Warning and Non-Publication Order
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 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
(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) MANDATORY ORDER ON APPLICATION — 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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (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.
Ontario Court of Justice
DATE: May 16, 2025
COURT FILE No.: 24-28102588
Between:
His Majesty the King
— AND —
Sardar Hoque
Before Justice P.K. Burstein
Heard on February 24, 25, 26, April 3 and May 6, 2025
Reasons for Judgment released on May 16, 2025
T. Potts — counsel for the Crown
R. Amin — counsel for the accused
BURSTEIN J.: Overview
[1] A.Y. attended a medical clinic on January 13, 2024, for a polysomnogram, also known as an overnight sleep study, based on a recommendation from her doctor. As she had been directed to do by a memo she received prior to that date, Ms Y. showed up at the clinic a bit before 8 pm. Sardar Hoque introduced himself as her assigned technician. He led her to a private room where she would be sleeping for the night. In order to monitor her during the study, small circular probe stickers (also known as “electrodes” or “leads”) must be affixed by the technician to various parts of her body using some paste. At one point, Mr. Hoque directed Ms Y. to remove her shirt so that he could affix some of the probes to her upper torso. At a later point, Mr. Hoque also directed Ms Y. to remove her pants and then her underwear. According to Ms Y., when she tried to cover her vagina with her hand, Mr. Hoque swatted it away as he placed a probe on her upper inner thigh. Ms Y. also claims that, during the set-up phase of the study, Mr. Hoque made a number of comments which she found unsettling, such as complimenting her on how beautiful she was and asking her whether she typically slept naked.
[2] When Ms Y. returned home the next day, she felt uncomfortable about her experience at the sleep clinic and so reported Mr. Hoque to the police. Mr. Hoque was charged with sexual assault in relation to his physical interaction with Ms Y. at the clinic as he was setting her up for the sleep study.
[3] Mr. Hoque has pleaded not guilty at his trial before me. According to his testimony at trial, Mr. Hoque says that he only touched Ms Y. in the context of legitimate medical procedures and not for any sexual purpose. Consequently, he contends, there was implied consent to the non-sexual touching as it all fell within the scope of the sleep study that Ms Y. had voluntarily attended. On the strength of the testimony of the clinic’s office manager and of an expert in the administration of sleep studies, the Crown submits that the evidence of Ms Y. proves beyond a reasonable doubt that there was no legitimate medical purpose to Mr. Hoque’s direction that Ms Y. remove her top so he could attach a probe and a band to her naked torso nor to his direction that she remove her pants and underwear so he could attach a probe to her naked inner thigh. The Crown further submits that Ms Y.’s evidence of Mr. Hoque’s comments during the procedure supports an inference that Mr. Hoque had a sexual purpose motivating his illegitimate touching of Ms Y.’s naked torso and naked inner thigh.
What must be proven for me to find Mr. Hoque guilty of sexual assault
[4] In a civilized society which values liberty, fairness and justice, any person charged with a criminal offence must be presumed innocent until proven guilty. That presumption of innocence requires that the prosecuting authority be able to prove an accused person’s guilt to the very high standard of “beyond a reasonable doubt”. It is not enough that the prosecution prove that an accused person is probably guilty of a criminal charge. An accused must also never bear the burden of proving that they are innocent of a criminal charge.
[5] In this case, to overcome the presumption that Mr. Hoque is innocent of the sexual assault charge he is facing, the Crown had to prove beyond a reasonable doubt (1) that he touched Ms Y., (2) that any touching was “sexual in nature” and (3) that any touching was without her consent: R. v. Ewanchuk, [1999] S.C.J. No. 10. If the Crown was able to prove those three elements of the offence, the Crown also had to prove beyond a reasonable doubt that when Mr. Hoque engaged in the criminal conduct he did so with the required “guilty mind”. For me to find Mr. Hoque guilty of sexual assault, I must also be satisfied beyond a reasonable doubt that Mr. Hoque touched Ms Y. intentionally and that he was either reckless or wilfully blind to her lack of consent to that sexual touching: see R. v. Ewanchuk, supra and s. 273.2 of the Criminal Code. As I will explain more fully below, although relevant to a determination of some of these other issues, the Crown need not prove Mr. Hoque intended to touch Ms Y. for a sexual purpose or in a sexual manner.
[6] Unlike most cases involving a charge of sexual assault, the determination of whether the Crown has proven Mr. Hoque’s guilt turns on the nature and context of his physical interaction with Ms Y. In most cases of alleged sexual assault, the second conduct element – whether the touching was of a sexual nature – is not seriously in issue and so the verdict will instead turn on the issue of whether the alleged sexual touching occurred or on the issue of whether there was a proven absence of consent. In this case, the defence argues that Mr. Hoque’s touching of Ms Y. was not sexual in nature as it was limited to what he believed was necessary to properly conduct the sleep study for which Ms Y. had voluntarily attended.
