COURT FILE NO.: CR-20-4000043 DATE: 20230622

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – ROMEO TAN Defendant

Counsel: Oslyn Braithwaite, for the Crown David Humphrey and Jill Makepeace, for the Defendant

HEARD: December 20, 21, 22, 2022

J. R. PRESSER J.

1In October 2017, J.N. read a newspaper article about a physician who lost his licence to practice medicine for sexually abusing a patient. After reading it, she remembered a sexualized vaginal exam performed on her by her former family doctor, Romeo Tan, about three and a half years earlier in May 2014. She had had no memory of that incident from shortly after it occurred until she read the article. J.N. then spent the next five days writing up a detailed outline of what she remembered having happened with Dr. Tan ¹ in May 2014, before calling the College of Physicians and Surgeons (“the College”). In her written outline, J.N. noted that her allegations were similar to the plot of a movie called “Hysteria,” which she had seen.

2J.N. ultimately made a complaint about Dr. Tan to the College, and then to the police. Dr. Tan was charged with one count of sexually assaulting J.N. His trial proceeded before me, sitting without a jury.

3Over the course of the history of this matter, J.N. wrote three separate letters or documents relating to these allegations for the College, including the original October 2017 outline. She was interviewed and gave oral statements to the College and to the police. She testified three times, once at a hearing before the College, once at the preliminary inquiry in this criminal case, and once at trial before me. In her oral statements, J.N. referred to or directly read her October 2017 written outline. She prepared to testify by reviewing that outline and committing its details to memory.

4J.N.’s evidence in relation to the core allegations of sexual assault by Dr. Tan was consistent across all of her statements and testimony. However, there were several discrepancies and inconsistencies in relation to other details. J.N. acknowledged that she had a generally poor memory.

5J.N. was the only witness to testify for the prosecution. The Crown called no other evidence.

6Dr. Tan did not testify at trial. The defence called no evidence.

7The position of the Crown was that the inconsistencies and discrepancies in J.N.’s evidence were in relation to peripheral matters that did not touch on her core allegations of sexual assault by Dr. Tan. J.N. was a credible and reliable witness. The allegations were not implausible or improbable. The core allegations were consistent and were sufficient to ground a finding that the offence had occurred beyond a reasonable doubt.

8The position of the defence was that the alleged sexual assault did not occur. The defence highlighted what it said were significant discrepancies and inconsistencies in J.N.’s evidence, submitting that in light of them, J.N. was not a credible or reliable witness. Defence counsel argued that, examined in context, J.N.’s evidence was implausible and improbable. The defence submitted that the apparent consistency in her core allegations was a product of J.N. having written a detailed outline of her allegations, which she studied, memorized, and repeated. The repetition of a script in this manner could not and did not support the reliability of the memories contained in it. The defence argued that this is particularly true in light of all of the inconsistencies in her evidence, her admittedly poor memory overall, her complete absence of any memory of these incidents for three and a half years, the similarity between these allegations and the plot of the movie “Hysteria,” which J.N. acknowledged having seen, and her demonstrated suggestibility. On all of the evidence, the defence submitted, the Crown did not establish Dr. Tan’s guilt beyond a reasonable doubt.

9The issue for my determination is whether, on all the evidence, I am satisfied of Dr. Tan’s guilt beyond a reasonable doubt.

10For the following reasons, on all of the evidence, I am not satisfied beyond a reasonable doubt that J.N.’s memory of being sexually assaulted by Dr. Tan is reliable. Accordingly, I must acquit him of the one count of sexual assault on the indictment.

I. The Evidence

A. J.N.’s Background

11J.N. came to Canada from the Philippines on September 12, 2012 with her husband and daughter, who was then almost three years old. J.N. has since had another child.

12J.N. had been a physician in her country of origin, specializing in obstetrics and gynecology (“OB/GYN”). She obtained her medical licence in the Philippines in August 2001, and then completed a four-year OB/GYN residency at a government hospital from 2002 to 2006. She was in private practice as an OB/GYN from 2006 until 2012 when she came to Canada.

13As an OB/GYN, J.N. did internal examinations of women’s vaginal canals and pelvic areas, she examined pregnant women, checked for diseases of the pelvic area including reproductive cancers of the uterus and ovaries, she performed pap smears, she delivered babies both by caesarean section and by spontaneous vaginal delivery, and she performed hysterectomies and tubal ligations. J.N. saw approximately 50 patients a day during her four-year residency at the government hospital, and approximately 20 patients a day during her six years in private practice. She performed internal examinations on most of these patients. As a result, she was very familiar with how internal examinations should be conducted.

14When J.N. came to Canada, she worked as a caregiver to a private employer for two years while studying to become a registered practical nurse. She graduated as a registered practical nurse in 2014 and has been working in that capacity since. At the time of trial, J.N. was studying for her BSN at Toronto Metropolitan University.

15J.N. wanted to qualify as a physician in Canada. However, she only got credit for the equivalent of one year of medical school for her training and experience in the Philippines. She explained that she did not have the time or the money to qualify as a medical doctor here.

B. First appointment with Dr. Tan, March 20, 2013

16J.N. was referred to Dr. Tan by a friend. She said the friend recommended Dr. Tan because he was, like J.N. and her family, from the Philippines.

17J.N., her husband, and daughter attended their first appointment with Dr. Tan on March 20, 2013. She recalled the layout of Dr. Tan’s office. Upon entering the office, you come into a room with a waiting area and reception. The reception had a desk for Dr. Tan’s secretary to receive patients, with a desk and chair. A woman who J.N. learned from other patients was Dr. Tan’s wife was sometimes in the reception area with the secretary. The waiting area had a couch and a center table. Beyond the reception, there was a small hallway that led to two examining rooms where Dr. Tan saw patients. J.N. said you could see the hall from the reception area, but not the examining rooms. She estimated that the first examining room was six to 10 feet from reception. She said she could not hear what was going on in the examining rooms from the waiting area. J.N. said the office was always busy. There were always many patients waiting to see Dr. Tan. She said her longest wait was two hours.

18The first appointment was a “meet and greet.” Dr. Tan took general information, history, and medical history from each of J.N., her husband, and their daughter. J.N. told Dr. Tan that she was an OB/GYN in the Philippines and was working as a caregiver in Toronto.

19J.N. felt comfortable with Dr. Tan as a fellow Filipino. She felt he would understand her and her family better as a result. They spoke a mix of English and Tagalog together. J.N. felt that Dr. Tan was very knowledgeable about medicine.

20Dr. Tan performed a general physical examination of each of his new patients. He examined the husband and child first. Then they left the examining room. Next, Dr. Tan examined J.N. He took her vital signs – her blood pressure, heart rate, temperature. He examined her neck, chest and heart, abdomen, and breasts. J.N. said she lifted her shirt and bra up to her clavicle to expose her breasts. She lay down on the examining table with her hands behind her head. Dr. Tan palpated her breasts and underarms. Dr. Tan did not offer J.N. a gown or drape for privacy or leave the room while she undressed for the breast exam. J.N. did not have a problem with this or with how the breast exam was conducted.

21Dr. Tan asked J.N. if she had ever had a pap smear. She said she had not. He referred her to a gynecologist for a pap smear. He did not conduct an internal exam or the pap smear himself.

