Court File and Parties

Court File No.: CR-22-1103286-00

Delivered Orally: September 9, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King – and – Sam Naghibi, Defendant

Counsel:

• Aisha Kahn, for the Crown
• David Humphrey and Jill Makepeace, for Mr. Naghibi

Heard: June 17-20, 24-27 and August 1, 2025

Reasons for Decision

M.L. Edwards, R.S.J. (Orally):

Overview

[1] Sam Naghibi is charged with one count of sexual assault with a weapon in relation to a patient who I will refer to as J.O. Mr. Naghibi was a family physician who practiced in York Region at the time of the alleged offence. Throughout these reasons I will refer to Mr. Naghibi as Dr. Naghibi as he was a doctor at all material times relating to most if not all the factual matters before the court.

[2] J.O. visited Dr. Naghibi's medical clinic as a walk-in patient several times in 2011 and 2012. On September 11, 2012, J.O. attended at Dr. Naghibi's clinic complaining of a headache and possible sinus infection. After examining J.O., Dr. Naghibi prescribed injectable Demerol, a prescription which she filled at a nearby pharmacy. She returned from the pharmacy to Dr. Naghibi's clinic where an injection into her buttock was performed. Dr. Naghibi denies any sexual impropriety as it relates to his physical examination and/or the injection of the Demerol. J.O. maintains that Dr. Naghibi unnecessarily lowered her pants and underwear to her mid-thigh area. J.O. maintains that Dr. Naghibi inappropriately touched and massaged her buttock area while grinding himself rhythmically against the examination table. J.O. maintains that Dr. Naghibi engaged her in a conversation about her sexual experiences and that during this conversation J.O. believes that Dr. Naghibi ejaculated.

[3] It is conceded by Mr. Humphrey, counsel for Dr. Naghibi, that if the Crown proves beyond a reasonable doubt the version of events as testified to by J.O., that the conduct of Dr. Naghibi would constitute a sexual assault with a weapon (the weapon being the needle). Dr. Naghibi however maintains that the entirety of his interaction with J.O. on September 11, 2012, was professional and in no way constitutes a sexual assault.

[4] As with so many cases where allegations of sexual assault are brought before the court the trier of fact must assess the credibility and reliability of the witnesses in its ultimate determination of whether the Crown has proved its case beyond a reasonable doubt.

The Evidence

J.O.

[5] J.O. is a registered massage therapist and is a member of the College of Massage Therapists of Ontario (the "CMTO"). On September 11, 2012, J.O., having dropped off her daughter at school, was on her way to work. She was experiencing a headache and decided to visit Dr. Naghibi's clinic where she hoped Dr. Naghibi would be able to provide some assistance.

[6] J.O. was initially seen by Dr. Naghibi who took a history and conducted an examination. Dr. Naghibi recommended pain medication; pain medication that would be injectable and would have to be obtained from a pharmacy.

[7] J.O. went to a local pharmacy where the prescription was filled. J.O. returned to Dr. Naghibi's office. She was told to lie facedown on an examination table. J.O. had prior experience with injections into her buttock area having received vitamin B12 injections from another medical practitioner. J.O. testified that her prior experience was that the B12 injections were into the area of her gluteus medius that would require her to lower her tights approximately two inches below her hip bone to expose the area that would be injected. She testified that the injections were typically "very fast".

[8] After J.O. lay on the examination table she testified that she believed that she had already rolled her tights down to expose the area two inches below her hip bone. J.O. testified that Dr. Naghibi indicated that he would have to adjust her pants a little lower and pulled them down and fully exposed her buttocks.

[9] J.O. testified that she felt uncomfortable and fully exposed. J.O. testified that Dr. Naghibi began the injection process by placing his left hand on her left glute. J.O. wondered what Dr. Naghibi was doing as his fingers were going into the area of her gluteal cleft. J.O. testified that the injection was into the area of her right glute and that the time that it took was longer than her prior experience with B12 injections. J.O. testified that Dr. Naghibi began asking her questions about prior sexual experiences that she had previously disclosed to him in a prior appointment. During this conversation J.O. testified that Dr. Naghibi massaged the site of the injection with his index finger close to her cleft and vagina. She further testified that she could feel Dr. Naghibi's loose clothing against her exposed thigh in what she described as a grinding movement which continued after the completion of the injection and while he was asking her questions. J.O. testified that she believes Dr. Naghibi ejaculated having smelled what she described as a strong scent associated with male ejaculate.

[10] As it relates to what she described as the grinding movement of Dr. Naghibi, J.O. testified that she could hear the "jingle of his belt" which she thought could have been the belt rubbing against the examination table. She stated that she was very aware of this sound.

[11] After Dr. Naghibi left the examination room J.O. exited the clinic through the reception area. She stated that she was crying and having difficulty breathing. She made no eye contact with anyone in the clinic. She returned to her car parked in the parking lot where she continued to be emotional. She made two phone calls, one of whom was to a close friend and colleague Morina Dederosian (who I will refer to throughout these Reasons as "Morina").

[12] Morina arrived approximately an hour after receiving the call from J.O. J.O. testified that shortly after arriving Morina went in to speak with Dr. Naghibi for approximately 10 to 15 minutes. J.O. and Morina then left the parking lot and went to a local tea shop. J.O. testified that she asked Morina to call her partner Ryan Best ("Ryan") so that he could come and be with her.

[13] While at the tea shop J.O. testified that she called the College of Physicians and Surgeons of Ontario (the "CPSO") because she had been assaulted by Dr. Naghibi. She stated that she wanted to determine what the process was to file a report against a medical doctor. She could not recall if she received any information from the CPSO when she made the call.

[14] After their visit to the tea shop Morina and J.O. returned to the parking lot where the clinic was located. Ryan ultimately attended J.O.'s vehicle where it was determined that he would go in and confront Dr. Naghibi. J.O. testified that she asked Ryan to record the conversation with Dr. Naghibi. J.O. recalls seeing Ryan enter the clinic and shortly thereafter leave with Dr. Naghibi. She made observations of them walking around the parking lot.

[15] After the conversation between Ryan and Dr. Naghibi, Ryan re-entered J.O.'s vehicle and J.O. asked him what had occurred. She testified that she then listened to the recording of the conversation on Ryan's cellphone.

[16] After returning home on September 11, 2012, J.O. decided to write a letter to Dr. Naghibi setting out her thoughts and concerns as to what had happened in his clinic. She wrote this letter on September 13th with the intention of giving it to him so that Dr. Naghibi could understand the implications of what he had done to her.

[17] A meeting was then arranged with Dr. Naghibi which took place at a local Starbucks on September 18, 2012. By that time J.O. testified that she was in a poor emotional state, having difficulty sleeping and suffering from nightmares and feeling sick. She had tried to return to work as a massage therapist but could not be left alone with male students.

[18] At the Starbucks were J.O., Ryan and Morina. Morina and J.O. remained in the car in the parking lot. J.O. stated that she had a clear view of Ryan and Dr. Naghibi. It was her evidence that Ryan and Dr. Naghibi never went inside Starbucks and the meeting was quick. She testified that Dr. Naghibi had a gift bag which he gave to Ryan. She also observed Ryan giving Dr. Naghibi her letter.

