Ontario Court of Justice

Date: 2017-12-18

Court File No.: Toronto 4811-998-16-15006972

Between:

Her Majesty the Queen

— AND —

Yan Hua Xie

Before: Justice S. Ray

Heard on: July 31, August 1-3, 16, and October 31, 2017

Reasons for Judgment released on: December 18, 2017

Counsel

Craig Power — counsel for the Crown

Breese Davies and Owen Goddard — counsel for the defendant Yan Hua Xie

Ray J.:

Introduction

[1] The Accused, Yan Hua Xie, has been charged with sexual assault, has pled not guilty, and has had a trial. The Court must decide whether the Crown has proved its case beyond a reasonable doubt and make credibility assessments. The Court has also ordered a publication ban on the identity of the Complainant, hereinafter simply referred to as the Complainant.

[2] The Complainant in this case seems to have a consistent and sincerely held recollection as to her sensations particularly with respect to the alleged sexual assault itself, but other than that the Complainant's testimony is irreconcilably different from the other evidence that has been called, and it is not consistent with the context of the evidence as a whole. The Accused denies that the sexual assault took place, and there is no evidence that independently confirms that it happened. A conviction is still possible without corroboration. It all depends upon the court's credibility assessments and whether the Crown has proved its case beyond a reasonable doubt.

[3] A unique feature in this case is that it is not what is typically referred to as a he said/she said case. There are usually no witnesses to a sexual assault. One usually only has the evidence of the Complainant and the Accused. Sometimes there is circumstantial evidence or scientific evidence or both that independently confirms one account or another. In the case at bar there was an eye witness to a portion of the alleged sexual assault, who says it did not happen. Another unique feature in this case is the Complainant's impressive demeanor and apparent sincerity of her conviction that she had been sexually assaulted. I will deal with the law on sincere demeanor first, and then proceed to analysing the evidence, making credibility assessments, and deciding whether or not the Crown has proved its case beyond a reasonable doubt.

Sincere Demeanor

[4] The courts have been impressed historically with witnesses that appear sincere and seem to be genuinely trying to tell the truth. Their evidence has been regarded as having "the ring of truth." There has been a gradual evolution in the jurisprudence to an approach where accuracy trumps sincerity, where reliability and whether a witness is likely to be actually speaking the truth is the primary concern (see Lynn Smith J, "The Ring of Truth, The Clang of Lies: Assessing Credibility in the Courtroom" (2012) 63 UNBLJ 10).

[5] Demeanor and sincerity are still relevant to the assessment of credibility, but less emphasis is placed upon these factors by courts today than has traditionally been the case. In modern times, how sincere and certain a witness is that he or she has identified an individual or experienced certain sensations is less important than such factors as accurate or faulty perception of the original event, errors in memory, perceptions attributable to the cognitive state of a witness, and ambiguity or errors in communication. An honest and sincere witness may be unreliable. As explained by Finlayson JA in R v. Norman, 16 OR (3d) 295 at para 47:

The issue is not merely whether the complainant sincerely believes her evidence to be true: it is also whether this evidence is reliable. Accordingly, her demeanor and credibility are not the only issues. The reliability of the evidence is what is paramount.

[6] A cautious approach was adopted by the Ontario Court of Appeal in R v. Rhayel, 2015 ONCA 377 at para 85, where it was held that:

It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.

[7] The Complainant in this case was impressive as far as her demeanor was concerned. She was clear, articulate, and looked sincere and genuine. Her demeanor was convincing. She appeared to have a consistent and sincerely held belief that she had experienced certain sensations including being prodded, poked, pinched, and being touched inappropriately in spite of evidence that she was at times drowsy or asleep, did not recall significant portions of the night, her conversations with paramedics and hospital staff, and her stay in the hospital, and in spite of her own evidence that she started "feeling very, very lightheaded" and her "toes and…fingers" started "to go numb," after she drank "5 half Solo cups of beer" and inhaled two or three puffs from what she believed was a marijuana "spliff," and could not communicate or move any of her limbs.

[8] When I assess the credibility of the evidence of all witnesses in this case, I shall be mindful of appellate admonitions that demeanor can be of limited value, sincerity can be misleading, and reliability is paramount.

