COURT OF APPEAL FOR ONTARIO DATE: 20241217 DOCKET: COA-23-CR-0714
Lauwers, George and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
Georgios Polemidiotis Appellant
Counsel: David Humphrey and Jill Makepeace, for the appellant Samuel Greene, for the respondent
Heard: November 4, 2024
On appeal from the conviction entered on May 1, 2023 and the sentence imposed on December 19, 2023 by Justice Antonio Di Zio of the Ontario Court of Justice, sitting without a jury.
1The appellant appeals from conviction and seeks leave to appeal sentence on three counts of sexual assault. For the reasons that follow, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal.
A. Factual background
2The appellant was a physician and part-owner of four walk-in clinics. Two of the complainants, T.C. and A.F., were the appellant’s patients. The third complainant, Y.C., was an employee of the clinics and also an occasional patient.
(1) T.C.’s allegations
3T.C. was first referred to the appellant in July 2012. She testified to four incidents of sexual assault between September 29, 2016 and September 13, 2017. Each incident occurred in an examination room with the door locked.
4The first incident occurred in September 2016. The appellant locked the door to an examination room and positioned T.C. in front of the mirror behind the door. He approached her from behind, put his arms under her arms, lifted her shirt, pulled down her bra, and grabbed her breasts. On the second occasion, in October 2016, T.C. re-attended the clinic attempting to see another doctor, but was directed to see the appellant again. The appellant again stood T.C. in front of the mirror and grabbed her breasts. He also put his tongue in her ear. In the third incident, in January 2017, the appellant unzipped his pants, held T.C.’s hand, and put his erect penis in her hand. In the fourth incident, in September 2017, T.C. was in the examination room sitting on the examination table. The appellant entered, unzipped his pants, held her wrist, and put his erect penis in her hand. He then tried to put his penis in her vagina, but T.C. screamed and left the examination room. T.C. testified that during each incident the appellant made explicit sexual comments as he touched her, which she detailed in her evidence.
(2) A.F.’s allegations
5The appellant had been A.F.’s doctor since 2009. A.F. testified to two incidents of sexual assault between January 1, 2012 and December 31, 2014.
6A.F. testified that the appellant began complimenting her about her looks about one month before the first sexual incident, which occurred in 2012 or 2013. At the end of a medical visit, the appellant held A.F., told her he liked her, and kissed her on the mouth. A.F. struggled to recall how long the kiss lasted, but she testified that he asked to kiss her, and she agreed. A.F. testified that on another occasion in the same time period, the appellant stood behind her, held her breasts over her clothing, and said he was feeling good and happy. A.F. testified that she could feel his erection.
(3) Y.C.’s allegations
7Y.C. was employed at the walk-in clinics from 2014 to 2016 and again from 2017 to October 2019. She had started as a part-time employee, and by 2019 was a manager at the clinics. Y.C. had her own family physician, but she would occasionally ask the appellant and other physicians at the clinics to treat her for minor matters. Y.C. testified to an escalating series of touching by the appellant between January 1, 2018 and October 31, 2019 that began as non-sexual and consensual, but over time became sexual and without her consent. The consensual touching at the start involved the appellant giving her “side-hugs” and Y.C. sometimes asking the appellant to crack her back to relieve back pain, which amounted to a “bear hug”.
8Y.C. testified that the acts became non-consensual when the appellant started to slide his hand along the side of her breasts. The appellant would also approach Y.C. from behind, hug her, and put his arms over her breasts. Y.C. asked the appellant to stop. The appellant would promise to behave better, but then would continue to touch her without her consent. The appellant would approach Y.C. from behind, press himself against her, and make a reference to her feeling his erection. On some of these occasions, Y.C. could feel the appellant’s erection pressed against her. These incidents happened at the nurses station.
9The appellant would sometimes assault Y.C. in the examination room. He would position her so that she was facing the mirror behind the closed door, compliment her about her weight, pull back her shirt, and touch her breasts. On one occasion in the examination room, the appellant pulled down his pants to show Y.C. his erection under his loose-fitting boxer shorts. On two occasions in the examination room, the appellant took Y.C.’s hand and tried to put it on his erect penis, succeeding once. On both of those occasions he made sexual comments about his erection.
