This week’s top three summaries: R v Mohammad, 2020 ABPC 119, R v Ulmer, 2020 ABQB 393, and R v SL, 2020 ONSC 4036.
R v Mohammad, 2020 ABPC 119
[July 7, 2020] Legal Effect of Agreed Statement of Fact - DNA Expert Evidence: Race of Accused [Judge A. A. Fradsham]
AUTHOR’S NOTE: Precision in crafting an ASF is necessary. A poorly or thoughtlessly drafted ASF can have devastating consequences for a lawyer's cause. In this case, it was the Crown that missed the mark and consequently lost their case. By agreeing that phone calls and CCTV surveillance happened at a certain time they created evidence that exonerated the accused when on further inspection of the evidence it appears there was another explanation for the discrepancy in time. Also, the case takes an interesting look at the results of a DNA analysis and asks the following question: what value is there to a probability of a person of a certain race being a match for the profile if I don't know the race of the Accused? The answer: without expert testimony on the topic is there is no value to the opinion.
Pertinent Facts
[6] There is no dispute that Mr. Fleming was assaulted by more than one person on July 9, 2018, in an alley behind the Knoxville’s Tavern in Calgary, Alberta. There is also no dispute that as a result of that assault, Mr. Fleming suffered grievous injuries resulting in permanent brain injury. Consequently, considering the evidence before me, there is no doubt that someone committed the offence of aggravated assault in respect of Mr. Fleming on July 9, 2018, in Calgary, Alberta.
[7] The remaining issue is whether the Crown has proven beyond a reasonable doubt that Mansoor Mohammad was one of the people who was a party to that assault.
[109] Many of the facts as I have found them strongly suggest that the accused was one of the people who assaulted Mr. Fleming on July 9, 2018.
[110] Shoes resembling the ones worn by the accused that night were found in a residence connected to the accused. Those shoes had on them DNA material which, beyond a reasonable doubt, came from Mr. Fleming. Beyond a reasonable doubt, that DNA material came to be upon the shoes as a result of the assault upon Mr. Fleming. There is no evidentiary foundation, and hence no air of reality, to either of the submissions that Mr. Fleming’s DNA came to be on those shoes by the accused simply walking through the scene of the assault or by transference from the Nike running shoes.
[111] The assault occurred in the alley (“the alley”) outside the Knoxville’s Tavern, and the accused was at Knoxville’s at that time and, at some point before the assault, was seen to have some sort of interaction with Mr. Fleming.
[112] The accused was seen running north on 8th Street just north of where the alley opens onto 8th Street at 2:03:58 am. He proceeded north (with others) and turned east onto 8th Avenue.
[113] However, a witness to the assault (Ms. Baynes) called 911 for assistance midway through the assault. The assault continued for a short period while she was on the telephone with the 911 operator. That call was placed at 2:04 am. The person assaulting Mr. Fleming, and who the Crown submits was the accused, did not run from the scene until after the 911 call was placed (therefore, after 2:04 am). As noted, the accused was running north on 8th Street at 2:03:58 am. He could not have been still participating in the assault at and after 2:04 am and also be running north on 8th Street at 2:03:58 am.
[114] The simple explanation is that the times of 2:04 am and 2:03:58 am were derived from different time pieces. The time of 2:04 am came from the 911 system; the time of 2:03:58 am came from the University of Calgary downtown campus CCTV security system. A logical explanation is that the time pieces were not synchronized.
Formal Admissions under s.655 of the Criminal Code
[116] Admissions made under section 655 are formal admissions made by the accused at the request of the Crown. The admissions sought are admissions sought by the Crown. As was stated by Chief Justice Cartwright in R. v. Castellani 1969 CanLII 57 (SCC), [1970] S.C.R. 310, at p. 315:
...An accused cannot admit a fact alleged against him until the allegation has been made. When recourse is proposed to be had to s. 562 [the predecessor to the current section 655] it is for the Crown, not for the defence, to state the fact or facts which it alleges against the accused and of which it seeks admission. The accused, of course, is under no obligation to admit the fact so alleged but his choice is to admit it or to decline to do so. He cannot frame the wording of the allegation to suit his own purposes and then insist on admitting it.... The idea of the admission of an allegation involves action by two persons, one who makes the allegation and another who admits it.