The Complainant

[9] On September 6, 2016, the Complainant was a student entering her freshman year at the University of Toronto. She had met a group of ten friends during the orientation. They attended a "dry event," which began at about 9:30 pm. I take a "dry event" to mean one at which alcohol is not served. She and her friends had not been drinking and they had not consumed any mind altering drugs before this event. They next went to an event at a frat house, and arrived after 10:15 pm. She had one small beer there. They left and went to Lambda Chi Fraternity House.

[10] There was an hour and a half of drinking beer and talking with friends at Lambda Chi during which time the Complainant had four half-filled red Solo cups of beer. The party ended after midnight and they stayed for the after-party, and the Complainant had another half-filled beer. After the fifth beer, the complainant felt light headed. Then the "spliff" of "weed" was passed around. The Complainant testified that she "only inhaled once." The second time she "put it up to her "mouth and breathed in," but it just tasted like a burnt filter," as it was only about one centimeter long. She felt her fingers and toes starting to go numb, started panicking, and walked around the side of the house to the driveway. As she turned the corner, she realized she was going to pass out and fell on her side with her head on her arm. She was on the ground for about fifteen seconds, when two friends boosted her up onto a three-piece sofa on the front lawn. She was not able to communicate and she could not move any of her limbs. In response to a question about her cognitive function, the Complainant replied that she was aware of what was happening.

[11] Paramedics arrived, "scooped" the Complainant "off the couch," and steered her towards a stretcher in the ambulance, where she lay down. She could not lift her leg. Her head was slumped. Her eyes were closed. She was strapped into the stretcher. She remembers some conversation and "checking…vitals," but not the details. The ride was bumpy and the paramedics kept changing the radio station. She remembers saying that she did not want her friend to come along, because she was embarrassed. She does not recall any questions about what she had taken, only that she thought they had already decided that she was drunk and high. She believes that her tolerance to alcohol is good, and she denied that she was drunk or high.

[12] The ambulance went to the Mount Sinai Hospital and the Complainant was taken from the ambulance to the hospital by the ambulance attendants, where she was brought to a "staging area." She described it as an area that looked temporary, where everything was curtained. Two doctors came into her room, one named "Caesar" and the other wearing dark glasses, who tried to rouse her by rubbing her sternum, behind the jaw, grabbing the collarbone, and calling her name. An unknown nurse put an oxygen tube in her nostril. The "doctor" with the dark glasses can be seen on a hospital video that recorded everything in the public hallways, and this "doctor" was later identified by other witnesses as a nurse named Vince Cheng. There was a doctor named Caesar, who treated the Complainant, but according to other witnesses and hospital records, this doctor did not see the patient until later, after she was transferred into an emergency room. The second "doctor," whom the Complainant identified as Caesar and described as "taller" with "thinner hair, black hair, thinner glasses, a longer face" was seen on the video and identified by other witnesses as the Accused.

[13] Eventually the Complainant was wheeled off into a different area that had a glass sliding door that separated it from the hallway. She observed a nurses reception area or nurse/doctor hub, saw a desk and the backs of chairs, a hallway, and two posters in the hallway, one was for septic shock and how to deal with it, and the other was the face of an old man. Once she was in the room, a male staff member of the hospital brought in a thicker blanket than the one she had. It is when he adjusted the blanket that the Complainant sensed inappropriate touching. She alleges that he put his right hand inside her right bra cup and "kind of lifts the cup up with the back of his hand and starts fondling that breast and then pinches the nipple…He then moves his hand to the left breast and places his hand under the bra cup and does the same thing – fondling and pinching the nipple."

[14] The second time that the Complainant sensed inappropriate touching was when the male nurse entered again to her right where there was an IV machine. He wiped her elbow with something that smelled like alcohol, but then "he gets up and he just holds open the bra cup of my right breast and just looks and then fondles, and then he does the same thing again with the left breast where he opens the bra cup and looks and then fondles, but this time there was no pinching…and then he leaves…so, he did not give me the IV. He just washed my elbow, the inside of it, and then left…"

