Court File and Parties

Ontario Court of Justice

Date: 2020-12-15

Court File No.: Newmarket 19-08052K

Between:

Her Majesty the Queen

— and —

Jing Helen Feng

Before: Justice Edward Prutschi

Heard on: November 4, 5 and 18, 2020

Reasons for Judgment released on: December 15, 2020

Counsel

Amy Barkin — counsel for the Crown

Pandora Du — counsel for the defendant Jing Helen Feng

Judgment

PRUTSCHI J.:

Introduction

[1] Ms. Feng was employed as Personal Support Worker (PSW) deployed by a staffing agency to a Long-Term Care (LTC) home. She stands accused of one count of assault against two separate residents of the home. For the reasons that follow, I find her not guilty of these offences.

Facts

[2] At the time of the allegations, the complainants, Mary "Mama Jo" Ellis and Pat "Margaret" Porter, were residents of the long-term care wing of Cedervale Lodge, a seniors' residence. Both were elderly, frail and suffered from dementia, requiring substantial assistance in performing the everyday functions of normal life. Each had passed away from causes unrelated to this case prior to the commencement of the trial and neither provided a statement in the course of the investigation.

[3] On the evening of August 4, 2019 Ms. Judy McIsaac was working her regular 3pm-11pm shift as a PSW. This was the Sunday of a long weekend and Ms. McIsaac was being assisted by the accused, Ms. Jing Helen Feng, who was a PSW contracted to this shift through an outside agency. The two had never worked together before and Ms. Feng had only worked two previous shifts at Cedervale prior to this evening.

Evidence of Judy McIsaac

[4] Towards the end of her shift, Ms. McIsaac was in Ms. Porter's room to help get her ready for bed. Transferring Ms. Porter from her wheelchair to the bed required the use of a mechanical sling that was generally operated by two people. Ms. Feng was assisting.

[5] Ms. McIsaac testified that Ms. Porter had very sensitive sore legs and would scream if they were touched. She told Ms. Feng about this sensitivity before they entered the room. As the two PSWs assisted Ms. Porter from the wheelchair into the sling, Ms. Feng bent down to help lift Ms. Porter's legs into position. As soon as Ms. Feng touched the legs, Ms. Porter "backhanded Helen's face", "…extremely forcefully…", "…extremely hard…", knocking Ms. Feng's glasses across the room, damaging them slightly such that they sat askew later in the evening when she wore them.

[6] Immediately after being backhanded, Ms. Feng "automatically slapped Pat's arm". Ms. McIsaac described Ms. Feng's physical response as a single slap with her right arm using an open hand that was "automatic", "when Pat hit her, she just automatically hit her back".

[7] Ms. McIsaac had observed no bruising or redness to Ms. Porter before the slap but afterwards Ms. Porter's arm "looked a little bit red" and she could see "the finger marks, a red handprint on her arm."

[8] Ms. Feng did not complain of any injury but pointed out to Ms. McIsaac the damage to her glasses and she appeared upset. Ms. Porter was screaming "You hit me! You hit me!". Ms. McIsaac worked to calm Ms. Porter down and directed Ms. Feng not to continue with her care. She completed the necessary bedtime routine on her own and did not immediately report the incident to anyone.

[9] Later in the evening Ms. McIsaac was again working with Ms. Feng to assist another patient, Mary Ellis, with a transfer from her wheelchair to the bed. Ms. Ellis did not require the use of the mechanical sling but did need the assistance of two PSWs to perform a "two-person transfer". This involved one PSW on either side of Ms. Ellis. Ms. McIsaac positioned herself on the left while Ms. Feng was on the right and each placed an arm under Ms. Ellis' respective underarms to assist with the transfer.

[10] Just as Ms. Ellis was being placed in the bed, Ms. McIsaac saw Ms. Feng pull her left arm away and slap Ms. Ellis' right arm with her own right hand. Ms. McIsaac described this slap as "a lot gentler" than what she had observed with Ms. Porter.

[11] Ms. Feng told Ms. McIsaac that Ms. Ellis had scratched her and showed Ms. McIsaac her arm though Ms. McIsaac did not observe any injury. Similarly, Ms. McIsaac did not observe any injury to Ms. Ellis that evening though two days later, when she was back on shift, she saw that Ms. Ellis' right arm was bruised and swollen.

[12] The incident with Ms. Ellis occurred near the end of the shift. Ms. McIsaac's supervisor directed her to complete her charting for the remainder of the shift. Ms. McIsaac did not take this opportunity to report anything to the supervisor. She described herself as feeling "a little bit overwhelmed" and that she simply wanted to go home and take a shower. Later that evening she was troubled by the events with Ms. Feng and mentioned them to her mother who encouraged her to report it someone at work. Around 11:30pm Ms. McIsaac called Cedervale and reported her observations.

Evidence of Helen Feng

[13] Ms. Feng testified in her own defence and painted a somewhat different picture of the incidents on that evening. Though she now works as a Registered Practicing Nurse (RPN) and is studying for her Registered Nurse (RN) designation, in August of 2019 she was working as a PSW on weekends. Her shifts were assigned through an employment agency and the night of August 4 was only the third time she had been assigned to Cedervale.