C. Pap Smear with Gynecologist Dr. Cha, July 30, 2013

22On July 30, 2013, J.N. attended at the office of Dr. Lily Cha and had a pap smear. She did not recall whether she also had an internal examination at that time.

23J.N. learned the name of the gynecologist and the date of the pap smear from Dr. Tan’s 2017 or 2018 letter to the College of Physicians and Surgeons responding to her allegations. She had not recalled the date of that appointment or the gynecologist’s name until she saw Dr. Tan’s letter. She did not recall the dates of any of her appointments with Dr. Tan, or what happened at a number of them, until she saw Dr. Tan’s letter. J.N. also learned from Dr. Tan’s response to the College that he had gotten the results of her pap smear from Dr. Cha. The results were normal.

D. J.N.’s Second to Sixth Appointments with Dr. Tan

24J.N. had what she described as only a vague recollection of her second to sixth appointments with Dr. Tan. The only exception was an appointment on February 14, 2014, which she remembered clearly. She said she also had a clear memory of the seventh and final appointment, the one at which she said she had been sexually assaulted.

25J.N. had a vague memory that at her second appointment, Dr. Tan gave her the results of her lab work and baseline examinations from the initial appointment. J.N. thought that Dr. Tan probably gave her the results of the pap smear performed by Dr. Cha at her third appointment with him, after July 30, 2013.

26J.N. had a clear memory of an appointment with Dr. Tan on Valentine’s Day, February 14, 2014. She had hives all over her face and body that day. Her eyes were swollen and she was having trouble breathing. She came to Dr. Tan’s office as a walk-in patient. He gave her an injection and prescribed anti-histamine medication.

27Other appointments with Dr. Tan were for a cough or to get a flu shot.

28J.N. had no concerns with Dr. Tan up until her seventh and final appointment with him. He made no inappropriate comments and did not touch her improperly until that last appointment.

E. J.N.’s Seventh and Final Appointment with Dr. Tan, May 5, 2014 – Alleged Sexual Assault

29I am going to summarize J.N.’s account of her seventh and final appointment with Dr. Tan on May 5, 2014, at which she alleges he sexually assaulted her. A more in-depth description and assessment of J.N.’s testimony about this appointment, its discrepancies and inconsistencies, and what the defence argues are its implausibilities and improbabilities, will follow later in this judgment.

30J.N. attended at Dr. Tan’s office with her daughter on May 5, 2014. J.N. was there for a general physical exam.

31J.N. testified that after waiting in the waiting room for a time, she and her daughter were directed to an examination room. Once there, Dr. Tan examined a small lump on the daughter’s back and told J.N. that it was nothing to worry about. Then Dr. Tan performed a head to toe general physical examination of J.N. This included a breast exam that was similar to the breast exam at J.N.’s first appointment with Dr. Tan.

32Next, J.N. said, Dr. Tan told her he was going to perform a speculum and an internal exam. She took off her pants and underwear and positioned herself in the proper position without stirrups on the examination table. No gown or drape was offered for privacy. Dr. Tan did not leave the room while J.N. undressed. No third party was present for the speculum and internal exam other than J.N.’s daughter, who was present in the room throughout.

33Dr. Tan inserted a disposable plastic speculum for visualization of J.N.’s cervix. Once this examination was complete, Dr. Tan withdrew the speculum and threw it away. Then he told J.N. that he would perform the internal exam.

34J.N. said that Dr. Tan inserted his fingers into her vaginal canal wearing a glove. She said that the way he did so was not medical, but sexual. He inserted his fingers deep into her vagina in and out in a thrusting motion, back and forth, and sometimes sideways. It was painful for J.N., but she bore the pain. She didn’t say anything or complain to Dr. Tan. J.N. was not sure of how long this thrusting went on, but estimated that it was maybe four or five minutes. In any event, it took much longer than an internal exam should take. J.N. said she thought something was off with the way the internal exam was being conducted. But she said she trusted Dr. Tan and thought he was a good doctor, so she gave him the benefit of the doubt that he was not molesting her. She didn’t want to judge him negatively. She justified his conduct of the exam to herself as being the result of her cervix being positioned deep inside her.

35After the internal exam had gone on for some time, J.N. said that her daughter approached her and said “mommy, I want to go home.” She said she then saw Dr. Tan guide her daughter back to his desk, and give her something to play with to distract her. Dr. Tan returned to J.N. at the examination table and resumed the internal exam. He reinserted his fingers into her vagina and continued thrusting as though simulating vaginal intercourse. This continued for some time, but less time than the period before the daughter interrupted.

36Dr. Tan withdrew his fingers. According to J.N., he said, “I think you are aroused. Look.” J.N. said that Dr. Tan rubbed his thumb, index and middle finger together in a circular motion to show secretions. J.N. explained that it was at this moment that she realized that Dr. Tan had been molesting her. Dr. Tan asked her whether she had ever experienced orgasm. J.N. was getting dressed on the examination table at this time. She did not answer him. She said she was too shocked. She felt numb.

37Once dressed, J.N. said she moved to sit in the patient chair facing Dr. Tan’s desk. She said she expected to hear the results of the examination. Her daughter was with her, possibly sitting on her lap. Dr. Tan was sitting in the chair behind his desk. He told her that if she had never experienced an orgasm, she could make an appointment with him for an arousal session, like other female patients of his who had never before experienced orgasm. According to J.N., Dr. Tan told her that during arousal sessions, he would close the door and cover her mouth so other patients would not hear her moan if she experienced arousal, pleasure, or orgasm. J.N. said that, to encourage her to book an arousal session, Dr. Tan told her that he learned the art of arousing women and giving them orgasms with his fingers because of his failed marriage with his previous wife. J.N. maintained that she had not known that Dr. Tan was previously married.

38J.N. felt that Dr. Tan was not the same good doctor she had known and trusted. She felt betrayed, numb, and violated. She said she wanted to get out of the office as quickly as possible. She kept quiet because she did not want to embarrass Dr. Tan with his wife or other patients. She did not want to hurt Dr. Tan’s ego that he had not aroused her. J.N. left the office with her daughter as quickly and quietly as possible. She recalled seeing Dr. Tan’s wife as she was leaving the office, but she did not say anything. She did not want to make a scene.

39J.N. said she and her daughter went straight home.

F. Overview of Events After the May 5, 2014 Appointment

40When J.N. arrived at home after her May 5, 2014 appointment with Dr. Tan, her husband was sleeping. She did not immediately tell him what had happened in Dr. Tan’s office. She waited until he was on his days off. J.N. said her husband wanted her to report the incident to police. She explained that she did not make a police report because they were newcomers to Canada and she did not want the “mess.”

41J.N. and her family never went back to Dr. Tan.

42J.N. explained that she then suppressed the memory of the sexual assault by Dr. Tan for three and a half years. During that time, she had no memory whatsoever of the incident.

43On October 19, 2017, J.N. read a newspaper article about a doctor who lost his medical licence after sexually abusing a patient. She said that this caused her suppressed memories of the sexual abuse by Dr. Tan to return. The memory came back all at once at that time. She said she had never had any flashes of memory or any recollection of the events of May 5, 2014 before she read the article in October 2017.

44J.N. researched the College of Physicians and Surgeons online, and reviewed its website. She said she wanted to know whether, as she expressed it, her story was legitimate enough to warrant a complaint of sexual abuse by Dr. Tan. On the website, J.N. learned that the College has a zero tolerance policy for sexual abuse of a patient by a doctor. She also learned that doctors are required to provide privacy for a patient undergoing an examination of intimate body parts by offering a gown or a drape. And that failure to provide a gown or a drape alone could be considered improper conduct by a physician. J.N. did not see a chaperone policy requiring a third person to be present for examinations of intimate body parts.