[7] The determination of whether a touching was of a sexual nature is an objective one (see R. v. Ewanchuk, supra at para. 25) that is based on a consideration of the context in which that touching occurred, as explained by the Supreme Court of Canada in R. v. Chase, [1987] 2 S.C.R. 293 (at para. 11):
Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S.J. Usprich"A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L. Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
[8] Based on Chase, and a number of appellate decisions which have followed it, the fact that Mr. Hoque may have had a legitimate non-sexual purpose for touching Ms Y. during the sleep study is not determinative of the issue of whether that touching was “sexual in nature”. For example, applying Chase, the Ontario Court of Appeal in R. v. Trachy, 2019 ONCA 622, held that the trial judge’s finding of a legitimate purpose behind a violin instructor’s touching of his female students’ upper breasts was not determinative of whether that touching was objectively sexual in nature. Considering the contextual factors present in that case, the Court of Appeal held that the accused’s touching of his students’ breasts objectively violated their sexual integrity even though it was a non-sexual purpose: Trachy, supra at para. 73. In other words, even were I left with a reasonable doubt as to whether Mr. Hoque’s touching of Ms Y. was for a sexual purpose, that would not preclude a finding that his touching of Ms Y. during the procedure was objectively sexual in nature. While a medical purpose for a touching is a very important consideration (see, for example, R. v. Marshall, 2017 ONCA 801), Chase requires that the objective analysis of whether a touching in a medical context also consider “[t]he part of the body touched, the nature of the contact [and] the situation in which it occurred”.
[9] If I were satisfied that the alleged touching of Ms Y. was “of a sexual nature”, then the question would be whether the touching was consensual or not. In the context of a sexual assault charge, the Crown must prove beyond a reasonable doubt that a sexual touching occurred without the complainant’s consent. In R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, the Supreme Court of Canada re-emphasized that the issue of whether there was an absence of consent to a sexual touching is to be decided exclusively by reference to the complainant’s state of mind at the time of the touching. The Crown must prove beyond a reasonable doubt that the complainant did not want the sexual touching to take place. On the facts of this case, the defence does not suggest there is any doubt that Ms Y. did not want to be touched in a sexual manner. Rather, the defence contends that there was implied consent to a non-sexual touching by virtue of Ms Y.’s voluntary attendance at the clinic for the sleep study.
[10] In Ewanchuk, the Supreme Court of Canada was faced with the issue of whether a complainant’s passive acquiescence to sexual touching could amount to “implied consent” so as to insulate that touching from criminal liability. The majority made clear that “[t]here is no defence of implied consent to sexual assault in Canadian law” (at para. 31):
Counsel for the respondent submitted that the trier of fact may believe the complainant when she says she did not consent, but still acquit the accused on the basis that her conduct raised a reasonable doubt. Both he and the trial judge refer to this as "implied consent". It follows from the foregoing, however, that the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant's testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law.
[11] At first blush, I wondered whether the Supreme Court of Canada’s express prohibition on the “defence of implied consent to sexual assault” precluded the defence from being raised at all in this case given the fact that Mr. Hoque is facing a charge of sexual assault. However, given the particular circumstances of the alleged sexual assault in Mr. Hoque’s case, I believe the doctrine of “implied consent” still has some potential application. If I am not satisfied that the touching of Ms Y. was objectively sexual in nature, the defence of implied consent would still be relevant to my analysis of whether Mr. Hoque’s touching of Ms Y. amounted to an unlawful assault, albeit not a sexual assault.
[12] Accepting then that the doctrine of “implied consent” could have some application to this case, the issue would be whether any non-sexual touching of Ms Y. fell within the scope of Ms Y.’s implied consent to be touched by a technician of the clinic during the sleep study for which she had voluntarily attended. The scope of implied consent in the context of an assault charge has been repeatedly considered over the past 50 years in a number of cases involving allegations of excessively violent acts committed during the course of inherently violent sports, such as hockey: see, for example, R. v. Cey, [1989] S.J. No. 264 (C.A.) and R. v. McSorley, 2000 BCPC 116, [2000] B.C.J. No. 1993 at para. 70 (B.C.P.C.). From reviewing that long line of authorities, I am satisfied that the scope of the implied consent in the context of this case is not to be equated with any formal written policies, but rather must include consideration of the “norms and customs” of sleep clinics which have developed over time: see R. v. Adamiec, [2013] M.J. No. 325 at paras. 30 and 31 (Q.B., sitting as S.C.A.C.).
[13] One obvious limitation on the scope of any implied consent to be touched during the course of a medical procedure is that any touching be done for a legitimate medical purpose. In R. v. Jobidon, [1991] 2 S.C.R. 714, while recognizing the legal validity of a defence of implied consent to a bar fight, the Supreme Court of Canada made clear that the defence of consent could not insulate contact made for the purpose of causing serious bodily harm. The Court reasoned that it would be unreasonable to expect someone would have consented to an application of force intended to cause them bodily harm. Similarly, in the context of a medical procedure, while it may be reasonable to assume a patient implicitly consented to being touched for purposes genuinely related to that procedure, it is unreasonable to expect that a patient would have consented to being touched for the purpose of the medical staff’s sexual gratification. In this case, if I am satisfied beyond a reasonable doubt that Mr. Hoque’s purpose in touching Ms Y.’s upper torso or her inner thigh was for his own sexual gratification that touching would have exceeded the boundaries of any implied consent arising from Ms Y.’s voluntary participation in the sleep study, regardless of whether such a sexual purpose was enough on its own to also support a finding that the touching was objectively sexual in nature.
