



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sanchez, 2017 ONCA 994

DATE: 20171218

DOCKET: C61682

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arturo Sanchez

Appellant

David M. Humphrey and Jill D. Makepeace, for the
    appellant

Christine Tier, for the respondent

Heard: November 29, 2017

On appeal from the conviction entered on December 7, 2015
    and the sentence imposed on March 30, 2016 by Justice Nancy Backhouse of the Superior
    Court of Justice, sitting without a jury.

CRIMINAL  Historical sex offences  Misapprehension
    of evidence

Nordheimer J.A.:


[1]

The appellant is a pediatrician who was charged with five counts of
    indecent assault, two counts of sexual assault and one count of sexual
    interference.  The charges span a period from 1964 to 2013 and involve six
    former female patients.  The appellant was 81 years old at the time of trial.

[2]

The appellants trial proceeded before a judge alone.  At the end of the
    trial, the appellant was convicted of three counts of indecent assault.  He was
    found not guilty of all other charges.  Two of the convictions related to the
    complainant, L.H., and one related to the complainant, L.C.  The events
    relating to L.H. occurred in 1964 and 1965 and the events relating to L.C.
    occurred in 1980.

[3]

On March 30, 2016, the appellant was sentenced to 15 months imprisonment
    in relation to the convictions for indecent assault on L.H., consecutive to
    three months imprisonment in relation to the indecent assault on L.C.  The
    appellant appeals both his conviction and his sentence.

Background Facts

(i)       L.H.

[4]

L.H. was hospitalized at the Hospital for Sick Children (HSC) on two
    occasions when she was a teenager.  On the first occasion, she was 14 and on
    the second occasion, she was 15.

[5]

The appellant was a senior associate resident in pediatrics at HSC from
    July 1, 1964 to June 30, 1965. He was responsible for supervising interns over
    an assigned patient load, and he made daily rounds with the interns, other
    residents and staff physicians. The appellant had direct interaction with
    patients, including conducting physical examinations.

[6]

The appellant gave evidence at his trial. He had no recollection of L.H.
    However, based on her medical records, the appellant said that he had a single
    interaction with her on September 2, 1964. The appellants signature also
    appeared on the discharge report of Dr. Singer, which was dated September 9,
    1964.  The appellant acknowledged that he signed the discharge report on behalf
    of Dr. Singer, and corrected a typographical error in the report. The appellant
    did acknowledge that he might have had interactions with L.H. as he went about
    his rounds as he is generally friendly and talkative.

[7]

In contrast, L.H. specifically remembered the appellant. She recalled
    that he was an intern during her two admissions to the HSC. She gave evidence
    that her first impression was that the appellant was very attractive, Hispanic
    looking, with dark hair. L.H. remembered the appellant as being from Mexico or
    Colombia. He told her a lot about his lifestyle, which was very interesting to
    her. She recalled that he was married.

[8]

L.H. said that the appellant had started touching her breasts and her
    pubic area, over her clothes. She felt uncomfortable and squirmed, but he said
    that it was necessary. She recalled this happening in an examination room, on
    the same floor as her room. She gave evidence that the interns would escort the
    patients to the examination room. No one else was in the room with her and the appellant.
    She said that the breast touching also happened in her hospital bed.

[9]

L.H. said that during her first hospital stay, the appellant touched her
    breasts five or six times. Sometimes her breasts were touched under her
    clothes, but she could not say whether that occurred during the first
    admission. She said that she did not have any health issues with her breasts
    and that none of her other physicians touched her breasts.

[10]

L.H. gave evidence that during her first hospital admission, the appellant
    touched her pubic area with his fingers and his hand. She said that this
    happened mainly in the examination room when no one else was present. She also
    said that the appellant inserted his fingers inside her vagina, causing her to
    feel afraid and uncomfortable. No other physician touched her in the area of
    her vagina and she had no health issues respecting her vagina. L.H. gave
    evidence that during her second admission to HSC, she continued to see the appellant
    and this type of touching continued.

