COURT FILE NO.: 892/11

DATE: 20120817

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

MABEL LAI and JEREMY SCHAFFER, for the Respondent/Crown

Respondent

• and -

ROBIN WOOLLAM

MARK J. SANDLER, for the Applicant

Appellant

AMENDED

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice B. Duncan,

dated November 24, 2010]

DURNO J.

[1] J.P. testified the appellant, her family doctor, sexually assaulted her while conducting an examination. The appellant denied the allegation. The trial judge found that viewing his evidence alone there was nothing that would cause him to reject his testimony, but concluded the strength of J.P.’s evidence combined with other points “overwhelmed” the appellant’s evidence, convicted the appellant of sexual assault and imposed a conditional sentence.

[2] The appellant appeals against the conviction contending the trial judge erred in his use of J.P.’s post-event condition and conduct, misdirected himself as to the relevance of J.P.’s suspicions about the appellant, misapprehended the relevance of other evidence, and misapplied R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[3] For the following reasons, the appeal is dismissed.

The Evidence

[4] The appellant, age 58, had been practicing family medicine for over 30 years. J.P., age 21, had been a patient at the clinic where the appellant worked for eight or nine years and had been the appellant’s patient for four years. J.P. was also a nursing student and worked part-time at the clinic. The clinic had seven doctors who saw patients throughout the day and an evening clinic staffed by one doctor and one support person.

[5] J.P. and the appellant agreed they liked each other and had a friendly relationship. She respected him as a doctor. He thought she was a terrific employee and quite pleasant as a patient. They got along really well. He thought they had a close relationship, although he regarded her as a fragile person. There were no issues between them. Both testified they had no romantic or sexual interest in the other.

[6] On June 5, 2009, J.P. was treated in a hospital emergency ward for kidney stones. During that examination, diagnostic imaging revealed the existence of kidney stones and a large ovarian cyst. She was told to have a follow-up examination.

[7] The appellant testified that while ovarian cysts may decrease in size spontaneously, they should be closely watched because continued growth may foreshadow cancer. On June 8, 2009, J.P. had an appointment with the appellant, attended with her mother and told the appellant she continued to experience pain. At a June 10^th appointment she was told to book another appointment the next week but did not do so.

[8] The evening of June 16, 2009, was the second time the appellant and J.P. worked together at the after-hours clinic. The appellant asked how she was feeling and offered to conduct the follow-up examination at the end of the shift. J.P. was initially reluctant because she was not in pain, did not feel the examination was necessary, and had planned a monthly “anniversary” with her boyfriend to watch a movie after work. She eventually agreed to the examination.

[9] J.P. said after the last patient left, the appellant asked her to wait until he had completed some paperwork. She waited for 15 to 20 minutes until he finished and later suspected he had wanted to wait until Michelle Rae, a therapist who shared space in the clinic, had left. J.P. testified she saw Ms. Rae leaving just before she was walking into the examination room. She said Ms. Rae would have to pass the appellant to leave the building, although she did not know whether the appellant saw her leave.

[10] J.P. testified that in the examination room, the appellant lifted and palpated her upper abdomen and checked her ovaries as she lay on the table. When he asked if he could undo her drawstring, she said he could but did not recall whether he undid it or she did. The appellant then began rubbing her stomach and talking to her for 10 to 15 minutes. He stopped talking and was looking at her and smiling.

[11] The appellant put his right hand under her pants and underwear and touched her, rubbing her labia and prepuce of clitoris and moving his fingers around in a back and forth motion. He put his left hand on her breast, initially over her bra and then under it, squeezing her breast and moving his hand back and forth over her nipple. This went on for perhaps five minutes.

[12] J.P. wanted to get out, sat up and said it was time to go. With the appellant close to her face, she turned, not knowing if he was trying to kiss her. He said, “I am attracted to you. Do you want to take this further?” When she said “No,” the appellant began to apologize repeatedly. She told him she thought he had crossed the line. He insisted on walking her to her car, which no other doctor had done for her at the end of an evening shift. The appellant had not done so the first night they worked together. She drove home a different way than she normally did because she saw the appellant’s car behind her at a red light at the first intersection and was not sure if he was following her.

[13] While J.P. thought the June 16 examination was unnecessary because she was not in pain, in cross-examination she admitted her medical conditions were neither minor nor trivial, she continued to experience pain on a regular basis, and had failed to book a follow-up appointment as recommended.

[14] When she got home, J.P. went directly to her room instead of talking to her mother as was her habit. Her mother, sensing something was wrong, went to J.P.’s bedroom to talk to her. J.P. was crying, shaking, and very upset. She was afraid she was going to vomit. J.P. told her mother what happened and they talked at length. J.P. decided she was not going to quit and run away from it. She was going to go back to work at the clinic.

[15] J.P.’s mother testified her daughter came home very agitated and quiet. She was very different from when she normally returned home after work. She could tell J.P. had been crying. After a little bit of prodding, her daughter broke down physically, started shaking and crying, and told her what had happened.

[16] During J.P.’s next shift at the clinic on Saturday, June 20, she told the office manager, Victoria Zacharias, the appellant “had touched her inappropriately and she did not want to work with him anymore.” Arrangements were made to accommodate her request. Ms. Zacharias testified J.P. seemed very calm when she spoke to her about the incident. Within days, the office manager and another doctor told J.P. they were going to report the incident to the College of Physicians and Surgeons.

[17] J.P. said the appellant had never expressed a romantic interest in her and continued, “Now that I look back at it, it makes sense, but at the time I didn’t look at it that way.” In hindsight, it made sense he was attracted to her, he was trying to get closer to her physically, probably emotionally too.

[18] In cross-examination, defence counsel (not Mr. Sandler) asked:

Q: … and is it fair to say that you believe that for some time Dr. Woollam was planning to take advantage of you, make a pass of you (sic), get to know you better and make sexual advances, that’s fair, isn’t it?

A: Yes.

Q: Okay, and you believe that very strongly, right?

A: I believe that now, I didn’t believe that at the time.

Q: But you do believe it now very strongly, right?

A: Yes.

[19] Defence counsel then questioned J.P. about the bases for those beliefs, relying largely on her statement to police. First, on June 16, 2009, the appellant told her, “I don’t think you get paid enough. I am going to pay you extra under the table” and gave her $15. She tried to give him the money back, but he insisted on her keeping it. J.P. believed it was part of his plan to take advantage of her. In cross-examination, while she conceded he might have been trying to be fair, it was not very professional of him.

[20] Second, when defence counsel asked J.P. whether she believed the appellant did not refer her to other doctors “often enough”, she said she felt he acted opportunistically by refusing to refer her to other doctors, concluding he wanted to be her only doctor. She had wanted to go to a dermatologist for her acne, but he did not make a referral. Instead, he twice prescribed birth control pills to address the issue. The appellant testified he treated her for acne, and it was not always necessary to send patients to a dermatologist for acne.

[21] The appellant did not refer her to an urologist for kidney stones as she thought should have been done. However, J.P. admitted the appellant had referred her to a psychologist and she never followed-up with the referral. With regard to head injuries received when she was age two and in grade six, J.P. thought the appellant should have ordered a CT scan and sent her to a neurologist or another specialist. Instead, he told her that was not necessary. The appellant testified there was no need to follow-up with a neurologist for childhood injuries incurred so many years earlier.

[22] Third, J.P. was upset that the appellant’s purported concern she might have a sexually transmitted disease (STD) was used as a pretext to conduct a vaginal examination. However, she admitted there was nothing improper about the manner in which she was examined, and she had told the appellant she had cramping, vaginal bleeding, and had had unprotected sex with her boyfriend. The appellant testified that in addition to concerns for STDs, he wanted to determine whether there was an ectopic pregnancy or pelvic infection. He had ordered an ultrasound six days earlier to follow-up on these concerns.

[23] Fourth, the appellant suggested J.P. told police it was always the appellant who booked her appointments, not his secretary, and that they were always at the end of the day, so they would be alone. For other patients, it was always the secretary who booked the appointments.

[24] Fifth, J.P. testified she found it unusual the appellant had personally called her when she missed an appointment. The appellant testified J.P. had cancelled her appointment after she had failed to attend on a previously scheduled one, and he was concerned about her abnormal vaginal bleeding. The appellant’s secretary testified she was busy, so the appellant called her.

[25] The appellant testified the medical conditions, in particular the cyst, were quite serious. With J.P. having failed to book the examination and being somewhat unreliable in following-up on medical advice, the evening of June 16 was a logical opportunity to examine her. He denied knowing if the therapist was at the clinic, although he suspected somebody was working there but did not know who it was or where they were working. His examination of J.P. was right after his last scheduled patient left at 8:00 p.m. or one minute after 8:00 p.m., as he was anxious to get home. J.P. locked the door to the outside at 8:00 p.m., as was the standard practice. He did not ask her to wait while he did paper work.

[26] While the appellant acknowledged examining J.P., there was no sexual touching. He examined her abdomen because he suspected the pain she reported was caused by a large ovarian cyst recently revealed through a CT scan. He also listened to her heart and chest with a stethoscope because the type of pain she reported, when combined with the cyst, can result in fluid collecting around the base of the right lung. J.P. testified he did not use a stethoscope on June 16.

[27] In examining her ovaries, the appellant said he touched J.P. beneath her scrubs but over her underwear. He tried to assess the cyst for rupturing, leaking, bleeding and infection. He never touched her genitals or breasts, never said he was attracted to her and never asked if she wanted to take it further.

[28] After the examination, they both left by the back door and made sure it was locked. They walked down from the third floor clinic, and he walked J.P. to her car, as he does with all female employees at closing for their safety. He acknowledged that he had not walked J.P. to her car the only other night they had worked together because she left at 8:00 p.m. before he had finished seeing all of his patients. Alena Vawro testified the appellant would walk her out of the clinic when they worked the evening shift and wait with her until her husband arrived to drive her home.

[29] The appellant agreed he had referred to J.P. in the past, including when her mother was present, as an intelligent and attractive young woman, in the context of addressing her anxiety and depression. He did not do so to advance any sexual interest on his part.

[30] He admitted booking appointments for J.P. on two occasions. On April 17, after J.P. attended for an examination, he booked the next appointment for April 22 at 4:30, the last appointment of the day, because his secretary had gone home for the day. On May 4, when J.P. cancelled an appointment, he called her and made an appointment for May 6. He made the call because his secretary was busy. It was not the last appointment of the day, although he testified J.P. had asked to come in as late in the day as possible.

