WARNING
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. Naghibi, 2025 ONSC 307
COURT FILE NO.: CR- 22-91103286
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Sam Naghibi
BEFORE: Justice Verner
COUNSEL: A. Khan, for the Crown
D. Humphrey and J. Makepeace, for the Defendant
HEARD: Sentencing submissions heard on July 25, 2024
VERNER j.
1On June 21, 2024, after trial, I found Dr. Sam Naghibi, a family doctor, guilty of one count of sexual assault. In particular, I found that he sexually assaulted an adult female patient during a medical appointment, see: R. v. Naghibi, 2024 ONSC 3638. He is now before me to be sentenced.
2The Crown is seeking a sentence of two years less a day followed by two years probation. The accused submits that a sentence of 15 to 18 months in custody is appropriate. He acknowledges that the offence is too serious for a conditional sentence to sufficiently denounce what he has done.
The Offence
3To summarize the key facts, the complainant, a new patient of Dr. Naghibi’s, attended his clinic on January 29, 2021 for an initial physical examination. At the beginning of the appointment, Dr. Naghibi brought the complainant a beer to consume while he asked her some preliminary questions. Then, midway through the vaginal examination, he began licking her vagina and undid his pants, such that his penis was exposed. She sat up and confronted him with, “What are you doing doctor?” He stopped licking her, but he did not immediately do up his pants. Instead, he kissed her around the mouth and his penis touched her vagina. For the purposes of sentencing, there was no penetration.
4The complainant also described a sexualized breast exam. However, I am not satisfied beyond a reasonable doubt that her memory about the breast exam is accurate. She was not sure at the time that it was inappropriate, yet she described something very inappropriate. I am left wondering if her memory of the breast exam was tainted by the subsequent sexual assault. Since all aggravating factors must be proven beyond a reasonable doubt, I will not consider the breast exam in sentencing Dr. Naghibi: see R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 SCR 368, at p. 415; and s. 724(3)(e) of the Criminal Code.
5The entire assault lasted a matter of minutes. The complainant thereafter rushed out of the clinic and called her friend K.A. in a distressed state. It is apparent from K.A.’s evidence, that the assault had a significant negative impact on the complainant.
6After the complainant left the clinic, Dr. Naghibi finished his notes about the appointment. In his notes he stated that he acted inappropriately during the vaginal exam, such that he apologized to her and agreed that his actions (as well as her actions) should be ‘burried…forever’. He thereby revealed in her file that he had violated his oath as a doctor. He also noted in her file that there was a hole in his glove. He later relied on this note in the file to explain the transfer of her DNA onto his penis. In other words, he included a fact in his notes that provided him with a non-criminal explanation for the Crown’s evidence.
Dr. Naghibi’s Circumstances
7Dr. Naghibi is 72 years old and has no criminal record. In letters of support, his family members provided descry iptive tales of the collateral consequences of this charge. In addition to the financial struggles that have resulted from this offence, he and his wife had to leave their home due to the public shaming. He has also lost his friends, his community and his ability to practice as a doctor. His profession was not just a job, but it was part of his identity. Notably, he was educated and qualified to be a doctor in Iran, where he practiced for several years, before coming to Canada, where he started the lengthy five-year process of qualifying to be a doctor here.
8Although his wife has remained with him and has learned to forgive him, she implies in the letter that she wrote for the court, that the offence will never be forgotten. It has forever changed their relationship.
9The public shaming has not only impacted him and his wife, it has also impacted his two daughters and their families. One of his daughters avoids coming to Newmarket now altogether, to avoid potentially seeing his former patients or people who want to ask about the allegations. Indeed, she has suffered from anxiety herself as a result of the media coverage. The letters from Dr. Naghibi’s family and friends reveal that he feels extreme guilt for what he has put his family members through.
10Dr. Naghibi has also filed a stack of glowing letters of support from co-workers, medical school classmates, and patients. They reveal that he had an impressive reputation as a family doctor. When he was younger, he travelled to remote areas of Iran to provide medical services and risked his life volunteering as a combat doctor for Iranian soldiers during the war in Iran. After moving to Canada, he provided medical services to remote areas in Nova Scotia. In fact, his Nova Scotian patients petitioned for him to stay when he announced he was leaving.