[14] Conversely, even if I were left with a reasonable doubt as to whether Mr. Hoque’s purpose in touching Ms Y. was sexual, that would not mean that his touching of Ms Y.’s upper torso and inner thigh necessarily fell within the scope of her implied consent to be touched for the sleep study. In much the same way that a patient could not reasonably be thought to have consented to being touched for the medical staff’s own sexual gratification, the “defence of implied consent” does not insulate a medical staff’s touching of a patient in an objectively sexual manner: see Trachy, supra, Marshall, supra and R. v. Mastronardi, 2014 BCCA 302. As already noted, in Ewanchuk, the Supreme Court of Canada held that the defence of implied consent does not apply to sexual assault. In other words, if I am satisfied that the Defendant’s touching of Ms Y. was objectively sexual in nature, that conduct would be criminal unless there is reasonable doubt Ms Y. may have actually consented to being touched in that manner as the doctrine of implied consent would have no application.
[15] Any concern that this approach risks imposing criminal liability on an objective basis is answered by the fact that the objective analysis of whether the touching during the procedure was sexual in nature determines only the actus reus of the sexual offence charged, and not its mens rea. As the Supreme Court of Canada explained in Ewanchuk, the question of whether a touching is of a sexual nature is determined objectively and the question of whether there was in fact consent is determined from the perspective of the complainant, not the accused. Indeed, there is nothing unfair in concluding that a patient would not in fact have consented to being touched during a medical procedure in a manner which the trier of fact has found to be objectively sexual in nature based on the factors set out in Chase.
[16] Before turning to my assessment of the evidence and how it applies to the legal framework I have identified, I need to address the potential mens rea issues in this case. On the evidence before me, I queried whether the Defendant may have alternatively been saying that, at a minimum, he honestly believed his touching of Ms Y. was part of a legitimate medical procedure and so it was not criminal. As I have already explained, if the Defendant had an honest but mistaken belief about the legitimacy of his actions that would not preclude a finding that the touching was objectively sexual in nature, as the purpose of the touching is but one factor to consider in that determination. As for the potential impact of the Defendant’s evidence on the mens rea required for the offence to be made out, counsel for the Defendant expressly disavowed any claim to a defence of honest but mistaken belief in consent. Given the evidence at trial, this was an appropriate concession. There was no air of reality to the Defendant having taken “reasonable steps” to ensure that Ms Y. was consenting to him touching her upper inner thigh while she was naked from the waist down, a specific requirement prescribed by s. 273.2 of the Code. Moreover, in view of the Defendant’s position of trust at the time of that touching, there was a heightened need for the Defendant to have proceeded cautiously and to avoid any mistakes about what touching Ms Y. may have allowed: see R. v. Barton, supra at para. 108.
[17] In effect, a defence claim that any touching of an objectively sexual nature was done with a belief that it was for a legitimate medical purpose would amount to a defence of mistaken belief in implied consent, not a mistaken belief in actual communicated consent. For the reasons set out by the Supreme Court of Canada in Ewanchuk, once the Crown has proven the actus reus elements of sexual assault, our law does not recognize a defence of mistaken belief in implied consent.
Summary and assessment of the evidence
[18] In support of his defence to the charge, Mr. Hoque has testified that the nature and circumstances of the alleged touching was somewhat different from what Ms Y. described in her evidence. The Supreme Court of Canada has said that in cases where the defence has presented evidence which itself is capable of raising a reasonable doubt about any element of a criminal charge, judges should assess the evidence heard at the trial using the following approach:
If a court accepts an accused’s testimony disputing one or more essential elements of the crime, the accused must be acquitted.
Even when a court does not accept the accused’s testimony, if that defence evidence raises a reasonable doubt about the accused’s guilt, they must still be acquitted.
If a court rejects the exculpatory defence evidence, the court must not then simply assume that the opposite is true. Instead, a court must go on to consider whether the other evidence at trial – the evidence presented by the Crown – when considered as a whole, proves the charge beyond a reasonable doubt.
[19] In the context of this case, my decision about whether the Crown has proven Mr. Hoque’s guilt does not translate into a credibility contest between him and Ms Y., nor between him and any of the other Crown witnesses. The question is not whose evidence I believed more. Even if I preferred the testimony of the Crown witnesses to Mr. Hoque’s testimony, that would not mean that the Crown has discharged its burden of proving Mr. Hoque’s guilt beyond a reasonable doubt. Equally, even if I were to reject Mr. Hoque’s testimony, the fact that I preferred any or all of the testimony from the Crown witnesses would not necessarily mean that their testimony satisfied me of Mr. Hoque’s guilt beyond a reasonable doubt.
