WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-12-18

Docket: C61682

Judges: Epstein, Paciocco and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Arturo Sanchez

Appellant

Counsel

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

Christine Tier, for the respondent

Hearing and Appeal Information

Heard: November 29, 2017

On appeal from: The conviction entered on December 7, 2015 and the sentence imposed on March 30, 2016 by Justice Nancy Backhouse of the Superior Court of Justice, sitting without a jury.

Subject Matter: Criminal – Historical sex offences – Misapprehension of evidence

Decision

Nordheimer J.A.:

[1] Introduction

1The appellant is a pediatrician who was charged with five counts of indecent assault, two counts of sexual assault and one count of sexual interference. The charges span a period from 1964 to 2013 and involve six former female patients. The appellant was 81 years old at the time of trial.

2The appellant's trial proceeded before a judge alone. At the end of the trial, the appellant was convicted of three counts of indecent assault. He was found not guilty of all other charges. Two of the convictions related to the complainant, L.H., and one related to the complainant, L.C. The events relating to L.H. occurred in 1964 and 1965 and the events relating to L.C. occurred in 1980.

3On March 30, 2016, the appellant was sentenced to 15 months imprisonment in relation to the convictions for indecent assault on L.H., consecutive to three months imprisonment in relation to the indecent assault on L.C. The appellant appeals both his conviction and his sentence.

Background Facts

(i) L.H.

4L.H. was hospitalized at the Hospital for Sick Children ("HSC") on two occasions when she was a teenager. On the first occasion, she was 14 and on the second occasion, she was 15.

5The appellant was a senior associate resident in pediatrics at HSC from July 1, 1964 to June 30, 1965. He was responsible for supervising interns over an assigned patient load, and he made daily rounds with the interns, other residents and staff physicians. The appellant had direct interaction with patients, including conducting physical examinations.

6The appellant gave evidence at his trial. He had no recollection of L.H. However, based on her medical records, the appellant said that he had a single interaction with her on September 2, 1964. The appellant's signature also appeared on the discharge report of Dr. Singer, which was dated September 9, 1964. The appellant acknowledged that he signed the discharge report on behalf of Dr. Singer, and corrected a typographical error in the report. The appellant did acknowledge that he might have had interactions with L.H. as he went about his rounds as he is generally friendly and talkative.

7In contrast, L.H. specifically remembered the appellant. She recalled that he was an intern during her two admissions to the HSC. She gave evidence that her first impression was that the appellant was very attractive, Hispanic looking, with dark hair. L.H. remembered the appellant as being from Mexico or Colombia. He told her a lot about his lifestyle, which was very interesting to her. She recalled that he was married.

8L.H. said that the appellant had started touching her breasts and her pubic area, over her clothes. She felt uncomfortable and squirmed, but he said that it was necessary. She recalled this happening in an examination room, on the same floor as her room. She gave evidence that the interns would escort the patients to the examination room. No one else was in the room with her and the appellant. She said that the breast touching also happened in her hospital bed.

9L.H. said that during her first hospital stay, the appellant touched her breasts five or six times. Sometimes her breasts were touched under her clothes, but she could not say whether that occurred during the first admission. She said that she did not have any health issues with her breasts and that none of her other physicians touched her breasts.

10L.H. gave evidence that during her first hospital admission, the appellant touched her pubic area with his fingers and his hand. She said that this happened mainly in the examination room when no one else was present. She also said that the appellant inserted his fingers inside her vagina, causing her to feel afraid and uncomfortable. No other physician touched her in the area of her vagina and she had no health issues respecting her vagina. L.H. gave evidence that during her second admission to HSC, she continued to see the appellant and this type of touching continued.

11With respect to examinations of patients, the appellant gave evidence that these usually occurred in the patient's own bed. Curtains were wrapped around the beds for privacy. In some circumstances, examinations would occur in the examination rooms, which were equipped with the instruments commonly used during examinations. There were no such instruments in the patients' rooms. When taken to an examination room, the patient was accompanied by a nurse, who always remained in the room to assist. The appellant explained that all physical examinations or any notable observations during rounds should have been recorded on the patient's chart.

12The appellant denied that he ever took L.H. into an examination room alone or the interns' room, as she alleged. He further denied that he ever performed an internal examination of the vaginal area of any patient at the HSC while he was a pediatric resident, or ever in his career as a pediatrician. He explained that those types of exams would only be done by a specialist.

13In addition to the allegations of improper touching, there was one specific incident that L.H. recounted. L.H. said that, in the middle of the night, when she was sleeping in her bed on the ward, the appellant woke her saying that he had to examine her right away. She did not recall anyone else being around at the time. She gave evidence that the appellant started examining her pubic area with his hand. She claimed that he put his leg over her legs or hips. He pressed his forehead against hers very hard. He was breathing heavily and his hands were on her breasts. She thinks that at one point he pulled her hand towards him, but she pulled her hand back. She gave evidence that this went on for five or ten minutes, before a nurse came into the room and said "what is going on in here?" The appellant told the nurse to get some kind of scope, and the nurse left. The appellant then "fixed himself up" and left the room. After a short time, the nurse rushed back into the room and asked "where did he go?" L.H. did not say anything to the nurse in response, nor did the nurse ask her what had been going on. Instead, according to L.H., the nurse simply turned around and left.