[15] Ten minutes later the nurse came back in and,

…the first thing he does is lift up the left breast cup, fondle, pinch, again the same thing with the right, and then he sits down to do the IV because there's a plastic chair next to the bed…and he sits down and is kind of fiddling with machinery, and then he slumps my hand through over the side – over the right side of the cot. And so the cot did have metal bars, but they were very spaced out, so my hand just kind of fell through the – the metal bars and landed on his lap. And while he was placing the rubber band above my elbow, he was moving my hand up and down his crotch area having my – moving me – my hand by my wrist so that my fingers were kind of going up and down his genitals, which you could feel through the scrubs, and that lasted for probably five to seven seconds. And then he put my arm back onto the – the cot, which – which then he actually attaches the IV, and then he walks around to the other side of my bed and fiddles with machinery, and then comes back around to the right side again and pulls the thicker blanket he had gotten me earlier down to right above my – right above my bellybutton, and he then places his hand underneath my shorts, and then underneath my underwear, and moves it down, and then starts playing or stroking the top of my genitals, so the pubic hair area, and I'm able, at this point, to like flinch my leg a little bit to demonstrate that I am awake, and he quickly pulls his hand out, yeah, and then he leaves, but I think I forgot to mention earlier that, when he came back around the side of my bed, before he put his hand on my genitals, he had fondled and pinched my breasts again.

[16] After the Complainant flinched, the nurse left the room. She tried to get the attention of a female nurse who was walking by who did not acknowledge her. The male nurse came back in the room and asked her if she wanted food or water and asked if she knew why she was there. She indicated she did not want anything and she did not know why she was there. He then left the room and Caesar came in. She asked him who gave her the IV, and he replied that it was Dr Arn. She then disclosed to Caesar what had happened. The hospital took the complaint very seriously. The Complainant identified the male nurse who touched her in court as the Accused.

[17] On cross-examination the Complainant agreed that she had told the police in her sworn video-taped statement that the Accused was wearing navy blue pants, and that was still her recollection. Cross-examination also revealed that there were many details that the Complainant did not remember including:

• Where the cigarette that she smoked at the party came from, whether she brought cigarettes with her, or whether she got the cigarette from someone at the party
• She did not recall whether she told her friend to call an ambulance
• She did not recall whether she was crying when the paramedics arrived
• She did not recall whether the paramedics asked her about her medical history
• She did not recall whether she told them she was taking Cipralex for anxiety
• She did not recall whether her friend knew she was taking Cipralex
• She did not recall whether she denied having been drinking that night to the paramedics
• She did not recall whether she told the paramedics that she had taken a few hits from a joint
• She did not recall telling the paramedics that she wanted to walk to the ambulance
• She did not recall being able to climb into the ambulance herself and being put into a "jump seat" in the back on the ambulance
• She did not recall being moved from a seat in the back of an ambulance to a stretcher, nor did she remember where she was transferred from one hospital bed to another
• She did not recall which of the two individuals who first provided her with medical attention at the hospital rubbed her sternum and pushed behind her jawbones
• She did not recall them taking her purse, going through it, and trying to get her identification
• She did not recall Mr Cheng doing an assessment of her scalp
• She did not recall any women in the staging area and whether a female staff person came and put a hospital bracelet on her
• There were numerous other answers throughout cross-examination indicating that she did not recall. She was confused with respect to the identities of who gave her medical care, when they gave it, and who did what

[18] In spite of all the things she did not remember, the Complainant maintained that she was fully conscious during her contact with the ambulance paramedics and her stay in the hospital. She showed a great deal of interest in finding out whether test results showed whether or not she was intoxicated or drugged even hiring an attorney to assist her. Near the end of cross-examination her testimony revealed a motive for her evidence. She wanted confirmation that her perception that she was not very intoxicated was correct. The following passage is telling:

Q. …but you still maintain after all you've seen and all we have been through that you were alert throughout the whole time you were in the hospital from your admission just after one o'clock until your discharge just after one o'clock until your discharge just after six o'clock, right?

A. Correct.

Q. And you know that if your cognitive capacity was impaired in some way that night, your testimony would be less believable, right?

A. Correct, which is why I've tried to demonstrate points where my evidence is reliable and consistent.

Q. Right, and that's why you've maintained that you were alert, awake and conscious throughout, right?

A. Correct.

The Eye Witness

[19] Mr Vince Cheng was a Crown witness, whom the Complainant described as a doctor with dark glasses, who was charming and funny, whom she liked, and about whom she had no concerns even though he was performing procedures on her that were painful.

