DATE: 2020 07 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.L.
Defendant
J. MacDonald, for the Crown
D. Robitaille, S. Hopkins for the Defendant
HEARD: June 8,9,10,11 and 12, 2020
Justice G.D. Lemon
judgment
The Issue
[1] S.L. is charged with sexually assaulting the complainant in 2005 when she was a patient of his at his Traditional Chinese Medicine clinic. On consent, the trial was held on a Zoom platform pursuant to s. 650(2) (b) of the Criminal Code of Canada R.S.C., 1985, c. C-46. My ruling on that procedure is reported at In Re: Court File No. 19/578, 2020 ONSC 3870.
The Evidence
Evidence of the Complainant, D.H.
[2] D. H. is now 38 years of age. She first met S. L. in May of 2004 when she went to his office after completing her third year of university. She was 22 years of age at the time.
[3] In her examination-in-chief, she testified that she went to S.L. for digestive issues because she was suffering from bloating and gas. She also had concerns about facial acne which she has had since she was a teenager. In the past, she had been prescribed Accutane to help with her acne but that caused stomach problems and ulcers.
[4] D.H. met S.L. at his office in Guelph. When she arrived for her first appointment, she observed a reception desk and a small waiting room. She described the office as similar to a doctor’s office.
[5] When she first went to see S.L., she knew nothing about Traditional Chinese Medicine. She knew that it was an alternative form of treatment but was not aware of the details.
[6] After checking in at a reception desk, she walked down the hallway to S.L.’s office. No one was with them during that initial interview. She sat opposite S.L. at the desk and he took a history from her. He was dressed professionally in a tie and jacket or polo shirt. He referred to himself as “Dr. L.” In her evidence, she acknowledged that, on the first page of her treatment record, it discloses that S.L. is not a medical doctor. She understood that he was not a western medical doctor and had no confusion about that.
[7] She thought that he was a doctor of naturopathic medicine or Chinese medicine but he did not explain what Traditional Chinese Medicine was. He did say that he could help her with both her acne and her digestive problems.
[8] She cannot remember if S.L. prescribed anything for her at that first meeting but he later prescribed teas that were made specifically for her treatment. She may also have bought vitamins from him. She paid for the tea and picked it up at the reception desk.
[9] During her course of care, she also received treatment from others at the clinic. She had a hair analysis to determine food allergies or digestive issues. She also saw a female acupuncturist.
[10] She saw S.L. approximately eight or nine times. He did not physically examine her, although he might have looked at her tongue. The first appointment was approximately 45 minutes, while the others were approximately 20 minutes in duration.
[11] The allegations arise from her attendance at her last appointment. In her examination-in-chief, she testified that she did not remember the month that she went but it was in the summer of 2004 or 2005. She had completed her undergraduate degree in 2005.
[12] She described her relationship with S.L. as “practitioner/client”; she respected and trusted him. His advice and the prescribed teas had helped her.
[13] On this last occasion, she met S.L. in the same office. She does not recall if anyone else was there. They sat at the same desk and chairs. He was wearing a blue polo shirt and black dress pants. He was making notes on a paper chart, but he did not show those records to her.
[14] She was wearing a shirt that showed the tops of her arms. She had red bumps on her arms. She could not remember if he said that he had been reading some research or had been doing some research on the topic, but he told her that those bumps may have been caused by a tilted uterus. He offered to examine her, and she agreed to the examination. At that point, he did not tell her how he was going to do the examination.
[15] Before they went to the examination room, he asked if she wanted anyone in the room for the examination, but she said “no, thank you.” She trusted him that it was the right thing to do and she was embarrassed. He got up and went to the examination room across the hall from his office; she followed him there.
[16] In the examination room, there was an examination bed in front of them against the wall and, to the right, there was a sink and countertop. The examination bed was covered with a “plasticky” material. He told her to undress from the waist down and get on the table. Although he did not tell her what he was going to do, she believed that he was going to carry out an examination of her vagina. He left while she undressed and came back after she was on the table.
[17] She does not remember being given anything with which to cover up. She does not remember if there was any paper on the examination table but also does not remember any sound of crinkling paper.
[18] When he returned, she was on her back. He told her that he was going to insert two fingers into her vagina and to put the soles of her feet together. She saw his hands go towards her vagina and closed her eyes. He was not wearing gloves and did not use any lubrication. He attempted to put two fingers inside her, but it hurt her, she said “ow, ow, ow” and pushed his hands away. She allowed him to try for 10 to 15 seconds.
[19] In response, he asked her to spread her legs wider and to relax and she said, “I’ll try”. He tried again, but she was tense, scared and nervous. Again, his examination hurt, and she pushed his hands away. He then removed his hands and did not try again.