45After completing her online research, J.N. spent five days writing an outline of her previously suppressed memories of the May 5, 2014 sexual assault by Dr. Tan.

46In this written outline, J.N. noted that her allegations were similar to the plot of the movie “Hysteria.” At trial she agreed that she had seen this movie in the Philippines. It was about a doctor in the 1880s who stimulated his patients sexually to bring them to orgasm, and who had a number of female patients coming to his office for arousal sessions. J.N. agreed that this was the same thing she said Dr. Tan proposed to her.

47When the outline was complete, on October 23, 2017, J.N. called the College and spoke to Pam Greenberg, a victim witness support person. J.N. said her initial intent in making the call was to inquire as to whether other patients had complained about Dr. Tan. During their conversation, according to J.N., Ms. Greenberg encouraged her to make a complaint about Dr. Tan, and that’s when J.N. recounted the allegations to Ms. Greenberg. By the end of the conversation, J.N. had decided to make a formal complaint to the College.

48On November 20, 2017, J.N. filed a formal one-page letter of complaint about Dr. Tan’s May 5, 2014 sexual assault with the College. She attached the two page outline she had completed drafting on October 23, 2017.

49On November 23, 2017, J.N. was interviewed by two investigators from the College. They audiotaped the interview. J.N. had her October 23, 2017 written outline in front of her while she was interviewed. She told the investigators that she was referring to that statement, and that everything, all relevant details, were contained in it. At trial, J.N. agreed that in her November 23, 2017 statement to the College, she was repeating what she had recorded in her pre-written statement.

50On August 17, 2018, J.N. submitted a further written statement to the College. This was a four-page document, written in response to Dr. Tan’s letter to the College replying to J.N.’s initial complaint. J.N. explained that she corrected some of what she had included in her October 23, 2017 document after reviewing Dr. Tan’s letter. J.N. acknowledged that she had a poor memory for dates. She had not initially remembered the date of her last appointment with Dr. Tan, saying only that the sexual assault had taken place at her last appointment with him. She accepted the accuracy of the dates Dr. Tan included in his reply to the College because he was relying on and referring to his records. When she wrote to the College on August 17, 2018, J.N. adopted the date Dr. Tan had provided in his letter for that last appointment, May 5, 2014. J.N. also corrected her daughter’s age at the time of the alleged sexual assault. In her October 23, 2017 outline, she had indicated that her daughter was three years old at the time of the sexual assault. Relying on Dr. Tan’s dates, she corrected in her August 17, 2018 letter to indicate that her daughter was four and a half years old at the time of the sexual assault.

51Sometime in the fall of 2018, the Inquiries Committee of the College decided that J.N. had a strong enough case to warrant a referral to the Discipline Committee. J.N. said that this gave her confidence that her case was stronger than she originally thought. She decided to go to the police.

52On December 5, 2018, J.N. made a complaint to the police. She said she copy pasted from her August 17, 2018 statement to create a written statement for the police. She was interviewed by police the same day, December 5, 2018. Her interview began with J.N. reading her written police statement in its entirety.

53Dr. Tan was charged with sexual assault. He was arrested on April 24, 2019.

54On February 3, 2020, J.N. testified at Dr. Tan’s hearing before the College.

55On October 20, 2020, J.N. testified at the preliminary hearing in Dr. Tan’s criminal case.

56J.N. said she prepared for her testimony at trial by reading her written statements, the transcripts of her interviews by the College and the police, and the transcripts of her testimony before the College and at the preliminary hearing.

II. Analysis

A. General Legal Principles

(1) The Burden and Standard of Proof

57Dr. Tan is presumed innocent. He may only be convicted if the Crown proves all essential elements of the offence charged beyond a reasonable doubt. The burden of proving the essential elements of the offence rests with the Crown and never shifts. Dr. Tan does not have a burden of proving or disproving anything. The standard of proof beyond a reasonable doubt does not require me to be absolutely certain, but it is a significant and high standard of proof for the Crown to meet. It “falls much closer to absolute certainty than to proof on a balance of probabilities”: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242.

58My job, as trier of fact, is to determine whether the evidence presented at trial establishes Dr. Tan’s guilt of sexual assault beyond a reasonable doubt. In other words, to find Dr. Tan guilty, “I must be sure, based on all of the evidence before me, and having due regard to the absence of evidence, that he committed all of the essential elements” of sexual assault: R. v. B.B., 2023 ONSC 396, at para. 61.

(2) The Elements of Sexual Assault

59A conviction for sexual assault requires proof beyond a reasonable doubt that the defendant committed the actus reus with the necessary mens rea: “The actus reus . . . is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched”: R. v. Ewanchuk, [1999] 1 S.C.R 330, at para. 23.

60The sexual nature of the actus reus of sexual assault is determined objectively. The Crown must prove beyond a reasonable doubt that the touching, viewed through the eyes of a reasonable observer, violated the complainant’s sexual integrity: R. v. Litchfield, [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127 at para. 8 (Q.L.); R. v. Chase, [1987] 2 S.C.R. 293, at p. 302.

61In this case, the defence position was that the alleged sexual assault by Dr. Tan simply did not occur. Indeed, the defence submitted that Dr. Tan did not even ever perform an internal exam on J.N., let alone an improperly sexual one.

62The issue for my determination then is whether the evidence as a whole establishes beyond a reasonable doubt that Dr. Tan performed a sexualized internal exam on J.N. as she now remembers, but of which she had no memory whatsoever for three and a half years.

B. Assessment of J.N.’s Evidence

(1) Implausibilities and Improbabilities

63The defence submitted that, examined in context, there were a number of implausibilities and improbabilities in J.N.’s version of the events of May 5, 2014. These implausibilities and improbabilities were factors to be considered, according to the defence, in assessing the credibility and reliability of J.N.’s memory of the events of May 5, 2014. The implausibilities the defence asked me to consider were as follows.

64The first set of implausibilities, in the defence submission, surrounded how unlikely it was that Dr. Tan would have engaged in a sexualized internal examination of J.N. in the circumstances of this case. The defence argued that it was highly unlikely that Dr. Tan would have sexually assaulted J.N. as she said he did because:

• J.N. was an experienced OB/GYN who knew what was and was not a proper internal examination. She also would have known that there was no medical indication for an internal examination on May 5, 2014, approximately nine months after she had been examined by a gynecologist, had a pap smear with normal results, and had no new gynecological complaints or issues. Dr. Tan knew that J.N. was an experienced OB/GYN and would not have risked giving her a sexualized internal examination that she would easily recognize as unwarranted and improper;
• Dr. Tan had referred J.N. out to a gynecologist for a pap smear at her first general physical examination. It did not make sense that he would now undertake an internal examination of her himself;
• According to J.N., Dr. Tan had never previously done or said anything improper to her, so he had no reason to believe that J.N. would be receptive to sexual activity by him. Subjecting her to a sexualized internal exam out of the blue would raise a very great risk of J.N. screaming, raising the alarm, and/or reporting him after the fact;
• The examination room where the alleged sexual assault took place was close to the reception area where Dr. Tan’s secretary and wife were working, and where a full waiting room of patients were sitting. There was too great a risk that someone would hear J.N. if she yelled or called for help;
• J.N.’s daughter was present throughout. This would have made J.N. less receptive to sexual activity, more likely to stop it, yell out or call for help. Performing a sexualized internal exam with her daughter present and discussing orgasms and arousal sessions would, as a result, be too risky; and
• In all of these circumstances, the risk of being caught if he performed a sexualized internal examination on J.N. was so great that Dr. Tan would not have attempted it. He would have known the serious professional and criminal consequences that would follow. It was not plausible or probable that he would have run the risk.