[20] Before I address the testimony of the only two witnesses who were present for the physical interaction at issue in this case, I should say that I accept the evidence of Ms Nelson and the expert opinion evidence of Mr. Massicotte. Although there were some significant limitations to the impact of their evidence on the issues to be decided, there was no real challenge to the credibility or reliability of what either of them had to say. I will refer to portions of each of their evidence at various points during my analysis.
[21] Mr. Hoque testified that he had been a sleep technician since 2013. He had worked at a number of other sleep clinics before starting at the Oshawa sleep clinic in or around April of 2022. When he testified at trial, he claimed to have a good memory of what happened on the night in question. After meeting Ms Y. in the reception area, he escorted her upstairs to the private room where she would be sleeping. Mr. Hoque testified that when he reviewed Ms Y.’s medical chart, he noticed that the reason for her referral to the sleep clinic seemed very unusual; namely, that she was making an abnormal sound in her sleep. Because her sleep study had been “fast-tracked”, she had not consulted with the sleep clinic’s doctor. Mr. Hoque testified that the “very unusual” reason for her doctor’s referral suggested to him that Ms Y. may have been suffering from sexsomnia, a very rare condition which he had experienced one time before at a previous clinic and which he had studied during a 3-month course years earlier. Mr. Hoque decided that he would place a probe to test for sexsomnia.
[22] Once Ms Y. had changed into her bed clothes, Mr. Hoque commenced the procedure. He began by explaining the placement of the probes and their purpose. However, he never claimed that he had shared with Ms Y. his suspicion that she may be suffering from sexsomnia. Mr. Hoque testified that he told her at the outset, and reminded her throughout, that if she had any concerns or felt uncomfortable, she should just say so and he would then stop. He began placing the probes on Ms Y.’s body. When he got to the probes and belt being placed on her upper torso, he asked her to remove her shirt so that he could secure the belt directly on her and stick the probe on the skin underneath her breast. From his experience, placing the belt over top of the clothing impedes a good fit and allows for the belt to shift, both of which can impair the quality of the data recorded. Mr. Hoque testified that anything which requires him to wake the patient in order to fix or adjust the probes risks creating data artefacts by unduly interfering with the patient’s normal sleep pattern. This, in turn, could result in the patient having to return another night to repeat the sleep study. He also testified that, based on his years of experience, he would usually place a probe near the heart underneath the breast. It was therefore necessary for Ms Y. to expose her chest so that he could apply the paste and then affix the probes to that part of her chest.
[23] Mr. Hoque testified that when it came to placing the probes on Ms Y.’s lower body, he decided to place a probe on the upper part of her thigh near her genitalia to see if there was any kind of muscle contractions in that area during her sleep. Although Mr. Hoque agreed with Mr. Massicotte’s expert opinion that there was no need to place a probe on Ms Y.’s inner thigh, he testified that he felt this was his only option “to get a signal for an electromiagram”, an instrument which measures muscle movement. Mr. Hoque believed that he was exercising his professional judgment as an experienced sleep technician to place an extra probe for the purpose of gathering additional information which could assist with a diagnosis of the patient’s sleep disorder. Mr. Hoque admitted to having asked Ms Y. to remove her pants and underwear but claimed that he was worried that her wearing underwear to sleep could also interfere with the integrity of the sleep study. While Mr. Hoque admitted to having placed a probe on Ms Y.’s upper inner thigh, he denied having moved her hand away from her genitals. According to him, everything he did was both necessary and appropriate for the purpose of conducting a good sleep study for the patient’s benefit.
[24] Although I have ultimately concluded that there was no incriminating inference to be drawn from it, Mr. Hoque admitted that he had attempted to contact Ms Y. through her Instagram social media profile several weeks after the sleep study. As Mr. Hoque explained at trial, he did not attempt that contact until after he had already been suspended by the sleep clinic’s management in relation to Ms Y.’s allegation of misconduct. Mr. Hoque testified that, following his suspension, he had no way of discovering her phone number but had managed to uncover her Instagram profile through an online search. He had wanted to speak with Ms Y. about why she had complained but then changed his mind out of fear that him contacting Ms Y. would upset her even more.
[25] Ms Y. also testified about her interaction with Mr. Hoque during the night of her sleep study. According to her, the process began with Mr. Hoque taking measurements of her height and weight, which included him placing a tape measure around her chest. She did not express any concerns about that. Prior to Mr. Hoque beginning to place any of the probes on her, he explained what every little thing did in order to put her at ease. She testified that he began by placing probes on her head and face. Although she could not remember exactly what was said, Ms Y. testified while he was attaching the probes, Mr. Hoque commented that she had a “very beautiful face” and that she “looked like or could be a model”. Ms Y. took these remarks as a compliment. In response to her asking him if he had ever seen anything funny during the sleep studies, he said that he had seen women orgasm while they were sleeping. After he had finished with her head and face, Mr. Hoque asked Ms Y. to remove her top so that he could install probes on her chest and torso. He first cleaned the areas with some alcohol and then applied some paste to affix the probes, two just below her collar bone and two more just below her breast. He also attached a strap there. He then left her room to attend to other patients.
