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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

DATE: 20231127 DOCKET: C70749

Tulloch C.J.O., Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

C.D. Appellant

Counsel: Jill D. Makepeace, for the appellant Holly Loubert, for the respondent

Heard: October 11, 2023

On appeal from the conviction entered on January 31, 2022, and the sentence imposed on June 3, 2022, by Justice Deborah L. Calderwood of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant appeals from his convictions and sentence for six counts of sexual assault committed on five complainants. Four of the complainants were patients in the appellant’s medical practice. [1] The fifth was his niece, who was 16 years old at the time of the offence. Five of the six offences involved the appellant touching the complainants’ breasts without their consent and for a non-medical purpose. [2]

[2] The central issues raised on the conviction appeal relate to the trial judge’s admission and use of count-to-count similar act evidence. On the sentence appeal, the appellant argues that the trial judge committed errors in principle by treating as aggravating several factors which the appellant argues should not have been so treated.

[3] At the hearing, we heard submissions from the appellant, but did not call on the Crown to respond, and dismissed the appeal with reasons to follow. These are our reasons.

The conviction appeal

[4] As noted above, the central issues raised by the appellant in his appeal against conviction concern the trial judge’s admission and use of count-to-count similar act evidence. The appellant also argued that the trial judge erred in failing to sever the count involving his niece from the counts involving patients. However, at the outset of the hearing, counsel for the appellant quite appropriately conceded that in the circumstances of this appeal, if the court was not persuaded that the trial judge erred in relation to the admissibility and use of similar act evidence, then the appellant could not prevail on the severance ground. This is because the admissibility of count-to-count similar act evidence was central to the disposition of the severance application.

[5] In light of this concession and our conclusion that the trial judge did not err in relation to the admissibility or use of similar act evidence, it is not necessary to address the severance ground. As a result, our reasons on the conviction appeal focus on the similar act evidence grounds. We begin with a very brief summary of the trial judge’s similar act evidence ruling, then consider the specific errors alleged by the appellant.

[6] The trial judge found that the similar act evidence was admissible across counts because it showed a pattern of behaviour involving breast-focused sexual assaults in the context of significantly younger and vulnerable women with whom the appellant stood in a relationship of trust, after lead-up behavior that tested the boundaries of the relationship. The trial judge found that the pattern and number of complainants supported the inference that it was “highly improbable” that the complainants would manufacture these similar accounts or somehow have developed false memories of sexual assaults by the appellant, for example by misinterpreting appropriate medical examination or innocent accidental contact. The trial judge considered the issue of collusion or tainting between the complainants as a result of a newspaper article that was published after the employee-patient complainant reported to police. The trial judge found that the Crown had disproved both advertent and inadvertent tainting for purposes of the admissibility analysis, in the sense that the probative value of the similar act evidence was not undermined.

[7] The appellant argued that the trial judge made four errors in her treatment of similar act evidence. Three relate to the admissibility of similar act evidence across counts. The fourth relates to the ultimate use made by the trial judge of the similar act evidence. The errors alleged were the following:

1. that the trial judge erred in her consideration of the possibility of collusion or tainting between the complainants based on the newspaper article as a factor in the similar act admissibility analysis;
2. that the trial judge erred in failing to engage in any assessment of the probative value of the evidence of each individual complainant as part of the similar act admissibility analysis;
3. that the trial judge erred in her approach to the assessment of contextual similarity of the allegations by each complainant in her similar act admissibility analysis; and
4. that the trial judge erred in the use she made of the similar act evidence in her assessment of whether the Crown had proven the charges beyond a reasonable doubt.

[8] It is not necessary to reiterate the principles applicable to the admissibility of similar act evidence, enunciated in cases such as R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. The appellant accepts that the trial judge’s thorough summary of the law applicable to the admissibility of similar act evidence was generally correct. We address the four arguments raised by the appellant in turn.

[9] First, the appellant challenged the trial judge’s consideration of collusion or tainting in the admissibility analysis. The appellant argued that the trial judge erroneously placed the onus on the defence to disprove tainting of the evidence of the complainants by a newspaper article. The appellant further argued that the trial judge erred in rejecting tainting as a factor negating the force of the similar act inferences based on the evidence of most of the complainants that they had disclosed the sexual assault by the appellant to someone they trusted long before the newspaper article. The appellant argues that the trial judge should not have relied on the evidence of prior disclosures when only the complainants testified about them – none of the people the complainants said they had previously disclosed to were called as witnesses at trial.

