ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
K. Wilcox, for the Crown
- and -
WYCLYFFE BAIRD a.k.a. WYCLIFFE BAIRD
J. Makepeace and D. Humphrey, for the Accused
HEARD: November 12, 13, 14, 18, 2023
REASONS FOR JUDGMENT
Dennison J.
Overview
1The accused, Dr. Baird, is charged with two counts of sexual assault and two counts of uttering threats that are alleged to have occurred between 2012 and 2021. He was the complainant’s doctor at the time of the first alleged sexual assault. The complainant disclosed the allegations to her counsellor in 2022 and reported the matter to the College of Physicians and Surgeons (“the College”) at that time. She reported the matter to the police in 2023.
2The defence submits that the complainant is not credible or reliable. The defence submits that the complainant has a strong motive to fabricate the allegations because she extorted Dr. Baird that if he did not pay her money, she would falsely accuse him of sexual assault. When he stopped making payments, she tried to convince him to recommence the payments and when that did not work, she reported him to the College anonymously at first and finally made a complaint to the police.
3This case turns on the credibility and reliability of the complainant’s evidence as she was the only witness at the trial. If I accept her evidence beyond a reasonable doubt that the sexual assaults and threats occurred, the parties agree that the offences have been proven.
4Ultimately, I am not satisfied beyond a reasonable doubt that Dr. Baird is guilty of any of the offences. In explaining why I find Dr. Baird not guilty of any of the offences, I will begin with a review of the complainant’s evidence. I will then outline the legal principles I applied in assessing the complainant’s evidence. Finally, I will assess the credibility and reliability of the complainant’s evidence as it relates to the motive to fabricate and then more specifically as it relates to each offence.
Evidence of the complainant
1. Sexual assault at Dr. Baird’s office
5The complainant testified that Dr. Baird had been her family doctor and her children’s family doctor for several years prior to 2012.
6In July 2012, she attended Dr. Baird’s office to have immunization paperwork completed because she was attending Humber College in September to become a registered practical nurse.
7The complainant testified that she attended Dr. Baird’s office on three occasions to have the form completed. She testified that on the first visit he told her to take off all her clothes. She said she found this strange, but he was her doctor, so she did as he said. She stated that he asked how she was feeling and that he was going to do an assessment. He touched her tummy when she was lying down and asked her to pull up the gown and continued with one hand on the tummy. He put on gloves and then penetrated her vagina with two fingers. She testified that she told him that she did not know that kind of examination was required for a school form, and he said “yes.” His fingers were in her vagina for 30 seconds to a minute. She did not communicate that she wanted him to touch her in that way.
8The complainant testified that after Dr. Baird touched her, he said she could get dressed and he left the room. He then came back in and told her to book another appointment. She did not recall having any injections on the first visit.
9In cross-examination, the complainant agreed that she had completed a previous immunization form for George Brown College with another doctor and she did not recall a physical examination, although she recalled that doctor taking her vital signs. She agreed that she expected a similar process from Dr. Baird. She stated that she did not look at the form to see what was required to be completed.
10The complainant stated that at the next appointment, Dr. Baird told her to take off her clothes and she told him that he did the bottom part the last time, so she only removed her shirt, which he said was okay. He listened to her chest and took her temperature. She testified that she gave no thought to the fact that he did a breast examination for an immunization form. She said she was not entirely sure it was wrong. A part of her thought something was off. She said he also checked her heart with a stethoscope, and she believed she received some injections. She stated that there was a third visit that did not involve taking off her clothes. She believed on the third visit she had the TB test and a few injections. She did not recall any other visits.
11The complainant identified the Humber College form. She agreed that the form indicated there were seven visits, but she only recalled three. The visits were on July 13, 16, 17, 30 and 31, and August 2 and 30, 2012. She agreed that she saw another doctor to complete the second part of the TB test because she was completing her CPR course and did not have time to get back to Dr. Baird’s office. This was on July 19, 2012. She agreed that there is a stamp on the form from that doctor and she agreed it was possible that she kept the form after seeing Dr. Baird at each appointment.
12Counsel for Dr. Baird suggested that on July 17, 2012, the complainant brought up wanting a reversal of her tubal ligation because of discomfort in the abdomen. She agreed that she talked to Dr. Baird about this issue but was not sure when. She also agreed that what Dr. Baird did to her on the first visit was a bimanual exam and that she was familiar with this type of exam.
13The accused and complainant continued to be friends afterwards and she found a new doctor. She stated that she learned that the internal examination was improper in 2013 or 2014 when she worked as a community nurse.
2. Sexual assault at his condominium
14The complainant testified that between 2016 and 2018 she and Dr. Baird had a beautiful friendship. They talked on the phone and exchanged gifts. She only went to his condominium once during that period to help him set up a bed in a bag.
15The complainant testified that in February 2018, three or four days after Valentine’s Day, Dr. Baird told her to come to his condominium so they could meet and talk about starting a nursing agency. During cross-examination she stated that they met about the nursing agency, and he suggested watching a movie if they had enough time. The complainant stated that she did not review her complaint to the College or her statement to the College. She agreed that in her complaint to the College she stated that they were on the phone, and he suggested that she visit his condominium so they could hang out and watch a movie like they used to. She also agreed that in her statement to the College she said she was going over to watch a movie and there was no mention of any business discussion. She testified that when she gave her statement to the College there was a lot she did not remember, and she was emotional and scared. The complainant also agreed that when she spoke to the police, she mentioned the nursing agency but did not mention watching a movie.