[20] Mr Cheng recalled that the Complainant could not respond to the Registration Clerk, she had her purse on her, and they had to get information from her driver's licence. This can be seen on the video tape. He recalls that she wasn't verbal at that point and she became more and more drowsy, and painful stimulus including sternum rubs and jaw thrusts were used to revive her. There were no curtains in the initial assessment area out in the hallway, where she was first placed. She was never visited by Dr Caesar Lim out in the hallway. Mr Cheng never spoke and assessed the Complainant with Dr Lim out in the hallway. Dr Lim confirmed in his evidence that he had no contact with the Complainant in the triage area of the hospital. Dr Lim confirmed that it was Mr Xie and not Mr Cheng who was involved with his assessment in room 316. Dr Lim also confirmed that there are no curtains around beds in the EMS offload area.

[21] The Complainant was moved from the triage area into room 316. She did even respond when they bumped her into the wall, while steering her into the room. This room was chosen because it was a highly visible area in which it was appropriate to place intoxicated patients, so that there can be monitoring. The Complainant had been seen by Mr Cheng and Mr Xie in the hallway, and Mr Cheng identified them all on the video tape. The Complainant was not responding and not awake while in this room.

[22] Mr Cheng testified that he could see into room 316 from the nursing station by turning his head to the left, and he could do this without moving his chair. Dr Caesar Lim confirmed this in his testimony. The Accused also testified that when the curtain is fully open, one can see right into the room, and one can see the bed in the room. Photos and drawings that have been entered into evidence also depict the area. This all contradicts the Complainant's testimony that she did not see anyone at the nursing station and that if someone were sitting there, they could not see into the room. After the physician saw the patient and had ordered an IV to be started and some fluids given, Mr Xie went in to start the IV. "I was actually kind of interested to see how the patient was doing and whether the patient was going to respond to an IV start, so different kind of pain stimulus."

[23] From a distance of about five to six meters away, Mr Cheng testified that he saw Mr Xie move down the side rail and take the Complainant's right arm just a little bit off the bed on his knee, which is common due to the angle needed to approach the vein. He had sat down, put together his IV supplies that he had brought in to assemble what he needed, inserted the needle, attached a saline lock, which is used to cap off the IV and then tape it down. The last thing he saw was Mr Xie putting his arm back and putting the side rail up. Mr Cheng testified that he did not see Mr Xie manipulate the Complainant's hand so that it was rubbing up and down on his crotch for approximately five to seven seconds, when he took her hand to insert the IV. He did not see Mr Xie place his hands on the Complainant's breasts through the top of her shirt after her hand was put back in the bed and Mr Xie stood up. He did not see him touch the left of the right breast. Mr Cheng did not see Mr Xie pull down the blanket to the Complainant's bellybutton and his hands down her pants as attested to by the Complainant. What he did see was that Mr Xie actually moved the blanket back up.

[24] There was remarkable particularity to Mr Cheng's evidence, and it was consistent with the parts of what occurred that were recorded on the video tape. Mr Cheng, who is multi-talented and also an artist, drew for us in court what he could see in the room. This is very reliable evidence as it comes from his mind and his recollection without any prompting. There was only one inconsistency in Mr Cheng's story, which I will deal with below. Parts of Mr Cheng's evidence was confirmed by the evidence of other witnesses. It was not inconsistent with anything they said. It was consistent with the evidence of Mr Xie, except with respect to one point, which I shall deal with below.

[25] The inconsistency in Mr Cheng's story is with respect to whether or not Mr Xie moved the side rail down or whether it was already down. He testified in chief that he saw Mr Xie put it down, and on cross-examination he said the same thing. He had told the police in his statement that it was down when he saw it, and he testified that he did not remember saying this to the police. After being confronted with his statement, he testified that his best recollection was that he moved the side rail down. The Complainant testified that Mr Xie slumped her hand through the side over the right side of the cot through the metal bar. Whether he moved the bar down or it was already down, he would not have placed his hand on her knee, lap, or crotch through the bars. It is therefore an inconsequential inconsistency. Mr Cheng was watching during this part of the procedure. It is a small detail that anyone could forget i.e. whether the side was already down or whether it was moved down. This one small inconsistency in Mr Cheng's story does not detract from the general credibility and reliability of his detailed testimony. It was Mr Xie testimony that he moved the rail down.