[20] Between the two examinations, he did not ask her if she wished to continue. When he tried the second time, he was “helpful and kind”.
[21] He then turned to wash his hands and told her to put her clothes back on and come to the office. She does not remember if he washed his hands before he examined her. His demeanour was matter-of-fact. He left the office, she got dressed and then went into his office.
[22] D.H. testified that, at that time, she did not know what had happened and thought that perhaps it was her fault. Although she had not had an internal examination before, she found the examination odd in that he had no gloves, no lubricant and the words he used were odd to her. He was matter-of-fact after the examination. He was not making unusual sounds and did not make any sexual overtures.
[23] When she spoke with him in his office, he said that he was not able to complete the examination and did not know if she had a tilted uterus. He left it at that.
[24] He did not tell her that he was not entitled to do an examination by law. If he had, she would not have consented. He did not tell her that it was not part of Traditional Chinese Medicine. She would not have consented if he had told her so.
[25] She left and went home. She did not feel right about what occurred and told her mother about his suspicions about her uterus. She did not tell anyone what had occurred in the office. She received no other treatment from S.L.
[26] In 2018, D.H. saw a police media release that discussed a Chinese or naturopathic doctor in Guelph being charged with sexual assault. She knew that person to be S.L. She then told her husband what had occurred. She identified a media release but does not remember the details of the article. She agreed that it referred to multiple charges and that the victims were former patients of S.L.
[27] She went to the police the next day and gave a statement to the investigating officer. That statement is dated January 16, 2018. That officer told her that S.L. did not have the authority to do such an examination and D.M. felt taken advantage of. She was not aware of that lack of authority before that time. She thought it was within the scope of his examination and had no reason to think otherwise. She was uneasy about what occurred but did nothing to investigate what had happened.
[28] She agreed that, when she gave her statement to the police, the officer wanted to know all of the details that she could recall and to get her best memory of the events. She did her best to answer her truthfully.
[29] The investigating officer stayed in touch with her and both had each other’s email address. The officer provided her with updates of the prosecution. She was asked to add other items to her statement if she recalled anything further. She also met with the Crown Attorney to review S.L.’s clinical record of her attendances. She looked at the chart before the preliminary inquiry but could not read it. She reviewed her video statement before the preliminary inquiry.
[30] In May of this year, she spoke with the investigating officer and the Crown Attorney to prepare for trial on two occasions. She was provided with copies of her statement, the preliminary hearing transcript, the press release and her clinical records. She reviewed all of those documents once. On May 29, 2020, she told the Crown and the investigating officer that a date in the police transcript was wrong and the spelling of her name was incorrect but made no other changes. Until the morning of trial, she provided no other changes to anyone.
[31] She was clear in her evidence that when she had her first appointment, she told S.L. about her discomfort and bloating and that she was lactose intolerant. She told him that she had been prescribed Accutane for her acne. She had migraines in 2004 and likely reported that to him.
[32] She agreed that, at the preliminary inquiry and in her statement to the police, she said that she went to the clinic for stomach issues and digestive problems. At no time did she say that she was there about problems with her acne.
[33] She agreed that her memory of 2004/2005 is flawed, and it is possible that some of the details were confused, but not the acts of which she had complained.
[34] She reviewed the clinical record the night before trial. There, the record shows that she wrote that the reason for the visit was “acne”. Only at trial did she say that she was there for treatment of her acne. She agreed that this was not a deliberate lie but rather came from her review of the record. The record corrected her memory.
[35] When she spoke with the police, she said that the assault occurred in the summer of 2004. That was between her third and fourth year of school when she was 22 years of age. At several points in her evidence at the preliminary inquiry, she confirmed the same and was never uncertain of those details.
[36] However, now that she has reviewed the chart, she is reminded that the assault occurred in 2005, after graduation, when she was 23. She agreed that she was wrong in her memory about dates.
[37] She was asked about how many appointments she had with S.L. In both her statement and at the preliminary inquiry, she said she had four or five appointments but has now changed that to eight or nine times after reviewing the record.
[38] Despite these corrections, she has a clear memory of the vaginal examination. She is sure that she attended S.L.’s office for both her acne and her digestive issues because she understood at the time that they were linked.
Opinion Evidence of Terry Hui
Voir Dire Ruling on Expert Evidence
[39] Before Mr. Hui gave his evidence, the Crown asked to have Terry Hui qualified to give expert opinion evidence with respect to the treatment and diagnosis of ailments in Traditional Chinese Medicine. The Crown also asked the he be able to give opinion evidence with respect to the general practice of Traditional Chinese Medicine. The Crown wished to ask him whether such an internal examination was a diagnostic procedure in Traditional Chinese Medicine. He was to be asked whether an internal examination is a treatment of any kind in Traditional Chinese Medicine. These questions are to be asked within the “rubric” around the philosophy, diagnosis and treatment in Traditional Chinese Medicine.
