WARNING

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Gordon, 2022 ONCJ 381

DATE: 2022·08·23

BETWEEN:

Her Majesty the Queen

— and —

Allan Gordon

Judgment

NOTE: This judgment has been edited to comply with the publication order. Distribution of this decision will not violate the terms of the publication order.

J. Flaherty ............................................................................................. Counsel for the Crown

D. Humphrey, J. Makepeace........................................................... Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Gordon

I. Introduction 4

II. The Criminal Law Framework 6

1. The Presumption of Innocence 7

2. The Guidance of W.(D.) 7

3. Reasonable Doubt 7

III. Credibility and Reliability of the Complainant 8

A. Introduction 8

B. Other Allegations of Sexual Misconduct 9

C. Improbability 9

D. Delayed Disclosure 10

E. A Relationship of Dependency 11

F. The Newspaper Articles 11

G. The Newspaper Articles as a Credibility Concern 12

1. No Specific Contact Information 12

2. The Complainant’s Refusal to Name her Friend 13

a) Introduction 13

b) The Refusal to Answer Questions 13

c) The “Friend Explanation” 14

(1) No Name to Provide 14

(2) Personal Investigation 15

(3) The Panic Attack 15

d) Conclusion – The Friend Issue and Panic Attack 16

H. The Complainant’s Notebook Entries and Diagram 17

1. Introduction 17

2. The Sexual Assault Incident 17

3. Relevance 18

4. Timing of the Preparation of Notes 18

5. The Notebooks Were Unavailable 18

6. The Complainant’s Testimonial Response 19

7. Conclusion – Notebooks 20

I. Post Sexual Assault Incident Behaviour – The Physical Presence of Nurses 21

IV. Conclusion 22

I. Introduction

1The defendant is charged with one count of sexual assault on his patient.

2In December 2012, the complainant attended a medical appointment with the defendant. The defendant informed the complainant that a second doctor, a medical intern studying gynecology, would also attend the appointment. The medical intern led the appointment and physical examination. The defendant was present. After the examination, both doctors left the examination room.

3After the examination, the complainant was experiencing so much pain in her hands and feet that that she decided to rest for a few minutes on the examination table. At some point during this rest period, the defendant entered the examination room and indicated that he wanted to check the complainant’s leg. It is alleged that under this pretext, the defendant forcefully inserted his hand into her vagina without gloves or lubricant.

4No defence evidence was led at trial.

5The Crown Attorney and Defence counsel agree that the complainant’s testimony, if accepted, comprehensively addresses the elements of the offence of sexual assault. The prosecution has proven the absence of consent beyond a reasonable doubt. There is no issue of mistaken belief in communicated consent.

6During submissions at the end of trial, the Crown Attorney and Defence counsel narrowed the focus to several issues around the credibility and reliability of the complainant. The Crown position is that the complaint was a reliable historian and supported the allegations with compelling testimony. The clear and definitive Defence position at trial was that the complainant had fabricated the entire sexual assault incident. The Defence position is that the defendant never returned to the examination room after the initial examination led by the medical intern. No sexual assault occurred.

7The complainant in this trial has endured a lifetime of chronic pain. During that difficult life, she engaged a multitude of treating physicians in an effort to address her pain management needs. These efforts culminated in the complainant’s arrival at the defendant’s renowned pain management clinic in Toronto. The complainant viewed the defendant as an expert in the area of pain management. She held out hope that he might assist her, where other doctors had failed. Given the difficulties the complainant has encountered in her life, it is no chore to sympathize with her courageous battle against chronic pain and her search for some peace, some respite, from the pain.

8In a criminal trial, the prosecution must prove the essential elements of the offence beyond a reasonable doubt. The role of a criminal court judge is to assess the evidence adduced by the prosecution against this high standard. If there is any reasonable doubt in a criminal trial, the benefit of that doubt must go to the defendant.

9The complainant presented powerful testimony in support of the allegation before the court. At the close of the prosecution’s case, the Crown Attorney had provided a strong foundation for the guilt of the defendant.

10But a criminal conviction requires a trial judge to be convinced beyond a reasonable doubt as to the guilt of the defendant.

11A criminal trial must remain focused on the evidentiary record and a proper assessment of the evidence. The objective assessment of evidence must not be swayed by an obviously sympathetic complainant. A court must not be unduly biased by evidence supporting a terrible breach of public trust.

12During cross-examination, this foundation was eroded by significant credibility and reliability issues with the complainant’s evidence. These issues were clearly illuminated. The conduct of the Defence case was exceedingly fair to the complainant. The complainant was given every opportunity to address credibility and reliability issues.