[26] The other inconsistency that I wish to address is the matter of where the Complainant's arm was placed prior to inserting the IV. Mr Cheng says above that it was placed on the knee, and this makes sense given basic ergonomics. In examination in chief, Mr Xie said he placed her right wrist, which was floppy, on his left knee for support. On cross-examination Mr Xie said he placed it on her lap. This is consistent with the Complainant's version that it was on her lap. What Mr Xie said on cross-examination conflicts with both what he said in examination in chief as well as Mr Cheng's evidence. I believe this type of minor inconsistency to be the hallmark of truth and a sign that they have not colluded with respect to their evidence. If anything, it enhances the credibility of both Mr Cheng's and Mr Xie's evidence. The thought also occurred to me that Mr Cheng may have assumed Mr Xie placed the Complainant's hand on his knee, because that is the usual procedure. I have thought about all this very carefully, and this minor little dance in the evidence does not cause me to doubt the rest of Mr Cheng's evidence.

The Scientist

[27] Dr Daryl Mayers testified as an expert in the area of forensic toxicology, specifically the ingestion, absorption, elimination and effects of alcohol and drugs in the body, the calculation of blood alcohol and drug concentrations in the body and the forensic limitations on blood and urine testing. The Doctor testified that 44 milligrams of alcohol in 100 millilitres of the Complainant's blood was detected. The hospital testing and his own screening test detected Citalopram, an antidepressant medication, and he treated that as a screening mechanism. His more specific analytical method did not detect Citalopram. The screening mechanism is more sensitive and the very low concentrations that it would detect are only relevant for treatment. The amount detected is even below what one would call "traces."

[28] Dr Mayers testified that, "there's not a mechanism present in science today that can be absolutely sure of detecting absolutely every drug present in a sample." He tested for drugs that may be associated with a sexual assault scenario including GHB, Ketamine, or Rohypnol, and he has no explanation for the symptomatology that was observed in this case. He has no toxicological explanation for it. All he found was a reasonably modest amount of alcohol. He explained that clandestine labs are very invested in making drugs that are difficult for forensic laboratories to detect. The Mayers explained that if a person consumed a designer drug that is not yet recognized by the testing protocol, and his or her blood or urine was sent for analysis, it would come back with a non-detected result. And a not detected result simply means that the lab was not able to detect drugs or classes of drugs that the testing protocol is designed to pick up.

[29] Dr Mayers testified that he was unable to detect the hundreds of different drugs that he's capable of detecting, but he cannot say that there was nothing there. He is unable to conclude that there was anything from his testing that would give rise to the symptoms that have been put to him. The effects of drugs on individuals makes it difficult for a toxicologist even in the presence of findings to give a specific opinion about the effects of the drug on that individual. A toxicologist can only give a general opinion. The effect on individuals are best determined by clinicians.

[30] Dr Caesar Lim, the clinician who attended to the Complainant, testified that her alcohol levels did not explain why she was presenting with the level of consciousness that she did.

[31] I am not going to speculate as to what caused the symptoms that the Complainant experienced and the medical condition that was observed by medical care providers. We do know that the Complainant attested to not seeing all the drinks being poured, and there was opportunity for something other than what she thought she was drinking to be present. She did say she thought they were watered down. She took at least one puff from a joint that was being circulated. She did not know what else was in the "spliff." We also know that the Complainant was numb, had difficulty walking, became more and more drowsy, and lost physical control of her body. We do not know what caused all this, whether it was voluntary or involuntary drug consumption, consumption of drugs without her knowledge, a medical condition of some sort, whether drug consumption was aggravated by anxiety, depression, or a panic attack. We simply do not know.

[32] We do know that the Complainant presented with symptoms that were consistent with drug use and not in the small amounts that she told us that she consumed. We have Dr Lim's evidence that her alcohol levels did not explain why she was presenting with the level of consciousness that she did. We have Dr Mayer's evidence that he has no explanation for her symptoms based upon what he detected from his testing. "…it is open to the Court to find drugging took place even where drugs are not detected or the expert evidence is inconclusive." (See R v. Vant, 2010 ONSC 2474, para 174).

[33] I am prepared to find that something unknown caused the unusual numbness, loss of physical control, drowsiness and lack of consciousness that the Complainant attested to and the medical care providers observed. I accept the evidence of Dr Lim, Mr Cheng, the ambulance paramedics, and Mr Xie as to their observations in this regard, which are partially corroborated by the Complainant herself, in spite of her motives for suggesting that she was alert and conscious at all times. With respect to the foregoing, she contradicted herself in her evidence, and she also answered that she did not recall, whenever it became obvious that she had been tailoring her evidence.