[10] This was not a case where the complainants knew or spoke to each other prior to reporting to police or prior to trial. Rather, the allegation of risk of tainting of their evidence was based on the fact that, when the employee-patient complainant reported to police, her allegations were reported in some detail in the local paper, and all of the other complainants read the news article before coming forward to police with their allegations.

[11] The trial judge accepted that the chronology of events involving the newspaper article and the subsequent police reports by the other complainants, who had seen the article, raised “an air of reality” to tainting of the subsequent complainants’ evidence. Based on that finding, she held that the Crown bore the onus to disprove tainting on a balance of probabilities. The trial judge found that the evidence as a whole sufficiently rebutted the risk of tainting such that it did not impair the probative value of the similar act evidence. In particular, the trial judge found: that all of the complainants who reported to police after the newspaper article made a contemporaneous disclosure to someone they trusted about the sexual assault by the appellant, long before the newspaper article was published; that two of the patient complainants distanced themselves from the appellant contemporaneously with the time of the alleged sexual assaults by leaving his medical practice; and, that although four of the complainants reported to the police after seeing the newspaper article, none of the complainants communicated with one another. The trial judge found that these factors taken together eliminated the possibility that the four complainants who reported to police after the newspaper article: (i) manufactured their allegations to support the first complainant; (ii) misremembered events involving the appellant years earlier as a result of reading the newspaper article; or (iii) started to see innocent conduct in a negative light as a result of reading the newspaper article.

[12] We do not accept that the trial judge erred regarding the onus. She expressly placed the onus on the Crown to disprove collusion once she found an air of reality based on the chronology of reporting after the newspaper article, stating: “Given the air of reality to these assertions of collusion, the onus is on the Crown to disprove it on a balance of probabilities.”

[13] Nor do we find any error in her conclusion that tainting was sufficiently rebutted by the Crown such that the probative value of the count-to-count similar act evidence remained. In our view, the trial judge was entitled to consider and rely on the evidence of the complainants regarding their contemporaneous disclosures of sexual assaults by the appellant in assessing whether risk of tainting should weigh against admissibility of similar act evidence across counts. The trial judge acknowledged the lack of confirmatory evidence of the complainants’ contemporaneous disclosures of the sexual assaults, but correctly held that confirmation was not required by law. She also noted that the complainants’ evidence about prior disclosures stood uncontradicted. Further, for each of the four complainants who reported to police after the newspaper article, the trial judge considered in detail the defence arguments for why their narratives of a prior disclosure of the sexual assault should not be accepted. The findings made by the trial judge were open to her on the record.

[14] The appellant’s second argument was that the trial judge failed to assess the probative value of the allegations of sexual assault made by each complainant individually as part of the similar act admissibility analysis, which he argues is required by para. 134 of Handy.

[15] We reject this submission. At para. 134 of Handy, Binnie J. explained that the ultimate assessment of credibility is for the trier of fact. However, he also held that where admissibility of similar act evidence is dependent on its probative value, the credibility of the similar act evidence is a factor that a trial judge may consider at the admissibility stage.

[16] It is important to bear in mind that the assessment of credibility at the admissibility stage is not an assessment of ultimate credibility. Handy is clear that the assessment of credibility at the admissibility stage of the similar act analysis is whether the proposed similar act evidence (in this case the cross-count use of the various complainants’ evidence) meets “the threshold of being reasonably capable of belief” (emphasis in original): Handy, at para. 134.

[17] The appellant raised various challenges to the complainants’ evidence at the admissibility stage of the similar act analysis. None of them would lead to the conclusion that any of the complainants’ evidence failed to meet the threshold of being reasonably capable of belief. The trial judge found at the stage of the admissibility analysis that each of their accounts was “plausible”. Further, the trial judge engaged in an individualized assessment of the credibility of each complainant’s evidence as part of the similar act admissibility analysis on the only real issue on which their credibility was challenged at the admissibility stage – the risk of tainting and the evidence of prior disclosures of the sexual assaults. We see no errors in her findings.

[18] The appellant’s third argument challenged some of the factors the trial judge relied on as the basis for the finding that the allegations of each complainant were sufficiently similar that their probative value outweighed the prejudicial effect. The appellant argues that the trial judge overstated the contextual similarities between the accounts of the complainants and inflated the probative value of some factors.