[31] The appellant also admitted giving J.P. additional money but said it was only ten dollars, not fifteen as she testified. He intended to tell the bookkeeper to increase her pay when she was working for him but forgot to do so. They never worked together after June 16. He denied he ever used the words “under the table” in reference to the additional pay.

[32] The appellant did not complete the notes of his examination on June 16. When he was busy he might complete his notes later, usually the next day. That did not occur for this examination, probably because the chart had been re-filed by a staff member. Two weeks later, after the appellant learned of J.P.’s complaint, he wrote a lengthy note about the examination including the date upon which it was dictated. The appellant had also failed to record his interactions with two other patients he saw that night.

[33] The therapist, Michelle Rae, testified she reconstructed her day on June 16 from her records and memory and concluded she left the clinic around 7:15 to 7:30 p.m. That was earlier than her usual 8:00 p.m. departure, the time the clinic usually closed and earlier than both the appellant and J.P. said the examination occurred. Ms. Rae had no recollection of seeing the appellant or J.P. that night, although she did not know J.P. She drew a diagram of the clinic, and said she would not have to pass the appellant’s office and examination room to leave the building.

[34] Alena Vawro worked at the clinic and had been the appellant’s medical secretary for nine years. Her evidence about booking appointments in general and J.P.’s appointments will be reviewed under the second ground of appeal.

The Reasons for Judgment

[35] His Honour outlined the evidence, including a detailed account of J.P.’s evidence regarding the sexual assault. With respect to what occurred after the examination, the trial judge referred to the appellant walking J.P. to her car and continued:

When she arrived home she went straight to her room, contrary to her usual habit of talking with her mother with whom she was very close. Her mother immediately sensed that something was wrong and went to speak to her. The complainant was crying, shaking and very upset. She felt as if she was going to vomit. She told her mother what had happened. They talked it over at length and the complainant decided she was not going to quit and run away from it – that she was going to go back to work. On her next shift she told the officer manager, Vicki, what had occurred, though not in detail, and arrangements were made for the complainant to not work at the same time as the defendant. Within a couple of days the complainant was told by Vicki and another doctor in the clinic that the matter would be forwarded to the College of Physicians and Surgeons. A complaint to the College was something that the complainant and her mother had discussed and looked into on the College website. I was informed by counsel that she made a complaint to the College in addition to the one that came through the clinic.

[36] The trial judge examined the appellant’s submission that J.P. had suspicions the appellant had an unusual and inappropriate interest in her for some time before June 16 and that the examination was arranged to give him an opportunity to act on that interest. Defence counsel argued J.P. went into the examination room carrying her suspicions and interpreting what occurred through the lens of those suspicions. His Honour found that submission misapprehended J.P.’s evidence. Her suspicions were aroused in hindsight, after the incident. This was not a case of misinterpreting innocent acts. If the incident occurred, it was “blatant and obvious.”

[37] His Honour found J.P.’s suspicions regarding the appellant’s inappropriate interest in her before June 16 did not impact on his decision. Further, the trial judge placed no significance on Ms. Rae’s evidence, finding it was very vague, a “no doubt honest but imprecise reconstruction of an otherwise unremarkable day.” It lacked sufficient probative value to contradict anything. It was common ground the examination took place, and no one was left in the clinic, except the appellant and J.P.

[38] His Honour found the appellant:

… gave his evidence in an intelligent, articulate manner, as one would expect. His demeanour was unremarkable and provided no insight as to its honesty or dishonesty. No major contradiction or flaw was uncovered in cross-examination. There was nothing about it, if viewed in isolation that would cause me to reject it as untrue. His evidence however, must be assessed, not in isolation, but in relation to other evidence in the case, including the evidence of the complainant.

[39] The trial judge examined J.P.’s evidence as follows:

She presented initially as an extremely nervous individual. It will be recalled that one of the issues that she saw the defendant for was an intense fear of public speaking. She was shaking when she took her oath and began her evidence, though she gradually settled down and appeared to be as comfortable as most witnesses by the end of her time on the witness stand. Her evidence was delivered in an even way without a hint of vindictiveness or malice toward the defendant; to the extent that an emotion could be identified and characterized, she spoke as one who had been hurt and betrayed by someone she admired and trusted. The content of her evidence was very precise and detailed – the manner and place of touching, the words used, the look on the defendant’s face. There were no significant contradictions or inconsistencies in her evidence. She is an undoubtedly intelligent witness and a responsible person, not flighty or fickle, who fully appreciates the gravity and implication of her allegations and the moral and legal duty to be truthful. She impressed me as one who came to court to give her evidence because she believed that it was the right thing to do, despite the pain and augmented anxiety it caused her.

I consider the evidence of the complainant’s condition and conduct after the incident to be pivotal to this case. In my view it is only consistent with something having happened as she described. It is completely inconsistent with the defendant’s claim that nothing out of the ordinary happened. I am satisfied as well that the complainant has been shown to have absolutely no motive to fabricate her allegations against the defendant. There was no ill will between her and the defendant – to the contrary she liked and respected him. I have considered other possibilities – a desire for attention, or an unrequited crush perhaps – but none of these are remotely plausible or the least bit consistent with her personality and character or the known facts. I view these two factors together. The absence of motive serves to eliminate any possibility that her condition and conduct were feigned or driven by something other than the happening of events which she recounted.

[40] His Honour concluded:

In weighing the whole of the evidence, I conclude that the strength of the evidence of the complainant combined with these points overwhelms the evidence of the defence and convinces me beyond a reasonable doubt that the defendant is guilty as charged. I am sure.

[41] While the appellant probably planned the timing of the examination to act on his pre-existing interest in J.P., His Honour was not satisfied of that fact beyond a reasonable doubt for the purposes of sentencing.

The Grounds of Appeal

Did the trial judge err in his use of the post-event evidence?

The Positions of Counsel

[42] The trial judge found J.P.’s “condition and conduct” after the incident to be pivotal. They were only consistent with something having happened as she described it and completely inconsistent with the appellant’s account.

[43] The appellant does not dispute the admissibility of J.P.’s post-examination condition or demeanour. However, he submits the trial judge erred in his analysis of the post-event evidence in the following four ways.

[44] First, he erred in relying on the evidence of J.P.’s post-event condition and conduct as corroborative of her evidence. Second, the trial judge erred in permitting the post-event evidence alone to determine the case. The appellant submits there are no reported “he said – she said” cases where the trial judge found the accused to be otherwise credible but convicted solely on the basis of the complainant’s post-event demeanour. While the Crown urged His Honour to consider J.P.’s post-event demeanour, she cautioned that it would be inappropriate to “put all the eggs in the post-offence basket”. The appellant says that is what His Honour did, submitting he did not rely on the absence of motive for J.P. to concoct the allegations.

[45] Third, the trial judge erred in assessing the post-event evidence by failing to take into consideration the evidence of the office manager, Vicki Zacharias, that J.P. appeared “normal” when disclosing the allegation to her.

[46] Fourth, the trial judge erred in relying on J.P.’s post-event conduct. The appellant contends that for all of these reasons, the trial judge’s findings regarding the significance of the post-event evidence were tainted.

[47] The Crown submits His Honour did not err in his use of the evidence J.P. was extremely upset when she arrived home shortly thereafter, noting her mother was not cross-examined on this aspect of her evidence. His Honour provided an accurate statement of the law in accordance with R. v. Varcoe 2007 ONCA 194, and did not misuse the evidence. In particular, the trial judge was entitled to use the evidence and give it the weight he felt appropriate. Finally, His Honour did not simply rely on J.P.’s demeanour and conduct. He also relied on the absence of a motive for J.P. to falsely accuse the appellant.

Analysis

[48] I am not persuaded the trial judge erred for the following reasons. First, His Honour could use J.P.’s post-event demeanour in assessing her credibility. Post-event demeanour or emotional state evidence is admissible and may be used to support a complainant’s evidence of a sexual assault: see Murphy and Butt v. The Queen [1977) 1976 CanLII 198 (SCC), 2 S.C.R. 603 at 617; R. v. Boss, (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.); Varcoe, at para. 33, R. v. Arsenault, [1997] O.J. No. 3977 (C.A.) at para. 9; R. v. Clark, [1995] O.J. No. 4036 (C.A.) at para. 7. That is what His Honour did.

[49] In outlining the applicable law, the trial judge said, “If the court was satisfied that her condition was genuine and not feigned or possibly attributable to some other cause or hurt, then it may be seen as providing circumstantial support as being consistent with her allegation and inconsistent with the defendant’s denial.” The authorities are clear, His Honour was entitled to make the findings he did in relation to J.P.’s post-event condition.

[50] Second, I am not persuaded His Honour convicted only on the basis of J.P.’s post-event demeanour, or only on the basis of her demeanour and conduct. His Honour convicted the appellant on three bases: first, he found J.P.’s evidence very precise and detailed, with no significant contradictions or inconsistencies, presented without a hint of vindictiveness or malice towards the appellant by a witness who fully appreciated the moral and legal duty to be truthful; second, J.P. had no motive to fabricate her allegations against the appellant, and third, the post-event evidence.

[51] The trial judge believed J.P.’s evidence and was satisfied beyond a reasonable doubt of the appellant’s guilt when her evidence was viewed with the other bases in the context of all the evidence. That the trial judge concluded there was nothing in the appellant’s evidence when viewed in isolation that would cause him to reject it, does not mean His Honour found the appellant’s evidence believable. As the trial judge noted, evidence is not viewed in isolation or piecemeal.

[52] W.(D.), does not mandate an examination of the evidence favouring the defence in isolation from the rest of the evidence. In assessing Crown or defence witnesses, the trier of fact must consider their evidence in the context of all of the evidence, including whether it was internally consistent, whether it was consistent with other evidence called, the witness’ demeanour and whether their evidence accords with logic, common sense and human experience.[^1] That is what His Honour did.

[53] At its highest, a reference to an accused’s evidence being credible “when viewed in isolation” addresses whether his or her evidence was internally consistent, his or her demeanour when testifying, and whether, ignoring the other evidence, it accords with logic, common sense and human experience. It does not address inconsistencies with other testimony, other evidence or whether it accords with logic, common sense and human experience when viewed in the context of all the evidence.