10The final incident occurred when Y.C. attended at the clinic to do some paperwork. She expected one of the other physicians (not the appellant) would be there. The appellant asked her to wait because he needed to speak to her. He closed the office door and started hugging Y.C. He tried to touch her breast under her shirt, but she slapped his hands down. The appellant also tried to kiss Y.C. on the lips, but she pushed him away. Y.C. testified that this incident stopped when Dr. Meglis, another physician at the clinic, walked into the room (but did not see the sexual touching). After the last incident, Y.C. resigned and later disclosed the sexual touching to two other employees and, ultimately, to Dr. Meglis.
(4) The appellant’s evidence
11The appellant testified and denied that he had touched any of the complainants sexually. With respect to Y.C., he said regular hugs took place, but he denied that they ever involved full body contact and that he touched her breasts. He denied that Y.C. ever told him to stop or physically resisted him. He said there were discussions between them about how the hugs would be interpreted by others.
12The appellant also gave extensive evidence, with the assistance of his medical records, about the medical visits he conducted with each of the complainants.
13In addition to the appellant denying the sexual touching, the defence challenged the credibility and the reliability of the complainants through cross-examination. The primary thrust of the challenges to the complainants’ credibility involved attempting to establish inconsistencies between the complainants’ trial evidence and their prior statements, as well as inconsistencies between the medical records kept by the appellant about each complainant and the complainants’ evidence about the timing and/or nature of their various visits to the clinic linked to the sexual assault allegations.
(5) The reasons for judgment
14The parties provided the trial judge with lengthy written closing submissions followed by very brief oral submissions. The trial judge provided his reasons for judgment orally, approximately five weeks after the oral closing submissions.
15The trial judge recognized that the case turned on his assessment of the credibility and reliability of the evidence of the complainants and the appellant as assessed against the Crown’s burden to prove the charges beyond a reasonable doubt. He considered various challenges raised by the defence to the credibility and reliability of the complainants’ evidence. He found that the evidence of each complainant was credible and reliable regarding the sexual touching. The trial judge’s finding that each complainant was credible and reliable regarding their accounts of the sexual touching was supported by cross-count similar act evidence which he permitted. He was not left in a reasonable doubt by the appellant’s evidence. He stated his final conclusion as follows:
[The appellant’s] evidence was generally believable and reliable on non-core issues, and on medical-notes-dependent testimony. I am not confident about his credibility on the core issues. On the core issues, I have concluded that the testimony of the three complainants is credible and strong. The similar act evidence further supports this conclusion. It convinces me that the three complainants have, in fact, been sexually assaulted.
Is there evidence when looking at the totality of the evidence which would cause me to have a reasonable doubt about guilt? Not on the core issues, in my view. The strength of the complainants’ evidence leads me to conclude that [the appellant’s] denials are not believable. I find him guilty as charged.
16I elaborate on the reasons for judgment further below when I consider the appellant’s argument that the reasons are insufficient to permit meaningful appellate review.
B. The conviction appeal
17The appellant raises numerous grounds of appeal, but focussed on three grounds in oral submissions: first, that the trial judge erred in admitting cross-count similar act evidence; second, that the reasons were insufficient to permit meaningful appellate review; and third, that the trial judge made errors in his assessment of credibility and reliability, including misapprehensions of the evidence and submissions, and failing to address central issues. I address the grounds which were the focus of oral submissions first.
(1) The trial judge did not err in admitting cross-count similar act evidence or in his use of it
18The appellant argues that the trial judge erred in admitting cross-count similar act evidence and also in how he used it. I do not agree. I address each argument in turn.
19First, with respect to admissibility, the appellant argues that the trial judge failed to assess the credibility and reliability of each complainant’s evidence at the admissibility stage, prior to balancing the probative value of the cross-count use against the prejudicial effect. In particular, the appellant argues that the trial judge failed to consider whether the evidence of each complainant (standing alone) “met the threshold of being reasonably capable of belief” set out in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 134, 136.
20I pause to note that the appellant does not allege any error in the trial judge’s analysis of the probative value of the cross-count similar act evidence. The trial judge found that, based on the similarity of a number of factors in the evidence of each complainant, the accounts of the complainants showed “sufficient similarities to indicate a particular method in a particular setting” and found the similarities were “sufficient to indicate the improbability of coincidence”. He further found that there was no air of reality to collusion between the complainants or tainting of their evidence. Nor does the appellant allege any error in the trial judge’s balancing of the probative value of the cross-count similar act evidence against its potential prejudicial effect. The trial judge specifically instructed himself not to reason by way of general disposition or propensity.
21The Crown application for admission of cross-count similar act evidence was filed prior to the commencement of the trial. By agreement of the parties, the application was blended with the trial. Submissions on the admissibility of the cross-count similar act evidence were made at the time of closing submissions in the trial. As a result, the trial judge gave his ruling on cross-count admissibility of similar act evidence in his reasons for judgment.
