SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-10000377-0000

DATE: 20151207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ARTURO SANCHEZ

Accused

Karen Simone, for the Crown

David Humphry and Jill Makepeace, for the Accused

HEARD: October 5-9, 13-16, 20, 22 & 23, 2015

BACKHOUSE J.

PUBLICATION RESTRICTIONS NOTICE

Subject to any further Order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcasted in any way pursuant to section 486.4 of the Criminal Code of Canada.

REASONS FOR JUDGMENT

Overview

[1] The accused, Dr. Arturo Sanchez, is a Toronto paediatrician who is charged with 8 counts of sexual assault against 6 female patients extending over a period of 50 years. The complainants were patients of Dr. Sanchez between the ages of 8 to 15 years at the time they allege that he molested them under the guise of conducting a medical examination. In Counts 1 and 2, L.H. alleges that Dr. Sanchez molested her on the breasts and vagina while an inpatient at the Toronto Hospital for Sick Children (“HSC”). Her allegations include a “night incident” where she woke up in her bed to find Dr. Sanchez on top of her, touching her breasts and vagina. In Count 5, L.C. alleges that Dr. Sanchez molested her on the breast while attending at her home to administer an allergy shot. Dr. Sanchez denies that the touchings alleged in Counts 1, 2 and 5 occurred and agreed that they would have been improper. The other counts allege that Dr. Sanchez molested the complainants on the breasts and/or vagina in Dr. Sanchez’ office while he was purporting to be conducting a medical examination. Identification is not in issue with respect to any of the counts.

[2] Dr. Sanchez testified that a full physical examination included a breast and groin examination and that it was impossible or almost impossible not to touch the nipple or vagina while examining in those areas. He denied the allegations that he put his finger inside the vagina of his patients. He agreed that such conduct would be improper.

[3] In regard to Counts 1 and 2 involving L.H., I found her a credible and reliable witness. In regard to Count 5 involving L.C., I found her and her mother, S.P., credible and reliable. I found Dr. Sanchez not to be credible and his evidence did not raise any reasonable doubts. I find him guilty beyond a reasonable doubt of Counts 1, 2 and 5. With respect to the remaining counts 3, 4, 6, 7 and 8, I found the complainants (and their mothers in the case of Counts 6, 7 and 8) to be honest and doing their best to be truthful and Dr. Sanchez not credible. Nevertheless, I am left with a reasonable doubt about his guilt on Counts 3, 4, 6, 7 and 8. Reasonable doubt arises from a combination of factors: some material inconsistencies in the evidence; the presence of a parent during the examination who apparently did not see anything untoward; unlike counts 1, 2, and 5, the absence of an unequivocal admission by the accused that the alleged touching would have been improper in any of these counts; the absence in these counts of expert evidence as to the appropriate standard of care and propriety of these breast and groin examinations; and in the case of counts 7 and 8, parental pressure with respect to conduct which the complainant at first had not found objectionable. I find Dr. Sanchez not guilty of Counts 3, 4, 6, 7, and 8.

[4] I considered the Crown’s submission that similar fact evidence should be applied to all the counts. I did not find it appropriate to use similar fact evidence to reach a conclusion on Counts 1, 2 and 5. The facts in Counts 1, 2 and 5 differ from the other counts in that the setting in which each occurred, Counts 1 and 2 in the hospital, and Count 5 in the home, differ from the other counts which occurred in the office. They also differ in that Dr. Sanchez concedes that if the acts alleged in Counts 1, 2, and 5 had occurred, they would have been improper, whereas with the remaining counts, there is no similar unequivocal admission. In these circumstances, given the inherent dangers of using similar fact evidence, I do not find that the facts of Counts 1, 2, and 5 on which I have convicted, assist in eliminating reasonable doubt on the other counts. Equally, the reasonable doubt that I have on the remaining counts is not eliminated by the fact that there are multiple complainants. I found that there were simply too many problems with the evidence on the remaining counts for me to conclude that there was guilt beyond a reasonable doubt. The impediments to conviction on each of the remaining counts do not permit me to conclude, even when considered together, that Dr. Sanchez is guilty beyond a reasonable doubt on Counts 3, 4, 6, 7 and 8.

[5] In the result, I find Dr. Sanchez guilty on Counts 1, 2, and 5 and not guilty on Counts 3, 4, 6, 7, and 8.

[6] Because I have analyzed the evidence on each count separately, I turn at this point in my Reasons to set out the general legal principles which are applicable to all of the counts, my findings on Dr. Sanchez’ credibility and my analysis of the similar fact application.

General Legal Principles Applicable to All Counts

Indecent Assault/Sexual Assault

[7] At the time Counts 1 to 5 were allegedly committed, s. 149 of the Criminal Code made it an offence to indecently assault a female person. In 1985 the offence of indecent assault was replaced with the offence of sexual assault under s. 271 of the Criminal Code. Assault is defined in s. 265 of the Criminal Code as touching without the consent of the complainant. A sexual assault is an assault which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: whether viewed in the light of all the circumstances the sexual or carnal context of the assault is visible to a reasonable observer. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct are relevant. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. The existence of such a motive is, however, merely one of many factors to be considered. (R. v .Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293)

[8] In Count 8, the accused is charged under s. 151 of the Criminal Code which makes it an offence to touch for a sexual purpose any part of the body of a person under the age of 16 years.

R. v. W.(D.)

[9] The framework set out in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) must be applied to Dr. Sanchez’ evidence. Even if I do not believe Dr. Sanchez’ evidence, if it leaves me with a reasonable doubt about his guilt on any of the offences, I must find him not guilty of that offence. There is a distinction between the credibility of a complainant and a finding that the offence has been proved beyond a reasonable doubt. It is entirely possible to have a reasonable doubt at the end of the case even if I find that one or more of the complainants were credible.

Assessment of Allegations of Historical Sexual Assault

[10] Assessment of a complainant’s credibility and reliability must include a critical assessment of the complainant’s evidence in the context of the evidence as a whole. This involves an assessment of whether the complainant’s evidence is at odds with other evidence in the case, and whether the complainant’s allegations are implausible or improbable having regard to the surrounding circumstances. The real test of the truth of the story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. A trier of fact must be aware that an apparently honest, confident or convincing witness may not necessarily be an accurate witness.

[11] In cases involving allegations of historical sexual assault where adult witnesses are testifying about recollections and impressions of childhood experiences, particular caution and scrutiny are called for in approaching the reliability of evidence. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Evidence may become contaminated. Life experiences can colour and distort the memory of what occurred. (R. v. McGrath, [2000] O.J. No. 5735 (S.C.), R. v. Stewart, (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242; R. v. Norman, (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295)

Similar Fact Application

[12] Counsel agree on the principles that apply to the admissibility of similar fact evidence. They disagree, however, on the proper application of the law to this case.

[13] Dr. Sanchez stands charged on one indictment with sexual offences against 6 complainants which were alleged to have taken place when they were between the ages of 8 and 15 years old when Dr. Sanchez was their paediatrician. The Crown seeks to admit the evidence of each complainant as evidence of Dr. Sanchez’ discreditable conduct to:

a. demonstrate a pattern of behaviour, namely that Dr. Sanchez gained the trust of the complainants in his capacity as their paediatrician;

b. used his position to take advantage of his young female patients in a sexually inappropriate manner;

c. had opportunity and access to his complainants;

d. rebut allegations of collusion by the complainants; and

e. support the evidence of each complainant.

[14] The Crown relies upon the following facts. All six of the complainants were allegedly touched on their breasts during examination for unrelated health issues, were made to feel uncomfortable and did not consent to the touching. Five out of six of the complainants were allegedly touched in their vagina or in the area of the vagina. There was no medical reason for Dr. Sanchez to be touching in this area. Their private area was covered by underwear. For 4 out of the 5 complainants touched in the area of the vagina, Dr. Sanchez allegedly put his fingers inside their vagina without their consent or knowledge of what he was doing. Dr. Sanchez had opportunity to be alone with L.H. over the course of her approximately 35 days at the Hospital for Sick Children in 1964 and 1965. Given this opportunity, L. H. was more frequently abused and more significantly.

[15] Evidence of discreditable conduct is presumptively inadmissible. In general, the exclusionary rule prohibits the use of character evidence as circumstantial proof of conduct, i.e. to infer from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty. (R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 (S.C.C.) at para. 31) Underlying the exception is the recognition that:

…there is a natural human tendency to judge a person’s action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning. (R. v. B. (C.R.), 1990 142 (SCC), [1990] S.C.J. NO. 31 (S.C.C.) at para. 57)

[16] The exception to the rule is that similar fact evidence is admissible where the Crown establishes on a balance of probabilities that the evidence is relevant and probative to an issue at trial and the probative value of the evidence outweighs its prejudicial effect. (R. v. Handy, supra at para. 55)

[17] In Handy, the Supreme Court of Canada set out the following steps in determining whether similar fact evidence is admissible:

Step 1: Probative Value of the Evidence

(a) Potential for Collusion

(b) Identification of the issue(s) in question

(c) Similarities and dissimilarities between acts charged and similar fact evidence

Step 2: Assessment of the Potential Prejudice

(a) Moral Prejudice

(b) Reasoning Prejudice

Step 3: Weighing up Probative Value vs. Prejudice

(R. v. Handy, supra at paras. 69 - 82, 99 - 101)

Potential for Collusion

[18] The defence concedes that there has been no collusion between the complainants but raises the possibility of tainting with respect to the complainants who came forward as a result of the media report and the press release of the Toronto Police Service.

[19] There are many reasons why complainants choose not to come forward to the police with allegations of sexual assault. A.L., the complainant on Count 4, made a complaint in 2001 to the College of Physicians and Surgeons which was dismissed. She did not come forward as a result of the media report. She was contacted by the College of Physicians and Surgeons and then by the police after charges of sexual assault were brought against Dr. Sanchez. L.H., the complainant on Counts 1 and 2, testified that she complained about Dr. Sanchez at the time to her roommate at Hospital for Sick Children, told her husbands of the abuse and followed Dr. Sanchez on the internet. L.C., the complainant on Count 5, wrote in her diary of the abuse which was read at the time by her mother and they discontinued Dr. Sanchez coming to the home to administer allergy shots. According to the testimony of I.S., the complainant on Count 6, and her mother, I.S., complained many times over the years about Dr. Sanchez’ examination. L.G., the complainant on Counts 7 and 8, was the one whose complaint to the police initiated these proceedings.

[20] As set out in my findings below, I found that the evidence of Z.D.P. on Count 3 may have been influenced when she heard that Dr. Sanchez had been charged with sexually assaulting a young patient but not the other complainants. The fact that 4 of the complainants came forward in response to the police press release does not mean that their evidence is necessarily less worthy of belief.

Identification of the Issue(s) in Question

[21] I agree with the defence submission that the particular issue for which the proposed similar fact evidence is adduced should be more than the credibility of the complainants. It is whether it has been established that Dr. Sanchez has a propensity to convert patient encounters from bona fide medical interactions into sexual assault.

Similarities and Dissimilarities between Acts Charged and Similar Fact Evidence

[22] In Handy, para. 82, the Court sets out the following non-exhaustive list of factors that assist in determining whether there is sufficient connection between the proposed similar fact evidence and the offences charged which will be analyzed below:

(a) The extent to which the other acts are similar in detail to the offence charged;

(b) The proximity in time of the similar acts and the offences charged;

(c) The number of occurrences of the similar act;

(d) The circumstances surrounding or the context in which the similar acts occurred;

(e) Any distinctive feature or features unifying the incidents or intervening events; and

(f) Any other factor which would support or rebut the underlying unity of the similar acts.

[23] The allegations in Counts 1 and 2 which took place in the hospital and in Count 5 which took place in the home differ from the other counts which all allegedly occurred in Dr. Sanchez’ office. They also differ in that Dr. Sanchez concedes that if the acts alleged in Counts 1, 2, and 5 occurred, they would have been improper whereas with the remaining counts, there is no similar unequivocal admission. The allegations are spread randomly over a span of 49 years. One could consider that there is similarity in the fact that all the complainants were allegedly assaulted while they were young females were it not for the fact that Dr. Sanchez’ practice was paediatrics, and over the course of 49 years he would have seen a large number of young female patients. There are a total of six alleged similar act complainants. This would appear to support a pattern of conduct and a specific propensity, the coincidence of which would be an affront to common sense were it not for the fact that in the case of 4 of the complainants (re Counts 3, 4, 6, 7, and 8), the very issue is whether they were bona fide medical examinations or sexual assaults.