[19] J.O. testified that Ryan gave her the gift bag. Inside the gift bag was what she described as a child's doll as well as a box of chocolates. There was also a card, inside of which was a cheque payable to cash in the amount of $10,000. J.O. testified that it was her understanding that the cheque had been given to her to assist with the cost for therapy.

[20] A third meeting took place between Dr. Naghibi, Ryan and J.O. This occurred on September 24, 2012. At this meeting J.O. testified that she made the observation that she believed Dr. Naghibi had been crying and indicated that he had read her letter and was wondering how she was doing. J.O. testified that Dr. Naghibi apologized and said that he was sorry for what had happened and that he did not know what had come over him. J.O. testified that he promised that he would never do it again particularly because he had daughters of his own.

[21] At this third meeting J.O. testified that she wanted Dr. Naghibi to understand just how bad things had been for her and that she wanted him to draw a diagram of where he had moved her clothes to and where he had put his hands on her on September 11. J.O. testified that Dr. Naghibi drew a diagram where her underwear was at the time of the injection. J.O. testified that the diagram reflected that she was wearing full underwear which she stated was not accurate as she was wearing a thong, and that the underwear did not need to be moved. J.O. testified that she corrected Dr. Naghibi's drawing to show specifically where her pants and underwear had been at the time of the injection.

[22] J.O. testified that at this third meeting Dr. Naghibi offered to provide her with more money. He inquired as to whether she had cashed the cheque for $10,000 that had been part of the gift bag given to her at Starbucks. She had not cashed the cheque. Dr. Naghibi then suggested that she rip it up and that he would write two more cheques for $20,000 which were to be used for therapy and to enable J.O. to spend more time with her daughter.

[23] After the third meeting there were no further meetings or discussions involving Dr. Naghibi, J.O., Ryan or Morina. It was not until February 2021 when J.O. discovered that Dr. Naghibi had been charged with sexual assault in an unrelated matter that J.O. then went to the police with the allegations that form the basis of the charge before this court.

Ryan's Evidence

[24] Ryan and J.O. met approximately 25 years ago and began dating in 2010. Ryan described J.O. as his common-law spouse. They have two children together.

[25] Ryan recalled receiving a phone call from Morina in the middle of the day on September 11, 2012. He testified that Morina sounded upset and that something had happened to J.O. at a doctor's office.

[26] When Ryan arrived at the parking lot where J.O. had parked her vehicle he testified that he received information from J.O. as to what had occurred with Dr. Naghibi. He testified that it was his decision to go in and confront Dr. Naghibi.

[27] Arrangements were made by Ryan to meet with Dr. Naghibi and at the suggestion of Dr. Naghibi they met outside the clinic. Ryan testified that he never went inside the clinic.

[28] Ryan confronted Dr. Naghibi with the information J.O had given him about the injection of Demerol. He described Dr. Naghibi's response as an indication that Dr. Naghibi felt that there had been a misunderstanding between him and J.O. Dr. Naghibi said that he was sorry for the misunderstanding and that he could help with medication and find a therapist for J.O. to assist her getting over what had happened. Ryan acknowledged that Dr. Naghibi did not admit any wrongdoing but made excuses for what had happened and made offers to assist her.

[29] At the end of the conversation Ryan indicated that after the conversation regarding an offer of medication and a therapist, that he did not know what he would be doing and that he was considering reporting Dr. Naghibi to the appropriate authorities.

[30] Ryan acknowledged that he probably had his cellphone with him during this first interaction with Dr. Naghibi, but he was not sure whether he recorded the conversation. He stated that any recordings that he did make were solely for the benefit of J.O. to make J.O. feel better and to provide her with confirmation of what had in fact happened in Dr. Naghibi's office.

[31] Ryan testified to a second meeting with Dr. Naghibi which took place at a local Starbucks a few days after the original incident. Ryan testified that he drove to the Starbucks with J.O. and left Morina and J.O in the car while he went into the Starbucks. He stated the purpose of the meeting was so that he could record the conversation between himself and Dr. Naghibi and to allow J.O. to hear exactly what happened. Ryan testified that the sole purpose of the recording was for J.O.'s benefit. He realized that it was illegal to record a conversation and therefore could not be used in evidence. He testified that the conversation took place both inside and outside the Starbucks and lasted a few minutes. He testified that most of the time was spent inside Starbucks.

[32] Ryan testified that he told Dr. Naghibi just how much he had damaged J.O. and that she was unable to work. Dr. Naghibi responded by saying "I am sorry, I am sorry." Ryan testified that Dr. Naghibi talked about obtaining medication and psychiatric help for J.O. and he also talked about offering money to assist. It was his evidence that it was "one hundred percent" Dr. Naghibi who brought up the issue of money to assist J.O. with her therapy. In Ryan's mind, he testified that he thought Dr. Naghibi was offering money so that he and J.O. would not report the incident to the appropriate authorities.

[33] Ryan was clear in his evidence that the issue of money first came up inside the Starbucks. At that time Dr. Naghibi had a gift bag with him at the table where they were seated. He gave the bag to Ryan and indicated it was for J.O. and their daughter. Ryan testified that he had been given a letter prepared by J.O. that she wanted him to give to Dr. Naghibi. Ryan testified that he never read the letter. He gave the letter to Dr. Naghibi in the Starbucks.

[34] In the bag that Dr. Naghibi gave Ryan was a stuffed animal, chocolates and a card. Ryan testified that he looked inside the bag as he left Starbucks on his way back to the car. He stated that he threw the chocolates and stuffed animal in the garbage before he got to the car. He gave the card to J.O. She opened it and inside was a $10,000 cheque.

[35] The third and final meetings between J.O., Dr. Naghibi, and Ryan occurred a few weeks later at another coffee shop. By this time no decision had been made about reporting Dr. Naghibi to the appropriate authorities. Ryan testified that it was J.O.'s decision to have this third meeting and that he ultimately didn't play much of a role in the conversation. He testified that during the meeting J.O. made it clear to Dr. Naghibi the impact of what had happened to her in his clinic and that she wanted him to understand that what he had done was wrong. Ryan testified that she wanted Dr. Naghibi to draw a picture of what he had in fact done that day on the examination table. Ryan testified that Dr. Naghibi was the one to make the drawing although he does not recall what he drew.

[36] Ryan testified that after showing on the diagram where he had pulled J.O.'s pants down to, Dr. Naghibi acknowledged that he had "done wrong". There then ensued conversation about the damage that Dr. Naghibi had done to J.O. including the amount of time that she had to take off work and her inability to see male patients. This had all had a financial impact on her. This ultimately then led to further conversation about more money being paid by Dr. Naghibi. Dr. Naghibi indicated that he could come up with a further $10,000 to assist with respect to her therapist and decreased income. Ryan testified that it was never their intention in having this third meeting to obtain more money from Dr. Naghibi but rather to confront him with his wrongdoing. Ryan further testified that throughout it was J.O.'s concern that she did not want Dr. Naghibi to ever do this to anyone else again.

[37] At the end of the third meeting, Ryan testified that there was an agreement about accepting $20,000 from Dr. Naghibi but that J.O. would not sign any document that had been presented to them by Dr. Naghibi acknowledging the payment.

Morina's Evidence

[38] Morina is 38 years of age and is a self-employed massage therapist working at a clinic owned by J.O. Both Morina and J.O. had previously worked at a local college teaching potential massage therapy students.