[117] So, in the case at bar, it is the Crown which sought the admissions about times which admissions were ultimately made by the accused. It does not lie in the mouth of the Crown to now say that the logical conclusions which flow from those admissions sought by the Crown should be avoided by ignoring the admissions.
[119] What is before me in the case at bar is an admitted fact.
[120] An accused cannot contradict a formal admission made by him or her under section 655 without leave of the Court to withdraw the admission: R. v. Prince 2017 BCSC 2642, at paragraph 26. I am similarly of the view that the Crown, having sought and obtained a formal admission from an accused under section 655, cannot contradict that admission by the accused without leave of the court. No such leave was sought in the case at bar. Consequently, the facts before me are that at 2:03:58 am, the accused was not at the scene of the assault; he was running away from that scene and did not return (he proceeded to 8th Avenue and went east along the sidewalk adjacent to that road). At 2:04 am, Mr. Fleming was still being assaulted by at least two persons, one of whom the Crown alleges was the accused.
DNA Evidence and the Race of the Accused
[121] And what of the loafers with Mr. Fleming’s DNA on them? They look similar to the ones being worn by the accused that night. They were found at a location associated with the accused. They contained DNA other than that of Mr. Fleming, but because of a lapse in the Crown evidence (i.e., the results of the DNA analysis of a sample taken from the accused was not placed into evidence), we do not know if that other DNA matched the accused. Even if it did, we do not know when it was deposited on the loafers since the loafers were seized on August 3, 2018.
[122] Further, the DNA statistics relating to Male Profile # 2[18] to Suspect 1 used four data bases for comparison. While an observation of the accused gives some evidence that he does not fit into the aboriginal groups noted in the report, the question remains whether he fits into the group called “Caucasian”. The term is not defined in the report. The word “Caucasian” is defined in The Canadian Oxford Dictionary (Don Mills, Ontario: Oxford University Press, 2001) at p. 226, as “of or relating to the white or light-skinned race of human beings originally inhabiting Europe, N Africa, and the Middle East”. In The Penguin English Dictionary, Third Edition (London: Penguin Group, 2007), the word “Caucasian” is defined, at p. 199, as “of the white race of humankind, as classified according to physical features”. In The Oxford English Dictionary, Second Edition (Oxford: Oxford University Press, 1991), Volume II, at p. 995, “Caucasian” is defined as “A member of the ‘Caucasian’ family, an Indo-European; spec. a member of the ‘white race’, opp. one of other ethnic descent”. Even if we knew what the authors of DNA report meant by the term “Caucasian”, in my view mere observation of the accused in Court does not sufficiently answer the question of whether Mr. Mohammad fits into that classification. All one can see is that his skin colour can be fairly described as “medium brown”. Without adequate evidence establishing that the accused fits into the database labelled in DNA report # 2 as “Caucasian”, I find the DNA statistics contained in DNA report # 2 in relation to Male Profile # 2 and Suspect 1 to be unhelpful.
Conclusion
[126] There may be a natural and understandable inclination to find someone criminally responsible for the vicious attack visited on Mr. Fleming, and for the resultant life-altering injuries suffered by that helpless victim. Any right-thinking person must have great sympathy and concern for Mr. Fleming as he deals with the tragedy which befell him. However, as strong and natural as those inclinations may be, the greater imperative must be to resist such a visceral reaction, and to preserve in the case at bar, and for the future, the core integrity of our justice system. No good is achieved by compounding one tragedy with a different form of tragedy.
[127] I find the accused not guilty on count 1.