[19] The factors that the trial judge relied on as establishing sufficient similarity between the complainants to have probative value in relation to proof of the actus reus and assessment of the credibility of the appellant’s denial were:

• the nature of the alleged sexual touching – described by the trial judge as involving in each case “very brief but obviously sexualized touching of the complainant’s breast(s) by [the appellant’s] hands” involving either squeezing the breast(s) or twisting the nipples; [3]
• the appellant stood in a position of trust to each complainant – either as their physician or, in the case of the niece, by virtue of his standing as a senior family member and uncle;
• the relationship between the appellant and each complainant was longstanding, which deepened the element of trust or dependency;
• the age disparity between the appellant and each complainant – each complainant was a decade or more younger than the appellant – which enhanced the power imbalance between the appellant and each complainant;
• conduct by the appellant towards each complainant on occasions prior to the alleged sexual assault where he pushed boundaries of what was appropriate given the nature of the relationship, “as if to test the waters in progression towards the ultimate acts alleged”;
• the alleged sexual assaults all occurred behind closed-doors, in places over which the appellant had full control – his examination room and, in the case of the niece, the piano room in his home; and,
• that all of the sexual assaults occurred in locations where there was some element of risk of discovery in that there were other people not far away, who could have easily knocked on the door, entered, or heard a call for help. The trial judge found that in every case, the sexual assault took a matter of seconds and was of such a nature that the appellant “would have been able to quickly stop what he was doing and behave as if nothing was going on if someone walked in or if a complainant called out.”

[20] The trial judge also considered the fact that the alleged offences spanned a period of almost 20 years, and that there were gaps in time between the offences, the longest being nine years. However, she found that looking at them in number and totality suggested “a continuity of disposition” on the part of the appellant over the time of the alleged offences. Although the trial judge did not use the span of time as a factor favouring admission, she found that the passage of time between events did not “undercut the notion of ‘improbability of coincidence’ having regard to all the other factors, including the sheer number of complainants and the strong similarities in context and allegation.”

[21] As noted above, based on these similarities, the trial judge concluded that the complainants’ accounts showed a pattern of behaviour on the part of the appellant to engage in breast-focused sexual assaults in the context of significantly younger and vulnerable women with whom he stood in a relationship of trust, after lead-up behavior that tested the boundaries of the relationship.

[22] The appellant challenged many of the factors relied on by the trial judge to establish a pattern of behaviour. In oral submissions the appellant focused on the age disparity, nature of the position of trust and dependency, and the fact that the alleged offences took place at different times over a 20-year period.

[23] We start by observing that looking at each point of similarity in isolation decontextualizes the similar act admissibility analysis. The jurisprudence is clear that the assessment of similarity is contextual, and that multiple points of similarity may work in tandem to make similar act evidence sufficiently probative to overcome its prejudicial effect: Handy, paras. 76-84; R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 18. Having said this, we do not find error in the trial judge’s reliance on any of the particular points of similarity that the appellant challenged.

[24] We do not accept the appellant’s submission that the trial judge erred in considering the disparity in age between the appellant and each complainant. The trial judge was clear that her concern was not the age disparity simpliciter, but rather the fact that the age disparity was a factor that enhanced the power imbalance that existed between the appellant and each complainant by virtue of the nature of their relationship (doctor-patient; employer-employee; uncle-niece).

[25] The appellant further argued that the trust relationships of some of the complainants were different from one another, as well as that the evidence did not support that the appellant was in a trust relationship with his niece.

[26] We reject these arguments. First, with respect to the complainant who was an employee and a patient, the fact that she was also an employee did not change that she shared a doctor-patient relationship with the appellant, the same type of relationship as all of the other complainants, except for the niece. Second, the finding by the trial judge that the appellant was in a trust relationship with his niece was open to her on the record and is entitled to deference: R. v. Aird, 2013 ONCA 447, at paras. 27, 30-31; R. v. M.M., 2022 ONCA 441, at paras. 7-8. Third, the trial judge was entitled, in the context of the various other factors of similarity outlined above, to find that the presence of a trust relationship between the appellant and each complainant was a factor of similarity linking the offences for similar fact admissibility purposes, even if the particular trust relationship varied, at least for the niece. It is worth reiterating that the analysis of similarity is contextual, in all the circumstances.