The Accused

[34] Mr Xie denied in his testimony that he sexually assaulted the Complainant. He denied having touched her breasts, putting his hand down her pants, and putting her hand on his penis. Mr Xie's evidence dove tailed that of the eye witness, Mr Cheng. He and Mr Cheng both assessed and treated the Complainant in the triage area. He identified himself and others on the video tape. They moved the Complainant to room 316. The Accused was not busy that night. He was a float nurse, and he assisted Mr Cheng with the Complainant. His observations with respect to the Complainant's condition were about the same as the ambulance paramedics, Mr Cheng's, and Dr Lim's. His evidence was consistent with Mr Cheng's that Room 316 was chosen for the Complainant because it was highly visible. Mr Xie testified that he did not touch her breasts, when he put the blanket on her. At no time during the IV procedure did he touch her breasts, pinch her nipples, or put his hand down her pants.

[35] Mr Xie also remembered bumping the stretcher into the wall and not observing any response from the Complainant. He remembered in detail the medical procedures he performed. He described in even more detail than Mr Cheng the steps he took to insert the IV. I do not propose to repeat the whole thing again, as it was all consistent and dove tailed with all the other evidence in this case except that of the Complainant. His testimony was consistent with Mr Cheng's and with the video tape. His evidence was plausible and made complete sense within the context of all of the evidence, except the Complainant's.

[36] Mr Xie agreed to reasonable suggestions on cross-examination. He was not argumentative or combative. He agreed that depending on how the curtains in room 316 were arranged, it could take away from the vantage point of viewing into the room. He explained that the desks were movable, so how one could see would depend on how it was at the time, "the exact picture." He agreed that the door and the desk were aligned and the computers appeared slanted. These were all questions directed by the Crown to illustrate that the view into room 316 from the nursing station may not have been as clear as suggested by Mr Cheng and Dr Lim. Whether or not Mr Cheng could really see everything Mr Xie was doing in the room during the IV insertion procedure is a triable issue in this case. Mr Xie showed no sensitivity to the triability of this issue, bias, or signs of tailoring his evidence as he answered these questions.

[37] An answer that Mr Xie gave to a question about whether the Complainant's hand would be blocked by the curtain and by the bed was particularly telling. He could have insisted that one could still see from the nursing station. What he said was, "I can't speak to that right now unless I physically have a view." This showed me he really wanted to give an accurate answer to the question and not simply say what would help his defence, and it was very impressive.

[38] There is one internal inconsistency in Mr Xie's evidence that I have already dealt with (see paragraph 26). Mr Xie said during examination in chief that he placed the Complainant's right wrist on his left knee. On cross-examination he said he placed it on his lap. For reasons that I have already explained, this one internal inconsistency does not affect the reliability of the rest of his evidence.

Dissecting the Evidence

[39] The Complainant perceived sensations that were corroborated by the evidence of other witnesses, which adds credence to her evidence that she felt these sensations, and as such she did not imagine or hallucinate these particular corroborated sensations. The corroborated sensations that she perceived include the following:

• She remembers sitting on a couch when the paramedics arrived
• She remembers being assisted in walking to the ambulance with a paramedic on either side
• She remembers hearing the radio switch back and forth between songs
• She remembers sternum rubs and jaw thrusts
• She remembers an oxygen type device placed up in her nose
• She remembers having a rubber band tied on her arm
• She remembers being wheeled off into a different area and posters
• She remembered the paramedics checking her vital signs in the back of the ambulance
• She remembers having blood taken from her
• She remembers staff talking about ketamine

[40] The Accused admits that he was in the Complainant's room and inserting an IV when the main part of the sexual assault allegedly occurred. The witness, Mr Cheng, was watching and confirms that he was in there.

[41] The foregoing lends some credence to the Complainant's story, but there are also numerous reasons for disbelieving her account or finding it to be unreliable or both. First, a very credible eye witness, Mr Cheng, did not see any of what the Complainant alleged. I accept the evidence that he was able to see and that he was interested in finding out whether she would respond to the pain of having the IV needle inserted, given that she had not responded so far to painful stimulus. This is a plausible and believable reason for why he would turn his head from his chair at the nursing station and deliberately watch. And there's more.

[42] The Complainant's evidence is inconsistent with what can clearly be seen on the videotape. She described an area to which she was brought upon arrival at the Mount Sinai as temporary, where everything was curtained. No such curtained area can be seen on the video, which depicts her being taken a hallway, which was not curtained. The Complainant's evidence about this staging area also contradicts that of the ambulance paramedics and hospital staff. The Complainant testified that the nurse who sexually assaulted her wore light or dark blue scrubs. The video clearly shows that they were light green.