65The second set of implausibilities, in the defence submission, surrounded how unlikely it was that J.N. would have allowed the sexualized internal examination to occur and continue; and how unlikely her behaviour during and after the alleged sexual assault was. The defence argued that J.N.’s evidence was implausible because:

• J.N. was an experienced OB/GYN who knew what was and was not proper procedure for medical examinations of an intimate nature. She would have known that it was highly improper for Dr. Tan not to offer her a gown or drape when she was undressing, not to leave the room when she was undressing, and not to have a third party chaperone present during an intimate examination. She would have recognized that Dr. Tan’s procedure in preparing for her speculum and internal examinations was improper, she would have questioned him at that time, and she would have insisted on proper procedures, or she would have stopped the examination;
• J.N. was an experienced OB/GYN who would have known that there was no medical indication for an internal examination on May 5, 2014, approximately nine months after she had been examined by a gynecologist, had a pap smear with normal results, and had no new gynecological complaints or issues. She would at least have questioned whether there was a medical reason for the internal examination;
• J.N. was an experienced OB/GYN who knew what was and was not a proper internal examination. She knew that it was highly improper for a doctor performing an internal examination to thrust his fingers deeply in and out and side to side in the vaginal canal, simulating intercourse. She knew that a proper internal examination should take no more than two minutes, and certainly not the five or so minutes she said this internal examination took. Given her training and experience, J.N. would not have given Dr. Tan the benefit of the doubt that he had a legitimate reason for conducting an internal examination in this manner as she said she did. She would have known that this was a highly improper internal examination, conducted for no medical purpose. She would not have allowed it to continue;
• J.N. would not have allowed a sexualized examination or a conversation about orgasm and arousal sessions to take place in the presence of her young daughter;
• J.N. would not have waited on the examination table or allowed the improper and painful internal examination to resume after Dr. Tan stopped it to guide her daughter back to his desk;
• J.N. would not have gone over to Dr. Tan’s desk and sat in his patient chair to hear the results of her physical after realizing that she had been sexually assaulted; and
• J.N. would not have quietly sat through Dr. Tan’s discussion of arousal sessions or left his office quietly without saying anything to anyone after she had been sexually assaulted.

66The Crown argued that I should not consider what the defence characterized as implausibilities in my assessment of J.N.’s credibility and reliability. The Crown’s position was that although it would have been risky for Dr. Tan to commit the offence as J.N. alleged, people do engage in risk-taking behaviour. It would not have been wise, safe, or legal for Dr. Tan to have sexually assaulted J.N. in all the circumstances, but this did not amount to reason to conclude that he did not do so. With respect to the second set of so-called implausibilities, those relating to the purported implausibility of J.N.’s conduct, the Crown position was that the Court may not draw any adverse inferences about J.N.’s credibility on the basis of assumptions about how a victim of sexual assault is supposed to react: R. v. A.R.J.D., 2017 ABCA 237, 55 Alta. L.R. (6th) 213 at paras. 42, 50, upheld R. v. A.J.R.D., 2018 SCC 6, [2018] 1 S.C.R. 218.

(2) Assessment of Implausibilities and Improbabilities

67I have considered what the defence has characterized as the implausibilities and improbabilities in this case against the backdrop of the evidence as a whole. I have come to the conclusion that, in the circumstances of this case, the so-called implausibilities and improbabilities do not impact on J.N.’s credibility or the reliability of her evidence.

68I recognize that the credibility of witnesses “must be judged in the overall context of the plausibility of the conduct they allege”: R. v. Gostick, 1999 ONCA 3125 at para. 13. Particularly where the prosecution case depends on the unsupported testimony of a complainant, the trier of fact:

. . . must reasonably subject [the witness’] story to an examination of its consistency with the probabilities that surround the currently existing condition. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (Faryna v. Chorny, [1952] 2 D.L.R. 354 (BCCA) at pp. 356-7, cited in R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (ONCA) at pp. 355-6).

69I have subjected J.N.’s evidence to an examination of its consistency with the probabilities that surround the conditions in this case. I am not satisfied that it was improbable or implausible for the events of May 5, 2014 to have transpired as described by J.N.

70The defence submission as to why it was implausible that Dr. Tan sexually assaulted J.N. amounted to an argument that in circumstances that were known to him, it would have been very risky for him to do so. He had a lot to lose. He would not have taken the risk.

71I accept that performing a sexualized internal exam on a patient who was an OB/GYN with one’s wife, staff, and a waiting room full of patients nearby would be extremely risky behaviour; that Dr. Tan would have known that it was risky behaviour; and that he had a lot to lose if he got caught engaging in such behaviour. However, I do not accept that this means that it was implausible or improbable that he did so. People do knowingly engage in risk-taking criminal behaviour. Even doctors and others who have a lot to lose knowingly engage in risky criminal behaviour. Our criminal courts would not be as busy as they are if people were always deterred from criminal conduct by the risk of getting caught and the potential consequences.

72I also do not accept that J.N.’s allegations were implausible on the basis that she would not have allowed the sexualized internal examination to occur or continue, or on the basis of her behaviour during and after the incident. It must be remembered that although J.N. was an experienced OB/GYN, in her relationship with Dr. Tan, he was the doctor and she was the patient.

73In Litchfield, at para. 9, the Supreme Court recognized the “vulnerability in which a patient often finds herself when she is in the care of a professional medical doctor,” and noted “the imbalance of power that may occur between a doctor and a patient where an alleged sexual assault is concerned.” The Litchfield Court went on at para. 10 to cite the decision of McLachlin J. [as she then was] in Norberg v. Weinrib, [1992] 2 S.C.R. 226, as follows:

. . . it is readily apparent that the doctor-patient relationship shares the peculiar hallmark of the fiduciary relationship – trust, the trust of a person with inferior power that another person who has assumed superior power and responsibility will exercise that power for his or her good and only for his or her good and in his or her best interests.

74J.N. testified that she trusted Dr. Tan. She thought he was a good doctor. She believed and wanted to believe that he would only act in her best interests. There was a power imbalance between Dr. Tan and J.N. in their doctor-patient relationship. She was vulnerable in the context of that relationship. She described herself as meek. In this context, J.N.’s account of what transpired on May 5, 2014 is not implausible on the basis of her failure to question her doctor, recognize that he was engaging in an improper examination, or object to or stop the examination. Her account is not implausible on the basis that she gave him the benefit of the doubt for a time, allowed him to continue and then resume the examination, sat in a patient chair after the examination to hear the results of her physical, or tried to appear as ‘normal’ as possible as she left Dr. Tan’s office.

75Moreover, there is no hard and fast rule as to how people who are the victims of trauma like sexual assault will behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65. It is an error of law to make assumptions about how a victim of sexual assault should or will react to the assault: A.J.R.D (ABCA) at para. 50; R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634. I cannot conclude that J.N.’s failure to object or raise a hue and cry makes her evidence implausible.