[39] Morina testified about her first interaction with J.O. on September 11, 2012. She received a call from J.O. in which she described J.O. as crying and panicking on the phone. She was huffing and puffing hysterically and was clearly in distress. Morina went to the parking lot in the plaza where J.O. had parked her car. In the car J.O. described to her what had happened in Dr. Naghibi's office. Specifically, J.O. told Morina that Dr. Naghibi had inappropriately undraped her and done inappropriate things. She also testified that J.O. told her about the inappropriate sexual conversation between herself and Dr. Naghibi. She further testified that J.O. told her that Dr. Naghibi had "pleasured himself against her"; that she could feel him moving back and forth and then ejaculate; she knew that he had ejaculated because of the scent.

[40] Morina testified that she went in to confront Dr. Naghibi after her conversation in the car with J.O. She testified that Dr. Naghibi stated that J.O.'s description as to what happened never happened. Morina said that it did. Dr. Naghibi then said he was sorry.

[41] The conversation between Morina and Dr. Naghibi was firm but according to Morina there was no yelling. As she left the room with Dr. Naghibi she stated that she turned to the receptionist and told her to get rid of her file as well as J.O.'s file. Morina had also been a patient of Dr. Naghibi.

[42] Not long after Morina's interaction with Dr. Naghibi, Ryan arrived at the parking lot. She stated that Ryan then went into Dr. Naghibi's office but was not there long. He came out with Dr. Naghibi and that they continued speaking and walking around the plaza slowly. She stated that there was in fact a voice recording of that conversation since Ryan told her later that he had recorded the conversation. She stated that the recording was ultimately played back to her in its entirety. She stated that she recalled hearing in the conversation that Dr. Naghibi had told Ryan that it would ultimately be his word against J.O.'s.

[43] Morina testified with respect to the meeting that took place at the local Starbucks a few days after the initial incident. Morina testified that she was in J.O.'s car facing the Starbucks. She testified that Ryan went into the Starbucks and that Dr. Naghibi and Ryan then walked out with Dr. Naghibi holding a gift bag. She stated that she saw Dr. Naghibi give Ryan the gift bag and Ryan gave J.O.'s letter to Dr. Naghibi. Morina testified that when Ryan got back to the car, she saw what was in the gift bag including a doll, chocolates and a get-well card including a cheque for $10,000. She stated that after some discussion it was decided that the doll and chocolates would be thrown out and that the card and cheque would be kept to assist J.O. with therapy. Morina testified that she never saw Dr. Naghibi again after this meeting at the Starbucks.

[44] While Morina was not at the third meeting, she testified that she, not long thereafter, heard a voice recording of the conversation between Dr. Naghibi, J.O. and Ryan at the local coffee shop. Morina testified that she also received a copy of this recording. She stated that the recording was sent to her on the day of the third meeting.

Dr. Naghibi's Evidence

[45] Dr. Naghibi was born in Iran. He did his medical training at the University of Karachi in Pakistan graduating in 1979. He was licenced to practice medicine in Iran in the early 1980s where he continued a practice in family medicine for five years. He immigrated to Canada in 1998 and because of retraining ultimately became a licenced family physician with the CPSO in March 2011. Dr. Naghibi joined a family practice in Aurora and ultimately moved his clinic to Newmarket in January 2013. He closed his office in 2023.

[46] As it relates to the events of September 11, 2012, Dr. Naghibi acknowledged that J.O. was a patient who had been to his walk-in clinic but that he had no direct recollection of her as a patient. He had an independent memory of what occurred on September 11, 2012.

[47] It was Dr. Naghibi's evidence that J.O. attended at his walk-in clinic complaining of a headache. Dr. Naghibi suggested that the appropriate treatment was an injection of a pain medication commonly known as Demerol. Dr. Naghibi gave J.O. a prescription to be filled at a local pharmacy. J.O. returned to his clinic where Dr. Naghibi saw her in an examination room and asked her to lie down on an examination bed. Dr. Naghibi had advised J.O. to move her pants down to allow him to inject her into the gluteus maximus. When Dr. Naghibi returned to the examination room he observed that J.O. did not have her pants down far enough and asked her if she was comfortable with him moving them down a bit.

[48] Dr. Naghibi was clear in his evidence that at no time did he lower J.O.'s pants to the level to which she testified they were lowered. He acknowledged it was possible that he first lowered her pants and then her underwear, but he could not recall.

[49] Dr. Naghibi described the injection as being one where he had a syringe and an alcohol swab. He pinched the area of the injection site and then inserted the needle. Dr. Naghibi denied that he at any time touched the cleft area of J.O. He denies that he asked her about any prior sexual experiences as he was administering the injection.

[50] Dr. Naghibi testified that the actual injection took no more than 20 to 30 seconds. After the injection he noticed that there was a small area of bleeding which caused him to apply some pressure for approximately 20 seconds to stop the bleeding. Any massaging of the area of the injection was solely done to stop the bleeding and to spread the medication for quicker absorption.

[51] In addition to denying that he at any time placed his left hand in the area of J.O.'s glute, Dr. Naghibi also denied that he had placed his hand in the area of J.O.'s vagina. He denied that he was grinding against J.O.'s hip. He acknowledged that he may have been wearing a belt but at no time did he undo it. He acknowledged that it was possible that his belt may have touched the side of the examination table if he had not done up his lab coat although he further testified that, he always had his lab coat done up. He denied that he was ever aroused at any time during his interaction with J.O.

[52] Dr. Naghibi was questioned with respect to his recollection with any interaction he had with Morina. Dr. Naghibi testified that he did not remember her although he had a "fudgy" memory that she may have come in to speak to him. He believes that someone may have come into the office that day and introduced themselves as a friend of J.O. indicating that J.O. had been treated inappropriately. This person indicated that J.O. was very upset with how she was treated. Dr. Naghibi testified that he did nothing untoward and only acted as a "doctor should do".

[53] Dr. Naghibi was further questioned with respect to any interaction that he may have had with Ryan on September 11, 2012. He stated that he had never seen Ryan before and when he knocked on his door, Dr. Naghibi inquired as to what he could do for him. Ryan identified himself as J.O.'s partner and suggested that Dr. Naghibi had touched her inappropriately. Dr. Naghibi testified that he told Ryan that he had never done anything wrong but that if J.O. had a perception that he had done something wrong it was not intentional.

[54] Dr. Naghibi recalls asking Ryan to continue the conversation in the parking lot where Ryan continued to repeat the allegation of sexual misconduct. Dr. Naghibi responded by indicating that there may have been a misunderstanding but that he did not do anything improper. Dr. Naghibi recalls Ryan telling him that he had to compensate for possible medication and any referral for psychological treatment. Dr. Naghibi responded by indicating that there was no need for any compensation to which according to Dr. Naghibi, Ryan responded by indicating that his mother was an MP or MPP and that she could revoke his medical licence. Dr. Naghibi perceived this as a form of blackmail. Dr. Naghibi testified that he took the threat from Ryan seriously and was anxious and worried that Ryan and/or J.O. could go to the CPSO and have his medical licence suspended. Dr. Naghibi denied that he ever offered any money to Ryan or anyone else on September 11, 2012. He did suggest, however, a further meeting.

[55] Dr. Naghibi testified with respect to a meeting a few days later at Starbucks and indicated that prior to the meeting he had been to a local Wal-Mart where feeling sympathy for J.O.'s child he "wanted to be generous and kind" and purchased a teddy bear and a "get well soon card" (the "card") which he placed in his briefcase.