R v Ulmer, 2020 ABQB 393
[July 7, 2020] Sentencing - s.95(1) - Conditional Sentence for a Loaded Restricted Firearm [Mr. Justice S.N. Mandziuk]
AUTHOR’S NOTE: Sometimes a low sentence catches they eye and is worth saving for a future precedent. Herein, an offender was given a Conditional Sentence Order for possessing a restricted cut-off rifle, loaded, in his vehicle. Often times these sets of facts are sufficient to send someone to a not insignificant stay in jail. Here, because of the particular circumstances of the accused: his age, his limited record, and his possible reason for having the gun got him a sentence of house arrest.
Pertinent Facts
[1] Mr. Ulmer has pleaded guilty to a charge under s 95(1) of the Criminal Code of Canada...
[4] I will briefly outline the facts that were admitted on the record at the time of the guilty plea.
[5] In the late evening of October 27, 2017, police in Edson, Alberta checked the license plate of a vehicle being driven by Mr. Ulmer. They discovered that he had an outstanding warrant in relation to a vehicle offence.
[6] The vehicle was parked in a hotel parking lot. The police officers identified Mr. Ulmer by his driver’s license and discussed the warrant with him. For reasons that are not relevant to this sentencing, the police searched the vehicle. Underneath the passenger’s seat, they found a Cooey 75 single bolt action .22 caliber rifle. The barrel and stock were both cut to shorter lengths which rendered it a prohibited weapon. Upon further investigation, the police determined that the firearm was loaded with a .22 caliber bullet. Other ammunition was found in the vehicle.
[7] Mr. Ulmer’s guilty plea was entered on September 13, 2019 in Hinton, Alberta. Sentencing was adjourned from March 20, 2020 due to the Covid-19 Pandemic. A Pre-Sentence Report (“PSR”) was prepared by Lia Nerenberg.
[8] Mr. Ulmer is presently 61 years of age. He has a grade 8 education. Over the years, Mr. Ulmer has used alcohol, marijuana, cocaine and crystal methamphetamine. He has had addiction issues.
[9] Mr. Ulmer receives AISH in relation to a past injury that left him in a coma for a considerable period of time. He indicates that he presently has no health issues. He is able to earn an income from various employment sources.
[10] The Crown seeks a sentence of 18 months incarceration and a weapons prohibition under s 109 of the Code. The Crown points to the fact that the loaded weapon was found in a vehicle with ammunition nearby as an aggravating factor for consideration.
[14] R v Goodrich 2019 ABPC 250 is referred to by the Defence in support of a conditional sentence. There, the offender entered a guilty plea to a s 95(1) charge arising from having a sawed-off shotgun in his residence. The offender had mental health issues; in fact, it was a mental health concern that led to police involvement. His record was minimal, consisting of two drug possession offences. The Crown sought 1-year incarceration. After a thorough review of sentencing principles, Judge LeGrandeur imposed a sentence of 90 days incarceration to be served intermittently.
Mitigating, Aggravating Factors
[16] Mr. Ulmer takes full responsibility for this offence and for his behavior. The PSR describes his awareness that he broke the law in a serious fashion and points to his contrition.
[17] Mr. Ulmer has now overcome addiction issues that have plagued him during his life and which may have ultimately been the root of the anti-social and criminal conduct reflected in his criminal record. As the PSR states, he has from time to time socialized with individuals who have not necessarily been good for him.
[18] Presently, Mr. Ulmer has ample supports in the community. He is in a consistent, longterm relationship and has reasonable family and friend connections. By all accounts, Mr. Ulmer is a hardworking and responsible individual. He has a long employment history, doing labour jobs, driving, working in the oil fields and at one time he ran his own business. He has many valuable “hands on” skills.
[19] Reference letters provided to the Court from individuals who have employed Mr. Ulmer over the years indicate that he is a reliable, diligent and trustworthy worker who takes direction well and is valued by those who entrust him with tasks.
[20] For many years, beginning in his youth, Mr. Ulmer has hunted and trapped. He engaged in this activity in his early life with his grandfather and has continued to pursue it to this day. It is, according to Defence Counsel, one of Mr. Ulmer’s income sources.
[21] Defence counsel made a concerted argument concerning the intended use of the weapon, which is not in evidence. However, on a sentencing the rules of evidence are relaxed so that I can obtain as much information as possible in determining a fit and appropriate sentence: R. v. Lévesque, 2000 SCC 47 at para 30.