14L.H. never disclosed any complaints to anyone during her initial stay at the hospital or between her first and second stay. However, she did say that during her second stay, she had one conversation with her roommate, B.R. She could no longer recall the details of the conversation but did remember that they discussed the fact that the appellant was too personal with them.

(ii) L.C.

15L.C. and her older sister were patients of the appellant. They would attend at his office for regular examinations.

16L.C. recalled regularly going to see the appellant for medical visits as she had health issues from the time that she was very young. As a result of a persistent cough, she was referred by the appellant to an allergist, who confirmed that she had allergies. The treatment prescribed was regular injections. L.C.'s mother gave evidence that she recalled telling the appellant that it was difficult for them to attend his office every week, as they would have to take multiple forms of public transit. L.C.'s mother told the appellant that she would have to get another doctor to administer the injections. The appellant then offered to attend at their home on Saturdays, advising that it would be on his way as he did house calls for other patients who were not able to get to his office.

17At trial, the appellant said that he remembered L.C. and he remembered making house calls to administer injections, although he no longer had her medical records to refresh his memory. The appellant said that when he learned that it would be difficult for L.C. and her mother to attend his office each week, and that they lived not far from him, he offered to attend at their home. The appellant said that it was a common practice for him to make house calls on a Saturday and that he did so until the year 2000.

18At some point during these house calls, L.C.'s mother started working part-time. Furthermore, L.C.'s father was often working or out volunteering for their church on Saturdays. L.C.'s sister would either go with their father or she would be in the basement when the appellant came to their home. Consequently, L.C. was often alone with the appellant.

19The main issue with respect to L.C. involved a particular incident. L.C. gave evidence that on one occasion while the appellant was drawing up the injection, he casually asked how old she was. She claimed that this made her nervous, and she believed that she must have "muttered something" but was not sure if she told him her age. L.C. gave evidence that the appellant then asked "so are you starting to develop?" She "freaked out" and did not know what to say. She believed that she told him that she did not know. The appellant administered the injection, after which L.C. continued to be very nervous. She claimed that the appellant put his stuff away, came in front of her, and said "let's see how developed you are." He started to lift up her t-shirt, and she believed that she took over holding it up. According to L.C., the appellant then said "let's feel how developed you are." She alleged that the appellant then started touching her entire right breast with both of his hands, though she did not recall his touching the nipple. The appellant denied touching L.C.'s breast or performing any such examination.

Analysis

(i) L.H.

20The trial judge rejected the appellant's denials regarding the activities relating to L.H. She accepted L.H.'s evidence respecting what had happened and she found the appellant guilty of all of the charges relating to his inappropriate touching of L.H.

21In reaching her conclusions, however, the trial judge made certain findings that are problematic.

22First, on the evidence regarding the appellant's signing of the discharge report, the trial judge said, at para. 55:

The fact that Dr. Sanchez signed a detailed 3-page discharge report for L.H. in January, 1965, albeit on behalf of Dr. Singer, suggests that he was more involved in her care than he was willing to admit.

23The trial judge did not have any basis to make this conclusion. The appellant said that he merely signed the report on behalf of the responsible physician. Crown counsel did not challenge the appellant's evidence on this point, nor was there any evidence contradicting the appellant on it. Indeed, counsel for the respondent on the appeal conceded that there is nothing unusual in one professional signing a document on behalf of another professional.

24Second, in concluding that she believed the evidence of L.H., the trial judge said, at para. 50:

There was no tendency in her evidence to exaggerate or to amplify her evidence as she went along. There was no apparent motive to lie.

25It is recognized that whether a person does or does not have a motive to lie is not generally a reliable basis upon which to assess credibility. Certainly the absence of any apparent motive to lie is an unreliable marker of credibility. There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness' credibility. Consequently, it is generally an unhelpful factor in assessing credibility: R. v. L. (L.), 2009 ONCA 413, at para. 44.

26Third, the trial judge found that L.H.'s evidence was enhanced by the fact that she "raised the abuse, albeit in a vague way, with her friend at the time" (at para. 50) and yet failed to mention the fact that the friend was not called to confirm that had occurred. It is difficult to see how that uncorroborated evidence could provide enhancement for L.H.'s credibility.

27Fourth, the trial judge also rejected defence submissions about the importance of the absence of corroboration, commenting, "None is required. Given the way the alleged crimes were committed where the only persons present were doctor and patient, the potential for corroboration does not arise." While the trial judge is correct that corroboration is not necessary in such cases, she was not correct that the alleged crimes were committed where the only persons present were doctor and patient. On L.H.'s own version of events, a nurse walked in during the most serious of the assaults she described. There were other areas of potential corroboration as well, such as records confirming contact between the appellant and L.H. that never materialized. The trial judge inaccurately dispensed with the potential for corroboration, presenting the risk that she may not have given sufficient consideration to the undeniable fact that L.H.'s allegations stood alone.

