WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
( b ) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2021 03 26 COURT FILE No.: Hamilton Information No. 19-6425
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
R.S.
Before: Justice J.P.P. Fiorucci
Heard on: November 12, 13, December 18 and 21, 2020 Reasons for Judgment released on: March 26, 2021
Counsel: K. Malkovich........................................................................................ counsel for the Crown R.S.................................................................................................. Self-Represented Accused P. Boushy............................................................................................................. amicus curiae
FIORUCCI J.:
Introduction
[1] In the evening hours of November 13, 2018, L.R., the complainant, was involved in a car accident in Caledonia. She was transported by ambulance to a hospital in Hagersville because she required medical attention. She was then transferred by ambulance to Hamilton General Hospital (“HGH”). L.R. believes the transfer to HGH was to perform a CAT scan. She had struck her head on the steering wheel in the accident.
[2] The accused, R.S., was an Environmental Aid (EA) at the HGH. His duties included cleaning rooms and moving patients from room to room. At some point, likely in the early morning hours of November 14, 2018, R.S. moved L.R. from one room to another room in the trauma unit. He gave L.R. ice chips in a cup because she was thirsty.
[3] L.R. fell asleep after a nurse gave her pain medication and made her comfortable for the night. L.R. testified that she awoke to R.S. standing on the right side of her bed with his right hand under the blankets touching her vagina. This lasted for three to five minutes.
[4] R.S. was charged with sexual assault. At trial, the Crown called L.R., as well as two nurses to whom L.R. reported the sexual assault, and two police officers. The self-represented accused, R.S., testified at the trial. He denied sexually assaulting L.R. and claimed that the last time he was in her room was when he gave her the ice chips.
[5] I must determine whether the Crown has met its burden of proving the sexual assault offence beyond a reasonable doubt.
The Evidence
[6] In November of 2018, L.R. was 75 years old. When she was transferred by ambulance to HGH on November 13th, she had a neck brace on. A nurse put in a urinary catheter at HGH. L.R. testified that she was wearing a hospital gown, but no underwear, when she was in the trauma unit of HGH.
[7] In November of 2018, R.S. was 46 years old and had worked as an EA at HGH for over twenty years. He testified that he was working a night shift on November 13th with another female EA. They got a call that a patient needed to be moved from Trauma Room 3 (T3) to Trauma Room 6 (T6).
[8] There is no dispute that R.S. moved L.R. from T3 to T6. R.S. acknowledged that he was wearing blue gloves that night. He stated that EA’s customarily wear gloves to protect themselves when moving patients.
[9] According to R.S., he introduced himself to L.R. and told her that he would be moving her to a different room because they needed T3 for another patient. Once R.S. had wheeled L.R.’s bed into T6, L.R. told him that she was thirsty. R.S. said he would speak with the nurse to determine whether L.R. could drink anything or have ice chips. The nurse, A.S., told R.S. that L.R. could have ice chips, and asked him to bring them to her because she was busy.
[10] R.S. did so. R.S. testified that he put the cup of ice chips in L.R.’s left hand and left the room. R.S. stated that he would have thrown the medical gloves in a waste basket, but he was not sure if he threw them in the basket in T6. R.S. said that, after he gave L.R. the ice chips, he did not see her again, nor did he go to T6.
[11] L.R. gave a very different version of what happened after R.S. gave her the ice chips and left the room. According to L.R., a nurse, A.S., then came in to make her comfortable and gave her pain medication and “a bit of a sedative”. L.R. fell asleep.
[12] L.R. stated that she woke up and felt a hand on her vagina. She looked to her right and saw the same man who had moved her to T6, R.S.. R.S. had his right hand under the blanket and was rubbing her vagina in a circular motion.
[13] L.R. testified that she was looking in R.S.’s eyes and was thinking that he would stop because he knew she was awake. According to L.R., R.S. did not stop. Rather he continued to rub her vagina in a circular motion, did a “quick dip” with his finger at the top of her vagina, and then continued in the same circular motion. L.R. testified that this went on for three to five minutes.