[54] After examining the appellant’s and J.P.’s evidence, His Honour turned to the post-event evidence, finding it was only consistent with something having happened as she described. He was also satisfied J.P. had no motive to fabricate, observing there was no ill will between her and the appellant. In the concluding paragraph, His Honour found the strength of J.P.’s evidence combined with “these points” overwhelmed the defence evidence. “These points” has to refer to the post-event evidence and the finding there was no motive for J.P. to lie.

[55] In relation to the absence of motive, His Honour was entitled to and did take into consideration there was no evidence or inference available that J.P. had a motive to fabricate her allegations against the appellant: see R. v. Jackson, [1995] O.J. No. 2471 (C.A.); R. v. LeBrocq, [2011] O.J. No. 2323, 2011 ONCA 405. All of the evidence showed there was no acrimony between the appellant and J.P. In fact, she was quite complimentary of him.

[56] While His Honour said the post-event evidence was pivotal to his conclusion, I am not persuaded it was the only reason for his conclusion or that he gave the evidence undue weight. No doubt it was the crucial factor in his determination, but it was not the only basis upon which the conviction was based. As the Court of Appeal held in Varcoe, at para. 33, the weight to be attached to post-event demeanour evidence is within the discretion of the trial judge.

[57] In this area, the appellant relies on the Supreme Court of Canada judgment in R. v. J.A.A. 2011 SCC 17, [2011] 1 S.C.R. 628, where the Court found it would be dangerous to uphold that conviction on the strength of demeanour evidence or that one party’s version was less plausible than the other. Here, the appellant submits that while post-event demeanour evidence may be admissible to support the complainant’s evidence, where the appellant’s evidence is otherwise credible, it cannot carry the Crown’s burden of proof.

[58] In J.A.A., at para. 14, the majority found “it would be dangerous for this Court to uphold the convictions and thus resolve the credibility issue in this case on the strength of demeanour evidence, or on the basis that one party’s version was less plausible than the other’s.” Those comments have to be viewed in context. They were made in the course of determining whether fresh evidence should be admitted.

[59] The complainant said the appellant bit her finger, and a police officer testified why he concluded the marks on her fingers were bite marks. The fresh evidence from a forensic dentist was that the marks were not bite marks. Had the events occurred as the complainant testified, he would have expected to find bite marks. There were none. The appellant denied he had bitten the complainant.

[60] As occurred here, the trial judge in J.A.A. said that viewed in isolation, there was no reason to disbelieve him. The majority of the Court of Appeal (2010 ONCA 491) found the fresh evidence inadmissible because it could not reasonably be expected to have affected the result. Winkler C.J.O, in dissent, would have admitted the evidence and ordered a new trial, finding the fresh evidence could reasonably be expected to have affected the result.

[61] Charron J., for the majority in the Supreme Court, concluded the evidence was admissible, despite the lack of due diligence by trial counsel, because it could reasonably be expected to have affected the result. It would have been unsafe to uphold the conviction on the strength of the factors relied upon by the majority in the Court of Appeal: the complainant’s post-event physical and emotional state minutes and hours after the event, and the logic of the complainant’s evidence when compared to the appellant’s.

[62] I do not read the majority judgment as finding that in every case where viewing the accused’s evidence in isolation there is no basis upon which to reject it, a court cannot convict based on post-event demeanour or the logic of the complainant’s testimony when compared to the appellant’s evidence. I read the majority judgment as being based on the facts of that case because the judgment says “in this case.” The majority was not prepared to say the forensic dentist’s evidence could not reasonably have affected the verdict. The factual determinations in each trial are case-specific. What might be an important consideration in one case is not necessarily an important consideration in every case.

[63] Third, I am not persuaded the trial judge erred in failing to consider the office manager’s evidence that when J.P. told her what the appellant had done four days later, she seemed “very calm” and “very serious, but that was J.P.” There was nothing that made Ms. Zacharias think that “it was of the nature it was.” The only evidence regarding the content of their conversation came from J.P., who testified she told Ms. Zacharias the appellant had “touched her inappropriately”. When Ms. Zacharias testified, she was cautioned by Crown counsel not to get into the full conversation. She testified J.P. wanted to talk to her about an incident and what happened as a result of J.P.’s request. It appears J.P. did not tell the office manager the details of the sexual touching.

[64] In R. v. Lindsay, 2005 CanLII 24240 (ON SC), [2005] O.J. No. 2870 (S.C.J.), Fuerst J. held:

It is well-established, however, that evidence of a complainant’s emotional state after an alleged offence may constitute circumstantial evidence confirming that the offence occurred, depending on the circumstances of the case, including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state.

[65] The question of how long after the incident the complainant’s emotional state is relevant does not appear to lend itself to a line-in-the-sand approach to relevance. For example, the complainant’s demeanor 12 hours after the incident would be relevant as potentially supporting or refuting the allegation but not 13 hours later. J.J.A. refers to “soon after the incident,” “within hours,” and “two days after” the incident when the appellant came to pick up his belongings and in Boss and Varcoe, the day after the incidents. None of the cases relied upon by counsel involve emotional states four days after the event.

[66] The examination occurred on June 16. The discussion with Ms. Zacharias was on Saturday, June 20, four days later. I would think four days later would be too long after the incident for J.P.’s emotional state to be of much, if any assistance in determining whether or not she was sexually assaulted.

[67] If I am wrong in that conclusion, while the timelines are not specified in the judgment and it would relate to indicators that were consistent with an assault as opposed to inconsistent demeanour, the Court of Appeal has held that a complainant’s “later emotional condition was of less weight”: see Arsenault, at para. 9. That J.P. was very calm four days later when talking to the office manager without providing the details of the incident could not diminish the weight to be attached to J.P. going home and directly to her room or to her emotional state at the time. Accordingly, I am not persuaded His Honour erred in failing to consider Ms. Zacharias’ evidence regarding J.P.’s demeanour. It was either irrelevant to the weight to be attached to the evidence of her condition and emotional state when she got home, or had such minimal weight it could not have impacted on His Honour’s assessment of the post-event evidence.

[68] The final argument in relation to the post-event evidence is the trial judge’s use of J.P.’s conduct after the examination. In outlining the law, His Honour noted the “post-event demeanour and emotional state of the complainant may be used to support the complainant’s evidence that a sexual assault took place”, referencing the Court of Appeal judgment in R. v. J.A. 2010 ONCA 491, 261 C.C.C. (3d) 125. When dealing with his findings, His Honour relied upon J.P.’s “condition and conduct” after the incident, finding it was pivotal.

[69] The appellant submits there is a difference between “demeanour and emotional state” and “conduct.” The trial judge, he contends, improperly added the complainant’s conduct as a relevant factor. He submits His Honour’s reference to post-event conduct relates to J.P. “telling, or complaining about the alleged offence to her mother, the medical clinic and ultimately the authorities.” This evidence cannot corroborate J.P.’s evidence in the appellant’s submission.

[70] In outlining the evidence, His Honour reviewed what J.P. did in the hours and days after the examination, including entering her home and uncharacteristically going directly to her bedroom, her emotional condition when talking to her mother, returning to work and telling the office manager generally what happened, and making a complaint to the College of Physicians and Surgeons. His Honour did not refer to J.P.’s statement to police. When dealing with his reasons for convicting, the trial judge relied on J.P.’s post-event conduct but did not specify the conduct to which he was referring.

[71] While it may have been preferable to set out that evidence, I am not persuaded His Honour erred for the following reasons. First, it is not clear the trial judge was referring to J.P.’s prior consistent statements when he was dealing with her conduct. Second, if His Honour did consider those statements, he was entitled to do so, provided he properly used the evidence and there is nothing from which it could be inferred he misused the evidence.

[72] There was post-event conduct or actions, as opposed to statements, His Honour could rely upon in assessing the witnesses’ credibility. When J.P. went home, instead of talking to her mother as she usually did, she went right to her bedroom. That conduct was relevant to the assessment of her credibility because it was indicative something was different than the other times she had come home.

[73] If His Honour was referring to prior consistent statements, on this record, I cannot conclude he improperly relied on J.P.’s complaints of what happened to her mother, to the office manager, to the College and to the police as self-corroborative or as admissible for the truth of the contents.

[74] First, I agree with the Crown that there was a limited basis upon which His Honour could rely on the statements. In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 37, Charron J. acknowledged the challenge with this type of evidence was distinguishing between the impermissible use, “confirming the truthfulness of the sworn allegations” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility.” What is prohibited is looking at the previous statement as proof that a crime has been committed: see R. v. G.C., 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245 (C.A.); R. v. Fair (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1 (C.A.) at 21. There is nothing in the reasons from which I can infer His Honour went down this path of prohibited reasoning.

[75] Second, there were no details given of what J.P. told Ms. Zacharias, and no evidence of what J.P. told the police, with the exception of a brief excerpt that was put to her in cross-examination, and no evidence of what she said in her complaint to the College. It is difficult to see how those scant references could support a prohibited use of the prior statements.

[76] There is nothing in the Reasons from which I can conclude His Honour inappropriately used the post-event demeanor, conduct, or prior consistent statements of J.P.

Did the trial judge err in failing to consider J.P.’s purported suspicions and beliefs about the appellant when assessing her credibility?

The Positions of Counsel

[77] J.P. testified that after the June 16^th examination, she came to believe the appellant had been sexually attracted to her before that date and arranged the timing of the examination to pursue that attraction, as a result of certain events on and before June 16. The trial judge examined this evidence and concluded it did not impact on his decision.

[78] Mr. Sandler submitted the trial judge erred in his assessment of this evidence by restricting his analysis to its potential impact on J.P.’s reliability. The evidence was not only relevant to her reliability but also to her credibility, the critical factor in the case. After agreeing with the trial judge’s characterization of the sexual assault allegations as a blatant event that either did or did not occur, he framed the issue as follows in his factum:

[44] It is the defence position that the complainant told the police (and maintained in Court) that certain circumstances supported her position that she was sexually assaulted by casting them as suspicions in hindsight. Accordingly, to the extent to which they were unsupported by the objective evidence, they potentially undermined her credibility (not just reliability) and showed her to be an advocate for an untenable position. In other words, the issue was not merely whether a true victim of sexual assault might reasonably harbour these suspicions after the fact (even if unfounded), but also whether advancing unfounded suspicions as factual undermined the complainant’s credibility that she was sexually assaulted.