[43] The Complainant's story was internally inconsistent. On the one hand she maintained that she was aware of what was happening and she was not drunk or high. She did not drink much alcohol and her tolerance to alcohol was good. On the other hand she testified that she was feeling very lightheaded after consuming the marijuana, her fingers and toes started to go numb, and she could not communicate or move any of her limbs. She attested to feeling embarrassed about this and that this was the reason why she did not want her friend to accompany her in the ambulance. So she had a motive to play down her state of sobriety, and this evidence contradicted what she said about feeling lightheaded, numb, and not being able to communicate or move her limbs. According to her own evidence, she cannot recall significant portions of the night. This contradicts her testimony that she was aware of what was happening and she was not drunk or high. She agreed that at the hospital she was not up and alert, even after attempts had been made to rouse her: "I'm not up and alert. I can't really move my legs or arms, but I'm able, at this point, kind of open my eyes, but they would quickly shut." Again this contradicts her evidence that she was not drunk or high, and the "doctors" simply "assumed" she was really drunk. At one point she said that she was able to communicate through mumbled words or gestures that she didn't want her friend to come, and at another point she said that she did not know her friend wanted to come. Her evidence was internally inconsistent with respect to whether she was conscious or unconscious, asleep or awake, during parts of the ambulance ride. She insisted that she was unable to speak, but she "does not recall" if she answered questions.

[44] The Complainant consistently misremembered people. The evidence of all the other witnesses is consistent with respect to who is depicted on the videotape, and who provided medical care to her at the relevant times. The only reason we definitely know that Mr Xie was in the Complainant's room inserting her IV, and had the opportunity to commit the sexual assault alleged by the Complainant, is that both Mr Xie and Mr Cheng confirm this to be the case. Had this corroboration not been present in the evidence, it would in my opinion not have been safe to rely solely on the identification evidence of the Complainant. The Complainant said Mr Xie had a very memorable face, because it reminded her of someone she once knew. In spite of this memorable face that he apparently had, she did not remember him to be the "doctor" accompanying Mr Cheng, and she described Mr Cheng as a doctor with dark glasses who was charming and funny, whom she liked, and about whom she had no concerns even though he was performing procedures on her that were painful. When shown the video tape in court, she realized that the individual accompanying Mr Cheng was Mr Xie.

[45] The Complainant's evidence was inconsistent with that of the ambulance attendants, who testified clearly and forthrightly, whose evidence was detailed, and who have no interest in the outcome of this litigation. The Complainant did not agree on cross-examination that from when she first started to feel lightheaded, until she was in the hospital, she got progressively less able to control her bodily movements. Her perception was that she was least able to control her body from a physical perspective, when she was on the couch, but her cognition was still there. She was conscious the entire time from when she first interacted with the paramedics until she first gave her videotaped statement to the police. She was not able to answer the questions asked by the paramedics about what she had consumed. She was not able to speak. She did not deny that she had anything to drink. She maintained that she "was consciously aware the entire time." She believed that the paramedics put her directly onto a stretcher in the ambulance. All of this completely contradicts the evidence of the paramedics.

[46] Ambulance paramedic McCreary testified that, "She, on her own accord, goes into the ambulance, sat in the jump seats, which is a backward facing chair in the back of the ambulance on her own accord." The evidence of both paramedics shows that they asked questions that she answered. Paramedic McCreary testified that she became lethargic and a little more difficult to rouse once they arrived at the hospital, and there was a marked decrease in her level of consciousness and responsiveness. She kept falling asleep as they were talking to her, so they put her on the stretcher. She appeared either asleep or unconscious. She was able to speak when they arrived. She did walk to the ambulance with them with assistance. And she was able to climb into the back of the ambulance on her own. She told them she was taking Cipralex. Ambulance paramedic Bisztriczky testified that she was with the Complainant in the back of the ambulance and there was a marked decrease in her level of responsiveness during the ambulance ride and by the time she got to the hospital, she was semi-unconscious.

[47] The results of a Glasgow Coma Scale, a diagnostic medical procedure that was used by the paramedics, the nurses, and the doctor who ultimately saw her, show that she was her consciousness and alertness got progressively worse as time moved on. Dr Caesar Lim testified that she wasn't very alert, when he examined her in the emergency room.