13I decline to make a finding that the complainant lied or fabricated the sexual assault incident. Were that my finding, I would have the responsibility as a judge to expressly say so. But no trial judge could ignore several credibility and reliability issues associated with the evidence of the complainant. Those credibility and reliability issues erode my confidence in the powerful evidence provided by the complainant. I am in a state of reasonable doubt.

14A trial judge has a responsibility to explain the path of reasoning in support of a decision. Rather than spend several hours providing an oral decision, I have fully explained my analysis of the credibility and reliability issues in a written judgment filed with the Information today.

15In this democratic country, our criminal law mandates that a judge render a finding of guilt where the prosecution has proven the case beyond a reasonable doubt. It also mandates that a trial judge acquit a defendant if there exists any reasonable doubt. The prosecution has failed to establish the defendant’s guilt beyond a reasonable doubt. The evidence does not meet the high test for a criminal conviction. The defendant is found not guilty.

II. The Criminal Law Framework

16There are several important criminal law principles governing an assessment of the evidence in a criminal trial.

1. The Presumption of Innocence

17The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with a presumption of innocence. The presumption does not shift during the trial. The presumption is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

2. The Guidance of W.(D.)

18The decision in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 [W.(D.)] sets out the oft-cited three-step process for analyzing credibility in the face of conflicting evidence between prosecution and defence witnesses. The principles promoted by W.(D.) have been extended by subsequent caselaw. While the guidance is perhaps most often applied in trials where there is conflicting testimony between prosecution and defence witnesses, it is important to recognize that the W.(D.) test applies to the entire evidentiary record without regard for whether the evidence was adduced by the Crown or Defence: (See the authorities cited in R. v. Smith, 2020 ONCA 782, at para. 12; R. v. Debassige, 2021 ONCA 484, at paras. 127-130 [Debassige].)

19In assessing the criminal standard of proof beyond a reasonable doubt, trial judges have a responsibility to consider the entire record at trial and to resolve material issues relevant to the credibility analysis: Smith, at paras. 26, 30, 32.

20Where there are material credibility findings to address, the concept of reasonable doubt must be addressed in light of the entire record at trial: Debassige, at paras. 127-130; R. v. Marki, 2021 ONCA 83, at paras. 23,25; R. v. Smith, 2020 ONCA 782, at para. 7 [Smith]; R. v. Charlton, 2019 ONCA 400, at para. 45; R. v. Kirlew, 2017 ONCA 171, at para. 17; R. v. Dayes, 2013 ONCA 614, at para. 52; R. v. B.D., 2011 ONCA 51, at para. 114.

21In this fashion, the principles in W.(D.) guide trial judges in the proper analysis of the evidentiary record in a criminal trial even where the defendant does not testify.

3. Reasonable Doubt

22The concept of reasonable doubt is a key consideration in this case.

23Reasonable doubt is based on “reason and common sense,” is not “imaginary or frivolous,” does not “involve proof to an absolute certainty,” and must be “logically connected to the evidence or absence of evidence.”: R. v. Villaroman, 2016 SCC 33, at paras. 28,36 [Villaroman].

24The reasonable doubt standard applies to the final determination of guilt or innocence – it is not applied piecemeal to individual pieces of evidence or categories of evidence: R. v. Menard, 1998 790 (SCC), [1998] 2 S.C.R. 109; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345.

25The defendant bears no burden to prove foundational facts in support of an inference of innocence: Villaroman, at para. 35; R. v. Khela, 2009 SCC 4. The defendant is not required to adduce evidence providing foundational support for a “finding” of reasonable doubt: Villaroman, at para. 28. A defendant is free to point to any evidence, or the absence of evidence, in support of reasonable doubt.

26If, at the end of a criminal trial, the trial judge is in a state of reasonable doubt, this means that the prosecution has not established guilt to the required criminal standard of proof. The only available finding is an acquittal.

III. Credibility and Reliability of the Complainant

A. Introduction

27As outlined above, trial judges have a responsibility to clearly explain the reasoning behind credibility and reliability assessments or risk reversible error: R. v. Vuradin, 2013 SCC 38, at para. 11; R. v. Dinardo, 2008 SCC 24, at para. 26 [Dinardo]; R. v. Braich, 2002 SCC 27, at para. 23.

28In this case, the central issue is the credibility and reliability of the only witness at trial – the complainant. In R. v. C.(H.), 2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability, at para. 41:

Credibility and reliability are different. 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. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

29Recently, the Supreme Court of Canada provided further guidance in R. v. G.F., 2021 SCC 20, at paragraph 82:

Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness' ability to observe, recall, and recount events accurately, and referring to credibility as the witness' sincerity or honesty: see, e.g., R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words "credibility" and "reliability" but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. A trial judge's determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability: Vuradin, at para. 16. Often, the term "credibility" is used in this broader sense to mean the believability of the evidence and it necessarily includes both truthfulness and accuracy: McWilliams' Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 3, at pp. 30-1 and 30-2. For example, Black's Law Dictionary (11th ed. 2019), at p. 463, defines credibility as "[t]he quality that makes something (as a witness or some evidence) worthy of belief" and model jury instructions include both truthfulness and accuracy within "credibility" assessments: G. A. Ferguson and M. R. Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose-leaf)). Provided trial judges turn their mind to these considerations, there is no requirement that they utter the word "reliable".