[45] The trial judge said that what the complainant came to believe or suspect about these matters is “rather beside the point.” What was important to the trial judge was whether he was prepared to draw any inferences [against the appellant] from the circumstances individually or collectively. If the only issue was whether this evidence advanced the case for the Crown, the trial judge would have been correct. (And he made no finding that this evidence advanced the case for the Crown’s case.) But the important issue that remained was whether the lack of objective support for the complainant’s purported suspicions undermined her credibility. The trial judge found that the complainant had, in some instances overstated the facts. The largely undisputed evidence [set out in par. 26 of his factum] refuted what the complainant told police. Because the trial judge, with respect, asked himself the wrong question, he failed to consider the impact of the complainant’s overstatements, and the lack of objective support for the complainant’s purported suspicions on her credibility. The issue was not merely the reasonableness of her suspicions.

[79] In para. 26 of his factum, the appellant summarized this evidence in relation to:

(1) the necessity of the June 16^th appointment;

(2) the allegations regarding the appellant not referring J.P. to specialists;

(3) the vaginal examination conducted when the appellant was concerned J.P. might have a STD; and

(4) the scheduling of J.P.’s appointments, including the appellant personally telephoning her to re-schedule an appointment she cancelled.

[80] In oral submissions, Mr. Sandler characterized the bases J.P. advanced as “false allegations” against the appellant that impacted on her credibility. In failing to consider this evidence in relation to J.P.’s credibility, the trial judge missed the most significant aspect of the evidence.

[81] After the arguments on the appeal were completed, I had concerns regarding the appellant’s characterization of the bases for J.P.’s belief as “false allegations.” Counsel[^2] were asked to provide further submissions as to whether the trial record supported the submission J.P. made false allegations about the booking of her appointments.

[82] The appellant says the thrust of J.P.’s evidence about the appointments was that the appellant was treating her differently than other patients. The false allegations included the appellant booking all of her appointments, her appointments were always at the end of the day, and the appellant always wrote her appointments in the book, which was different than the clinic’s routine for other patients. The appellant says these are some of the constellation of reasons J.P. advanced to promote a false position to police: that the appellant had a pre-existing sexual interest in her and set up the unnecessary June 16^th appointment to act upon those interests.

[83] Mr. Sandler said it would have been different had the trial judge said he was satisfied beyond a reasonable doubt the offence was planned in advance. Had that occurred, it would have demonstrated His Honour assessed the bases in relation to J.P.’s credibility. Instead, the trial judge examined whether the suspicions evidence helped the Crown, finding it did not, but failed to examine whether it helped the appellant.

[84] Both Crowns argued the appellant should not be allowed to raise an issue that was never argued at trial, contending the trial judge was not asked to relate the suspicions evidence to J.P.’s credibility. In the alternative, Ms. Lai submitted the trial judge appreciated, but ultimately rejected, the appellant’s arguments regarding J.P.’s retrospective beliefs. His Honour’s reasons were clearly articulated, logical and well-founded on the evidence. The reasons reflect no misapprehension of the evidence’s significance. Rather, His Honour provided a reasoned rejection of the defence position advanced at trial.

[85] Mr. Schaffer argued that where a witness is found to have overstated something, it does not mean it was done in a sinister way. The trial judge accepted J.P.’s evidence about her appointments, that “always” was a “filler word.” The Crown says the use of “always” should be viewed as a colloquial comment. People often say ‘always’ to describe events that are a habit or routine but not necessarily meaning they occur every time.

Analysis

[86] The following issues require examination:

1. Was the suspicions evidence linked to credibility by defence counsel at trial, or is the appellant advancing an argument that was not raised previously?

2. Did the trial judge assess this evidence in relation to J.P.’s credibility?

3. Was there evidence J.P. relied on “false allegations” in support of her suspicions? Did she promote a false position to the police supported by a constellation of facts that lacked objective verification?

1) Was the suspicions evidence linked to credibility by defence counsel at trial, or is the appellant advancing an argument on appeal that not raised previously?

[87] During both days of argument, the Crowns took the position the appellant had not argued the suspicions were relevant to J.P.’s credibility at trial. The appellant took a contrary view. The relevant excerpts from the trial arguments are required to resolve this dispute.

[88] Defence Counsel:

Now, now it’s – it perhaps, with her history of anxiety and her phobias and history of previous sexual assault not long before J.P. perceived events through a filter, and did she have certain level of paranoia about this whole exam. And we certainly can’t be sure in this case.

THE COURT: Well is it - this can’t possibly be a case of misperception as to what happened, right? Either it happened or it didn’t. Do you agree with that?

MS. STEPHENSON: It - yes. It’s not a misinterpretation case, I agree with that. Although I would, I would say that there’s cert-to some extent there’s a little bit of overlap about when-what went on or could be some misconception about certain things, but about the fundamental thing, Your Honour, the touching, which is the assault, no.

THE COURT: Right.

MS. STEPHENSON: No. ‘Cause....

THE COURT: So the fact then-after the fact she looks back on a number of things that you’re listing here and, as you said, reads too much into it, or misinterprets it. How does that...into the analysis, what does it mean? Does it mean-does it affect her credibility as to what she says happened....

MS. STEPHENSON: Well, okay. We’re in a situation where we have two people in a room and...

THE COURT: Yeah.

MS. STEPHENSON: ...it’s a he said, she said.

THE COURT: Yeah.

MS. STEPHENSON: And we don’t have a lot of other evidence. So we, we have to look at the other pieces of evidence that we do have. You have to, on the one hand you have to look at what J.P. believes and says are the, the sort of sinister aspects of this case, and you need to look at Dr. Woollam’s explanation, and that’s really all we have here. There isn’t a lot of surrounding evidence. So-and it isn’t for Dr. Woollam to explain why this might have happened, clearly it would be a much easier case, and better for me if we had a third party records motion with evidence of some psychological condition, we, we don’t have that. It’s nice when the defence does. But it’s still not up to Dr. Woollam to explain why J.P. may have done this.

And so I’m just pointing to the aspects of the evidence that indicate some lack of objectivity on her part and a tendency to attribute a sinister motive on the part of Dr. Woollam, that will-wouldn’t-wasn’t there.

So, I mean, these, these are-this is-Your Honour is very familiar with what I’m going-if you believe the evidence of Dr. Woollam of course, you must acquit. And if after considering carefully all of the evidence, you can’t decide who to believe, you must acquit. If you do not believe the evidence of Dr. Woollam, but you’re left with some uncertainty by it, or have a reasonable doubt after hearing it, you must acquit. And even if you are not left in doubt by the evidence of Dr. Woollam, you must ask yourself whether based on the evidence that you do accept, you’re convinced beyond a reasonable doubt of his guilt. And I say, of course, based on the first branch alone, the credibility of Dr. Woollam’s evidence you should acquit, he came across as honest and straightforward, he answered questions directly, not evasively. He’s a straight shooter. He had good, reasonable explanations for the things that J.P. believes were inappropriate, and that J.P. felt were evidence of some grandeur, sinister, opportunistic design on his part. Many of J.P.’s assumptions and beliefs about Dr. Woollam on the other hand, and even a couple of the facts respecting Michelle Rae, tend to not be supported by the surrounding evidence, and of course it’s just a question of credibility of-and what happened in that examination room. (emphasis added)

[89] When trial counsel first raised the issue, it is apparent it was in the context of reliability. However, during the exchange noted above, I am persuaded the highlighted portions linked the suspicions and conclusions to J.P.’s credibility. As part of the credibility analysis and referencing W.(D.), trial counsel submitted the surrounding circumstances (suspicions) had to be examined to address the trial issue: “..it’s just a question of credibility and what happened in that examination room.”

2) Did the trial judge assess the evidence in relation to J.P.’s credibility?

[90] His Honour set out his findings as follows:

Findings:

36. I will first deal with some of the defence evidence. This is done as a matter of organizational convenience and not of course because there is any burden on the defence.

37. Counsel for the defendant quite properly elicited from the complainant a list of circumstances that the complainant came to view as suspicious in that she saw them as suggesting that the defendant had had an unusual and inappropriate interest in her for some time and that the incident in question was set up by him to provide him with opportunity to act on that interest. The complainant was cross-examined and evidence was called to the end of showing that the complainant’s suspicion about some of those circumstances or their factual underpinnings were misplaced in whole or in part. It was argued that this evidence showed that she was not objective and that she went into the examination room carrying her suspicions and interpreting what occurred through that lens.

38. With respect, I do not see any merit in this argument. As I understand it, the suspicions arose in hindsight after the event and were not present before and when it happened. Further, this is not a case of misinterpretation, through a biased lens, of what occurred in the examination room. If the incident occurred, it was blatant and obvious. The complainant’s prejudices or suspicions, even if they pre-existed, could not have had any bearing on the issue of whether that blatant event took place.

39. I would also observe that for the most part, what the complainant came to believe or suspect about these matters or any of them is rather beside the point. What is important is whether I am prepared to draw any adverse inference from such circumstances either individually or collectively.

40. However, I consider the complainant’s beliefs and suspicions to the extent that they might impact on her testimonial reliability by indicating flightiness, irrationality, possession of an over-active imagination or otherwise. In my view, none of this evidence would have that effect. The points were all rationally supportable of the suspicion that they engendered in the complainant and in my view it would not be unnatural for a person who had been assaulted under the circumstances alleged to view them suspiciously in hind-sight. They were all, for the most part, factually accurate though in some cases somewhat over-stated initially (e.g.: that he “always” wrote in the appointments himself). That some may be open to another innocent explanation does not detract from the reasonableness of the complainant’s suspicion.

41. Further, as for the circumstances themselves, I find this evidence for the most part to be of little assistance to me in this case and for this reason will not deal with each point individually. Most of the circumstances don’t seem to me to mean very much: (e.g.: paying the complainant extra money; seldom referring her to specialists, prescribing birth control pills). Those points that could have some significance (e.g. the dubious need for any examination much less an after-hours one) are, for the reasons that follow, redundant to my decision in this case.

[91] There is no dispute the trial judge considered whether J.P.’s evidence was credible. The case was a “he said – she said.” J.P. said the appellant sexually assaulted her. The appellant said he did not. His Honour noted reasonable doubt applied to credibility. If the incident occurred, it was blatant and obvious. The trial judge referenced and applied W.(D.), a case that applies in trials where credibility is important: see W.(D.), at para. 27 and 28.