[48] The Complainant also disagreed on cross-examination that she had told the paramedics that she was taking Cipralex. But she confirmed on cross-examination that she was taking this medication. She had no explanation for how the paramedics would have known she was taking Cipralex. Her answers to questions about how else the paramedics would have known were evasive. The following exchange illustrates this:

Q. If the paramedics have in their ambulance report that they prepared from taking you to Mount Sinai that you were taking Cipralex, how would they have known that?

A. I don't know.

Q. [Her friend] didn't know that, right?

A. [Her friend] was not in the ambulance.

Q. No, but [her friend] didn't know that you were taking Cipralex, right?

A. I don't recall telling them that information.

Q. I understand that. That wasn't my question. My question was the only way that they could have that information was if you told them that, right?

A. No.

Q. So, explain to me how else they would know that?

A. I – I don't recall.

[49] The fact that the ambulance attendants knew the Complainant was taking Cipralex, and she confirmed in her evidence that this was correct information, and there is no explanation for how they would have known other than that she must have told them lends further credence to the evidence of the ambulance attendants. Her failure to agree to the reasonable suggestion that it must have been her that told them detracts from her reliability as a witness. There are other reasonable suggestions that the Complainant would not agree to during cross-examination. Even after being shown the video tape, she did not back down from her testimony that when she was first brought to the hospital she was taken to a communal hub, where she was surrounded by curtains. She would not agree that she did not recall many things, and therefore she was not conscious through the whole period. She did not even say that this "may" indicate she "may" not have been conscious through the whole period. She was categorical: "I would not agree with you." The following exchange is illustrative of her attitude:

Q. Now, I'm going to suggest to you that you were actually asleep for periods of time in the ambulance, right?

A. I don't recall.

Q. But your evidence is you were conscious through the whole thing?

A. Correct.

Q. Not asleep?

A. Correct.

[50] By the end of her cross-examination the motive for her insistence that she was alert, awake, and conscious throughout became clear. She knew that if her cognitive capacity was impaired in some way that night, her testimony would be less believable. Her evidence showed high sensitivity to what would affect the success of this prosecution. It was tailored and biased. If she had agreed that she was not alert, awake, and conscious throughout, the Crown's submission that what she did remember was reliable, especially given that some of her sensations were corroborated by other evidence, would be more persuasive. But given all the problematic features of her evidence that I have covered above, it would be unsafe to convict on the Complainant's evidence. But there is more.

[51] Mr Cheng was a very credible witness. There was particularity to his recollection. But for the minor inconsistencies, which I have addressed above, his testimony was internally consistent, consistent with the evidential context, made sense, and independently confirmed by the video tape and the evidence of other witnesses. It is rare to have an eye witness to an alleged sexual assault, but this is what we have in this case, and a very credible one too. On the basis of his evidence alone, I am able to find that the sexual assaults alleged during the IV procedure simply did not happen. The Crown has not proved beyond a reasonable doubt that they did happen. I at least have a reasonable doubt. The Complainant alleged other sexual assaults at times when Mr Cheng was not observing her. Given that I find the Complainant's evidence unreliable with respect to the sexual assaults that are alleged to have occurred while Mr Cheng was watching, and her evidence to be generally incredible and unreliable, I am certainly left with a reasonable doubt with respect to the other allegations of sexual assault.

[52] Mr Xie was a very credible witness. There was remarkable particularity to his recollection. He did not simply deny having committed the offences. He explained in detail the medical care that he provided to the Complainant and other work that he did that night. But for one detail, his evidence was internally consistent and it was independently confirmed by an eye witness, other witnesses, and a video tape. I accept his evidence that he did not commit the sexual assaults alleged.

[53] The Complainant was an unreliable witness who tailored her evidence in an attempt to make it seem more reliable. Her evidence was implausible. It was internally inconsistent. She showed symptoms of an unexplained medical condition or drug consumption or both. Her cognitive state was questionable. It would be unsafe to convict on her evidence.

Conclusion

[54] I believe the Accused. The defence has raised more than a reasonable doubt. The Complainant is an unreliable witness who has shown a motive to tailor her evidence. The Crown has not proved the elements of the offence beyond a reasonable doubt. For all of these reasons the sexual assault charge is dismissed.

Released: December 18, 2017

Signed: Justice S. Ray