COURT FILE NO.: CR-910000604
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SHIN WOOK LIM
Defendant/Applicant
J. Witkin and L. Fineberg, for the Crown
D. Robitaille and K. Flanagan, for the Defendant
HEARD: October 20, 21, 22, 23, 26, and 28 2020
REASONS FOR DECISION #3
(Conviction for Sexual Assault)
A. INTRODUCTION
1Shin Wook Lim is a high-level Taekwondo coach. He is charged with multiple counts of sexual assault and related charges all involving the same complainant (A.E.). At the time of the alleged incidents (between 2015 and 2017), A.E. was a teenager and an elite Taekwondo athlete being coached by Mr. Lim. Mr. Lim elected to be tried by judge alone. There were a number of pre-trial motions conducted either by conference call or Zoom in light of the COVID-19 pandemic. Mr. Lim further agreed to the entire trial being conducted on the Zoom platform, including taking the evidence of one of the witnesses by a remote link from Scotland. Mr. Lim, who is on bail, attended the trial by Zoom from the boardroom of his lawyer’s office.
2I heard evidence from three witnesses: the complainant A.E. and two other witnesses relied upon by the Crown as providing evidence of similar acts by Mr. Lim (S.C. and E.L.). The defence called no evidence. At the conclusion of the evidence and argument, I reserved my decision.
3For the reasons that follow, I find Shin Wook Lim guilty on all 10 counts before me.
B. PROCEDURAL BACKGROUND
Similar Act and Severance
4Mr. Lim was originally charged with multiple counts of sexual assault involving two complainants (A.E. and M.V.), both of whom were teenage girls at the time of the alleged assaults between 2013 and 2017. Both complainants were members of an elite group of Olympic hopefuls coached by Mr. Lim. In addition, the Crown sought to rely on evidence from two other young women (S.C. and E.L.) who alleged similar acts of sexual misconduct by Mr. Lim while he was their coach in that same program.
5It was A.E. who made the first allegations of sexual assault against Mr. Lim. She gave a formal statement to police on April 27, 2018, alleging incidents over a period of time between January 2015 and July 2017 when she was between the ages of 15 and 17. Charges were laid against Mr. Lim and a preliminary hearing was scheduled for May 2019. Not long before the preliminary hearing was to commence, M.V. came forward to the police and alleged that she also had been sexually assaulted by Mr. Lim. The preliminary hearing proceeded with respect to the charges involving A.E., at the conclusion of which Mr. Lim was committed to trial on 10 counts. The Crown then preferred an indictment with respect to an additional five counts involving alleged assaults against M.V., and joined that indictment with the charges involving A.E., such that the indictment against Mr. Lim in this Court contained 15 counts.
6The Crown sought to call S.C. and E.L. as witnesses at trial to show a pattern of similar conduct by Mr. Lim. The Crown also sought a ruling that the evidence of M.V. and A.E. could be used to support each other’s case. The defence sought to sever the charges against M.V. and to first proceed with the counts involving A.E., with a separate trial to follow in respect of the remaining charges. I granted the defence motion to sever, with the result that the trial proceeded before me on the 10 counts involving A.E. I further ruled that S.C. and E.L. could be called as witnesses at trial to give evidence of allegedly similar acts, but that fairness to the accused precluded M.V. being called as a witness for that purpose. My reasons for those decisions are separately reported.1
Disclosure and Production
7The initial defence motion for disclosure was argued before Ducharme J. on August 22, 2020 and resulted in the disclosure of an exchange of text messages between A.E. and S.C. (one of the young women the Crown sought leave to call as a similar fact witness). Other disclosure sought by the defence was not ordered, including an essay written by A.E. for a university course in 2019 about a different Taekwondo coach in Winnipeg being convicted of sexually assaulting young girls. In the text exchange that was produced, A.E. told S.C. that she was being interviewed by the CBC for a documentary they were planning about sexual assault in the Taekwondo sport.
8Based on that text exchange and a further police interview of A.E. about her involvement in the CBC documentary, the defence brought a further application for disclosure of all communications between A.E. and her mother with the CBC. In an endorsement dated September 24, 2020, I ordered disclosure of some of that material.2
9Largely based on the communications of A.E. with the CBC as disclosed pursuant to my September 24 order, the defence brought a further motion to require the CBC to disclose a wide range of materials in its possession as part of its preparation for the upcoming documentary. I found that the Crown met the initial hurdle of requiring the material to be produced to me for my review. However, ultimately I did not order production to the defence of any material in the possession of CBC.3
10Finally, during the course of the trial, I became concerned about the potential relevance of an essay written by A.E. for a university criminology course. The defence had sought production of this essay in the initial disclosure motion, but Ducharme J. found at that time that it did not meet the relevance test. During her examination-in-chief, A.E. testified that as these incidents of sexual touching and assault evolved, she “never really processed” what was happening to her. She said that in the winter of 2018, after she had left Taekwondo and was in university, she took a course on criminology as one of her electives. She described sitting in a lecture during that course and suddenly realizing that what had “happened to her” with Mr. Lim was actually sexual assault. She said this was like being hit in the head with a brick. Early in her cross-examination, A.E. reiterated that this realization first surfaced in the classroom during the lecture. This was after she had written a paper (as one of the course requirements) about Grand Master King Yeung, a Winnipeg Taekwondo coach who was convicted of sexually assaulting a number of his students. A.E. maintained that the process of researching and writing that paper did not trigger any realization about the assaultive nature of Mr. Lim’s conduct with her. She said she did not make the connection between what had happened to her and what had happened to the victims of Mr. Yeung. However, she acknowledged that one of the reasons she chose that case to write about was the suggestion made by another coach that it would be interesting to write the article from the perspective of someone who was involved in the sport.
11As the cross-examination progressed, it became increasingly clear to me that the content of the essay might be relevant to the theory of the defence as to when and how A.E.’s realization that she had been assaulted emerged. I raised the matter with counsel and was advised that on the initial disclosure motion the Crown had conceded possible relevance at Stage 1 of the inquiry and that the essay had been reviewed by Ducharme J. prior to his ruling that it was not relevant and need not be disclosed to the defence. Both counsel agreed that it was open to me as the trial judge to reopen that issue based on the evidence as it emerged during the trial and that it would be appropriate for me to review the essay and come to my own conclusion.
12The essay was provided to me. It is dated March 22, 2018. Upon reading the essay, I concluded that the accused’s right to a fair trial required production of the essay to the defence. There are a number of points made by A.E. in the article that would appear to challenge her assertion that her awareness of the assaultive nature of Mr. Lim’s conduct was not triggered by what she had researched and written. I appreciate the submission of A.E.’s counsel that, to some degree, a privacy right attaches to the essay as it represents A.E.’s personal thoughts and analysis. That privacy right is somewhat diminished, but not eradicated, by the fact that A.E. had already submitted it to her professor as part of her work in the course. However, that is not the same as publication or dissemination to the world at large. I note as well that the nature of the privacy interest is not as acutely personal as often arises in cases of this nature. The article is an analysis of what happened to third parties without any first-person revelations by the author, and little in the nature of opinion. On the other hand, the issue of how and when A.E. came to a realization that she had been sexually assaulted by Mr. Lim is at the heart of the defence raised in this case. The extent to which these are actual recovered memories, as opposed to memories coloured by what happened to someone else, is also directly relevant. The recovery, recollection, and disclosure process are directly relevant to A.E.’s credibility and reliability on the central issue at trial. Having heard the entirety of A.E.’s testimony in chief, as well as seeing the thrust of the defence during cross-examination, I believe I was in a better position to appreciate the relevance of the A.E.’s essay than was my colleague at the early stages of the pre-trial motions. Such rulings are always subject to change as the evidence at trial evolves. I therefore found that the accused’s right to a fair trial took priority over the limited personal privacy rights at issue and ordered the document produced.
C. THE ALLEGATIONS AGAINST MR. LIM
The Prelude
13A.E. was born on August 17, 1999. Just after she turned 11, she started taking Taekwondo classes at a studio in Toronto called Black Belt World (“BBW”), where Mr. Lim was one of the coaches. At first, she would attend class twice a week, but this gradually increased in frequency as she grew older and was training at a higher level. By the fall of 2012, there was discussion about her joining a “High Performance” (“HP”) program for elite athletes coached by Mr. Lim. In January 2013, she joined that program, not long after acquiring her first-degree black belt.
