COURT FILE NO.: CR-20-4814

DATE: 20210122

Decision delivered orally and in writing

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Michael Kwan-Kuen Lo

Accused

Nicole Lamphier, for the Crown

David M. Humphrey and Jill D. Makepeace, for the Accused

HEARD: January 4, 5, 6, 7, 8, 18 and 19, 2021

RESTRICTION on publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

REASONS FOR JUDGMENT

pomerance j.:

[1] Michael Kwan-Kuen Lo is a retired physician. He is charged with historical sexual offences against a former patient, L.R. She testified that, on one occasion when she and Dr. Lo were alone in the office, he conducted a breast and vaginal exam which amounted to sexual touching and sexual assault. The accused denies that the events took place. As with many such cases, the central issue is credibility. It is agreed that, if I accept the complainant’s evidence, the crimes are made out.

[2] I have determined that the Crown has failed to prove the offences beyond a reasonable doubt. I will explain why in the reasons that follow.

[3] I will begin by describing the allegations against the accused. I will then turn to an analysis of the evidence and describe the path to verdict. When I refer to the complainant by name, I will use her initials in order to respect the publication ban. When I refer to the accused by name, I will use his title, referring to him as Dr. Lo.

The Allegations

The Subject Visit

[4] L.R. was a patient of Dr. Lo from the time she was six years of age until the time that she was 23 years of age. Her last visit to him was in March 2015. The charges arose from an event that she said occurred in September 2008, while she was 16 years of age.

[5] L.R. testified that, on the day in question, she was not feeling well, experiencing flu symptoms. She was at school that day and called her mother to pick her up. However, the school had recently changed locations, and her mother was not certain of where it was. Therefore, she asked L.R. to wait until she got home at the end of the school day. The complainant came home and her mother took her to the doctor’s office for an appointment at about 3:00 or 3:30 p.m. The complainant remembered that she had just gotten her G1 licence and liked to practice driving. She drove the car with her mother to the appointment that day. Her mother dropped her off at the doctor’s office, and then went to buy groceries.

[6] L.R. came into the office to see the accused sweeping the floor. She did not see the receptionist “Fran” anywhere. She recalled the accused saying that she was the last appointment of the day and that he could spend as much time as she needed. They went into the consultation room, and she said that she was not feeling well; that she had a headache and a stomachache, that she had thrown up and that she had had diarrhea. He asked if there was anything else and pointed out that during the last visit, she had complained of a yeast infection. He asked if she still had symptoms and suggested that he “take a look”. She responded that she might still be having an issue. He led her into the female examination room and told her to take her pants and underwear off and cover herself with the cloth on the table. He said that he would come into the room when she was done. He went back into his office through the sliding door.

[7] L.R. testified that she went into the corner to undress, and she found the cloth, which was not big enough to cover her. The accused knocked on the wall and said, “are you done yet” and she said “no,” but he said, “Okay I’m going to come right on in.” According to the complainant, she still had her shirt and her underwear on, and she was trying to cover herself with the cloth. She was standing in the corner near the window.

[8] The complainant asked the accused whether it would just be the two of them in the room, and the accused told her that he did not have anyone else who could come in.

[9] The complainant testified that the accused walked into the room, stood in front of her, and told her to take her underwear off. He watched her while she did so. He then told her to sit on the table. She walked over to the table trying to cover herself with the cloth. The accused adjusted the cloth so that it lay horizontal and he said, “how about we do a breast exam first?” He told L.R. that she had to take her top off. She began to do so, but it was uncomfortable. As she was removing her top, he came over and said, “let me help you.” She resisted and he said “you remind me so much of my daughter. I’ll help you take the top off and your bra.” She lifted her arms up and he removed both her shirt and her bra.

[10] She testified that the accused uncovered the left breast and began pressing and holding her breast and “fondling” her a little bit, pinching her nipple. The complainant described the action as “groping.” He did the same with the other breast. He told her that she had very full breasts for a young girl.

[11] When the breast examination was over, the complainant put her shirt and bra back on. The accused then proceeded to conduct a vaginal exam. He placed her feet in the stirrups of the examination table. At this time, he was not wearing gloves on his hands. Nor was he holding any medical instruments. She was laying back and so could not see everything that he was doing as her knees were up, and he was sitting low on a stool.