(3) Inconsistencies and Changes in Memory and Evidence

76Defence counsel cross-examined J.N. in relation to a number of prior inconsistent statements, and changes in her memory and evidence over time, as follows.

(i) Inconsistencies and changes in evidence regarding how the May 5, 2014 appointment was booked

77At trial, J.N. testified that her present memory was that her husband scheduled annual general physical exams for May 5, 2014 for himself and for her. She agreed that Dr. Tan’s office did not call her to ask her to book her annual general physical.

78However, at the College hearing, J.N. had testified that she scheduled the May 5, 2014 appointment when someone from Dr. Tan’s office called her to book an annual physical. J.N. agreed that Dr. Tan’s counsel at the College hearing put to her in cross-examination that the May 5, 2014 appointment was actually booked for her by her husband, along with an appointment for himself. She agreed that, under oath at the College hearing, she had denied that her husband had booked her appointment, and maintained that Dr. Tan’s office had called her to book the appointment. In fact, J.N. agreed that she testified at the College that she hadn’t known that doctors’ offices would just call up a patient and ask them to book an appointment. At the College, J.N. testified that as a newcomer to Canada, she did not know how to book a general checkup. She said she thought it was automatic in the doctor’s system that she would get a call every year when it was time to book her annual physical. She testified at the College that she really recalled receiving a phone call from Dr. Tan’s office asking her to make an appointment for an annual physical.

79At trial, J.N. agreed that she was wrong in her testimony on this point at the College. She agreed that her evidence at the College about how her May 5, 2014 appointment got booked was not true, but explained that she was not intentionally misleading the College. Rather she was giving evidence as to her honest recollection at that time. J.N. agreed that at trial her memory as to how the appointment was booked was the same as what defence counsel had suggested to her at the College hearing. In cross-examination at trial, she then went on to say that she did not have any present memory of how her May 5, 2014 appointment was booked. Rather, she accepted as correct, based on Dr. Tan’s records, that Dr. Tan’s office had not called her and that her husband had made that appointment for her.

(ii) Inconsistencies and changes in evidence regarding the time of the May 5, 2014 appointment

80At trial, J.N. testified that her May 5, 2014 appointment with Dr. Tan was at 3:30 in the afternoon. She agreed in cross-examination that May 5, 2014 was a very memorable day for her because of the extraordinary and improper thing that happened to her on that day.

81However, J.N. agreed that she told police in her December 5, 2018 statement that her appointment with Dr. Tan was in the morning before lunch. She also agreed that she testified under oath at the College that her May 5, 2014 appointment with Dr. Tan was in the morning. J.N. agreed that when confronted with this inconsistency in cross-examination at the College, she said that the appointment was during the day, it wasn’t dark out, there was light. J.N. went on to agree with her cross-examiner at the College that it could be light out but not be morning, for example, it could be afternoon. She then went on in cross-examination before the College to say that if she said the appointment was in the morning, maybe it was in the morning, but when she defined morning she could only remember that it was light out. She explained at the College that the appointment was back in 2013, and that her memory so long after the fact was that the appointment was in the morning.

82J.N. agreed that she denied that the May 5, 2014 appointment was at 3:30 p.m. when that was put to her in cross-examination at the College. At trial, she agreed that the appointment was at 3:30 p.m. J.N. agreed that her evidence as to timing of the appointment was based on a different memory than she had at the time at the College. She agreed that Dr. Tan’s counsel’s reference to medical records changed her memory as to the timing of her appointment.

(iii) Inconsistencies and changes in memory about whether J.N.’s daughter had her own appointment and failure to correct incorrect evidence given to the College

83At trial, J.N. testified that her daughter had an appointment scheduled with Dr. Tan for May 5, 2014, and that he examined a small lump on the daughter’s back on that date.

84However, J.N. agreed that she had testified at the College hearing that her daughter did not have an appointment and was not examined on May 5, 2014. She also agreed that when counsel for Dr. Tan at the College challenged her in cross-examination, she said that if the records said her daughter was examined on that date, perhaps her memory had failed her. She agreed that defence counsel at the College suggested to her that she was realizing that he had records that indicated an examination of her daughter was done on May 5, 2014, and that she was accordingly starting to change her story. J.N. accepted that she denied that she was changing her story, and that she went on to tell the College not to totally trust Dr. Tan’s documentation. J.N. agreed that she had testified at the College that she did not remember Dr. Tan examining her daughter, and if he documented that he did, she did not believe that it really happened.

85In cross-examination at trial, J.N. acknowledged that she had had a theme that she wanted to put before the College panel. That theme was that the College should not trust Dr. Tan’s documentation. J.N. agreed that she had this theme at the College because she knew that, as part of his response to the College, Dr. Tan said that he did not do an internal examination of J.N. on May 5, 2014, and that his contemporaneous notes supported that no internal examination was done that day. J.N. agreed that she would not admit that there was an examination of her daughter on May 5th, even if that was in Dr. Tan’s records, because the panel should not trust his records.

86J.N. testified at trial that after she finished giving her evidence at the College, later the same day, she remembered that Dr. Tan had examined her daughter on May 5, 2014. She said she went home and suddenly had a flash of memory that she was holding her daughter’s back so that Dr. Tan could examine a lump. She said she had really wanted to remember, and so she remembered. J.N. agreed that her testimony before the College on this point was false. She acknowledged that her memory had unfortunately failed her.

87At trial, J.N. continued to have a specific memory of Dr. Tan examining the lump on her daughter’s back because she had been concerned about it. After examining it, Dr. Tan reassured J.N. that she did not need to be concerned about the lump. J.N. remembered that she was relieved. But J.N. maintained that when she testified at the College, she did not recall her daughter being examined by Dr. Tan. She maintained that she did not intentionally deceive the College, and was not trying to prevent the College from concluding that Dr. Tan’s notes in relation to examining her daughter were accurate.

88In cross-examination at trial, J.N. acknowledged that when she remembered that Dr. Tan had examined her daughter on the date of the alleged incident, she realized that what defence counsel had put to her at the College hearing was correct. Dr. Tan had examined her daughter, and his records reflecting the daughter’s appointment and examination were correct. However, J.N. did not tell anyone that she had made a mistake in her testimony before the College. She did not tell her husband because he had received a subpoena to testify at the College hearing, and she had been told not to discuss her testimony with him. J.N. explained that she thought her part in the College hearing was done. She said she did not know that there was a way for her to correct her erroneous testimony after she had finished testifying. She agreed that if she were really concerned about making sure that she had not misled the College, she could have called Pam Greenberg. But it did not cross her mind to do so. J.N. explained that this was her first time testifying as a witness and she did not know whether there was a process for her to correct her mistake in her evidence.

89J.N. agreed that she had been confronted at the preliminary inquiry with her failure to correct her erroneous College testimony. She agreed that at the preliminary inquiry she explained her failure to do so by saying that she thought the College hearing was done. At trial, J.N. agreed that she knew Dr. Tan’s hearing at the College continued after she testified. She knew that the College would continue hearing evidence from other witnesses, and then would have to decide the case. J.N. explained that what she meant at the preliminary inquiry was that her part of the hearing was done. She also acknowledged that in the months during which the College had its decision under consideration, she knew that the College had to decide whether to believe her testimony or that of Dr. Tan supported by his records. She agreed that, despite her awareness that Dr. Tan’s medical licence was on the line, she took no steps to let the College know that at least Dr. Tan’s records about her daughter were accurate.

