Court File and Parties
COURT FILE NO.: SCA-189-20 DATE: 2020-08-21 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – D.B. Appellant
Counsel: Anna Spieser, for the Crown Naomi M. Lutes, for the Appellant
HEARD: July 20, 2020
DECISION ON SUMMARY CONVICTION APPEAL
Gauthier J.
Overview
[1] The appellant appeals against his conviction, on November 21, 2019, on one count of sexual assault. The appellant was sentenced to 179 days’ imprisonment on February 5, 2020.
[2] The appellant asserts that:
a. The trial judge’s approach to the issue of credibility and to the law of sexual assault was seriously flawed;
b. The trial judge’s reasons are deficient and do not permit meaningful review;
c. The trial judge misapprehended critical evidence, including that of the only (uncontradicted) expert who testified; and
d. The trial judge erred in applying differing standards of scrutiny to the crown and the defence evidence.
Facts
[3] The appellant is a qualified physician in his country of origin, that is, Pakistan, and was such on the date of the alleged offence, that is, on May 9, 2017. He was not yet licensed to practice as a doctor in Ontario. At that time, he was employed as a “Physician Assistant (“P.A.”) and Inbound Specialist” at the Canadian Cannabis Clinic, in Sudbury. The P.A.’s role is to assist the physician in taking the patient’s history and to conduct examinations and prepare a report for the clinic physician to review when he/she sees the patient.
[4] The sexual assault charge relates to a breast examination the appellant conducted on the complainant J.F. who attended at the clinic on May 9, 2017, having been referred by her family physician, in connection with pain in the neck radiating to her digits all the way down the arm, with numbness, as well as sciatic pain in her right leg, from the lower back to the toe, and tenderness in the toe.
[5] J.F. was greeted by the receptionist at the clinic and was introduced to the appellant and was directed to follow him to an examination room. According to J.F., the appellant was introduced to her as “Dr. D.B.”. She believed him to be a medical doctor, she said.
[6] The trial judge did not hear from the receptionist but did hear through the evidence of the clinic’s cannabis counsellor, V.T., that the P.A. at the clinic is referred to as IMG, being an International Medical Graduate (“IMG”), and that the protocol is that the P.A. would introduce himself to a patient as a P.A. IMG. V.T. testified that the P.A. is never referred to as “doctor”. (The trial judge did not refer to this evidence in his reasons despite the fact that it would contradict the complainant on how the appellant was introduced to her.)
[7] Once in the examination room, the appellant posed a series of questions to J.F., including whether she had had any previous surgeries, to which she replied that she had had a significant lumpectomy performed on the right breast.
[8] Once the patient’s history was completed, the appellant began the physical examination of J.F. A number of strength tests were performed and then the appellant advised J.F. that he was going to perform a breast exam. The evidence regarding J.F.’s consent to the breast examination is unclear at best. I will have more to say about that evidence later in these reasons.
[9] J.F. lay on the examination table as directed by the appellant. She was asked to lift her shirt and she did so. The appellant then moved J.F.’s bra above her breasts. When asked where she should place her arms, J.F. was told to place them above her head, which she did.
[10] According to J.F., who has undergone many breast examinations, the manner in which this particular examination was conducted, was both unusual and caused her to feel uncomfortable. First, she had never undergone a breast examination while clothed, without a gown, second, there was no other person present in the room during the examination, and third, the cupping of both breasts at the same time, as well as the pinching of the nipples by the appellant, was unusual to J.F. and made her uncomfortable.
[11] Once the breast examination was complete, the appellant asked J.F. to show him where the sciatic pain was. J.F. was asked to pull down her trousers so the appellant could see the specific area of pain. According to J.F., the appellant pulled her pants lower, exposing her entire buttock. The appellant denied having pulled J.F.’s trousers down. In any event, once the appellant was able to observe the specific area pointed to by J.F., J.F. pulled her pants back up and the examination continued.
[12] At the completion of the examination, and once the appellant had completed inputting information into the computer, J.F. had a videoconference with Dr. C, the clinic physician. There was no mention of J.F.’s breasts.
[13] J.F. then met with a cannabis counsellor who provided her with an information booklet and a prescription. As J.F. was leaving the clinic, she once again encountered the appellant in the corridor. The appellant handed J.F. a “sticky note” with his first name and his personal cell phone written on it.
[14] According to J.F., the appellant said to her, as he handed her the note, words to the effect that he was new in town and “to call him if she ever wanted to go for a drink or more”. He then proceeded to attempt to hug J.F., who turned away.