30In assessing the testimony provided by the complainant, I am entitled to believe all of the testimony, none of the testimony, or portions of the testimony: R. v. C.P., 2021 SCC 19, at para. 35; R. v. Le, 2019 SCC 34, at para. 266; R. v. W.H., 2013 SCC 22, at para. 32[W.H.]; R. v. Francois, 1994 52 (SCC), [1994] 2 S.C.R. 827, at para. 14.

31As the trial judge, I am also free to decide what weight to assign to specific areas of the evidence: W.H., at para 32; R. v. B.H., 2015 ONCA 642, at para 22; R. v. Howe, 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44.

32With this framework in mind, I will analyse all of the relevant credibility and reliability issues (or factors) at trial and explain why I am in a state of reasonable doubt.

B. Other Allegations of Sexual Misconduct

33It is clear from the conduct of the trial that the defendant is alleged to have committed other sexual assaults. At the outset of this judgment, it is important to clearly address this issue.

34The defendant was facing a single count of sexual assault involving one complainant in this trial. A single complainant was called as the prosecution witness. No other allegations of sexual assault were litigated. There was no application seeking to admit other discreditable conduct. As such, the fact that there existed other allegations was irrelevant to the analysis in this trial. I simply disabused my mind of any other alleged circumstance as was my obligation.

C. Improbability

35The Defence submits that the notion that the defendant would return to the examination room and commit the offence is improbable given the risks involved in such behaviour. I do not have any evidence from the defendant. No good or bad character evidence has been adduced at trial. I should not presumptively assign credit to the defendant – a presumption of good character – simply based on his profession or stature. The defendant is entitled to the presumption of innocence, not a presumption that he would act properly because of his station in life.

36The second argument from the Defence – that it was improbable that the defendant could have known that the complainant would remain undressed and lying on the examination table after the end of her appointment – is worthy of more weight.

37After the examination, both doctors left the examination room. According to the complainant, she remained prone on the examination table recovering for several minutes after the end of the appointment. The notion that most patients would be assembling clothing and preparing to leave the examination room at the end of an appointment is not infused with a good character presumption. I acknowledge the Defence submission that the defendant would have had no reasonable basis to assume the complainant remained in a state of undress several minutes after the end of the examination.

D. Delayed Disclosure

38The sexual assault incident occurred in December of 2012. The complainant continued to attend appointments with the defendant and receive treatment from him until he was no longer permitted to practice as a licensed physician. The complainant did not initiate steps to cause the professional association to end. The evidence demonstrates that the complainant continued to receive treatment from December 2012 until June 2017. The complainant first reported the incident to the police in February 2020. Her interview with the Toronto Police Service was in March 2020.

39I do not find the fact that the complainant continued to attend appointments with the defendant or the delay in disclosing the sexual assault incident to the police to be an important factor in assessing the complainant’s credibility. Sexual assault survivors respond in a variety of ways to the infliction of abuse. No presumptive adverse inference arises from a sexual assault complainant’s post-offence behaviour including a delay in disclosure: R. v. D.D., 2000 SCC 43, at para. 65; R. v. A.R.J.D., 2018 SCC 6, at para. 2; R. W.O., 2020 ONCA 392. Further, I am not required to consider a special self-instruction based on delayed disclosure: (See the reasons of Laskin J. in R. v. H.P.S., 2012 ONCA 117, at para. 71 and R. v. Sanichar, 2013 SCC 4 endorsing Laskin J.’s dissent). For example, in some cases the perpetrator is a family member, and the complainant remains in proximity to the person. In other cases, complainants have needed time to process the event, and this has lead to delay. In still other cases, complainant’s report the sexual assault minutes after the event. There is no rule. What is required is a contextual consideration of the circumstances devoid of stereotypical reasoning sourced in notorious “rape myths.” To be clear, criminal courts must guard against the invasion of stereotypical reasoning that purports to be sourced in common sense, but is in fact, based on myths about how sexual assault complainants should act: R. v. Steele, 2021 ONCA 186; R. v. J.C., 2021 ONCA 131.

E. A Relationship of Dependency

40The complainant explained that having regard to the level of pain, and the prominent status of the defendant as a medical practitioner well-versed in pain management, she had a stark choice – continue treatment, or end her life.