[12] According to L.R., the accused told her that she had a little skin tag near the opening of her vagina. He then told her that she had an abnormally large clitoris, and that if she were to have sex with a man with a large penis that it would cause her to have double the pleasure. He then placed his finger inside of her vagina without prior notice. He told her that he could feel her uterus, her fallopian tubes and her ovaries, and told her that her reproductive organs were lower than they should be. He told her that she was very fertile for a young girl and that she could get pregnant the first time she had intercourse. His finger was inside her vagina and his other hand was pressing down on her abdomen. L.R. testified that the accused was pressing around and squeezing her clitoris, telling her that she was swollen and that he thought she was sensitive. He then put his finger inside her again without notice.

[13] The complainant testified that the accused then said that he wanted to check for sensitivity. He began rubbing her clitoris up and down and stroking it. He asked her whether she felt pleasure or pain. She said she did not know. He said “its okay to feel pleasure from what I’m doing to you and I feel like you’re getting aroused by what I’m doing because I can see the blood rushing down your legs and into your feet” He told her: “I know that you like what I’m doing to you. I know that you do and that’s okay…”

[14] He continued to stroke her, and she “left her body”, feeling like she was standing over herself watching as it was happening. She felt a burning sensation in the area he was touching. She then felt a “rush” in her body, which she believed in retrospect to be an orgasm and a sound came out of her mouth. She tried to sit up and said, “we are done”. Her legs were still in the stirrups. He said “No I’m not. I’m not done yet” and grabbed her leg. She said that she was not feeling well and she wanted to go home. When she saw that he was not wearing gloves, she challenged him about that and he said: “you’re clean you’re just fine.” She did not think that he took a swab during this procedure.

[15] He left the room, and she got dressed, joining him in the office. He told her that she had some irritation and that he would prescribe her some medication for it. He gave her oral antibiotics and also prescribed a vaginal suppository. She testified that he gave her detailed instructions on how to use the suppository telling her to put it “in her hole” and use the applicator “like it is a penis.”

[16] She took the prescription to the pharmacy and walked around until it was filled. She waited for her mother to come pick her up. On the way home, she did not want to drive, which caused her mother to look at her quizzically as this was not like her.

[17] The complainant was quite certain that the office assistant, Fran Furtada, was not present during this visit. She would ordinarily see Ms. Furtada sitting at the reception area when she arrived. In addition, she would stop by on her way out to make follow-up appointments. She needed a follow-up appointment on this occasion, but because Ms. Furtada was not there, she did not make the appointment that day.

[18] The complainant testified that she was upset. She was crying and ashamed, shocked and upset. She did not understand what had happened. She felt embarrassed that she had liked some of the things that he was doing.

The Prior Visit

[19] The complainant was quite certain that the subject visit took place on September 9, 2008. The visit just prior to that took place on July 20, 2008. On that occasion, there was discussion about whether the complainant had a yeast infection.

[20] The complainant’s mother was with her at the doctor’s office that day. That day, she and her mother had a conversation, and they decided that she was old enough to see the doctor by herself. She testified that the accused suggested that she was old enough to come without her mother – that if she was more comfortable without her mother in the room, she could come by herself. She agreed and decided that she would go on her own.

[21] She did not want her mother there on September 9, 2008. Nor did she want her mother to attend with her on subsequent visits, after the date of the alleged assault.

The Follow-up Appointment

[22] L.R. made a follow-up appointment about a month later. The accused conducted another vaginal examination. She agreed to it saying, “I want you to just look; I don’t want you to do what you did to me the last time.” He promised that he would not do that and conducted a normal vaginal exam.

Time and Place

[23] The complainant was quite sure that she was 16 years old when the alleged offences occurred. She had gotten her G1 licence in March 2008, and practiced driving with her mother, including on the day of the incident. She was quite sure that the incident took place in September 2008. She recalled her mother picking her up and asking if she wanted to drive home and she declined because she was upset.

[24] The complainant was also quite sure that these events took place at the accused’s new office rather than his old office. She believed that the move took place around 2007 or 2008.