22The trial judge structured his reasons for judgment by first considering the credibility and reliability of each complainant individually and considering the appellant’s evidence on each count. Only after doing so, did he turn to the issue of admissibility of the similar act evidence.
23In the portion of the reasons addressing the admissibility of the cross-count similar act evidence, the trial judge did not consider as a discrete step in his analysis whether the evidence of each complainant was, standing alone, reasonably capable of belief. However, it is clear from his preceding analysis of the evidence of each complainant individually that he found that the evidence of each complainant exceeded the “reasonably capable of belief” threshold. In light of the procedure that blended the similar act admissibility voir dire with the trial, and the trial judge’s decision to provide his reasons on the similar fact application within his reasons for judgment, the admissibility ruling must be read in the context of the analysis of the complainants’ credibility that precedes it. As a result, I am not persuaded that the trial judge made the error alleged by the appellant.
24Second, the appellant argues that the trial judge erred in his application or use of the similar act evidence. The appellant argues that the trial judge admitted the similar act evidence as relevant to whether the complainants were credible, in general, and that this use lacks sufficient precision. The appellant argues that the similar act evidence was admissible only for whether the actus reus of the offences occurred (i.e., the sexual touching).
25I would reject the appellant’s submission that the trial judge erred in his use of the cross-count similar act evidence.
26Similar act evidence can be relevant to a complainant’s credibility in the sense of supporting the complainant’s evidence that the actus reus (here, sexual touching in the particular circumstances alleged) occurred based on the accused’s specific propensity to engage in the type of conduct that constitutes the actus reus. A trier of fact may use evidence of a situation-specific propensity to infer that the accused acted in conformity with the situation-specific propensity with the complainant. This use enhances a complainant’s credibility, but does not do so by general propensity reasoning: R. v. R.B. (2005), 77 O.R. (3d) 171 (C.A.), at paras. 10-11; R. v. Thomas (2004), 72 O.R. (3d) 401 (C.A.), at paras. 26, 54.
27This is exactly the use the trial judge made of the similar act evidence in this case. After considering a number of similarities between the complainants’ description of the appellant’s conduct with each of them, the trial judge concluded that there were “sufficient similarities to indicate a particular method in a particular setting” – in other words, evidence of a situation-specific propensity on the part of the appellant. Having ruled out collusion by or tainting of the complainants’ evidence, the trial judge was permitted to reason that the improbability of coincidence of the three complainants giving such similar accounts of the appellant’s conduct with each of them supported the inference that they were credible in their evidence of the sexual touching committed by the appellant – the actus reus. The trial judge properly used the cross-count similar act evidence as a factor in assessing the complainants’ credibility on the issue of whether the actus reus occurred (in his words, “to aid in establishing that the sexual assaults occurred and that the three complainants are credible”) based on the acts alleged by each complainant being consistent with a situation-specific propensity of the appellant.
(2) The reasons for judgment were sufficient
28The appellant argues that the reasons for judgment were insufficient. He raises two challenges to the reasons. First, he argues that the trial judge failed to address material inconsistencies and implausibilities in the evidence of the complainants. Second, the appellant argues that the trial judge’s reference to the written submissions of the parties without identifying which portions of them he relied on precludes meaningful appellate review.
29Reasons for judgment will be insufficient where they prevent meaningful appellate review. An appellate court must take a functional and contextual approach to reviewing a trial judge’s reasons. The issue on appeal is whether the reasons for judgment, read as a whole and in light of the live issues at trial, explain what the trial judge decided and why in a manner that permits effective appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25, 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 52-53.
30Trial judges are not required to address in their reasons all issues raised or all evidence presented at trial. However, the reasons must demonstrate that the trial judge understood and grappled with the critical issues, including contradictory evidence: R.E.M., at paras. 55-57.
31I address first the argument that the trial judge failed to address material inconsistencies and implausibilities in the complainants’ evidence. Having reviewed the trial judge’s reasons in the context of the evidence and the issues at trial, I am satisfied that the trial judge was alive to inconsistencies and implausibilities in the evidence of the complainants and explained in his reasons why he, nonetheless, was persuaded beyond a reasonable doubt that the appellant committed the offences. The reasons are sufficient to permit meaningful appellate review. They outline the trial judge’s path to the decision he reached and demonstrate that he grappled with the substance of the critical issues in this trial.