14Mr. Lim was an Olympic level coach and had high standards and expectations of the students he coached. A.E. testified that in the beginning her relationship with Mr. Lim consisted of standard coach/student interactions. He was strict. Students were expected to show up for training every day, regardless of injuries, illnesses, vacation, or school events. There was no time for a social life outside HP and by the time female students were in high school it was an “unwritten rule” that boyfriends were discouraged as they were seen as a “big distraction.” In addition to training at BBW, A.E. attended an intense two-week training camp with BBW in South Korea in the summers of 2014, 2015, 2016, and 2017.
15From the beginning of the HP program, Mr. Lim would frequently send text messages to A.E., initially about things like scheduling, illnesses, tournaments, and the like. Sometimes these were regular text messages on her phone and sometimes they were through a Korean App known as Kakao Talk. Later, in about 2013 or 2014, the messages became more frequent, often daily, and also began to change in tone. A.E. described one such message at the time of a training camp in London in either 2013 or 2014 in which Mr. Lim asked her the question, “If you and I were the only people left in the world, what would I be to you?” She replied, “Like an uncle” and he responded, “That’s it?” She thought the message was “weird.”
16On another occasion when he was messaging her, she told him she was going to bed and he responded, “OK. I love you.” A.E. described being so surprised that she dropped her phone and did not answer right away. She said he then texted, “OK, you aren’t going to say it back. I don’t want to make you uncomfortable and won’t say it again.”
17A.E. said Mr. Lim also instructed her to put a password on her phone and the App and to delete messages he sent to her, which for the most part she did. However, there were still some messages on her old phone which she turned over to the police. She used that phone from 2012 up to June 2014, when she got a new phone. However, she took the old phone with her to Korea in 2014 because her mother was concerned she might lose her new phone.
18Having reviewed the messages between A.E. and Mr. Lim on that phone, I agree with the Crown’s submission that they are often inappropriate in content and tone – certainly not what one would expect from a professional coach and a 14-year-old girl. Throughout these communications, A.E. is highly deferential to Mr. Lim, almost always addressing him as “sir.”
19It is apparent from the messages that Mr. Lim put considerable pressure on A.E. to attend the training camp in South Korea in the summer of 2014, even though she had already told him her mother had said she could not go. He told her that she would not make the national team without attending the camp. Eventually, A.E.’s mother agreed to let her go.
20While on the trip in Korea, the following text exchange took place:
Lim: I know how you feel even you don’t say
AE: What do you mean sir?
Lim: I know.
I seen many times.
If you like to talk about let me know.
That’s how you get to know more about yourself.
AE: What have you seen, sir?
Lim: Lots
AE: I have lots of problems figuring out what goes on in my head sir.
Lim: Why is that?
Do you want to talk later?4
21A.E. testified to being confused by what Mr. Lim was saying. She then responded to this exchange by saying that her Mom had sent her to a psychologist. Mr. Lim again told her that she could talk to him, adding, “I am here for you.” She asked him if there was something he thought she should talk to him about because she didn’t know what that was and he said he would talk to her the next day.5
22Another odd exchange occurred at the end of the trip as A.E. was leaving Korea. Mr. Lim was not travelling back to Canada with the team. A.E. texted him as they were leaving, “See you in August.” This exchange followed:
Lim: I wished I could spent more time with you.
AE: On the trip sir?
Lim: Yes and at home
AE: Me too sir.
Lim: That’s good.
I like to talk to you more often and anything we talk about keep between6
23A.E. testified that this text was an example of Mr. Lim telling her to keep things between them, which he often said. I find this message provides some corroboration of her testimony on this point. A further example occurs in an exchange of text messages on March 25, 2015. After a delay in one of the responses, A.E. explained that she was using her “old phone” because her mother had taken her new phone away from her for being late that morning. The following discussion then occurred:
Lim: Did you delete all the text
AE: Yes but it’s off and it’s locked and she doesn’t know my password
Lim: Make sure delete it
Otherwise I won’t say anything Txet (sic)
AE: I know I do.
Lim: Good
AE: Don’t worry
Lim: OK
24There was no overt sexual content in these text messages. There are some “alarm bells” such as offering to “help” A.E. with emotional issues, circumventing A.E.’s mother, encouraging A.E. to hide things from her mother, and requiring A.E. to delete all messages he sent her. If I accept A.E.’s evidence about the deleted texts saying “I love you” and asking what he would be to her if there was nobody else in the world, these are clearly inappropriate and could be regarded as grooming, a prelude to sexual abuse.
25There is also a clear element of a controlling influence by Mr. Lim. However, what is not clear is whether this was also a prelude to sexual abuse, as opposed to a rigorous training regimen for elite athletes hoping to reach Olympic level performance.
26By the winter of 2015, A.E. was at the BBW studio every day from 4:00 pm to 10:00 pm. In addition to her own training, she helped with coaching younger kids and did administrative work. A.E. testified that Mr. Lim would frequently call her into his private office to chat. At first these were pep talks, working on her mental game and building her confidence and self-esteem. However, A.E. said that these chats started to become daily sessions and veered into personal areas, e.g. telling her she was beautiful, asking her how far she had gone with a boy. At the end of these talks he would ask for a hug, which progressed from quick one-arm hugs to hugs of longer duration. There was a lot of talk about trust, emphasizing that in the coaching relationship A.E. needed to be completely comfortable with Mr. Lim and have absolute trust in anything he told her.
27Again, some of this conduct might fall within high-level training of an Olympic hopeful. However, if I accept A.E.’s evidence as to other aspects, much of the conduct is highly inappropriate and would properly be characterized as grooming.
Counts 6, 7, and 87
28Counts 6, 7, and 8 relate to a series of incidents which are alleged to have occurred in the Greater Toronto Region between January and August 2015, at which time A.E. was 15 years old. Count 6 charges Mr. Lim with inviting sexual touching contrary to s. 152 of the Criminal Code; Count 7 charges him with touching A.E. for a sexual purpose contrary to s. 151 of the Criminal Code; and Count 8 charges him with sexually assaulting A.E. contrary to s. 271 of the Criminal Code.
29A.E. testified that the first incident of sexual abuse by Mr. Lim occurred in May 2015 in Mr. Lim’s office at BBW. She said that after one of her meetings with Mr. Lim and the hug that routinely followed those meetings, Mr. Lim asked her to kiss him. She described herself as knowing this was “not OK” and as “freaking out inside.” She walked to the door intending to leave, but Mr. Lim grabbed her hand and pulled her back. She testified that he pressed her back up to the wall and kissed her, telling her that this was going to make her more comfortable with him and that she should trust him. He then told her to sit down and calm down before going out into the studio. A.E. said that after this incident she started to avoid Mr. Lim, but he insisted she talk to him about it and stressed the importance of them being close and having a level of comfort with each other. The kissing sessions continued. A.E. said she started to think, “I guess it is normal and I just need to do it.”
30A.E. testified that after the first few incidents of just kissing, Mr. Lim progressed to other sexual acts, first touching her above her uniform, then under the uniform top, then touching her above her pants, then over her underwear, then under her underwear, then fingering her. She said that at each stage, as she adjusted to the “new normal,” he would step up the level of intrusion. She described thinking to herself, “This is my life now.”
31Almost all of the conduct relied upon by the Crown under Counts 6, 7, and 8 occurred in Mr. Lim’s office at the BBW studio in Toronto. However, A.E. also recounted two other incidents, one at Mr. Lim’s apartment and the other at the BBW studio in Vaughan.
32The incident at Mr. Lim’s apartment took place after a training session at the Vaughan studio. Mr. Lim was driving A.E. and three other students back to Toronto but needed to stop at his apartment, ostensibly to let his dog out. A.E. testified in chief that she told Mr. Lim she did not need to go, but he then told everyone that A.E. was too embarrassed to tell them that she “needs to poo” so she was coming up to the apartment. Once inside the apartment, she said Mr. Lim told her she had a nice body, kissed her, and touched her. She was not sure if he fingered her and could not remember how the incident ended.
33The final incident covered by these counts occurred in the Vaughan studio a week before the trip to South Korea in August 2015. A.E. testified that Mr. Lim texted her to come to the upstairs area. There was a metal staircase up to the second-floor space, which consisted of an open area and a small office. She said that Mr. Lim was waiting for her in the open area and that he had her against the wall and was touching her and kissing her. If anyone came up the stairs, they would have seen what was happening. She said that at some point, they heard someone on the metal stairs and Mr. Lim stepped away.