[92] His Honour found in a footnote that it was likely J.P. greatly over-estimated times, such as the estimate she gave for the appellant rubbing her genitals. He placed no significance on those inaccuracies because, in his significant experience, for some reason witnesses are often very inaccurate in time estimations and usually over-estimate them. He addressed the evidence and made a reasonable finding in relation to it. It was evidence that had the potential to impact on J.P.’s credibility but he found it did not.

[93] Throughout the Reasons, His Honour made credibility findings. For example he found that J.P.:

... is an undoubtedly intelligent witness and a responsible person, not flighty or fickle who fully appreciates the gravity and implication of her allegation and the moral and legal duty to be truthful.

She impressed me as one who came to court to give her evidence because she believed that it was the right thing to do, despite the pain and augmented anxiety it caused her.

[94] The question is whether His Honour factored the suspicions evidence into his credibility analysis.

[95] Having rejected the appellant’s submission J.P. carried her suspicions into the examination room and misinterpreted what occurred because she viewed the events through that lens, His Honour moved on to consider whether the beliefs and suspicions otherwise impacted on her evidence, noting, “[h]owever, I consider the complainant’s beliefs and suspicions to the extent they might impact on her testimonial reliability by indicating flightiness, irrationality, possession of an over-active imagination or otherwise.”

[96] Throughout the facta and oral submissions, counsel proceeded on the basis ‘testimonial reliability’ referred to reliability/accuracy only and not to credibility. However, ‘testimonial reliability’ and ‘reliability’ are not always limited to accuracy. Nor do they always exclude credibility.

[97] Numerous authorities have examined a distinction between credibility/veracity and reliability/accuracy. For example, in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 at para. 33, Doherty J.A. wrote:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross- examination.

[98] While not frequently referenced in criminal cases, ‘testimonial reliability’ has been used for many years, primarily when examining the cross-examination of accused persons on their criminal record. In R. v. Stratton (1978), 1978 CanLII 1644 (ON CA), 21 O.R. (2d) 258 (C.A.) at para. 32, Martin J.A. concluded judges had a discretion whether to permit cross-examination of accused persons on their prior convictions, “if the convictions are of slight probative value in assessing testimonial reliability, and their disclosure would be gravely prejudicial to the accused.” His Lordship continued at para. 41:

Unquestionably, the theory upon which prior convictions are admitted in relation to credibility is that the character of the witness, as evidenced by the prior conviction or convictions, is a relevant fact in assessing the testimonial reliability of the witness: see R. v. Dorland (1948), 1948 CanLII 70 (ON CA), 92 C.C.C. 274, [1948] O.R. 913, 6 C.R. 485; R. v. Goldhar (1957), 1957 CanLII 490 (ON CA), 117 C.C.C. 404, [1957] O.W.N. 138; United States Express Co. v. Donohoe (1886), 14 O.R. 333 at pp. 347-8; Cross on Evidence, supra, p. 341. (emphasis added)

[99] Those comments were relied upon by the Supreme Court of Canada in R. v. Corbett [1998] 1 S.C.R. 670 at para. 22. Subsequent cases dealing with cross-examination have also referred to ‘testimonial reliability’ where it means or includes credibility: see R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 115 C.C.C. (3d) 225 (Ont.C.A.); R. v. Thurston, [1986] O.J. No. 2011 (Gen. Div.); R. v. K.T.D., [2001] O.J. No. 2890 (S.C.J.)

[100] In the Supreme Court of Canada judgment in R. v. Nygaard and Schimmens, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, Cory J. referenced the text Law of Electronic Surveillance in Canada (Toronto, Carswell). There David Watt, now Watt J.A., said the wiretap admissibility provisions did not distinguish between when the Crown used the evidence in its case and when it was used to “incidentally advance” the prosecution case by “impeaching the testimonial reliability of the accused as a defence witness.” In Nygaard, an accused’s girlfriend had been cross-examined on intercepted communications that were not ruled admissible before she was cross-examined. Clearly, in that context, testimonial reliability included credibility.

[101] Other cases have used the term when assessing the relevance of third party records: see R. v. Leatherdale, [2000] O.J. No. 51 (S.C.J.)) and where credibility issues were addressed: see R. v. McCann, [2001] O.J. No. 1821 (S.C.J.), R. v. Kerr, 2011 ONCJ 492, [2011] O.J. No. 4309 (C.J.) and R. v. Menard, [1997] O.J. No. 6042 (Gen Div.)). There are cases where the term was referenced in relation to reliability only: R. v. McQueen 2012 ONCJ 164, [2012] O.J. No. 1384; R. v. R.L. [2007] O.J. No. 5307 (S.C.J.)

[102] ‘Reliability’ is also not restricted to accuracy in the law of evidence. The ordinary meaning of reliable is trustworthy: see Germany (Federal Republic) v. Schreiber (2002), 2002 CanLII 53225 (ON SC), 170 C.C.C. (3d) 184 (S.C.J.) at paras. 40-42. When examining the admissibility of hearsay evidence, the traditional dangers are the inability to assess the speaker’s perception, memory, narration and sincerity: see R. v. Khelawon, [2006] S.C.R. 787, 2006 SCC 57 at paras. 2 and 67; Law Reform Commission of Canada, Report on Evidence (Ottawa: Law Reform Commission, 1975) at 68-69. An assessment of a witness’ sincerity is a credibility assessment.

[103] Where admissibility is considered under the principled exception to the hearsay rule, two requirements are essential: necessity and reliability. Wigmore referred to the second as the circumstantial guarantee or circumstantial probability of trustworthiness: see Wigmore on Evidence, 2^nd ed. 1923, vol. III at s. 1420. Reliability is the equivalent of those terms: see Schreiber, at para. 47. Perception, memory, narration and sincerity are essential considerations for an informed assessment of the reliability of any evidence: see R. v. Baltovitch, [2007] O.J. No. 5488 (S.C.J.) at para. 63.

[104] The trial judge gave examples of how the beliefs and suspicions might impact on J.P.’s testimonial reliability “by indicating flightiness, irrationality, possession of an over-active imagination or otherwise”. Applying the meanings of credibility and reliability from Morrissey, the terms cited by the trial judge encompass both credibility and reliability considerations, or at the very least cannot be said to exclude credibility.

[105] Given the previous judicial uses of ‘testimonial reliability’ and ‘reliability,’ I am not persuaded His Honour was only considering reliability in paragraph 40 of the reasons.

[106] The trial judge’s comments later in the paragraph support that conclusion. He found the bases upon which J.P. relied “were for the most part factually accurate, though in some cases overstated initially.” For the factually accurate portions, there is an implicit credibility finding because a witness whose evidence is not credible cannot give reliable evidence on that point: see Morrissey, at para. 33.

[107] For those portions that were “somewhat overstated initially”, considering ‘to overstate’ something is to state it too strongly or to exaggerate,[^3] the finding does not necessarily exclude credibility. If J.P. deliberately exaggerated her evidence, that would be a credibility finding about her beliefs and suspicions, not a finding she was simply inaccurate. If she honestly believed what she said but it turned out to be wrong, that would be a reliability/accuracy finding. On this analysis alone, His Honour’s findings are open to two interpretations, one based on credibility and one on accuracy/reliability. In order to succeed on this aspect of his argument, the appellant would have to persuade me the trial judge must have only considered accuracy/reliability. He has failed to do so because it is not clear to me that His Honour was only considering accuracy/reliability. When viewed with the opening comments in paragraph 40 of the Reasons about “testimonial reliability”, I am not persuaded His Honour failed to consider J.P.’s beliefs and suspicions in relation to her credibility.

[108] In addition, the trial judge concluded that while he was satisfied on a balance of probabilities, he was not satisfied beyond a reasonable doubt that the incident happened as a result of some planning and deliberation, rather than it being a spur of the moment occurrence. The appellant argues that if the trial judge had made that finding beyond a reasonable doubt, it would have indicated His Honour had addressed the bases for the suspicion in regards to credibility.

[109] I am unable to accept that reasoning. The trial judge could have found beyond a reasonable doubt the June 16^th examination was planned to permit the appellant to pursue his sexual interest in J.P., relying only on the appointment being unnecessary because J.P. was feeling well, without making any findings on the other suspicions or rejecting them. The trial judge found the bases for the opinion that the appellant had an inappropriate interest in J.P. before June 16^th and set up the appointment on that date to pursue his interests, were for the most part factually accurate. What His Honour was not satisfied of to the criminal law standard was that the sexual assault was planned in advance. Otherwise, it would have been an aggravating fact on sentence.

[110] As I read the Reasons, the trial judge largely accepted the factual bases for J.P.’s suspicions but was not prepared to find beyond a reasonable doubt that the event was planned. In order to make those findings, the trial judge had to have assessed J.P.’s evidence in relation to credibility. That he did not draw the same inference as J.P. beyond a reasonable doubt does not mean His Honour failed to consider J.P.’s beliefs and suspicions in relation to her credibility.

[111] I am not persuaded the trial judge erred in failing to consider J.P.’s beliefs and suspicions in relation to her credibility for the above-noted reasons. However, if I am wrong in that conclusion, I will examine whether the record revealed J.P. made false accusations or evidence unsupported by objective facts.

3) Was there evidence J.P. relied on “false allegations” in support of her suspicions? Did she promote a false position to the police supported by a constellation of facts that lacked objective verification?

[112] The appellant’s argument has evolved or been clarified from the trial argument set out in paragraph 83 above into an allegation J.P. made false accusations. He submits J.P. presented a false position to police and “loaded it up” with things that are not as she portrayed them to police. In particular, her allegation the appellant engaged in scheduling practices with her that were not used for other patients at the clinic is unfounded.

[113] At trial, the majority of the suspicions evidence was not introduced by the Crown. None of it related to an element of the offence. If the sexual assault was planned in advance it would be an aggravating factor on sentence, but not an essential element the Crown was required to establish. The majority of the evidence of J.P.’s beliefs and suspicions was introduced in cross-examination, and it played a prominent role in the appellant’s trial strategy: to undermine or refute what J.P. told the police when she said she thought the June 16^th incident was planned and the bases upon which she reached that conclusion.