The Complaint

[25] The complainant first complained of improper conduct on the part of the accused when she began seeing a psychologist, Dr. Ahmad, in 2018. I will return to this meeting in due course.

[26] Having learned of the complaint, Dr. Ahmad was required to file a report to the College of Physicians and Surgeons (“the College”). She told the complainant of this mandatory reporting requirement. The complainant received a call from Lisa Mueller on February 16, 2018. Her next contact with the College was a meeting with Heather Carroll, during which time she provided a lengthy statement.

[27] The complainant was told that there was nothing that the College could do, as Dr. Lo had retired. It was suggested that the complainant speak to the Windsor police. The complainant gave a statement to Officer Julie Matte of the Windsor police. She subsequently learned that the matter fell under the jurisdiction of the Ontario Provincial Police (OPP) and that she would have to provide a new statement to the OPP. On June 22, 2018, she gave a statement to Tammy Renaud of the OPP. Charges were laid against the accused.

Evidence of Fran Furtada

[28] Ms. Furtada was the former office assistant for Dr. Lo. She was acknowledged by Crown and defence to be an entirely neutral witness. Her evidence was unchallenged. For purposes of this decision, I will refer to the most salient aspect of her testimony, namely the date on which Dr. Lo’s office moved to a new premise. She testified that she was certain that, on September 9, 2008 Dr. Lo was still running his practice in his old office. He moved to a new office premise sometime between 2009 and 2010. Ms. Furtada identified the time of the move by reference to the birthdates of her children.

Analysis

[29] I will begin with some preliminary observations. In cases of this nature, it is an error to judge the conduct of the complainant against a standard of perfection, or to assume that there is a single uniform response to sexual violence. In this case, the complainant did not come forward with a complaint against Dr. Lo until many years after the alleged incident. In addition, the complainant continued to see Dr. Lo as her physician despite her allegation of sexual abuse in 2008. Delay in disclosure is a neutral factor in cases of this nature. Similarly, some individuals will continue contact with an abuser in order to pretend that the violence did not occur. Others will have different reasons for continuing contact. The fact of contact after an alleged assault does not disprove the allegation. Nor does a delay in coming forward. Victims may be embarrassed, may blame themselves, may be confused about what happened, or may be afraid of voicing a complaint. Stereotypes have no legitimate place in Canadian courtrooms, whatever the nature of the allegation. Verdicts must be based on evidence, not assumptions and/or generalizations about how people should behave.

[30] That is the lens through which I view the complainant’s evidence. The delay in reporting and the continued contact with the accused do not, per se, detract from the credibility or reliability of L.R.’s account. There are, however, other aspects of the evidence that cast doubt on the reliability of the complainant’s testimony. I refer here to reliability rather than credibility, because it is my sense that the complainant may have been sincere in her testimony. She may genuinely believe that the historical events in issue took place. However, it is well known that sincere witnesses can be mistaken. Credibility, as it relates to honesty, is not the only consideration. The court must also consider the reliability of a witness’ evidence. In this case, there are significant reliability concerns. I cannot be satisfied that the complainant’s stated memories, if present, are anchored in real-life events.

[31] I say this for two central reasons: 1) the genesis of the complaint; and 2) the nature and number of inconsistencies in the evidence. I will deal with each of these in turn.

The Genesis of the Complaint

[32] The complaint against Dr. Lo came to light during a psychological assessment. At the time, the complainant was experiencing many issues affecting her well-being. While not specified in the evidence, it appeared that these issues were both of a physical and psychological nature. The complainant, seeking to understand why she was having these problems, retained a neuropsychologist to do a full examination. The neuropsychologist suggested to the complainant that something serious must have happened to her, and explicitly suggested that the complainant might have been sexually abused. As it was described by L.R. at the preliminary hearing (and adopted by L.R. in her trial testimony):

Um, well Dr. Ahmed had asked me if there was

something seriously wrong. She said to me that

I’ve done your testing and I’ve done neurological

cycle for neuropsychological testing on you and

um, I feel like something very serious happened to

you. The way you’re acting. Like, you’re very

avoidant and um....