16The complainant testified that she went to Dr. Baird’s condominium, and he answered the door with a glass of wine in his hand for her. He hugged her and she took a sip of the wine and said cheers. They then went to the kitchen and had some fruit. She had no concerns at that time.
17After that she remembers very little. She stated that she woke up for a few seconds and realized that she was on her back in his bed and could not move her hands and feet and she saw him on top of her having intercourse with her.
18She stated that she then recalled waking up at 8:30 in his bed naked. She knew the time because there was an alarm clock in the room. Dr. Baird exited the bathroom wearing his boxer shorts. He put his hands on the bed and spontaneously stated, “I thought you would never have sex with me, how come you did last night?” She stared at him, and he gave her her clothes. She did not recall asking him any questions. She went to the washroom and put her clothes on. She stated that she felt a little lightheaded and had some vaginal discomfort. When she went to the bathroom she saw some blood. He asked her to go to breakfast and she said no. The complainant testified that she grabbed her handbag and left. She stated that she was sure that she did not go down the elevator with him. Dr. Baird’s counsel showed the complainant her statement to the College where she stated that they went down in the elevator together. She then stated that she did not remember if she went down in the elevator with him.
19The complainant testified that she went to her car and cried. She stated that she sat in her car for about an hour and then drove home. She took the backroads home because she felt lightheaded, but she felt fine to drive. She did not recall if she saw her daughters that day. She had a shower. She did not go the hospital to get tested for drugs in her system. She stated that she was numb and ashamed.
20The complainant stated that she returned Dr. Baird’s call later that day and asked him if he got her pregnant. She stated that she asked this because he was the one who raped her, and he would know if he used a condom. She was concerned that she may be pregnant. While she had a tubal ligation, she was in some discomfort, so she was not sure if she could get pregnant.
3. February to September 2018
21The complainant testified that she continued her friendship with Dr. Baird but for a couple of months the communication was less frequent, and they did not spend time together. She said it returned to regular communication after a couple of months. She did not mention what happened at the condominium. She testified that she wanted to set a tone that “he knows that I know without saying it.”
22The complainant testified that the communications were less friendly and positive because she knew what he did, but she also agreed that she sent him inspirational images and pornography. She stated that it was her regular practice to send images of this nature to her friends. She claimed that she did not read some of the inspirational messages before sending them.
23Counsel showed the complainant a WhatsApp message dated September 2, 2018, where Dr. Baird asked if she was around today, and she said, “no”. She stated that at this time she was not spending time with Dr. Baird but did not know what this message referred to.
4. Meetings in October 2018
24The complainant testified that in October 2018 she told Dr. Baird, “I know you drugged and raped me.” She did not recall if this initial confrontation was in person or by telephone.
25She testified that she did not remember Dr. Baird’s reaction other than to suggest that they meet to talk. In her statement to the College, she stated that Dr. Baird immediately denied the allegation.
26In examination in chief, the complainant testified that the first meeting was in the parking lot of a Tim Horton’s. She wanted to talk to him about what he did to her. She stated that they sat in the parking lot in their own cars and talked through the driver windows for two hours. She stated that she told him that she could not pay for counselling herself and that he should help pay for counselling because of what he did. He said that they should meet at his condominium because it was cold.
27The complainant testified that her main concern was to get help, and she wanted him to pay for counselling. She agreed that she investigated counselling beforehand. She stated that she did not say how much it would cost.
28She agreed to go to his condominium and took her own water. This was in either October or November 2018. She did not tell anyone that she was visiting Dr. Baird. She arrived in the evening, and they sat in the solarium until 4:30 or 6:30 in the morning talking about counselling. She told him that he had to pay for her counselling. He said he did not want to be involved, and said he would not give her his credit card to pay for her counselling as “it would mash me up and no one will mash me up and get away with it.” Counsel showed the complainant her statement to the College where she stated that the threat happened at the end of the meeting when she told Dr. Baird, “I will have to report you to the authorities.” At trial, the complainant maintained that Dr. Baird threatened her when she suggested he use his credit card to pay for her counselling.
29In her statement to the College and to the police, the complainant stated that the first meeting occurred at Dr. Baird’s condominium. When confronted with this inconsistency, the complainant stated that she did not recall where the first meeting occurred.
30The complainant also told police that the threat occurred during the meeting in the parking lot. She explained that she got confused with the two locations given that the conversations were close in time but maintained that Dr. Baird made the threat at the condominium.
31In cross-examination, the complainant agreed that she told police that she confronted Dr. Baird and suggested to him that he had put weed in her drink. She was not sure if it was the first or second meeting or if it could have been on the phone. She did not mention this in her evidence in chief.
32In cross-examination counsel suggested to the complainant that she told the College that the discussion of counselling occurred in early 2019. She stated that the issue of counselling came up at the meeting in the condominium in 2018. She was 100 percent sure.