34There is no question that the conduct described by A.E. meets all the requirements constituting the offences alleged in Counts 6, 7, and 8. The sole issue to be determined is whether the conduct occurred. As is almost always the case in offences of this nature, there were no witnesses to any of the incidents. Thus, A.E.’s reliability and credibility are pivotal issues in this case. There were inconsistencies in some of A.E.’s accounts of these incidents, which I will deal with below under the heading “Credibility and Reliability of the Complainant.”
Count 9
35Count 9 relates to an incident alleged by A.E. to have occurred between August 17 and August 31, 2015 in Muju, South Korea, where Mr. Lim had accompanied a number of his students (including A.E.) for an intense Taekwondo training camp. Under this count, Mr. Lim is charged with touching a young person (A.E.) for a sexual purpose, while being in a position of trust or authority over her, contrary to s. 153(1.1) of the Criminal Code (“sexual exploitation”).
36The BBW summer training camp in South Korea took place in August 2015. A.E. had her 16th birthday while there. She recalled that Mr. Lim did not travel with the team, but arrived a few days later. She also reported being ill with flu-like symptoms for the first few days. After Mr. Lim arrived, he texted her at about 8:00 and told her to come to his room, which was in a different area of the building. He told her to tell her roommates that she had been called to a meeting with the coaches. She said when she reached Mr. Lim’s door, it was ajar and he pulled her in quickly before saying anything. There was a single bed in the room. She said that at first things were just as before, with him kissing her as she watched TV. He then took off her pants and underwear and put her on the bed. She said she had “no clue what was going on.” Mr. Lim began kissing her and performing oral sex on her. She described herself as being “frozen” and trying to keep her legs together. She said that after a while, Mr. Lim suddenly stopped and got up. She said he was sweaty and asked, “Why are you making me work so hard? I can’t get a reaction out of you.” When she was leaving, he told her that what he was doing was for her, not for him, and asked her, “Why are you was making me feel like a monster?” He then put her hand down his pants and made her grab his penis, again asking her why she was not showing enjoyment and making him feel like a monster.
37It is clear Mr. Lim was in a position of trust and authority over A.E. at this time. The only issue is whether Mr. Lim actually did the things A.E. described. If he did, all elements of the offence are met.
Counts 10 and 11
38Counts 10 and 11 cover a two-year period from August 17, 2015 to July 31, 2017, during which time A.E. alleges numerous acts of sexual assault by Mr. Lim in his office at the Toronto Black Belt World Taekwondo studio, as well as one incident in Mr. Lim’s home. Count 10 charges Mr. Lim with sexual assault and Count 11 charges him with sexual exploitation, all in relation to the same conduct. A.E. was a “young person” within the meaning of s. 153 (1.1) during this period of time, having turned 16 on August 17, 2015.
39Back in Toronto in the fall of 2015 through to July 2017, A.E. said there were many similar incidents of kissing and touching in Mr. Lim’s office, and she could not say the number of times this happened, but that it was at least once a month.
40One incident in particular that stood out in her mind occurred in Mr. Lim’s apartment. She said he had picked her up from school to drive to the studio for a staff meeting, but stopped at his apartment on the way, explaining he had to pick up something. He took her to his bedroom, kissed her, removed her pants, and fingered her. She recalled thinking that this was “weird” because “this is where his wife sleeps with him.”
41If these incidents actually occurred, all of the constituent elements under Counts 10 and 11 would be met. As with all counts, the issue is the credibility and reliability of the complainant’s evidence.
Counts 12 and 13
42Counts 12 and 13 relate to an incident in March 2016. Count 12 charges Mr. Lim with sexual assault under s. 271 of the Criminal Code and Count 13 charges him with sexual exploitation under s. 153(1.1).
43A.E. was alone in her mother’s home during March Break in 2016 as her mother and elderly grandmother were away on a trip. BBW was running a training camp during this period of time. A.E. had an injury. She testified that Mr. Lim texted her that he was coming to her house to massage her calves. She told him that she was too tired and was going to bed, but he texted that he was already there and lightly tapped on the front door. A.E. testified that she remembers thinking, “Oh God. What did I do?” She let Mr. Lim inside. She said he either asked what was upstairs or asked where the bedrooms were and then took her by the wrist and led her upstairs. He took her into the first room, which was her grandmother’s room, although she protested this was not her room. He took her pants off and massaged first her legs and then her whole body and fingered her as she lay face down on the bed. She remembered thinking that this was “horrible” because it was “in my Grandma’s bed.” She said Mr. Lim said he could fall asleep right there, but that she told him he should go and after about 30 minutes he left. She said that there was no discussion of what happened, except for him saying, “You always make me work so hard.” She testified that Mr. Lim was always expecting her to react positively, but that she never did.
44If the facts alleged by A.E. did occur, it is clear that both offences of sexual assault and sexual exploitation are established.
Count 14
45The facts underlying Count 14 are said to have occurred at the 2016 Taekwondo summer training camp in Gurye, South Korea. Mr. Lim is charged with sexual exploitation. A.E. was 16 years old at that time.
46A.E. reported only one incident that occurred on that trip. She said she was told by one of the other coaches that Mr. Lim wanted to see her in his hotel room. She went to his room, which he was sharing with two other female athletes. Before she knocked on the door, he opened it and pulled her inside. He was alone in the room. She testified that he started kissing her in the entranceway and then took her hand and put it down his pants. She said, “I think he wrapped his hand around mine and made me rub” his penis. He then walked her over to the bathroom and ejaculated into the toilet. She said she got semen on her hands and had to wash them before leaving. She also reported the “same kind of talk” about “making me feel like a monster” and “only doing this for you.”
47If this conduct occurred, it would constitute sexual exploitation as charged.
Count 15
48Count 15 is also a charge of sexual exploitation arising from an incident at the Taekwondo training camp in South Korea. The offence date is in the month of July 2017, when A.E. was 17 years old.
49A.E. testified that Mr. Lim texted her late at night on the first night there and told her to come to his room, which she did. When she arrived, he pulled her into the room. She said there were two beds in the room – a single bed and a double bed. She said that he took her to the smaller bed, where he kissed her and touched her. In her evidence in chief at trial, she first stated that she did not know if he took off her pants or just pulled them down. Later she said her pants had “come off at some point.” She said that Mr. Lim made her perform oral sex on him, but she did not remember if she was on top or underneath him. She said he was guiding her head and that she found it “very unpleasant.” Then she heard him going through his bag and heard a condom wrapper opening. She testified that he told her to turn around and hold onto the back of the chair. She said she did not know what was going on because she had never had sexual intercourse before. She could not remember if he took her shorts off or just moved them to one side. He then put his penis inside her vagina. He asked if it was okay for him to ejaculate inside her, and she told him “No,” but he did it anyway. A.E. said that when she went back to her room, her stomach hurt and that she had a large and bloody bowel movement, which alarmed her. She also had some vaginal bleeding, but was not sure if that was just her period starting.
50This is the only incident of full sexual intercourse alleged by A.E., and the last alleged incident of any kind of sexual touching of A.E. by Mr. Lim. Again, the issue raised by the defence is whether this incident happened at all. If it did occur as described by A.E., it clearly constitutes the offence of sexual exploitation.
The Disclosure Process
51The first incident of sexual assault alleged by A.E. was in the winter of 2015, when she was 15 years old, and the last was in July 2017, just before she turned 18. During that period of time, she did not disclose any of this abuse to anyone. She said that after each incident, she simply compartmentalized what had happened to her, “put it in a box” without thinking about it, considered this to be her “normal”, and simply went about her daily life. She did not think about whether any of this conduct by Mr. Lim was abusive. She explained that it was not that she had forgotten about these events; she just did not ever think about them.
52A.E. returned to full HP training in the fall of 2017. However, she said that she gradually started to lose interest in competition. She still liked training, but did not enjoy the actual fighting. She also testified that upon turning 18, she started thinking more for herself and not just following everything Mr. Lim said. In February, when she competed at the Canadian Nationals in Ottawa, she said she was already thinking about leaving. At this time, she was also having back problems and decided to take a complete break from Taekwondo.
53By this time, A.E. had graduated from high school and was in her first year of university. One of her electives was a course in criminology. Students in the course were required to write a paper about a current or recent criminal case, relating the real-life facts of that case to principles of criminology. A.E. chose to write her paper about the case of King Yeung, a Taekwondo Grand Master coach in Winnipeg who pleaded guilty to sexually assaulting teenage girls and was sentenced to 10 years in prison. She got the idea of writing the paper on this case from a female coach from Winnipeg who suggested to her it might be interesting to write it from the perspective of someone inside the Taekwondo world.