A. Okay.

Q. [as read]

Sorry um, and she said that it appeared to her

like that I need to share something with her and

she actually - believe she actually said, I don’t

know if you’ve been sexually abused maybe.

A. Mmhmm.

Q. [as read]

Or she’s like, there has to be something and you

know if you wanna talk to me about it you an [sic] tell

me anything and got into this whole thing and from

there like, I wasn’t even planning on really even

talking about – like it actually being like abuse.

Like, I actually was trying to talk to her about

it as if like – I’m like okay, so, if you want to

the doctor, you know, did this ever happen to you?

A. Okay.

Q. [as read]

And again, like there is still like, I was trying

to normalize and trying to believe like, you know,

this in fact didn’t really happen.

A. Okay.

Q. All right so you – you said all of that...

A. Yeah.

Q. ...to – to her, right? And I’m going to

suggest that that’s how this whole topic came up about whether

maybe the explanation for some of the – the issues you’re having

in life was that you had maybe been abused. That’s what Dr.

Ahmed was asking you, right?

A. Yeah, and there was like, a – she was trying

to figure out a root cause to my issues.

Q. Right. And it’s – it’s in that context that

she says to you, “essentially like is it possible maybe you were

abused in some way – sexually abused in some way”. Is that how

it comes up?

A. Yeah. That’s how it came up.

[33] It may be that the exchange with Dr. Ahmad was helpful within the therapeutic context. However, it raises alarm bells in the context of a criminal trial. It is of concern that the allegation of sexual abuse only came to light when a doctor suggested to the complainant that she might have been sexually abused. It may have been tempting for the complainant to seize upon this possibility as an answer to the many questions she was struggling with. It may have offered some comfort to identify an outside experience as the cause of what she was experiencing. It may have prompted a reconstruction of historical events.

[34] I am not in a position to make any definitive finding on this issue. The dynamics at play are complex and involve issues on which the complainant’s privacy must be respected. Suffice to say, it is conceivable that the complainant has come to believe that the events in question did happen. To that extent, she may have been sincere in her testimony before the court. However, she may also be gravely mistaken.

[35] During the proceedings themselves, the complainant appeared to misinterpret certain events. A technical problem delayed the trial on the second day, causing the complainant to believe that Crown counsel had sabotaged the proceedings on purpose. The complainant was sufficiently upset that she asked that Crown counsel’s camera be turned off so that she would not have to look at her. On another occasion, the complainant felt aggrieved because she perceived that the court had kicked her out of the proceedings the day before because she was crying. In fact, I had directed that we break early in the day in order to respect the complainant’s difficulties and give her time to rest. I mention these events not to be critical, but to point out that the complainant’s perceptions did not always reflect the reality of what had occurred. The question is whether the complainant’s perceptions of Dr. Lo’s activities are subject to the same frailties.

[36] Where an account is either concocted or constructed – consciously or unconsciously – it is not anchored in a real-life event. Its unmoored character causes it to shift, if only because it is difficult to keep track of the details. Of course, it is not uncommon to see inconsistencies when witnesses are recounting real events. Yet, the nature and number of inconsistencies may suggest that the witness is remembering a story about an event, rather than the event itself. That appears to be the case here. I will turn to that issue now.

Inconsistencies

Time and Place

[37] I will first deal with the inconsistency between the testimony of the complainant and the testimony of Ms. Furtada. As noted above, the complainant was quite certain – 100 percent certain – that the events in question took place when she was 16 years of age. She recalled having just obtained her G1 licence and being in high school at the time. The complainant also testified that she was certain – 100 percent certain – that the events took place in Dr. Lo’s new office, rather than the old premises. She affirmed this when presented with diagrams of both locations. However, we know from Ms. Furtada that the move to the new office did not take place until well after the September 2008 appointment. The move was between 2009 and 2010. This evidence is unchallenged.

[38] The Crown acknowledges that the complainant must be wrong, either in describing the time of the offence, or the place in which it occurred. The Crown argues that it is open to me to find that the event did take place in 2008 but in the new office, or alternatively, to find that the offence took place in the new office, but at a time much later than 2008.