[24] There is a superficial attractiveness to the argument that the evidence of the complainants on Counts 3, 4, 6, 7 and 8 is sufficiently similar to transcend general disposition. However, the court must be satisfied that there is threshold materiality and relevance, and that the probative value of admitting the similar fact evidence outweighs its prejudicial effect. I consider the absence of standard of care evidence on Counts 3, 4, 6, 7 and 8 a fundamental flaw in the Crown’s case. This deficiency is not addressed by the similar fact evidence. Moreover, with respect to these counts, there are material inconsistencies in the evidence, the presence of a parent during the examination who apparently did not see anything untoward, and in the case of counts 7 and 8, parental pressure with respect to conduct which the complainant at first had not found objectionable. In all the circumstances, including the frailties that I have found in the evidence with respect to Counts 3, 4, 6, 7 and 8, I am not satisfied that the probative value of admitting the similar fact evidence outweighs its prejudicial effect.

Credibility of Dr. Sanchez

[25] The indictment includes 8 counts. There are 6 completely separate incidents over a 50 year period involving 6 complainants. No application for severance was made. Dr. Sanchez testified on each count. Because I rejected the application of similar fact evidence, I have also assessed his credibility on each count based only on the evidence relating to that count. It would not be appropriate to use a concern about Dr. Sanchez’ credibility on Count 1, for example, to affect a credibility finding on Count 8.

Counts 1 and 2 - L.H.’s Allegations

[26] Counts 1 and 2 allege that the accused indecently assaulted L.H. between August 20th, 1964 and September 9th, 1964 and between January 6th, 1965 and January 19, 1965, contrary to s. 149 of the Criminal Code.

Evidence of L.H. re Counts 1 and 2

[27] L.H. gave the following evidence. Her maiden name was L.L. She is 66 years of age, having been born on August 22, 1949. She grew up in Sudbury. She went through a period of very poor health when she was 14 and 15 years of age. She was hospitalized in Toronto’s Hospital for Sick Children (“HSC”) in August, 1964 for 3 weeks and again in January, 1965, for a urinary tract infection that could not be controlled. Dr. Sanchez was one of the interns who looked after her. She was friendly with him as well as some of the other interns. Dr. Sanchez told her he was married. He told her a lot about his lifestyle where he grew up (she could not remember if it was Mexico or Colombia) which she was very interested in. He told her about the kind of food they ate. He told her that there were so many people named Sanchez where he came from that when a male with that surname married, he would hyphenate his surname to include the wife’s name.

[28] L.H. was in the hospital for recurring cystitis. She had no issues with her breasts. On 5 or 6 occasions during L.H.’s first admission, Dr. Sanchez lay his hands on her breasts and held them in different ways, seemingly performing a breast examination. No other intern or doctor touched her breasts either at HSC or at the Sudbury General Hospital where she had been previously admitted. He also touched her with his fingers and hands in the area around and in her vagina. She had no health issues with respect to her vagina at the time of the assaults. This happened mainly in an examination room where no one else was present. At trial she testified that the examination room was on the same floor as the ward where she was staying. At the preliminary inquiry she testified that she could not recall if it was on the same floor. On cross-examination, she confirmed her evidence which she gave at the preliminary inquiry on this point. At trial she testified that the bulk of the inappropriate touching took place in the examination room with one or two of the incidents taking place in the ward, but of which she had no specific recollection except for the “night incident” described below. When she was interviewed by the police, she stated that sometimes the inappropriate touching occurred in the room where the interns did testing. At trial she said that her memory is getting older and that this had been an extremely traumatic year for her where she had lost her husband, her mother and a friend. She however had no current recollection of the touching occurring in the room where the interns did testing. Because it was a very busy room, she testified at trial that it did not make sense to her that it would have occurred there. She felt afraid and extremely uncomfortable as a result of Dr. Sanchez’ conduct. During her second admission, his touching continued and increased.

The “Night Incident”

[29] One night during L.H.’s second admission, she was asleep in her bed. She was in a ward which she remembered as likely having 4 beds but which was not always occupied because there were not that many older patients. She could not recall if the other beds were occupied at the time of the “night incident”. Dr. Sanchez woke her up telling her that he had to examine her. Although the lights were dimmed at night, there was enough light by which to see him and she recognized his voice. He very intently examined her around the pubic area and vagina. He touched her breasts. He put one leg up on the bed over her legs and hips. In her police statement she said that he was lying right on top of her on the bed as though they were having intercourse. She testified that he was in a position where he could have had intercourse and that it would have looked like that was what he was doing. His forehead was pressed against her forehead. He was breathing heavily and panting. At one point he pulled her hand towards him and she pulled it back. Although she told the police in her statement that she was trying to get away from him, at trial she testified that she was pretty well pinned down and was intimidated by his position of authority. She could not remember how Dr. Sanchez was dressed. She thought that she was probably wearing a hospital gown. At trial she could not remember if the covers were down or whether her vaginal area was exposed to the room. She testified at the preliminary inquiry that he lifted her gown and exposed her vaginal area and that he had his finger in her vagina. She testified that her recollection has gone downhill in the last year because of so many deaths of people close to her and that her memory was better at the preliminary inquiry than at trial. She was terrified and did not know what was going to happen and how far it was going to go. She was not very well educated in these types of things.

[30] Approximately 5 to 10 minutes after it started, a nurse interrupted demanding to know what was going on. The nurse pulled back the curtain that was around the bed. When the nurse arrived, Dr. Sanchez moved so that he was leaning less over the bed. He turned to the nurse and ordered her to bring him some kind of scope. The nurse left to get the scope. Dr. Sanchez straightened up his clothes and left before she returned. When the nurse came back, she asked where he had gone. L.H. did not respond. The nurse did not ask what had been going on and L.H. did not say. This was 50 years ago when these kind of things were not talked about, particularly in the case of someone in a position of authority like a doctor. L.H. did not recognize the nurse who came in on them. The nurses who worked the night shift started after the patients had gone to bed and L.H. did not get to know them like the dayshift nurses. L.H. did not see that nurse again. After the “night incident”, L.H. had no other recollection of further incidents and does not know whether this was because he stopped or because she was discharged.

[31] L.H. had a roommate at HSC who she was friendly with, one of the other older female patients, B.R. L.H. complained to her about Dr. Sanchez. She told B.R. that Dr. Sanchez had gone too far with her. She asked B.R. whether Dr. Sanchez had ever touched her. L.H.’s testimony about B.R.’s response is hearsay and I have disregarded it. B.R. became uncomfortable with the conversation and did not want to talk about it anymore. B.R. was in panic mode. She called her parents and they came and took her home.

[32] At the preliminary inquiry L.H. testified that what she meant by disclosing to B.R. that Dr. Sanchez had gone too far with her was that his examinations were too personal. She testified that she was leery of talking about it and that it was less stressful for both of them to put it in vague terms.

[33] L.H. could not recall any other doctors touching her in the pelvis or vagina before or during her admissions at HSC. She was catheterized a couple of times which was done by the nurses. She did not recall having a cystoscopy during the time she spent at Hospital for Sick Children (which according to the medical records she did have, but this would have been performed by a urologist according to Dr. Sanchez’s testimony).

[34] What Dr. Sanchez did to her had a huge impact on her first marriage. She did not like to have sex or to be touched and felt very uncomfortable about it. It is still affecting her. She talked about the sexual assaults with her second and third husband. She heard on television that Dr. Sanchez had been arrested for sexual assault and that there were other victims out there. She discussed it with her husband and realized she had to do something. She called right away. She agreed that the news item was March 21, 2013 and that she gave her statement to the police the following evening. The news item gave a phone number for victims to contact.

[35] L.H. had always followed Dr. Sanchez on the internet. After making an appointment with the police, she went on the internet and saw that there were allegations of sexual improprieties with a patient and that the police wanted other victims to come forward. By coming forward, she was fulfilling her own needs after 50 years of this bothering her. She did not come forward to fulfill the needs of the police. She does not know any other complainants and has had no discussion with any complainants.

Evidence of Dr. Sanchez re Counts 1 and 2 - L.H.’s Allegations

[36] Dr. Sanchez gave the following testimony. He is 81 years of age. He was born in Colombia and immigrated to Canada in 1959. He attended medical school in Colombia. In 1959 he interned at St. Joseph’s Hospital in Toronto for 3 years. From July 1, 1962 to June 30, 1963 he was a paediatric resident at HSC and then senior resident at HSC from July 1, 1964 to June 30, 1965. As a paediatric resident at HSC, he was on 24 hours call 2 to 3 times per week.

[37] In November, 1964 he was designated a paediatric specialist (F.R.C.O.(C)) by the Royal College of Physicians and Surgeons of Canada.

[38] Dr. Sanchez had no independent memory of L.H. as his patient. He testified that he did not believe that he had performed a breast examination on her or any internal examinations. He testified that the “night incident” never happened.

[39] Dr. Sanchez reviewed her patient chart at HSC where she was a patient from August 20 to September 9, 1964 and January 6, 1965 to January 19, 1965. According to the records, he had not taken her history or conducted the physical examinations that occurred at the time of her 2 admissions. In regard to her 1964 admission, he signed on behalf of Dr. Singer but did not author a 3 page discharge report to L.H.’s referring physician. He made a handwritten progress note on her chart on September 2, 1964 in regard to a medical interaction he had with her that day. From the notes he did not believe that he would have physically examined her on that occasion or any other occasion. Had he done so, it should have been reported on her chart. From the September 2, 1964 note in the file of his interaction with L.H., it did not look to him as though he performed a breast examination. His name does not otherwise appear in the notes, doctors’ orders or records from which he concluded he was not likely assigned to her case and had only one interaction with her.

[40] Dr. Sanchez agreed that he might have chatted with L.H. while she was a patient at HSC because he usually liked to talk and be friendly but that was as far as it went. He agreed on cross-examination that after rounds, he would have occasion to go and chat with the patients without the patient’s chart or a nurse being present or anyone necessarily knowing where he was. Although he had no specific recollection of L.H. as a patient, he was adamant that he had not had occasion to be alone with her.

[41] Dr. Sanchez did not remember doing a breast examination on L.H. and did not think he did so. At the time of a patient’s admission if he was assigned to the case or as part of a full physical examination, he would do a chest examination which would include examination of the breasts. Although he testified that it was the practice when he worked at HSC for breast examinations to be conducted as part of a full physical examination, he was unable to point to anywhere in the 78 pages of records for L.H.’s time as an inpatient at HSC where a breast examination was documented. He agreed that it was important that a record of a detailed history and patient examinations set out what tests were done and what the results were to facilitate other doctors knowing everything that was done. He agreed that the record of the physical examination of L.H. at the time of her second admission recorded the results of her chest examination as: “Normal chest expansion; Resonance on percussion; No adventitious sounds heard;” and that there was no reference to a breast examination. He also agreed that the September 14, 1964 discharge report with a final diagnosis reported the negative results of an abdominal examination as “no masses were palpable in the abdomen” but made no reference to a breast examination.

[42] In his career as a paediatrician, he had not performed internal examinations in a hospital or in an office. Once in a while he would have been involved in visible examinations of a patient’s pubic area on rounds with a staff person, residents and interns.

[43] Dr. Sanchez denied that he performed any internal examinations on L.H. or that the “night incident” she described ever happened. He denied ever having his fingers partly in her vagina. He testified that very occasionally when he worked at HSC, he would be called by the nurse at night when he was on call to examine a patient. If he was on the ward at night, the nurse would know. There would be one or two nurses always in the nursing station which one would have to go by to get to a patient’s room. When he arrived on the ward, he would have to notify the nurses that he was there and obtain the patient’s chart from the nurses’ station. There were less staff working at night. Most of the time at HSC, examinations took place in a patient’s bed. Certain situations called for examination of the patient in the examination room where the equipment was present to do a proper examination.