[114] The trial Crown’s final submissions only referred to the appellant giving J.P. extra salary on June 16^th before the examination and the appointments evidence as “other things” that confirmed J.P.’s evidence. He Crown made no reference to the other bases for J.P.’s conclusion that the appellant had an inappropriate interest in her prior to June 16.

[115] To the extent the appellant’s arguments rest on the submission J.P.’s suspicions pre-dated the examination, the trial judge found her suspicions only arose after June 16. His Honour accepted her evidence, as he was entitled to do, and found “it would not be unnatural for a person who had been assaulted under the circumstances alleged to view them suspiciously in hind-sight.” That was a reasonable conclusion on this record. In the absence of an argument the finding is unreasonable, which it was not, that finding of fact remains. However, I agree with Mr. Sandler that the reasoning presupposes there was a sexual assault.

[116] The appellant contends the trial judge only examined this evidence in determining whether it helped the Crown. I am not persuaded the record supports that submission. First, His Honour rejected trial counsel’s submission that J.P. was not objective, entered the examination room carrying her suspicions and interpreted what occurred through that lens. He found if the incident occurred it was “blatant and obvious”, so J.P.’s prejudices or suspicions had no bearing on whether the event took place. The trial judge continued:

I would also observe that for the most part, what the complainant came to believe or suspect about these matters or any of them is rather beside the point. What is important is whether I am prepared to draw any inference from such circumstances either individually and collectively.

[117] The appellant’s factum notes “What was important to the trial judge was whether he was prepared to draw any inferences [against the appellant] from the circumstances individually or collectively.” I am not persuaded the insertion of “against the appellant” is appropriate. In this section of the Reasons, His Honour is examining defence counsel’s arguments about J.P.’s evidence. Immediately before, he addressed whether her suspicions or beliefs could have resulted in J.P. misinterpreting what occurred. Immediately after, he addressed whether the beliefs and suspicions impact on J.P.’s testimonial reliability. The trial judge examined whether he should draw any inferences against the complainant, not the appellant.

[118] Further, I do not regard J.P.’s suspicions and beliefs evidence as reflecting she “told the police (and maintained in Court) that certain circumstances supported her position that she was sexually assaulted by casting them as suspicions in hindsight.” J.P.’s full statement to police was never introduced, so it is impossible to say on this record that she told police the previous events “supported her position she was sexually assaulted”. It was the defence that raised these issues at trial, not the Crown or J.P. J.P.’s account did not depend on what had or had not happened before the June 16 examination. Nor did her evidence depend on her post incident beliefs or suspicions. She said she was sexually assaulted on that date and afterwards concluded that the appellant had a prior inappropriate interest in her. I do not read her evidence as saying her beliefs supported her testimony that she was sexually assaulted.

[119] The appellant submits what J.P. told police about the June 16^th appointment being unnecessary, the appellant’s refusal to make referrals she requested, his concern she might have a STD resulting in a vaginal examination, and the scheduling of her appointments, including the appellant personally calling her to re-schedule one she cancelled, were “refuted” by “largely undisputed evidence”.

[120] That argument requires an examination of the evidence to determine whether J.P.’s comments were shown to be false accusations, were refuted by largely undisputed evidence, and whether J.P. was shown to have promoted a false position to the police supported by a constellation of facts that lacked objective verification. That examination leads to the conclusion that most, if not all, of J.P.’s evidence in these areas was never shown to be false allegations, nor false positions based upon facts that lacked objective verification. Nor was her evidence refuted by largely undisputed evidence.

[121] I would characterize most of the bases J.P. relied upon as differences of opinion, not false accusations or false opinions based on facts lacking objective verification. For example, J.P. agreed in cross-examination that she did not feel the appellant referred her to specialists “often enough”. She agreed there had been one referral that she never followed up. In her opinion, the appellant should have agreed with her request to be referred to an urologist. He should have sent her to a dermatologist about her acne and he should have ordered a CT scan and referred her to a neurologist in relation to her dated head injuries. The appellant disagreed and provided his reasons for not making the referrals.

[122] J.P. thought the appellant giving her money was part of his plan to take advantage of her but agreed in cross-examination that it might have been an effort to be fair. If it was, she thought it was unprofessional. The appellant said he thought she deserved more money because she was a nursing student.

[123] She thought the June 16 examination was unnecessary and, in hindsight, an effort by the appellant to act upon his prior attraction to her. The appellant thought the follow-up examination was necessary and provided his reasons for that belief. J.P. was upset at the suggestion she might have a STD and felt it was a pretext to conduct a vaginal examination. While she thought it was unnecessary, she did not believe putting her on birth control pills was part of his plan. The appellant provided the medical bases for his decisions, his concerns, and the examination.

[124] What remains is the evidence about how J.P.’s appointments were booked. Did the appellant have a different practice for J.P. than for other patients at the clinic? The appellant submits the appointment book and Ms. Vawro’s evidence show J.P.’s evidence was false and had to be considered in the credibility assessment. While J.P.’s trial evidence was generally consistent with the appointment records, the appellant’s submission relies on her statement to police from which trial counsel suggested to J.P. that she told the officer the appellant “always” booked her appointments, “always” wrote her appointments in the book contrary to the clinic practice, and her appointments were “always” the last of the day, so they could be alone.

[125] In closing trial submissions, defence counsel argued that J.P. “agreed that she had said that Dr. Woollam would always make her appointments for her and always made them at the last appointment of the day. Now clearly that’s just not the case.” In the Reasons for Judgment, His Honour found J.P.’s evidence that the appellant always booked in her appointments himself was “somewhat overstated”. On appeal, the appellant’s factum noted, “[t]he complainant reported to police that the appellant, rather than his secretary, always booked her appointments and scheduled them for the end of the day so they would be alone.”

[126] An examination of the trial record reveals the following evidence about appointments. The only excerpts of J.P.’s police statement that were introduced at trial were put to her during her cross-examination, in which she admitted making the following statement to police:

… one of the things I wanted to add is, umm, every time he would book me in for an appointment, it would always be the last appointment of the day, and every time the appointment was finished, he would always ask me to come to the front desk so that he could book me in for the following week, and I always felt that we had covered everything so there is no point for me to come back.

And he would say, oh, just come back next week and we’ll just talk, kind of thing, umm, and he always went to write it in the calendar, whereas --- like I worked there so I knew how the system works, and it’s always the secretary that books the patients, whereas he would always write me in himself.

I remember one day I didn’t show up for an appointment because I was running late so I didn’t – I didn’t show up and he called me and asked me why I didn’t come in.

[127] When asked if the statement was truthful, J.P. said she was not lying and that she was nervous during the interview. “Always” was not an exaggeration, it was a “bit of a filler word.” It was what she felt. She never understood why she would have to come back when they had covered everything.

[128] Later, in the cross-examination, J.P. testified:

Q: … So although Alena books in other patients, Dr. Woollam would always write you in himself?

A: Unless I called.

Q: But you didn’t say that to the police.

A: Yeah, what ---

Q: No, you didn’t.

A: But … I know. What I’m saying here is correct, when I --- when I would see him, he would – he would book – he would write it in himself.

[129] J.P. testified the excerpt from her police statement referred to follow-up appointments booked immediately after an appointment at the clinic. Sometimes she would say she did not need to come back, and he did not write in an appointment.

[130] J.P. testified that whenever the appellant booked her appointments, it would always be the last appointment of the day. While she was not certain, she believed that had occurred a couple of times. While the appointment book revealed that the appellant wrote in two of J.P.’s appointments, trial counsel correctly noted the appellant had written in one that was the last appointment of the day.

[131] Although I appreciate the appellant’s trial and appellate counsel proceeded on the bases J.P. told police the appellant personally scheduled all of her appointments, wrote all of her appointments in the appointment book, and all of her appointments were the last appointment of the day, a review of the excerpt of her police statement does not support those assertions. Of note, and albeit not determinative, the example of ‘somewhat over-stated’ evidence given by the trial judge was that the appellant always wrote in her appointments, not that he always booked her appointments and/or they were always at the end of the day. If the trial judge was referring to J.P. saying that the appellant always wrote in all her appointments, His Honour misapprehended the evidence.

[132] The police statement includes at the outset, “… every time he would book me an appointment, it would always be the last appointment and every time the appointment was finished, he would always ask me to come back.” That is not inconsistent with J.P.’s trial evidence that she was referring to the appellant booking her follow-up appointments while she was at the clinic, not that he booked and wrote in all of her appointments, or that they were all the last of the day. On this record, J.P. never told the police the appellant booked all of her appointments, wrote in all of her appointments or that all of her appointments were the last one for the day. Her comments to the police only relate to follow-up appointments booked when she was at the clinic.

[133] The evidence dealing with J.P.’s appointments, with particular emphasis on the follow-up appointments, is found in the appointment book, J.P.’s medical records, as well as the testimony of J.P., the appellant and Ms. Vawro. J.P. had ten scheduled appointments in 2009. The following chart sets out in summary form the appointments evidence with the follow-up appointments bolded and underlined:

DATE

TIME

HANDWRITING IN APPOINTMENT BOOK

LAST APPOINTMENT?

DID J.P. ATTEND?

Jan 12.09

9:10 am

Not identified but it was not the appellant

No

No. Appellant ill and all appointments cancelled

Jan 15.09

Nurse

Yes. Flu shot from another doctor

Feb 18.09

11:40 am

Alena Vawro

No

Yes

Apr 13.09

2:20 pm

Alena Vawro

No

Yes

Apr 17.09

4:10 pm

Alena Vawro

Yes

Yes

Apr 22.09

4:30 pm

Appellant

Yes

No

May 4.09

3:30 pm

Alena Vawro

No

J.P. cancelled

May 6.09

4:10 pm

Appellant

No

Yes

June 8.09

3:00 pm

Alena Vawro

No

Yes

June 10.09

3:50 pm

Alena Vawro

Yes

Yes

[134] The trial evidence revealed there were four ways J.P.’s appointments were scheduled; she would call in and the secretary would schedule them according to J.P.’s schedule; the appellant personally booked a follow-up examination when J.P. was at the clinic and the secretary had left; once or twice the secretary would book appointments when the appellant was scheduling follow-up appointments at the clinic when J.P. was there; and once the appellant called J.P. to book an appointment she had cancelled.