[26] After returning to her room, Mr. Hoque turned his attention to her lower body. He directed her to remove her pants and then her underwear. Although she felt uncomfortable doing so, Ms Y. trusted Mr. Hoque’s direction because he was a medical professional, something she reiterated repeatedly when asked in cross-examination about various parts of the procedure. Nevertheless, Ms Y. had her hands covering her vagina as she sat on the edge of the bed with him in front of her cleaning the area on her inner thigh where he eventually placed a probe. At one point, Mr. Hoque used one of his hands to push her hand away from her genitals. After he had affixed the probe, Ms Y. asked him if she could put her underwear back on. He said no because she had to “let it breathe” and then tossed her underwear further across the room. When she asked if she could put her pants back on, he said yes. He then asked her if she wanted to sleep naked and she told him “absolutely not”. When Ms Y. got home the next morning, she felt that Mr. Hoque had behaved inappropriately during her sleep study and so contacted the police. Several weeks after she had reported the incident to the police, she received a notification on her Instagram social media account that Mr. Hoque had tried to add her as a “friend”.
[27] I do not accept all of Mr. Hoque’s testimony about what he did or said when conducting Ms Y.’s sleep study. Although there were no material inconsistencies in his testimony, some of it seemed to defy common sense. I certainly do accept the portions of Mr. Hoque’s evidence which are consistent with Ms Y.’s evidence, and vice versa. As I discuss more fully later in my reasons, the confirmatory support of Ms Nelson’s evidence leads me to also accept Mr. Hoque’s testimony about why he believed it appropriate and necessary to have Ms Y. remove her shirt so that he could place the probe and belt directly on her chest below her breasts. On the other hand, Mr. Hoque’s explanation for how and why he decided to place a probe on Ms Y.’s inner thigh in order to test for a very rare sleep disorder is incredible. He had very little training and almost no experience with sexsomnia. Despite having never before formed his own opinion that a patient may suffer from sexsomnia, he claimed to have suspected this very rare disorder solely because Ms Y. had reported making an abnormal noise in her sleep. Of the approximately 2000 patients he had dealt with as a sleep technician, Ms Y. was the first patient he had decided to add the extra probe on her inner thigh. All that said, I accept Mr. Hoque’s testimony that, based on his formal education as a doctor and his decade of experience as a registered sleep technician, he genuinely believed that placing the probe on Ms Y.’s inner thigh would benefit her medical condition.
[28] I accept most of Ms Y.’s evidence about what Mr. Hoque said and did during her attendance for the sleep study. Most of her evidence was not seriously challenged by the defence given that it was echoed in Mr. Hoque’s testimony. There were no inconsistencies in Ms Y.’s testimony, and she testified in a fair and reasonable manner, including when being cross-examined. Based on Ms Y.’s evidence, I am satisfied beyond a reasonable doubt that Mr. Hoque directed her to remove her shirt so that she was standing topless as he attached the probe and belt below her breasts. Based on her evidence, I am also satisfied beyond a reasonable doubt that Mr. Hoque directed her to remove her pants and underwear, that he physically moved the hand she was using to cover her vagina, and that he swabbed an area of her upper inner thigh before affixing a probe with tape.
[29] As for Ms Y.’s testimony about some of Mr. Hoque’s complimentary or seemingly sexualized remarks, I have some doubt about its reliability. While I do not doubt that Ms Y. honestly remembered Mr. Hoque saying things similar to what she recalled during her testimony, she was unable to recall the details of the conversations in which she claimed those remarks were made. Until Mr. Hoque had directed her to remove her pants and underwear and had then swatted her hand away from her vagina, Ms Y. did not seem to believe that he had been doing anything inappropriate. There was no suggestion that Mr. Hoque had tried to make incidental contact with her breasts or vagina nor that he had lingered when swabbing near those areas or when affixing the probes. In other words, according to Ms Y., apart from his intermittent comments, the only time Mr. Hoque touched her in a way she had perceived to be inappropriate was when he swatted her hand away from covering her vagina. I have some concern that her memory of the earlier conversations with Mr. Hoque was unwittingly coloured by what she only later perceived to have been an inappropriate interaction. While I believe that what Ms Y. remembers about Mr. Hoque’s remarks are probably true, her evidence in this regard is not sufficiently reliable either to make findings of fact favouring the Crown’s case against Mr. Hoque or to use as a reasoned and considered basis to reject Mr. Hoque’s evidence.
Analysis
[30] For reasons I have already set out when discussing the appropriate legal framework for analyzing whether the Crown has proven Mr. Hoque guilty of sexual assault, it is appropriate for me to begin with a determination of whether the evidence proves beyond a reasonable doubt that the two alleged instances of touching were for a sexual purpose. The Crown submits that the evidence proves there was a sexual purpose behind Mr. Hoque’s decisions to affix the probes to Ms Y.’s naked torso below her breasts and to her naked inner thigh. His compliments about her appearance, his response about having once seen a woman orgasm while asleep and his invitation for Ms Y. to sleep naked are certainly probative of a sexual interest in Ms Y. While that is strong circumstantial evidence of a sexual purpose behind Mr. Hoque’s touching of Ms Y.’s naked chest and upper inner thigh, there is no direct evidence that Mr. Hoque had a sexual interest in Ms Y. Given the circumstantial nature of the Crown’s case that Mr. Hoque’s purpose in the two alleged touchings was sexual, I must be satisfied beyond a reasonable doubt that there is no plausible innocent theory to explain those circumstances. I am not. Indeed, Mr. Hoque’s testimony leaves me with some doubt about that. It is reasonably possible that he decided to attach the probes below Ms Y.’s naked breasts and to place a probe on her upper inner thigh because he honestly believed those things were necessary for the discharge of his professional duties as a sleep technician. I am not satisfied beyond a reasonable doubt that Mr. Hoque’s purpose in doing these things was sexual.