[15] The appellant agreed that he provided his personal cell number to J.F., but that he did so purely for professional reasons. Specifically, because there was no direct telephone number for the receptionist, counsellor, or P.A. at the clinic; there was only a general toll-free number. The appellant further offered that he had provided his personal cell number to other patients, as he had observed the counsellor V.T. to do.
[16] Although the appellant denied that he had hugged J.F, he was not directly asked about the utterance attributed to him.
[17] Once J.F. left the clinic, she called her husband and told him that she had been touched inappropriately and that she had “been hit on”. She called police about the events in question and the appellant was subsequently charged with sexual assault.
[18] As part of the defence, the trial judge heard from Dr. A.L.M., who was qualified as an expert witness and permitted to provide his opinion whether a breast examination was a reasonably-indicated medical procedure given the complainant’s medical history and the presenting complaints described in the clinical notes authored by both the appellant and Dr. C. (Exhibit 1 at trial) and the memorandum or note prepared by the appellant for review by Dr. A.L.M. (Exhibit 2).
[19] It was Dr. A.L.M.’s opinion that, in the circumstances of this case, a clinical breast examination was indicated.
Trial Judge’s Reasons
[20] The judge described the predominant issue in the case to be credibility “as between J.F. and Dr. D.B.”
[21] He described J.F. as a credible and reliable witness who gave her evidence in a straightforward manner. Her answers were “careful and balanced”. They were “internally congruent and externally congruent”. Her evidence was “not diminished in cross-examination.”
[22] According to the trial judge, the appellant, on the other hand “was not a credible or reliable witness.” The judge described the appellant as:
Vague, confusing, contradictory, argumentative and at times sarcastic and irritated with the cross-examiner.
[23] The judge described the note with the appellant’s first name and cell phone number in this fashion:
If there’s anything in this trial that comes close to being the smoking gun piece of evidence it would be this.
[24] Given that the appellant was not qualified to prescribe or counsel or educate a patient on the use of cannabis, there was no professional reason for him to have provided the complainant with his personal cell phone number. The appellant testified that patients occasionally had difficulty navigating the system, and for that reason, he gave his number so he could be of assistance if that was the case for this patient. The trial judge commented that the appellant had no basis to assess the complainant as someone who might have difficulty navigating the system. The judge found the appellant’s evidence around the giving of the cell phone number “illogical”.
[25] The judge went on to say the following about the giving of the phone number and the alleged statement that accompanied it:
Now this wasn’t just a note and a phone number. There’s the utterances that go with this. He said he was new in town. What is absolutely crucial about this and what detracts from his credibility and what enhances J.F.’s credibility is that she has no way of knowing he was new in town unless it came from him. There’s evidence in this trial that suggests that he was new in town in terms of the knowledge of J.F. We know he’s new in town because of what he said in his chief. He started there on January 9th, 2017 and this incident took place on May 9th, 2017. By saying that’s he’s new in town what he’s really saying to her is I don’t know anybody and I’m available to get together and he suggested for drinks. Again, the implication is I’d like to meet some new people because I’m new in town. However, he adds on to getting together for drinks two more words, “or more”. Now what did that mean? We know that he has examined this woman’s breasts. His perspective would be not only was there not any objection by her, but he could see no overt signs of her being uncomfortable or disagreeable. So the message to him is she just might be available.
I might point out that the nexus here is if she was comfortable with this breast exam then she might be willing to get together because from his perspective he had no difficulty in examining her breasts. She made no overt signs or questions that would suggest discomfort. So I infer from all of that that he felt that she just might be accepting of some overtures that would fall into the category of “or more”.
[26] Later in his reasons, the judge says this: “The evidence in this area of the cell phone number and the use of the first name and the utterances that were made, and the hug casts a dark shadow over Dr. D.B.’s evidence in total.”
[27] The trial judge addressed the issue of the complainant’s consent (or lack thereof) to the breast examination at some length. He pointed out that the complainant could not recall one way or the other on that issue. The appellant firstly indicated that he asked for her consent and that she nodded yes, although she did not speak the word. In cross-examination, the appellant went further and testified that the complainant had in fact uttered the word yes. The trial judge viewed this as a contradictory statement and was of the view that, as such, it “hurt his credibility.”
[28] The judge went on to state that:
However, what really hurts his credibility in this area is at the highest he did a cursory discussion on the issue of consent. He should have done much more to get an informed consent out of her and it could be that her lack of recollection one way or the other on the issue of consent is driven by the fact that any discussion on consent is so short that it might not have meant anything to her. She’s there for medical marijuana for orthopaedic purposes and now we have the doctor doing a breast examination. In particular in a situation like that there’s an obligation on the doctor to go further to understand that if there was a consent that there should have been more discussion with her on that particular issue.