41The complainant has spent the majority of her live consulting with a multitude of medical professionals. Relief from the constant pain has been fleeting. I accept the complainant’s evidence that she believed that she had to press on with the treatment program run by the defendant. The complainant held the perception that the defendant was a prominent leader in the specialty of pain management. She testified that she considered reporting the defendant and had formed the intent to report him one day. She determined that she would go to the police eventually – after having been prepared by adequate counselling. The complainant’s evidence on this issue was powerful. I accept her testimony. During submissions, the Crown Attorney characterized the relationship as one of dependency. I agree with this characterization.

42I must clearly state that I address this issue not because the complainant must explain her continued treatment as a credibility issue. I address this record because the dependency relationship was a prominent factor underpinning the complainant’s evidence overall.

F. The Newspaper Articles

43Given the delayed disclosure, Defence counsel cross-examined the complainant about the impetus for her coming forward to the police. The examination included the timing of her disclosure to the police against published news reports about the defendant by a national newspaper. The focus of the cross-examination concerned the possibility that the complainant’s recount of the sexual assault incident was contaminated by exposure to details set out in several newspaper articles.¹

44Based on the evidentiary record adduced at trial, there is no foundation for a finding that the complainant was so tainted. The complainant testified that she did not read the details contained in any newspaper articles. As it concerned the issue of potential taint – the complainant was clear that she was not interested in the details of the articles as she was not interested in the experiences of other persons who had made claims about her doctor. The complainant was specific, explicit, clear, and definitive in this area of examination.

45No articles were presented to the complainant for comment. No newspaper articles have been filed as exhibits at trial. Given this record, I can not compare and contrast the complainant’s version of events with other versions presented in media articles. It would be speculative to find that there were details in the newspaper articles and that these details tainted the complainant. I accepted the complainant’s initial position that she was not tainted by details in any articles.²

46This is where the analysis of the “newspaper article issue” could have ended as an actionable credibility issue. But the complainant’s approach to the issue provoked additional credibility concerns.

G. The Newspaper Articles as a Credibility Concern

47The complainant testified that her disclosure to the police was preceded by her receipt of a Globe and Mail article that was emailed to her by a friend. She testified that she took note of the headline of the article and then skimmed the content of the article for the purpose of acquiring a contact name from the Toronto Police Service. The complainant also testified that her friend alerted her to the content of the enclosed article by referencing the fact that the article concerned her treating doctor.

48There were three issues raised by the Defence as it concerned this issue:

1. Contrary to the testimony of the complainant there was no specific contact information for police officers in any of the articles;

2. The complainant’s refusal to name her friend; and,

3. The complainant’s obstructive approach to the issue of the newspaper articles.

1. No Specific Contact Information

49The complainant testified that she obtained a contact name in the article. Defence counsel suggested during cross-examination that none of the articles in fact contained a contact name or reference. The questions posed by counsel are not evidence – the responses are. The force of this Defence position was lessened by the fact that the complainant was not directly confronted with any of the articles to challenge her assertion. I recognize that this was made somewhat difficult for the Defence given the complainant could not (or would not) provide any information to assist with identifying which of several articles she had received from her friend. But, in the final analysis, none of the articles are in evidence.

50Notwithstanding the lack of evidence presented in newspaper articles, it is important that when confronted with Defence counsel’s assertion in this regard, the complainant resiled from her initial testimony that she acquired the contact name of a specific police detective. The complainant softened her testimony, and merely testified that she must have obtained some sort of contact-related information.

2. The Complainant’s Refusal to Name her Friend

a) Introduction

51During cross-examination Defence counsel asked the complainant for the name of the friend who sent the newspaper article to her. The complainant refused to the provide the name. The Crown Attorney “objected” and submitted to the Court that the issue was relevant and material. The “objection” was obviously intended to telegraph to the complainant that the Crown agreed that she should answer the question. The complainant still refused. Finally, Defence counsel asked the Court to formally direct the complainant to answer the question.

52In my role as the trial judge, I explained to the complainant the role of witnesses and the responsibilities of witnesses in a criminal proceeding. I explained that there had been no objection to the question by the Crown, and the Court had not intervened to prevent Defence counsel from asking the question. I explained to the complainant that the Crown Attorney, through his “objection,” was really telling her she should answer the question. Still the complainant refused to answer the question.

53While I recognized that the complainant’s conduct could be viewed as contemptuous, I declined to begin by framing the circumstances as one of contempt of court. Instead, I offered the complainant the opportunity to obtain independent legal advice. The complainant wished the opportunity. The case was adjourned for her to receive the benefit of independent legal advice.