32The trial judge’s oral reasons are 28 pages of transcript. Of course, length alone does not make reasons sufficient. But I flag the length to underline that these were not conclusory reasons.
33The trial judge summarized the evidence of each of the complainants and the appellant. He also made reference to other evidence in the course of his analysis, such as the medical records and the evidence of Dr. Meglis. The trial judge specifically outlined a number of the defence challenges to the credibility and reliability of each complainant. In particular, he discussed inconsistencies in each of the complainants’ trial evidence as compared to their prior statements and as compared to the medical records kept by the appellant. The trial judge explained why he found that the challenges raised by the defence with respect to the evidence of the complainants did not undermine their credibility or reliability. He noted in particular, that while the passage of time and the multiple instances of sexual touching may have impacted the complainants’ recollection of some details, he nonetheless found the complainants credible on their evidence about the sexual touching. The trial judge found that the complainants were each consistent about the core of the allegations of sexual touching and that inconsistencies on peripheral issues, such as the details of medical visits, did not undermine their credibility or reliability. In addition, the trial judge found that the cross-count similar act evidence (discussed above) supported the credibility of the complainants’ evidence that the sexual touching happened.
34With respect to the appellant’s evidence, although the trial judge found the appellant credible and reliable on the medical issues – where he had notes – the trial judge did not find the appellant’s denial of the sexual touching credible and it did not leave him with a reasonable doubt.
35There can be no doubt from reading the reasons for judgment that the trial judge seized and addressed the substance of the issues in this trial. The reasons show that the trial judge understood that the credibility and reliability of the evidence of the complainants and the appellant as judged against the Crown’s burden to prove the charges beyond a reasonable doubt was the central issue he had to decide. He was alive to the defence challenge to the credibility and reliability of the evidence of the complainants and the basis for that challenge. He was aware of inconsistencies in the evidence of the complainants. He nonetheless found that the evidence of the complainants was sufficiently credible and reliable to prove the charges beyond a reasonable doubt and led him to reject the appellant’s evidence. He was persuaded beyond a reasonable doubt by the evidence of each complainant and the force of the similar act evidence. The trial judge’s reasons sufficiently explain why he reached that conclusion.
36The appellant argues that it is an error, when assessing alleged inconsistencies in a witness’ evidence, only to give weight to inconsistencies about the “core” of a witness’ evidence regarding the actus reus of the offence (here, the non-consensual sexual touching), and to dismiss anything else as “peripheral” and not important. According to the appellant, whether an inconsistency is material lies along a spectrum.
37I agree with the appellant that whether or not an inconsistency in a witness’ evidence (either with prior statements or with other evidence) is significant is a fact-specific issue. I also agree that inconsistencies on issues other than the actus reus are capable of being significant enough to give rise to concerns about the credibility or reliability of a particular witness. The assessment of the significance of any alleged inconsistency must be made in the context of the evidence and issues in the particular trial. However, it is well-established that a trial judge’s determination of the significance of inconsistencies in the evidence of a witness must be given considerable deference on appeal: R. v. Marshall, 2013 ONCA 113, at para. 11; R. v. Saleh, 2022 ONCA 735, at para. 22. In other words, absent legal error, it is up to a trial judge to assess the significance of inconsistencies to a witness’ credibility and/or reliability.
38I do not read the trial judge’s reasons as stating a general rule that if inconsistencies are not related to the actual sexual touching or actus reus of the offence, they cannot be considered significant. Rather, he considered the various inconsistencies argued by the defence at trial and concluded that they did not leave him with a reasonable doubt about the credibility or reliability of the evidence of the complainants that the appellant sexually assaulted them. There is no basis for this court to disturb the trial judge’s consideration of the significance of any inconsistencies in his assessment of the credibility and reliability of the evidence of the complainants.
39The second argument raised by the appellant in relation to sufficiency of reasons relies on a passage near the end of the reasons for judgment. The trial judge stated:
Throughout this judgment I have commented on [the appellant’s] defence as brought out through the cross-examination of the three complainants. I have also made comments about [the appellant’s] evidence. I appreciate that sometimes I have not provided detailed particulars or examples in support of my conclusions. These particulars are all included in the substantial written submissions provided in this case. They were absolutely thorough and helpful and appreciated.
40I accept that the trial judge’s general reference to the written submissions he received is not helpful in elucidating his reasons for the decision he reached. Because of the generality of the reference to the written submissions, it does not add anything to the reasoning the judge explained elsewhere in his reasons. However, as I have outlined above, the reasons as a whole sufficiently explain why the trial judge reached the decision he did.