[22] Defence Counsel urged the inference that Mr. Ulmer possessed the weapon ancillary to trapping activity. A firearm is a tool used by trappers to dispatch wounded animals quickly and humanely. This goes, presumably, to Mr. Ulmer’s moral culpability. Further, the weapon was just one item in the corpus of Mr. Ulmer’s worldly possessions, all of which were inside the vehicle at the time that the weapon was seized by the police. In other words, there is context to the possession of this particular weapon by this particular individual.
[24] S 657.3 irregularities were waived by consent. The Crown conceded Mr. Vaughan’s expertise on the possession, use, restoration and sales of firearms; I was unable to conclude that Mr. Vaughan’s qualifications made him an expert on trapping given his lack of formal training. So, for the purposes of this sentencing hearing, I took his evidence on the latter issue as information, not opinion.
[25] Mr. Vaughan is well-acquainted with the weapon in question. He said that it is ideally suited for trapping because its loading and firing mechanisms require multiple steps. Trapping requires daily visits to trap lines in order to dispatch and retrieve animals and this firearm can be carried in a loaded but inactive state. The rifle found in Mr. Ulmer’s possession had been turned into a single shot pistol. The shorter barrel is very common; though it is unlawful to modify the stock. He said it is not unusual for weapons of this sort to be handed down without the person receiving it being aware of its prohibited status.
[31] There is no suggestion that Mr. Ulmer is a dealer in firearms. The weapon was not discharged during the course of the commission of an offence (or at all during any relevant time). There is no temporal or factual nexus in the relevant facts before me between this weapon and other offences or criminal activity, and it has not been suggested that Mr. Ulmer presented a real or immediate danger to the public. There is not an aura of criminality and violence on the facts before me.
[32] Ultimately however, Mr. Ulmer pleaded guilty to an offence under s 95(1). The facts support the guilty plea. This argument about trapping is raised to reduce the criminality and moral responsibility of the offender. While this is an interesting argument, I can only take it as speculation given that the facts underlying the offence, which I have outlined above, have been admitted.
[33] In many cases, a guilty plea is a mitigating factor. Here, I view it as neutral. The plea was entered on the day of trial, which reduces its efficacy.
[34] The maximum penalty (up to ten years) for this offence signifies its seriousness. Furthermore, the Courts have condemned the possession of firearms in many cases. The Supreme Court of Canada stated in R v Nur, 2015 SCC 15 that “[f]irearm-related offences are serious crimes... Parliament has sought to protect the public from firearm-related injuries and to deter crimes involving firearms through a combination of strict licensing and registration requirements” (at para 6). See also R v Chin, 2009 ABCA 226 at para 10; R v Powers, 2015 BCSC 2115 at para 63; R v Finlay, 1993 CanLII 63 (SCC), [1993] 3 SCR 103 at 115-116; R v Felawka, 1993 CanLII 36 (SCC), [1993] 4 SCR 199 at para 14.
[35] The seriousness of the offence is exacerbated by the presence of the firearm in a vehicle, loaded, with other ammunition nearby, some of which was hollowed out. The presence of hollow bullets is somewhat troubling given Mr. Vaughan’s evidence that such bullets are not useful for dispatching animals as they do considerable damage to the animal, which defeats the purpose of trapping.
[39] There is every indication from the PSR that Mr. Ulmer has moved past his addiction issues though he still uses marijuana up to 3 times per week.
[40] With respect to these charges, there are no apparent failures to comply or appear. There are no allegations that he has failed to fulfill his release conditions. The Court would like to conclude that the state of criminality in which Mr. Ulmer has lived from time to time is now behind him. The PSR indicates that he would comply with any conditions imposed on him in a community-based disposition, but would like to be able to travel out of province for work purposes.
Is a Conditional Sentence Appropriate?
[41] S 742.1 of the Code give the Court the authority to impose a conditional sentence where it is the appropriate disposition.