[40] The defence objected to that opinion evidence and a voir dire was held. I allowed the Crown to call Mr. Hui to provide that evidence for written reasons to follow. These are those reasons.
[41] Mr. Hui has been a Traditional Chinese Medicine practitioner and acupuncturist for 30 years. He was trained initially in China and came to Canada in 1992. His curriculum vitae runs six pages. His interest in the field started as a hobby when he was 16 years old in 1976. He then carried on his training through an apprenticeship until 1991. By that point, he had also obtained a number of certificates in more formal education combined with his apprenticeship.
[42] Mr. Hui’s curriculum vitae lists a number of courses and certificates both related and unrelated to Traditional Chinese Medicine. For instance, he took training in therapeutic touch and craniosacral therapy, but they are not part of Traditional Chinese Medicine.
[43] Over the period 2003-2007, he received a diploma of Doctor of Traditional Chinese Medicine from Capital University of Medical Sciences in Beijing, China.
[44] His curriculum vitae sets out that he has treated patients for a wide range of ailments, but he testified that he has also treated patients for gynecological issues, skin problems, digestive issues and acne.
[45] Mr. Hui has been employed by Humber College as a professor and has been involved in setting the curriculum there for Traditional Chinese Medicine. He has acted as a mentor/teacher to students in his clinic.
[46] Traditional Chinese Medicine was not regulated until 2013, but he has been registered as a practitioner in Traditional Chinese Medicine and acupuncture since 2013. His professional service includes being involved with the College of Traditional Chinese Medicine since 2013. He was involved with the transition of Traditional Chinese Medicine to a regulated profession as requested by the Minister of Health.
[47] He is had “a few thousand patients” since he started his practice and would have diagnosed all of them. He was treating and diagnosing patients during the years of 2004 and 2005.
[48] Mr. Hui was qualified on consent as an expert in Traditional Chinese Medicine by Mossip J. in December 2019. He has also been qualified in the same field in the Ontario Court of Justice.
[49] He testified that he understands his obligations to be truthful, objective, fair and impartial in providing his evidence.
[50] To that point, his credentials appear sufficient. Cross-examination brought out a number of blemishes.
[51] Mr. Hui acknowledged his obligation to be honest. He agreed that he needed to be honest in his discussions with the Crown and the defence and in the documents he produced for his evidence.
[52] He was referred to the entry in his curriculum vitae that suggested that he received part of his training from Capital University in Beijing. He agreed that this was carried out in Scarborough and not in Beijing. He did not intend to mislead but rather simply followed how others had prepared their curriculum vitae.
[53] His early training included “bone setting” and “spine setting.” He suggested that spine setting is similar to chiropractic but described chiropractic as more profound. He agreed that he is prohibited from spine setting in Ontario. He acknowledged that he did so in the past until he was told that he could not. It was only after he was advised by a chiropractor that he could not do spine and bone adjustment, that he found out that he could not.
[54] He has a 1991 certificate in Advanced Aural-Laserpuncture Physiotherapy from the Chinese Aural-Laserpuncture Physiotherapy Association. That is a “non-profit organization” rather than a school. This training in Traditional Chinese Medicine was not as formal as a university. He testified that a student could go as often as they wanted but he went very often. The curriculum vitae shows that he is a Fellow of that Association, but he could not deny that the Association had been dissolved in 2010.
[55] His curriculum vitae outlines that he was the founder of two organizations; the Canadian School of Tai Chi Therapy (“CSTCT”) and the Traditional Chinese Medicine Education Centre of Canada (“TCMECC”). It does not show that the TCMECC has been dormant since 2008 and the CSTCT is not up and running yet. Neither have a website or members.
[56] He prepared a report at the request of the Crown to explain Traditional Chinese Medicine. In that document, he tried to explain Traditional Chinese Medicine concepts in a way to help the lawyers and the parties involved in this case. He agreed that he tried to choose his words carefully.
[57] He agreed that part of the document was copied from Wikipedia.
[58] Although he provided references for some of his statements, in many places, he failed to reference what appears to have been cut and pasted from websites, blogs and other online sources. There were so many, he agreed, that it would be difficult to source them all now.
[59] He agreed that seven pages of his report came from a textbook and he could just as easily have provided photocopies of those pages. He did not know that he could do that in his role as an expert.