Credibility of L.H. re Counts 1 and 2

[44] Although it was 50 years ago, L.H. had very specific recollections about Dr. Sanchez. Accuracy on contextual matters, while not definitive, is a factor to be taken into account in assessing credibility and reliability. Without reviewing her records at HSC, she correctly recalled his being an intern at HSC during both her admissions. Again without access to her records, she correctly recalled having her 15th birthday while at HSC. She recalled being friendly with Dr. Sanchez and recalled what they chatted about. She recalled that he was married. He testified he was married at the time. Although he downplayed it, Dr. Sanchez’ testimony that he liked to talk and be friendly and might have chatted with L.H. while she was a patient at HSC, confirms her evidence that she was friendly with him. Dr. Sanchez did not contradict any of the specific information L.H. recalled about their chats.

[45] L.H. gave her evidence in a logical and sensible way. She did not exaggerate her evidence. When she could not remember, she said so. On cross-examination, she readily conceded things put to her which were possible where she had no specific recollection. She was careful not to overstate what happened and what she could remember. She gave her evidence in a balanced way.

[46] I found L.H.’s evidence credible, that she recognized that what Dr. Sanchez was doing was wrong at the time, and although she was leery of talking about it and found it stressful to talk about it, raised the abuse in a vague way on one occasion with her girlfriend and fellow patient, B.R., a contemporary, rather than an adult. The inconsistencies in her testimony about such details as the exact location of the examination room, whether some of the touching occurred in the room where the interns did the testing, and her inability to remember in regard to the “night incident” whether the covers were up or down, and to what extent she struggled, are the kinds of things it would be natural to forget over the passage of time. They did not detract from what I found was credible and reliable evidence. Her evidence about the improper touching of her breasts and vagina and the “night incident” were not undermined on cross-examination.

Credibility of Dr. Sanchez re Counts 1 and 2

[47] Dr. Sanchez’ attempts to portray the environment at HSC as one where it would not have been possible for him to be alone with a patient lacked the ring of truth. His efforts to downplay how much he had to do with L.H. were belied by the specific recollection she had of things they talked about which he did not contradict. His evidence that the only time he saw L.H. was the one time he authored a progress report on her which he testified would not have involved a physical examination was self-serving and unbelievable. His evidence that breast examinations were routine at HSC was inconsistent with L.H.’s hospital records.

[48] Dr. Sanchez conceded that there was no medical reason for him to have his finger in a patient’s vagina. He tried to evade answering Crown counsel’s question as to whether he did this so that the Crown had to ask him the same question several times. It was suggested by the defence that this was due to the tremendous stress and fatigue for an 81-year old going through a trial of this nature. My impression was otherwise. In his examination-in-chief he seemed prepared, cogent and purported to be able to remember many things in great detail such as the set up and routine at the Hospital for Sick Children going back 50 years. His cross-examination occurred at the beginning of the day. My impression was that he was reluctant to answer the question about putting his finger in a patient’s vagina because he had done so to L.H. on more than one occasion.

[49] I did not find Dr. Sanchez either credible or reliable with respect to Counts 1 and 2.

Analysis and Conclusion re Counts 1 and 2 - L.H.’s Allegations

[50] I have considered all of the factors in the case of L.H.’s allegations that may make historical sexual allegations unreliable. There was no tendency in her evidence to exaggerate or to amplify her evidence as she went along. There was no apparent motive to lie. There was no suggestion of any emotional or psychological problems which might cause someone to misconstrue what had occurred. This was not a case where, after hearing that Dr. Sanchez had been arrested for sexual assault, she began to recollect and reconsider what had happened to her. She raised the abuse, albeit in a vague way, with her friend at the time. She had told her second and third husband what had happened to her. She had followed Dr. Sanchez, this man who had had such an influence on her life, on the internet. She came forward not to assist the police who had asked for help but because what had happened to her had been bothering her for 50 years. She gave eloquent testimony about the impact on her life of the sexual assaults.

[51] Common sense dictates that if an intern or doctor wished to be alone with a patient, there were opportunities to do so. I reject Dr. Sanchez’ evidence that he would have had no opportunity to be alone with L.H.

[52] While L.H. described some of the touching of her breasts as akin to a breast examination, I find that she correctly discerned that this was not Dr. Sanchez’ purpose and correctly understood that his various touching of her breasts and in and around her vagina were not medical examinations but were for a sexual purpose. No other doctor examined the areas of her breasts or vagina while she was at HSC. In the records from her file, there is no reference to her breasts or vagina being examined by any of the doctors who were involved in her treatment. She was not in the hospital for any medical problem related to her breasts or her vagina. The “night incident” makes it abundantly clear, where Dr. Sanchez had one leg on top of her and was breathing heavily and panting while groping her breasts and vagina, that he was doing this for his sexual gratification and not for any medical purpose.

[53] L.H. knew Dr. Sanchez. She knew that it was Dr. Sanchez who assaulted her on the breasts and vagina while pretending to be conducting physical examinations. She recognized it to be Dr. Sanchez when he woke her up at night, told her he needed to examine her, and sexually assaulted her.

[54] I disagree with defence counsel’s submission that L.H.’s evidence about the “night incident” is improbable. By the time of L.H.’s second admission to HSC, Dr. Sanchez had completed medical school in Colombia, spent 3 years as an intern and 2 ½ years as a paediatric resident. It is not implausible that a nurse in the circumstances described by L.H., in 1965, in the hierarchical environment of a hospital, would be deferential to Dr. Sanchez. It is not implausible that a nurse would accept his pretence that he was conducting a medical examination and would be concerned that if she did not respond by getting the instrument he demanded, that she would be blamed for insubordination and dereliction of duty in a possible medical emergency.

[55] I also reject defence counsel’s submission that from the limited appearance of Dr. Sanchez in the hospital records for L.H., an inference should be drawn that it would be noticeable and suspicious if Dr. Sanchez was regularly conducting physical examinations of L.H. without making any progress notes or changes in the doctor’s orders. L.H. spent a total of 5 weeks at HSC while he was an intern and while he was on 24-hour call 2 to 3 times per week. The fact that Dr. Sanchez signed a detailed 3-page discharge report for L.H. in January, 1965, albeit on behalf of Dr. Singer, suggests that he was more involved in her care than he was willing to admit. Moreover, given the number of doctors, residents and interns who were involved in her care according to her records, it appears unlikely that staff would know one way or the other whether Dr. Sanchez was involved in her care or the extent to which he was. Even if his legitimate involvement with L.H. was limited to the one progress report and the signing of the discharge report, I reject the inference urged upon me by the defence that it would be noticeable and suspicious if Dr. Sanchez was regularly conducting physical examinations of her.

[56] L.H. testified that usually the interns brought the patient to the examination room. The fact that Ms. Hutchison had some recollection of nurses escorting her to an examination room during the 5 weeks she spent at HSC, did not undermine her evidence that she was alone with Dr. Sanchez on the occasions while he touched her breasts and vagina.

[57] Defence counsel submitted that there was an absence of corroboration of L.H.’s allegations. There is no corroboration. None is required. Given the way the alleged crimes were committed where the only persons present were doctor and patient, the potential for corroboration is non-existent.

[58] After considering all of the cautionary features identified in the cases, I am satisfied that she was both a credible and reliable witness. Dr. Sanchez’ evidence did not raise a reasonable doubt. I am satisfied beyond a reasonable doubt that Dr. Sanchez is guilty of Counts 1 and 2.

Count 3 - Z.D.P.’s Allegation

[59] Count 3 alleges that the accused indecently assaulted Z.D.P. between the 1st day of September, 1969 and the 12th day of June, 1974, contrary to s. 149 of the Criminal Code.

Evidence of Z.D.P. re Count 3

[60] Z.D.P. gave the following testimony. She is 54 years of age. She was born in Colombia, South America and immigrated to Canada with her family at age 4, first to the United States and then to Canada. She has 3 adult children of her own. She works in the beauty industry.

[61] Z.D.P. was a patient of Dr. Sanchez from around the age of 8 years for approximately 5 years. He was her first doctor in Canada. She could not remember where his office was then but recalled that she took public transit and the subway to get there after she moved with her family to Mississauga. She saw Dr. Sanchez for colds and flu and was taken by her mother who was always present for examinations. Her sister who was one year older and her brother who was one year younger were also treated by Dr. Sanchez. She recalled that every time she saw Dr. Sanchez for a cold or flu, he would open the zipper of her pants to touch her private parts and also touch her breasts. She was not yet wearing a bra. Her mother did not ask him to check her breasts, vagina or hymen. For a period of three to four minutes, he moved his fingers back and forth across her bare breasts including having contact with the nipples. When he touched her private parts, his fingers wandered both inside and outside her vagina which may have lasted five minutes or so. On cross-examination, she said that the touching in the area of the vagina may have lasted a minute. As he touched her breasts and touched her vagina, her mother stood beside Dr. Sanchez who spoke in Spanish to her about Z.D.P.’s maturation, coming of age, of how she was going to be maturing soon, that she was going to be having her period soon and the importance in the Colombian culture of a girl being a virgin until marriage. When he touched her breasts, he said her breasts were starting to grow. When he touched her vagina, he said her hymen was intact.

[62] Her mother never said anything indicating that she had concerns about Dr. Sanchez. What her mother saw and believed was that Dr. Sanchez was performing a medical examination. If her mother had thought there was anything wrong with his examinations, she would have put a stop to it. In reality, he was fondling her. When Z.D.P. was younger and Dr. Sanchez fondled her, she did not know any better. She did not think it was sexual but just thought that this is what doctors did during a medical examination. When she got older it made her uncomfortable. Some time after her last visit to Dr. Sanchez, she realized that there was something improper about the way Dr. Sanchez was touching her. She voiced her concern about Dr. Sanchez’ touching her to her mother (who is now deceased) and refused to go to a pending appointment that her mother had made for her to see him. Z.D.P. insisted that she was never going back to Dr. Sanchez. Her mother did not ask her for any details or clarification. Her mother got a new doctor for her who never touched her breasts or vagina.

[63] In 1987, when Z.D.P.’s own daughter was 6 months old, Z.D.P. took her to see Dr. Sanchez on one occasion. She was desperate because her daughter was constantly vomiting and losing a lot of weight, the family doctor was not able to help, and she was on a waiting list to see another paediatrician.

[64] As a result of what Dr. Sanchez did to her, Z.D.P. has had trust issues in her personal life and always has a wall and a barrier up, even with her husband.

[65] Z.D.P. heard the news release about Dr. Sanchez’ arrest for sexual assault of a young female patient and responded on the same day or following day to the request for any other victims to come forward. She felt tremendous guilt for not having come forward earlier but had felt at the time that it was just her against the world. She did not want the girl who had come forward to go through it by herself.

[66] Z.D.P. does not have her medical records for the time period Dr. Sanchez was her paediatrician. She told the police in her statement that she might have been around 10 years of age when she started to see Dr. Sanchez. Based on information she received from her aunt, she now believes that he was the family paediatrician before her family moved to Mississauga when she was 8 years old.

Evidence of Dr. Sanchez re Count 3 - Z.D.P.’s Allegations

[67] After working with another paediatrician at 2917 Bloor Street West in private practice for approximately 4 years, he opened his own practice and worked at various offices: Bloor Street West and Islington for approximately 4 years; 2299 Dundas Street West for approximately 4 years; 474 College Street, Suite 302, in the spring of 1978 until May, 2006, and thereafter in the same building but in Suite 403, until he retired this year. He speaks Spanish, Portuguese, Italian and English. In the 1960s and 1970s, there were not a lot of paediatricians in Toronto who spoke those languages, and accordingly, he had a lot of patients who were immigrants and who spoke those languages. He also worked at St. Joseph’s Hospital throughout his career.

[68] Dr. Sanchez had no recollection of Z.D.P. as a patient and no longer had her records. With respect to her allegation that every time she saw him for the flu or a cold, he examined her breasts and touched her private parts, he testified that if he had not seen a patient for over a year, he would do a complete physical examination. This would include a chest examination consisting of a visual and hands-on breast examination to check for any growths or lumps as well as an examination of the inguinal (groin) area. He agreed that a patient presenting with the flu, a cold, bronchitis, or pneumonia, did not require a breast examination.