54The essay is dated March 22, 2018, but A.E. would have been researching and writing it prior to that. The paper is 4 ½ pages long. A.E. obtained all of the facts about the case from media articles and did not speak to any of the individuals involved. The bibliography cites one criminology textbook, the Taekwondo Tenets (cited to a website) and two media articles (also cited to websites). The central theme of the paper is that Mr. Yeung exercised a rational choice to abuse those over whom he was in a position of power and the extent to which such conduct was antithetical to the tenets of the sport of Taekwondo. For most of the paper the focus is on Mr. Yeung, but in the final paragraph A.E. raises the impact this may have on the sport (as there would be a heightened level of distrust in a sport based on trust and respect) and the impact it may have on the victims, writing:
In order to make the community safer from these types of crimes, more resources and support systems should be provided surrounding sexual assault. This should include resources provided by the local and national martial arts associations to educate instructors on appropriate behaviour and conduct, and students on what to do if they are ever forced into an uncomfortable situation. Although Yeung’s lifelong ban from areas in which there are minors present and registration as a sex offender will help protect the community from the sexual predator, no amount of restitution and punishment towards Yeung could provide justice to the girls that were victimized by him. This applies not only to the victims of these specific incidents but to all sexual assault victims. While justice cannot be served completely, punishments such as those faced by Yeung will be effective in helping keep the community safe from these types individuals and prevent them from reoffending.8
55A.E. testified that she had no realization during the researching and writing of this essay that any of the things Mr. Lim did to her would fall into the category of sexual abuse. However, not long after, when she was sitting in a lecture in that same criminology class, she had a sudden realization that what happened to her was sexual assault. She described it as “like being hit in the head with a brick.” She said memories kept coming back to her and it was “like watching a movie in her head.” At times she would refer to these memories as flashbacks, but was clear that she had never forgotten about them; she simply had not “processed” what had actually happened to her. She described putting each incident of abuse into a box immediately after it had occurred, not thinking any more about it, and continuing on as if everything was normal. After A.E. had this realization in her criminology class, she told a friend about it, hoping that this would allow her to get it off her mind and enable her to study for her upcoming exams in April. Her friend raised the question of whether she was the only one or whether Mr. Lim had also victimized other students. A.E. said that up until then it had not occurred to her that there might be others, as Mr. Lim had told her their relationship was “special” and that he did not do these things with anyone else. Soon after that, A.E. told her mother. They consulted a lawyer for advice, and then went to the police. A.E.’s formal police statement was taken on April 27, 2018.
D. STATEMENT BY THE ACCUSED
56The Crown called E.L. as a witness to testify about some of her interactions with Mr. Lim in order to corroborate aspects of A.E.’s evidence, in particular two instances in the summer of 2017 when Mr. Lim sexually assaulted E.L. in his hotel room in South Korea.9 After these incidents in Korea, E.L. continued to train with BBW, and with Mr. Lim. E.L. testified that she saw Mr. Lim in his apartment about one week after his arrest. She went there with a friend who was also a BBW student. Other people were also there. At that time, E.L. knew that the charges were based on allegations made by A.E., but had not spoken with A.E. and did not know the details. On this occasion in Mr. Lim’s apartment, Mr. Lim told everyone that he could not understand why A.E. would lie about this. He then said that the only thing that would help A.E. was if other people lied about him too. E.L. said that Mr. Lim looked directly at her as he was saying that. She said nothing at the time.
57The defence submits that this statement by Mr. Lim proclaiming his innocence was led as evidence at trial and must be considered by me in the same manner as any other statement of an accused tendered by the Crown, subject to the usual three-step test in R. v. W.(D.).10
58First, if the statement constitutes a defence to the case and I believe it, then I must acquit the accused. Second, even if I do not fully believe the statement, if it causes me to have a reasonable doubt as to the accused’s guilt, I must find him not guilty. Third, even if I do not have a reasonable doubt because of the statement, I must consider it along with all the other evidence in the case in determining whether or not the Crown has discharged its burden of proving Mr. Lim’s guilt beyond a reasonable doubt.11
59I do not believe Mr. Lim’s exculpatory statement, nor does it cause me to have a reasonable doubt as to his guilt. The circumstances in which the statement was made must be taken into account. Mr. Lim had been arrested and released on bail. The whole Taekwondo community was buzzing with gossip about these charges. He was in a social setting with friends and other people from the Taekwondo community. He was clearly asserting his innocence, as he was entitled to do. However, a bald statement that A.E. was lying, and that he did not know why she would lie, is not in all the circumstances a statement that I could possibly take as amounting to the truth and, by itself, justifying an acquittal. It is merely a denial, with no particulars or explanation. It also, by itself, cannot cause me to have a reasonable doubt, any more than a plea of not guilty would do. Mr. Lim continues to have the benefit of the presumption of innocence and the burden remains on the Crown to prove its case beyond a reasonable doubt. I will consider his statement, along with all of the evidence in the case, in determining whether the Crown has proven the charges against him beyond a reasonable doubt.
60The second part of Mr. Lim’s statement is odd. He said that the only thing that would help A.E. would be if other people lied about him too. E.L. said he looked at her while he was saying that. This statement is ambiguous. On the one hand, it betrays a misunderstanding of the law, as it appears Mr. Lim was of the view that the testimony of one complainant on her own, without corroboration, would not be enough to convict somebody of sexual assault. If that was his belief, he was mistaken. It is possible he meant this as a warning to E.L. not to say anything against him or she also would be branded as a liar. In my view, this is reading too much into the words and I do not draw that inference. Another possible inference is that he was warning E.L. not to lie about him just to assist A.E.’s case. Again, I think that is a stretch. Perhaps Mr. Lim was just worried about other people coming forward with accusations. None of these possibilities amount to anything more than speculation. I cannot say I understand what Mr. Lim meant by this. I therefore find the second part of his statement to be of no consequence.
E. CREDIBILITY AND RELIABILITY OF THE COMPLAINANT
The Defence Position
61As is no surprise in a case of this nature, everything turns on the credibility and reliability of the complainant. The defence submits that I should be concerned about whether A.E. was deliberately lying and also about whether her evidence is reliable, even if she herself believes it to be the truth. In her very able argument, Ms. Robitaille referred to A.E.’s paper on the Yeung case as the “central paradox” in this case and queried how it would be possible for A.E. to have researched and written this paper without triggering her own memories. This could be because A.E. is not telling the truth about when she “recovered” her memories of Mr. Lim’s abuse Alternatively, writing the paper may have tainted her memories of her interactions with Mr. Lim, triggering unreliable “flashbacks” not rooted in reality. Ms. Robitaille also pointed to 13 examples of what she characterized as material inconsistencies in A.E.’s evidence that would need to be overcome before I could be satisfied of Mr. Lim’s guilt beyond a reasonable doubt.
62Although conceding this is primarily a reliability case, Ms. Robitaille also referred to a number of credibility issues, including: A.E. encouraging others to go to the police; the extent to which she covered up her involvement in the CBC documentary; her stated desire of wanting to expose Mr. Lim and the Taekwondo world; her animus towards Mr. Lim; and, her real reason for leaving Taekwondo.
The Similar Fact Witnesses
63I heard evidence at trial from two witnesses (S.C. and E.L.) both of whom had been in the same elite HP Taekwondo group as A.E. and both of whom were coached by Mr. Lim. The Crown tendered these witnesses to provide similar fact evidence to support the credibility of A.E.’s evidence at trial. I found the evidence of both S.C. and E.L. to be credible and reliable. Further, I found that there was no evidence that these witnesses collaborated to concoct or tailor their evidence, with each other, or with A.E., or with M.V. (a complainant in a separate indictment). Indeed, there was no tainting whatsoever with respect to any of these witnesses, whether deliberate or accidental. My reasons for coming to these conclusions are set out in companion reasons issued at the same time as this decision.12 I have set out the evidence each of the similar fact witnesses gave at trial in my other decision and will not repeat them here, save to the extent I find them relevant to my consideration of A.E.’s testimony.
64I find the evidence of S.C. to be truthful and reliable, but unlike the other two witnesses, she does not allege that Mr. Lim sexually assaulted her. While his conduct was often inappropriate, it is difficult to characterize it as “grooming” with a view to future sexual assaults when nothing of a sexual nature ever occurred. Thus, although there was conduct with A.E. that I would clearly find to be grooming, the fact that similar conduct occurred with S.C. does not assist in that characterization. It is clear from the evidence of all three witnesses, and not seriously disputed by the defence, that Mr. Lim demanded an extreme level of commitment from all these elite athletes, who hoped someday to compete in the Olympics. Much of what happened with S.C. can be attributed to the demands of the sport, as well as the nature of the Taekwondo discipline, being built on trust and respect.