[29] The trial judge considered the expert evidence of Dr. A.L.M., and, while he indicated that he understood that evidence and accepted it as “a general statement”, he was nonetheless not prepared to apply that evidence in this particular case for the following reasons:
There’s a number of problems here. First of all there’s errors contained in the exhibit that was made in December of 2017 [Exhibit 2]. He talks about consent, he talks about no recent history of self-exam, he talks about no recent history of examination by a health care worker and things like this. And I’ve already pointed out that Dr. D.B. did not go down those roads whatsoever. Also Dr. A.L.M. did not have the statement of J.F., had no video transcript or video statement or had no information of J.F. in his possession. So as a general concept I understand what Dr. A.L.M. is saying in terms of somehow cloaking this breast examination with legitimacy, I do not accept that inference.
[30] The trial judge found that there was no evidence to support certain of the information provided by the appellant to Dr. A.L.M., such as evidence that the appellant had asked the complainant about a self-exam within the last month, or an exam by a health care worker. Thus, the information on which the expert based his opinion was flawed.
[31] The trial judge concluded that the breast examination was not medically indicated and therefore constituted a sexual assault. He found further that:
In this kind of a situation where this lady is attending a cannabis clinic for orthopaedic pain, for any doctor to embark upon this kind of a breast exam the doctor should be asking all [sic] of detailed questions to make sure that the patient gets an informed consent. Had he asked a lot of questions, in my view, there would have been enough information there for him not to exam [sic] the breasts, but he didn’t do that. In the circumstances, he is being represented as a medical doctor. Even though he says that he explained to her that he was a physician assist. I do not accept his explanation. She thought she was dealing with a full blown medical doctor. He had a duty to obtain from her an informed consent.
[32] I turn now to each of the grounds of appeal.
Inadequacy of the Reasons for Judgment
[33] The appellant submits that the trial judge’s reasons for judgment are nothing more than a recitation of the evidence of the complainant, and an acceptance of that evidence without a meaningful analysis of credibility and reliability. It is impossible to assess whether the trial judge properly applied the principles of R. v. W.(D.), [1991] 1 S.C.R. 742.
[34] The respondent for its part, submits that the judge’s perception of the facts and his reasons are entitled to deference. There is no justification for appellate intervention on the basis of deficient reasons where those reasons pass the functional test.
[35] The functional test for sufficiency of reasons is met in this case. The basis for the judge’s verdict is explained: the breast exam was not clinically indicated; even if the appellant believed it to be, his failure to ask relevant questions of the complainant rendered him willfully blind to the actual necessity of the breast exam in the circumstances of the complainant.
[36] As well, the rejection of the expert’s opinion that the examination was medically indicated is also explained. I will have more to say about this later in these reasons. My conclusion on this ground of appeal is not dispositive of the appeal itself.
The Trial Judge’s Approach to Credibility and Reliability
[37] In this case, to a large extent, the material facts were not in dispute. The complainant’s credibility and reliability were not in issue and were not central to the inquiry to be conducted by the trial judge, which was, whether the breast examination performed by the appellant was a properly-performed, clinically indicated breast examination, conducted in accordance with accepted medical principles and procedures.
[38] It would appear, however, from the outset of the judge’s reasons, that he mistakenly characterized the primary issue as a credibility contest between the complainant and the appellant. He said as much.
[39] The appellant says “The case against the appellant was largely dependent on the assessment of the complainant’s evidence: it was incumbent upon the trial judge to carefully scrutinize her testimony and provide meaningful reasons. Instead, he simply accepted the entirety of her evidence.”
[40] The nature of the touching, or whether the breast examination was medically indicated was not dependent on the complainant’s testimony, not even her description of the examination itself. The complainant’s unease and discomfort were not determinative of the only issue to be determined as outlined above. However, the issue of the complainant’s credibility was elevated to such a degree by the judge, that one cannot be satisfied that his total acceptance of her evidence did not result in a failure to fairly and evenly assess the balance of the trial evidence, including, and more particularly, the evidence of Dr. A.L.M.
[41] The appellant raises the issue of the misuse of the complainant’s prior consistent statement, that is her written account of events, prepared at the suggestion of her lawyer, and which became Exhibit 4 at the trial.
[42] The crown conceded that the trial judge should not have admitted the complainant’s written account of the events, even on consent, as a prior consistent statement is presumptively inadmissible and must not be used to bolster a complainant’s credibility.
