wheeled H.L. out of the room and took her to her room and saw that S.J. was still cleaning the room and she left H.L. at the door in the chair. She stated that she had wiped the chair dry in the shower room.

[20] The Crown conducted a very vigorous and well prepared cross-examination. It was suggested to the defendant that she was in a hurry to get home that morning as it was at the end of her shift and also that H.L. was acting up more than just a little bit. She suggested that the defendant broke the rules several times in not calling for help and leaving the resident in the hall on the chair outside of her room, and that would point to someone who would use some force to get the matter finished so that she could go home. The witness denied that any rules were broken as far as she was concerned and denied that she was in any hurry to leave as she would often stay 10 or 15 minutes after a shift to get her matters finished.

[21] I note that the Crown produced pictures of the shower room (Exhibits #5A and #5B), which I accept as a more accurate description of the scene than the sketch produced by the Crown witnesses. These pictures were not disclosed to the defence before the trial. It may have been a little unfair to the defendant but in the end, it does not change the result I come to. I note that it shows three separate rooms and not just one large room as described by the witness S.J.

Analysis

[22] The crown bears the burden at all times to prove the essential elements of the offence beyond a reasonable doubt. As stated in R. v. Lifchus at paragraph 36:

• The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
• Reasonable doubt is not a doubt based upon sympathy or prejudice;
• Rather, it is based upon reason and common sense;
• It is logically connected to the evidence or absence of evidence;
• It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
• More is required than proof that the accused is probably guilty - a judge or jury which concludes only that the accused is probably guilty must acquit.

[23] In addition, as the defendant has testified and presented a defence, which if believed, would provide a defence to the charge. I assess her evidence in accordance with the doctrine from R. v. W.D. at pg 409:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[24] In assessing the evidence of the defendant, I note that it appears to be internally and externally consistent. The fact that she had been the PSW worker for H.L. for so long a time would make her assessment of the deficits that H.L. suffered very correct. I note she had dealt with H.L. and her difficulties some three previous times that night without any difficulty. She sounded very matter of fact in her description of all of the interventions for that resident. The present situation was not in any way unusual. There was nothing about the way she described the resident that would lead to the conclusion that the defendant was in some way becoming angry or frustrated with the resident.

[25] I have viewed the video surveillance exhibit. I note that she seems calm and collected throughout. There is no indication that she is suffering any stress from the actions of H.L. In that sense, it is confirmation of her essential defence which is, "I was simply doing my job as I had always done and not only did I not push or assault the resident, I felt no compulsion to do so". I can find no reason of defect in her testimony that would lead me to disbelieve her version of the events.

[26] She was cross-examined vigorously by the Crown. I do not think she wavered from her essential assertion. There were some discrepancies which I would characterize as minor. Whether she held the wand at all times or not is one. Whether she characterized the swearing of the resident at one time as yelling is another. I do not feel that those discrepancies affect the essential tenor of her evidence. She denied that she was in any hurry and also denied that she broke any rules. She denied assaulting H.L.

[27] I have reviewed in detail the evidence of S.J. There were some discrepancies in her evidence. She stated that at her first attendance at the shower room, she did not enter but peeked in. That was not true as the video surveillance showed her getting the wipes and taking them right into the shower room. In her statements to the police, she seemed to accept their suggestions as to whether it was a slap or a hit or indeed (the evidence she gave in-chief) a push. I also note that her description of the so called push was entirely lacking in detail. Did H.L.'s head move and if so how far and at what speed?

[28] I accept that in this situation, even a minor assault is legally an assault, but I would have thought there would be more of a description. This lack of detail may be attributable to the very short time she had to make this observation. The very short time she had to make any such observation also puts into doubt the veracity of her observation. A two to three second view, at an angle, while you say someone is screaming is not, in my opinion, a reliable scenario to allow a trier of fact to be convicted beyond a reasonable doubt about what she says that she saw.

[29] On top of all of this, the view that she said that she saw is consistent with the defendant in the position of wiping feces from the face of H.L.

[30] I also can now consider the photographs entered by the Crown only in cross-examination of the defendant. The shower room actually has three separate areas, a toilet room on the left, the actual shower room on the right and a vestibule in the center. While I accept that the witness could have been in a position to see the defendant showering the resident, I am convinced that she could not have any view of the scene for more than a second or two. Upon entering the area (and going out of the view of the camera) the witness has to move through the vestibule to reach the shower area. Moving through that area before being in a position to see the defendant and the resident would take a second or two.

[31] The Crown's evidence about training and call cables is in my opinion of limited relevance. The issue as to whether the defendant actually followed all procedures (I would not call them rules) is collateral to the issue of whether she assaulted the resident. I do not find that she breached any such procedures.

[32] In my opinion, the defendant was dealing with the resident H.L. in her usual manner, that the resident H.L. was difficult was also known to the defendant. I specifically find that she did not "push" the resident H.L. in any fashion which could remotely be considered an assault. I find that she was giving the resident a shower and used her hands to wash the resident. In that regard, I accept her evidence.

[33] It would be, in my opinion, a speculation to make any assumptions about whether she was in a hurry to leave. She denied being in any hurry. She never expressed to anyone she was in a hurry. She stated that it was part of her job to on occasion stay for 10 to 15 minutes to complete her duties. I note in the video evidence, she is seen, without any great speed at the end of her shift entering the usual information in the wall computer.

[34] Even if I was to reject her evidence, the inherent frailties in the eyewitness testimony of the witness S.J. would have to leave me in doubt.

Conclusion

[35] I find the defendant not guilty of the offence of assault.

Signed: "Justice P.N. Bourque"

Released: August 6, 2015