[42] In R v Proulx, 2000 SCC 5 Lamer C.J. discussed s 742.1 of the Code at length:
[46] This provision lists four criteria that a court must consider before deciding to impose a conditional sentence:
(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
(2) the court must impose a term of imprisonment of less than two years;
(3) the safety of the community would not be endangered by the offender serving the sentence in the community; and
(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
[47] In my view, the first three criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditionalsentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. This decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.
[43] The Court in Proulx also noted (at para 35) that “conditional sentences were designed to “permit the accused to avoid imprisonment but not to avoid punishment” (citing R v McDonald 1997 CanLII 9710 (SK CA)). A conditional sentence restrains the liberty of a convicted individual without incarceration and the complete separation of the individual from the community as a “meaningful alternative to incarceration for less serious and non-dangerous offenders” (Proulx at para 21).
[44] Following the rubric in Proulx, I begin by noting that there is no minimum sentence. At one time, a s 95(1) conviction attracted a mandatory minimum sentence. In the case of a first offence, a minimum three-year sentence was required, with a five-year minimum on second and subsequent offences. The three- and five-year mandatory minimums were found to violate s. 12 of the Charter: R v Nur, 2015 SCC 15.
[45] This does not mean that incarceration has become uncommon in s 95(1) convictions. In fact, Tilleman J in R v Fares, 2017 ABQB 509 observed that based on his review of the authorities “the appropriate range for a first-time offender under s 95(1), in the absence of significant aggravating or mitigating circumstances, is two to three years” (at para 19).
[47] Continuing with Proulx, I cannot conclude that Mr. Ulmer would be a danger to the safety of the community, and I make that assessment in relation to the degree of threat posed by this specific individual (Proulx at para 66). Mr. Ulmer is not a chronic weapons user based on his record. He does not have a record for violent offences. The PSR does not indicate that he is a violent person.
[49] A community-based, non-custodial disposition is recommended by Ms. Nerenberg in her PSR.
[50] I agree. A non-custodial sentence in this case is aligned with the fundamental purposes and principles of sentencing outlined in ss 718 to 718.2 of the Code and would not - very importantly - jeopardize the safety of the community.
[51] A conditional sentence, of significant length and with appropriate conditions, properly serves the goals of denunciation and deterrence in this case and in general (Proulx at para 22). It is not necessary to impose a term of imprisonment to achieve those aims. Mr. Ulmer is being punished by having restrictions placed on his liberty in a way that aligns with his overall moral blameworthiness while still condemning his possession of an unlicensed prohibited weapon. I pause to note that the conditional sentence period will be significant and Mr. Ulmer has already served 55 actual days in custody, which I consider in crafting an appropriate sentence.
[54] The sentencing range for this offence after Nur has considerable breadth. S 95(1) convictions have attracted conditional sentences; for example: R v Dalton, 2018 ONSC 544; R v Hassan, 2017 ONSC 4570; R v Sears, 2016 BCSC 965. A conditional sentence does not violate the consideration of parity. In these circumstances, it meets the Court’s need to consider restraint (ss 718.2(d) and (e)) of the Code).
[55] A concern arises from Mr. Ulmer’s record of not complying with court orders. However, on the totality of the facts before me, I am satisfied that the consequences of breaching a conditional sentence order will be of sufficient impact on Mr. Ulmer. Coupled with supervisory requirements, the appropriateness of such an order is not diminished significantly enough to eliminate it from consideration.
[56] Under normal circumstances I would have sentenced Mr. Ulmer to an 18-month conditional sentence. I sentence him to a 15-month conditional sentence.
R v SL, 2020 ONSC 4036
[July 6, 2020] Sexual Assault - Sexual Purpose of Professional Service Touch [Justice G.D. Lemon]
AUTHOR’S NOTE: In many types of professions that involve touching a patient (chiropractic adjustment, massage, medicine, etc.) the practitioner takes a risk that their private examinations of patients can turn into fertile ground for sexual assault allegations. If the touching involves a sexual organ, the risk is heightened. In this matter the result turned on the Crown's inability to prove the sexual nature of the touch. Despite the insertion of fingers into of woman's vagina, the result was an acquittal as there was at lease a reasonable doubt that the touch involved the practice of Traditional Chinese Medicine related to a "tilted uterus."