5. November 2018 onwards
33The complainant testified that after the threat there was a brief pause in communication with Dr. Baird for about one week. She stated that she tried to make things appear normal so that she knew what Dr. Baird was up to. She stated that Dr. Baird would show up at her house sometimes, but she did not attend his condominium.
6. Money for counselling
34The complainant testified that Dr. Baird gave her $4,000 for counselling. The money was in cash. She stated that they agreed that he would pay her monthly. The complainant testified that Dr. Baird provided four $1,000 payments to her. In examination in chief, she testified she received all the counselling money in 2021. She also testified that she received some money from Dr. Baird in 2019 to pay for a gym membership and workout gear. She stated that he refused to pay for counselling but agreed to pay for exercise in 2019.
35The complainant testified that Dr. Baird’s friend Charles dropped off at least one of the payments. The complainant also testified that she once picked up a payment from the front desk at Dr. Baird’s condominium. The complainant also stated that her daughter saw Dr. Baird drop off money. She did not recall what reason she gave to her daughter for Dr. Baird dropping off money, but she did not tell her daughter it was for counselling or that he had raped her.
36The complainant testified that she found a counsellor in 2018 before she went to his condominium and knew that the counsellor charged $180 to $200 per session. She hoped to have counselling at least once a week. She agreed that she could have had twenty sessions of counselling with the $4,000. She agreed that she did not use the money he gave her for counselling. She stated that she did not start counselling because he was inconsistent in paying her and she did not want to stop and start so she kept the cash to give it back to him.
37In examination in chief the complainant stated that Dr. Baird missed the payment for the second month and then gave her a payment in the third month. He paid whenever he felt like it. She stated that he made four payments, and the payments stopped in June or July 2021, but she did not know the exact date.
38In cross-examination, the complainant agreed that she told the College that she did not get any payments until 2021. She did not remember if she received any payments in 2020.
39Several text and WhatsApp messages and voice mails were presented to the complainant that the defence submits show that the complainant was extorting Dr. Baird and that the payments were made well before 2021. There was no issue that these messages were admissible. They were obtained from Dr. Baird’s phone forensically and were found admissible pursuant to s. 278.92 of the Criminal Code by Justice LeMay in a pretrial application.
40On January 11, 2019, at 11:09 p.m., the complainant sent over thirty pornographic messages to Dr. Baird. She stated that she sent those messages because she keeps her friends close but her enemies closer and she wanted to know what he was thinking.
41On February 2, 2019, Dr. Baird sent a text saying he would see her in the next couple of days. She responded with kissing emojis. She testified that she was not sure whether he was communicating that he was coming to her house, or that he was coming back from St. Kitts. She stated that this message had nothing to do with any cash payments.
42On May 1, 2019, the complainant texted Dr. Baird, “R u here next Monday” and he responded, “yes”. She did not recall what this message related to. She stated that she could have been attending at his office for a TB test or shot. She stated that she may still have been attending walk in visits at this time. She denied that this message had anything to do with cash payments.
43On June 27, 2019, Dr. Baird sent a message to the complainant stating that he just left for St. Kitts and would not be back until July 5th, and stated, “hope you can wait.” The complainant did not know what the message referred to but stated that it did not relate to cash payments.
44On September 20, 2019, the complainant sent Dr. Baird four pornographic videos at 7:16 p.m. and he did not respond. She sent him a message at 7:48 p.m. telling him how much she loved him and how caring he is. He did not respond. The complainant then sent three texts saying “really.” The complainant denied that she was trying to get Dr. Baird to respond to her messages.
45On December 30, 2019, Dr. Baird sent a message that said, “there is an envelope at the front desk addressed to you. Please pick it up and let me know that you have received the same.” She advised that she received it on the same date. The complainant testified that there was only one time where she picked up a payment from the front desk of Dr. Baird’s condominium but denied that this message was in relation to a cash payment.
46On April 8, 2020, the complainant sent a message saying, “when are you dropping by” and he said, “tomorrow”. The complainant could not recall what the messages referred to and disagreed with the suggestion that they were about cash payments.
47On June 8, 2020, Dr. Baird sent a message to the complainant that said, “see you tomorrow”. The complainant did not recall what the message referred to but stated that it was not in relation to a cash payment.
48On September 12, 2020, the complainant left a voice message on Dr. Baird’s phone where she asked if he was still paying up to December or if he was finished in September. The complainant stated that the messages did not say what this was about, and it could be in relation to anything.
49On October 13, 2020, the complainant sent a message to Dr. Baird that stated, “thought u said, u going to pa counselling until December, so I should not get the Authority involved yet.” Dr. Baird responded, “I did say that.” She responded “U have been paying for a while. U must know when to drop off payment by now.” The complainant stated that she did not recall this communication and denied that they referred to Dr. Baird making regular cash payments. She also denied that she threatened to get the authorities involved if he did not make payments. She stated that maybe she was mixing up 2020 with 2021 and that maybe she did receive payments, albeit not regular payments, in 2020. She stated that she did not receive thousands of dollars. She may have received some payments in 2020, but it would be part of the $4,000 she already testified about.