54Upon resuming the trial a month later, the complainant testified that there was no friend. No one had sent her the article. She speculated that she must have researched the issue herself. The complainant further explained that she gave the explanation about a friend sending her the article because the pressure of cross-examination from Defence counsel provoked a panic attack.³

b) The Refusal to Answer Questions

55It is highly unusual for a lay witness to refuse to answer a question in a criminal trial. While this might occur at times with certain witnesses with certain attributes (e.g., an uncooperative but necessary crown witness with loyalty to a defendant), it is highly unusual in a witness with the age and experience of the complainant.

56The conduct of the complainant in this regard – the refusal to answer relevant questions – is a serious credibility issue. Where a witness refuses to answer questions posed by counsel there is grave risk to the trial process and the Court must give serious consideration as to the appropriate remedy: (See the discussion in R v. Arradi, 2003 SCC 23, at paras. 33-34; R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515 (Ont. C.A.); R. v. Hart (1999), 1999 NSCA 45, 135 C.C.C. (3d) 377 (N.S.C.A.), leave to appeal ref’d 147 C.C.C. (3d) v (S.C.C.)). The conduct of the complainant required consideration of a remedy and the impact on credibility can not be erased.

c) The “Friend Explanation”

57Separate and apart from the credibility issue associated with the complainant’s refusal to answer questions posed by Defence counsel, the complainant returned to the witness stand a month later with an explanation.

58First, the complainant testified that the “friend explanation” was not true. There was no friend. She could not answer the question (provide a name of the friend) because there was no name of a friend to provide. There was no particular day when the friend sent the article. No friend drew her attention to the content of the article.

59Second, the complainant testified that she must have investigated the newspaper articles herself.

60Third, the complainant explained that she had provided the false testimony because of a panic attack.

(1) No Name to Provide

61When the trial resumed after a month delay to permit the complainant to obtain independent legal advice, she testified that the “friend explanation” was not true.

62I have set out the detailed manner in which the complainant testified to the involvement of her friend and the provision of the newspaper article. This testimony was provided under oath, and with confidence and certainty. This false testimony was maintained over two days of cross-examination at trial. It is a serious credibility concern to learn that this testimony was false.

63It is inescapable that the complainant testified in support of two completely different fact scenarios under oath. This circumstance invokes the classic credibility question – which version is the truth? Notwithstanding the complainant’s sympathetic circumstances, no criminal court judge could ignore this credibility issue. To perpetuate the “friend explanation” under oath with great detail, and then retract the testimony under oath on a subsequent date, is an obvious credibility concern.

(2) Personal Investigation

64In addition to the revelation that no friend was involved in the provision of newspaper articles, the complainant testified on the June 30th trial date that she must have engaged in an investigation of the newspapers herself, without the involvement of a friend. This testimony, volunteered by the complainant upon resumption of the trial, was speculatively advanced. The complainant did not elaborate further on this speculative substituted explanation for her access to the newspaper articles.

65Earlier in this judgment I outlined my conclusion on the issue of taint.⁴ The complainant’s subsequent change in testimony weakened my original conclusion that taint was a non-issue. The complainant clearly outlined that she must have engaged in an examination of a newspaper article or newspaper articles.

(3) The Panic Attack

66In addition to retracting the testimony about the friend and speculating that she must have investigated the newspaper articles herself, the complainant testified that she provided false testimony because of the onset of a panic attack. This testimony is concerning for many reasons.

67First, notwithstanding the intervening event of independent legal advice, this explanation, similar to the “no friend” evidence, was not provided until the complainant re-entered the witness stand on June 30th continue the trial. It was evident that all parties learned this explanation when she resumed testifying. I may reasonably infer that the complainant took no steps to address the fact that she had provided false testimony during the month-long delay.

68Second, as the trial judge, I have no unique ability to objectively or independently assess the complainant’s claim that she suffered a panic attack. Byway of loose analogy to the criminal law concept of reasonable grounds, I have the complainant’s subjective assertion, but no objective facts to support the subjective belief. I am sympathetic to the complainant’s testimony in this regard given only she is in a position to articulate the emotional and physiological event described as a “panic attack.” But it remains that there are no objective factors permitting an independent evaluation of this claim.

69Third, there is no medical evidence addressing the complainant’s experience with panic attacks. There is no expert opinion evidence directed toward the complainant’s history (if any) of panic attacks or how the panic attacks manifest themselves. There is certainly no expert opinion evidence addressing how the onset of such an attack might promote false testimony.

70Fourth, the complainant was treated with kindness, respect, and compassion by the Court. The Crown Attorney, Defence counsel, and the Court advised the complainant on several occasions that she could take a break at any time during her testimony. Notwithstanding the fact that there was no obvious presentation of the onset of a panic attack in court,⁵ the complainant did not request a recess or alert the Court in any way to the onset of the panic attack.