[60] He explained that he tried to find materials that would best describe the concepts to help people understand. He testified that he “prepared” the report rather than wrote it. Some parts of the report were “not my area”. Rather, he was just trying to answer the questions that were given to him by the Crown. In order to answer those questions, he went through so many websites and textbooks that he could not remember where he found them. He agreed that the majority of the report was copied by cutting and pasting from websites and some textbooks.
[61] He had no experience in writing an expert’s report and did not think about cutting and pasting without attribution. He was simply trying to give a simple understanding to the reader.
[62] In re-examination, he pointed out that his expressed opinions with respect to the issues in this case are all his work. The other information, while not referenced, is accurate. He did not have an intention to mislead but rather to get the right information for the reader.
Admissibility of Opinion Evidence
[63] In brief, the defence argues that Mr. Lui is not qualified to give opinion evidence as his evidence is neither reliable nor relevant. The defence concedes that the general evidence of Traditional Chinese Medicine may be necessary and none of the evidence should be excluded by some other exclusionary rule. There is no submission that the evidence is novel science.
Authorities
[64] The parties rely upon and accept the principles set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. There, the Court confirmed that in order to allow opinion evidence, the party proposing to lead it must show that the evidence is relevant, necessary, is not excluded by another evidentiary rule, and is to be given by a properly qualified expert. ‘Properly qualified’ includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is impartial, independent, and unbiased.
[65] If all of those cannot be shown on a balance of probabilities, the evidence must be excluded.
[66] Even if admissible, the trial judge has a second, discretionary, gatekeeping step. At that stage, the judge must balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risk to the trial process. The Court confirmed that the "trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence": White Burgess, at para. 24.
[67] The Court also focussed on the expert’s duty to the court in providing that evidence. The expert must give evidence that “should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation”: White Burgess, at para. 27, citing National Justice Compania Naviera S.A. v. Prudential Assurance Co., [1993] 2 Lloyd's Rep. 68 (Q.B.), at p. 81. Further, “[a]n expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his [or her] expertise”: White Burgess at para. 27, citing National Justice, at p. 81.
[68] The court also considered the impact of bias on the admissibility of the expert’s opinion:
For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert's lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case. [White Burgess, at para. 36, citing Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, at para. 106]
[69] However, once the expert confirms his or her obligations, the burden is on the party opposing admission of the evidence to show that there is a realistic concern that the expert is unable and/or unwilling to comply with that duty. If the opponent does so, the burden remains on the party proposing to call the evidence to show (on a balance of probabilities) that the expert is willing and able to comply with his/her duties as an expert. If this is not done, the evidence, or those parts of it that are tainted by a lack of independence or by impartiality, should be excluded: White Burgess, at para. 47.
[70] Ultimately, the court was of the view that:
This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. . . I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion but be taken into account in the overall weighing of costs and benefits of receiving the evidence. [White Burgess, at para. 49 omitted]
[71] In R. v. Natsis, 2018 ONCA 425, Pardu J.A. summarized the expert’s obligations place in the analysis as:
[11] I extract the following principles concerning the admissibility of expert evidence from White Burgess, at paras. 46-54:
(a) Expert witnesses have a duty to assist the court that overrides their obligation to the party calling them. If the witness is unable or unwilling to fulfill that duty, their evidence should be excluded.
(b) An expert’s attestation or testimony recognizing and accepting their duty to the court will generally suffice to meet the threshold for admissibility as it relates to bias.
(c) The burden rests on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable or unwilling to comply with their duty to the court.
(d) If the opposing party establishes that there is a realistic concern, then the party proposing to call the evidence must establish that the expert is able and willing to comply with their duty to the court on a balance of probabilities. If this is not done the evidence, or those parts of it that are tainted by a lack of independence or impartiality should be excluded.
(e) Even if the evidence satisfies the threshold admissibility inquiry, any concern about the expert’s impartiality and independence is still a relevant factor in weighing the R. v. Mohan, factors for admissibility – such as relevance, necessity, reliability, and absence of bias. Bias remains a factor to be considered in determining whether the potential helpfulness of the evidence is outweighed by the risk of the dangers associated with that expert evidence.
(f) Expert evidence will rarely be excluded for bias; anything less than clear unwillingness or inability to provide the court with fair, objective, and non-partisan evidence should not result in exclusion. Rather, bias must be taken into account in the overall weighing of the costs and benefits of receiving the evidence. Context is important. Both the extent of the expert’s alleged bias and the nature of the proposed evidence are relevant. [Citations omitted]
Positions of the Parties
[72] The Crown submits that the evidence is relevant to the issue of consent; the complainant would not have consented to the touching if she knew that what occurred was not authorized or part of Traditional Chinese Medicine. This evidence is to show that background.