[56] Dr. Naghibi testified that he arrived at the Starbucks and was sitting at a table where he signed the card prior to meeting with Ryan. He testified that the entirety of the conversation with Ryan was inside the Starbucks. He testified that during the relatively brief meeting Ryan raised the question of J.O.'s need for therapy and that the therapy would be expensive and would cause her to be off work. He testified that Ryan thought that the cost would be somewhere in the range of $4,000 to $5,000 and because of this conversation Dr. Naghibi wrote a cheque payable to cash in the amount of $5,000. Dr. Naghibi testified that Ryan gave him back the cheque and said that $5,000 would not cover the costs. As a result, Dr. Naghibi wrote out a second cheque for $10,000. Dr. Naghibi denied that it was his idea to pay any money to J.O. Dr. Naghibi made it clear that he was being threatened by Ryan and J.O.

[57] Dr. Naghibi was questioned as to whether he had placed the cheque in the card as referenced in the evidence of both J.O. and Ryan. Dr. Naghibi denied that the cheque was in the card and that in fact he gave the cheque directly to Ryan.

[58] Dr. Naghibi was confronted with the evidence of Ryan and J.O. that he apologized to them for what happened on September 11, 2012. Dr. Naghibi denied that that was in fact the case but acknowledged that if he had touched J.O. in an inappropriate manner by mistake that he was sorry, but he never admitted or apologized for any wrongdoing.

[59] Dr. Naghibi was questioned with respect to the third meeting already referenced in the evidence of J.O., Ryan, and Morina. Dr. Naghibi did not expect this third meeting and did not know the purpose of the meeting but rather understood that Ryan simply wanted to see him again. Dr. Naghibi recalls meeting at another coffee shop in Richmond Hill approximately a week after the second meeting at Starbucks. The meeting began with Ryan reminding Dr. Naghibi of the allegations being levelled against him to which Dr. Naghibi recalls telling Ryan and J.O. that he had done nothing wrong but that if he had made them upset, he was sorry.

[60] Dr. Naghibi was asked as to whether he drew any diagram or any other form of drawing at this third meeting. He denied making any drawing.

[61] Dr. Naghibi acknowledged that there was discussion about a further payment arising out of a suggestion from Ryan that the $10,000 previously offered was not going to be sufficient for therapy and to cover the time while J.O. was away from work.

[62] Dr. Naghibi agreed to pay an additional $10,000. In his evidence he wasn't sure whether he paid $20,000 or $30,000. Dr. Naghibi stated that he felt threatened and that if the CPSO became involved the police might also become involved.

[63] Dr. Naghibi recalls the third meeting ending with him "wishing them well". He has no recollection of J.O. telling him that she would be keeping an eye on him.

[64] Dr. Naghibi denies that he gave any document to Ryan and J.O. in which he sought their signatures acknowledging the payments. He stated that any document like that to his knowledge would have been inadmissible.

[65] In cross-examination, Dr. Naghibi acknowledged that in his dealings with Ryan and J.O. he had two priorities. The first was to protect his medical licence and the second one was to avoid any risk of his family finding out about the allegations.

[66] Dr. Naghibi was cross-examined about the method that he used to perform the injection on J.O. He was asked whether he should have put draping on her and whether he should have offered a chaperon while he was injecting Demerol into her buttock area. Dr. Naghibi disagreed that draping was required as he only needed to expose the gluteus muscle for the injection.

[67] Dr. Naghibi was cross-examined as to whether he had lowered J.O.'s pants on both sides of her buttock area. Dr. Naghibi stated that he only lowered her pants on her right side. He denied that both sides of her buttocks were ever exposed and denied it was impossible to perform an injection unless both sides of the buttocks were exposed. Dr. Naghibi was quite emphatic stating that it was not only possible, but he did it by lowering just the right side of her pants.

[68] Dr. Naghibi denied the suggestion in cross-examination he should have been wearing gloves but agreed that if he had any more contact than what he testified to, it would have been appropriate to wear gloves.

[69] Dr. Naghibi was cross-examined with respect to his interaction with Morina and testified that when confronted by Morina with the allegation of inappropriate sexual contact and inappropriate sexual conversation, he denied that any such events occurred but acknowledged that there might have been a misperception or misunderstanding on the part of J.O. After the conversation with Morina, Dr. Naghibi was cross-examined as to what he then did to which he responded, "I didn't take it seriously". He stated that he did not want to tell his wife about the complaint as he did not want to worry her.

[70] Dr. Naghibi was cross-examined as to the conversation that he had with Ryan on September 11, 2012, and the reasons for requesting that the conversation take place in the parking lot as opposed to the office. Dr. Naghibi indicated that he was concerned that someone might be in the reception area and could overhear the conversation between himself and Ryan. Dr. Naghibi, in cross-examination, confirmed that he never did anything inappropriate with J.O. but acknowledged that there may have been a misunderstanding on the part of J.O. as to what happened.

[71] When the conversation turned to compensation, Dr. Naghibi agreed in cross-examination that this was a serious situation and that he was potentially a victim of blackmail. He denied that he ever thought about calling the police and that his only concern was for his medical licence. He did acknowledge that if things escalated, he would have gone to the police.

Legal Principles

[72] Dr. Naghibi is charged with one count of sexual assault using a weapon contrary to s. 272(2) of the Criminal Code. The actus reus of the offence charged requires the Crown to establish three things:

a. A touching;

b. A touching of an objectively sexual nature; and,

c. A touching of a sexual nature to which J.O. did not consent.

[73] As it relates to the actus reus the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, [2021] 1 SCR 801 at paragraph 25 stated:

…The first two elements are determined objectively, while the third element is subjective and determined by a reference to the complainant's internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused's perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at paragraph 90.

[74] In this case it is conceded by the defence that if the evidence of J.O. is found to be credible and reliable and if the court is left with no reasonable doubt as to the proof of the case brought against Dr. Naghibi then the offence of sexual assault with a weapon has been made out. In this case the weapon is the needle used to inject the pain killer into the buttock area of J.O.

[75] Dr. Naghibi, like all accused persons in this country, is presumed innocent of the charge that he faces, and that presumption remains with him until such time as the Crown has proven the charge beyond a reasonable doubt. Dr. Naghibi has no obligation to prove anything, nor did he have any obligation to testify. In this case, however, Dr. Naghibi did choose to testify and as such the well-known W.(D.) principles apply. Dr. Naghibi can only be convicted of the offence charged if there is no reasonable doubt about his guilt. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence – see R. v. Lifchus, [1997] 3 SCR 320 at paragraph 30.

[76] Sexual assault cases have sometimes been described as a he said/she said type of scenario. This is often the case given that it is rare that a sexual assault is witnessed by anyone other than by the complainant and the accused. It is for this reason that the evidence of a complainant is very often diametrically opposed to the evidence of an accused person. It would however be completely wrong for the trier of fact to begin the W.(D.) analysis where the evidence of the complainant and the accused is diametrically opposed by suggesting that "both cannot be telling the truth" (see R. v. W.(D.), [1991] 1 SCR 742). The Court of Appeal in R. v. T.A., 2020 ONCA 783 at paragraphs 27 and 28 observed:

[27] Such a statement is the antithesis of a W.(D.) analysis, which requires the trier of fact to consider whether, even if she does not accept the defence evidence, she is still left with a reasonable doubt by it.