41The findings made by the trial judge were open to him on the record. Read as a whole, the reasons for judgment sufficiently outline the trial judge’s path of reasoning to the decision he made and permit meaningful appellate review. I would reject this ground of appeal.
(3) The trial judge did not err in his assessment of credibility and reliability
42The appellant argues that the trial judge erred in law in failing to engage in a sufficiently rigorous analysis of issues of credibility and reliability in the face of conflicting evidence. He argues that the trial judge considered irrelevant factors, misapprehended evidence or submissions, and failed to address central issues.
43This ground of appeal overlaps significantly with the ground alleging insufficiency of reasons. The primary difference is that the appellant enumerated in his factum 16 specific areas where he argues there were flaws in the trial judge’s assessment of credibility and reliability. The appellant focused on four areas in oral submissions.
44As noted above, trial judges are not required to address every issue raised by a party or every piece of evidence in their reasons. The Supreme Court has cautioned against “finely parsing” a trial judge’s reasons in a search for error: G.F., at para. 69. This caution has particular force where what is challenged is a trial judge’s reasons on findings of credibility: R.E.M., at paras. 48-51, 56.
45I am not persuaded that the trial judge erred in his credibility and reliability analysis.
46I will address the four areas the appellant relied on in oral submissions. I have reordered them to address the points regarding each complainant together.
47First, the appellant argues that the trial judge failed to address inconsistencies in the evidence of A.F. about how long the kiss lasted in the first incident.
48I disagree. The trial judge specifically referred to A.F.’s inconsistency on this issue in his summary of her evidence:
She gave different estimates at different times on how long the kiss lasted. Her estimate ranged from a peck to one minute to five minutes. She explained that her emotions were all over the place as the reason for her difficulty recalling the length of the kiss.
49Clearly, in light of the trial judge’s ultimate conclusion accepting the evidence of A.F. as credible and reliable, he accepted her explanation for the discrepancy in her estimates of the length of the kiss. I note as well that the trial judge also made reference to the fact that A.F. was testifying about this event ten years after the fact.
50Second, the appellant argues that the trial judge failed to consider the inconsistency between A.F.’s evidence that she last saw the appellant in April 2013, and the medical records, which show that she saw him on 14 occasions after that time, three of which involved some form of physical examination.
51I do not accept that the trial judge failed to consider this issue. The trial judge discussed this issue in two places in his reasons. He specifically noted, with respect to the medical records documenting the 14 subsequent visits, “this contradicts [A.F.’s] prior testimony that she avoided the clinic when [the appellant] was working.” The trial judge found that the inconsistency between A.F.’s evidence and the medical records about her subsequent visits with the appellant was on a peripheral issue and did not impact her reliability on the core issue of the sexual assaults. The reasons show that the trial judge was alert to and considered the inconsistency between A.F.’s evidence about subsequent visits and the medical records. The trial judge did not err in his consideration of this issue.
52Third, the appellant argues that the trial did not consider T.C.’s conflation of the third and fourth incident in her examination-in-chief.
53I reject this argument. The trial judge was alive to the fact that there was some inconsistency in T.C.’s description of the third and fourth incident. He expressly discussed this issue in his reasons, finding that she initially “conflated” the third and fourth incidents in her evidence and that after having her memory refreshed she distinguished between the two incidents. He also considered T.C.’s explanation for the confusion based on a subsequent motor vehicle collision that impacted her memory. The trial judge did not accept the defence argument that this was an inconsistency that should lead him to find T.C.’s evidence incredible or unreliable. That finding was open to the trial judge and does not reflect error.
54Fourth, the appellant argues that the trial judge failed to consider the inconsistency between T.C.’s evidence that after the fourth incident of sexual touching she never saw the appellant again and the medical records. T.C. testified that up to the fourth incident, she had continued to see the appellant despite the sexual assaults because she required doctor’s notes for a work issue and that another doctor at the clinic had told her she had to obtain the notes from the appellant. After the fourth incident, she no longer needed doctor’s notes for work. T.C. testified that she tried to avoid contact with the appellant and to find a new physician. However, the clinic medical records show she saw the appellant on five subsequent occasions.
55I do not accept this argument. The trial judge specifically addressed in his reasons T.C.’s evidence that she did not return to see the appellant again after the fourth incident and the fact that her evidence on this issue was inconsistent with the medical records, which documented five subsequent visits. The trial judge also discussed T.C.’s explanation that she did not recall the subsequent visits and her memory loss due to the subsequent motor vehicle collision. In addition, as noted above, the trial judge recognized, more generally, that T.C. and the other complainants were not always reliable about the details of medical issues and visits documented in the medical records. He found that this did not detract from the credibility and reliability of their evidence about the sexual assaults. Having considered these issues, the trial judge accepted T.C.’s evidence about the sexual assaults as credible and reliable. That finding was open to the trial judge and does not reflect error.