90J.N. acknowledged that Dr. Tan’s counsel’s reference to medical records changed her memory as to her daughter’s appointment and examination.

(iv) Inconsistencies and changes in evidence regarding timing of disclosure to J.N.’s husband

91J.N. testified that she disclosed the sexual assault to her husband for the first time several days after it happened. She agreed that May 5, 2014 was a Monday, and said that she waited until the weekend when her husband was on days off to disclose to him. J.N. agreed that she very much wanted to discuss the incident with him – to tell him what happened and then discuss what, if anything, should be done about it. For this reason, talking to her husband was memorable for J.N. She said she clearly remembered telling her husband for the first time. But she was not sure of exactly when she first told him. She said she clearly remembered telling her husband and discussing it thoroughly when it was their day off, but she could not remember whether she had told him earlier or not. She said this weekend day off conversation was the only conversation about the assault that she could remember with her husband.

92J.N. agreed that in her November 23, 2017 interview with the College, she said that she waited a few days, until the weekend when they were both on days off, to disclose the sexual assault to her husband for the first time. J.N. also agreed that in her statement to police she said that she had disclosed the incident to her husband immediately the same day it happened. J.N. accepted that at the College hearing, when confronted with this discrepancy as to when she first disclosed to her husband, she testified that she had been mistaken in her police statement. She agreed that at the College hearing, her evidence was that she disclosed for the first time a few days after the incident, on the weekend, not the same day. By contrast, at trial, J.N. explained this discrepancy between her statements to police and the College by saying that what she told the police and then the College was based on her memory at the time of each statement. She went on to say that it was “not also impossible that we discussed it several times within that week, arguing if we’ll go to the police or not.” When asked in cross-examination to confirm that her evidence at trial was that she might have first disclosed to her husband the same day and then continued the conversation on the weekend, J.N. said “probably that happened.” J.N. remembered talking to her husband about the sexual assault on the weekend in the bedroom. She was not sure at trial of whether that was the first time she disclosed to him.

(4) Assessment of Inconsistencies and Changes in J.N.’s Evidence and Memory – J.N.’s Credibility

93It is trite law that inconsistencies between a witness’ testimony at trial and what they said on other occasions may be relevant to their credibility: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536 at para. 12; R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (ONCA) at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. But not all inconsistencies are of equal significance, as recognized in A.M. at para. 13:

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

94In this case, there can be no doubt that there were a number of inconsistencies in J.N.’s evidence. But her core evidence about the sexual assault remained consistent throughout. In assessing J.N.’s credibility, my task is to determine whether any of the inconsistencies here involve something material about which an honest witness is unlikely to be mistaken and which demonstrates a carelessness with the truth.

95The defence argued that J.N. demonstrated in various ways, including her inconsistencies, a carelessness with the truth. While conceding that some of the inconsistencies were peripheral, the defence argued that others were not.

96For example, defence counsel submitted that the inconsistencies with respect to when J.N. first disclosed the sexual assault to her husband were not peripheral. J.N. testified that telling her husband about the sexual assault was memorable for her. Defence counsel argued that her disclosure of this sexual assault would have been dramatic and memorable, not only because of the nature of the events disclosed but also because her husband and daughter were patients of Dr. Tan. In the defence submission, J.N.’s memory of her first disclosure to her husband is material because of how dramatic and memorable it was. It was something about which an honest witness was unlikely to be mistaken.

97J.N. told the College investigators that she had waited several days to disclose the assault to her husband. She told police that she had disclosed to him on the day of the sexual assault. Confronted with this inconsistency when she testified at the College hearing, J.N. said that she had been mistaken in what she told police. At trial for the first time, J.N. said maybe it was both – maybe she discussed it with her husband both on the same day and several days later. Defence counsel argued that J.N.’s evidence that it was both did not make sense. J.N. could not disclose for the first time twice, both on the same day and several days later. According to the defence, J.N. would have remembered this dramatic disclosure and must have been dissembling when she said she disclosed twice.

98I do not agree that the timing of J.N.’s first disclosure to her husband was a material issue about which an honest witness is unlikely to be mistaken. Disclosure to the husband would have been dramatic, memorable, and material. But, in my view, its precise timing was not. J.N. had a clear memory of discussing the sexual assault with her husband. She recalled that they were in their bedroom, that her husband was angry and upset, and that he wanted her to report the incident to police. What she could not remember was whether she first disclosed to her husband the same day, or several days later. She thought it was possible that she first disclosed to her husband the same day, and then continued the discussion several days later. J.N. knew she had discussed the assault with her husband, but she could not remember with confidence when she had done so for the first time. She candidly admitted the limits of her memory.

99J.N. admitted that she had a poor memory generally, especially for dates and times. When J.N. first made her complaint to the College, three and a half years had passed from the time of the incident. By the time of trial in December 2022, five years had passed since that first complaint, and eight and a half years had passed since the incident at issue. Memory lapses are a normal product of the passage of time. It is not surprising that some of J.N.’s evidence was different at trial from evidence given on earlier occasions given the passage of time and the normal fading of memory that results from it. This did not necessarily signal that J.N. was a dishonest or deceptive witness, particularly not with respect to peripheral issues that would not be especially memorable in the ordinary course. And especially not for a witness who has a poor memory to begin with.

100In my view, the timing of J.N.’s first disclosure to her husband, how the May 5, 2014 appointment was booked, the time of the appointment, and whether her daughter had an appointment and was examined, are all peripheral events. They are not core or material to the sexual assault. As such, they are not issues about which an honest witness is unlikely to be mistaken. Nor are they necessarily especially memorable. The inconsistencies in J.N.’s evidence about these issues are the product of her poor memory in general, and in particular in relation to these events that took place years earlier. Under vigorous and expert cross-examination, J.N. did her best to recall peripheral matters in as much detail as she could, and as honestly as she could. She honestly admitted what she could not remember. I do not see these inconsistencies as adversely impacting on J.N.’s credibility.

101J.N. gave a detailed and consistent account of what happened immediately before, during, and after the internal examination. That J.N.’s evidence about the sexual assault was consistent with her written outline does not detract from its credibility in my view. J.N. testified that she wrote the outline when all the memories of the incident came back to her, to help herself recall what had happened. That she committed her memories to paper and used that document to refresh her memory does not make the memories untrue or unworthy of belief. J.N. knew that she had a poor memory, she said so many times during her testimony. It would have made sense for her to record her memories of the sexual assault when they were top of mind, and to rely on that record to help herself remember. That she did so did not make her or her evidence incredible.

102Two issues warrant further consideration in relation to J.N.’s credibility. The first is J.N.’s changing or evolving evidence, what the defence termed her malleability. By way of example, J.N. adopted the contents of Dr. Tan’s medical records in relation to some issues, even where this conflicted with her earlier statements or evidence. Notwithstanding her earlier inconsistent statements, J.N. accepted that her husband booked the May 5, 2014 appointment for her, that the appointment was at 3:30 p.m., and that her daughter had had her own appointment and was examined that day, in whole or part because that’s what the records demonstrated. Defence counsel argued that J.N.’s malleability demonstrated a carelessness with the truth, and gave the impression that she was trying to construct a position for the court. I do not agree.