[27] Given the similarities that the trial judge found between the acts and the circumstances of the sexual assaults alleged by each of the complainants, we do not see the fact that the sexual assaults were alleged to have happened to each complainant at a different time over an almost 20-year period as weakening the similar act inferences in the circumstances of this case.

[28] The fourth ground raised by the appellant relates to the trial judge’s use of the similar act evidence. As context, we note that for the two counts involving the complainant who was an employee and also a patient, the trial judge’s reasons are clear that, even in the absence of the similar act evidence, she was persuaded beyond a reasonable doubt of the appellant’s guilt. The trial judge gave extensive reasons explaining this conclusion, including reference to confirmatory evidence. For the counts involving the remaining three patients and the appellant’s niece, the trial judge’s reasons are clear that she relied on the similar fact evidence in reaching the conclusion that the Crown had met its burden to prove guilt beyond a reasonable doubt.

[29] The appellant argued that the trial judge erred by using the similar act evidence as a factor to impeach specific aspects of the appellant’s credibility. The appellant accepted that the similar act evidence was relevant to the trial judge’s assessment of whether the actus reus of each count was proven and to the assessment of whether the appellant’s denials, in general, were credible. However, he argued that similar act evidence cannot be used “to attack discrete components of [the appellant’s] evidence.”

[30] The appellant argued that the underlined portion of the second passage below illustrates the error he alleged. We include the first passage because it provides context for the trial judge’s explanation of the relevance of the similar act evidence in this trial. Both of these passages are from the conclusion of the portion of the trial judge’s reasons addressing the admissibility of count-to-count similar act evidence:

The count-to-count similar act evidence will assist with my assessment of the evidence pertaining to the actus reus as described by each of the complainants, which logically connects by extension to my assessments of their credibility. This includes my consideration of the defence argument that their accounts are implausible because they involve [the appellant] committing sexual assaults in circumstances where there was a real risk of detection. The number of complainants and the similarity of the context and acts alleged give rise to significant probative value on the basis of a high improbability of coincidence in all the circumstances.

The similar act evidence will also assist in assessing the credibility of [the appellant’s] denials and his statements that he has “no inkling” to handle breasts inappropriately and that he would not make certain types of comments (i.e., that the complainants must have misinterpreted or misheard him). [Emphasis added.]

[31] The appellant argues that the underlined portion of the second passage is an impermissible use because the trial judge is stating a use in relation to specific aspects of the appellant’s evidence, beyond using it to consider the credibility of the appellant’s evidence in general (which the appellant concedes is permissible).

[32] With respect, the distinction the appellant draws is not borne out by the trial judge’s reasons. The appellant’s evidence that he had “no inkling” to handle breasts inappropriately and that he would not make certain types of comments were simply specific facets of his denial of the offences. The portion of the sentence which the appellant impugns is not stating additional uses of the similar act evidence; rather, it is providing examples of the appellant’s denials of the actus reus. It is one sentence and is reasonably read as speaking to one use of the similar act evidence – that it can be used to assist in assessing the credibility of the appellant’s denials of the offences. We note that this reading of the passage the appellant challenges is consistent with the trial judge’s statement of the relevance of the similar act evidence at the outset of her admissibility analysis, which was as follows: “The issues to which the proposed similar act evidence relates are the actus reus of the alleged offences and the question of whether [the appellant’s] denials are credible.”

[33] In sum, we see no error in the trial judge’s ruling on admissibility of count-to-count similar act evidence or in her use of the evidence.

The sentence appeal

[34] The trial judge imposed a global sentence of 15-months imprisonment (concurrent on all counts).

[35] Sentencing decisions are entitled to substantial deference. An appellate court will only disturb a sentence where: (i) the sentencing judge made an error in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor, and the error had an impact on the sentence; or (ii) where the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41, 44 and 51.

[36] The appellant argued that the trial judge made four errors in principle that justify this court’s intervention:

1. that the sentencing judge erred in considering the age disparity between the appellant and each complainant as an aggravating factor; [4]
2. that the trial judge erred in finding the fact that the offences occurred over a period of almost 20 years to be an aggravating factor because there was no evidence that his offending was continuous;
3. that the trial judge erred in finding that the fact that two of the complainants lost their family doctor (the appellant) due to the sexual assaults was an aggravating factor – the appellant argues that this is effectively double-counting the breach of trust based on the appellant being these complainants’ doctor and that there is no evidence that they had trouble finding a new doctor; and
4. that the appellant posed a risk of recidivism.