50On April 19, 2021, Dr. Baird sent a text asking if she was working tomorrow. She responded, “evening” and “coming in the morning.” The complainant agreed that she received cash payments in April 2021 but did not agree that this message was asking if Dr. Baird could drop off a payment. She did not indicate what the messages were in relation to.
51On June 18, 2021, Dr. Baird sent a message saying, “I will see you today”. The complainant testified that she did not know if this was in relation to a cash payment. It could be anything.
52On August 27, 2021, Dr. Baird sent a message at 4:15 p.m. that said, “see you this weekend”. The complainant testified that she did not understand that this message indicated that Dr. Baird was dropping off a cash payment. The complainant then left a voice message at 4:16 p.m. where she stated that she was not home this weekend and “not only that you are a month behind… a whole month behind, so I have to find it all. And um, I’m not liking it very much. You move from the first week, say the 15th and then it’s the last week. I’m not liking it all. I can’t afford it.” The complainant agreed that she was asking Dr. Baird to pay her $1000 a month. She stated that she had only received one payment by this time. She believed this referred to the second payment.
53On September 15, 2021, the complainant sent the following message: “if yu did not offer to pay counselling, I would have gotten the law involved, however, its not too late. After all I’m the victim. I’m sure others will come forward after your face goes to TV.” Dr. Baird responded that “I do not appreciate your blackmail and threats.”
54On October 6, 2021, the complainant left a voice message in which she stated that Dr. Baird had not given her any money for counselling since August or September. She stated that she was wondering if she should cancel the counselling sessions. She stated that he was not returning her calls and that she would try to see him at the office. The complainant agreed that she had not taken any counselling sessions by this time.
7. Threat outside the office
55In October or November 2021, the complainant saw Dr. Baird outside of his office. The complainant denied that she waited for Dr. Baird and stated that she was at the Money Mart. She agreed this is different than what she told the College. She told the College that she waited for Dr. Baird in the parking lot and wanted to see him.
56The complainant testified that Dr. Baird told her about his upcoming eye surgery and his fear of being put to sleep. The complainant testified that she said to him that he must sign a form for them to put him to sleep and some people do not get that chance. He stared at her and then said to her, “the guys that I know will find you where you go.” She stated that after he said it the first time, she said, “what did you say?” and Dr. Baird made the threat again. She immediately left and was very scared.
57The complainant stated that she did not threaten to report Dr. Baird to the police. However, she agreed that she told the College that Dr. Baird made the threat after she told him, “its time for me to report you to the authority now.” She stated that she had no memory of saying that.
58The complainant testified that she was terrified and left town that same evening and went to the London area. After counsel showed the complainant her statement to the College, she agreed that she told the College that she left sometime later, after she found a job and arranged for accommodation in London.
59On October 13, 2021, the complainant left a voice message for Dr. Baird where she said she was sorry for cursing him out and that she could have handled it better. She stated, “You know that I Iive paycheck to paycheck so you changing it from the 1st to the 15th and then to the end of the month, you know I have to pay by myself and that’s hard.” The complainant did not know when she left this message. She stated that she may have cursed him for drugging and raping her and then not helping her through it. She denied that she wanted Dr. Baird to resume the $1,000 payments.
60On October 13, 2021, the complainant also sent a text message to Dr. Baird where she stated “I am sorry I curse u out. Was frustrated, cannot afford to pay it. Which u would not change the date so much.” The complainant testified that she did not know if this message was in relation to the payments.
61On November 12, 2021, the complainant sent a message to Dr. Baird that said, “Im seeing Halperin for some pills. If u notice him looking at you funny, u know why.” She stated that she did not know if she might tell Dr. Halperin that Dr. Baird drugged and sexually assaulted her. She stated that she did not know why she sent this text.
8. Reporting to the College
62The complainant testified that on March 2, 2022, she told her counsellor in London that Dr. Baird sexually assaulted her. The counsellor said she had a mandatory obligation to report the matter to the College. The complainant testified that she was not aware that the counsellor had to make a report to the College until the counsellor told her. Initially, the complainant asked not to be named.
63The complainant eventually spoke with the College and attended for an interview on May 11, 2022. She also filled in a complaint form and provided some emails and photographs including a copy of the immunization form.
64The complainant agreed that the College told her that in Dr. Baird’s response, he said she had extorted him for money. She agreed that she had a further interview with the College on July 21, 2023.
65On December 4, 2023, the complainant reported the matter to the police. She testified that she reported the matter to the police at that time as she moved back to her home in Mississauga and was still afraid of what Dr. Baird may do to her. In cross-examination she testified that while she lived in London, she returned to her home in Mississauga one weekend a month to see her daughters.
Guiding legal principles
66Dr. Baird is presumed innocent. It is the Crown’s onus to demonstrate beyond a reasonable doubt that he is guilty of each of the offences for which he is charged. That onus never shifts.
67The standard of proof beyond a reasonable doubt is exacting. It is more than probable or likely guilt and falls much closer to absolute certainty than it does to proof on a balance of probabilities. Ultimately, I can only find Dr. Baird guilty if I am sure that he committed each offence charged.