[31] As I have already explained, however, my doubt on that issue does not alone determine whether Mr. Hoque’s touching of Ms Y. was sexual in nature. The determination of whether the specific instances of touching in this case were of “a sexual nature” also requires a consideration of “[t]he part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct”.
[32] Having regard to those other factors, in the absence of a clear finding that his purpose was sexual gratification, I am not satisfied beyond a reasonable doubt that Mr. Hoque’s touching of Ms Y.’s naked upper torso to attach the probes and the belt was “sexual in nature”. The evidence of both Mr. Massicotte and Ms Nelson suggests that it was not unreasonable for a sleep technician with a decade of clinical experience, like Mr. Hoque, to believe that attaching the probes and belt to a patient’s skin below the breast line could improve the quality of the data generated by a patient’s sleep study, even though doing so has now been shown to be scientifically unnecessary. Although Mr. Massicotte explained that placement on a patient’s skin underneath the breasts is now considered to be inadvisable because of privacy concerns and concerns about perspiration damaging the equipment, the evidence at trial suggests that some sleep technicians have utilized that placement on their patients. As he explained when referencing page 6 of his report (entered as Exhibit 5), the main governing body of polysomnogram professionals had included a diagram of a patient’s naked upper torso with a “+” probe being placed directly on the skin below the left nipple. His report also quoted a statement from the manufacturer of the belt that “it is not necessary to place the belts on bare skin” – suggesting that the belt does work, and possibly better, if placed on bare skin. Similarly, Ms Nelson’s evidence (as confirmed by her inter-office memo entered as Exhibit 10) showed that the sleep clinic had only recently decided to stop placing probes underneath the breast of female patients out of concern for potential patient complaints and not because those probes were scientifically useless. From the phrasing of her memo, I infer that Ms Nelson and the sleep clinic believed that probes placed underneath a female’s breast would still produce valid medical information, even though they had also recently come to believe that less invasive front torso probes “work just as well”.
[33] Although the value of the probes and the belt being on the skin underneath a patient’s breasts seems to have waned according to many in the polysomnogram community, I am unable to conclude that Mr. Hoque’s touching of Ms Y.’s naked chest was “sexual in nature”. The fact that the current gold standard for sleep technicians suggests a different placement of the probes and belt on the upper torso does not mean that Mr. Hoque’s decision to place them on Ms Y.’s naked upper torso was medically useless and, therefore, objectively unrelated to Ms Y.’s sleep study. When considered as a whole, the evidence of Mr. Massicotte, Ms Nelson and Mr. Hoque leaves me with much doubt as to whether it would have been unreasonable for a technician like Mr. Hoque to believe from his years of placing probes under patients’ breasts that it was still better practice to continue doing so despite newer concerns about patient modesty. There was no evidence in this case that, as a matter of practice, Mr. Hoque did not place the probes and the belt on the naked chest of all his patients, both male and female. Equally, there was no evidence from Ms Nelson that Mr. Hoque had ever been admonished for continuing to place probes and the belt on his patients’ naked chests. While disregard of recent clinic or industry guidelines may now justify the clinic taking disciplinary action against Mr. Hoque in the employment context, in the absence of any licencing requirement demanding that a sleep technician like Mr. Hoque be aware they must strictly adhere to current guidelines, I am not satisfied that the guidelines set out by Mr. Massicotte or by Ms Nelson establish a bright line capable of dividing legitimate and illegitimate medical treatment in the criminal law context. Having considered all of the circumstances surrounding Mr. Hoque’s touching of Ms Y.’s naked upper torso, I am not satisfied beyond a reasonable doubt that this particular touching was of “a sexual nature”.