65However, there are common elements of Mr. Lim’s interactions with these three witnesses that do support some aspects of A.E.’s evidence. A.E. testified that Mr. Lim controlled all aspects of her life, including her social life, and forbid her to have a boyfriend. This is corroborated by the testimony of the other two witnesses, but it must be acknowledged that these requirements could well have been sports related, rather than grooming for sexual assault. Mr. Lim’s pattern of text messages to S.C. also confirms his habit of intruding into intimate and personal details of these girls’ lives, in a highly inappropriate way.
66A.E. testified about Mr. Lim sending her text messages to come to his hotel room in Korea, and then sexually assaulting her there. It might seem far-fetched that an Olympic-level well-respected Taekwondo coach would require young female athletes to come alone to his hotel room. However, there is a clear pattern of behaviour in which he texted all three of these young women to come to his hotel room where he had private, personal discussions with them behind a closed door. Although S.C. was summoned to his room several times, he did not sexually assault her. However, Mr. Lim sexually assaulted E.L. on two separate occasions after summoning her to his hotel room in Korea. Further, Mr. Lim instructed both A.E. and E.L to erase all of the text exchanges they had with him.
67One striking common element between the assaults on E.L. and A.E. was the fact that Mr. Lim kept telling them that he was doing these things for their own good as part of building the level of trust between them that was essential to their reaching their Olympic goals.
68I find that the similar fact evidence is relevant to Mr. Lim’s proclivity for sexual gratification by exerting his power over the teenage girls he was coaching. That said, I am not suggesting that what happened to any of these three young women was so similar as to amount to corroboration that the incidents of sexual assault on A.E. actually occurred. Mr. Lim’s dealings with each of these three witnesses were quite different. However, the experience of the other two girls reinforces A.E.’s evidence as to the extent she relied on and trusted Mr. Lim and would never question what he told her to do. I also find support for A.E.’s evidence as to the practice of Mr. Lim in calling young girls to meet with him alone in his hotel room, conduct that I might otherwise have thought to be unlikely to happen.
69Thus, I find this similar fact evidence to be of some assistance with respect to some of the peripheral details, such as: the degree of trust and reliance on Mr. Lim; the extent to which Mr. Lim intruded on their personal lives; his lack of respect for appropriate boundaries; his requiring them to erase text messages between them; and the use of his hotel room. However, these aspects are not all that controversial, and many of them are confirmed by surviving text messages. The key aspects of precisely what Mr. Lim did to A.E. in terms of sexual assault remain, for the most part, reliant on her own testimony. I am mindful, in particular, of the differences between the experiences of E.L. with Mr. Lim as compared to A.E., and the fact that she is the only similar fact witness in this trial from whom there is evidence of actual sexual assault. The fact that there is only one such witness diminishes the strength of the similar fact evidence. Accordingly, I do not find the similar fact evidence to be sufficiently similar in nature to support a conclusion that A.E.’s evidence is credible and reliable as to the particulars of those events. For me, those issues stand or fall on the evidence of A.E. herself.
Credibility
70A.E. was the first person to go to the police with allegations against Mr. Lim. She did not speak to anyone else in the Taekwondo community before doing so. It follows that her allegations were not motivated by any kind of “piling on” motivation, or a desire to be a part of something else. At the time she went to the police, she was very much on her own.
71A.E. certainly had cause to resent Mr. Lim, quite apart from any issues of sexual abuse. She was manipulated by him for years and he completely controlled her life, to the exclusion of any kind of social life most teenagers enjoy. He was a disciplinarian who insisted on attendance at training regardless of illnesses or injuries. A.E. was committed to this life because of her Olympic goals. As she approached her late teens, however, she was becoming less keen on the competitive aspects of the sport and not doing as well in tournaments as would be required to meet her goals. I therefore accept that there could have been some resentment towards Mr. Lim. However, I reject the suggestion that there was anything close to the level of animosity that would prompt A.E. to deliberately accuse Mr. Lim of criminal acts he never committed. There was no hint of malice in any of her testimony. I am completely satisfied that A.E. did not fabricate her testimony in order to seek vengeance on Mr. Lim.
72A.E. was always upfront about her growing disenchantment with Taekwondo competition. She struggled with injuries and did not enjoy the fighting aspects of the sport as much as she liked training. She testified that she decided to take some time away from the sport for these reasons, and has always been clear about that. The fact that she did not blame Mr. Lim for spoiling her enjoyment of the sport is, in my opinion, a hallmark of her honesty.
73I also reject the submission that A.E. was dishonest with the court about her dealings with CBC. She did not approach the CBC; they approached her. Before agreeing to meet with them, she sought legal advice, and she then followed that legal advice. She has never said anything to the contrary. She maintained that in her discussions with CBC she only talked about the process of being a complainant in a sexual assault criminal trial and the emotions involved in going through that process. After several motions and substantial disclosure of CBC materials, it is apparent that this is precisely what A.E. talked to the CBC about. She did not discuss with them the substance of any of her allegations against Mr. Lim. She talked about her emotions and fears in going through the process. She was under no obligation to tell the defence about the CBC program, nor was she under any obligation to tell the police. She did not lie to the police about it; she simply failed to tell them after she actually started talking to the reporters. The terms upon which she dealt with CBC were negotiated through her lawyers and there was no reason for her to believe she was doing anything wrong; nor was she in fact doing anything wrong. She was fully cooperative with the police and the Crown when the defence found out about the documentary and brought various defence motions for disclosure and production.
74On March 23, 2019, A.E. and S.C. exchanged a series of text messages that referred to the proposed CBC documentary. This was prior to the commencement of the preliminary hearing and almost a year after S.C. had given her own statement to the police about Mr. Lim. A.E. made the first reference to the CBC, stating, “I might even be the subject of a CBC documentary.” She added that her lawyers were going to talk to CBC first to make sure that her involvement would not adversely affect the criminal case or any “potential lawsuit.” A.E. said that the documentary would “talk about BBW and how this big [Taekwondo] world had 2 coaches accused of sex related crimes in the same year.” She also said it would “expose the shit that goes on in a sport that is supposed to be about integrity and respect.” She suggested that S.C. might also be in the documentary. S.C. responded that they would be “celebrities” and “walk the red carpet.” A.E. replied that “CBC isn’t that big lol,” to which S.C. responded, “Canadian celebrities, lmao.” In my view this is nothing more than light-hearted banter between friends. It does not indicate any degree of malice, nor does it show a motivation for “fame” by making up stories about Mr. Lim. I see no inconsistency in A.E. talking about “exposing” what was going on in a sport that was “supposed to be about integrity and respect.” The contradiction between the Taekwondo tenets of trust and integrity and the conduct of Yeung was a central theme in the essay A.E. wrote for her university class. She testified, and I accept, that one of the main reasons she decided to go to the police was because the friend to whom she first disclosed this abuse wondered if Mr. Lim had started with other victims after she left Taekwondo, which was the first time this had occurred to her. In my view, the fact that she was motivated to the go to police, at least in part, by the desire to prevent harm to others is not an indication of animus, but rather a demonstration of strength of character and empathy.
75I have no hesitation in finding A.E. to be an honest witness who tried throughout to tell the truth to the best of her ability. She was not lying. The real issue in this case is not the credibility of A.E.’s evidence, but rather whether her memories of what happened are sufficiently reliable for me to be satisfied of Mr. Lim’s guilt beyond a reasonable doubt. That analysis depends, in large measure, on whether inconsistencies in parts of A.E.’s evidence can be resolved and whether they undermine the reliability of other aspects of her evidence.
Disclosure: The Central Paradox
76I accept that it is odd for A.E. to have written the paper she did, not have that trigger a realization that what Mr. Lim did was wrong, and then suddenly, within a few weeks of completing the paper, have that realization in the middle of a lecture about sexual assault being a crime of violence. However, it is a long jump from finding something “odd” to concluding that it renders A.E.’s memories wholly unreliable.
77It is important to confront the extent to which it is hard to understand how the person who wrote this paper could have been herself the victim of similar abuse and not appreciated its true nature. In particular, I have considered the following:
(a) A.E. reviewed the hierarchical nature of Taekwondo and the respect given by juniors to Grand Masters. She stated, “Tae Kwon Do students are taught to listen to and be loyal to their masters, saying ‘yes sir’ to any command, making it possible for Yeung to use his power and take advantage of his students.” She stated that Yeung used this loyalty to benefit himself by committing these acts believing his “chances of punishment were minimalized by his position of power.”