[43] The judge did appear to improperly rely on the prior inconsistent statement as bolstering the complainant’s credibility: “There was no suggestion of embellishment in terms of her preservation of memory. She immediately followed the clinic attendance by contacting a lawyer and the police and preparing a statement which was filed as exhibit number four in these proceedings. Her evidence was not diminished in cross-examination.”
[44] What is more, it is not possible to determine whether the judge’s complete acceptance of the complainant’s evidence (even the part that was contradicted by V.T., that P.A. were never introduced to patients as “doctor”), did not cause him to simply reject the appellant’s evidence, and to summarily dismiss the expert evidence, thereby treating the complainant’s evidence as dispositive of the issue of the nature of the touching. This directly calls into question whether the trial judge correctly applied the W.(D.) test.
[45] The appellant suggests that the trial judge applied a significantly heightened standard of scrutiny to the appellant’s evidence.
[46] There is no doubt that the judge was very critical of the appellant and the manner in which he gave his testimony, describing him as vague, confusing, contradictory, argumentative and at times sarcastic and irritated with the cross-examiner. While some of those descriptions may well have been justified, it is equally clear that the crown was at times also sarcastic and somewhat aggressive in cross-examining the appellant.
[47] Nonetheless, an objective examination of the reasons suggest that the trial judge’s criticism of the appellant was largely driven by the demeanour of the appellant in testifying, rather than by the substance of his evidence, although certain aspects of his testimony were indeed problematic. As one example, the appellant’s responses to the questions asked about the hug in the corridor:
Q. Any chance you gave J.F. a hug before she left” A. No, I don’t recall, that was in the corridor.
And again:
Q. So it’s possible you hugged J.F.? A. No, I think I did not because I went to the computer to put in the details.
[48] Notwithstanding such difficulties, it is a concern that the judge preferred the complainant’s evidence to such an extent that he may have shifted the burden of proof.
The Trial Judge Erred in His Approach to the Law of Sexual Assault
[49] Whether the touching was of a sexual nature is to be assessed objectively. It is not based purely on the subjective feelings of the complainant.
[50] The test to be applied in determining whether an assault is of a sexual character is objective. The trier of fact must ask itself, “[v]iewed in the light of all of the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer.”: R. v. Chase, [1987] 2 S.C.R. 293, at p. 302. The circumstances to be considered include the part of the body touched, the nature of the contact, the situation in which the contact occurred, and any words or gestures accompanying the act, among other things. The intent or purpose of the person committing the act may also be a factor in considering whether the conduct was sexual, but it is only one factor to be considered in the analysis: Chase, at p. 302; R. v. Marshall, 2017 ONCA 801, at paras. 51-53.
[51] The appellant testified that he believed the breast examination should proceed because of no recent imaging of the breasts in the context of a significant lumpectomy having been performed: “…something new could have developed in, in the time there was no testing or imaging.”
[52] The appellant submits that the trial judge failed to consider whether the appellant honestly believed that the breast examination was medically indicated. If that subjective belief was medically supportable (and Dr. A.L.M. says it was), then the actus reus of the offence of sexual assault was not made out.
[53] The judge did not address this issue in the context of proof beyond a reasonable doubt, and this was a reversible error. The judge did not address whether the crown had proven that the breast examination was not medically-indicated.
The Issue of Consent
[54] I turn now to the issue of consent. First, it was up to the crown to establish the sexual nature of the touching and the lack of consent. The appellant submits that the judge failed to properly consider whether the crown had proved the sexual nature of the touching (the breast examination not being medically-indicated). This occurred, according to the appellant, because the judge conflated the issue of the “sexual nature” of the touching with a finding that the appellant had a duty to obtain an informed consent to the breast examination. The respondent concedes that the trial judge’s emphasis on the appellant’s duty to obtain informed consent is an erroneous approach to the law of consent in sexual assault but submits that the error was harmless. The only issue was the nature of the appellant’s touching of the J.F.’s breasts.
[55] The portion of the reasons set out above, dealing with the need for the appellant to have obtained “an informed consent out of her”, make it clear that the perceived failure on the part of the appellant to obtain an informed consent to the breast examination, truly did “hurt” the appellant’s credibility.
[56] In fact, it appears that the judge misapprehended the evidence about consent. First, “informed” consent imposes a standard that is not required in the criminal law. Second, the crown did not establish a lack of consent. There was equivocal evidence that the complainant had not consented to the examination. The complainant testified that she was not sure if the appellant had asked for her consent to the examination. She was however aware that the appellant intended to do a breast examination, as he told her so.:
Q. Okay, So what was the next thing that happened? A. He asked me to lay down on the bed. He was gonna do a breast exam. Q. Okay. Did he ask for your consent for that? A. I’m not sure. He just told me to lie on the bed, so I did.