[69] At some parts of his testimony, he testified that as a paediatrician he did not perform internal examinations, and that he had no reason to put his finger in a patient’s vagina. At other parts of his testimony, he testified that there were “unusual circumstances” where this could occur, where a grandmother or mother accompanying the adolescent female patient wanted to know the degree of development of the child, including whether the child’s hymen was intact. In those circumstances, he might do an examination of the nipple, and if he felt the presence of a bud in the nipple, that meant she had started to develop. He described doing an examination of the female genitalia for 2 purposes: 1) as part of a general physical examination; and 2) as an examination of the stage of development of puberty. The genital examination would involve a visible examination to look for a change in colour of the tissue to a brown or darkish colour, any secretions from the vagina and the appearance of public hair. A genital examination also involved palpation down the sides of the groin to ensure that the lymph glands were not enlarged. In his examination-in-chief, he testified that it was possible that he accidently touched the vagina during a genital examination, and that the vagina was so close to the inguinal (groin) area, that it was very difficult on occasion not to touch it when moving his hand from one side to another in the inguinal area. On cross-examination, he testified that it was impossible not to touch the nipple during a breast examination, and similarly the pubic hair and vagina during an examination of the inguinal area.

[70] When conducting an inguinal (groin) examination which he did on top of the patient’s underwear, he testified that it was impossible not to accidently touch the pubic hair and vagina of patients underneath their underwear. He testified that a complete physical examination involved a breast examination, even on a newborn. With respect to touching of the breast and nipple, he testified that while examining the breast during a complete physical examination it was extremely difficult if not impossible not to brush the nipple.

[71] The nature of discussion that he had with a patient or her caregiver would depend on the age of his patient. If it was a more mature patient, he would tell her that he was going to examine in the inguinal area to determine how advanced she was in her development. If it was a younger patient, he would communicate to the parent whether changes indicated that she would menstruate within a certain period of time. He testified that as Z.D.P.’s mother was Spanish speaking, it was likely that he spoke to her in Spanish. Dr. Sanchez testified that Z.D.P.’s testimony about her mother being very interested in her daughter maintaining her virginity until marriage as a result of her Colombian background was something he had experienced in his practice with his patients. Dr. Sanchez probably told Z.D.P.’s mother that it was important for her daughter to remain a virgin until marriage. He quite possibly told her mother that Z.D.P. was going to have her period soon and that her breasts were growing. He may have used the term “blossoming”. He may have said, “she may be a lady soon.” He denied that he put his finger inside her vagina. On cross-examination, he testified that he believes her mother brought her in to see him to find out how she was developing, including whether she was a virgin. He had no recollection whether he checked her hymen. It was possible that he examined her breasts, including touching her nipples.

Credibility of Z.D.P. re Count 3

[72] I found Z.D.P. to be an honest witness doing her best to tell the truth. However, there were problems with her evidence which I discuss below.

Credibility of Dr. Sanchez re Count 3

I did not find Dr. Sanchez a credible witness. His evidence that it was impossible or almost impossible not to touch the nipple or vagina while examining in those areas was not believable. He agreed that the examination in the groin area would be conducted over underwear. There is no reason that the vagina would be touched at every examination or almost every examination. He tried to evade answering Crown counsel’s question as to whether he did this. He often gave answers that contradicted his earlier testimony. For example while conceding that there was no medical reason for him to have his finger in a patient’s vagina and denying that he did this, he also testified that the mother or patient would be interested in the development and maturity of the patient, implying that he did have his finger in the patient’s vagina in those circumstances. The impression I got was that he used this as an excuse to justify touching the breasts and vagina for sexual purposes. His evidence that he conducted breast examinations as part of a full physical examination in every patient including newborns was incredible. However, despite my not finding Dr. Sanchez’ evidence credible, I have determined that this count has not been proved beyond a reasonable doubt for the reasons set out below.

Analysis and Conclusion re Count 3

[73] Z.D.P. gave conflicting estimates for how long Dr. Sanchez touched her vagina and breasts. Given the passage of time, being unable to remember is understandable, but raises the concern that the amount of time the touching took may have been in keeping with a physical examination of the chest and groin area.

[74] Z.D.P.’s mother was standing by Dr. Sanchez while he conducted the various examinations and never voiced any concern about them.

[75] The fact that Z.D.P. took her own daughter to see Dr. Sanchez when she was six months old raises the concern that her belief that she was sexually assaulted hardened or was influenced when she heard that Dr. Sanchez had been charged with sexually assaulting a young patient.

[76] Z.D.P.’s mother was anxious to know about Z.D.P’s development and when she would have her first period, raising the possibility that the examinations were at her request or at least with her acquiescence.

[77] There was no unequivocal admission by Dr. Sanchez that the alleged touching was improper. In the absence of expert evidence as to the appropriate standard of care and propriety of these breast and groin examinations, I have a reasonable doubt about the sexual purpose of the touching by Dr. Sanchez. I find the accused not guilty on Count 3.

Count 4 - A.L.’s Allegations

[78] Count 4 alleges that the accused indecently assaulted A.L. between September 1, 1970 and December 31, 1972, contrary to s. 149 of the Criminal Code.

Evidence of A.L. on Count 4

[79] A.L. gave the following evidence. She is 56 years of age. She immigrated to Canada from Italy when she was approximately 7 years of age. Her mother took her to see Dr. Sanchez when she was around 11 years of age. She had a fever, her mother thought she might have pneumonia or bronchitis, and someone had suggested to her mother that she should take her to a paediatrician. It was not a regular thing for her to go to a doctor. This was the first time she had seen a doctor in the early stages of puberty. She acknowledged that she could have been self-conscious about her body and of her developing breasts, as to some extent would be normal, but that she also had an older sister who she had seen go through the stages of maturing.

[80] Dr. Sanchez saw her with her mother in an examining room in his office located at Roncesvalles and Bloor Street West in Toronto. He told her mother where to sit and told A.L.to sit on the examining table. Dr. Sanchez and her mother spoke in Italian. A.L. understood only a little. She does not remember any explanation of what he was doing. Her mother’s view of what Dr. Sanchez was doing was blocked by where she was sitting. He did not give A.L. a physical examination. He asked her to breathe. He took the stethoscope and put it behind her back. With his other hand, he grabbed first one and then the other of A.L.’s breasts, squeezed and rubbed her nipples. Although she did not say anything or call out, this was very painful. She was disgusted, terrified and afraid.

[81] A.L. did not say anything to her mother about what had happened because she was afraid of what her mother might do. Although her mother had no history of violence, she had always said that if anybody touched one of her children, she would kill them.

[82] A.L.’s first child was born in 1975 when she was 16 years of age. Her son had jaundice and Dr. Sanchez was the paediatrician at St. Joseph’s Hospital who was assigned to him. Dr. Sanchez did not recognize her. Thereafter, she took her son on 3 occasions to Dr. Sanchez’ office to get immunizations. She did not want to do this but because Dr. Sanchez was her son’s paediatrician in the hospital, her mother and her husband, who was quite a lot older than she was, insisted on this. Neither of them was aware of the earlier incident. Because she was only 16 years of age, she could not stand up to them. She was always accompanied by either her husband or her mother when she went to Dr. Sanchez’ office. After her son’s immunizations, she did not return to his office.

[83] After Dr. Sanchez fondled her, she was afraid of doctors and is very uneasy when she has to go and see her doctor. She is very fearful about having a mammogram. She is fearful for her two young children, aged 5 and 6 years.

[84] It was always in the back of A.L.’s mind that she should bring a complaint against Dr. Sanchez. On May 31, 2001 she called the College of Physicians and Surgeons to do so. She was advised that a complaint had to be in writing. It took her a year to do this. By letter dated June 3, 2002 she wrote to the College to complain. She was interviewed by 2 interviewers on June 5, 2002. One of the things she told them was that Dr. Sanchez had said to her mother that A.L. was in the developmental stage. The College assessed the complaint and dismissed it. She was disappointed with the College’s failure to accept that Dr. Sanchez’ examination had not been a medical examination and had been improper. She told the College that if he was still practising, he was going to hurt someone else.

[85] In 2014, A.L. was contacted by Stephen Wright of the College of Physicians and Surgeons to advise that Dr. Sanchez was being criminally charged with sexually assaulting other patients and that police officers would get in touch with her. Three or four days after that, she went online and read a short article stating that he had been charged. She gave a statement to the police on April 3, 2014. At the time of her statement to the police and in her testimony at the preliminary inquiry, she had not reviewed her statement to the College given approximately 12 years earlier. She told the police and testified at the preliminary inquiry that she could not remember anything that Dr. Sanchez told her mother. By the time of trial, she had received and reviewed her statement to the College and she remembered that Dr. Sanchez had told her mother that she was in the developmental stage. She testified that she found it disgusting that Dr. Sanchez said this because her mother did not know that he had just fondled her. It was put to her on cross-examination that she deliberately did not tell the police or testify at the preliminary inquiry about Dr. Sanchez having said this to her mother because it supported that he had a medical purpose for his examination. A.L. responded that she had moved on in her life and it was not her that was pursuing this matter. She had not contacted anyone else to complain after the College had dismissed her complaint. It was the College and then the police who had contacted her. She testified that no other doctor had examined her in that painful way.

[86] In 2002, when she spoke to the interviewers from the College, she drew a diagram of Dr. Sanchez’ office. At the preliminary inquiry she drew another diagram. The earlier diagram showed a table beside the chair in which her mother sat. The later diagram did not. She testified that in 2014 she had not recalled the table there and that it was not a big table.

[87] At trial A.L. testified that Dr. Sanchez undid 2 buttons on her shirt before putting his hand with the stethoscope up the back of her shirt and coming up underneath her shirt with his free hand in the front to touch her breasts. In 2002, she told the interviewers from the College that the shirt was baggy enough so that he could reach underneath to her back and front and that Dr. Sanchez did not undo the buttons.

[88] In 2002, she told the interviewers from the College that Dr. Sanchez gave her mother a prescription for her. At trial she did not remember whether or not he had done so.

Evidence of Dr. Sanchez re Count 4 - A. L.’s Allegations

[89] Dr. Sanchez had no recollection of A.L. being his patient. He spoke Italian and it is possible that he spoke to A.L.’s mother in Italian. If A.L. presented as being sick with a fever or possible pneumonia and he had never seen her before, he would have done a complete physical examination, including an examination of her breasts. It is quite possible that he said she was in the “developmental process.” He denied that he would have touched her breasts while holding the stethoscope on her back. He testified that it is quite possible that he did not explain to A.L. what he was doing because it was some time ago but conversed with her mother.

[90] It is possible he would have been the paediatrician assigned to A.L. when she gave birth at St. Joseph’s Hospital where he worked.

Count 4 - Credibility of A.L.

[91] I found A.L. to be an honest witness doing her best to tell the truth. However, there are problems with her evidence which I discuss below.

Count 4-Credibility of Dr. Sanchez

[92] Dr. Sanchez’ evidence that there were “unusual circumstances” where he examined an adolescent female patient’s nipple for the presence of a bud to determine whether she had started to develop sounded concocted to justify the sexual touching alleged by A.L. However, despite my not finding Dr. Sanchez’ evidence credible, I have determined that this count has not been proved beyond a reasonable doubt for the reasons set out below.

Analysis of Evidence and Conclusion re Count 4

[93] A.L.’s mother was present during Dr. Sanchez’ examination and did not raise any concerns, although A.L. testified that her mother could not see what Dr. Sanchez was doing from where he had her seated. A.L. did not complain during the examinations although she said it was very painful.

[94] The fact that A.L. took her own child to Dr. Sanchez raises a concern that her view that Dr. Sanchez sexually assaulted her may have changed over time. Her complaint to the College was made 30 years after the alleged events.

[95] A.L. testified that Dr. Sanchez held the stethoscope on her back while he grabbed, squeezed her breasts and rubbed her nipples. Dr. Sanchez testified that he would not have held the stethoscope on her back while touching her breasts. There is concern that A.L.’s childhood memory of exactly the way the touching occurred may not be accurate.

[96] A.L. recalled Dr. Sanchez telling her mother that A.L. was in the developmental stage. A.L.’s evidence was that Dr. Sanchez and her mother were speaking in Italian and she did not catch everything that they were saying. This raises the issue of whether this was one of those “unusual circumstances” where A.L.’s mother had asked Dr. Sanchez about A.L.’s development and the touching was to determine her degree of development. In the absence of expert evidence as to the appropriate standard of care and propriety of this breast examination, I have a reasonable doubt about the sexual purpose of the touching by Dr. Sanchez. I find the accused not guilty on Count 4.