[39] There are some difficulties in adopting the Crown’s position. First, the complainant testified that the old office did not have a female examination room. In fact, it is undisputed that the old office did have such a room, with a sliding door leading into Dr. Lo’s personal office. This would suggest that the complainant had never been in the female examination room in the old office. If she had, she would have known that such a room existed. If she had never been in the female examination room in the old office, the events could not have occurred as described in the old office.

[40] What about the contrary assertion? Could it be that the complainant was correct about the location but mistaken about the time frame? That too raises difficulties. The complainant had a very vivid recollection of having her G1 licence on the day of the events. She recalled driving the car with her mother in it on the day of the subject examination, so that she could practice her driving. She remembered her mother going to buy groceries while she was in the office, and she remembered her mother being surprised when she did not want to drive home. This was the basis for the complainant’s recollection of when the events occurred. If the events had taken place in the new office, the complainant would have had her G2 licence by then. She would not have had to drive with her mother; she could drive on her own. She would not have been concerned with practicing her driving in anticipation of the road test.

[41] In other words, these dueling accounts cannot be reconciled into a single cohesive narrative. If one were to cobble together bits and pieces, the resulting narrative would have no resemblance to the evidence heard at trial.

Internal Inconsistencies

[42] During cross-examination, Mr. Humphrey, counsel for Dr. Lo, explored various inconsistencies between the complainant’s testimony and her statement to Heather Carroll, an investigator with the College. The investigator travelled to Windsor and met with the complainant at a hotel. The interview was recorded and extended over several hours. The discrepancies between the complainant’s trial testimony and her statement to Ms. Carroll, include the following:

• The complainant testified that she was at school when she began feeling flu-like symptoms. She told Heather Carroll that she stayed at home that day. She explained it by saying that she was planning on staying home, but she did not do so.

• The complainant testified that she drove the car with her mother in it on September 9, 2008. She told Heather Carroll that she drove to the appointment by herself. She explained that she was probably just mixing up appointments, because there were many appointments where she just drove herself.

• The complainant testified that when she arrived, the waiting room was empty and Ms. Furtada was not there. She did not see her at all. She told Heather Carroll that when she first went in that day, she spoke to the secretary Fran. Fran was said to be in a bad mood and told her to sit down. When it was her appointment time, Fran called her name and she went inside.

• The complainant testified that she was wearing shirt bra and underwear when Dr. Lo walked into examination room - she told Heather Carroll that she had only her bra and underwear on (shirt off).

• The complainant testified that she was standing near the window when Dr. Lo barged into the room and he watched her take underwear off while she was standing – she told Heather Carroll that she was sitting on the table when Dr. Lo came in.

• The complainant testified that she was lying down the entire time of the breast exam in testimony – she told Heather Carroll that Dr. Lo told her to sit up and he squeezed her breasts while looking at her face to face.

• The complainant testified that the accused did not have anything in his hand during the vaginal examination and that he did not touch any swabs. She told Heather Carroll he grabbed a swab, was touching her clitoris with the cotton swab, that the swab was sent to lab, and that at the next appointment she was told she had an infection.

• The complainant testified that her mother was not with her when the accused described how to use suppositories. She told Ms. Carroll that the conversation took place on a different occasion, when her mother was there and Dr. Lo asked her if she wished to have her mother leave the room. She was embarrassed to have her mother in the room and asked her to step outside and wait.

[43] The complainant offered various explanations for these contradictions. She testified that she had blocked the events out of her mind and was still processing them when she spoke to Ms. Carroll. She testified that she was nervous and tired that day. She testified that the events had taken place a long time ago. She testified that she must have confused some of her other visits with the subject visit. She testified that she was suffering from PTSD. She testified that the more she talked about the events, and the more therapy she received, the more her memory improved.

[44] The essence of the complainant’s evidence is that her memory improved over time. She testified that the more she spoke about the events, the more she remembered. This, she said, is how PTSD works. However, the complainant did not profess to have a lack of memory when speaking with Ms. Carroll. She professed to have actual memories that ended up being very different than the memories recounted at trial. I accept that the complainant may have mixed up some details from other appointments. However, the inconsistencies went well beyond the conflating of neutral details from past or subsequent visits.