[28] It is not the task of a trier of fact to determine which of two versions of an event is true. Rather, the trier's task is to determine whether the Crown has met its burden of proving the elements of an offence beyond a reasonable doubt. As Cory J. held at p. 757 of W.(D.):

It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

[77] As both the Crown and defence in this case referenced during their closing arguments, the court must deal with both the credibility and reliability of the witnesses called in this case. Both the Crown and defence acknowledge that in accessing the credibility and reliability of the witnesses, the court must consider the various inconsistencies in the evidence or lack of evidence heard by this court. Credibility and reliability are, however, entirely different concepts. As succinctly noted by Watt J.A. in R. v. H.C., 2009 ONCA 56 at paragraph 41:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

i. observe

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526.

[78] Issues of credibility cannot be looked at in isolation. The Court of Appeal in R. v. M.(O.) 2014 ONCA 503 at paragraph 42, makes clear that a complainant's credibility cannot be established by assuming the guilt of an accused person. Nor can the evidence of an accused be rejected simply because the evidence of a complainant is accepted. Fundamentally W.(D.) precludes this "either or" approach to the assessment of credibility. Rather the Court of Appeal has confirmed that under the third step of W.(D.) the trial judge must accept whether, although not believing an accused's evidence, a reasonable doubt arises on the whole of the evidence that the trial judge does not accept.

[79] The aforesaid principles were reviewed by the Ontario Court of Appeal as far back as 1999 in R. v. Gostick where Finlayson J.A. at paragraph 14 stated:

The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.). This is particularly true where the Crown's case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses' credibility and reliability.

[80] Where a criminal trial takes place many years after the events at issue, it is common that there will be inconsistencies in the evidence of material witnesses. Minor inconsistencies are normal and are to be expected and generally speaking will not go to the credibility of a witness. But as the Court of Appeal pointed out in R. v. G.(M.) 93 C.C.C. (3d) at paragraph 354:

…Where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

[81] In assessing the credibility of a complainant one factor to consider is the demeanour of the complainant as she presented immediately after the alleged sexual assault. This is referenced by the Court of Appeal in R. v. P.R., 2014 ONCA 131, paragraph 5 where the court observed:

…It was open to the trial judge to conclude that the complainant's demeanour within minutes of the encounter at the apartment was entirely inconsistent with the appellant's claim that they had engaged in consensual sex and that when the complainant left his apartment she was not upset.

[82] Similar observations were made by the Court of Appeal in R. v. Rose, 2021 ONCA 408 at paragraph 38 as follows:

I do not accept the appellants submissions. Although the trial judge fairly acknowledged that there were problems with aspects of the complainant's evidence, he found those problems did not go to the core of her account of forced, nonconsensual sex. The complainant was unequivocal that she did not consent to the sexual activity with the appellant. The trial judge determined that her post event demeanour or emotional state, as recorded on the video, corroborated her account. In these circumstances, in my view, the verdict cannot be said to have been unreasonable.

Position of the Crown

[83] While the Crown acknowledges there were inconsistencies in the evidence of J.O. the Crown fundamentally argues that any lapses in her memory can be put down to the fact that the trial of this case took place nearly 13 years after the events in question. Any lapses in the memory of J.O. can also be put down to the fact that she had just experienced a very traumatic event. Regardless of any inconsistencies, the Crown also argues that much of J.O.'s evidence was corroborated by Ryan and Morina.

[84] The Crown argues that one of the most telling pieces of evidence corroborated by others was the demeanour of J.O. immediately after the interaction between herself and Dr. Naghibi. J.O. testified that she was in a very emotional state, a state that was corroborated by both Ryan and Morina. The Crown rhetorically suggests that there is no plausible explanation for the demeanour evidence of J.O.; demeanour evidence that the Crown argues clearly reflected someone who had just been sexually assaulted.

Position of the Defence

[85] The fundamental position of the defence is that Dr. Naghibi performed a completely proper medical procedure when he injected a pain killer into the buttock area of J.O. Mr. Humphrey argues that Dr. Naghibi's evidence was clear, concise and demonstrated that there were no sexual connotations to what he did in the interaction with J.O. As it relates to the evidence of J.O., the defence references numerous inconsistencies in her evidence that go to her fundamental credibility and reliability. Mr. Humphrey also asks this court to rhetorically question why J.O. and Ryan would have recorded the conversations with Dr. Naghibi. Mr. Humphrey suggests that the only reason was to provide potential evidence in the event a report was made to the police or to the CPSO. Ultimately, it is argued that the recordings were never produced because the recordings would have in fact substantiated the position asserted by Dr. Naghibi. Dr. Naghibi never, it is argued, admitted to any wrongdoing on those recordings but rather apologized that J.O. might have had the wrong perception of what had taken place.

[86] The defence argues that there is no onus on Dr. Naghibi to explain why there might have been a false accusation made by J.O. and suggests that in fact, J.O. might have misinterpreted what happened and that this misinterpretation could have ended up as a fabricated story which ultimately led to the extortion of $20,000 from Dr. Naghibi.

Analysis

[87] The demeanour of J.O. immediately after what happened in Dr Naghibi's clinic is a significant factor this court must consider in the overall assessment of J.O.'s credibility. Something happened in the clinic that resulted in an outward emotional reaction that was observed by both Morina and Ryan.

[88] As reflected in R. v. P.R., 2014 ONCA 131 at para 5 "….it was open to the trial judge to conclude that the complainant's demeanour within minutes of the encounter at the apartment was entirely inconsistent with the appellant's claim that they had engaged in consensual sex and that when the complainant left his apartment she was not upset." Post event demeanour or the emotional state of a complainant may very well serve to corroborate the evidence of a complainant that she has been the victim of sexual assault-(see R. v. Rose, 2021 ONCA 408 at paragraph 38).

[89] Morina received a phone call from J.O. between 9am and 10 a.m. while she was preparing a lesson at the College where she was teaching. Morina described J.O. as "panicking on the phone". Morina asked her what happened and stated that J.O. was "huffing and puffing" and she was crying "hysterically". Morina stated that J.O. was clearly "in distress".

[90] Morina immediately drove to Dr. Naghibi's clinic where she found J.O. in her car. She described J.O.'s face as being "all red" and "puffy" from crying. J.O. told Morina that something had happened in the clinic and that Dr. Naghibi had "inappropriately undraped" her and done inappropriate things to her including asking her inappropriate sexualized questions. Morina testified that J.O. told her that Dr. Naghibi had "inappropriately pleasured himself". Significantly J.O. told Morina that Dr Naghibi had ejaculated, and she knew this because of the scent (of the ejaculate).

[91] Ryan testified to getting a phone call from Morina in the middle of the day on September 11, 2012. He described Morina as being upset. She told him something had happened to J.O. at the clinic. Ryan drove to a tea shop where Morina and J.O. were talking. When he arrived, he described J.O. as being very upset; she was crying; and she "wasn't herself". He elaborated by stating he had never seen her that upset in the 25 years they had been common-law partners.

[92] There can be little doubt on the evidence of both Ryan and Morina that something happened in the clinic for J.O. to present in the manner that she did immediately after her visit to the clinic. One issue for this court to decide is whether this demeanour evidence standing alone is sufficient to ground a conviction. The answer to this question must be no. The role of this court is to assess the whole of the evidence in its determination of whether the Crown has proven the case against Dr. Naghibi beyond a reasonable doubt.