[14] According to L.R., R.S. said he was doing it to check if she was still warm. Then, he pulled his hand out and L.R. saw that he was wearing a blue rubber glove. R.S. just stood there and they were kind of looking into each other’s eyes. L.R. was thinking, “what’s going to happen now?” and worried that things could get a lot worse. She told R.S. that her feet were cold and asked him to put a blanket on them. R.S. bound a blanket around her feet. He then threw the blue glove in the waste basket near the foot of her bed and left the room.
[15] L.R. asserted that, at first, she was hesitant to “ring the buzzer” (the call bell). She feared that R.S. may come back. Eventually, L.R. did ring the bell. A nurse, A.S., responded to the call. L.R. told A.S. what had happened to her; that R.S. had touched her inappropriately between her legs. According to L.R., A.S. told her that things like that do not happen in the hospital. L.R. felt that A.S. was not believing her.
[16] A.S. testified at the trial. She said that when she came to L.R.’s room in response to the call bell, L.R. was teary and upset, and told her that she had been touched between her legs by the person with dark skin who had moved her. A.S. said that she was shocked and upset. A.S. gave L.R. her phone and remembered L.R. calling her son. A.S. then told the nurse in charge, L.M., about L.R.’s report of sexual touching.
[17] During her testimony, L.M. said that she was the charge nurse that night. A.S. came to her and asked to speak to her privately. According to L.M., A.S. spoke with her about L.R.’s disclosure. Then, the two nurses went to L.R.’s room together. L.M. stated that L.R. was upset and crying and may have had her cell phone in her hand with her son on the line. According to L.M., she asked L.R. questions. When L.R. answered her questions, L.R. was “quite lucid” and she answered the questions appropriately. L.M. recalled L.R saying that the male who touched her was dark-skinned, heavy set, wore blue gloves and was the person who moved her to the room. L.M. testified that she recalled R.S. wearing blue gloves that night. Both A.S. and L.M. identified R.S. as the only male EA working that shift.
[18] L.M. stated that, a short time after she spoke with L.R. about the complaint, a doctor came in to examine L.R.. L.M. went to find R.S. and asked him to stay with a security guard in the social work office. L.M. testified that it is possible to penetrate the vagina when a woman has a urinary catheter in place.
[19] When he took the stand in his own defence, the accused, R.S., testified that, after he transferred L.R. to T6 and handed her the ice chips in a cup, he went about doing his job. He did not return to T6 and did not see L.R. again. He agreed with the suggestion that it was a very chaotic night in the trauma unit because of the baby that was coming in without vital signs. R.S. testified that everyone was alert in that situation. If a patient had to go to the OR, it would primarily be the EA’s that would be responsible to transport the patient.
[20] R.S. denied that he took advantage of the opportunity that the chaotic night presented to sexually assault L.R. as she alleged. R.S. declared that when one job is done, the night is not over. There are other tasks to complete like cleaning beds and outside areas. R.S. emphatically denied sexually assaulting L.R..
[21] R.S. is a black man. He testified that he felt he was targeted because he was a black man. However, R.S. acknowledged that L.R. was never rude or belligerent toward him, nor did she ever utter a racial slur.
[22] Officer R.K. testified that she was one of two police officers who attended HGH in response to the sex offence report. She attended T6 and met with L.R.. She seized a pair of disposed hospital gloves in one of the garbage cans in T6 and placed them in an evidence bag. Detective J.T. testified that the Hamilton Police Service (HPS) asked the Centre of Forensic Sciences (CFS) to conduct forensic testing on the gloves for DNA, but, for various reasons, the CFS refused.
Legal Principles
[23] The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus.
[24] In this case, R.S. testified. His evidence was exculpatory. I am required to consider and apply the framework enunciated in R. v. W.(D.), which states that:
(1) If I believe the testimony of the accused, I must find him not guilty;
(2) If I do not believe the accused’s evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;
(3) Even if the accused’s evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
[25] I must determine whether the Crown has proven the specific criminal allegation it has made beyond a reasonable doubt. Even if I do not accept R.S.’s exculpatory testimony, his evidence — viewed in the context of all of the evidence — may leave me in a state of reasonable doubt about his guilt. If it does, he is entitled to an acquittal.