[57] Further, the complainant could not recall if she had told Detective Constable O’Brien that she could not remember if the appellant had asked her consent to the examination.
[58] The appellant, for his part, testified, both in chief and in cross-examination, that the complainant had “nodded with a yes” (“nodded with yeah…nodded in a form of yeah”) when she was asked if she consented to the breast examination.
[59] The judge was incorrect when he found that the appellant “has given contradictory statements here which in my view hurt his credibility…what really hurts his credibility in this area is at the highest he did a cursory discussion on the issue of consent. He should have done much more to get an informed consent out of her…”. The contradiction appears to stem from his view that an informal consent was required, which is not correct.
[60] The judge’s finding against the appellant’s credibility based on the facts and answers around consent are problematic and not supported by the evidence.
[61] The issue of consent and more specifically of “informed consent” was central to the judge’s negative assessment of the appellant’s credibility.
Misapprehension of the Evidence
[62] Dr. A.L.M. was qualified as an expert to give opinion evidence with regard to whether a breast examination was a reasonably-indicated medical procedure, in light of the complainant’s medical history, and her presenting complaints. Dr. A.L.M. had been provided with the report or clinical record or note co-authored by the appellant and Dr. C., and addressed to the referring physician, Dr. F. (Exhibit #1 at the trial), and the clinical note or record or summary of events prepared by the appellant for review by Dr. A.L.M. (Exhibit #2 at the trial).
[63] It was Dr. A.L.M.’s evidence that the “clinical breast examination was indicated.”
[64] The judge rejected the opinion based on what he said were errors in Exhibit 2 (reference to consent, when in fact, no “informed” consent was obtained, and references to the complainant not having had any recent breast examinations, when he said the appellant had not explored that area with the complainant). He also took issue with the fact that Dr. A.L.M. had not been present for the complainant’s evidence and had not been provided with her earlier written statement.
[65] With respect, the trial judge misapprehended the evidence with regard to any errors in Exhibit 2. The judge stated that there was no evidence that the appellant had questioned the complainant about any recent self-exams or other examinations. In fact, the appellant testified, both in chief and in cross-examination that he had asked the complainant if she had had any recent imaging done, any recent examinations. She replied in the negative. (Transcript, Volume 4, p. 33 line 9 and p. 88, line 30).
[66] The complainant herself recalled the appellant inquiring about recent breast examinations. (Volume 1, page 36, line 25 and Volume II, page 16, lines 9-11 and 20-25).
[67] The trial judge also rejected the expert opinion because he said the expert would not have had the entire context of the encounter between the complainant and the appellant before him in formulating his opinion.
[68] Dr. A.L.M.’s opinion however was not based solely on the narrative prepared by the appellant. The crown did put the essential features of the complainant’s narrative to the witness in the course of cross-examination, including the manner in which the examination was conducted. The trial judge did not advert to this aspect of Dr. A.L.M.’s evidence.
[69] The trial judge asked specific questions of Dr. A.L.M., about the reason to conduct the examination in the context of the complainant attending a cannabis clinic for pain management. The expert agreed with the judge’s proposition that “…it’s just cautious, what you’re saying it’s precautionary medicine even though that might not be the fundamental purpose as to why, primary purpose as to why she’s there, if you see a risk in the history…”.
[70] When asked specifically whether, with the complainant’s history it was medically appropriate for the appellant to do a breast exam, Dr. A.L.M. indicated that it was. There was no other opinion evidence to contradict that determination. The judge failed to give effect to the principles of W.(D.).
Conclusion
[71] There is no doubt that there were live issues around the appellant’s credibility, particularly around the issue of the note with his first name and telephone number, and the alleged utterance. However, in light of the errors which I have described, I am unable to accord the usual deference to the trial judge’s negative assessment of the appellant’s evidence, based on apparent error in the trial judge’s assessment of evidence and the burden of proof, including the rejection of evidence of Dr. A.L.M. without reasonable basis.
[72] For the above reasons, I am allowing the appeal and ordering a new trial.
The Honourable Madam Justice Louise L. Gauthier
Released: August 21, 2020
COURT FILE NO.: SCA-189-20 DATE: 2020-08-21 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – D.B. Appellant DECISION ON SUMMARY CONVICTION APPEAL Gauthier J.