11His more recent patients have provided a number of letters as well. Many wrote letters describing a warm doctor, who went above and beyond for his patients. It seems many of his former patients are having difficulty finding a family doctor to replace him. Although most of the letters came across as quite professional, some of the letters were clearly written from the heart. As one example, a letter from a former patient of Dr. Naghibi’s named Shahriar Jeanby, left me with the impression that Mr. Jeanby would personally be impacted by the sentence imposed on Dr. Naghibi.
12Dr. Naghibi also filed a letter from his family doctor, which outlined Dr. Naghibi’s medical situation. He has multiple chronic medical conditions, including hypertension, diabetes, gout, chronic back pain, benign prostate hypertrophy, hypogonadism, and major depressive disorder/generalized anxiety disorder. Both his mental and physical health have significantly deteriorated over the past two years. He is currently taking ten different medications daily for his conditions. He also needs weekly injections for pain medication. Dr. Naghibi’s family doctor feels that incarceration will exacerbate his anxiety and depression.
13When asked if he wanted to address the court, Dr. Naghibi eloquently thanked the court, the Crown and the judicial system. Although he did not admit culpability, he expressed sincere remorse for stepping over the boundaries and disrespecting his oath as a doctor.
Aggravating and Mitigating Factors
14There are a number of factors that suggest that Dr. Naghibi’s sentence should be on the lower end of the appropriate range, including his lack of criminal record, his extreme support in the community, his actions in the past that have had a positive impact on society, his remorse for acting inappropriately and his low risk of reoffence considering he will never practice again. There are also significant collateral consequences, including the loss of friends, reputation, house, community and ability to practice in the profession he had spent years training to practice in and which defined him. Furthermore, as a result of the offence, he has born the responsibility for the impact his name being publicly shamed has put on his family. Finally, I note that his age and medical conditions are such that any period of incarceration will have a more severe impact on him than would on most.
15I also recognize that he has spent a lengthy period on bail requiring him to stay in Canada, which has prevented him from seeing family members for years. Finally, I take into consideration that he spent two days in pre-trial custody, which is the equivalent of three days. Although it may seem minimal, every day of custody is significant.
16On the other hand, the aggravating factors include the seriousness of the breach of trust in this case and the nature of the touching. As mentioned, I find that he sexualized the complainant’s vaginal exam, he removed his pants, he touched her vagina with his penis, he licked and kissed her, all without her consent. In addition, I accept that there has been a serious impact on the complainant. Although I have trouble relying on the details in the Victim Impact Statement given that she claimed to have suffered serious physical injuries which does not align with the trial evidence, I accept that this assault has had a significant impact. In part, I base that finding on the evidence of the complainant’s friend, K.A.
17The Crown asks that I further find that Dr. Naghibi bought the beer for this particular appointment and therefore, the assault was premeditated. However, the evidence that he bought the beer for the appointment is tenuous at best. I accept that the Crown has proven Dr. Naghibi was hoping the appointment would turn sexual, based on the evidence he brought the complainant a beer while she was sitting in the examination room and on the evidence the complainant texted “I think he wants to fuck me”. However, there is no evidence that Dr. Naghibi intended to assault the complainant in advance. In other words, I do not find the assault was premeditated.
18The Crown also asks me to find that Dr. Naghibi intentionally manipulated his notes to provide a defence to any potential criminal charges. Although I agree with the Crown that the notes are misleading and strange in their detail, they were not misleading in a way that could impact the complainant’s health or her future medical treatment. More importantly, I am not sure what Dr. Naghibi was hoping to achieve in writing the notes the way he did. In light of the fact that his notes reveal that he violated his oath to the medical profession, it would seem that he did not want anyone to see them. I am left with at least a reasonable doubt that Dr. Naghibi wrote the notes the way he did, simply because he was confused and not thinking clearly at the end of the appointment with the complainant. Since all aggravating factors must be proven beyond a reasonable doubt, I put no weight on the misleading nature of the notes.
Caselaw
19I now consider sentences imposed in similar cases to assess the appropriate range. There are two post-Friesen (R. v. Friesen, 2020 SCC 9) cases that I find particularly helpful, R. v. C.D, 2023 ONCA 790 and R. v. Ateyah, 2023 ONSC 6563.