[34] Furthermore, in view of my reasonable doubt about both the objectively sexual nature and the alleged sexual purpose of Mr. Hoque’s touching of Ms Y.’s naked chest, I must consider whether the Crown has proven beyond a reasonable doubt that this non-sexual touching lacked consent and, thus, may have amounted to a non-sexual assault. Despite the absence of any express consent, Mr. Hoque argues that this non-sexual touching fell with the scope of the defence of implied consent arising from Ms Y.’s voluntary attendance for the sleep study. While the diagram which accompanied the patient information package might be taken to say that probes will only be placed on a patient’s body that is not covered by clothing, the wording of the information package suggests something different. For example, while the diagram shows about a half-dozen sensors, the accompanying memo tells the patient that there will be “21 electrodes and sensors” and that those will be placed on the “head, face, check [sic: chest] and legs”. Again, by contrast, the diagram does not show any probes on the patient model’s chest. Similarly, the memo refers to soft bands being placed around the patient’s “chest and stomach”, without any mention of whether it is better to have those placed over or under a patient’s clothing. Indeed, as Mr. Hoque explained in his testimony, one putative disadvantage he had encountered when placing the bands over top of a patient’s clothing is that the bands have a greater tendency to slide up and down the patient’s body during the night while they are asleep and thereby can negatively impact the quality of the data generated. Most significantly, Ms Y. never testified that, based on her review of the clinic’s information package, she expected to not have any probes placed underneath her breasts beneath her shirt. The Crown has not proven beyond a reasonable doubt that Mr. Hoque’s non-sexual touching of Ms Y.’s naked upper torso near her breasts exceeded the scope of any implied consent to be touched resulting from Ms Y.’s voluntary attendance for the sleep study.
[35] The touching of Ms Y.’s naked upper inner thigh to attach the probe is materially different from the touching of her naked upper torso. Even though Mr. Hoque may have honestly believed otherwise, I am satisfied that there was no valid medical purpose for attaching a probe to her inner thigh. Apart from the testimony of Mr. Hoque that he had once been involved in a sleep study examining the phenomenon of sexsomnia, there was no evidence that there could ever be medical value to affixing a probe to a patient’s upper inner thigh, whether to investigate sexsomnia or otherwise. Not only did the defence never seek to have Mr. Hoque qualified to provide expert opinion evidence on the potential scientific validity of such a probe placement, but his testimony also leads me to find beyond a reasonable doubt that he was not so qualified. Instead, I accept Mr. Massicotte’s expert opinion that affixing a probe to that part of a patient’s body would be scientifically useless. While I agree with the defence that Mr. Massicotte had no qualified expertise in the area of sexsomnia, in the context of this factual issue, that particular lack of expertise is a red herring. Mr. Massicotte was qualified to give expert opinion on the science of polysomnograms and therefore was qualified to reliably say that no valid medical data can be measured from placing a probe on a patient’s upper thigh during a sleep study. Mr. Massicotte’s testimony in this regard was the equivalent of an expert explaining why placing a thermometer in the palm of a patient’s hand could not produce any information of value for analyzing that patient’s internal body temperature. Objectively speaking, Mr. Hoque’s touching of Ms Y.’s inner thigh had no potential medical value, so it was unrelated to the non-sexual medical “situation in which it occurred”.
[36] An accused medical professional’s honest belief that their actions could medically benefit their patient does not command a legal conclusion that those actions are insulated from potential criminal liability. While we must afford medical professionals a wide berth for the exercise of their discretion when they are treating us, this does not mean that we also give them carte blanche to conduct any procedure they believe might benefit us simply by asking them to heal us. The common law requirement of informed consent to medical treatment suggests otherwise: Fleming v. Reid, [1991] O.J. No. 1083 (C.A.).
[37] I am also not moved by Mr. Hoque’s testimony that he made a legitimate medical decision to touch Ms Y.’s upper inner thigh based upon his single experience years earlier with another patient who had been suspected of suffering from sexsomnia. Even were I to accept the portion of Mr. Hoque’s testimony about him affixing that probe in an effort to rule out this possibility for Ms Y., his testimony would not have assisted him in raising a doubt that this touching of her inner upper thigh was of “a sexual nature”. If Mr. Hoque had in fact believed that touching Ms Y.’s inner upper thigh was needed to test her for a rare sexual disorder, then he must have also believed that he was touching a “part of the body” that was directly related to her sexual integrity. More importantly, I accept Ms Y.’s evidence that she covered her vagina with her hand as Mr. Hoque was in the process of touching her upper inner thigh. Regardless of whether I also accept her evidence that Mr. Hoque pushed her hand away (which I do), the fact that Ms Y. felt it necessary to cover her vagina also weighs in favour of a finding that Mr. Hoque’s touching of her naked upper inner thigh was perceived by her to be sexual in nature. When contrasted with Ms Y.’s lack of effort to shield herself or to prevent Mr. Hoque from touching her upper torso, Ms Y.’s actions in relation to her lower body show that she experienced Mr. Hoque’s touching of her naked inner thigh as an interference with her sexual integrity, the essence of the test for whether a touching was objectively sexual in nature.
[38] I am also satisfied beyond a reasonable doubt that Mr. Hoque understood that the sleep clinic he had been working at for over a year had warned technicians that female patients would be offended by having male technicians install probes near their breasts. I am satisfied from the evidence that Mr. Hoque knew the information package sent to his female patients said nothing about a patient, let alone a female patient, having to remove their pants and underwear to allow the technician to attach a probe to their upper inner thigh. Indeed, the clinic documents clearly connote the opposite; namely, that a patient will not have to expose their genital area to a technician during the sleep study. The evidence also shows that Mr. Hoque had been made aware of the sleep clinic’s policy to stop male technicians from attaching the chest probes or belt to female patients’ naked upper torso. Although there was nothing in the office memos about male technicians avoiding contact with female patients’ naked pelvic areas – because the lack of scientific value to installing probes near that area made it unforeseeable – the clinic had made clear to its staff that the privacy interests of female patients should limit where male technicians touch them. I find that the clinic’s policy about cross-gender touching is one of the additional “circumstances surrounding the conduct” which weighs in favour of a finding that a “reasonable observer” – especially if that observer was a reasonable sleep technician – would have viewed Mr. Hoque’s extraordinary touching of Ms Y.’s upper inner thigh as objectively sexual in nature.