Count 5 - L.C.’s Allegations

[97] Count 5 alleges that the accused indecently assaulted L.C. between January 1, 1980 and December 31, 1980, contrary to s. 149 of the Criminal Code.

Evidence of L.C.

[98] L.C. gave the following testimony. She is 46 years of age, having been born on April 21, 1969. She has been a registered nurse since 1992 and currently teaches in the health field at Humber College. She is married and has 2 sons, a 15-year old and a 12-year old. She grew up in Etobicoke in a home in which her parents still live. She remembers from the approximate age of 6 years old going quite often to Dr. Sanchez as her paediatrician. Her mother has said she got sick a lot and would have to go and get antibiotics and then return for a checkup. She had a chronic bad cough and eventually went to an allergist to get tested. At approximately 11 years old when she was in grade 5, she was prescribed weekly allergy shots which Dr. Sanchez came to their home to give her. Her mother did not drive and she understood that he had offered to come to their home. She had no recollection of being treated for allergies in his office.

[99] Dr. Sanchez mostly came every Saturday morning for approximately 1 year. Sometimes her parents and her older sister were at home when he came. However, her mother started working Saturdays at the local dry cleaners. Her father went out preaching (the family were Jehovah’s Witnesses) and her sister would go with him. She remembers occasions when Dr. Sanchez came to give her the shot when no one else was home and she answered the door. On one occasion, she remembers him hugging her from the back when she was wearing a light blue V-neck spaghetti strap t-shirt, and that his hands went part way down the front of her top with his fingers spread out on her skin. One hand was close to her breast. She felt uncomfortable. She remembered one other hug which occurred in the family room when she could not remember anyone else being home. He pulled her so close that she could not breathe. On one occasion when he came to give her an injection, he asked her how old she was now and whether she had started to develop. She did not know what to say. She remembers that she was wearing a Mickey Mouse shirt which she got at Disney World when they had visited in June 1980. After giving her the injection, he said, “Let’s see how developed you are” and started lifting up her t-shirt. He touched her right breast and felt all around the entire breast. He used his whole hand, and with 2 hands and flat fingers, went all around the breast almost as if he was measuring. She had no issues with her breasts and did not give him permission to touch her breasts. While he was doing this, she froze. After he left, she knew it was not right and she went into the bathroom and started crying. She was very embarrassed and did not tell anybody.

[100] Dr. Sanchez continued to attend to give her allergy shots. While waiting for him, her heart pounded. She wondered whether this was the day he would pull her pants down. In her mind, she had no choice. He often said to her, “If you were older, I’d marry you.” This made her feel uneasy. She started to feel that she had to protect herself somehow. One morning the Saturday Star had a cover story on child sexual abuse. She put the article on the table where he gave her the injection thinking that he would see this and know she was onto him.

[101] Dr. Sanchez let her keep the used syringes (without the needle) which she collected in an empty tissue box. She kept this under the vanity in her bathroom. She wrote all over the outside of the tissue box, “Dr. Sanchez is a pervert. I hate Dr. Sanchez.” She saw this as a cry for help and an attempt by her to prompt someone to ask her about why she wrote that so she could tell about it. She had a small notebook which she kept on her bedside table. She wrote in it, “I’m so scared he’s going to rape me.” She wrote “rape” in capital letters. She did not expect anyone to read her notebook.

[102] One day her mother called from work and said that she needed to talk to L.C. and that she had to come to her mother’s workplace. Her mother’s workplace was very close. She remembers that the weather was cool enough to wear a coat and believes it was in the fall. When she got to the cleaners, her mother told her that she had read her diary and read something about rape and hands under her shirt. Her mother was crying and asked why L.C. did not tell her. She asked if he had touched her anywhere else. L.C. shook her head no. Her mother asked if she wanted to go to the police. L.C. told her that she just wanted to forget about it.

[103] L.C. never saw Dr. Sanchez again. She went to a medical centre in the East Mall near her home to get the rest of her allergy shots.

[104] From the day that Dr. Sanchez fondled her, she was never the same. She was always terrified, distrusted everybody and hated men. She hates being close to anybody. She has problems in her marriage because she hates being close to her husband. She has had counselling. She tries to avoid doctors and has panic attacks if she has to see a male doctor.

[105] L.C. and her mother never spoke of what happened again until her mother called to say that she had seen on the news that a Dr. Sanchez had been charged with respect to a young female patient. Her mother started to think back and regret what had happened and how they had handled it. Her mother recollected finding out about what had occurred from L.C.’s notebook and that L.C. had not wanted to make a complaint. The notebook had been thrown away long ago.

[106] L.C. assumed the charge against Dr. Sanchez was sexual abuse. She did not initially know whom to call. She went online and saw that Dr. Sanchez had been charged with sexual impropriety during an examination involving a young female patient, and that the police were urging any other victims to come forward. She felt she had no alternative but to come forward and wished that she had had the courage to complain when the abuse occurred. She called the police the day following her mother’s call to her. Her father drove her to the appointment to meet with the police. Her mother accompanied them. Her father was upset because her mother had not shared with him what had occurred until this time. Her mother regretted the fact that they had not come forward at the time the abuse occurred. Her parents argued about why her mother had gone to work.

[107] Leading up to the preliminary inquiry, L.C. was informed that the police wished to interview her mother. She told her mother that the police wanted to talk to her. When her mother asked her why the police wanted to talk to her, L.C. said that it was because she (her mother) had found L.C.’s notebook.

[108] L.C. looked for family pictures that might help her figure out the timing of when the abuse occurred. L.C. remembered wearing a Mickey Mouse t-shirt when the fondling occurred. She had got the shirt not long before the fondling when she went with her mother and sister to Disney World. She could not find a photo of her wearing the shirt. Her mother located a photo of her when they were in Disney World which had written on the back, “Florida 1980,” which showed her breasts developing through a t-shirt. (Exhibit 4)

[109] L.C. acknowledged in cross-examination that in her statement to the police she could not remember if Dr. Sanchez had used 1 or 2 hands when he touched her breasts. She knew he lifted up her t-shirt but could not remember if he or she was holding up her t-shirt. When she met with the police for the first time in 2013, L.C. did not remember putting the Toronto Star article on child sexual abuse where Dr. Sanchez would see it, but after reviewing the video of her statement to the police, she remembered it and brought it to their attention. She also contacted the detective to whom she gave her statement a day or two following her statement to say that she remembered that Dr. Sanchez had used 2 hands when touching her breasts.

[110] L.C. agreed with the suggestion on cross-examination that she was shy and readily admitted that she was alert to some things about Dr. Sanchez’ behaviour that she did not think were quite right. His comment that he would marry her if she was older made a number of times and the hugs he gave her made her feel uncomfortable about being around him. She was an observant girl, attuned to what was going on around her. She had noticed that Dr. Sanchez always commented to her mother that she had beautiful eyes, which seemed to make her mother uncomfortable, and that her aunt had called him a flirt. She had noticed that Dr. Sanchez had lifted up the waistband of her sister’s shorts during a medical examination, and looked down for a couple of seconds into her private area, and she wondered why he had done that. She denied that she was suspicious of him but was just watching, like she would normally do.

[111] On cross-examination, it was suggested to L.C. that she would rather have been out playing in the neighbourhood on Saturdays than waiting around for Dr. Sanchez to come to give her an allergy shot. She testified that even before the touching of her breasts, she would have preferred that he no longer come to the house because she was uncomfortable with him. She had few friends in the neighbourhood and she would not have been playing in the neighbourhood if she had not had to stay at home waiting for Dr. Sanchez. She would have had to go out preaching with her father and sister. When it was suggested to her that it was more convenient for her to go to the clinic during the week for her allergy shots than to wait around on the weekend for Dr. Sanchez, she said that it was not that it was more convenient. It was that she did not have to be scared anymore.

Evidence of S.P. (mother of complainant) re Count 5

[112] S.P. gave the following evidence. She is the mother of L.C. Dr. Sanchez was L.C.’s paediatrician from birth and was her children’s paediatrician for quite a long time. She made many visits to his various offices over the years. He was friendly. She recalled him hugging the children which she thought was a friendly thing. She confirmed that Dr. Sanchez complimented her beautiful eyes on several occasions. She confirmed that her sister met Dr. Sanchez at the home when he came to give L.C. her shot and that her sister commented that he was a flirt. She confirmed that L.C. had health issues as a baby and that she developed a terrible cough for which Dr. Sanchez treated her. Dr. Sanchez referred L.C. to an allergist who confirmed that she had allergies and prescribed shots. She could not remember if the allergy shots started at Dr. Sanchez’ office or at her home. She told him that she could not come to the office every week which was a subway and bus ride away, and that she would have to take L.C. to another doctor who was closer. She trusted Dr. Sanchez and felt bad about changing doctors. He said he could come to her house, that he had patients that way. It is possible that he said that he lived nearby. She did not know that he did house calls. She would have liked to have known that when her children were sick with a fever and she had to bring them into his office. She thought it was very kind of him to offer to do this.

[113] S.P. had no recollection of L.C. having allergy shots at Dr. Sanchez’ office. After he offered to make house calls, he began to come to their house once a week, typically on Saturdays. They kept the syringes in the fridge and he gave L.C. the shots in the arm. She thinks that there were occasions when she was there when he gave L.C. the shot, but around 1980, she got a part-time job at the local dry cleaners from 9 to 6 on Saturdays. This was 5 minutes from the house. Her husband sometimes worked on Saturday mornings but would be home by lunchtime and she worked closeby. Sometimes he would go out and do volunteer work for the church (by which she meant preaching). Occasionally L.C. was alone for Dr. Sanchez’ visits. S.P. thought that her other daughter would be home but sometimes she would go to do “church stuff” on Saturdays. She never thought to ask if L.C. had been left alone. She would ask if the doctor had come. She did not learn until later that L.C. had been left alone with Dr. Sanchez.

[114] In June, 1980, she took her 2 daughters to Disney World. She confirmed that Exhibit 4 was a picture she took of her daughter in Disney World, and that it was her handwriting on the back saying, “June, 1980”. L.C. got a Mickey Mouse t-shirt while at Disney World. She recalled that L.C. kept the empty syringes from her allergy shots in an empty Kleenex box. S.P. did not pay attention to the box and only recalled that L.C. had put her name on it which she did on everything.

[115] S.P. noticed that her daughter seemed withdrawn and seemed to be upset with her. She saw her daughter’s notebook in her room on top of the table with her daughter’s name on it. She felt bad about opening it, but read it to try to understand what was going on with her daughter and to see if she could fix it. She glanced through it and then came across a page where it said that Dr. Sanchez had put his hand under her shirt, that she was stressed and afraid that he was going to rape her. “Rape” was in capital letters and large. When she saw that, she panicked and she cried. She called her daughter from her work when no one was there to come to the dry cleaners where she thought they could have a private conversation.

[116] S.P. thought L.C. may have been wearing a sweater when she came to the dry cleaners but could not recall the season. When L.C. came, she had to tell her she had read her notebook. L.C. was very private and did not want anyone going into the notebooks where she did her writing. S.P. explained that she had been concerned because she saw that L.C. seemed upset, and for that reason had looked into her notebook and had read what she had said. L.C. bent her head. S.P. asked whether what she had written had happened. L.C. nodded her head. She asked L.C. whether anything further had happened and she shook her head no. L.C. did not say a word. S.P. said that they had to report this. L.C. said no, that she just wanted to forget. S.P. saw that she was afraid and said okay. She did not want L.C. to have to go through more turmoil. L.C. did not want her father or sister to know and S.P. agreed to this. S.P. told her she would take care of it and that L.C. did not have to worry, that Dr. Sanchez would not come to the house anymore. She phoned Dr. Sanchez’ office and arranged for L.C. to get her allergy shots from a clinic at the East Mall. She did not accept defence counsel’s characterization of this as a matter of greater convenience for L.C.

[117] They had no further contact with Dr. Sanchez. S.P. prayed to God to help both of them forget what had happened. S.P. and L.C. never spoke again about this matter until S.P. heard on the news that Dr. Sanchez had been criminally charged.