68In assessing the complainant’s evidence, the court considers the complainant’s credibility and reliability. These are two separate concepts. Credibility is concerned with whether the complainant is telling the truth. Reliability is concerned with whether the complainant is an accurate historian.
69The demeanour of the witness, standing alone, is of limited value as an indicator of credibility: R. v. J.L., 2022 ONCA 271, at para. 6; R. v. G.M.C., 2022 ONCA 2, at para. 68.
70A helpful way to assess credibility and reliability of a witness is to consider the consistency of the witness’ evidence at trial as compared to what they said on other occasions. There may be inconsistencies within a witness’ evidence at trial, or inconsistencies with respect to what a witness said at trial and on another occasion. Inconsistencies may also emerge from the omission of certain events on one occasion while referring to them on other occasions. Any reasons provided for the inconsistencies may assist in assessing the witness’ credibility. Inconsistencies vary in nature and importance. Some inconsistencies may relate to material issues while others relate to peripheral matters.
71The court is entitled to apply common sense in assessing the credibility and reliability of the complainant’s evidence. The court must not rely on any assumptions or stereotypes as to how a sexual assault complainant should or does behave in assessing their credibility: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634. It is important to remember that there is no rule on how a person who has been sexually assaulted will act after the incident or when and if they will complain about what occurred. There are many reasons why a complainant may delay reporting. There may also be reasons for why a complainant continues to have contact with their abuser. Therefore, delayed reporting or the fact that a complainant continued to have contact with the accused, standing alone, cannot undermine their credibility. However, the court can consider the delay in reporting when assessing the credibility of the complainant where the timing of the disclosure supports a defence argument that the complainant had an alleged motive to fabricate. In addition, where a complainant testified that they avoided contact with the accused, but other evidence suggests otherwise, that is relevant in assessing the credibility of the complainant: R. v. J.W., 2025 ONCA 637, at paras. 28-29.
Analysis
72I will now explain my concerns with the complainant’s evidence which leaves me with a reasonable doubt that Dr. Baird committed the offences.
1. Motive to fabricate
73The Crown and defence paint very different pictures of the relationship between the complainant and Dr. Baird. Counsel for Dr. Baird submits that the complainant extorted Dr. Baird by threatening to tell the authorities that he sexually assaulted her when that did not happen. Counsel submits that Dr. Baird paid her money on more than four occasions because he did not want to risk losing his physician’s licence. Eventually he stopped paying and the complainant continued to threaten him so that he would resume the payments, but he did not respond. The complainant then told a counsellor who stated that the matter would be reported to the College and the complainant requested that she not be named. Counsel submits that this put further pressure on Dr. Baird to resume the payments because the College could not prosecute him for an unknown complainant, but he would know who the complainant was. By May 2022, the complainant decided to provide a statement to the College. By this time, the payments had stopped, and it was clear they would not resume. The complainant then learned that Dr. Baird told the College that she had extorted him, and she ultimately reported him to the police in December 2023.
74The Crown submits there was an extreme power imbalance between Dr. Baird and the complainant. She was initially his patient, and he was her doctor. The Crown submits that the complainant simply wanted Dr. Baird to pay for counseling because he sexually assaulted her. The Crown submits that there is no motive to fabricate particularly as it relates to the sexual assault in 2012 because this was years before any payments were made. The Crown also submits that the fact that she did not embellish her evidence about the extent of the sexual assault undermines the motive to fabricate.
75The Crown concedes that the events of what occurred after the sexual assault in 2018 are challenging but submits that ultimately her conduct should not undermine her credibility. Crown counsel further submits that her testimony about the payments was unembellished and certainly there were more steps the complainant could have taken to extort Dr. Baird. The Crown submits that the fact the complainant told Dr. Baird that if he did not pay for her counselling, she would go to the police does not in and of itself mean that she is lying. In addition, there is a significant delay between the last payment she received in August 2021 and her reporting the matter to the police on December 4, 2023, which undermines the motive to fabricate argument. The Crown submits that it makes sense that the complainant reported the matter to the police in 2023 because that was when she decided to move back to Mississauga, and she wanted the protection of the police because she was fearful of Dr. Baird.
76The presence of an apparent motive to fabricate may assist in assessing the complainant’s credibility in that it may demonstrate that she has a reason to lie about the allegations. The defence has no onus to demonstrate a motive to fabricate and the absence of evidence of a motive to fabricate does not mean there was not one. The absence of a motive to fabricate does not establish that the complainant is telling the truth. On the other hand, even if the complainant has a motive to fabricate that does not mean that she is in fact lying. Evidence of a motive to fabricate is one of the factors for the court to consider in assessing the complainant’s credibility: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at paras. 120-121; R. v. Polemidiotis, 2024 ONCA 905, 174 O.R. (3d) 359, at paras. 60-62.
77The court may consider a lack of embellishment in assessing whether the complainant had a motive to lie. However, the lack of embellishment cannot be used to bolster the complainant’s credibility— it simply does not weigh against it: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 5.
78I find that the complainant had an apparent motive to fabricate the allegations before the court, particularly the allegations from 2018 onwards. I find that she received more than $4,000, and that she threatened to report Dr. Baird to the authorities if he did not pay. The complainant’s evidence with respect to these payments undermines her overall credibility for the following reasons.