[37] The appellant argued that if this court found errors in principle, no deference would be owed to the sentencing judge’s assessment of the appropriate sentence and this court should impose a conditional sentence. [5]

[38] We are not persuaded that the trial judge erred in principle on any of the four grounds raised by the appellant.

[39] First, parallel to the similar act admissibility analysis, the trial judge did not rely on the age disparity between the appellant and each complainant simpliciter as an aggravating factor. Rather, she linked it to the appellant’s breach of trust because the age disparity increased the power imbalance between the appellant and each complainant, which was already present due to the nature of the relationship between the appellant and each complainant (doctor-patient; employer-employee; uncle-niece). This is clear from the sentencing reasons, where the trial judge stated that the substantial age disparity between the appellant and each complainant “compounded the already substantial power imbalance between [the appellant] and the victims.” We see no error in this approach.

[40] Second, we see no error in the trial judge’s finding that the fact that the offences occurred over a period of almost 20 years was an aggravating factor. The fact of multiple offences over an extended period of time contrasts this case from an offence which is one isolated incident. The trial judge specifically explained her reasoning on this point: “This means that these were not isolated lapses in judgment or something that [the appellant] eventually gained insight into on his own leading him to change his ways.” We see no error in the trial judge’s reasoning.

[41] Third, we are not persuaded that the trial judge erred in considering as an aggravating factor that two of the complainants left the appellant’s medical practice and had to find a new family doctor after the offences. This is not double-counting the breach of trust. It is a practical, real-world consequence of the appellant’s offending. Whether or not those two complainants found a new family doctor easily or quickly, having to start a new doctor-patient relationship as a result of the appellant’s offences is a tangible negative consequence of his offending.

[42] On the fourth issue, the trial judge did not list risk of recidivism as an aggravating factor; however, she referred to it in distinguishing a case the appellant had argued supported a conditional sentence. We pause to note that that case involved a joint submission. In distinguishing that case, the trial judge said that, in the appellant’s case, she was “unable to say there is no risk of recidivism.” In our view, this finding was open to the trial judge on the record and is owed deference. Although it is true that the appellant no longer had the opportunity to abuse his role as a doctor, since he had closed his practice as a result of the initial investigation by the College of Physicians and Surgeons of Ontario, the offence involving his niece was not committed in his medical practice. Further, the appellant committed multiple offences against multiple complainants over a lengthy time period. The fact that he no longer had the particular opportunity of offending in a doctor’s office does not render unreasonable the trial judge’s finding that she was unable to say there was “no risk” of recidivism.

[43] In any event, even if we were persuaded there were an error in principle on one or more of the grounds above, it would be difficult to conclude that it would have any impact on the appropriate sentence. Based on her consideration of the circumstances of the offence and the offender, and the aggravating and mitigating circumstances, the trial judge concluded that a conditional sentence would be inconsistent with the principles of sentencing, as it would be inadequate to effect denunciation and general deterrence. This conclusion made a conditional sentence unavailable pursuant to s. 742.1 (a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. This finding by the trial judge hinged primarily on the number of offences and the breach of trust involved in all of the offences. The alleged errors raised by the appellant, even if accepted by the court, would be of marginal impact in the face of the serious breaches of trust and offences against multiple women.

Disposition

[44] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“M. Tulloch C.J.O.”

“L. Sossin J.A.”

“J. Copeland J.A.”

[1] One of the four patients was also an employee of the appellant’s medical practice. The two sexual assaults against her were committed when the appellant was providing medical care to her.

[2] In the case of the patient who was also an employee of the appellant’s medical practice, there was a second offence where, after he had removed some stiches, the appellant attempted to expose her breasts by pulling away a top she was holding over her chest and then attempted to kiss her on the lips. She turned and the kiss landed on the side of her face.

[3] The one exception was the second sexual assault on the employee-patient complainant, involving trying to expose her breasts and then kissing her. The trial judge found that this was “in keeping with this breast-focused behaviour.”

[4] The appellant concedes that the age of his niece at the time of the offences, under 18 years, is an aggravating factor, both as a matter of sentencing principles and as codified in several of the sentencing provisions in the Criminal Code. This ground of appeal focuses on the age difference between the appellant and the complainants.

[5] The appellant did not specify on appeal the length of conditional sentence he was seeking. Before the trial judge he sought an 18-month conditional sentence.