[26] The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation. [3] I can accept all, some or none of a witness’s evidence. [4]
[27] A criminal trial is not a "credibility contest". Even if I were to prefer the complainant's narrative to the one offered by the accused, it does not resolve whether I have a reasonable doubt about the accused's guilt. There are other options requiring acquittal, including "the legitimate possibility" that I am unable to resolve the conflicting evidence and am accordingly left in a reasonable doubt. [5]
[28] It is not my task as the trier of fact to determine which of two versions of an event is true. [6] Rather my task is to assess the accused’s evidence in the context of the evidence as a whole to determine whether the Crown has met its burden of proving the elements of the offence beyond a reasonable doubt.
[29] As the Ontario Court of Appeal recently stated in R. v. T.A., “[a] finding that a complainant is both reliable and credible is not sufficient to satisfy the burden of proof beyond a reasonable doubt”. [7] In T.A., the Court of Appeal reiterated its finding in R. v. J.W. that “a reasonable doubt can survive a finding that the complainant is credible”. [8]
Analysis
[30] The complainant, L.R., was a witness who gave her evidence in a balanced way. She made appropriate concessions when she was cross-examined. For instance, she readily conceded that she suffered head trauma and that she hit her head “fairly hard” on the steering wheel. She acknowledged that her movements were limited by the neck brace; she had to shift the top of her shoulders to look either left or right while lying in the bed. She acknowledged that she made the sexual assault allegation after she received pain medication. There was nothing in the substance of L.R.’s evidence or the manner in which she testified that caused me to disbelieve her evidence. In short, L.R. was a credible witness.
[31] Counsel appointed to cross-examine the complainant, pursuant to s. 486.3 of the Criminal Code, questioned L.R. on a number of issues, including her head injury, inconsistent statements she allegedly made to the nurses about the details of the sexual assault, a potential racial bias against R.S. because he was black, and L.R.’s inability to recall being examined by a Caucasian doctor after she reported the incident to the nurses.
[32] First, I will deal with the issue of L.R.’s injuries and the fact that she had received pain medication before falling asleep, and before she made the sexual assault allegation. For the Defence, the relevance of this line of questioning is that L.R.’s medical condition and the medications she had received may call into question the reliability of her complaint of sexual assault, even if L.R. is a credible witness.
[33] The Crown counters any such inference with the testimony of the nurses, A.S. and L.M., and Officer R.K., each of whom gave evidence about L.R.’s lucidity and ability to answer questions appropriately when they spoke with her about her complaint.
[34] I have reviewed the evidence pertaining to L.R.’s initial report that she was sexually assaulted. There is an absence of evidence regarding how much time elapsed between the point when L.R. says R.S. left the room and the point when A.S. arrived in her room in response to the call bell.
[35] However, L.R. testified that, after R.S. had sexually assaulted her and had left the room, she started “ thinking things through ” because she was afraid to ring the buzzer in case R.S. returned. She said that, after thinking it through, she “ finally” rang the buzzer and “ it [took] a little bit” for the nurse, A.S., to come in to talk to her. As L.R. described it,
…when she came in, I told her. Then I could let everything out, everything I was feeling, it was just, like, a big burst in the sky, finally somebody is here. And then I told her.
[36] A.S. was a witness who had difficulty remembering details of what had occurred in the early morning hours of November 14, 2018, which is understandable since she testified over two years after the events. In cross-examination, A.S. was confronted with a statement she made to the police in which she said that L.R. was acting confused and saying things like, “I think my family is here; they’re supposed to come in”.
[37] When confronted with her police statement, A.S. resiled from the suggestion that she found L.R. to be confused when she went to the room. A.S. said that portion of her police statement came across as “very strange” to her, and that maybe it was just the way it was transcribed. Ultimately, A.S. testified that, based on her present recollection, the only thing that changed between the time she made L.R. comfortable and gave her pain medication and the time she responded to the call bell was that L.R. was teary. A.S. said she “didn’t assess her, like, level of confusion or anything like that at that time”.