[93] The first written recorded history of what occurred on September 11, 2012, is reflected in Exhibit 5 which is a letter written by J.O. to Dr. Naghibi; a letter which Ryan gave to Dr. Naghibi at the Starbucks meeting. With a few notable exceptions the contents of Exhibit 5 largely reflect the testimony of J.O. as to what she says occurred on the examination table in Dr. Naghibi's walk-in clinic. There is, however, no mention made in the letter about Dr. Naghibi rocking back-and-forth against the examination table and the sound of a jingling belt. There is no suggestion in Exhibit 5 that Dr. Naghibi ejaculated.

[94] The memory of someone who has been the victim of inappropriate conduct may have a better recollection of the events of what occurred proximate to the time of those events. On the other hand, victims of sexual assault may not always immediately report and/or record exactly what occurred during the course of a sexual assault (see R. v. C.(G.M.) 2022 ONCA 2 at paragraph 38).

[95] In her first interaction with Morina when they spoke in J.O.'s car Morina testified that J.O. told her that Dr. Naghibi had ejaculated. It is hard then to reconcile the contents of Exhibit 5,written days after what happened at the clinic, with Morina's evidence. There is a total absence of any mention by J.O. in Exhibit 5 of Dr. Naghibi's grinding motion on the examination table. There is no mention that he ejaculated. These are material inconsistencies, along with other inconsistencies I will refer to below, that I consider in assessing the credibility and reliability of J.O.'s evidence.

[96] Whether Dr. Naghibi had his belt done up or it was undone may seem a relatively minor point in the overall assessment of what happened on September 11, 2012. J.O., however, by her evidence both at the preliminary hearing and at trial, put the issue of whether the belt was done up or not, squarely before the court for assessment. In her cross-examination at trial, J.O. was confronted with the evidence that she gave at the preliminary hearing where she clearly stated that Dr. Naghibi's belt was not undone but was merely rubbing up against the examination table. At trial, J.O. was "100%" certain that Dr. Naghibi's belt was in fact undone. J.O. explained that she was certain that it was undone as she had recently heard a jingle similar to what she had heard 13 years prior. J.O.'s certainty as to the belt being undone and the "jingle" was rendered 100% certain because, as she explained to the court, she had purchased a belt for the first time in her life just prior to trial and had heard a jingle of a belt for the first time.

[97] The credibility of J.O.'s evidence that she had never worn a belt in her life prior to trial and that she had never heard the jingling of a belt from anyone else is difficult to believe. J.O. and Ryan have been common-law spouses for 25 years. It is almost inconceivable that within that timeframe, J.O. would never have heard the jingle of a belt let alone never worn or purchased a belt. There was no corroborative evidence offered through Ryan to lend credibility to this evidence.

[98] What occurred at the Starbucks meeting as reflected in the evidence of J.O., Ryan and Morina, is not consistent. J.O. was clear in her evidence that the meeting involving Dr. Naghibi and Ryan did not take place inside Starbucks and that she saw Ryan give Exhibit 5 (her letter) to Dr. Naghibi. J.O. also maintains that she saw Dr. Naghibi give Ryan a gift bag. This evidence, however, is significantly inconsistent with Ryan's evidence, who says that the meeting took place inside Starbucks and that Dr. Naghibi gave the gift bag to him inside Starbucks.

[99] What happened to the contents of the gift bag given to Ryan by Dr. Naghibi is also contradicted in the evidence of J.O., Ryan, and Morina. Ryan's evidence is that he looked inside the gift bag and saw a child's doll and some chocolates. Ryan testified that he threw these items into the garbage before he returned to the car where J.O. and Morina were waiting. J.O., in her evidence, contradicts the evidence of Ryan as to what took place with the contents of the gift bag. J.O. maintains that when Ryan returned to the car after his meeting with Dr. Naghibi he gave her the gift bag and when she looked inside, she became angry and upset and that she was the one who threw the items into the garbage.

[100] Morina testified as it relates to the Starbucks meeting that she remained in the car in the parking lot with J.O. She testified that Dr. Naghibi was already inside the Starbucks when they arrived, and that Ryan went into the Starbucks and shortly thereafter came out with Dr. Naghibi who was holding a gift bag. It was Morina's evidence that she saw Dr. Naghibi hand the gift bag to Ryan and that it was at this point that Ryan handed Dr. Naghibi Exhibit 5. Morina's evidence is inconsistent with the evidence of Ryan. It is also inconsistent with the evidence of Dr. Naghibi that the entirety of the meeting took place inside the Starbucks and that the gift bag was given to Ryan inside the Starbucks. Morina's evidence is also inconsistent with Ryan's evidence where she testified that she saw the contents of the gift bag including the doll and chocolates together with the card and a cheque for $10,000. Morina's evidence is again inconsistent with the evidence of Ryan that these items except for the card, were thrown in the garbage prior to him getting to the car.

[101] The evidence as to what occurred at the third meeting with Dr. Naghibi is also problematical. Prior to the third meeting, J.O. and Ryan had testified that they wanted the meeting at Starbucks recorded so that J.O. would have the opportunity to hear what Dr. Naghibi said about what happened on September 11, 2012. Both J.O. and Ryan were emphatic that there was no intent to record the meeting for the purposes of future use if there was to be a complaint to the CPSO or to the police.

[102] As the second meeting at Starbucks had been recorded, neither J.O. nor Ryan could give a plausible explanation as to why the third meeting was recorded given that they already had Dr. Naghibi recorded in the second Starbucks meeting.

[103] J.O. testified that she wanted to meet with Dr. Naghibi at the third meeting to have him draw a diagram that would demonstrate the inappropriateness of his conduct on September 11, 2012. At trial, J.O. was confronted with the evidence that she gave at the preliminary hearing that she had asked Dr. Naghibi to draw for Ryan how far her pants had been pulled down on September 11. J.O. had testified that she did not keep the drawing as it was only for Ryan, and she had left it at the coffee shop.

[104] In a meeting with the Crown prior to trial, J.O. raised with the Crown a question regarding the drawing and suggested that she had a good reason why she did not keep the drawing. At trial, J.O. testified that the drawing was a "teaching moment" for Dr. Naghibi. Somewhat remarkably, Ryan admitted in his evidence that the third meeting was memorable yet there was no mention made to the police by Ryan in his statement concerning a diagram. At trial, Ryan gave a detailed explanation about the diagram and how that diagram came about.

[105] There is no dispute that the second meeting at Starbucks as well as the third meeting were recorded by Ryan. There is some dispute in the evidence as to whether the interaction with Dr. Naghibi on September 11, 2012, was also recorded. J.O. and Morina both maintain in their evidence that they listened to that recording of the first meeting involving Dr. Naghibi and Ryan. Ryan was not certain whether he recorded that meeting. Regardless, recordings did exist of both the second and third meetings. A copy of the recording made at the third meeting was sent by Ryan or J.O. to Morina. Morina, in her evidence, confirmed that the recording of the third meeting was sent to her by J.O. She confirmed that there was discussion between herself, J.O. and Ryan that the recording could be important evidence if the events of September 11, 2012, were ever reported in the future.