56I do not propose to review individually the balance of the 16 areas the appellant alleges show errors in the trial judge’s credibility and reliability analysis. Having reviewed all of them, in my view, the arguments raised involve disagreement with how the trial judge assessed the significance of inconsistencies in the evidence of the complainants, disagreement with how he weighed certain evidence, or allegations of error from the failure to refer to particular aspects of the evidence. The trial judge was entitled to assess the significance of inconsistencies in the complainants’ evidence and the weight to be given to evidence. He was not required to refer to every piece of evidence in his reasons. The appellant has failed to show error in the trial judge’s credibility and reliability analysis.
(4) The trial judge did not impose an obligation on the defence to prove a motive to fabricate
57The appellant argues that the trial judge shifted the burden of proof to the appellant in his consideration of the absence of a motive to fabricate on the part of Y.C. and A.F. The appellant accepts that absence of a motive to fabricate is a factor that a trial judge may consider in assessing credibility, but he argues that the reasons do not show that the trial judge was alive to the limits on the use of such evidence.
58I would reject this submission.
59Trial judges must consider issues relating to motive to fabricate with care. Trial judges are permitted to consider an absence of evidence of a motive to fabricate, in the context of the evidence as a whole, as a factor relevant to credibility: R. v. Gerrard, 2022 SCC 13, at para. 4; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38-44. As explained by Moldaver J. in Gerrard, at para. 4: “Absence of evidence of a motive to lie, or the existence of evidence disproving a particular motive to lie, is a common sense factor that suggests a witness may be more truthful because they do not have a reason to lie.”
60However, in considering an absence of evidence of a motive to fabricate, trial judges must take care to avoid three impermissible lines of reasoning. First, they must not equate an absence of evidence of a motive to fabricate on the part of a witness (i.e., no evidence either way) with a proven lack of motive to fabricate (i.e., positive evidence showing that no motive to fabricate exists): Gerrard, at para. 4; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 21-23; R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 121. The distinction is important because sometimes the motives of a witness remain hidden: Bartholomew, at para. 22; Batte, at para. 125; Ignacio, at paras. 31-32.
61Second, trial judges must not impose a burden on an accused to show that a complainant has a motive to fabricate an allegation because that would improperly shift the burden of proof from the Crown to the accused: Gerrard, at para. 4; Batte, at para. 121.
62Third, trial judges must not reason that the absence of evidence of a motive to fabricate conclusively establishes that a witness is telling the truth. Presence or absence of a motive to fabricate is only one factor to be considered in assessing credibility, and must be considered in the context of the evidence as a whole: Batte, at para. 121; Bartholomew, at para. 22.
63The appellant relies on two brief references in the trial judge’s reasons in support of this argument. With respect to Y.C., near the end of his assessment of her credibility, the trial judge stated:
I am not aware of any evidence of an ulterior motive for YC to make up a story alleging sexual assaults against [the appellant]. I am not aware of any evidence that would suggest that her evidence was tainted, or of anybody putting her up to make up the allegations.
64Similarly, with respect to A.F., the trial judge stated:
I also do not see any evidence of tainting of evidence or any improper influence causing her to make the allegations in question.
65I am not persuaded that the trial judge made any of the errors discussed in the caselaw in his consideration of the evidence of Y.C. and A.F. Although the trial judge did not expressly instruct himself on the legal principles outlined above, the references in his reasons to the absence of evidence of a motive to fabricate within his broader assessment of the credibility of Y.C. and A.F. do not show that he engaged in any impermissible reasoning. In particular, I note that both references are phrased as absences of evidence, rather than a positive finding of lack of motive to fabricate. As noted above, they are situated within the context of the trial judge considering multiple factors in his credibility assessment of both witnesses.
66The trial judge did not impose a burden on the appellant to show that either Y.C. or A.F. had a motive to fabricate the allegations. Nor did he equate the absence of evidence of a motive to fabricate with a proven lack of motive to fabricate, or reason that the absence of a motive to fabricate conclusively proved that Y.C. and A.F. were truthful witnesses. Rather, as he was entitled to, the trial judge considered the absence of evidence of a motive to fabricate on the part of either Y.C. or A.F., within the context of the evidence as a whole, as one factor among many relevant to assessing each of their credibility.