(b) She also wrote, “Any individual in the (sic) right mind understands that sexually abusing another individual is wrong, not only because it is illegal, but because it is the morally right thing to do.”
(c) Later, she wrote: “The crimes committed by Yeung will likely create a heightened level of distrust in the martial arts community, where trust is typically highly valued. Students, especially those from Kang’s Academy, may feel as though they need to distance themselves from their instructors and begin to disobey the tenets of Tae Kwon Do, as the individual that they were taught to trust, and respect has now been labelled as deviant and a criminal. In order to make the community safer from these types of crimes, more resources and support systems should be provided surrounding sexual assault.”
(d) She recognized the importance of educating students to understand boundaries and speak up if uncomfortable, writing, “This should include resources provided by the local and national martial arts associations to educate instructors on appropriate behaviour and conduct, and students on what to do if they are ever forced into an uncomfortable situation.”
78Given the nature of the trust relationship A.E. had with Mr. Lim, the extent of his control over her life, and the inappropriateness of much of his conduct (even leaving aside overt acts of sexual touching), it is perplexing that A.E. did not immediately see the parallels between Yeung and Lim. And yet, I accept her word that the process of writing this paper did not trigger any realization by her that Mr. Lim’s actions were wrongful. It would have been a very simple matter for her to say that this realization came to her when researching the paper, if that was what occurred. It would have seemed perfectly natural. I do not believe she is lying about when the realization hit her, which leaves the conundrum of why it did not come to her earlier, at the time she was writing the paper.
79The Crown submits that the difference in the two types of brain activities provides an explanation for why A.E.’s realization was triggered in the manner it was: i.e. the difference between actively writing an essay versus passively listening to a lecture. There was no expert evidence to that effect and I am not aware of any science to support that theory. I am not prepared to speculate about why the brain might work that way, in the absence of any evidence to support it.
80What I do know from my years of experience on and off the Bench is that the brain often works in mysterious and unpredictable ways, including in the way memories are stored and retrieved. I am sure all of us are familiar with the phenomenon of something you know quite well being on the “tip of your tongue” and not being able to drag it up, only to have it pop suddenly into your head for no apparent reason hours later. Maybe there is a scientific explanation for that. I do not know. What I do know is that there is often information available in our brains that we are unable to access at one moment, but which then randomly comes to mind later, as if a light is going on.
81It is possible that writing the essay did cause A.E. to subconsciously start processing her memories of her interactions with Mr. Lim, without her conscious awareness that it was happening. Then later, unexpectedly, the first results of that processing started to emerge during her lecture, what she described as being hit in the head with a brick. Again, I do not know if that is what happened, but I cannot rule it out.
82However, I do not consider this to be an issue I need to resolve in order to decide this case. For whatever reason, A.E. did not come to her realization in her own mind until after the paper was done. I accept her evidence as to when she started to process her memories and to understand that Mr. Lim was doing these things for his own benefit, not hers, and that it was wrong.
83The manner in which any person comes to a realization about the wrongfulness of past conduct against them is not a uniform process. It is trite law that a delay in reporting abuse can occur for a myriad of reasons unique to the individual and that delayed reporting, by itself, is not a basis upon which to find the person’s evidence to be unreliable or lacking in credibility.13
84This was not a single incident of abuse, but a pattern of conduct that was constant over a period of years. It was preceded by a period of grooming, where personal barriers were crossed. A.E. was encouraged to have no life and no friends outside Taekwondo and to put her absolute trust in her coach. Unquestioning loyalty and obedience were required. She described herself as being in a “brainwashed state” in which she would never challenge Mr. Lim’s authority. It was only after turning 18, starting university, and being away from Taekwondo for a while that she started thinking for herself and questioning what had gone on before. I find this to be a plausible explanation for why A.E. did not speak up or tell anybody earlier. I do not find that the delay undermines her credibility or the reliability of her evidence.
85I also reject the suggestion that A.E.’s memory was so tainted by writing and researching the essay about Yeung that her evidence is no longer reliable. It must be emphasized that A.E. does not have “recovered memories” of her interactions with Mr. Lim, in the sense that she had forgotten that these things happened. She has been very clear that the memories were always there. She knew these things had happened. She simply chose not to think about them, and not to consider the implications of them, because they were troubling. With recovered memory, there is always a concern that what is “recovered” is not a real memory, but rather some other suggestion that the subject now believes to be a real memory. There is less concern with tainting when the memories were always present and the only thing missing was the proper characterization of what happened.
86It does not appear to me that the incidents reported by A.E. mirror the details of things reported by the victims of Mr. Yeung, except in superficial ways common to most victims of assault at the hands of an authority figure. The issue of trust is common to both, but only in the sense that the students’ trust in Yeung enabled him to commit the assaults undetected. That is a common element in any sexual assault by a figure in authority. A unique feature in the assaults reported by A.E. is that Mr. Lim convinced her that these incidents of intimacy were actually exercises in building trust so as to enhance her competitiveness in Taekwondo. That aspect of trust is not present in any of the information accessed by A.E. in writing her paper, nor is it referred to in the paper itself.
87The defence also points to references in A.E.’s source materials to “grooming” of the victims and the fact that the assaults were escalating in nature. Again, these are simply features of virtually every sexual assault by adults on children, particularly those involving a position of trust. Further, the type of grooming referred to in the Yeung case (e.g. special privileges and gifts) were not reported by A.E. as something Mr. Lim did. One of the articles read by A.E. in her research reports a victim saying that the first incident of sexual abuse was a kiss and that she (the victim) froze when it happened. The defence points to A.E.’s description of the first assault in Mr. Lim’s office as following the same pattern. Once again, this is a typical pattern of abuse and a very common reaction by the victim. Likewise, the fact that the perpetrator took advantage of children in his care while on road trips or away from home is a common feature as between the Yeung case and the allegations made by A.E. against Mr. Lim. However, this is also simply a common denominator in many cases of the sexual abuse of children. Victims are at their most vulnerable when away from their parents. Predators commonly take advantage of that.
88I do not see anything in the essay or in the newspaper articles that were part of A.E.’s research to suggest that she adopted things that happened to Yeung’s victims and reported them as things that happened to her. The features common to both are things that are often found in cases of this nature.
89Accordingly, I do not find that the process of realizing the true nature of these events or the timing of the disclosure of the abuse, to be factors detracting from either the reliability or credibility of A.E.’s evidence.
Inconsistencies
90In her final submissions, Ms. Robitaille pointed to 13 examples of inconsistencies in A.E.’s testimony, which she argued were material, could not be resolved, and constituted an insurmountable obstacle to my being satisfied beyond a reasonable doubt as to Mr. Lim’s guilt.
91I will set out the 13 inconsistencies first, and then explain why I am convinced of Mr. Lim’s guilt notwithstanding these discrepancies. They are as follows:
(1) In her evidence in chief, in describing the first incident in the BBW office when Mr. Lim kissed her, A.E. did not mention anything about whether the office door was locked or unlocked. On cross-examination, she said that she had no current memory of whether the door was locked. At the preliminary hearing on May 9, 2019, A.E. testified that she was panicking after Mr. Lim kissed her and that he locked the door so that she would not leave until she had calmed down. In her statement to the police on April 27, 2018, A.E. said that the majority of times Mr. Lim would lock the door during these incidents so that nobody would be able to come in. At trial, A.E.’s explanation was that her memory as to details has faded over time. She believed her memory was at its best at the time of the preliminary hearing, even though that was a year after the police statement, reasoning that at the time of the police statement, she was still “processing” some of these memories. She also stated that although her memory may have faded with respect to details, it has remained constant and accurate as to what happened to her own body.
(2) A.E. told the police that during the assaults in Mr. Lim’s office, she was “usually” pushed up against the door. In her evidence at the preliminary hearing, she said she was “never” up against the door. On cross-examination, she said she should not have been so absolute at the preliminary hearing. Her best recollection now is that the bulk of these assaults occurred up against the wall beside the door, but she cannot say whether some of them could also have been up against the door.