[14] Her shift ran from 3:00pm-11:00pm. When she arrived for work at 2:45pm she attended at the nursing station to receive her assigned tasks along with the names of the residents she would be working with. She was partnered with Ms. McIsaac and testified that it was her habit to ask her partner to write down on a piece of paper any suggestions or special care notes for patients she would be working with. Ms. Feng recalls asking Ms. McIsaac to make such notes on her patient list but, though Ms. McIsaac was about to write something down, the list was returned to her with no special instructions.

[15] Thus, when Ms. Feng approached Ms. Porter to assist her into the lift for the transfer from the wheelchair, she was unaware that touching Ms. Porter's legs could cause pain or provoke an aggressive reaction.

[16] Ms. Feng squatted down to unbuckle a safety belt prior to the transfer. As she stood up, she saw Ms. Porter's right hand coming towards her face. She was shocked and scared and reacted by standing up quickly while using her own hand to stop Ms. Porter's.

[17] Despite this reaction, Ms. Porter struck Ms. Feng in the face knocking her glasses askew. The glasses did not fall to the ground but remained hooked to her left ear though afterwards Ms. Feng noted that they had become bent, sitting crooked on her face, and required repair.

[18] The entire incident spanned just a single second during which Ms. Feng had no time to think, saying she reacted solely to try and block Ms. Porter's hand. After checking her glasses, she continued to assist with the transfer observing no injury to herself or Ms. Porter.

[19] With respect to Ms. Ellis, Ms. Feng recalled assisting Ms. McIsaac with the two-person transfer by positioning herself on Ms. Ellis' right side with Ms. McIsaac on the left. She placed her left arm underneath Ms. Ellis' right underarm when she felt a sharp pain as Ms. Ellis scratched Ms. Feng's inner forearm between the wrist and the elbow.

[20] It was very sudden and unexpected, causing Ms. Feng to retract her left arm while simultaneously using "very light" force with her right hand to stop Ms. Ellis by pushing Ms. Ellis' arm away.

[21] Ms. Feng then continued to assist with the transfer and, together with Ms. McIsaac, finished preparing Ms. Ellis for bed. No one raised any concerns with Ms. Feng that evening and she completed her shift.

Photographic Evidence

[22] The following day, August 5, Officer Bryan Ball attended at Cedervale to investigate the allegations. He attempted to speak with both Ms. Porter and Ms. Ellis but, as both suffered from dementia, he was unable to obtain a statement. He looked for signs of injury on either complainant noting nothing on Ms. Porter though she was dressed in short sleeves and he was able to see her arms. On Ms. Ellis he observed some bruising to her right forearm.

[23] Also on August 5, Mr. Stephen Walls, a Forensic Identification Assistant with the York Regional Police, attended at Cedervale to collect and preserve any evidence of injury. He took no photos of Ms. Porter that day but was able to take a series of photographs of Ms. Ellis' right forearm which depict two distinct marks. The first is a sharply defined triangle to her right outer forearm while the second is a smaller roughly circular mark just above her outer right wrist.

[24] Although no expert evidence was tendered to assist in defining the cause of these marks, the existence of two distinct injuries – one with a very sharply defined shape – do not comport well with either the evidence of Ms. McIsaac or Ms. Feng who each testified to a single point of contact. It is particularly difficult to ascribe the observed discolouration to the "slap", which was "a lot gentler" than what Ms. McIsaac observed with Ms. Porter.

[25] Mr. Walls was called back to Cedervale on August 14 to take pictures of Ms. Porter but he was unable to acquire the necessary consent as she became agitated and angry during their communications. Mr. Walls was accompanied at this time by the home's Executive Director, Anna Urbanowicz. He did not observe any injuries to Ms. Porter but indicated that he didn't really look because Ms. Porter was refusing to talk to him and he did not want to anger her further. He advised Ms. Urbanowicz that if she had any photos taken, she could email them to the Officer-in-Charge.

[26] Ms. Urbanowicz took two photos of Ms. Porter's right arm on Aug. 6. These depicted discolouration and swelling just below the elbow. Ms. Urbanowicz also advised in cross-examination that Ms. Porter was known to become physically aggressive at times and had a history of violence towards staff. Ms. Ellis had no such history.

Credibility Analysis

[27] The differing versions of events presented by Ms. McIsaac and Ms. Feng necessitate that I conduct a credibility analysis in accordance with the Supreme Court of Canada's decision in R. v. S. (W.D.), [1994] 3 S.C.R. 521.

[28] If I believe Ms. Feng I must acquit. If I do not believe Ms. Feng, but am left in reasonable doubt by her testimony, I must acquit. Even if I do not believe Ms. Feng and am not left in reasonable doubt by her evidence, I must acquit, unless, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of her guilt.

[29] I may accept some, all, or none of each witness' testimony and, in applying this test to the evidence in this trial, I have considered the witness' testimony in the context of the evidence as a whole including the photographs which have been tendered as exhibits.