[118] After hearing the news release, S.P. called L.C. to tell her what she had heard and to ask if L.C. could remember Dr. Sanchez’ first name because she wanted to make sure it was the same doctor. To this day, L.C. has not given her the full details of what happened to her. After hearing the news release, there was no specific discussion with L.C. about what S.P. read in her notebook. She remembers what she read.

[119] When it was suggested to S.P. on cross-examination that there were events she would not remember going back to 1980, she said that there are certain events you do not forget. When she told L.C. what she had heard on the news release, L.C. said that she could not stay quiet. However, S.P. was not aware that she had called the police until after L.C. had made an appointment with the police and the issue came up as to how she was going to get there. Her husband drove L.C. and she accompanied them. There was conversation where S.P. probably said that it had not been worthwhile going to work for so little money and it all could have been avoided if L.C. had come and confided in her. L.C. is very private and to this day has never talked about what happened. L.C. was aware that S.P. read what she wrote in her notebook. S.P. did not remember discussing the date of her working at the dry cleaners with L.C. She looked through the family photo album of the Disney World vacation after L.C. could not find them and L.C. told her why she was looking for them. L.C. said she thought that she was wearing the Mickey Mouse t-shirt when she got touched, so she was looking for a photo of herself wearing that shirt. S.P. was unable to find a photo of L.C. in the Mickey Mouse t-shirt. She did not take very many photos.

[120] S.P. had no recollection of Dr. Sanchez touching her daughters’ breasts when conducting a physical examination, but because he was a doctor she was not paying attention to his touching their chests. Her attitude was that because he was a doctor, it must be medical.

[121] S.P. had no particular interest in when her daughter entered puberty. Her attitude was that when it comes, it comes. That was the way she grew up and she did not discuss these kinds of matters with her children.

Evidence of Dr. Sanchez re Count 5 - L.C.’s Allegations

[122] Dr. Sanchez gave the following evidence. He first testified that he had no recollection of L.C. being his patient but remembers her family. He had no chart for her. However, on cross-examination, he testified that L.C. was a cute and attractive little girl. Throughout his testimony, he gave details that made it clear he did recollect her. He remembered making regular house calls at their house to administer allergy shots prescribed by the allergist. He acknowledged that saying something to L.C.’s mother along the lines of her having beautiful eyes was the type of comment he would make. He acknowledged that he could have lifted the bottom of the shorts of his patient, L.C.’s sister, and looked in as part of an inspection of that area. With respect to home visits for the allergy shots, he liked the family. It was difficult for the mother to get to his office with the child for weekly allergy shots. He told L.C.’s mother that they did not live far from him (3 to 4 km), and he was willing to drop by to give the allergy shots. It was usual for him to make house calls on Saturdays. He also occasionally worked at St. Joseph’s Hospital on Saturdays. He sometimes also did house calls during the week. Some weeks he would do 3 to 4 house calls. Other weeks he did none. The number of house calls he did in a week depended on the urgency of the phone call and the inability of the parent to bring the patient into the office within a certain space of time.

[123] Dr. Sanchez made house calls to administer L.C.’s allergy shots for 4, 5 or 6 months, usually on Saturday mornings. He does not remember being alone in the home when he attended. It might have happened that when he was at her house, he hugged L.C. which is usual in the Hispanic custom. He might have given her a squeeze as he hugged her. He would not have put his hands down her shirt. There was nothing sexual about hugging her and it was not uncommon for him to do this with his 10 to 15-year old patients. Saying to L.C. that he would marry her if she was older was one of the things he said to compliment his female patients. He intended to convey by this that the patient was a nice girl. There was nothing sexual about it.

[124] Dr. Sanchez denied that he would have performed a physical examination on L.C.’s breasts when he attended at her home to give her an allergy shot and agreed that that would have been improper. He had no recollection of seeing a newspaper article on child sexual abuse when he attended to give L.C. her allergy shot. It is quite possible that he did an examination of her breasts during a full physical examination in his office. It is quite possible that he would do such an examination even in a girl before she had reached the age of 11 years, that he would comment about her potential development, and how long it would be until she menstruated even when he had not been asked to do so. He had no recollection of how L.C. ceased to be his patient and testified that patients changed physicians for any number of reasons.

Count 5 - Credibility of L.C. and her mother, S.P.

[125] L.C. had no apparent ill will towards Dr. Sanchez and no motive for making up allegations against him. There was no suggestion of any emotional or psychological problems which might cause her to misconstrue what had occurred. She gave her evidence in a clear and forthright way. Her evidence was not undermined on cross-examination. She had a clear memory of what occurred. Her evidence was credible that on one occasion when no one else was home and she answered the door for Dr. Sanchez who attended to give her an allergy shot in her home, he gave her a hug from the back and put his hands down her shirt, and on a second occasion when they were alone said, “Let’s see how developed you are”, lifted up her t-shirt and felt all around her breast. Her evidence of what followed from the abuse, that she went to the bathroom and cried, told no one, confided in her notebook, was then called by her mother who had read her notebook to come to her mother’s place of work and who cancelled any further dealings with Dr. Sanchez, was logical, sensible and had the ring of truth. Her allegations were plausible and in accordance with the surrounding circumstances.

[126] S.P. was a credible and reliable witness. She had no motive to lie about what occurred. She did not exaggerate her evidence. Her evidence that at the time of the allegations she noticed a change in her daughter who appeared withdrawn and seemed to be upset with her, is consistent with abuse. It was obvious in her testimony that she felt guilty for not having protected her daughter and for not having reported the matter at the time. If, for example, her intention had been to tailor her evidence to support her daughter’s allegations, it seems unlikely that she would have testified that she expected that either her husband and/or her other daughter would be at home and L.C. would not have been left alone when Dr. Sanchez was coming, and only found out to the contrary when she read her daughter’s notebook. It is also unlikely that she would have testified to seeing the tissue box around with the used syringes (without needle) but not remembering seeing written on it, “Dr. Sanchez is a pervert” and “I hate Dr. Sanchez”, as testified to by L.C.

Count 5 - Credibility of Dr. Sanchez

[127] I did not find Dr. Sanchez to be either a credible or reliable witness with respect to Count 5. His evidence that he had no recollection of L.C. being his patient was contradicted by his own evidence that L.C. was a cute and attractive girl. Dr. Sanchez’ attempt to explain away hugging and flirting with L.C. as Hispanic custom was not credible. This was a professional relationship, not a social one.

[128] His evidence that he agreed to make weekly housecalls just to administer allergy shots and with no ulterior purpose was not credible. L.C.’s home was not particularly close to his home or office. He had never offered to make housecalls to this family when a child was sick in bed with a fever. Although L.C. was a sickly child and Dr. Sanchez had been her paediatrician for 11 years, he did not offer to make housecalls until she was approaching adolescence. He was a busy paediatrician who, in addition to his office practice, worked at St. Joseph’s hospital. His evidence of the number of housecalls he regularly made in his practice was not credible. I find that he exaggerated this evidence in an attempt to make it look less unusual that he would offer to make housecalls to L.C. in a non-emergency situation and on a weekly basis.

[129] Dr. Sanchez offered no specific explanation for the rupture in the relationship with L.C. and her family. He claimed patients changed physicians for a number of reasons. Although this may generally be true, it is unlikely to be the case where the doctor was going out of his way to confer a benefit and the allergy shots were still required.

Analysis and Conclusion on Count 5 - L.C.’s Allegations

[130] I accept the evidence of L.C. that on one occasion when Dr. Sanchez was attending at her home to give her an allergy shot, he gave her a hug from the back and put his hands down the front of her shirt and on a second occasion he lifted up her tshirt and felt all around her breast. I accept the evidence of her mother, S.P. that she learned about the abuse from reading her daughter’s notebook and as a result, discontinued all further contact with Dr. Sanchez.

[131] I reject defence counsel’s submission that L.C.’s evidence about how the sexual abuse has affected her life was extreme. I accept Crown counsel’s submission that sexual assaults impact people differently, and that they may impact the trust one has in doctors where there is patient/doctor abuse, relations with one’s spouse and issues of trust generally.

[132] There is no air of reality to the defence submission that there was potential for mother/daughter collusion. When S.P. heard that Dr. Sanchez had been charged, as one might expect, there were discussions with her daughter about such matters as the first name of Dr. Sanchez, the date when S.P. took the job at the dry cleaners, and when they took a family trip to Disney World and a Mickey Mouse t-shirt was purchased, to pinpoint the time the abuse occurred. They talked about regret over not reporting the abuse at the time. While S.P. did testify that she had forgotten about the abuse up until she heard that Dr. Sanchez had been charged, from all of her evidence, I find that what she meant by that was that she had put it out of her mind, not that she had literally forgotten it. Her evidence was compelling when she testified that there are certain things that one does not forget. Had there been collusion between L.C. and her mother, one would have expected their evidence to be identical about the tissue box and also what they remembered L.C. writing in her notebook. L.C. only remembered writing in it that she was scared that Dr. Sanchez was going to rape her. Her mother’s evidence was that because her daughter seemed withdrawn and upset with her, she read her daughter’s notebook, which she knew her daughter would not want her to be reading, to try to understand what was going on with her. She came across a page where it said that Dr. Sanchez had put his hand under her shirt, that she was stressed and afraid that he was going to rape her. I find that L.C. and her mother, S.P., had independent recollections of this highly traumatic incident, and that L.C.’s evidence of how the abuse came to her mother’s attention and why any further contact with Dr. Sanchez was terminated, was corroborated by her mother.

[133] There is no air of reality to the defence submission that L.C. concocted a lie about Dr. Sanchez because she was uncomfortable with him and wanted to free up her Saturday mornings so that she did not have to wait for him to come to the house and instead could attend at a nearby health centre to get her shots during the week. I find that L.C. was uncomfortable with Dr. Sanchez even before the sexual assault because he behaved in a flirtatious and inappropriate way for a 55-year old man to an 11-year old girl, but I consider it highly improbable that this would have caused her to go to the extreme of making a false allegation of sexual abuse. I accept L.C.’s evidence that freeing up her Saturday mornings was not a motivation because it would only have meant that she would have had to go out with her father and sister preaching which did not sound like something she was very enthusiastic about doing. Moreover, the defence theory does not give any rationale for why, if the allegations had been concocted at the time to get out of Saturday morning visits and having refused to make a report at the time, L.C. would come forward in 2013 with her allegations.

[134] At the time the abuse occurred, her evidence was that she just wanted to forget about the abuse and did not want to have to talk about it. I reject defence counsel’s submission that this is consistent with a fabricated allegation and accept the submission of Crown counsel that this is a common occurrence in sexual assault cases. I accept the evidence of her mother, S.P., that she did not want L.C.to have to go through more turmoil by insisting that she report the abuse.

[135] I have considered whether Dr. Sanchez did a medical examination of L.C.’s breasts in the office during a full physical examination and commented about her potential development which she, being a shy girl, misconstrued and exaggerated into a story about a sexual assault in the home. L.C.’s evidence of going into the bathroom at home and crying after Dr. Sanchez molested her breasts, feeling that she had no choice but to do what he wanted, and putting an article on child sexual abuse on the table where he gave her the injection when he next came to give her a shot, are all persuasive details that the abuse happened at the home. At the age of 11 years, L.C. was not so young that she would not have been able to appreciate the nature and quality of the act. I reject the suggestion that L.C. misconstrued what occurred or is mistaken as to where it occurred. Dr. Sanchez concedes that it would have been improper to examine her breasts in the home. Her mother clearly took L.C.’s allegations seriously enough to terminate the long-standing relationship with Dr. Sanchez. LC. is now a registered nurse and teaches in the health field. She has knowledge of what is involved in a medical examination. I reject that there is any air of reality to her having misconstrued or having mistaken a breast examination in Dr. Sanchez’ office with a sexual assault in the home.

[136] It was a significant benefit for L.C.’s mother who worked, to have Dr. Sanchez attend at the home, and she thought it was very kind of him to offer. Dr. Sanchez was the family paediatrician and had been L.C.’s paediatrician since birth. Up until this time, L.C.’s mother had trusted him. It is consistent with abuse having occurred that all further contact with Dr. Sanchez was terminated by L.C.’s mother at a time when L.C. still required her weekly allergy shots and when it was a considerable benefit to L.C.’s mother to have the housecalls.