79First, the complainant testified that she wanted counselling and that she received $4,000 from Dr. Baird for that purpose yet she did not attend any counselling sessions until after Dr. Baird stopped making the payments. The $4,000 the complainant said she received would have paid for 20 to 22 counselling sessions as she testified that each session cost between $180 to $200. The reason she provided for not seeking counselling was that she wanted to attend counselling once a week, and Dr. Baird did not pay regularly so she did not want to start. This reasoning does not make sense. The complainant stated that she desperately wanted counselling because Dr. Baird sexually assaulted her, and she could have started counselling with the money she received even if she did not go weekly; one would think that some counselling is better than no counselling. It also seems odd that she only commenced counselling approximately six months after the payments stopped.
80Second, she sent text messages to Dr. Baird that were intended to leave the impression that she was obtaining counselling when in fact she was not. For example, in the text message on October 6, 2020, she asked Dr. Baird if she should terminate the counselling. In re-examination she stated that she meant that she was to start counselling in a month or two. Her explanation for the text messages is not credible.
81Third, the complainant’s evidence that she did not threaten to report Dr. Baird to the authorities was contradicted by several messages.
82For example, on October 13, 2020, the complainant sent a text message to Dr. Baird that said, “thought u said u going to pa counselling until December, so I should not get the Authority involved yet.” Dr. Baird’s response was, “I did say that.” When confronted with this text, the complainant stated that she did not recall these communications and denied that they referred to Dr. Baird making regular cash payments. She testified that Dr. Baird must have said something to have prompted her to make that comment. However, the prior text communication with Dr. Baird was a month earlier in September 2020 and there was nothing controversial in that communication.
83On September 15, 2021, the complainant sent a voice message saying “if u did not offer to pay counselling, I would have gotten law involved, however it is not too late. After all I am the victim. I’m sure others will come forward after your face goes on TV.”
84Finally on November 12, 2021, she sent a text saying, “Im seeing Halperin for some pills. If u notice him looking at u funny, u know why.” The complainant disagreed that she was trying to rattle Dr. Baird into resuming the payments. These text messages suggest the exact opposite—that the payment of money is directly tied to her not reporting that Dr. Baird sexually assaulted her.
85Fourth, I do not accept the complainant’s evidence that Dr. Baird only paid her on four occasions for a total of $4,000. While I agree with the Crown that there is no banking evidence about any payments, the court can reasonably infer from the messages sent by the complainant that there were more than four payments made from at least December 2019 to August 2021 and that the payments were to be made monthly, but Dr. Baird was often late in making the payments. In assessing the complainant’s evidence regarding the payments, I find that she was defensive and evasive when confronted with various messages that contradicted her evidence, which further undermines her credibility.
86For example, on December 30, 2019, Dr. Baird sent a text saying there was an envelope for her to pick up at the front desk at his condominium. The complainant testified that this text did not relate to Dr. Baird providing a cash payment. She stated the payment occurred in the summer, not in December. She previously testified that there was only one time where she picked up the payment at his condominium. She did not offer any explanation for what she picked up at the condominium in December. It is reasonable to infer that she picked up a payment given her earlier evidence.
87On September 12, 2020, the complainant sent a voice message to Dr. Baird asking, “if you’re still paying up to December or are you finished now September.” The complainant testified that this voice message did not confirm regular payments in 2020. She stated that the message did not say what it was related to and claimed it could be related to “anything else.” The only reasonable inference to be drawn based on the evidence before the court is that she was speaking about payments Dr. Baird made to her.
88On October 13, 2020, the complainant sent texts saying ”thought u said, u going to pa counselling until December”… “u have been paying for a while. U must know when to drop off the payments by now.” The complainant denied that this text referred to regular cash payments being made. From this text one can readily infer that there had been several payments prior to this date.
89In a voice mail to Dr. Baird dated August 27, 2021, the complainant stated, “you are a month behind. Its like is not a priority… A whole month behind, …. You move from the first week, say the 15th and then it’s the last week.” The complainant stated that “if the message related to the second month, say he gave me the money the first month, it could have been that I said that.” This explanation makes no sense given the message and the earlier messages.
90Finally, in a voice mail on October 13, 2021, the complainant stated, “I live from paycheck to paycheck and you changing it from the 1st to the 15th to the end of the month” and that she wished he would not change the date so much.
91All these texts undermine the complainant’s testimony that she only received four payments totalling $4,000. The texts suggest that she was receiving payments from the end of December 2019 up to September 2021 albeit not at the beginning of each month as was supposed to occur.
92Fifth, the complainant’s evidence about when she approached Dr. Baird to pay for counselling is inconsistent, as is the timing of when she said she received the payments. She testified at trial that she approached Dr. Baird for counselling in October 2018. She told the College that the issue of counselling was not raised until 2019. With respect to when she received the payments, the Crown concedes that the complainant had difficulties recalling when the payments were made. She stated that she did not get any payments until 2021 but later stated that she may have been confused with respect to the timing. When considered along with the number of messages and the complainant’s evidence that she only received four payments, her evidence about when she received the payments is more relevant in assessing her credibility than it otherwise might be.