[45] This takes me to the next point. The Crown argues that the inconsistencies related to peripheral rather than core details. It is the Crown’s position that, as it relates to the core of the allegations, the complainant remained consistent. With great respect to Crown counsel, I cannot agree with that characterization. Many of the discrepancies described above relate directly to the alleged sexual offences – where the parties were, how they were positioned, and what Dr. Lo did and said. The complainant maintained that there had been sexual impropriety, but the details of the alleged impropriety shifted from statement to statement. The details are not just part of the sexual acts described; the complainant described these details as precise memories. She spoke of the embarrassment that she felt as she stood and removed her underwear with the accused watching. She spoke of the feeling of sitting up during the breast exam and being face to face with the accused during that event. These were precise description of events and the feelings that they invoked. Yet, on other occasions, these same events were described quite differently.

[46] There is, more broadly, a thematic inconsistency in the complainant’s evidence. On the one hand, she testified that she did not know that what happened was inappropriate. She was sexually naïve and did not fully appreciate the impropriety of what had taken place. This was why she continued to see Dr. Lo and why she later allowed him to examine her without a chaperone. She testified that she had blocked the events out of her memory, and it was only much later, in 2018, that she came to appreciate what had been done to her. On the other hand, the complainant described events that belie this suggestion. For example, she testified that, at the follow up visit after the events, she told Dr. Lo that he could examine her as long as he did not do what he did the last time. This would suggest that she did understand that what had taken place was wrong. Similarly, the complainant testified that, at her last appointment with Dr. Lo she threatened to tell people what he had done when she was ready to do so. That, too, belies the suggestion that she was unaware of the implications of the sexual touching. I raise this not because there was delay in reporting and not because the complainant continued to see Dr. Lo. I raise it because it is difficult to reconcile these competing themes in the complainant’s testimony.

[47] The testimony about the last visit to Dr. Lo raises other issues. At the preliminary inquiry, the complainant offered a rather elaborate and dramatic exposition of her last appointment, in which she yelled at Dr. Lo that she would tell people what he did, and he essentially begged her not to leave him. She testified that he grabbed her arm during this encounter. This event was mentioned for the first time during the preliminary hearing, despite the fact that L.R. had previously given several statements to investigators. It was volunteered by the complainant while she was being cross-examined by Ms. Makepeace. Ms. Makepeace suggested to the complainant that the accused had never physically threatened her and it was at that time that she raised, for the first time, the dramatic last appointment where he grabbed her arm. Mr. Humphrey argues that this story was fabricated out of whole cloth in an effort to paint Dr. Lo in the most negative light imaginable. It is said that, rather than concede that there was no physical threat, the complainant chose to make up a story about one.

[48] The chronology lends some credence to the defence position. One would have expected the complainant to speak about the last appointment in earlier statements, or, at the very least, in her examination in chief at the preliminary inquiry. When confronted about the omission, the complainant insisted that she tried to tell the OPP investigator about this incident, but the investigator stopped her and said that she did not want to hear about it. She was only interested in the primary complaint. That is simply not a plausible assertion. A police investigator would be most unlikely to prevent a complainant from speaking about other encounters with an alleged abuser. Moreover, had the appointment unfolded in such as dramatic fashion, one would have expected Ms. Furtado to have overheard some of the argument. Yet Ms. Furtada consciously had no memory of such an event. In the end result, whether or not the complainant consciously fabricated the story of the last appointment, I find that it could not have taken place in the manner suggested.

Conclusion

[49] On the whole of the evidence, there can be no findings of guilt against Dr. Lo. The evidence leaves a wide berth of doubt on the essential issues. I cannot be satisfied on any standard that Dr. Lo engaged L.R. in sexual activity. I find Dr. Lo not guilty on counts 1 and 2 on the indictment.

Original signed by Justice Renee M. Pomerance

Renee M. Pomerance

Justice

Released: Orally and in writing – January 22, 2021

COURT FILE NO.: CR-20-4814

DATE: 20210122

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Michael Kwan-Kuen Lo

REASONS FOR JUDGMENT

Pomerance J.

Released: Orally and in writing – January 22, 2021