[135] Ms. Vawro said that when the appellant would write in an appointment, it would be when it was busy in the office, and he did not want the patient to wait so he would make the appointment himself. She recalled the appellant telling her to write in an appointment for J.P. once or twice in 2009 and testified this would occur because “... [s]ometimes there is no appointments left, so I ask him about the time, so usually because he needs extra time with the patient so he ask to book last appointment of the day before or after lunch.” It would usually happen when they made the follow-up appointments. With respect to J.P., this happened “only a few times” in 2009, “once or twice.” He would not tell her to write in a specific time. Rather, Ms. Vawro would ask the doctor when was a convenient time to book the appointment because she had no times left.

[136] The first appointment, on January 12, was cancelled because the appellant was ill. While it is unclear who scheduled it, the appellant testified it was not him. On January 15, J.P. attended the clinic and was given her flu shot by another doctor. That appointment was booked by a nurse.

[137] On February 18, J.P. attended for an 11:40 a.m. appointment that was not a follow-up appointment and had been written in by Ms. Vawro. The next appointment was on April 13 and was not a follow-up appointment. The appointment was for 2:20 p.m. and was not the last of the day. The appellant ordered an ultrasound test for J.P. and a follow-up appointment for April 17. It was written in by Ms. Vawro for 4:10 p.m. and was the last appointment of the day. J.P. attended for that appointment and reported continuing physical problems. She told the appellant she had unprotected sexual intercourse with her boyfriend two weeks earlier. The appellant wrote in a follow-up appointment for April 22 at 4:30 p.m., the last of the day. J.P. did not attend the April 22 appointment.

[138] The appellant testified J.P. wanted to come in as late in the day as possible because she would be working at a farm or at school. J.P. testified it did not matter to her when she came in, although on some days she had classes until 3:30 or 4:00 p.m. On other days, she did not have classes. By the June 2009 appointments, she was not attending classes. When she booked her appointments with Ms. Vawro they would be based on J.P.’s schedule.

[139] J.P. called and made an appointment through Ms. Vawro for May 4 at 3:30 p.m. It was not the last appointment of the day. On the scheduled date, she called and cancelled the appointment. On April 28, she had the ultrasound examination that the appellant had earlier ordered conducted at a different facility. The appellant received the results before May 4, and when J.P. cancelled the appointment,[^4] he testified he “had to get her in” because he had the results. Since his secretary was busy, he asked for J.P.’s number and personally called her to book the next appointment for May 6 at 4:10 p.m., which was not the last appointment for that date.

[140] On May 6, J.P. attended and reported continuing problems. Again, the appellant conducted a vaginal examination because of his concerns noted earlier. In addition, he wanted to obtain a cervical culture, and the only way to do so was by a vaginal examination.

[141] The next scheduled appointment for June 8 at 3:00 p.m. was written in by Ms. Vawro. It was not the last appointment of the day. According to the notes made by a nurse, this was the follow-up visit after J.P.’s attendance at an emergency ward on June 5 but was not a follow-up appointment scheduled while J.P. was at the clinic. The appellant testified he told J.P. she should stay in bed and come back in two days, so he could see how she was doing. This was the appointment her mother had attended with her.

[142] The next scheduled appointment, a follow-up appointment scheduled while J.P. was at the clinic, for June 10 was put in the book by Ms. Vawro for 3:50 p.m. This was the last appointment of the day. The appellant’s notes for that appointment refer to a follow-up appointment that was never made by J.P.

[143] The evidence reflects that the follow-up appointments J.P. was referring to in her police statement were on April 17, April 22 and June 10. They were the only occasions where she was at the clinic and a follow-up appointment was scheduled. The May 6^th appointment the appellant wrote in was not a follow-up as J.P. described. It was made by phone. Of the three follow-up appointments, all were the last of the day. The April 22 one was set and written in by the appellant.

[144] Conversely, identifying the ones the appellant told Ms. Vawro to schedule is problematic. It cannot be determined whether the April 17 or June 10 appointments were the one or two occasions when the appellant told Ms. Vawro to book an appointment for J.P. and to make it “the last appointment of the day, before lunch or after.” If both were those appointments, J.P.’s evidence about the timing of the follow-up examinations was confirmed by the records and trial testimony, not refuted by it.

[145] Assuming the appellant did not tell Ms. Vawro to write in one or both of the April 17 and June 10 appointments, the appellant made and wrote in one of three follow-up appointments. All three were the last of the day. On this approach, J.P.’s “false allegations” or “false opinions based on facts lacking objective verification” to the police were that he “always” made and wrote in her follow-up appointments when J.P. believed the secretaries booked all appointments for other patients. J.P. testified he had done so a couple of times, although she was not certain.

[146] The trial judge addressed J.P.’s references to “always” and found the bases for her beliefs were for the most part factually accurate, though in some cases “somewhat overstated initially”, noting as an example that the appellant always wrote in the appointments himself. Assuming J.P. did “somewhat overstate initially” that element of the appointments evidence and assuming that characterization of her evidence qualifies as facts unsupported by objective evidence, it is difficult to see how evidence that was “somewhat overstated initially” could lead to, or support, an adverse credibility finding against J.P. in spite of His Honour’s conclusion.

[147] J.P. thought it was “strange” and “out of the ordinary” that the appellant would personally call her to re-schedule an appointment she cancelled. He had never called her previously when she cancelled an appointment. The appellant explained that he had received the results from the ultrasound test he had ordered and had to get her in. Because the secretary was busy, he asked for J.P.’s cell phone number and called to make the appointment himself. The appellant said it was not unusual for him to make his own calls. Ms. Vawro said the appellant made calls when he had test results for patients.

[148] That J.P. believed physicians do not personally make calls does not make her evidence about the appellant personally re-scheduling the appointment into a false allegation. There was no dispute the appellant made the call. Nor could this evidence be characterized as J.P. using this incident as a factual basis lacking in objective verification to support a false opinion the appellant had a pre-existing sexual interest in her.

[149] When examined in light of all the evidence taken at its highest for the appellant, what the appellant contends demonstrated J.P. making false allegations, advancing false opinions based on facts lacking objective verification or evidence that was refuted by largely undisputed evidence, reveal differences of opinion or minor inconsistencies that could not have impacted on her credibility. If the trial judge did not relate the beliefs and suspicions to J.P.’s credibility, the failure to do so occasioned no substantial wrong or miscarriage of justice. The verdict would inevitably have been the same: see R. v. Mayuran, 2012 SCC 31, [2012] S.C.J. No. 31 at para. 45.

Did the trial judge misdirect himself as to the relevance of the therapist, Ms. Rae’s evidence?

The Positions of Counsel

[150] The issue was argued as follows at trial by defence counsel after reviewing J.P.’s various answers about when she saw the therapist leaving:

So all of this demonstrates, Your Honour, first is that [J.P.] does not have an actual recollection of seeing the therapist leave, there’s no recollection there. Because her evidence is too different on those points. But it also demonstrates, in my submission, that she is just not accurate about that particular detail, which these things can happen.

[151] Counsel noted it was part of J.P.’s theory or belief that the appellant was waiting until everyone else had left, so they would not be interrupted and continued:

So J.P. was seeking to may-perhaps unconsciously or subconsciously, to fit the evidence about Michelle Rae leaving just before she left and Dr. Woollam waiting until she did so, to her version of events. But the timing is way off for that, it just doesn’t work, because Michelle Rae had almost certainly left long before Dr. Woollam had finished seeing patients. ... he would have been checking [J.P.] long after Ms. Rae left.”

[152] Counsel also noted Ms. Rae testified she did not walk out past the appellant’s desk, so it was “very likely Dr. Woollam did not notice Michelle Rae leaving.”

[153] The trial judge concluded Ms. Rae’s evidence was “very vague,” “an imprecise reconstruction of an otherwise unremarkable day.” It lacked sufficient probative value to contradict anything. And even if did, the evidence contradicted a “rather peripheral” point.

[154] The appellant submits there were two important elements to Ms. Rae’s evidence. The first was her estimate of the time she left the clinic on June 16. The reasons noted above address that issue, and no issue is taken in that regard. The appellant agrees that if Ms. Rae’s evidence was only relevant to whether the examination took place at an earlier time than J.P. said, His Honour was correct, and the issue would be peripheral.

[155] The second element of Ms. Rae’s evidence, in the appellant’s submission, had far greater importance and was not addressed by the trial judge. First, J.P. testified the appellant knew Ms. Rae had already left before he started the examination because she had to pass the appellant to leave. The appellant denied that he knew he and J.P. were the only ones left at the clinic. Therefore, Ms. Rae’s evidence corroborated the appellant’s account: Ms. Rae did not have to go past him or be seen by him to leave the clinic.

[156] Further, at one point J.P. testified she saw Ms. Rae leave at the same time or just before she went into the examination room. Ms. Rae’s evidence, the objective evidence, contradicted J.P.’s position Ms. Rae left at or just before the examination. Consequently, the appellant submits the trial judge misapprehended or failed to appreciate the significance of this evidence as potentially bearing on the credibility of the appellant and J.P.

[157] The Crown submits His Honour appreciated the appellant’s position regarding Ms. Rae’s evidence and clearly articulated why he found her evidence of limited probative value. Ms. Lai noted that Ms. Rae had no recollection of June 16, 2009. During the trial submissions, when defence counsel was referring to evidence about the timing of the examination, His Honour queried whether the evidence had any significance and/or whether it mattered. Defence counsel said, “Not hugely, it’s small ...”. His Honour then put to defence counsel, “Maybe it just happened that way” and the appellant was not waiting until everyone else left. Defence counsel said that was it exactly. To the very limited extent the defence relied on Ms. Rae’s evidence, the Crown argued His Honour engaged in a “reasoned rejection” of the defence position.

Analysis

[158] While framed as a separate ground of appeal, this issue is similar to the ground regarding J.P.’s beliefs and suspicions. Here, it is J.P.’s after-the-fact belief the appellant waited until Ms. Rae’s departure so they would be alone that is implicitly characterized as false and/or not based on objective facts. A brief review of the evidence will assist in placing the issue in context.

[159] J.P. testified she closed the clinic doors and was getting ready to leave when the appellant reminded her of the examination to ensure her kidneys were okay. She retrieved her chart, put it on his desk, and then waited at the front until he told her he was ready. While the appellant told her to wait as he was doing some paperwork, she did not see him doing notes. She said she was not feeling uncomfortable at all about the examination.