93Sixth, I have difficulty accepting the complainant’s evidence that she sent Dr. Baird several inspirational and pornographic messages because she was trying to make sure he did not think that she was going to report him to the authorities. The nature and number of the texts went beyond what would have been reasonable to keep Dr. Baird thinking that she was not going to report him to the authorities. For example, she sent him numerous pornographic videos on January 11, 2019, and an over-the-top message expressing her love for him sent on September 20, 2019.
94Finally, the complainant testified that she went to the police in 2023 because she decided to move home, and she was still afraid of Dr. Baird. However, if she were truly afraid of Dr. Baird, one would have thought she would have gone to the police sooner given that she testified she came home to Mississauga for a weekend each month to see her children. Dr. Baird knew where she lived and as such could carry out his threats.
95I find that Dr. Baird made several payments to the complainant. Given the complainant’s evasive answers and inconsistencies regarding these payments, the court is left wondering if the complainant had a motive to fabricate the allegations and was in fact blackmailing Dr. Baird and using the money for her own purposes. After Dr. Baird stopped paying, the complainant continued to ask him to pay for a few more months and then made an anonymous complaint to the College where he would know who made the complaint. I recognize that she did not report him to police immediately after he stopped making the payments which somewhat diminishes the strength of the evidence of motive to fabricate, but the delay in reporting does not render the evidence of the motive to fabricate meaningless in assessing the complainant’s credibility, particularly as it relates to the offences from 2018 and onward.
96In considering whether the complainant had a motive to fabricate, I have also considered the Crown’s submission that the complainant did not embellish her allegations. With respect to the sexual assault in 2018, while the allegations could always have been worse, it was already described as a very serious sexual assault where the complainant believed she was drugged and vaginally sexually assaulted. With respect to the sexual assault in 2012, I agree the allegations could have been worse and have considered that in assessing the complainant’s motive to fabricate. I have determined that the court should give less weight to the motive to fabricate evidence in assessing the 2012 sexual assault offence.
97Evidence of an apparent motive to fabricate is one aspect of the evidence the court may consider in assessing the complainant’s credibility. I have other concerns with the credibility and reliability of the complainant’s evidence that leaves me with a reasonable doubt for each of the offences, which I will now outline.
2. Sexual Assault in 2012
98The Crown submits that there was a power imbalance between Dr. Baird and the complainant that made her vulnerable during the examination which explains why she did not do anything to stop the sexual assault. The Crown also submits that there were no major inconsistencies that undermined the credibility of her evidence and therefore the Crown has proven this offence beyond a reasonable doubt.
99I agree that there were no major inconsistencies in the complainant’s evidence with respect to the substance of the sexual assault that she alleges occurred in 2012. However, there are several inconsistencies in her evidence regarding her attendances at Dr. Baird’s office. When these inconsistencies are considered along with the more general credibility concerns, including her motive to fabricate, I am still not satisfied beyond a reasonable doubt that the sexual assault occurred.
100For example, the complainant testified that she went to see Dr. Baird on three occasions. She testified that the sexual assault occurred on the first visit. The immunization form shows that she visited Dr. Baird seven times. In addition, the complainant did not recall having a shot on the first occasion when the immunization form states that she had a shot on the first visit on July 13, 2012.
101It is also difficult to reconcile the complainant’s evidence that she did not look at the form beforehand or fully understand what was involved in completing the form and therefore did not really question Dr. Baird when he asked her to take off her clothes. There is strong evidence that she kept the form with her because she had her TB test conducted by another doctor during that timeframe, and she testified that a doctor previously had completed a similar form and there was no physical exam completed.
102In addition, the complainant agreed that she discussed a reversal of her tubal ligation with Dr. Baird due to discomfort. Counsel suggested to the complainant that the discussion about the tubal ligation was on the third visit, and she stated that she did not know. The complainant also agreed that in a bimanual exam the doctor places two fingers inside the vagina and the other hand on the abdomen. Given the long passage of time, the complainant may have conflated a visit where this occurred with another.
103Ultimately, the court is not satisfied beyond a reasonable doubt that Dr. Baird sexually assaulted the complainant in 2012.
3. Sexual Assault in 2018
104With respect to the sexual assault in 2018, the complainant testified that she believes Dr. Baird drugged and then sexually assaulted her in his condominium. Although not required to prove the offence, there is an absence of evidence that she was in fact drugged. There are several inconsistencies in the complainant’s evidence in addition to the motive to fabricate that leaves the court with a reasonable doubt that the sexual assault occurred.
105First, the complainant is inconsistent regarding the reason she went to Dr. Baird’s condominium on the day of the sexual assault. The complainant testified that for two years he had asked her over and she did not go except on one occasion because she did not want to encourage him.
106At trial, the complainant testified that she went to his condominium to discuss setting up a nursing agency with him. She admitted that Dr. Baird already had a nursing agency with another nurse. She told the College that she went to Dr. Baird’s because he suggested that they hang out and watch a movie like they used to. She did not mention any business component to the College. In her statement to the police, she did not mention the movie.