71Finally, it must be clearly noted that the complainant volunteered the testimony about the involvement of a friend on the first day of her testimony at trial.⁶ Specifically, this explanation was advanced within the ten minutes of the commencement of cross-examination. At this stage of the cross-examination Defence counsel was only mildly addressing introductory topics. Defence counsel had not yet confronted the complainant with the Defence position that she was fabricating. In addition, the complainant maintained the “friend explanation” on the second day of her testimony.

72As such, the complainant’s claim that her false testimony about the friend was causally connected to Defence counsel’s cross-examination on the third day of trial, is simply not correct.

d) Conclusion – The Friend Issue and Panic Attack

73It is not my wish, and certainly not my role, to inflict harm on a vulnerable sympathetic witness. But a criminal trial decision may not rest on sympathy. Courts are required to clearly outline the reasoning behind findings.

74The complainant volunteered the testimony about the friend and then refused to identify that friend. The complainant provided clear and definitive testimony about her friend and access to the newspaper article. The complainant maintained this position through two days of trial. A month later, after having received the benefit of independent legal advice, the complainant testified in support of a completely different circumstance and resiled from her earlier testimony.

75This circumstance epitomizes the most classic credibility issue. The complainant testified, under oath, in support of two radically different circumstances. Both versions can not be true. Both versions were advanced by the complainant under oath. No court of law could possibly ignore this most elementary credibility issue.

H. The Complainant’s Notebook Entries and Diagram

1. Introduction

76The complainant testified that she had received treatment from approximately fifty doctors over several decades during a lifetime of dealing with pain management. She explained that she would maintain handwritten records of her appointments, medical guidance, medications, and the like. The complainant testified that at times she used a small pocket-sized notebook. At other times she used a larger notebook. She explained that sometimes notes made in the small notebook would be re-entered in the large notebook. Finally, the complainant explained that she made notes in similar notebooks for different medical appointments with different doctors.

77The complainant testified that the notes she prepared were generally contemporaneously made. The complainant explained that her “usual routine” was to take notes in the cafeteria of the hospital. As such, the notebooks memorialized her effort to document treatment received and medications proscribed.

2. The Sexual Assault Incident

78The complainant testified that she made notes of the appointment associated with the sexual assault incident. The complainant also testified that she had produced a diagram or drawing on paper representing her position on the examination table.⁷ The complainant explained that these items were produced primarily for the purpose of removing her persistent thoughts about the sexual assault incident from her everyday memory. At one point she testified that she believed that reducing the sexual assault incident to writing would assist her in dealing with the aftermath of the event: “I was thinking about it all the time, so I had to write it down so I would not be thinking about it all the time.”

79The complainant also explained that the drawing was made for her own purposes and that she used it as a “reference point” during her police interview.

80The complainant testified that when she attended her police interview, she provided access to these items. She explained her belief that the investigating police officer took her materials to copy them but was unsure precisely what might have been copied by the investigator as she was not present when that occurred.

3. Relevance

81The complainant’s testimony in support of having prepared notes of the appointment associated to the sexual assault incident meant that her notebooks and notetaking practices were material and relevant issues at trial.

4. Timing of the Preparation of Notes

82The complainant was mildly inconsistent as it concerned when she prepared the notes of the sexual assault incident.

83During cross-examination the complainant initially testified that she made the notes three months after the incident. Defence counsel confronted her with a statement she made to the investigating detective during her video statement. During the statement the complainant told the detective that that the notes were made “about a month ago.” The complainant adopted this statement. The complainant explained that this statement was meant to convey that the notes were made about a month after the second appointment in February 2013. Whatever the complainant’s explanation in this regard, it is clear that if notes were prepared concerning the sexual assault incident, they were not contemporaneously made, or made in accordance with her ordinary approach to medical notetaking. This is, at a minimum, a reliability concern.

5. The Notebooks Were Unavailable

84The notebooks belonging to the complainant were not admitted as exhibits a trial. Nor was the diagram prepared by the complainant.

85Defence counsel, cognizant that the absence of evidence may support reasonable doubt, submits that there are several concerning implications. The central premise asserted by Defence counsel was that the complainant had determined to obstruct access to this evidence because it would not corroborate her allegations. Defence counsel also theorized that the evidence did not exist (i.e., the complainant did not in fact make notes associated with the appointment associated to the sexual assault incident).

86Neither party brought an application to address production of the complainant’s notebooks and diagram. I am not critical of either party in this regard. There might be many understandable reasons why neither the Defence nor the Crown pursued this issue (e.g., strategic reasons or concern about the inevitable additional delay). I am also mindful of the complainant’s testimonial vacillation on the continued existence of the evidence.⁸ In the final analysis, whatever the explanation, a Court may only act upon the record adduced at trial.