[39] In light of all the factors I have discussed, I am satisfied beyond a reasonable doubt that Mr. Hoque’s touching of Ms Y.’s upper inner thigh was objectively sexual in nature. In view of that finding, I need not consider whether Ms Y.’s voluntary attendance at the clinic for the sleep study amounted to implied consent to the touching. There is no defence of implied consent to a touching of a sexual nature, that is, to a sexual assault. Assuming that any putative consent by Ms Y. to having her inner thigh touched was not legally vitiated by s. 265(3)(d) or s. 273.1(2)(c) (see R. v. Lutoslawski, 2010 ONCA 207, aff’d 2010 SCC 49), I am satisfied from the evidence that Ms Y. did not want to be touched in a sexual manner by Mr. Hoque. Ms Y.’s uninformed acquiescence to her sleep technician touching her in a way which violated her sexual integrity did not amount to consent: see R. v. Emerson, 2022 BCCA 5. As Ms Y. explained in her evidence, she only allowed Mr. Hoque to touch her naked inner thigh because she felt she had no choice given that he was the medical professional conducting her sleep study.
[40] I am also satisfied beyond a reasonable doubt that Mr. Hoque was either reckless or wilfully blind to the fact that Ms Y. had not communicated consent to him touching her inner thigh in a manner which violated her sexual integrity. Mr. Hoque’s perception of Ms Y.’s consent to being touched as part of the standard sleep study had little or no bearing on whether he could honestly have believed that she was consenting to the touching of her upper inner thigh while naked from the waist down. As the Supreme Court of Canada said in R. v. J.A., 2011 SCC 28 at para. 34: “the consent of the complainant must be specifically directed to each and every sexual act”. Even on Mr. Hoque’s own evidence, he knew that placing a probe on a female patient’s inner thigh was extremely rare, as rare as the condition he claimed to be investigating by placing it there. He knew that the information provided by the clinic to patients says or shows nothing to suggest that patients should expect to be asked to remove their pants and underwear and be touched near their genitals. More significantly, when Ms Y. covered her vagina with her hand after removing her pants and underwear, it must have been clear to Mr. Hoque that his conduct was causing her to feel uncomfortable. Pushing her hand away from her vagina was the opposite of an effort to resolve the question of consent. In doing so, Mr. Hoque demonstrated a reckless disregard for whether Ms Y. had communicated her consent to having him take the extraordinary step of placing a probe on her upper inner thigh near where she had been covering herself with her hand.
[41] There was also no legally or factually viable defence of honest mistaken belief in consent in this case. As noted earlier, the defence expressly disavowed any claim to such a defence, even had one been legally available. Section 273.1(2)(c) of the Code would seem to have prevented any such claim on the basis that Mr. Hoque was clearly in a position of trust or authority at the time he was touching Ms Y. in an objectively sexual manner. It was not enough that Mr. Hoque may have told Ms Y. at the outset of the procedure to object if she had any concerns about what he did later. When she was asked at trial why she did not object to the subsequent touching of her inner thigh, something which she was never legally required to do, Ms Y. testified that she trusted Mr. Hoque because he was a medical professional.
[42] In any event, the evidence overwhelmingly proved that Mr. Hoque failed to take the reasonable steps which the situation would have required for a viable claim of honest mistaken belief that his patient was consenting to sexual touching. In cross-examination, Mr. Hoque admitted that he deliberately chose to not ask Ms Y. if she was okay with him touching her inner thigh because he did not want to upset her. Moreover, on the basis of Ms Y.’s evidence that Mr. Hoque pushed her hand away as she had been trying to cover her vagina prior to the touching, it was entirely unreasonable for Mr. Hoque to rely upon his earlier admonitions that she should feel free to speak up if he was doing anything which made her feel uncomfortable. There is no evidence of Ms Y. having said or done anything which could raise a reasonable doubt that Mr. Hoque honestly believed that she was consenting, regardless of whether he may have taken reasonable steps to check if she was. I am satisfied from Ms Y.’s evidence that she most certainly was not consenting to the sexual touching. At its highest, Mr. Hoque’s testimony may have supported a finding that he believed she was not objecting. That is not a defence, nor does it weigh against a finding that he had the required mens rea.
[43] Even though I have some doubt as to whether he did so for a sexual purpose, I am satisfied beyond a reasonable doubt that Mr. Hoque intentionally touched Ms Y. in a manner which was objectively sexual in nature knowing that she had not consented to it.
Conclusion
[44] Mr. Hoque is found guilty of the charge.
Released: May 16, 2025
Signed: Justice P.K. Burstein