Pertinent Facts
[1] S.L. is charged with sexually assaulting the complainant in 2005 when she was a patient of his at his Traditional Chinese Medicine clinic. On consent, the trial was held on a Zoom platform pursuant to s. 650(2) (b) of the Criminal Code of Canada R.S.C., 1985, c. C-46. My ruling on that procedure is reported at In Re: Court File No. 19/578, 2020 ONSC 3870.
[2] D. H. is now 38 years of age. She first met S. L. in May of 2004 when she went to his office after completing her third year of university. She was 22 years of age at the time.
[4] D.H. met S.L. at his office in Guelph. When she arrived for her first appointment, she observed a reception desk and a small waiting room. She described the office as similar to a doctor’s office.
[11] The allegations arise from her attendance at her last appointment. In her examination-in-chief, she testified that she did not remember the month that she went but it was in the summer of 2004 or 2005. She had completed her undergraduate degree in 2005.
[14] She was wearing a shirt that showed the tops of her arms. She had red bumps on her arms. She could not remember if he said that he had been reading some research or had been doing some research on the topic, but he told her that those bumps may have been caused by a tilted uterus. He offered to examine her, and she agreed to the examination. At that point, he did not tell her how he was going to do the examination.
[16] In the examination room, there was an examination bed in front of them against the wall and, to the right, there was a sink and countertop. The examination bed was covered with a “plasticky” material. He told her to undress from the waist down and get on the table. Although he did not tell her what he was going to do, she believed that he was going to carry out an examination of her vagina. He left while she undressed and came back after she was on the table.
[18] When he returned, she was on her back. He told her that he was going to insert two fingers into her vagina and to put the soles of her feet together. She saw his hands go towards her vagina and closed her eyes. He was not wearing gloves and did not use any lubrication. He attempted to put two fingers inside her, but it hurt her, she said “ow, ow, ow” and pushed his hands away. She allowed him to try for 10 to 15 seconds.
[19] In response, he asked her to spread her legs wider and to relax and she said, “I’ll try”. He tried again, but she was tense, scared and nervous. Again, his examination hurt, and she pushed his hands away. He then removed his hands and did not try again.
[20] Between the two examinations, he did not ask her if she wished to continue. When he tried the second time, he was “helpful and kind”.
[26] In 2018, D.H. saw a police media release that discussed a Chinese or naturopathic doctor in Guelph being charged with sexual assault. She knew that person to be S.L. She then told her husband what had occurred. She identified a media release but does not remember the details of the article. She agreed that it referred to multiple charges and that the victims were former patients of S.L.
[27] She went to the police the next day and gave a statement to the investigating officer. That statement is dated January 16, 2018. That officer told her that S.L. did not have the authority to do such an examination and D.M. felt taken advantage of. She was not aware of that lack of authority before that time. She thought it was within the scope of his examination and had no reason to think otherwise. She was uneasy about what occurred but did nothing to investigate what had happened.
[30] In May of this year, she spoke with the investigating officer and the Crown Attorney to prepare for trial on two occasions. She was provided with copies of her statement, the preliminary hearing transcript, the press release and her clinical records. She reviewed all of those documents once. On May 29, 2020, she told the Crown and the investigating officer that a date in the police transcript was wrong and the spelling of her name was incorrect but made no other changes. Until the morning of trial, she provided no other changes to anyone.
[32] She agreed that, at the preliminary inquiry and in her statement to the police, she said that she went to the clinic for stomach issues and digestive problems. At no time did she say that she was there about problems with her acne.
[33] She agreed that her memory of 2004/2005 is flawed, and it is possible that some of the details were confused, but not the acts of which she had complained.
[34] She reviewed the clinical record the night before trial. There, the record shows that she wrote that the reason for the visit was “acne”. Only at trial did she say that she was there for treatment of her acne. She agreed that this was not a deliberate lie but rather came from her review of the record. The record corrected her memory.