107Second, the complainant was inconsistent on what happened when she left the condominium. She testified that she wanted to get out of the condominium immediately and that she left alone. In cross-examination counsel asked her if they left together, and she said, “No,” and that, she was sure. Counsel then showed her statement to the College where she said they left together and when shown the inconsistency she said she did not remember.
108I recognize that there are no major inconsistencies with respect to the sexual assault itself. However, that is to be expected given that she blacked out and only remembered him on top of her. In the context of this case, I agree with the defence that the facts that bookend the sexual assault are important and would be more memorable to the complainant given that the complainant testified she was blacked out during the sexual assault, as opposed to having been awake during the sexual assault.
109When these inconsistencies are considered along with the more general credibility concerns regarding the motive to fabricate, I have a reasonable doubt that Dr. Baird sexually assaulted the complainant in 2018.
4. Threat in the fall of 2018
110With respect to the threat in 2018, there are several inconsistencies in the complainant’s evidence that leave the court with a reasonable doubt that the threat occurred.
111First, the complainant is inconsistent as to the order in which the meetings occurred. She testified at trial that the first meeting was in a parking lot at Tim Horton’s and the second meeting was at the condominium. She told the police that the first meeting was at the condominium. When confronted with this inconsistency the complainant said she did not recall where the first meeting occurred.
112Second, the complainant is inconsistent with respect to where Dr. Baird threatened her. At trial, the complainant testified that they were in the solarium at Dr. Baird’s condominium. The complainant told the police that Dr. Baird threatened her in the parking lot. Given that the complainant stated that she took the threat seriously, one would expect she would remember where the threat was made as they are very different locations. This is a significant inconsistency.
113Third, the complainant is also inconsistent as to what prompted the threat. She testified at trial that she told Dr. Baird to use his credit card to pay for counselling and he said he would not give her his credit card to pay for counselling as “it would mash me up and no one will mash me up and get away with it.” In cross-examination counsel suggested that Dr. Baird threatened her after she told Dr. Baird, “I have to report you to the authorities” and she responded that nothing like that happened. Counsel then showed the complainant her statement to the College where that is what she said. She then testified that she did not remember saying that. This is also a significant inconsistency.
114Fourth, it is difficult to accept the complainant’s evidence that she talked to Dr. Baird at the condominium for over eight hours about counselling when she did not recall any further details of the conversations.
115Having considered all the evidence, I am not satisfied beyond a reasonable doubt that Dr. Baird threatened the complainant in 2018.
5. Threat in 2021
116I am also not satisfied that Dr. Baird threatened the complainant in 2021. I have concerns about the credibility of her evidence for the following reasons.
117First, the complainant testified in chief that she saw Dr. Baird outside his office. In cross-examination when counsel suggested to the complainant that she had waited in the parking lot, she said, “that did not happen” and that she was not looking for an opportunity to see him. However, she told the College, she “kinda waited though, you know that is the time he left work.”
118Second, the complainant’s evidence is inconsistent as to what prompted the threat. In examination in chief the complainant testified that what prompted the threat was when she told Dr. Baird that when he had his surgery he would get to consent to being drugged and that she did not have that opportunity, suggesting that Dr. Baird drugged her when he sexually assaulted her in 2018. In her statement to the College, she stated that she told him that it was time for her to report him and then he made the threat. This is a significant inconsistency.
119Third, the complainant testified that she did not discuss counselling or payments at this meeting. She also said she did not curse out Dr. Baird. However, the complainant left a voice message dated October 13, 2021 where she apologized for cursing him out, and stated that she was living from paycheque to paycheque and him changing when he paid from the 1st to the 15th to the end of the month was hard on her because she had to pay interest on her credit card, so she was frustrated. These messages suggest that the complainant did curse him out and that the conversation was about money and that she was still hoping that he would continue to pay.
120Fourth, the threat that the complainant alleges Dr. Baird made also seems strange and implausible. The complainant testified that Dr. Baird said, “the guys I know will find you wherever you go.” There is no evidence that she told Dr. Baird she was moving or running away. It would have made more sense for Dr. Baird to have threatened to hurt her or say I know where you live. It does not make as much sense for him to threaten that he would find her wherever she went.
121Fifth, the complainant is also inconsistent in her evidence as to what happened after the threat. She testified at trial that she was so fearful that she drove home and packed what she could and drove to London that same night. However, she told the College that she went home and wanted to leave and run away but she had kids who were young, and they lived with her. She found a job and then went to London. In other words, her leaving for London was not as immediate as she testified to at trial.
122Another concern that the court has is with respect to the complainant’s answer as to why she went to the police in 2023 as discussed above. She stated that it was because she was moving home, and she was afraid of Dr. Baird. However, she also testified that she came home every month for a weekend to be with her kids at her home and in fact she ran into him at a West Indian market. Dr. Baird knew where she lived.
123Given the motive to fabricate and the other inconsistencies in the complainant’s evidence, I am not satisfied beyond a reasonable doubt that Dr. Baird threatened the complainant in 2021.
Conclusion
124For the reasons outlined above the court is not sure if Dr. Baird sexually assaulted or threatened the complainant and therefore the court must acquit Dr. Baird of all charges.
Dennison J.
Released: January 29, 2026