[106] Morina testified with respect to the meeting that took place at the local Starbucks a few days after the initial incident. Morina testified that she was in J.O.'s car facing the Starbucks. She testified that Ryan went into the Starbucks and that Dr. Naghibi and Ryan then walked out with Dr. Naghibi holding a gift bag. She stated that she saw Dr. Naghibi give Ryan the gift bag and Ryan gave J.O.'s letter to Dr. Naghibi. Morina testified that when Ryan got back to the car, she saw what was in the gift bag including a doll, chocolates and a get-well card including a cheque for $10,000. She stated that after some discussion it was decided that the doll and chocolates would be thrown out and that the card and cheque would be kept to assist J.O. with therapy. Morina testified that she never saw Dr. Naghibi again after this meeting at the Starbucks.

[107] Morina, in her evidence, stated that she listened to the recording and amongst other things at the third meeting Morina stated that there was discussion concerning the payment of money and that Dr. Naghibi offered J.O. a further $20,000 and that she should keep the $10,000 that he had already given to her at the second meeting at Starbucks. Morina was clear in her evidence that she heard that Dr. Naghibi was offering a total of $30,000 and when confronted in cross-examination, Morina was absolutely certain that the figure was $30,000. This evidence is clearly contradicted by all the other evidence at trial that Dr. Naghibi only paid J.O. $20,000 by way of two separate cheques of $10,000 each.

[108] Prior to the commencement of trial this court was called upon to adjudicate a third-party records application that involved J.O.'s discipline proceedings before the CMTO. The allegations of misconduct before the CMTO were initiated by Notice of Hearing dated February 26, 2021, i.e., 10 years after the allegations of sexual assault involving Dr. Naghibi. J.O. ultimately pled guilty to professional misconduct on December 8, 2021. The third-party records application came before this court on February 8, 9, April 8, and May 13, 2025. J.O. was represented at the third-party records hearing by Jen Danch.

[109] On April 8, 2025, a dispute arose as to how the defence had learned about the discipline proceedings involving J.O. and the CMTO. The defence could only have obtained this information because of Crown disclosure or because of the defence conducting an internet search of J.O.,'s name. It was the defence position before this court that they had only recently obtained information about the discipline proceedings because of a Google search of J.O.'s name. It was clear the defence position was that this information did not come from Crown disclosure.

[110] At the hearing of April 8, 2025, this court granted a brief adjournment so that Ms. Danch could obtain instructions from her client as to when and to whom she disclosed her discipline hearing before the CMTO. Ms. Danch, acting on instructions from her client J.O., made it clear to the court that J.O. had disclosed the discipline proceedings to the investigating police officer in charge of her case.

[111] Whether J.O. in fact did disclose her discipline proceedings to the police became a material issue and fundamentally goes to the credibility of J.O. Exhibit 7 is the Agreed Statement of Facts of Det. Ryan Holmes who is a detective with the York Regional Police. Det Holmes is the officer in charge of this case. Det. Holmes indicates in Exhibit 7 that the trial of this matter was scheduled to proceed on Monday, May 13, 2024, but was adjourned at the request of the defence. The reason for the adjournment was because the defence had discovered J.O.'s professional misconduct before the CMTO. Det. Holmes notes at paragraph 4 of Exhibit 7, the following:

Det. Holmes has no recollection of any conversation with J.O. regarding her CMTO discipline prior to May 13, 2024. Furthermore, he has no notes of any discussion with J.O. regarding that matter prior to April 17, 2025.

[112] Det. Holmes goes on in paragraph 5 of Exhibit 7, as follows:

On April 17, 2025, J.O. called Det. Holmes for an update. During that conversation, J.O. asked if she could tell him about the third-party records hearing. Det. Holmes replied that she could. J.O. told Det. Holmes about her "testimony", specifically a portion where she claimed that she had told Diane Blaire and Det. Holmes during a witness preparation meeting that she had received a complaint from the "College" and that the complaint will likely come up at trial. Det. Holmes has "absolutely no recollection or notation of J.O.'s claim."

[113] Det. Holmes completes the Agreed Statement of Fact by confirming that if the misconduct proceedings before the CMTO had been raised with him by J.O., that from his perspective that information would be relevant and "disclosable to the defence."

[114] At trial, J.O. suggested that it was possible that her disclosure of the discipline proceedings was something that she disclosed to the "VWAP" person and that it was possible that she may have said this in the presence of Det. Holmes.

[115] J.O.'s evidence is not only inconsistent with Det. Holmes' recollection as reflected in Exhibit 7, but more fundamentally was not consistent with how things unfolded before this court on April 8, 2025. Ms. Danch was crystal clear in her initial submission to the court (as reflected in the audio recording of that date in Exhibit 6) that J.O. had prior to trial brought to the attention of the officer in charge the information about her discipline proceedings. Counsel for the defence then engaged in conversation with the Crown and Ms. Danch and this court suggested a brief adjournment.

[116] After the adjournment of a few minutes Ms. Danch returned to the court room and told the court she had spoken with J.O. and based on that discussion Ms. Danch clarified that there was in fact nothing in the Crown disclosure about J.O.'s discipline proceedings. Ms. Danch went on to advise the court that it would be J.O.'s evidence at trial that J.O. had in fact disclosed her discipline proceedings to the officer in charge.

[117] Ms. Danch then told the court that J.O. had never misled the police about her discipline proceedings and that if she had misled the police it would go to her credibility in a manner quite different from how J.O.'s discipline record itself might go to her credibility. As the testimony at trial now reveals that submission by Ms Danch was quite prescient.

[118] Ms. Danch then told the court that J.O. had never misled the police about her discipline proceedings and that if she had misled the police it would go to her credibility in a manner quite different from how J.O.'s discipline record itself might go to her credibility. As the testimony at trial now reveals that submission by Ms Danch was quite prescient.

[119] What is clear is that the discipline proceedings took place in 2021. There is no evidence prior to the first date fixed for trial that J.O. in fact disclosed the discipline proceedings to Det. Holmes. This court has no reason to doubt the credibility of the Agreed Statement of Facts reflected in Exhibit 7. J.O. knew that what happened before the CMTO in her discipline proceedings was relevant and material. Her failure to disclose this information in a timely fashion reflects on her credibility. More importantly, her story with respect to how the discipline proceedings got disclosed is inconsistent with the information she provided to Ms. Danch, information that Ms. Danch put on the record before this court on April 8, 2025.

[120] J.O's evidence at trial that she may have told the VWAP worker about her discipline proceedings when Det. Holmes was present was nothing more than revisionist history intentionally designed to reflect poorly on Ms. Danch. I want to make it crystal clear in these reasons that Ms. Danch did nothing wrong in her representations to the court and that the reflection on J.O.'s credibility arising out of the inconsistencies of what happened on April 8, 2025, was caused solely by J.O. and not by Ms. Danch.

[121] I began my analysis with the conclusion that there can be no doubt that something happened in Dr. Naghibi's clinic on September 11, 2012. Dr Naghibi maintains that his conduct was entirely professional and that nothing of an inappropriate sexual nature happened. In his evidence he was consistent in acknowledging that in all his post clinic interactions with J.O., Ryan and Morina he may have indicated he was sorry for any misunderstanding as to what happened but was equally emphatic nothing improper happened. Why someone would be apologetic in response to allegations of sexual impropriety is problematical. But in the context of a medical procedure, it is entirely conceivable that a patient (especially someone with medical training) might perceive something as being professionally and sexually inappropriate.