[35] When she spoke with the police, she said that the assault occurred in the summer of 2004. That was between her third and fourth year of school when she was 22 years of age. At several points in her evidence at the preliminary inquiry, she confirmed the same and was never uncertain of those details.
[36] However, now that she has reviewed the chart, she is reminded that the assault occurred in 2005, after graduation, when she was 23. She agreed that she was wrong in her memory about dates.
[37] She was asked about how many appointments she had with S.L. In both her statement and at the preliminary inquiry, she said she had four or five appointments but has now changed that to eight or nine times after reviewing the record.
[38] Despite these corrections, she has a clear memory of the vaginal examination. She is sure that she attended S.L.’s office for both her acne and her digestive issues because she understood at the time that they were linked.
Traditional Chinese Medicine
[89] While Mr. Hui gave a description of Traditional Chinese Medicine, I will summarize those parts of his evidence that relate directly to the issues at trial.
[94] In his opinion, Traditional Chinese Medicine does not involve putting fingers in a woman’s vagina to diagnose ailments or to carry out a gynecological examination. In his opinion, such an examination is not permitted by law.
[95] With respect to the diagnosis of a tilted uterus, he would do that by observing the patient’s walking pattern. A tilted uterus would normally be reported to him by the patient with a current diagnosis by their western medical doctor. In the normal course, he would not diagnose such a thing.
[96] Within his own practice, he does not have his patients undress.
[97] He agreed in cross-examination that, in some circumstances, it is appropriate that a practitioner may examine a patient in full undress, but it was not his practice. He acknowledged that this is confirmed by guidelines from the College.
[98] He agreed that the practice of Traditional Chinese Medicine has evolved over the years. Its practice will differ from jurisdiction to jurisdiction and is dependent on the practitioner’s training. He agreed that Traditional Chinese Medicine training can be different from one country to another. Before the profession was regulated in 2013, each practitioner practiced according to their training. He was not aware of the training of other practitioners in other countries. Accordingly, he did not know how other practitioners were practicing in 2004 and 2005.
[99] He agreed that, in some Traditional Chinese Medicine programmes, there is training for vaginal examinations, but he would not do such an examination.
Authorities
[102] In R. v. Nyznik, 2017 ONSC 4392, Molloy J. said:
17Although the slogan "Believe the victim" has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.
[108] [108] In R. v. Clottey, 2018 ONCJ 536, Brown J. summarized that:
487 Sexual assault is defined as intentional, non-consensual touching, occurring in circumstances of a sexual nature. Whether circumstances of a sexual nature are present in a given situation is determined on an objective test by the trier of fact.
488 No specific sexual intent or motivation is required for a finding of sexual assault. However, the intent of the accused is one of several factors to consider in determining whether the alleged conduct is sexual, including the situation in which it occurred, any words and gestures accompanying the act.
489 Doctor-patient sexual assault cases are somewhat different from other sexual assault cases because there can be legitimate medical reasons for a practitioner to examine a patient's sexual organs. So the "part of the body touched"-admittedly a relevant factor as per Chase - requires contextual consideration.
490 So long as the practitioner has a valid medical purpose and, objectively, a legitimate reason for examining the breast or genital area, then unless the touching is of a sexual nature, the part of the body touched is of less significance in the analysis. That is why the British Columbia Court of Appeal in R. v. Buna and the Supreme Court of Canada in R .v. Litchfield have emphasized that in order to convict a physician in this context, the doctor's touching must have been of a sexual, and not simply medical, nature; the doctor's touching must have been used to "sexualize" the interaction.
491 R. v. Maurantonio raised the question of what a patient actually consents to during a medical examination. That case stands for the proposition that patients can only provide consent to a bona fide medical examination, conducted for a legitimate medical purpose.
. . .
493 The appropriate question to ask is whether the examinations were "medically justifiable" or "clinically reasonable" rather than "clinically necessary," as doctors may often disagree as to whether a medical test or exam is strictly necessary or not.