103In my view, J.N.’s changing evidence was the product of her very real memory gaps in relation to some peripheral events. The evolution in J.N.’s evidence can be understood as resulting from her honest desire to be as accurate as possible within the limits of her poor memory and the passage of time.

104The second issue warranting further consideration in relation to J.N.’s credibility relates to her evidence about whether her daughter was examined by Dr. Tan on May 5, 2014. Defence counsel argued that it cannot be true that J.N. did not remember when she testified at the College that her daughter was examined on May 5, 2014. This is because, in the defence submission, J.N. said she recovered the memory later the same day after testifying at the College. The memories that came back to J.N. were detailed. She suddenly recalled that she had been worried about the lump on her daughter’s back; had been relieved when Dr. Tan told her that the lump was nothing to worry about; and had a visual memory of holding her daughter while Dr. Tan examined the child. Defence counsel argued that J.N. could not suddenly have remembered all of that after she finished testifying at the College. She must have remembered it all along and lied to the College. This is because, in the defence argument, J.N. did not want to admit that Dr. Tan’s records documenting his examination of the daughter in the same room, on the same day, and in the same time frame as the internal examination, were accurate, so she lied to the College about whether her daughter was examined by Dr. Tan.

105Even if J.N. was not knowingly lying to the College, according to the defence, her conduct after she remembered the examination gave rise to serious concerns that she was careless with the truth. Defence counsel argued that any honest witness who realized that they had given false evidence would take steps to correct that. And here, J.N. had ample opportunity to do so. When she finished testifying, J.N. knew that her husband was still potentially a witness, so she knew that the hearing was ongoing. When the hearing was over, J.N. knew that the College was considering the case. If she did not know how to correct the incorrect evidence she had given, she could have called Pam Greenberg and sought guidance. But J.N. did not take any of these steps. In these circumstances, in the defence argument, either J.N. lied and was content to leave her lie with the College, or she was extremely careless with the truth. Either way, the defence submitted, J.N. was a dangerous witness who could not be believed.

106I do not agree that J.N.’s testimony at the College that her daughter was not examined had to be an intentional lie. It is entirely possible, given J.N.’s poor memory and the passage of time, that she honestly did not recall this peripheral detail when she testified at the College. It is entirely possible that her cross-examination on the subject, and her cross-examiner’s efforts to refresh her memory by referring to Dr. Tan’s records, triggered the return of the memory later that day. Our courts have recognized that it is possible for people to recover memories, which I will discuss further below.

107It is clear that J.N. did want to make her position that Dr. Tan’s records were not entirely reliable known to the College. She knew that Dr. Tan had documented her May 5, 2014 physical examination, and that his records did not reflect that he performed an internal examination on her that day. She told the College not to trust his records completely. However, this does not mean that J.N. knowingly lied to the College when she testified that her daughter was not examined. If J.N. had been lying at the College to make a point about the unreliability of Dr. Tan’s records, instead of just forgetful, it would not have made sense for her to testify at the preliminary inquiry and the trial that she had subsequently remembered her daughter being examined. If J.N. were a dishonest witness, having lied once under oath, it would have been easier for her to maintain the lie when she testified again. J.N.’s change in her story was suggestive of memory lapse and recovery, not of deception. For this reason, I do not accept that J.N. was knowingly dishonest when she testified on this point.

108J.N.’s failure to take any step to rectify her misleading evidence with the College is of greater concern to me in assessing her credibility. I have considered this issue, and have come to the conclusion that J.N. did not correct her evidence because she was an inexperienced sexual assault complainant, not because she was generally dishonest or careless with the truth.

109J.N.’s appearance before the College was the first time she had ever testified in a legal proceeding. She had no legal training or experience with the justice system. She thought her role in the College hearing was over when she finished testifying. She did not know whether there was a process by which she could correct what she had said after the fact. It is true that she did not take the proactive step of inquiring or seeking guidance. But I consider this failure to act against the backdrop of the well-recognized fact that it is not easy for sexual assault complainants to go through legal processes, to testify in courtrooms or hearing rooms and to repeatedly speak to strangers about very intimate and traumatic events. Legal processes can be intimidating, and all the more so to sexual assault complainants.

110J.N. did not act to correct her mistaken testimony because she did not know she could. She did not proactively seek guidance in relation to this issue. But I find that her failure to do so, while certainly not ideal, is perhaps understandable or at least forgivable in context. In my view, J.N.’s failure to act or inquire speaks more to her being an inexperienced and perhaps reticent witness than to dishonesty or carelessness with the truth.

111For the foregoing reasons, I have concluded that J.N. was a sincere and credible witness. But that does not end the inquiry. I must now move on to consider whether her evidence was reliable.

(5) Assessment of the Reliability of J.N.’s Evidence

112Credibility and reliability are related, but different, concepts. As the Court of Appeal for Ontario summarized in R. v. H.C., 2009 ONCA 56, at para. 41:

Credibility has to do with a witness’ veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe; ii. recall; and iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (CA), at p. 526.

113To convict, a trier of fact must be satisfied beyond a reasonable doubt that the evidence in support of conviction is both credible and reliable: R. v. E.G., 2016 ONSC 4884, at paras. 15-22.

114Reliability is a live issue in this case. Although J.N. was a sincere and credible witness, there are meaningful reasons to inquire into the reliability of her evidence. J.N. had no memory of the alleged sexual assault for three and a half years. The memory came back to her when she read an article about another doctor who lost his licence for sexually abusing a patient. Her allegations were similar to the plot of the movie “Hysteria,” which she had seen. J.N. had a generally poor memory, and struggled to remember details, dates, and times. This led to inconsistencies in her evidence. When confronted with inconsistencies, J.N. was a highly suggestible witness who adopted or accepted records or documents that were put to her as her own memory. It was often difficult to tell what she remembered and what she accepted as true, without actually remembering.

115I accept that it is possible for a person to repress and then recover memories. Our courts have recognized that this is so: R. v. Francois (1993), 82 C.C.C. (3d) 441, at pp. 445-6; B.B., at para. 93; R. v. R.J.H., 2000 BCSC 891, at paras. 122-124. It is therefore possible that J.N. now accurately remembers that she was sexually assaulted by Dr. Tan in 2014, even though she had no memory of this for three and a half years. But it is also possible that J.N.’s “recovered” memory is a confabulation – an honestly believed but mistaken product of unconscious tainting by outside influences like the newspaper article she read and the movie she saw: R. J.H., at paras. 122-124.

116My job as trier of fact is to apply the criminal burden and standard of proof to all of the evidence in the case to determine whether the Crown has proven the charge beyond a reasonable doubt. As my colleague Dawe J. held in B.B. at paras. 95 and 103:

. . . the criminal burden and standard of proof requires the Crown to satisfy me that the possibility of T.B.’s recovered memory being false is something I can safely dismiss as having been disproved beyond a reasonable doubt. The Crown will only be able to meet this burden if it can point to evidence that permits me to draw this conclusion.

I must be satisfied beyond a reasonable doubt that T.B.’s recovered memory is true, on the evidence as a whole, before I rely on it to find B.B. guilty. The criminal burden and standard of proof requires no less.