[122] I accept the evidence of Dr. Naghibi that he did in fact apologize to J.O. – apologies he acknowledged in his discussions with Ryan and Morina. These apologies were not intended to reflect an apology for inappropriate conduct but rather an apology for what he believed may have been a misunderstanding on the part of J.O.as to how she perceived what happened on September 11, 2012, as something that was a sexual assault. Her reaction reflected in her demeanour evidence observed by Ryan and Morina almost immediately after the interaction with Dr Naghibi supports the conclusion that J.O. perceived she had been the victim of sexual assault.

[123] While I accept the evidence of Dr. Naghibi that his apologies were not intended to reflect an apology for any inappropriate behavior there are many aspects of his evidence that give rise to concerns about believing the entirety of his evidence. After Dr. Naghibi met with Ryan shortly after the events of September 11, 2012 common sense causes me to question why he would suggest to Ryan continuing their meeting in the parking lot. I also must question why Dr Naghibi would suggest that he and Ryan would exchange contact information for the purposes of having a second meeting.

[124] The most perplexing part of Dr Naghibi's evidence is why he would purchase a childs doll and chocolates prior to his meeting at Starbucks. He testified that he "felt sympathy" for J.O. and her daughter and that was why he purchased the card and these items. As a matter of common sense, it is difficult to accept this evidence when it is put in the context of a patient having just accused him of sexual assault.

[125] Dr Naghibi had an excellent memory for the small details of how he conducted the procedure that is the subject matter of this trial. He was straightforward and credible in his presentation. He also accepted that it was possible that his belt may have rubbed up against the examination table. But on a fundamental detail his memory failed him. He could not recall if the cheques he gave to J.O. and Ryan totalled $20,000 or $30,000. Having conceded in his evidence that he was not a wealthy person it is difficult to reconcile Dr. Naghibi's detailed memory regarding the injection and his memory about what he paid J.O.

[126] Finally, as it relates to Dr. Naghibi his evidence as to how he parted company with Ryan and J.O. at the third meeting again causes me to question the credibility of Dr Naghibi He testified that when he left J.O. and Ryan at the coffee shop he "wished them well". Put in the context that it is Dr Naghibi's position that he was the victim of blackmail it is difficult to accept that someone would wish the person blackmailing him well.

[127] Dr. Naghibi chose to testify in his trial. He was under no obligation to testify nor was he under any obligation to explain why a false accusation was being levelled against him by J.O.

[128] What happened in the days and weeks after September 11, 2012, are difficult to reconcile with someone who has been the victim of sexual assault. J.O. testified she contacted the CPSO almost immediately after she left the clinic. She also contacted a lawyer. Ryan confronted Dr. Naghibi. Dr. Naghibi testified that in his interaction with Ryan he was threatened that his licence to practice medicine could be revoked because his stepmother was an MPP and a member of the Provincial Cabinet. Ryan denied he ever made such a threat.

[129] I accept the evidence of Dr. Naghibi that he felt his licence to practice could be placed in jeopardy with the possible intervention of Ryan's stepmother and her position of authority. The only way Dr. Naghibi could know about the stepmother being an MPP and Cabinet member was if Ryan told him this. There is no other evidence that could allow for the conclusion that Dr. Naghibi had another means to link Ryan to a stepmother who held a position of authority in the Provincial Government.

[130] There then followed two meetings with Dr. Naghibi that were recorded. One of the recordings was sent to Morina to be kept as she knew it could be important evidence if Dr. Naghibi was reported to the CPSO or a report was made to the police. It is extremely problematical that these recordings were surreptitiously recorded in the first place; but even more problematical is the fact that recordings of confessions made by Dr Naghibi to allegations of sexual assault were not tendered in evidence. If confessions of sexual impropriety existed, it is difficult to accept J.O.'s explanations as to why they no longer exist.

[131] The meeting at Starbucks and the third meeting resulted in money being paid by Dr. Naghibi ostensibly to assist J.O., in the costs she would incur for therapy and her time off work caused by what happened in Dr. Naghibi's clinic. There was no corroborative evidence tendered to suggest J.O paid anything for therapy nor was any corroborative evidence tendered reflecting any time away from J.O.'s workplace.

[132] At the third meeting a diagram was prepared that would have demonstrated what happened on September 11, 2012. The absence of the diagram was something J.O. realized could be important at trial as she specifically raised this as a concern in a meeting she had with the trial Crown in preparation for the trial. She offered as an explanation for its absence that it was only intended as a "teaching moment" for Dr Naghibi. It is particularly telling that Ryan acknowledged in his evidence that the third meeting with Dr. Naghibi was a memorable event, yet he made no mention of the diagram when he was interviewed by the police. Realizing the significance of the diagram and the third meeting it is difficult to reconcile Ryan's detailed recollection of the diagram at trial with the absence of any mention of the diagram in Ryan's police statement.

[133] I conclude my analysis with the acceptance of J.O.'s evidence that she had an honest perception that she had been the victim of a sexually inappropriate medical procedure. While I have no hesitation in coming to that conclusion it does not mean that the Crown has proven its case beyond a reasonable doubt. Nor does it mean that it must follow that the other evidence of J.O. is credible and reliable. This court must assess the whole of the evidence in its determination of whether the Crown has proven the case against Dr. Naghibi beyond a reasonable doubt.

[134] I have detailed aspects of the evidence of Dr. Naghibi that cause me to conclude that I can not believe the entirety of his evidence. While I am left with a reasonable doubt concerning the veracity of Dr. Naghibi's evidence there are too many material inconsistencies in the evidence of J.O., Ryan and Morina that I have detailed above to allow this court to arrive at a conclusion that their evidence looked at as a whole is credible and reliable. The absence of evidence is also very problematical. Audio recordings and a diagram that would have established beyond any doubt that Dr. Naghibi had confessed to wrongdoing speaks to concerns this court has about what happened after September 11, 2012.

[135] While it is this Court's conclusion that Dr. Naghibi had good reason to apologize for what might have been perceived by J.O. as a sexually inappropriate medical procedure I do not accept J.O.'s evidence that Dr. Naghibi undid his belt and ultimately ejaculated. According to Morina, J.O. told her that this is precisely what Dr. Naghibi did on September 11, 2012, yet there is no mention of this in Exhibit 5. A victim of sexual assault may very well not recall all the details of what happened. In this case J.O. gave a detailed explanation to Morina of Dr Naghibi ejaculating. Yet a few days later there is no mention in Exhibit 5 of something that clearly would make the events of September 11, 2012 sexual.

[136] It is beyond dispute that there was a touching of J.O. by Dr Naghibi. There would be no dispute that J.O. would not have consented to any touching that would have been sexual in nature. The Crown however has not met its onus of proving that Dr Naghibi touched J.O. in a manner that was objectively sexual in nature. To the contrary the Crown has established that J.O. honestly perceived that she had been touched in an inappropriate manner but that the rest of J.O.'s evidence was both lacking in credibility and reliability. The Crown on the whole of the evidence has not proven its case against Dr Naghibi to the high standard required.

[137] The Crown has failed to prove the case against Dr. Naghibi beyond a reasonable doubt. An acquittal shall be entered on the indictment.

Justice M.L. Edwards, R.S.J.

Released: September 9, 2025

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.