[73] The Crown submits that Mr. Hui is qualified through his experience and education. Despite the apparent errors in his resume and manner of report writing, his expertise and opinion is still valid. She points out that the substance of the report and the opinion were not attacked in cross-examination. Mr. Hui confirmed the validity of what he prepared even if he did not write the entire report. In any event, he wrote the parts of the opinion that are relevant to the issues.
[74] In response, the defence submits that, looked at in its entirety, the opinion evidence is neither relevant nor necessary to deal with the issues in the trial. Given his noted failings, Mr. Hui is not qualified to give such an opinion. If I find that he is so qualified, I should exclude the evidence as not worth the risk/benefit analysis.
[75] The defence relies heavily on the plagiarism of the report and the failure of Mr. Hui to make that clear at the outset of his involvement. To that end, the defence relies upon Anderson v. Pieters, 2016 BCSC 889. There, Saunders J. excluded an expert’s evidence for, among other things, the expert’s plagiarizing and editing references upon which he relied.
[76] Even if the manner of writing the report was inadvertence, I should be concerned that Mr. Lui is competent to provide the balance of his opinion.
[77] With respect to relevance, the defence submits that Mr. Lui acknowledged that in 2004/2005, the practice of Traditional Chinese Medicine was unregulated and that practitioners carried on according to their own training. Indeed, Mr. Lui carried out bone setting contrary to the law at the time as part of his practice. Accordingly, the evidence does not assist with whether the alleged actions were contrary to Traditional Chinese Medicine.
Analysis
[78] In argument, I raised with the parties my concern that this evidence might be objectionable at this stage of the trial and, perhaps, might be better dealt with in reply, if necessary. Both acknowledged that concern, had considered it in advance and were content to proceed as they had.
[79] This analysis was made difficult by the manner in which the evidence was led. Mr. Hui gave his evidence related to credentials and his opinion and then was cross-examined on both his credentials and his opinion evidence before argument was heard. That made it hard to distinguish what evidence applied to which argument, since the defence was objecting to the expertise, the admissibility of the evidence and its weight if admitted, all in the same argument. I allowed that to happen at the request of the parties but, in hindsight, I should not have. Be that as it may, I am satisfied that I can carry out the analysis.
[80] There is no doubt that Mr. Lui is not a very good report-writer. However, he admits to that without hesitation. While the curriculum vitae has some parts that are more akin to advertising puffery than qualifications, after deleting those items, Mr. Lui has lengthy qualifications to support his opinion.
[81] The background to Traditional Chinese Medicine that the Crown seeks to tender does not appear to be in dispute. While the manner of writing that content is objectionable, Mr. Lui has the background and training to confirm almost all of the information relating to Traditional Chinese Medicine. What is “not my area” is not in issue. The objectionable report is not to be filed in evidence. The opinion that is proposed to be in evidence falls within his experience and training and is given in his own, albeit brief, writing.
[82] These circumstances are significantly different than in Anderson. There, the report was found to be plagiarized, the proffered expert was found to have lied about his explanation for his writing, was biased, unqualified and not independent. The trial judge found the opinion to be unreliable and that the report was impermissibly late. Finally, the opinion in evidence was very much in issue in the litigation. I do not find Anderson to be of much help to the analysis in this case.
[83] On the Crown evidence, S.L. was practicing Traditional Chinese Medicine. Mr. Hui is put forward to assist me in understanding that field. I have no experience in the area. That information is necessary for me to determine the issues.
[84] While the Crown and defence dispute whether the evidence is relevant, that is not to be based only on one view of the case. I understand that the Crown submits that this evidence is relevant to the issue of consent. The defence denies that legal argument but that is not determinative of relevance. Evidence that supports a fact in issue is still relevant. I should not determine the strength of that argument at the admissibility stage. I find that the evidence is relevant.
[85] As a judge alone case, I am not concerned that I will be overwhelmed with the proffered evidence. The evidence will be brief.
[86] I do not understand the defence to submit that Mr. Hui is biased but argues that he is so unreliable or unbelievable that the evidence should be excluded at the threshold stage. I do not see this situation rises to the level of a “very clear case” such that it should be excluded: White Burgess, at para. 49. Mr. Hui’s failures in his written work will go to his credibility and reliability rather than his admissibility.
[87] Accordingly, I allowed the evidence into the trial proper.
Trial Evidence of Mr. Hui
[88] Mr. Hui’s curriculum vitae was filed as an exhibit at trial. While the report was not in evidence, I find that the cross-examination on the manner of how it was written is admissible. I find that such evidence is similar to the cross-examination on a prior statement. The statement is not admissible but any inconsistencies are admissible.