87Reasonable doubt may rest upon the absence of evidence. The absence of the notebook entries and diagram contributed to reasonable doubt for several reasons.

88First, these items were not available to potentially resolve the reliability concern about the timing of the composition of the notebook entries outlined above.

89Second, in testifying in support of her meticulous approach to memorializing appointments, the complainant explained that she often recorded details first in a small pocket notebook, and then copied the notes into a larger notebook. Thus, there were potentially two sources of notebook entries. That neither source was available at trial compounded the concern about the absence of evidence.

90Third, the complainant’s notebooks were potentially admissible at the instance of the Crown to assist the complainant with the narrative details of the sexual assault incident and the timeframe of other events: Dinardo, at paras. 36-38; R. v. D.B., 2013 ONCA 578, at paras. 30 -38 [D.B.]. Where an incident occurred many years prior, it is not unusual for a witness to use notes containing contemporaneous detail to assist with historical memory. The complainant’s allegation dated back to 2012. For most witnesses, memory fades with time. Fine detail fades into the background. While the notebooks and diagram might not have been substantively admissible for the truth of their contents, it is at least plausible that the complainant’s credibility and reliability would have been assisted by the details provided by these items.

91Finally, the notebooks were also potentially admissible to rebut the Defence allegation that the complainant fabricated the sexual assault incident: R. v. D.C., 2019 ONCA 442, at para. 27 Arguably, the Crown Attorney could have used the notebook entries to support the credibility and reliability of the complainant in this manner. Once again, the evidence was unavailable to assist in this regard.

6. The Complainant’s Testimonial Response

92Leaving aside the issue of the absence of evidence, the complainant’s testimonial response to the issue of the notebook entries and diagram negatively impacted her credibility.

93First, the complainant’s response to Defence counsel’s cross-examination on these issues was unclear, inconsistent, obstructive, and uncooperative. For example, when cross-examined about the current whereabouts of the notebook entries the complainant testified that she did not have the notebooks anymore. At another point in her evidence, the complainant conceded that such important notes would not have been discarded or destroyed. The complainant varyingly moved between the notion that the items were still available somewhere in her residence and questioning whether they were still available.

94I do not believe the complainant’s testimony insofar as she suggested the notebooks were no longer available. Given the complainant’s historical approach to recording meticulous details of her medical circumstances, it is highly unlikely that the complainant would have destroyed the notebooks on her own. Indeed, she did not specifically articulate that this occurred. The complainant knew that the notebooks were important. She must have gleaned this during her police interview. I do not believe that the evidence was unavailable.

95The complainant flat-out refused to even entertain the suggestion that she look for the notebook entries and diagram at her residence. The complainant manifestly uncooperative with Defence counsel’s questions in this area. Even when Defence counsel explained to the complainant that the provision of this material would very much assist the Court, the complainant refused to assist. Given the complainant’s position that she had previously provided the material to the investigating police officer, it was not clear why this suggestion was so objectionable.

96The trial was delayed for a month so that the complainant could obtain independent legal advice on the “friend issue.” This gave the complainant time to consider the issue and perhaps even obtain independent legal advice. Upon the re-commencement of the trial a month later, the complainant made it clear to the court that she did not even make an effort to look for the notebook entries and diagram during the hiatus.

7. Conclusion – Notebooks

97It is difficult to speculate, but one could envision circumstances where the notebook entries and diagram simply assisted with the narrative and reception of the complainant’s evidence at trial. Instead, the absence of this evidence and the complainant’s testimonial response became a significant issue

98In a case where the Defence counsel confronted the complainant with the assertion that she was lying about the sexual assault and lying about having made notes about it in her notebooks – it was significant that the complainant refused to even check to see if she had retained the items. In a case where Defence counsel impressed upon the complainant how the notebook entries might serve to assist the Court’s assessment of her evidence, the complainant was unmoved. Ultimately, the complainant provided no clear answer on the issue of the continued existence of the notebooks.

I. Post Sexual Assault Incident Behaviour – The Physical Presence of Nurses

99It is clear that the complainant continued her treatment with the defendant from December 2012 until June 14th, 2017.⁹ As I have already explained earlier in this judgment, I accept the complainant’s evidence that she continued to see the defendant for years after the sexual assault incident because she was dependant on his care for pain management.

100During cross-examination, Defence counsel put to the complainant that subsequent appointments likely involved her re-attending the site of the sexual assault incident – the defendant’s examination room across from his office. The complainant initially testified that subsequent appointments did not involve any examination by the defendant.¹⁰ The complainant agreed with the cross-examination suggestion that attending the examination room would have provoked a grave concern on her part. She testified that she could not recall attending that room again.