[137] I find that Dr. Sanchez offered to make housecalls to L.C.’s home with the ulterior motive, if the opportunity arose, of molesting L.C. I find that S.P. got a part-time job working Saturdays at the local dry cleaners and was not present in the home when the abuse occurred. Whether L.C.’s father and sister were out of the home or elsewhere in the house, I find that Dr. Sanchez took advantage of the opportunity when he was alone in the room with L.C. to sexually abuse her.

[138] L.C. was a young girl who was victimized and did not want to have to share what had happened to her at the time. I accept her evidence that when she heard about the charge against Dr. Sanchez, she regretted that she had not had the courage to complain at the time that the abuse occurred and felt that she had no alternative but to come forward in 2013.

[139] The allegations involve events of 33 years ago where particular caution and scrutiny are called for. I have considered and rejected that L.C. has a distorted memory of what occurred. I am satisfied that both L.C. and her mother, S.P., are credible and reliable witnesses. Dr. Sanchez’ evidence did not raise any reasonable doubt. I am satisfied beyond a reasonable doubt that Dr. Sanchez is guilty of Count 5.

Count 6 - I.S.’s Allegations

[140] Count 6 alleges that the accused committed a sexual assault on I.S. between July 1, 1996 and July 31, 1996, contrary to s. 271 of the Criminal Code.

Evidence of I.S.re Count 6

[141] I.S. gave the following testimony. Her maiden name was I.P. She was born in Portugal on April 13, 1981. She immigrated to Canada with her family in 1990 and they lived in Toronto. She has worked for over 10 years in diagnostic imaging at St. Joseph’s Hospital in Toronto. When she was in her early teens, approximately 13 or 14 years of age, she got a lump on her neck. She did not believe it was possible as she was 15 years of age. She agreed that in trying to recall something that happened 20 or so years ago, some details would be lost in memory.

[142] Her mother took her to the family doctor, Dr. Susana Rodrigues, at College Street near to Bathurst Street. After checking the lump, Dr. Rodrigues referred her to Dr. Sanchez whose office was in the same building, 2 floors above. I.S. could read and write English well by the time she saw Dr. Sanchez. She does not remember seeing the word “paediatrician” at his office. She could not recall any discussion prior to Dr. Sanchez examining her. Her mother was present in the examination room but was seated during the examination with Dr. Sanchez’ back to her. He started checking her neck. He then said he would check to see if she had lumps elsewhere. He checked under her armpits. He asked her a question about her period. She cannot recall if he asked if she had got her period yet or whether she had her period at that time. Dr. Sanchez’ question scared her. She did not believe that the question Dr. Sanchez asked her was whether her periods were regular. I.S. did not want to answer. Her mother got mad at her and said, “You’re the one who knows English”. Her mother answered for her. She could not recall what answer her mother gave.

[143] I.S. could not remember what other examination Dr. Sanchez performed but clearly remembers his finger in the inner lips of her vagina going back and forth for a few seconds. She disagreed with the suggestion that this could have been unintentional as a result of a groin check and said that it did not feel like that. He did not penetrate her fully. She did not say anything at the time but what he did made her feel scared. He did not explain what he was doing. She had not complained of lumps or any abnormalities there. She could not recall him doing any breast examination. She could not recall how her pants got undone. She could not recall Dr. Sanchez directing her to take tests, attending for any tests, or going for a second or third visit, or being prescribed antibiotics. They were told to book a follow-up appointment but she was positive that she never saw him again. She did not discuss with her mother at the time the reason she did not want to go back. She could not recall any advice Dr. Sanchez gave her regarding the lump. She regularly spoke about being angry with what Dr. Sanchez did, which included telling friends and family members over the years that she had gone to get a lump on her neck checked out and this doctor had touched her vagina. Until a communication came through work at St. Joseph’s Hospital about Dr. Sanchez being no longer affiliated with the hospital and she did an Ontario doctor search on Dr. Sanchez, she believed he was a gynaecologist, and blamed Dr. Rodrigues for sending her to a gynaecologist for a lump on her neck. She never raised her concerns with Dr. Rodrigues.

[144] I.S. gave a statement to the police on March 25, 2013. She was not encouraged by her mother to go to the police. Her mother probably suggested doing this but she had already made up her own mind to do this. She came forward because now she has a child of her own and is scared for him. She did not have the opportunity to review the medical records of Dr. Rodrigues or Dr. Sanchez before giving her statement to the police.

[145] Over the years she and her mother discussed what I.S. had been wearing when she was seen by Dr. Sanchez. I.S. remembered wearing pink pants. Her mother disagreed because she remembered always dressing her daughters in skirts or dresses.

Evidence of M.P.(mother of I.S.) re Count 6

[146] M.P. gave the following testimony in Portuguese with the aid of an interpreter. She is the mother of I.S. Dr. Susana Rodrigues was the family doctor from at least 1991. Two or three years after they arrived in Canada when I.S. was 12 or 13 years of age, her mother took her to see Dr. Rodrigues in regard to a large lump on her neck which appeared overnight. After looking at the lump, Dr. Rodrigues referred them to a specialist who worked in the same building as Dr. Rodrigues, one or two floors above.

[147] M.P. thought they went to see Dr. Sanchez the same day but was not positive. Dr. Sanchez told her to sit on a chair in the examining room and had his back to her while he examined her daughter. She saw him moving his hands around her body including down around her legs. He did not say what he was doing. She had not asked him about puberty or about anything other than the lump on her neck. After examining her daughter, he asked her daughter questions in English. She did not answer. M.P. understood Dr. Sanchez to ask her daughter if she had her period because she understood the work “blood” or “bleeding” in English. She scolded her daughter in Portuguese for not answering his questions. M.P. answered for her daughter something that she thought Dr. Sanchez understood. M.P. saw that her daughter did not want to be there. Her daughter even said. “Let’s go”. After they left, she saw that her daughter had gone from being happy when they arrived to acting upset with her and not wanting to talk to her. Her daughter said that she was never going back there but did not tell her the reason that day. Later her daughter said many times that it was stupid of Dr. Rodrigues to send her to a gynecologist to touch her in her vagina when she had a lump on her neck.

Evidence of Dr. Sanchez re Count 6 - the Allegations of I.S.

[148] Dr. Sanchez had no recollection of I.S. being his patient. He had records for her which he had reviewed. I. S. was referred to him by Dr. Rodrigues who practised in the same building. According to his file, he saw I.S. on July 2, 1996 at his office at 474 College Street, Suite 302. Although the handwritten record was date stamped July 3, 1996, he wrote a reporting letter to Dr. Rodrigues on July 4, 1996 in which he stated that I.S. was brought in by her mother on July 2, 1996, in regard to a large “lump” (mass) over the left side of her neck of approximately 24 hours duration. It stated that the mass (2.5 x 2.8 cm. in diameter) seemed to be a slightly enlarged cervical gland, probably as a result of some irritation or inflammation of the left side of the scalp. The reporting letter states that she was sent to the lab for various tests and Dr. Rodrigues would be informed of any developments as soon as he had the answer. The letter states: “She is being returned to your care.” There was no further reporting letter to Dr. Rodrigues. There was a 3-page lab report by Dynacare Lab showing negative results for I.S., showing a service date of July 2, 1996, and a report date of July 3, 1996.

[149] Dr. Sanchez testified that his record for I.S. showed that he started out taking a history, and then having concluded that a complete physical examination was warranted, he conducted and recorded the results of a physical examination. He would have examined the entire body including the chest and inguinal area. He would not have intentionally touched her vagina, but it is possible that he did so unintentionally when he went from one side of the groin to the other side.

[150] His next note for the patient was July 8, 1996. It states that the lump was much better and much smaller. He noted that it was not fluctuating and he questioned whether it could develop into an abscess. He again conducted a full physical examination including her chest, abdomen and inguinal area, to see if there were any new signs and symptoms since the initial complaint. He prescribed an antibiotic for her. His next note was for July 19, 1996, which stated that she was not much better and had not been taking her medication on a regular basis. During a full physical examination, he again examined her chest and inguinal area. He acknowledged that he might have asked questions about menstruation because heavy menstrual flow could be symptomatic of a blood abnormality.

[151] On cross-examination, Dr. Sanchez was asked to explain how his reporting letter stating that the patient was being returned to Dr. Rodrigues’ care squared with his records of seeing her on 2 subsequent occasions. Dr. Sanchez suggested that what he said in the reporting letter meant I.S. would eventually return to Dr. Rodrigues’ care, and that he may have communicated with Dr. Rodrigues verbally thereafter because she worked in the same building.

Credibility of I.S., and her mother, M.P. re Count 6

I found both I.S. and her mother, M.P., to be honest witnesses doing their best to tell the truth but whose ability to recall the events is questionable. There were serious problems and inconsistencies in their evidence which are discussed below.

Credibility of Dr. Sanchez re Count 6

[152] There was no expert evidence as to the appropriate standard of care and propriety of these examinations. I nevertheless find it very odd that Dr. Sanchez felt it necessary to examine I.S. in the breast and groin areas on three occasions over a 2 ½ week period when what she came to see him for was a lump on her neck. However, despite my misgivings about Dr. Sanchez’ evidence, I have determined that this count has not been proved beyond a reasonable doubt for the reasons set out below.

Analysis and Conclusion re Count 6

[153] M.P. did not see any impropriety during her daughter’s examination. I.S.’s evidence that she thought Dr. Sanchez was a gynaecologist seems improbable given the signs outside and in his office stating “Paediatrician”. The décor inside the office makes it unlikely one would not know that the practice was paediatric. Both I.S. and M.P. were sure that I.S. was never taken back to Dr. Sanchez after the one time when she alleges the sexual touching occurred, and had no recollection of tests being ordered or medication prescribed. The records show that I.S. attended for various lab tests that Dr. Sanchez requisitioned, antibiotics were prescribed, and that she saw Dr. Sanchez on 2 subsequent occasions. In these circumstances, I.S. and M.P. were not reliable witnesses.

[154] I find that there is a possibility that I.S. misconstrued what occurred during the examination or examinations. I find the accused not guilty of Count 6.

Counts 7 and 8 - D.V.’s Allegations

[155] Count 7 alleges that the accused committed a sexual assault on D.V. on or about February 19th, 2013, contrary to s. 271 of the Criminal Code. Count 8 alleges that the accused touched D.V., a person under the age of sixteen years, for a sexual purpose, contrary to s. 161 of the Criminal Code.

Evidence of L.G. (mother of D.V.) re Counts 7 and 8

[156] L.G. gave the following testimony. L.G.is the mother of D.V. She is a dental assistant in Toronto. She and her husband have 6 children. She was born in Ecuador and immigrated to Canada in 1996. Dr. Sanchez became the family paediatrician after D.V. was born in 1997 until February 2013. L.G. took the children to Dr. Sanchez’ office at 474 College Street numerous times when they were sick or for immunizations. He always had jokes or silly comments such as referring to the children as his children. When she expressed concern on one occasion about the height of one of her children, Dr. Sanchez said, “He is not going to grow tall because I am not too tall”. He would always joke, “When is the next child coming? We can have more”. She tried to keep her physical distance from him because he tried to be close to her and to touch her.

[157] On one occasion while she was breastfeeding D.V., L.G. complained to Dr. Sanchez that she had sore breasts. She believed this was a medical issue which deserved medical attention. He told her to show him her breasts. He visibly examined the nipple which was red and cracking. He then told her to apply cream that she had been given in the hospital, which she did, and this helped. At that time, she did not think that anything inappropriate had occurred. That changed when she told her husband Dr. Sanchez had asked her to show him her breasts. He thought this was improper for a paediatrician, and that it was only something a gynaecologist or family doctor should do. As a result of her husband’s view, she began to think that there was something sexually inappropriate with Dr. Sanchez having asked to see her breasts. Her sister-in-law had also told her that Dr. Sanchez had asked her out, although she was a married woman. She had also heard that Dr. Sanchez had sent flowers to a woman from their church and had come knocking on her door. She began to think that he might act sexually inappropriate in the examining room and take the opportunity to do something sexual. However, she trusted Dr. Sanchez as a good paediatrician for her children and it was not that easy to get a paediatrician.