[38] L.M.’s testimony on this issue is unequivocal. L.M. stated that when she attended the room with A.S., L.R. was upset and crying, but lucid and answering her questions appropriately. According to L.M., when she spoke with L.R., L.R. was a fifteen (15) on the Glasgow Coma Scale, the highest possible score.
[39] Again, there is an absence of evidence regarding how much time elapsed between the point when L.R. claimed R.S. left the room and the point when L.M. spoke with her. Even more time would have elapsed before Officer R.K. spoke with L.R. and found her to be lucid and answering questions appropriately.
[40] L.R. suffered head trauma in a motor vehicle accident. She made the allegation of sexual assault after she had received pain medication and woke up from a sleep. Although A.S. did not adopt the suggestion that L.R. was confused when she spoke with her in the room, A.S. did admit that she told the police that L.R. was “upset and acting confused”.
[41] These facts do not inexorably lead to a finding that L.R.’s complaint of sexual assault against R.S. is unreliable. However, when I consider the totality of the evidence, they form part of the factual mosaic. I recognize that no medical evidence was led about the injuries L.R. suffered, nor was there any expert opinion evidence regarding how her injuries and any medication she received may have affected her cognitive ability or mental state at the material time, and perhaps contributed to L.R. making a complaint of sexual assault. In the circumstances, I attribute very minimal weight to these facts.
[42] L.R. was cross-examined about inconsistent statements she allegedly made to the nurses regarding the sexual assault. This line of questioning arose out of the police statements of A.S. and L.M..
[43] A.S. told the police that L.R.’s “story changed a little” from the time she first reported the incident to A.S. to when she spoke with the doctor. In her trial testimony, A.S. maintained that she believed L.R. “provided some slightly different details” but she could not remember.
[44] A.S. testified that L.R. told her that she had been “touched between her legs”. In her police statement of November 14, 2018, A.S. said that L.R. told her that the man was “touching over top of the blanket” and that L.R. gestured in a circular motion. In A.S.’s March 28, 2019 police statement, A.S. said that she asked L.R. to show her and L.R. “kind of just, like, pointed to her thighs. But then when the doctor came in, she was, like, ‘Oh, it was actually, like, in the, like, in the vaginal area.’”
[45] When R.S. cross-examined L.M., he put to her a portion of her March 26, 2019 police statement in which she told the detective that L.R. reported that the male had lifted up the blanket, rubbed her thigh, rubbed her vagina and felt her leg.
[46] When L.R. was cross-examined about these allegedly inconsistent statements to A.S. and L.M, she maintained that she would not have told A.S. that she was touched over the blanket because that was not what happened. L.R. explained that R.S. started at the top of the thigh area by the vagina. L.R. said that, if she gestured over top of the blanket while she was laying down, it was to show A.S. the area where she had been touched. L.R. agreed that perhaps she was a little more specific with the doctor.
[47] I find that L.R.’s initial reports to A.S. and L.M. were not materially inconsistent with what she reported to the doctor a short time later. Nor were they materially inconsistent with her trial testimony. A.S. was inconsistent regarding what L.R. told her. I find that L.R. communicated to A.S. that she had been “touched between her legs” and that she conveyed to L.M. that the perpetrator had rubbed her vagina which is consistent with what she told the doctor and consistent with her trial testimony.
[48] Section 486.3 counsel cross-examined the complainant about a potential racial bias she had toward R.S. because he was black. I have reviewed the cross-examination of the complainant on this issue. I also reviewed those portions of L.R.’s video interview that counsel confronted her with when he cross-examined on this issue.
[49] Cross-examination in this area focused on certain statements L.R. made to the detective, such as describing R.S. as “very black” while using a softer tone or whispering, and telling the detective that she thought it was strange that he looked Jamaican but did not speak with an accent.
[50] I carefully considered L.R.’s responses to counsel’s questions and I accept her evidence that she used a softer tone when she said the words “very black” because she did not want to sound like she was discriminating against him based on his race. Based on the testimony of L.R. on this issue, which I accept, I find that L.R.’s complaint of sexual assault against R.S. was not motivated by racial bias.