101The complainant was confronted with medical records from February 1st, 2016, in furtherance of the cross-examination suggestion that she had in fact attended the examination room given the nature of the described medical treatment. The complainant ultimately acknowledged that she must have attended the examination room. The complainant then testified, for the first time, that although she attended the examination room, she was never again alone with the defendant. She explained that she would ask a nurse to come into the examination room. She knew the nurses well. She knew where they were located. It was not a problem to ask. The complainant testified that the nurses were quite willing to step into the examination room at her request.

102There is no corroboration of the complainant’s evidence about the presence of nurses during subsequent examinations. Given the credibility and reliability issues associated with the complainant’s testimony, I looked for corroboration.

103It is reasonable to assume that the complainant’s claimed change in behaviour – requiring the presence of a nurse in each examination appointment – would have attracted some attention in the medical records and notebook entries of the complainant during her treatment for approximately five years after the sexual assault incident.

104There was no evidence adduced from the medical records corroborating the presence of nurses.¹¹ There was no viva voce evidence from any of the nurses that the complainant says she knew well and presumably could identity by name. And again, as I have already addressed above, the complainant’s notebooks entries were unavailable to potentially assist her with this fine detail.

105Sexual assault complainant’s do not require corroboration in law. But given the overarching credibility and reliability issues with the complainant’s testimony, the lack of objective corroboration support impacted the weight of this testimony.

IV. Conclusion

106The last factor I must address is one that is implied by the submissions of the Crown Attorney and Defence counsel. The Crown position is that the complainant is telling the truth and had no motive to fabricate the alleged sexual assault incident. The Defence position is that the complainant completely fabricated the entire sexual assault incident and necessarily implies that the complainant possessed a motive to promote such a falsehood.

107The defendant has no onus to establish that the complainant had a motive to fabricate: R. v. L.L., 2009 ONCA 413, at para. 53 [L.L.]; R. v. T.M., 2014 ONCA 854, at paras. 38-43; R. v. Lebrocq, 2011 ONCA 405, at paras. 18-21; R. v. M.J., 2011 ONCA 278, at para. 8. As a matter of common sense and life experience, a motive to fabricate is an important credibility factor: R. v. Batte, 2000 5751 (ON CA), [2000] O.J. No 2184, (C.A.) at para. 120; R. v. K.C., 2021 ONCA 401, at para. 129. Where a motive to fabricate is established, or is proven not to exist, this credibility factor may be considered in the credibility analysis: R. v. S.S.S., 2021 ONCA 552, at paras. 25-31;

108Notwithstanding the findings outlined in this judgment, I am not convinced that the complainant fabricated the sexual assault incident. During direct-examination by the Crown Attorney the complainant presented very well. As it concerned the particulars of the sexual assault incident, the complainant was clear and definitive. She explained her meticulous documentation of her medical treatment and demonstrated a foundation for a finding that she was a reliable and credible historian notwithstanding the passage of time. At the end of direct-examination, the complainant had presented powerful testimony in support of the allegation before the court.

109The cross-examination by Defence counsel exposed credibility and reliability issues with the complainant and promoted reasonable doubt. The complainant’s approach to the “friend issue,” the newspaper articles, and her notebook entries became a significant issue at trial. Frankly, these issues should have been easily resolved. Instead, the complainant’s approach to these issues impacted her credibility and reliability.

110While I am not in a position to make a discrete finding that the complainant fabricated the allegations, her credibility and reliability has been impacted such that I am in a state of reasonable doubt. The prosecution has not proven the case to the high criminal standard of proof beyond a reasonable doubt.

111The defendant is found not guilty.

Released: August 23, 2022

Signed: “Justice M.S. Felix”

Footnotes

1. 1For example, taint, or collusion (conscious or unconscious).
2. 2This initial position was subsequently weakened by her change in testimony explained below under the heading “Personal Investigation”.
3. 3The complainant vacillated between describing the circumstance as a panic attack and describing the circumstance without using the phrase panic attack – as “something coming on” that she could not identify. For the purposes of this judgment, I will use the descriptor “panic attack.”
4. 4See heading “The Newspaper Articles” above.
5. 5I recognize that I lack the professional qualifications to diagnose the physical presentation of the onset of a panic attack in any person in general, and the complainant in particular.
6. 6May 31st, 2022.
7. 7I understood this drawing to represent a very personal document capturing the complainant’s position just prior to, and during, the sexual assault incident.
8. 8See “The Complainant’s Testimonial Response” below.
9. 9Estimated to be approximately eight additional appointments.
10. 10For example, she explained that they would remain in his office (as opposed to attending the examination room), and he would use pins and other objects to test the sensitivity of her face.
11. 11A pre-trial records application addressed the availability of records.