. . .
499 Patient perceptions, while obviously relevant, are not determinative…
. . .
501 Where there was a legitimate medical rationale for the examination, and the examination was not performed in a sexual fashion, there can be no finding of a sexual assault. [Citations omitted, emphasis in original]
Analysis
[112] The issue in this trial is not D.H.’s credibility but her reliability. In R. v. Slatter, 2019 ONCA 807, Trotter J.A. pointed out, at para. 60:
As this court has pointed out, credibility and reliability are not the same thing. "Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue". Thus “[c]redibility … is not a proxy for reliability: a credible witness may give unreliable evidence.” [Citations omitted]
[116] However, what is important here is the certainty with which D.H. held to her first memories and the equal certainty with which she changed her recollection on reading her record 15 or 16 years later. I am left unsure whether other cues could change her evidence, one way or the other, in any equally certain fashion.
[118] I find that D.H. consented to the examination if it were part of the practice of Traditional Chinese Medicine. There is no suggestion otherwise. She agreed to attend the examination room, declined a chaperone and followed S.L.’s directions. Even when she experienced pain, she followed S.L.’s directions to continue the examination. She voiced that agreement with “I’ll try.” When she pulled his hand away a second time, S.L. stopped the examination.
[119] The real issue here is whether what occurred was part of Traditional Chinese Medicine. If not, was the physical contact of a sexual nature?
[120] The Crown relies on R. v. Chase, 1987 CanLII 23 (SCC), [1987], 2 S.C.R. 293, where it is said:
Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [at p. 302, citations omitted]
[122] However, I cannot find the Mr. Hui’s evidence goes that far. He said what he would do, not what all Traditional Chinese Medicine practitioners would do. At the relevant time, the profession was unregulated, and training was by apprenticeship. Each practitioner practiced according to their own training in their own style in their own country. While he did not do gynecological examinations, or examine undressed patients, he did not deny that others could so according to their training and practice.
[123] Mr. Hui gave his opinion of what he would do; he was of no assistance as to what others, according to their individualized training, might do.
[124] I also agree with the defence that Mr. Hui may also not understand his expert role. While I found that his evidence was admissible, I must still be cautious of it once admitted. I have no doubt about Mr. Hui’s bona fides, but I am hesitant to accept his evidence outright. He misunderstood the degree that his curriculum vitae should be up to date and scrupulously accurate. He wavered between what his practice was, whether he knew how others practiced and whether he simply did not approve of how others practiced. That weakness shakes his evidence such that it cannot satisfy me beyond a reasonable doubt that S.L.’s treatment was contrary to Traditional Chinese Medicine.
[127] Similarly, in R. v. Hutchinson, 2014 SCC 19, it is said that
[55] …[a]t the first stage of the consent analysis, the Crown must prove a lack of subjective voluntary agreement to the specific physical sex act. Deceptions about conditions or qualities of the physical act may vitiate consent under s. 265(3)(c) of the Criminal Code, if the elements for fraud are met. (emphasis added)
[128] Here, there is insufficient evidence of deception or fraud. Mr. Hui’s evidence does not negative the possibility of the legitimate practice of Traditional Chinese Medicine in 2004/2005.
[129] I agree with the defence submission that there may be circumstantial evidence of a sexual assault, but the totality of the evidence leaves open the reasonable conclusion that what S.L. did was perform Traditional Chinese Medicine. Other than the part of the body touched, there was nothing to suggest other than a clinical practice. I cannot make the inference of guilt as submitted by the Crown.
[130] The Crown submits that pursuant to the relevant Regulated Health Professions Act, 1991, S.O. 1991, c. 18, in force at the time, S.L. was not permitted to carry out such an act....
[131] However, the breach of regulatory provision does not amount to a criminal act. The Crown relies on R. v. Chen, 2003 BCSC 1363. The accused in that case, however, gave evidence which allowed the trial judge to find that the accused knew and understood the limits of permitted physical examinations according to the provincial regulations. There is no such evidence here.
[134] For those reasons, S.L. is found not guilty of the charge.