[158] On February 19, 2013, she went to see Dr. Sanchez without an appointment because D.V.’s school required proof with a deadline that she had received her immunization. D.V. also had a lump on her eye and was pale and tired and had fallen asleep at school. L.G. wanted Dr. Sanchez to order a blood test for her daughter. L.G.’s 2-year old, Rebecca, also needed an immunization. D.V. was 15 years of age. She had told her mother she was too old to be still going to a paediatrician, and her mother had agreed that after this visit, she could see the family GP.

[159] L.G., D.V. and Rebecca all went into the examination room with Dr. Sanchez. L.G. told Dr. Sanchez that D.V. had been feeling tired and fell asleep in school and that she was worried she might be anaemic. She asked if he could order a blood test. Although she said at the preliminary inquiry that she asked Dr. Sanchez to examine D.V., at trial she said that what she meant was in regard to the lump on her eye, and that she did not ask him to do a physical examination of the rest of her body. Dr. Sanchez first weighed and measured D.V. L.G. did not stop him from doing a physical examination. She agreed that D.V.’s health issues justified a physical examination. They discussed D.V.’s appetite. D.V. asked if she needed another immunization shot. Dr. Sanchez said that she would get another one when she got married, which L.G. understood to have a sexual connotation. On cross-examination, she agreed that Dr. Sanchez’ remark could have meant that D.V. would not need another immunization for a long time, probably around the time she was getting married.

[160] L.G. sat on the chair behind Dr. Sanchez and she was holding Rebecca. She could see Dr. Sanchez’ back. While she was sitting, Dr. Sanchez was blocking her view. She could not sit for a long time because Rebecca was fussing. She was doing her best to hold her quiet to allow Dr. Sanchez to finish. On cross-examination, her memory was refreshed, and she adopted her evidence at the preliminary inquiry that there were times when she was standing during the examination. Dr. Sanchez told D.V. to lie down on the examination table. He spoke to her in Spanish which both L.G. and D.V. understood. No one indicated to Dr. Sanchez that D.V. had any issues with her breasts or vagina. He did not tell her what he was doing. What Dr. Sanchez was doing looked like the types of things he had done during the other times he had conducted physical examinations of her children.

[161] L.G. did not feel entirely comfortable about Dr. Sanchez doing a physical examination on D.V. because she was now a teenager, and because she was suspicious of him. The comment he made which she interpreted as a reference to a penis being introduced into her body made her feel more uncomfortable about him. She was busy with Rebecca who was fussy and crying and was focused on finishing the visit and getting D.V. back to school. Dr. Sanchez’ examination of D.V. lasted 2 to 3 minutes. At one point, Dr. Sanchez left the examination room. Because L.G. had those feelings about Dr. Sanchez, and although she had not seen anything untoward herself, she asked D.V. if she was okay a couple of times. D.V. said yes. Rebecca got her immunization shot.

[162] They then went to the lab in the basement to get the tests Dr. Sanchez had ordered. Because D.V. was quiet, L.G. continued to ask her how she was feeling and she said she was fine. She asked her again in the car. She then dropped D.V. at school.

[163] L.G. had no recollection of any comments during dinner that evening about Dr. Sanchez having flirted with her, her sister-in-law, or the woman from their church, or having made comments to D.V. about an ear piercing incident where he cut part of her daughter’s ear and told L.G. not to say anything. After dinner, her husband asked D.V. how the doctor’s visit went. L.G. believed that he had his own suspicions of Dr. Sanchez. D.V. then told her father that Dr. Sanchez had touched her breasts and her pubic area. L.G. was in the kitchen but heard the conversation. They took D.V. into a room and closed the door. She did not want her breasts touched, so L.G. told her to show on her mother how Dr. Sanchez had touched her. D.V. indicated that when he was examining her with a stethoscope, he touched her breasts with his hand and he touched her pubic area. She said that she thought what had happened was normal, and also had not wanted to get in trouble or make trouble for her family. The parents were very upset and told her it was not normal, and that they may have to go to the police because although it was not affecting D.V. that much, they did not want this to happen to someone else. She did not want to go to the police. The parents told her that they would discuss it and decide what was best.

[164] The following day L.G. called the College of Physicians and Surgeons who told her to put the complaint in writing and to go to the police. That same day she went to the police station with her husband to make a complaint and wrote a letter of complaint to the College. In the days that followed the parents continued to talk to D.V. about going to the police. They explained that he needed to be stopped from doing to other children what he had done to her and she agreed to go the night before she gave her statement. L.G. and her husband took D.V. to the police to give a statement on February 26, 2013.

Evidence of the Complainant, D. V., re Counts 7 and 8

[165] D.V. gave the following testimony. She is currently attending university. She adopted the statement she gave to the police on February 26, 2013, and the dvd and the transcript of it were entered into evidence. She is the oldest of 6 siblings. Dr. Sanchez had been her paediatrician from the time of her birth and was the main doctor for her and her siblings. Up until February 19, 2013, she had no concerns or complaints about Dr. Sanchez and she trusted him. She described laying down on the examining table and Dr. Sanchez holding a stethoscope on her chest. At first he held the stethoscope with all of his fingers. Then he held it in his palm with his fingers spread out. While he moved the stethoscope, she could feel his fingers above the left breast and a little bit under her bra. She felt his index finger swipe her nipple underneath her bra which made her embarrassed. He did not tell her he was going to do this. At trial she first testified that the swipe of her nipple was the last thing he did with the stethoscope. When it was brought to her attention that she testified at the preliminary hearing that he pushed one more time with the stethoscope, she testified that at the time of trial she did not remember the last push with the stethoscope following the swiping of her nipple. He asked her to undo her pants. At trial she said that her mother was close enough to hear this but was occupied with trying to control Rebecca. When it was brought to her attention that she had told the police that she had questioned his doing this, and her mother said they had to do this, she accepted that what she had told the police was true. Her pants were partially open. Dr. Sanchez felt down both sides of her groin. His hand went underneath her underwear and felt like it went too deep inside. It was a brief movement from one side to the other where his hand or part of his hand swiped across her pubic area. She could not remember if he brushed any pubic hair. He did not touch her vagina.

[166] When her mother asked her if Dr. Sanchez had touched her, D.V. knew that she was asking whether he had touched her in some improper way. D.V. first said that she did not tell her mother what had happened when her mother first asked because she did not really know what had happened. She then said she knew what had happened but she was in shock and had not thought it through yet. She knew that if she told her mother, her mother would say something right then and she did not want her to. She knew from the fact that her mother kept on asking, that her mother was suspicious. When they were leaving, Dr. Sanchez put his arm around her neck and pulled her into his chest. When they were outside the office, D.V. thought that her mother asked her again and she told her that nothing had happened and to forget about it.

[167] During dinner with her parents after her younger brother and sisters had left the table, D.V. heard for the first time a number of negative things about Dr. Sanchez - that he had asked to see her mother’s breasts, that he had asked her aunt, a married woman, out on a date, had sent flowers to a woman from their church, and had come knocking on her door. Her mother asked her again if anything had happened. D.V. said that the examination felt weird and they then insisted that she tell them everything that had happened. She told her parents the truth. She had not wanted to have to explain and found it embarrassing. She did not want to go to the police and explain it again. Her parents said that she should speak up when something was wrong so that it did not happen to anyone else. Watching the video brought back the same feelings of embarrassment, being scared and it being strange.

[168] D.V. had no recollection of discussing with her mother on February 19, 2013, that she was getting too old to go to a paediatrician. She cannot remember having thought about that. The last time she had visited Dr. Sanchez was when they were going out of the country and she attended to get the necessary shots. She agreed that this was possibly in April 2012. D.V. did not think that her mother asked Dr. Sanchez to examine her on February 19, 2013. She thought that her mother was expecting Dr. Sanchez to make suggestions about what she could take to help her sleep, like vitamins. D.V. could not remember anything about pink eye. She was not expecting a physical examination. She agreed that Dr. Sanchez weighed and measured her as he had done on prior occasion when he had examined her. She could not recall whether he had examined her mouth, ears or eyes. She was sure he had not examined her neck. She was sitting up while he used the stethoscope on her chest. She could not remember if her mother got up while he was doing this. She remembered that her sister was running around and her mother was occupied with trying to control Rebecca. At trial, at first she could not remember attending at the lab for tests and was sure that that had not occurred. She said that she had an actual memory of going straight out of the building and getting into the car. She accepted that what she had said in her statement to the police about going for a blood test in the basement and waiting for almost an hour was correct, but still could not remember getting the blood test.

[169] The day before D.V. went to the police and made her statement, her mother had said to her that D.V. was going to go. She said okay. She knew that if she said yes her mother would leave her alone and not ask her again.

Evidence of Dr. Sanchez re Counts 7 and 8 - D.V.’s Allegations

[170] Dr. Sanchez recalled D.V. as a patient and had a patient chart for her. She had been his patient for many years before her February 19, 2013 visit. The reason in the mind of D.V.’s mother for bringing her in to see Dr. Sanchez was the form that D.V.’s school required confirming that she had received her immunization. It is likely that because D.V.’s mother was Spanish speaking, that Dr. Sanchez spoke to her in Spanish. Dr. Sanchez confirmed that D.V. had received her immunization on April 19, 2012 and he signed the school form. D.V.’s mother said that D.V. was tired and had a little cold. The last time Dr. Sanchez had seen her prior to February 19, 2013 was April 19, 2012. Because she had not been examined for more than a year, a complete medical examination was called for. Dr. Sanchez weighed and measured her. As part of the full physical examination, he examined her chest and inguinal area. He put the stethoscope on different places on her chest including in the area of her breast. He would have been holding the stethoscope so that the flat part touched against the skin. It is possible that she felt his fingers on her skin. He asked her to lift up her bra and she had her breasts exposed. It is possible that he accidently brushed her nipple when he moved his hand from the breast to another location. It is possible that when he finished palpating one side of the groin, that one part of his hand dipped under her underwear when he was moving to the other side. He probably did not explain to D.V. that his examination might result in his touching her nipple or pubic hair. He would not intentionally dip under the underwear. He gave D.V. a requisition for blood tests. It is quite possible that he gave D.V. a hug when she left. The results of the LifeLabs report were that mono was not detected and her haemoglobin and reticulocyte were low. He noted on the lab report that D.V. needed iron.

Credibility of D.V. and L.G. re Counts 7 and 8

[170] I found D.V. and her mother, L.G., to both be honest and truthful witnesses. However, there are a number of problems with their evidence as discussed below.

Credibility of Dr. Sanchez re counts 7 and 8

[171] I did not find Dr. Sanchez’ evidence credible that while conducting a full physical examination he may have accidentally touched the nipple and that his hand may have accidentally dipped underneath the underwear. However, despite my concerns about his evidence, I have determined that this count has not been proved beyond a reasonable doubt for the reasons set out below.

Analysis of Evidence and Conclusion on Counts 7 and 8

[172] L.G. did not observe any impropriety during the examination, although she was suspicious of Dr. Sanchez and had bad feelings about him even before he began to examine her daughter. At the time the examination occurred, D.V. did not think that anything improper had occurred. It was only after repeated questioning by her mother and father that she disclosed that during the physical examination, she felt Dr. Sanchez’ finger swipe her nipple and his hand swipe very briefly across the top of the pubic area when he was moving from one side of the groin to the other. After denying that anything had occurred several times, her disclosure was only made after D.V. heard a number of negative comments about Dr. Sanchez for the first time. She was very reluctant to make a complaint to the police, and it was only after her parents insisted, that she did so. There were other inconsistencies in the evidence. In these circumstances, there is concern that her disclosure was influenced by her parents’ negative opinion of Dr. Sanchez and I find that there is reasonable doubt. I find the accused not guilty of Counts 7 and 8.

Final Conclusion

[173] I find the accused guilty of Counts 1, 2, and 5. I find the accused not guilty of Counts 3, 4, 6, 7 and 8.

Released: December 7, 2015

Backhouse J.

COURT FILE NO.: CR-15-10000377-0000

DATE: 20151207

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ARTURO SANCHEZ

REASONS FOR JUDGMENT

Backhouse J.

Released: December 7, 2015