20In R. v. C.D., the accused was a physician, who sexually abused five females repeatedly in the course of delivering them medical care, over a period of 20 years. All of the assaults were seconds in duration and over the clothing, except that on two occasions C.D. touched bare breasts and on one occasion he attempted to kiss a patient. One of the five complainants was his 16-year-old niece, and she was one of two complainants who the accused knew to have mental health issues and to be of heightened vulnerability. As the sentencing judge noted, the reactions of the complainants to the assaults were such that C.D. would have known the negative impact that his actions had on the complainants and yet he continued to assault more females over a span of a number of years. The 78-year-old accused doctor, who had no prior record, was sentenced to 15 months incarceration after trial. That sentence was upheld by the Court of Appeal.
21The assaults in C.D. were far less intrusive than the offences in the case at bar, but the number of assaults coupled with the fact that C.D. continued to offend in the face of negative reactions from the complainants over a span of years, makes the offences in C.D. in some ways more serious.
22In another recent case, Ateyah, Cameron J. sentenced a doctor to 9 years for sexually assaulting 13 patients. Dr. Ateyah had no criminal record, had positive support in the community, and was convicted after a trial. The assaults included sexualizing internal vaginal exams, touching the complainants’ external genitalia for a sexual purpose and improper breast exams. One of the complainants was 17 years old. Cameron J. thoroughly reviewed a number of sentencing cases involving doctors who sexually abused their patients and concluded that the appropriate sentence for sexualizing a vaginal examination on a single occasion, as part of a pattern of abuse against multiple patients, was 18 months.
23The offence in the case at bar involved not only sexualizing a vaginal examination, but also involved the accused pulling down his own pants, exposing his own penis, touching the complainant’s vagina with his penis, and licking her. On the other hand, the abuse in the case at bar was not done in the same surreptitious way as the offences in Ateyah. And more importantly, unlike in Ateyah, there is no evidence the offence in the case at bar formed part of a pattern. It involved a single inappropriate incident.
24I find that since the offence in the case at bar involved the accused disrobing during a medical appointment, in addition to touching his patients inappropriately, the sentence in the case at bar should be higher than the 15 or 18 months found to be appropriate for a single offence in C.D. or Ateyah. However, given the other differences and similarities between the three cases, I find that the sentence in this case should not be significantly different than the 15 or 18 months found to be appropriate in the other two cases. Considering all of the relevant factors, I find that a sentence of 20 months is an appropriate sentence in this matter. As conceded by defence counsel, a conditional sentence would not sufficiently address the principles of sentencing and therefore there will be a custodial term imposed.
25From the 20-month term of incarceration, I will subtract three days for pre-sentence custody, leaving 597 days left to serve (20 x 30 - 3). The custodial period will be followed by 18 months of probation. The probation will have, in addition to the statutory terms, the following conditions:
(i) To have no contact directly or indirectly with the complainant or her immediate family members;
(ii) To have no contact directly or indirectly with K.A., a friend of the complainant’s and a witness at the trial;
(iii) Not to be within 500 metres of the complainant’s address, or work, or where he may believe the complainant to be;
(iv) To take counselling regarding boundaries and consent, as directed by the probation officer; and,
(v) Not to be employed in a position of authority or trust over females, unless supervised by another adult.
26I further impose the following ancillary orders, which were not opposed by the Defence:
a. Pursuant to s. 487.051(1), Dr. Naghibi will provide a sample of his DNA (sexual assault is a primary designated offence under s. 487.04(a)(xi.3)).
b. Pursuant to s. 490.012, there will be a SOIRA order for 20 years. I recognize that pursuant to s. 490.012 (3) a SOIRA order is discretionary. However, given Dr. Naghibi’s position (he is not opposed), the lack of submissions on this issue and the factors under s. 490.012(4), I impose the 20-year SOIRA order.
c. Pursuant to s. 109, Dr. Naghibi will be banned from possessing any weapons for a period of 10 years.
d. Pursuant to s. 737, Dr. Naghibi will pay the victim fine surcharge.
Justice Verner
Date: January 13, 2025
CITATION: R. v. Naghibi, 2024 ONSC 307
COURT FILE NO.: CR- 22-91103286
SUPERIOR COURT OF JUSTICE – ONTARIO
HIS MAJESTY THE KING
v.
SAM NAGHIBI
_________________________________________
DECISION
JUSTICE C. VERNER
Date: January 13, 2025