[160] In examination-in-chief, J.P. stated, “As I was going into the room, the therapist who was in the office was leaving, so I went in and he closed the door and he started doing his regular physical examination ...”. When the appellant put his hand under her bra, she became scared because there was nobody else in the office. She had seen the last person leave “... either just before or just as [she] was walking into the examination room.”

[161] In cross-examination, J.P. said she saw Ms. Rae leaving. It was not that she left while J.P. was in the examination room. She saw her leave. When questioned further on when she saw the therapist, J.P. said it was either before or while she was walking into the examination room. She could not remember exactly. When it was suggested she was not sure whether it was before or while she was entering the room, J.P. said she was sure it was before. Ms. Rae was leaving from “an office in the back” down a long hallway, at the very end.

[162] When asked if the appellant saw Ms. Rae leave, J.P. said the therapist would have to pass him to leave. She could not say what he saw. J.P. said she made her observations when she was putting files away, and that she was “in the back behind ... like there’s the front desk where I sit at, and then there is a wall, and behind the wall is where the files are kept.” It would appear that her observations were from the area of the reception desk that was midway on the hall. While there were two entrance ways, J.P. said that when leaving at night, people went out the back door and not the main entrance by her desk.

[163] Because it was a long time ago, J.P. admitted her times were mixed up, and she could not say the time Ms. Rae left. While she saw where defence counsel was coming from when she suggested to J.P. that it was quite possible the appellant saw J.P. after the last patient left and it just happened the therapist was leaving at that time, J.P. did not look at it that way.

[164] Ms. Rae drew a diagram of the office, which was marked as Exhibit 11. It shows parallel lines across the page representing a long corridor with the entrance midway along the bottom line. The doctors’ desks and examination rooms were along the hallway. The appellant described the small area where he wrote notes as a cubby hole in the hallway wall. His examination room was behind that area.

[165] To the left of the entrance door on the bottom line, Ms. Rae marked an ‘X’ for the appellant’s office. Her office was to the right of the entrance at the far right on the top line. There is no indication where the back door was located. Standing at the appellant’s desk, it would be possible to see the entry to her office, but not her door. Generally, when she was leaving, she would ensure no one else was in the clinic. If no one else was there, she would have to lock up the office and would leave through the general public door, the front door of the reception area. If there were still people there, she would still leave by the front door but would not lock the door. Ms. Rae had no recollection whether she saw anybody there when she left on June 16.

[166] From this review of the evidence, J.P. saw Ms. Rae while the therapist was in the area of her office and concluded she was leaving. She did not say she saw her going out a door, nor did she say she saw Ms. Rae go by the reception area, the appellant’s desk, or examination room. Her observations were made from the receptionist’s desk area, not the area of the appellant’s desk or examination room. A key to J.P.’s view that Ms. Rae had to go by the appellant’s desk was her belief that staff leaving from the after-hours clinic always left through the back door. Given the location of Ms. Rae’s office, this would have required her to go past his desk. However, that was not Ms. Rae’s practice. Contrary to the appellant’s written argument, J.P. did not say the appellant knew the therapist had left. After-the-fact, she came to believe he concocted the excuse of having to do paperwork to permit Ms. Rae to leave, so they would be alone. She could not say what the appellant saw and did not see him doing paper work while she waited in the area of her desk. As the trial judge said in argument, maybe it just happened that Ms. Rae was leaving when he was ready to start the examination. The events were not related.

[167] The evidence did not show J.P. lied, that she said she saw Ms. Rae go past the appellant, or that he saw Ms. Rae leave. She drew an inference from what she thought everyone working at the clinic did when they were finished at the after-hours clinic, which was that they all went out the back door. While her evidence was shown to be unreliable, since there could be no mistake about what did or did not happen in the examination room, I am not persuaded the trial judge was required to address the conflict in evidence or that he misapprehended or failed to appreciate the significance of this evidence.

[168] If I am wrong in that conclusion, I am persuaded the error occasioned no substantial wrong or miscarriage of justice. J.P.’s inference based on her misunderstanding of how staff left the office could not have impacted on the verdict: MayuranI, at para. 45.

[169] The appellant’s second point about the importance of Ms. Rae’s evidence is premised on J.P. at one point saying Ms. Rae was leaving at the same time, or just before, she entered the examination room. He contends the objective evidence contradicted J.P.’s evidence the therapist left at that time. With respect, I am not persuaded the trial judge erred in not addressing this point. This submission relates to the time Ms. Rae said she left, which would have been before the appellant saw his last patient and well before J.P. said she saw Ms. Rae leaving. However, His Honour found Ms. Rae’s evidence was either unreliable about the time or was of no significance because it was on a peripheral point. It is conceded His Honour’s finding on this point was reasonable.

Did the trial judge misapply the R. v. W.(D.) principle?

Positions of Counsel

[170] While the trial judge properly articulated the W.(D.) principle, the appellant contends that given His Honour’s findings the appellant’s evidence was free from problematic demeanor, disabling inconsistencies or flaw, it was “insufficient to find only that the Crown’s evidence “overwhelmed” the defence evidence”. In these circumstances, it was an error to find the Crown’s evidence established guilt beyond a reasonable doubt because it “overwhelmed” the defence evidence.

[171] The appellant further submits the trial judge erred in finding that when a court concludes the complainant’s evidence is “believable and believed,” the accused’s evidence must be rejected. Even where the court finds the complainant believable, it must still give the accused’s evidence a fair assessment and determine whether, notwithstanding the belief in the complainant’s evidence, there is a reasonable doubt. The trial judge’s error was in first finding J.P. believable. Once a court believes the complainant, the case is over. There is nothing left to assess.

[172] The Crown submits His Honour approached the credibility conflict appropriately and in conformance with binding appellate authorities.

Analysis

[173] I am not persuaded the trial judge erred. The issue was addressed by defence counsel in her submissions as follows:

… Your Honour may still find J.P. to be a believable witness, and she certainly appeared to be a good witness and I just say to you that that’s not enough, because if both Dr. Woollam and J.P. are good witnesses, at the end of the day you are not satisfied beyond a reasonable doubt, you must acquit.

[174] The trial judge addressed this issue at paragraph 32 of his reasons, noting it would be improper to reason that because a complainant’s evidence was believable and believed that the accused’s evidence must be rejected. Even where a court finds the complainant’s evidence to be believable, it must still give the accused’s evidence a fair assessment and determine whether there is a reasonable doubt, notwithstanding belief in the complainant, citing R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.); R. v. Jaura [2006] O.J. No. 4157 (C.J.). I am not persuaded His Honour failed to follow this self-instruction.

[175] A trial judge’s reasons reflect his or her conclusions after considering all of the evidence. Reasons do not necessarily reflect the sequential analysis used by the trial judges. Absent some indication to the contrary, it is presumed the trial judge knew and applied the law correctly, including that every issue is determined in the context of all the evidence. R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656 at 199-200; R. v. Hoohing, [207] O.J. No. 3224, 2007 ONCA 577.

[176] Reading the reasons as a whole, His Honour’s analysis is consistent with counsel’s submission and binding authorities. There is nothing to suggest His Honour engaged in the bifurcated analysis the appellant contends, examining J.P.’s evidence and finding it believable before examining the appellant’s and other evidence favouring him.

[177] His Honour’s analysis is consistent with the Court of Appeal judgment in R. v. Hoohing. At paragraph 15, Feldman J.A. held:

… A jury does not consider an accused's version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused's version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused's evidence and the other evidence that favours the accused in the context of all the evidence. See R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.). The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses' evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.

[178] The trial judge found the Crown’s evidence overwhelmed the appellant’s. In doing so, he referred to and applied binding judicial precedents including R. v. J.J.R.D., where Doherty J.A. observed:

The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[179] There is nothing in the Reasons for Judgment from which it could be inferred the trial judge failed to approach the conflicting evidence appropriately. A trier of fact examines all of the evidence and assesses the witnesses’ evidence for internal consistencies, external consistencies, demeanour, and whether a witness’ evidence accords with logic, common sense and human experience. After that analysis is made, conclusions are reached, and W.(D.) applies in relating the Crown’s burden of proof to the credibility issues.

[180] Concerning the appellant’s submission that finding the complainant’s evidence ‘overwhelmed’ the defence’s was not sufficient to comply with W.(D.) and the burden of proof, I am not persuaded the trial judge erred. The use of ‘overwhelmed,’ while not referred to in the judgments noted above, is nonetheless consistent with those judgments. There is no requirement trial judges slavishly adhere to the W.(D.) wording: see R. v. S.(W.D.), [1994] 2 S.C.R. 521 at 533; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paras. 7-8.

[181] The conclusion here is similar to that in J.J.R.D, supra. The trial judge totally rejected the appellant’s denial despite the absence of any obvious flaws in it because stacked up against J.P.’s evidence, her post-event condition and conduct and the absence of a motive to fabricate, the appellant’s evidence did not leave him with a reasonable doubt. I do not see any significant difference between that finding and a conclusion J.P.’s evidence and the other points overwhelmed the appellant’s evidence.

[182] The question to be answered was whether His Honour was satisfied beyond a reasonable doubt the offence had been established. The trial judge found he was and confirmed the finding, with his last comment, that he was sure of the appellant’s guilt. That is consistent with R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at para. 39.

Conclusion

[183] The appeal is dismissed.

Durno J.

Released: Aug. 17, 2012

COURT FILE NO.: 892/11

DATE: 20120817

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

ROBIN WOOLLAM

Appellant

AMENDED

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice B. Duncan

dated November 24, 2010]

Durno J.

Released: August 17, 2012

[^1]: While Watt J.A. used the terms “logic, common sense and human experience” in the context of post- offence conduct and circumstantial evidence in R. v. J.A.T. 2012 ONCA 177 at para. 142, the words are equally applicable when assessing the testimony of witnesses.

[^2]: Ms. Lai represented the Crown on the first date of the hearing. When counsel were requested to provide further submissions, because Ms. Lai was no longer with the Peel Crown Attorney’s office, Mr. Schaffer represented the respondent.

[^3]: J. Pearsall, The Concise Oxford Dictionary, 10^th ed. (New York: Oxford University Press, 1999) at 1017.

[^4]: J.P. testified she got caught in traffic and called because she was unable to make the appointment.