28The appellant also took issue with the trial judge's rejection of his submission that it was implausible that a nurse would not have confronted the appellant or reported the assault after walking in during the sexual assault L.H. described. Specifically, the appellant is critical of the trial judge's conclusions, without evidence, about deference and the hierarchical environment in hospitals in 1965. I need not decide whether the trial judge was in error in reasoning as she did. It was the appellant who invited the trial judge to find the nurse's reported reaction in 1965 to be implausible, yet he did not lead any evidence relating to the likely response of a nurse at the time. If the appellant is correct and evidence is required to ground the relevant inference, given that there was no evidence on this point, the trial judge could not properly have acted on the appellant's invitation to draw an inference of implausibility. Any error she may have committed in this regard cannot contribute to a miscarriage of justice.

29On this point, I should mention that the appellant sought to introduce fresh evidence consisting of affidavits from two doctors on the subject of the culture and hierarchy at the HSC at the relevant time. I would not admit the fresh evidence. It does not satisfy the requirements set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. In particular, the evidence was, with due diligence, available at the time of trial and it was not potentially decisive of the result.

30Although individually none of the failings I have identified might prove fatal to the trial judge's credibility findings, collectively they raise serious concerns regarding the validity of the reasons upon which the trial judge accepted the evidence of L.H., especially given her treatment of the appellant's evidence. They are based, at least in part, on a misapprehension of the evidence that undermines the validity of the convictions. As Doherty J.A. said in R. v. Morrissey, 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 541:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. … This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

31In the light of these concerns, I am of the view that the convictions with respect to L.H. cannot stand.

(ii) L.C.

32The conviction as it relates to the incident with L.C. raises a different issue. In this instance, there was a single event that was alleged to have occurred in L.C.'s home during one of the weekly house calls that the appellant made to administer the allergy injection to L.C.

33In reaching her conclusion with respect to this offence, the trial judge said that the appellant's evidence that he agreed to make weekly house calls "with no ulterior purpose was not credible" (at para. 128). Yet the appellant was not contradicted at trial that, at the time, he regularly made house calls for a number of patients. Given his practice, all of those patients would have been children. There was simply no evidentiary foundation for the trial judge's conclusion that the appellant's willingness to make house calls to give injections to L.C. was the result of an ulterior motive.

34More significantly, however, is that the trial judge made the following finding, at para. 128:

His evidence of the number of housecalls he regularly made in his practice was not credible. I find that he exaggerated this evidence in an attempt to make it look less unusual that he would offer to make housecalls to L.C. in a non-emergency situation and on a weekly basis.

35This finding repeats the error regarding the uncontradicted evidence that the appellant routinely made house calls. Given that fact, there was no need for the appellant to have to make any effort to make the house calls "look less unusual". More troubling, however, is that the trial judge uses that fact to elevate her finding into a planned orchestration of events by the appellant to gain access to L.C. for the purpose of molesting her.

36Indeed, the trial judge said, at para. 137:

I find that Dr. Sanchez offered to make housecalls to L.C.'s home with the ulterior motive, if the opportunity arose, of molesting L.C.

37In effect, the trial judge appears to have drawn an inference of guilt from her disbelief of the appellant's evidence. It is an error of law to do so absent independent evidence that the accused person concocted a lie for the purpose of evading responsibility: R. v. O'Connor, 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263; R. v. Wood, 1989 CanLII 7193 (ON CA), 33 O.A.C. 260, leave to appeal refused 40 O.A.C. 240 (note); R. v. Sandhu, 1989 CanLII 7102 (ON CA), 35 O.A.C. 118.

38I would also note on this point that the trial judge again used the lack of a motive to lie to enhance the credibility of both L.C. and her mother.

39The trial judge could have rejected the appellant's evidence, including his evidence about the frequency of house calls, and accepted the evidence of L.C. on a proper basis. However, once again, the trial judge cannot do so on a foundation that is entirely inconsistent with the evidence. Nor was it proper for the trial judge to attribute a motive to the appellant that arises from a misunderstanding or misstatement of the evidence.

40Given these errors, I am of the view that the conviction with respect to L.C. also cannot stand.

41In light of that conclusion, I do not need to address the fresh evidence that the appellant sought to adduce from the appellant's two stepsons regarding his practice of making house calls during the relevant timeframe.

Conclusion

42I would allow the appeal and set aside the three convictions. I would order a new trial on those three counts. In the light of that conclusion, it is not necessary to consider the sentence appeal. Nevertheless, I want to recognize that counsel for the respondent quite fairly agreed that the sentence ought to be converted into a conditional sentence in the light of the appellant's age and medical condition. On that basis, counsel for the respondent did not contest the admission of the fresh evidence that the appellant sought to adduce relating to his medical condition.

43I assume that those same considerations may factor into the respondent's determination of whether a new trial is in the public interest.