(5) The trial judge did not err in his treatment of a prior consistent statement of the complainant Y.C.
67The appellant argues that, in rejecting the defence submission that the final incident described by Y.C. was false, the trial judge erred by relying on a prior consistent statement by Y.C. to Dr. Meglis as independent evidence capable of confirming Y.C.’s evidence.
68The evidence relevant to this issue can be briefly summarized. As noted above, Y.C. alleged a series of escalating touching by the appellant. In the final incident described by Y.C., she alleged that during a medical appointment, the appellant started to hug her and tried to touch her breast under her shirt, but she slapped his hands down. She testified that the appellant also tried to kiss her, but she pushed him away. She testified that after she pushed the appellant away, Dr. Meglis walked in (but did not witness the sexual assault). Y.C. testified that she resigned after the last incident. Although she did not disclose the sexual assaults in her resignation letter, she testified that she disclosed the sexual assaults to Dr. Meglis soon after her resignation, and also told him that he had almost walked in on them on the last occasion.
69Dr. Meglis testified that he met with Y.C. shortly after she resigned, and she disclosed to him that the appellant had sexually harassed her and sexually assaulted her. Dr. Meglis specifically recalled Y.C. telling him that he had almost walked in on her and the appellant in the back office during a sexual assault. Dr. Meglis could not recall if Y.C. made the statement about him almost walking in during the same conversation as the one in which she disclosed the sexual assaults. But it was soon after the initial conversation, “on the heels” of it.
70The passage of the reasons relied on by the appellant in making this argument comes near the end of the trial judge’s assessment of the credibility of Y.C.’s evidence. The trial judge stated:
The last event when Dr. Meglis almost caught them in the act when he walked in was not a made-up story. Such allegation is rebutted by Dr. Meglis when he testified that YC told him that he almost caught them in the act. Yes, the final event did happen.
71The parties do not disagree about the applicable law. Y.C.’s prior consistent statement to Dr. Meglis that he had almost walked in on her and the appellant during the last sexual assault could not be used to corroborate her evidence in the sense of using it to find her more credible because she had made the same allegation earlier. However, it was admissible to rebut an allegation of recent fabrication: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5, 11-12; R. v. I.W., 2022 ONCA 251, 412 C.C.C. (3D) 542, at paras. 38-39. Thus, this ground turns on what use the trial judge made of Y.C.’s prior consistent statement to Dr. Meglis.
72I am not persuaded that the trial judge used Y.C.’s prior consistent statement to Dr. Meglis as independent confirmatory evidence. Rather, he used the prior consistent statement to Dr. Meglis to rebut the allegation of recent fabrication made by the defence in relation to Y.C.’s allegations. At trial, the defence was not simply that Y.C.’s allegations were fabricated. The defence alleged that Y.C. fabricated the allegations sometime after being contacted by investigators for the College of Physicians and Surgeons (the “CPSO”) and directed to a website with information about allegations that the appellant had sexually abused patients. The defence at trial also challenged Y.C. about not having mentioned in her statement to CPSO investigators that Dr. Meglis had almost walked in during the final incident. Thus, the inference suggested by the defence through cross-examination of Y.C. and in submissions was that she made up the detail of Dr. Meglis almost walking in between giving the statement to the CPSO and testifying at trial.
73In this context, Dr. Meglis’ evidence about Y.C.’s prior consistent statement directly rebutted the defence allegation of recent fabrication. Y.C.’s prior consistent statement to Dr. Meglis that the appellant had sexually harassed and sexually assaulted her and that Dr. Meglis had almost walked in on the last assault was made by Y.C. soon after the last alleged sexual assault, long before Y.C. was contacted by the CPSO.
74Although the trial judge did not use the language of rebutting “recent fabrication”, his reasons show that this was the use he made of Y.C.’s prior consistent statement to Dr. Meglis. The trial judge found that the prior statement “rebutted” the “allegation” of a “made up story”.
75The trial judge’s reasons on this issue would have been clearer if he had expressly referred to “recent fabrication”. But in the context of the issues raised at trial – in particular, the clear allegation of recent fabrication with respect to Y.C.’s evidence that Dr. Meglis almost walked in on the last sexual assault – and the reasons as a whole, I am satisfied that there was no legal error. The trial judge used Y.C.’s prior consistent statement to Dr. Meglis only to rebut the allegation of recent fabrication with respect to her evidence that Dr. Meglis almost walked in on the last assault. The appellant has not discharged his burden to demonstrate error: G.F., at paras. 78-79.