117There is no legal requirement that a complainant’s evidence be corroborated before a conviction can follow: Criminal Code, s. 274. However, where there are concerns about the reliability of a complainant’s testimony, “corroboration can provide a basis for resolving those concerns and concluding that guilt has been proven beyond a reasonable doubt”: R. v. A.S., 2021 ONSC 8549, at para. 63. Consequently, from a practical perspective, the Crown will not be able to meet its burden of disproving the possibility that recovered memories of sexual assault are unreliable unless it can “point to some independent evidence that confirms the reality and accuracy” of the complainant’s present memory: B.B., at para. 97.

118Turning to consider whether the Crown has proven J.N.’s reliability beyond a reasonable doubt, I start by repeating that I accept that J.N. was a sincere and credible witness. I accept that J.N. honestly believes that her memory of the events of May 5, 2014 is true and accurate. I have no doubt that J.N. is convinced that she was sexually assaulted by Dr. Tan as she described in her testimony at trial.

119However, a credible witness, one who sincerely believes their evidence to be true, may nevertheless be mistaken: R. v. Norman (1993), 16 O.R. (3d) 295 at para. 55. This may particularly be the case where a witness is testifying to events that happened some time ago. With the passage of time, a witness may come to believe that events occurred as they remember them, regardless of whether the memory is accurate. M. Rosenberg, “Issues Arising in Criminal Prosecution for Distant Events,” 1995, available on QuickLaw at ADGN/RP-005, at paras. 38-9, 122.

120I cannot conclude that J.N.’s confidence in the accuracy of her memory of the sexual assault makes it more likely that her memory is reliable. No evidence was called at trial to establish that there is a link between a witness’s confidence in the accuracy of their recovered memory and the actual accuracy of that memory. Without “any clear affirmative evidence that a witness’s subjective confidence in the accuracy of his or her recovered memory serves as a hallmark of its reliability, I am not prepared to assume that any such correlation exists”: B.B., at para. 108.

121Nor can I conclude that J.N.’s consistency in her core evidence in relation to the sexual assault evidences its reliability. As noted, J.N. wrote an outline of her memories in October 2017 after she recovered them. That outline formed the basis of all of her subsequent statements and testimony. It is possible that J.N. recovered true memories of a sexual assault, wrote them down in her outline, refreshed her memory of them by referring to that outline, and gave further statements and testimony consistent with those true memories. But it is also possible that J.N.’s recovered memory is not a true memory at all, but a figment of her imagination. If this is so, her written outline would document a false and inaccurate confabulation, which was then consistently repeated in subsequent statements and testimony.

122The consistency of J.N.’s core evidence of sexual assault cannot, without more, satisfy me that the evidence is accurate or reliable. Consistency of evidence over time does not increase reliability when there is no external basis on which that consistent evidence can be confirmed. Evidence that is unreliable does not become more reliable with consistent repetition over time. There is no objectively verifiable external evidence confirming J.N.’s evidence in this case.

123The Crown relied on J.N.’s very detailed memory and account of what happened just before, during, and immediately after the internal examination as evidence of her credibility and the reliability of her evidence. I do not consider the detail in J.N.’s evidence to be of assistance in determining that her present memory is reliable. The detail with which J.N. was able to remember the internal examination stands in contrast to her otherwise generally poor memory. This leads me to be “especially wary about treating her seemingly vivid present recollection of the sexual assault as an indicator of the reliability of this purported memory”: B.B., at para. 119. It is possible that recovered true memories are more vivid and detailed than other memories. But it is also possible that the recovered memories are vivid and detailed because they are not true memories at all, but unconscious creations of J.N.’s mind or imagination: B.B., at para. 119. There was no evidence called that would assist me in determining which of these alternative explanations for the detailed and vivid nature of J.N.’s present memory I should accept. Moreover, abundant detail which cannot be confirmed does not increase reliability: Rosenberg article, at para. 26. Again, the prosecution did not call any objectively reliable external evidence that confirms the accuracy of J.N.’s testimony.

124I have already found that the inconsistencies in J.N.’s evidence did not undermine her credibility. But in my view, they do undermine her reliability. When confronted with inconsistencies, J.N. repeatedly explained that she always gave answers that reflected her honest memory when given. But her memory changed over time. When it did, she admitted that her earlier inconsistent memory, given sincerely under oath, was mistaken or incorrect. She adopted or accepted records or documents that were put to her as her own memory. In this way, J.N.’s memory and her evidence were constantly changing and evolving. What J.N. testified to remembering on one occasion was often not what she gave evidence of remembering on another.

125I cannot be confident that J.N.’s present memory of the May 5, 2014 incident, forgotten for three and a half years, and then “remembered,” was reliable in light of her demonstrated fallible and suggestible memory.

126I recognize that J.N.’s evidence in relation to the core allegations of sexual assault was consistent. Her memory with respect to the sexual assault did not evolve or change over time. It did not appear to be fallible or suggestible in the way that her memory in relation to other events did. However, for the reasons already described, the consistency, detail, and vividness of J.N.’s memory of the sexual assault does not satisfy me that it is reliable. In addition, I consider it possible that J.N.’s memory is generally fallible and suggestible. This fallibility and suggestibility may have operated when the memories of the sexual assault were recovered, or created, and recorded in the outline that J.N. thereafter relied on to produce her consistent evidence of the sexual assault.

127J.N.’s suggestible memory may have been externally unconsciously influenced or tainted by the newspaper article and the movie, or by other unknown factors over the passage of time. I recognize that it would be speculative for me to make a positive finding that J.N.’s memory was suggested to her mind by the newspaper article and the movie, or by other factors. But bearing the criminal standard and burden of proof in mind, the defence need not satisfy me that J.N.’s recovered memory was not tainted by the article, the movie, or anything else. Rather, “the Crown must satisfy me that this is not a significant concern, as part of its overall burden of persuading me beyond a reasonable doubt that . . . [J.N.’s] recovered memory is reliable”: B.B. at para. 125.

C. Conclusion

128On all the evidence, I find J.N. to be a sincere and credible witness, but I am not satisfied beyond a reasonable doubt that her memory of being sexually assault by Dr. Tan on May 5, 2014 is reliable.

129J.N.’s recollection of the sexual assault may possibly be a true memory that she suppressed for three and a half years before it came back to her when she read a newspaper article about another doctor who lost his licence to practice medicine for sexually abusing a patient.

130However, J.N.’s evidence had a number of inconsistencies in it; she had a generally poor, fallible and suggestible memory overall; she had no memory of these incidents whatsoever for three and a half years; these allegations were similar to the plot of the movie “Hysteria,” which J.N. acknowledged having seen; and there was a complete absence of any independent objectively reliable evidence supporting her allegations. In these circumstances, there is no basis on which I can conclude beyond a reasonable doubt that J.N’s memory of the alleged sexually assaultive internal exam is reliable and not a confabulation or a false, although sincerely believed, memory.

131It follows that I cannot be satisfied of Dr. Tan’s guilt beyond a reasonable doubt. I am left with a reasonable doubt about his guilt, and must acquit him accordingly.

III. Disposition

132A verdict of not guilty will be entered on the single count of sexual assault on the indictment.

J. R. Presser J.

Footnotes

1. 1I was advised that by the time of trial, the defendant was no longer a medical doctor. However, he was a medical doctor at the time of the events at issue, was J.N.’s doctor at that time, and was referred to as “Dr. Tan” by J.N. in her testimony. For these reasons, I have decided to refer to the defendant as “Dr. Tan” throughout this judgment.