(3) In her examination in chief at trial, A.E. testified that in the 2015 Korea incident, as she was about to leave, Mr. Lim took her hand, put it down his pants and forced her to grab his penis. In her police statement in 2018 and in her preliminary hearing testimony in 2019, she did not mention having touched Mr. Lim’s penis on that occasion. However, on October 20, 2020, A.E. sent an email to the officer in charge, advising of this further detail with the penis. On cross-examination, she denied that this was a new memory. She said that in reading her previous transcripts in preparation for trial, she was surprised to see that she had not mentioned it previously and immediately advised the police. She distinguished between this event and being forced to masturbate Mr. Lim, which occurred in 2016. She said that on this occasion in 2015, she was only forced to touch the penis.
(4) Also, with respect to the 2015 Korean hotel room incident, A.E. did not mention that Mr. Lim digitally penetrated her before performing oral sex on her. At the preliminary hearing, she did testify that digital penetration occurred. On cross-examination, A.E. was not sure what she had said the previous day about the digital penetration, but maintained that if she did not say it, it was because she didn’t remember to say it, not that it did not happen. She explained that she had been very tired. She also thought that she said something about “the usual things” being done at the beginning of this incident, which would include digital penetration as that would happen almost every time. It therefore did not seem to her to be the most important thing to mention. In fact, A.E. did state in her examination in chief that at the beginning of that incident, Mr. Lim did the “general things” that had happened before, and that when he then took off her pants and underwear and placed her on the bed, she had “no clue what was going on.”
(5) In chief, A.E. testified about the time she and others were in the car with Mr. Lim and he announced to the others that she needed to poo to explain why he was taking her upstairs to his apartment. At the preliminary hearing, in 2019, A.E. testified that she could not remember if she told the others that she needed to poo, or if it was Mr. Lim who said that. On cross-examination she agreed that her memory of who said that is not “crystal clear” in her memory.
(6) In reference to that same incident in Mr. Lim’s apartment, A.E. testified in chief that she recalled Mr. Lim kissing her, and touching her, and telling her how nice her body was, but could not recall if he fingered her. At the preliminary hearing, she testified that on that occasion he had gone under her bra, but that in touching her below the waist he had gone on top of her clothing. In cross-examination at trial, A.E. testified that this was a good example of her memory being better at the preliminary hearing in May 2019 than it was at trial in October 2020. She relied upon her testimony at the preliminary hearing. She said she was assaulted in Mr. Lim’s apartment three times and may have some of the details mixed up, and therefore cannot say now with 100% accuracy whether the touching was over her pants or whether she was digitally penetrated.
(7) At trial, A.E. testified that Mr. Lim was assaulting her in the open area outside the Vaughan BBW office on the second floor when they heard somebody walking up the metal stairs and had to scramble to disengage. At the preliminary hearing, she also testified that Mr. Lim assaulted her in that same location in the Vaughan office, but said that if someone had come up the stairs at any time, they would have been caught. On cross-examination, A.E. denied this was an example of her memory changing, stating that she had simply failed to mention before that on one occasion someone had actually come up the stairs.
(8) In her police statement, A.E. said that when Mr. Lim took her into her grandmother’s room, he fully removed her pants, and also her underwear. At the preliminary hearing she testified that she remembered him taking off her pants, but could not remember if he also took off her underwear, or just went under them. At trial, she also could not remember if her underwear was on or off at the time of digital penetration. She attributed this discrepancy to her fading memory of details.
(9) When telling the police about this incident in her grandmother’s bedroom, A.E. said that Mr. Lim had digitally penetrated her while she was still standing up and did it again while she was lying face down on the bed and he was massaging her legs. In her evidence in chief at trial, she testified that the digital penetration occurred after Mr. Lim started massaging her calves. On cross-examination, she testified that she has a memory of being face down on her grandmother’s bed and of Mr. Lim digitally penetrating her while she was in that position. However, she does not now remember whether he also digitally penetrated her before she was lying on the bed, but is clear in her memory that the digital penetration on the bed did happen.
(10) In the initial part of her statement to the police, A.E. provided a long narrative of the things that had happened with Mr. Lim over the course of the time she had trained with him. In the course of that narrative, (at p. 8 of the police statement), while describing what happened in Korea in 2016, A.E. said, “And then he had me like I always kind of refused to do anything back to him, like I never like wanted to touch him. I never wanted to do anything but that summer like he forced me to give him a hand job…” In 2020, just prior to trial and during her evidence in chief at trial A.E. disclosed for the first time that in Korea in 2015 Mr. Lim put her hand down his pants and forced her to hold his penis. The defence points to this as an inconsistency as she told the police that she had never wanted to touch Mr. Lim and she saw this 2016 occasion as being different because he forced her to perform a sexual act on him. In cross-examination A.E. distinguished the two situations. In 2015, Mr. Lim only forced her to touch his penis, whereas the incident in 2016 went on for some time while he forced her to masturbate him to eventual ejaculation.
(11) A.E. testified that during the 2017 assault in Mr. Lim’s hotel room in Korea, he forced her to perform fellatio on him. In her statement to the police, A.E. said that during this act, Mr. Lim moved her and instructed her what to do. When meeting with the Crown prior to the beginning of the preliminary hearing in May 2019, A.E. corrected that statement and said that she had a memory of Mr. Lim flipping her over and putting his penis inside her mouth. When testifying at the continuation of the preliminary hearing in July 2019, A.E. said that she could not remember if Mr. Lim was lying on his back while she was being forced to perform fellatio or if she was on top of him. She also could not remember that detail at trial. She was unable to pinpoint the time when she recalled that Mr. Lim had flipped her over and put his penis in her mouth.
(12) In her statement to the police, A.E. said that in the hotel room in 2017, before having penetrative sex with her, Mr. Lim removed her pants and underwear. At trial, she could not remember one way or the other how the pants and underwear came off. She also could not remember if her pants were off at the time Mr. Lim was penetrating her vagina as she was leaning over a chair. She said she just could not be 100% certain anymore. She said the pants came off at some point, but she could not be sure when.
(13) At trial, A.E. testified that after the July 2017 assault she had a large bloody bowel movement that particularly alarmed her because it had never happened before. She said she was so struck by it that she took a picture of it. However, it is apparent from medical records obtained by the defence that as early as May 2017 she had reported to her doctor that she had been having blood in her stool on a daily basis for the past month. A.E. conceded that her memory of this being the first time she had blood in her stool is inaccurate and was unable to explain this discrepancy. However, she does have a specific memory of being alarmed by this bowel movement after the assault.
Analysis of Reliability
92As I have already stated, I found A.E. to be a truthful witness. I accept her evidence about the period of time leading up to 2015 before there were any overt acts of sexual assault by Mr. Lim. During that time, his conduct went beyond the bounds of even the most rigorous requirements of any sport. Bit by bit, Mr. Lim took control over all aspects of her life, deliberately excluding her mother, and directing A.E. to keep information away from her. He built a culture of secrecy, not just one of trust. Then he began the precursors to sexual assault: the suggestive text messages; the comments on how beautiful she was; telling her she was special; the hugs in his office.
93When the sexual assaults started to happen, they came in small increments, progressing from long hugs to kissing, and then to touching above the clothes, and then under the clothes, then penetration, and finally rape. At each increment, A.E. accepted this small change as her “new normal.” I accept A.E.’s evidence that she completely trusted Mr. Lim and believed what he was telling her. She believed she was lacking in self-confidence because that is what Mr. Lim told her. He then convinced her that she must have absolute trust in him, and these intimacies he was taking with her were to build that essential level of trust for her to be a top athlete. He managed to convince her that he was sexually assaulting her for her own good, although she did not perceive when it was happening that it was, in reality, sexual assault.
94Given A.E.’s young age and the degree of trust and respect she reposed in Mr. Lim, it is not surprising that she did not immediately complain to anyone about Mr. Lim’s conduct, or that she did not process it in her mind as being assault. The law is now well-settled that there is no “typical” reaction to being assaulted and different people will react in different ways, both during and immediately after the assault. Likewise, it is inappropriate to discount the timing or nature of the eventual disclosure of the assault based on what the trier of fact believes to be common sense or logic, both of which can masquerade as stereotypes of how a victim of assault is “supposed” to behave. A.E. gave a credible explanation of the process by which she came to the realization that Mr. Lim’s treatment of her was not a trust-building exercise to benefit her, but rather acts of assault carried out for his own sexual gratification. Bearing in mind her age and attachment to Mr. Lim, this cannot have been an easy process of realization. I believe her testimony as to how it happened. It may seem odd that she did not come to that realization earlier, but that does not make it untrue. Further, it does not render the memories unreliable. I accept A.E.’s evidence that these were not repressed memories that only came into her consciousness as a result of an external or suggestive event. Rather, she always had these memories, but failed to appreciate their true nature. I do not find anything about the disclosure process to undermine the reliability of those memories.