C. The sentence appeal
76The trial judge sentenced the appellant to a three-and-a-half-year sentence of imprisonment. He found that a three-and-a-half-year sentence was appropriate applying the totality principle. He imposed the same sentence, three-and-a-half-years imprisonment, on each count, all running concurrently. He explained his reasons for proceeding in this manner as follows: [2]
I am taking a global approach to this sentence instead of imposing three consecutive sentences. If I had imposed three consecutive sentences, I would have assessed two to three years each in the case of TC and YC and a lesser amount for AF. The total would have been too harsh and much more than would be proportional in this case.
77The appellant concedes that the total sentence is not unfit. He does not allege any error in the trial judge’s consideration of the aggravating and mitigating circumstances or the circumstances of the offence and the offender. However, he argues that the trial judge erred by imposing a three-and-half-year sentence of imprisonment on the A.F. count because that sentence was disproportionate to the gravity of the conduct against A.F.
78I would reject this ground of appeal. The trial judge’s application of the totality principle shows no error in principle. Further, even if the trial judge had begun with individual sentences for each count, rather than with the global total, it would not have had an impact on the total sentence imposed.
79At the sentencing hearing, the Crown sought a global sentence of four to five-years imprisonment. The appellant sought a sentence in the range of 18-months imprisonment. Trial counsel for the appellant took the position before the trial judge that he could either impose the same sentence (in the range of 18 months) for all three counts, to run concurrently, or impose an 18-month sentence for the offence involving T.C. and something less for the offences involving A.F. and Y.C., and still impose the three sentences concurrently. The Crown did not address whether the sentences should be concurrent or consecutive in its initial submissions. In reply, the Crown said the sentences should be consecutive, but offered no submissions as to the breakdown. In sum, the submissions before the trial judge focused on what quantum of global sentence would reflect the gravity of the conduct as a whole, rather than starting with what sentence was appropriate for each count and then turning to totality.
80The totality principle requires that where a court is sentencing an offender for multiple counts, the total sentence not exceed the offender’s overall culpability: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 157; Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 718.2(c). In Friesen, the Supreme Court recognized that Canadian courts have employed different methodologies in applying the totality principle. In some provinces, judges consider a fit sentence for each count before considering totality; in other provinces, judges start by determining an overall fit sentence and then impose individual sentences to achieve the total: Friesen, at para. 157. Under both approaches, a combination of length of individual sentence and/or concurrent or consecutive sentences is used to give effect to the totality principle.
81Recently, in R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 91-93, 99, the Supreme Court held that in sentencing for multiple counts, the preferred approach is for the sentencing judge to begin by determining the appropriate sentence for each offence individually; then, to consider whether the sentences should be concurrent or consecutive (or some combination); and finally, to consider totality, adjusting the individual sentences and/or whether they will be served consecutively or concurrently in order to achieve a fit total sentence.
82In Bertrand Marchand, the Supreme Court did not hold that starting with the global sentence and then working back to the individual sentences to achieve that totality constitutes error in principle: R. v. C.B., 2024 ONCA 160, at para. 43; R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.), at p. 279; R. v. Ahmed, 2017 ONCA 76, 346 C.C.C. (3d) 403, at paras. 79-88; R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at paras. 78-79; R. v. R.B., 2013 ONCA 36, 114 O.R. (3d) 465, at para. 30.
83The trial judge’s reasons show that he turned his mind to the totality principle and found that the appropriate global sentence for all of the offending conduct was three-and-half-years imprisonment. He did not err in principle in choosing to begin with the global sentence that he found was appropriate to address the appellant’s overall culpability.
84Further, even if the trial judge had started by assigning individual sentences to each count before considering totality, it would not have had a material impact on the sentence imposed. The appellant concedes on appeal that the total sentence imposed was not unfit. As noted above, the trial judge expressly turned his mind to the totality principle and found that the appropriate global sentence for all of the offending conduct was three-and-half-years imprisonment. Had the trial judge started with the appropriate sentence for each count, it would have changed the way the sentences were allotted among the counts, but not the total sentence imposed.
D. Disposition
85I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal.
Released: December 17, 2024 “P.D.L.” “J. Copeland J.A.” “I agree. P. Lauwers J.A.” “I agree. J. George J.A.”
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
2This passage is at the end of the reasons for sentence, and follows the trial judge’s consideration of the relevant aggravating and mitigating circumstances, the circumstances of the offence and the offender, and relevant case law.