[89] While Mr. Hui gave a description of Traditional Chinese Medicine, I will summarize those parts of his evidence that relate directly to the issues at trial.
[90] In his opinion, the treatment options for digestive disorders are herbal therapy, acupuncture or massage. Skin rashes can be treated with acupuncture. A tilted uterus could be treated with acupuncture or massage. In short, D.H. presented with issues that could be treated with Traditional Chinese Medicine.
[91] Touching the patient is only necessary to help with diagnosis or assessment. Such contact would include touching the patient’s back or through acupuncture or massage. If he was to touch a patient, he would ask and explain where and why he was going to touch the individual and get their consent first.
[92] He never has his patients undress. There are other ways to treat without doing so.
[93] The College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario came into effect in 2013. Standards for practice were set at that time. Before that, practice within the profession was supposed to be the same. However, “self-study” along with practicing in a clinic was the manner of teaching and learning, rather than “school training”.
[94] In his opinion, Traditional Chinese Medicine does not involve putting fingers in a woman’s vagina to diagnose ailments or to carry out a gynecological examination. In his opinion, such an examination is not permitted by law.
[95] With respect to the diagnosis of a tilted uterus, he would do that by observing the patient’s walking pattern. A tilted uterus would normally be reported to him by the patient with a current diagnosis by their western medical doctor. In the normal course, he would not diagnose such a thing.
[96] Within his own practice, he does not have his patients undress.
[97] He agreed in cross-examination that, in some circumstances, it is appropriate that a practitioner may examine a patient in full undress, but it was not his practice. He acknowledged that this is confirmed by guidelines from the College.
[98] He agreed that the practice of Traditional Chinese Medicine has evolved over the years. Its practice will differ from jurisdiction to jurisdiction and is dependent on the practitioner’s training. He agreed that Traditional Chinese Medicine training can be different from one country to another. Before the profession was regulated in 2013, each practitioner practiced according to their training. He was not aware of the training of other practitioners in other countries. Accordingly, he did not know how other practitioners were practicing in 2004 and 2005.
[99] He agreed that, in some Traditional Chinese Medicine programmes, there is training for vaginal examinations, but he would not do such an examination.
Authorities
[100] The principles of law to apply here are well known to the lawyers. Here, I hope to explain those principles to S.L. and D.H.
[101] S.L. begins the trial with the presumption that he is innocent of the charge. The Crown carries the burden of displacing that presumption with proof beyond a reasonable doubt that S.L. committed the crime with which he is charged. The accused is never required to testify or prove anything. Any accused can plead not guilty and require the Crown to prove the charges beyond a reasonable doubt. An accused has the right to remain silent, call no evidence and submit that he or she should be acquitted because the Crown’s case fails to prove his or her guilt beyond a reasonable doubt. No adverse inference can be made against an accused when he or she exercises that right.
[102] In R. v. Nyznik, 2017 ONSC 4392, Molloy J. said:
17 Although the slogan "Believe the victim" has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.
[103] The evidence of the complainant must not be approached with any unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. With respect to sexual offences, there is no typical victim or typical assailant or typical situation or typical reaction.
[104] I must caution myself against reaching conclusions based on common misconceptions. Instead, I must approach the evidence with an open mind and without preconceived ideas. I must make my decision based solely on the evidence and in accordance with the law.
[105] When considering whether the evidence proves the charge beyond a reasonable doubt, the law is clear that a reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or absence of evidence. It is not enough if I believe that S.L. is probably or likely guilty. Probable or likely guilt is not proof beyond a reasonable doubt.
[106] At the same time, it is nearly impossible to prove something with absolute certainty. If, after considering all of the evidence, I am sure that S.L. committed the offence, then I will be satisfied of proof of the offence beyond a reasonable doubt and must convict. However, if after considering all of the evidence or the lack of evidence, I am not sure that S.L. committed the offence, then I must find him not guilty, because the Crown will have failed to satisfy the burden of proof beyond a reasonable doubt.
[107] In R. v. D.D., 2000 SCC 43, at para. 65, the Supreme Court of Canada confirmed that:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of the complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
[108] In R. v. Clottey, 2018 ONCJ 536, Brown J. summarized that:
487 Sexual assault is defined as intentional, non-consensual touching, occurring in circumstances of a sexual nature. Whether circumstances of a sexual nature are present in a given situation is determined on an objective test by the trier of fact.
488 No specific sexual intent or motivation is required for a finding of sexual assault. However, the intent of the accused is one of several factors to consider in determining whether the alleged conduct is sexual, including the situation in which it occurred, any words and gestures accompanying the act.