95That said, memories are never perfect. Memories can be false, even though earnestly believed. Or they can become confused over time and jumbled up with other memories. That is the inevitable result of the nature of human memory, for the vast majority of, if not all, humans. There were inconsistencies in some of the details in A.E.’s accounts of these multiple assaults over a period of years. If there were no inconsistencies, I would be astounded. The question is whether these inconsistencies were material and whether they undermine the overall reliability and credibility of her evidence.
96With respect to some of these inconsistencies, A.E. was simply wrong. For example, her testimony that the blood in her bowel movement after the final assault in 2017 was alarming to her might be correct. However, she said it was because this had never happened before, about which she is clearly wrong. She has a false memory about being alarmed because this was the first time it had happened. I would discount any evidence about the bowel movement, as her entire memory of it may be inaccurate. However, nothing turns on this detail in any event. There was no reliance on the bowel movement as having been caused by the assault. Likewise, although A.E. reported seeing some vaginal bleeding the next day, she did not consider that to be caused by the assault, but rather thought it was likely menstrual bleeding, as her periods had been quite irregular (a concession she volunteered herself, which is another hallmark of honesty in my view).
97Likewise, I am not troubled by A.E.’s mixing up whether Mr. Lim told her to tell the other girls she needed to go to his apartment to use the bathroom or whether Mr. Lim told that to the other girls directly. It is a detail that A.E. has since forgotten due to the passage of time. I find that understandable.
98The defence relied on the incident on the second floor of the Vaughan office as an example of A.E. changing her evidence over time. When she initially described this incident, she recalled that Mr. Lim assaulted her in a position where they could be seen if someone was coming up the metal stairs. Later, this memory had “morphed” into actually hearing somebody on the stairs, rather than just being concerned about someone coming up the stairs. I do not believe I need expert evidence to recognize that this sometimes happens to memories. The person is thinking about something about to happen, and then remembers it as actually happening. Again, this is merely a detail and one that does not affect the core of the evidence. It is not a fabricated or embroidered piece of evidence. There would be no need for A.E. to make up such a detail. I am sure that she remembers it that way now, whereas her earlier memory was of only fearing somebody would come up the stairs. If this was the one and only instance of sexual assault, I might be more concerned. However, I do not find this minor discrepancy or “trick of memory” undermines the overall credibility and reliability of A.E.’s evidence.
99In the same vein, there were inconsistencies about when clothing got removed, what position she was in at what time, and where she was standing when being assaulted. However, there was considerable overlap in the nature of the sexual conduct and much of it was repeated over and over again for a period of about 2 ½ years. In these circumstances, some events may have been conflated with others so that the detailed step-by-step process of each assault may be difficult to reconstruct. However, the essence of each assault remains constant. Some minimal confusion as to details I attribute to nothing more than the frailties of memory. I do not see these inconsistencies as falling into the category of the complainant not being able to keep her story straight, or that her story is evolving over time. These details are simply not of that nature.
100I attach no significance to A.E.’s failure to tell the police in her initial 2018 statement that at the end of the 2015 assault in Korean hotel room, Mr. Lim put her hand down his pants and forced her to hold his penis. This was an omission, which is less concerning than a completely contradictory piece of evidence. A.E. was not asked directly about it at the time, or at the preliminary hearing, and she simply neglected to mention it. I accept her evidence that when reading the transcripts in preparation for trial she was “surprised” to find she had omitted this act by Mr. Lim. I also find it enhances her credibility that she contacted the police and advised them of her error. It would have been easy enough to just leave out that detail at trial rather than looking like she had made a mistake. I also accept A.E.’s evidence that what happened in 2016 was a matter of an entirely different character. She was not made to actually do anything with the penis in 2015, other than to put her hand on it. In 2016, Mr. Lim forced her to masturbate him to the point of ejaculation, and when ejaculating into the toilet, soiled her hand. That was particularly memorable to her because nothing like that had happened before, and I agree with her that what happened briefly at the door in 2015 was quite different.
101A.E. testified that her memory was at its best at the preliminary hearing in 2019, rather than at the time of the police statement in 2018. I am sure she believes that to be the case. She also testified that while she might be confused about details of things like where she was standing or what happened with her clothes, she was sure that her memory was accurate with respect to things that were done to her body. Again, I’m sure her belief in that regard is honest. However, it is difficult for a person to know which memories, though clear in their mind, are inaccurate, and which ones are true. An honest witness, which I find A.E. to be, will almost invariably believe their actual memories are correct, while recognizing that where their memory is foggy, they might be mistaken. I attach no weight to A.E.’s own belief about which memories were most reliable and when. It is most likely that her memories closest to the event are accurate, regardless of her belief to the contrary. Likewise, if she has forgotten a detail such as who was lying in what position on a bed at a particular point in time, I do not consider that to be any more problematic than other details that have become murky over time, provided they are not matters that go to the core of the allegations against Mr. Lim.
102In my view, the inconsistencies raised in A.E.’s evidence do not cause me to doubt her credibility, nor do I have any doubt in the reliability of her evidence as to the essence of the charges against Mr. Lim.
103In closing argument, defence counsel described A.E. as providing a “mechanical recitation” of the assaults, devoid of any sensory detail such as tactile things, smells, the scratch of a beard, and the like; things often referred to as providing a “ring of truth.” Counsel suggested this was a negative factor in assessing A.E.’s credibility. I do not agree. The demeanour of a witness is a difficult thing to assess. I do not know what A.E.’s normal demeanour might be. However, it is not necessary for sexual assault complainants to break down sobbing to be believed, nor are they required to demonstrate anger or fear towards the perpetrator. Not everybody shows their emotions easily. A.E. was a calm witness, who was respectful and thoughtful. I did not find her to be “mechanical,” but rather to be a self-assured young woman who kept her emotions in check. I do note that she testified by Zoom in a room with a Victim Witness support person, rather than in a formal courtroom in front of the accused and all of the other people, including spectators, who are typically in a live courtroom. I, and others, have observed (and this is purely anecdotal) that witnesses are often less stressed about testifying in such an environment. In addition, A.E. was assisted by having her lovely support dog present with her throughout. Finally, her evidence was not devoid of these elements of sincerity; I recall, for example, her testimony about cleaning the semen off her hand, her feeling weird about Mr. Lim kissing and touching her in his apartment “where he slept with his wife,” and her horror at Mr. Lim digitally penetrating her while she lay in her Grandma’s bed.
F. CONCLUSIONS
104I find that the Crown has discharged its onus in this case. I am satisfied beyond a reasonable doubt that the acts of assault alleged in the indictment, and as described by A.E. in her evidence, actually happened. I have taken into account Mr. Lim’s bald denial to friends in a social setting. It does not cause me to have a reasonable doubt. I have found A.E. to be both an honest and reliable witness as to the things Mr. Lim did to her. To some extent, that conclusion is reinforced by the similar fact evidence, but I have placed little weight on it. The evidence of A.E. standing alone, even without the similar fact evidence, leaves me with no doubt as to Mr. Lim’s guilt on all counts.
105There is, however, some overlap in the various counts, with sometimes more than one count based on the same conduct. Before entering convictions on all counts, I will hear submissions from counsel as to which counts might be appropriately stayed as duplicative.
Released: January 14, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
SHIN WOOK LIM
Defendant/Applicant
REASONS FOR JUDGMENT
Molloy J.
Released: January 14, 2021
Footnotes
- R. v. Lim #2, 2021 ONSC 44
- R. v. Lim, 2020 ONSC 5745.
- R. v. Lim #2, 2021 ONSC 44
- Exhibit 3, Text messages July 13, 2014 (pp. 35-38).
- Ibid, p. 39-40.
- Exhibit 3, Text messages July 16, 2014.
- Counts 6, 7 and 8 are the first counts on the indictment relating to A.E. I severed the first five counts and they will be proceeding separately. I have referred throughout this decision to the counts as numbered on the original 15-count indictment.
- Exhibit 6.
- For particulars of E.L.’s evidence, see my Reasons in R. v. Lim #2, 2021 ONSC 44.
- R. v. W. (D.), 1991 93 (SCC), [1991, 1 S.C.R. 742.
- Ibid. at para. 11.
- R. v. Lim #2, 2021 ONSC 44.
- R. v. D.D., 2000 SCC 43, [2000] 2 SCR 275.