[30] Although there are some minor variances between the testimonies of Ms. Feng and Ms. McIsaac, on the key issue of physical contact with each complainant, they are largely in agreement. This case turns less on what happened and more on why it happened. What Ms. McIsaac attributes to intentional angry slaps, Ms. Feng explains as immediate automatic reactions, taken without conscious thought, in response to being hit or scratched herself.

[31] Both Ms. McIsaac and Ms. Feng appear to have been truthful, and largely consistent with each other, in their testimony. I note that, despite seeing what she now describes as assaults against two vulnerable patients, Ms. McIsaac failed to report either incident in the immediate aftermath, even when directed by her supervisor to complete her charts at the end of her shift. With the passage of time, and upon reflecting with her mother, she made the appropriate decision to call Cedervale later that evening and describe what she saw. While I do not fault Ms. McIsaac for this delay, nor does it impact upon my assessment of her truthfulness, it is suggestive that she harboured some uncertainty about what she saw. I share that uncertainty in assessing whether the Crown has proven the necessary elements of assault beyond a reasonable doubt.

The Law of Reflex

[32] Ms. Feng admits that she applied physical force to both complainants without their consent. She concedes that the frail state of both complainants precludes any reasonable claim of self-defence in the circumstances. Instead she submits that her actions on both occasions were a reflexive response to being struck or scratched. Her responses occurred independent of conscious thought, and thus cannot be said to be criminal assaults.

[33] The use of reflex as a defence to assault has been raised in one of two broad ways. A narrow dictionary reading of "reflex" defines it as "independent of the will, caused as automatic response to nerve stimulation" or "an action, involuntary action of a muscle, gland or other organ, caused by the excitation of a sensory nerve being transmitted to a nerve-centre, and thence reflected along an efferent nerve to the organ in question".

[34] A reflexive action defined in this way is an involuntary response over which the accused had no control which would negate the actus reus of an offence (see R. v. Lewis, [2014] O.J. No. 529 (ONCA) at paragraphs 16 and 17 and R. v. Mullin (1990), 56 C.C.C. (3d) 476 (PEICA) at 484). A patient who kicks her doctor when tapped on the knee by a rubber hammer has reacted reflexively in an involuntary manner and no offence has been committed. This form of autonomic nerve response is not what is at issue here, but there is a broader reading of "reflex" that relates to the mens rea element of assault which requires proof of an intentional application of force.

[35] This was highlighted by the ONCA in R. v. Wolfe, [1974] O.J. No. 868 where, in brief oral reasons, Gale C.J.O. noted that a trial judge was permitted to consider the actions of the appellant as a reflex action where "no offence was committed because some intent is a necessary ingredient in an assault" (at paragraph 3). The accused in Wolfe struck the complainant in the head with the telephone receiver he was holding immediately after himself being punched by the complainant. I agree with Berg J. in R. v. Sayed-Mansour, [2018] O.J. No. 6329 at paragraph 40 that:

"Clearly the test in Wolfe is not concerned with an action that is independent of the will, an action that is truly involuntary in the physiological sense. What Wolfe and the line of cases that follow are dealing with is an action that is an immediate and unpremeditated reaction to an external stimulus. While voluntary, no conscious thought is involved."

[36] In contrast, where the accused responded to spilling his tea upon being bumped by following the complainant through a door, taking a step inside, and hurling the hot remains of his tea cup, the court declined to define his actions as a reflex and he was found guilty (R. v. D.T., [1997] O.J. No. 688 at paragraphs 74-80).

[37] These cases are best viewed along a continuum with differing legal consequences at each waypoint. That continuum runs from autonomic physiological reflex to unconscious reaction to considered reprisal. Where the action of the accused is purely an electrochemical response to external stimulus, it is an involuntary reflex that fails to engage the actus reus of the offence. Where the action of the accused is an immediate reaction taken without consideration or conscious thought it is an unintended application of force that fails to engage the mens rea of the offence. Where the action of the accused is a considered reaction to outside events, it is neither involuntary nor unintended and thus, if proven, makes out the offence of assault.

Conclusion

[38] Applying this continuum to the facts of this case, it is clear that Ms. Feng's actions fall into that middle category. Her physical contact with both Ms. Porter and Ms. Ellis was an automatic, unconscious and unintended reaction to being either struck or scratched. There was no delay, consideration or thought inherent in either of her responses. Her reactions were immediate and fleeting with no indication of foresight, malice or intention. This finding is consistent with the descriptions of each incident provided by both Ms. Feng herself and Ms. McIsaac.

[39] What few inconsistencies there were (such as whether Ms. McIsaac had warned Ms. Feng about Ms. Porter's history of aggression and leg sensitivity, or whether Ms. Feng's glasses were thrown across the room rather than remaining askew on her face) do not dispel my reasonable doubts as to the intentionality of Ms. Feng's reactions.

[40] Accordingly, I find her not guilty of these offences.

Released: December 15, 2020

Signed: Justice E. Prutschi