489 Doctor-patient sexual assault cases are somewhat different from other sexual assault cases because there can be legitimate medical reasons for a practitioner to examine a patient's sexual organs. So the "part of the body touched"-admittedly a relevant factor as per Chase - requires contextual consideration.
490 So long as the practitioner has a valid medical purpose and, objectively, a legitimate reason for examining the breast or genital area, then unless the touching is of a sexual nature, the part of the body touched is of less significance in the analysis. That is why the British Columbia Court of Appeal in R. v. Buna and the Supreme Court of Canada in R .v. Litchfield have emphasized that in order to convict a physician in this context, the doctor's touching must have been of a sexual, and not simply medical, nature; the doctor's touching must have been used to "sexualize" the interaction.
491 R. v. Maurantonio raised the question of what a patient actually consents to during a medical examination. That case stands for the proposition that patients can only provide consent to a bona fide medical examination, conducted for a legitimate medical purpose.
493 The appropriate question to ask is whether the examinations were "medically justifiable" or "clinically reasonable" rather than "clinically necessary," as doctors may often disagree as to whether a medical test or exam is strictly necessary or not.
499 Patient perceptions, while obviously relevant, are not determinative…
501 Where there was a legitimate medical rationale for the examination, and the examination was not performed in a sexual fashion, there can be no finding of a sexual assault. [Citations omitted, emphasis in original]
Analysis
[109] At the end of her evidence, D.H. could only be described as credible. Indeed, the defence does not argue any different. D.H. volunteered what she could not recall if she could not. She gave her evidence without undue emotion and with a matter-of-fact approach. The demeanour of a witness is not a reliable factor for a judge to assess credibility; however, there was nothing in her manner of testifying that raised any doubts about her evidence.
[110] Parenthetically, a Zoom hearing allows a judge to look directly at the witness while testifying and not from the side or, in some courtrooms, from slightly behind the witness. To the extent that demeanour is of assistance, a Zoom trial provides for greater observation of the witness.
[111] Because Zoom hearings can be both audio and video recorded, counsel agreed that the video recording was to be saved as a lettered exhibit in case that might be an issue in the future. While deliberating, I did not consider the video recording.
[112] The issue in this trial is not D.H.’s credibility but her reliability. In R. v. Slatter, 2019 ONCA 807, Trotter J.A. pointed out, at para. 60:
As this court has pointed out, credibility and reliability are not the same thing. "Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue". Thus “[c]redibility … is not a proxy for reliability: a credible witness may give unreliable evidence.” [Citations omitted]
[113] Despite D.H.’s honest belief in her evidence, can I rely on it to prove S.L. guilty beyond a reasonable doubt? I find that I cannot.
[114] The defence points to the changes in D.H.’s evidence about the timing of the events in issue. D.H. changed her evidence from 2004 to 2005; from just after third year to just after graduation. The defence also points to her change in evidence of the reason for her attendance from acne to digestive problems. Finally, the defence raises the spectre that D.H.’s memory may have been triggered and impaired by the police press release.
[115] I agree with the Crown that, after so many years, these are peripheral issues that any truthful witness can be uncertain or err in recounting. They are not essential elements of the offence. Any impact of the press release is speculation.
[116] However, what is important here is the certainty with which D.H. held to her first memories and the equal certainty with which she changed her recollection on reading her record 15 or 16 years later. I am left unsure whether other cues could change her evidence, one way or the other, in any equally certain fashion.
[117] Further, even if I were to accept D.H.’s evidence as she now recollects, I am unsure, on the totality of the evidence, that a sexual assault occurred. D.H. testified that she did not know what occurred at the time. Only with the advice of the investigating officer did her uneasiness of what occurred 13 or 14 years before make her feel that S.L. had taken advantage of her. Was that so or was she being treated appropriately? Accordingly, I shall carry on to consider whether, on all of the evidence, I am satisfied beyond a reasonable doubt that a sexual assault occurred.
[118] I find that D.H. consented to the examination if it were part of the practice of Traditional Chinese Medicine. There is no suggestion otherwise. She agreed to attend the examination room, declined a chaperone and followed S.L.’s directions. Even when she experienced pain, she followed S.L.’s directions to continue the examination. She voiced that agreement with “I’ll try.” When she pulled his hand away a second time, S.L. stopped the examination.
[119] The real issue here is whether what occurred was part of Traditional Chinese Medicine. If not, was the physical contact of a sexual nature?