[51] To be clear, I am only making a finding that race was not a motivating factor for the complaint. I do not find that the Crown has met the “high bar for proving no motive to fabricate”. [9] However, in this case, there is an absence of evidence of any motive to fabricate.
[52] Counsel asked L.R. if she remembered a doctor examining her after she reported the sexual assault. L.R.’s memory of this was vague. She testified that she thought he was a short, thin man, possibly a Chinese doctor. Other witnesses described Dr. Q., the doctor who examined L.R, as a tall, Caucasian man. I find that L.R.’s inability to recall or describe Dr. Q.’s appearance is insignificant and does not affect the reliability of her evidence regarding the core details of her complaint. According to L.M., Dr. Q. examined L.R. for about twenty minutes. L.R.’s inability to accurately recall the doctor’s appearance some two years after the event is unsurprising.
[53] My finding that L.R. was a credible witness does not automatically result in a conviction of R.S. for sexual assault. I turn now to an assessment of R.S.’s evidence which I have considered in the context of all of the evidence.
[54] There was nothing in the substance of R.S.’s evidence or the manner in which he testified that caused me to disbelieve his evidence. I found R.S. to be a witness who did his best to recall the interactions he did have with L.R. at HGH in November of 2018. R.S., like L.R., gave his evidence in a balanced way. For instance, he acknowledged that he wore gloves when he moved patients and would discard those gloves in whichever garbage can was closer. Although he could not recall whether he put a pair of gloves in the garbage can in T6, he did not dispute that it was possible, which would corroborate L.R.’s testimony on this point.
[55] R.S. emphatically denied that he returned to T6 to sexually assault L.R. after giving her the ice chips. I believe his denial. He was a credible and reliable witness. The Crown submits that R.S.’s testimony is deficient because it lacks details about what he did after he gave L.R. the ice chips. The Crown argues that I should prefer the testimony of L.R. because she provided more and better details about the night in question when compared to R.S.’s version of events. The Crown says that R.S. was unable to “fill in the time” and should have been able to tell the Court where he was during that period of time when L.R. alleges she was sexually assaulted.
[56] I disagree with the Crown’s characterization of R.S.’s testimony. R.S. provided a detailed account of the interactions he had with L.R. when he moved her to T6 and brought her the ice chips. When he was cross-examined, he answered Crown counsel’s questions appropriately and his evidence, including his denial of the sexual assault, was unshaken by the cross-examination.
[57] R.S. did give evidence about what he did after his interactions with L.R. in the following exchange with Crown counsel:
Q. And I’m going to suggest to you that shortly after that happens, you hear that there’s a call to T6; you hear the call bell go off for T6.
A. No, we – there’s other stuff to do…
Q. Okay.
A. …in the ER at night, so after we’re done one job, like, your night is not over; there’s other stuff to do, there’s other beds to clean, we have other duties that we do, outside areas, so and so forth. So, no, I was not there when the call bell went off.
Q. All right. So, you never heard the call bell, didn’t respond to it?
A. No.
[58] Therefore, R.S.’s evidence is that, after dealing with L.R., he went about completing the other tasks he was required to complete as part of his duties as an EA, the job he had been doing for over twenty years. With respect to the material issue in this case, his contact and interactions with L.R., R.S. provided details of the only interactions he says he had with her. According to his version of events, there are no further details that he could possibly provide on this issue, other than to deny that he committed the sexual assault.
[59] Where there is evidence inconsistent with guilt, “[c]riminal trials cannot properly be resolved by deciding which conflicting version of events is preferred”. [10] In this case, L.R. and R.S. gave conflicting evidence about the crime alleged. I found them both to be credible witnesses. My inability to resolve their conflicting evidence about the crime alleged, the central issue in this case, leaves me in a state of reasonable doubt and mandates that I acquit R.S. under the W.(D.) framework.
Conclusion
[60] I find R.S. not guilty of the sexual assault charge.
Released: March 26, 2021 Signed: Justice J.P.P. Fiorucci