[120] The Crown relies on R. v. Chase, 1987 CanLII 23 (SCC), [1987], 2 S.C.R. 293, where it is said:
Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [at p. 302, citations omitted]
[121] The Crown submits that I can rely on Mr. Hui to show that the touching was neither permitted nor part of Traditional Chinese Medicine. Accordingly, the touching was of a sexual nature and D.H. would not have consented to the act if she had been told that. The Crown submits that it is not required to prove beyond a reasonable doubt whether there was a sexual purpose in the touching.
[122] However, I cannot find the Mr. Hui’s evidence goes that far. He said what he would do, not what all Traditional Chinese Medicine practitioners would do. At the relevant time, the profession was unregulated, and training was by apprenticeship. Each practitioner practiced according to their own training in their own style in their own country. While he did not do gynecological examinations, or examine undressed patients, he did not deny that others could so according to their training and practice.
[123] Mr. Hui gave his opinion of what he would do; he was of no assistance as to what others, according to their individualized training, might do.
[124] I also agree with the defence that Mr. Hui may also not understand his expert role. While I found that his evidence was admissible, I must still be cautious of it once admitted. I have no doubt about Mr. Hui’s bona fides, but I am hesitant to accept his evidence outright. He misunderstood the degree that his curriculum vitae should be up to date and scrupulously accurate. He wavered between what his practice was, whether he knew how others practiced and whether he simply did not approve of how others practiced. That weakness shakes his evidence such that it cannot satisfy me beyond a reasonable doubt that S.L.’s treatment was contrary to Traditional Chinese Medicine.
[125] There is no obligation on S.L. to prove that he was treating D.H. according to Traditional Chinese Medicine practices; the onus lies upon the Crown to show that he was not.
[126] The Crown submits that any consent was vitiated by the fraudulent activities of S.L. pursuant to ss. 265(3)(c) and 273.1(1) of the Code. However, that requires a finding that S.L. induced D.H. to engage in the activity by abusing a position of trust, power or authority. Mr. Hui’s evidence cannot rise to that level. If the acts carried out by S.L. amounted to reasonable Traditional Chinese Medicine, there was no such abuse and no vitiated consent. I cannot find beyond a reasonable doubt that such an abuse occurred.
[127] Similarly, in R. v. Hutchinson, 2014 SCC 19, it is said that
[55] …[a]t the first stage of the consent analysis, the Crown must prove a lack of subjective voluntary agreement to the specific physical sex act. Deceptions about conditions or qualities of the physical act may vitiate consent under s. 265(3)(c) of the Criminal Code, if the elements for fraud are met. (emphasis added)
[128] Here, there is insufficient evidence of deception or fraud. Mr. Hui’s evidence does not negative the possibility of the legitimate practice of Traditional Chinese Medicine in 2004/2005.
[129] I agree with the defence submission that there may be circumstantial evidence of a sexual assault, but the totality of the evidence leaves open the reasonable conclusion that what S.L. did was perform Traditional Chinese Medicine. Other than the part of the body touched, there was nothing to suggest other than a clinical practice. I cannot make the inference of guilt as submitted by the Crown.
[130] The Crown submits that pursuant to the relevant Regulated Health Professions Act, 1991, S.O. 1991, c. 18, in force at the time, S.L. was not permitted to carry out such an act. Pursuant to s. 27 (1) and (2) of that Act, no person shall perform a “controlled act” in the course of providing health care services to an individual, unless the person is a member authorized by a health profession Act to perform the controlled act; or the performance of the controlled act has been delegated to the person by such a member. One of the “controlled acts” is defined as putting an instrument, hand or finger beyond the labia majora.
[131] However, the breach of regulatory provision does not amount to a criminal act. The Crown relies on R. v. Chen, 2003 BCSC 1363. The accused in that case, however, gave evidence which allowed the trial judge to find that the accused knew and understood the limits of permitted physical examinations according to the provincial regulations. There is no such evidence here.
[132] D.H testified that had she been told that S.L. was not authorized to carry out the examination, she would not have consented. But, unlike in Chen, there is no evidence that S.L. knew that he was not authorized to do so. If what S.L. did was part of Traditional Chinese Medicine, he may only be guilty of a provincial offence. He would be in a like situation as Mr. Hui when, in his early practice, he inadvertently carried out bone setting contrary to provincial regulations. Like Mr. Hui, there is no evidence to prove that S.L. knowingly breached that Act.
[133] The Crown submits that, depending on my findings, I could find S.L. guilty of simple assault. However, as I have indicated, I am not persuaded beyond a reasonable doubt of either offence.
Result
[134] For those reasons, S.L. is found not guilty of the charge.
“Justice Lemon”
Justice G.D. Lemon
Released: July 6, 2020
COURT FILE NO.: 19-0578 DATE: 2020 07 06
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
S.L.
Defendant
judgment
Justice G.D. Lemon
Released: July 6, 2020