[11]

With respect to examinations of patients, the appellant gave evidence
    that these usually occurred in the patients own bed. Curtains were wrapped
    around the beds for privacy. In some circumstances, examinations would occur in
    the examination rooms, which were equipped with the instruments commonly used
    during examinations. There were no such instruments in the patients rooms.
    When taken to an examination room, the patient was accompanied by a nurse, who
    always remained in the room to assist. The appellant explained that all
    physical examinations or any notable observations during rounds should have
    been recorded on the patients chart.

[12]

The appellant denied that he ever took L.H. into an examination room alone
    or the interns room, as she alleged. He further denied that he ever performed
    an internal examination of the vaginal area of any patient at the HSC while he
    was a pediatric resident, or ever in his career as a pediatrician. He explained
    that those types of exams would only be done by a specialist.

[13]

In addition to the allegations of improper touching, there was one
    specific incident that L.H. recounted. L.H. said that, in the middle of the
    night, when she was sleeping in her bed on the ward, the appellant woke her
    saying that he had to examine her right away. She did not recall anyone else
    being around at the time. She gave evidence that the appellant started
    examining her pubic area with his hand. She claimed that he put his leg over her
    legs or hips. He pressed his forehead against hers very hard. He was breathing
    heavily and his hands were on her breasts. She thinks that at one point he
    pulled her hand towards him, but she pulled her hand back. She gave evidence that
    this went on for five or ten minutes, before a nurse came into the room and
    said what is going on in here? The appellant told the nurse to get some kind
    of scope, and the nurse left. The appellant then fixed himself up and left
    the room. After a short time, the nurse rushed back into the room and asked
    where did he go? L.H. did not say anything to the nurse in response, nor did
    the nurse ask her what had been going on. Instead, according to L.H., the nurse
    simply turned around and left.

[14]

L.H. never disclosed any complaints to anyone during her initial stay at
    the hospital or between her first and second stay. However, she did say that
    during her second stay, she had one conversation with her roommate, B.R. She
    could no longer recall the details of the conversation but did remember that
    they discussed the fact that the appellant was too personal with them.

(ii)      L.C.

[15]

L.C. and her older sister were patients of the appellant.  They would
    attend at his office for regular examinations.

[16]

L.C. recalled regularly going to see the appellant for medical visits as
    she had health issues from the time that she was very young.  As a result of a
    persistent cough, she was referred by the appellant to an allergist, who
    confirmed that she had allergies.  The treatment prescribed was regular
    injections.  L.C.s mother gave evidence that she recalled telling the appellant
    that it was difficult for them to attend his office every week, as they would
    have to take multiple forms of public transit. L.C.s mother told the appellant
    that she would have to get another doctor to administer the injections. The appellant
    then offered to attend at their home on Saturdays, advising that it would be on
    his way as he did house calls for other patients who were not able to get to
    his office.

[17]

At trial, the appellant said that he remembered L.C. and he remembered
    making house calls to administer injections, although he no longer had her
    medical records to refresh his memory. The appellant said that when he learned
    that it would be difficult for L.C. and her mother to attend his office each
    week, and that they lived not far from him, he offered to attend at their home.
    The appellant said that it was a common practice for him to make house calls on
    a Saturday and that he did so until the year 2000.

[18]

At some point during these house calls, L.C.s mother started working
    part-time. Furthermore, L.C.s father was often working or out volunteering for
    their church on Saturdays. L.C.s sister would either go with their father or
    she would be in the basement when the appellant came to their home. 
    Consequently, L.C. was often alone with the appellant.

[19]

The main issue with respect to L.C. involved a particular incident.  L.C.
    gave evidence that on one occasion while the appellant was drawing up the
    injection, he casually asked how old she was.  She claimed that this made her
    nervous, and she believed that she must have muttered something but was not
    sure if she told him her age.  L.C. gave evidence that the appellant then asked
    so are you starting to develop? She freaked out and did not know what to
    say. She believed that she told him that she did not know. The appellant
    administered the injection, after which L.C. continued to be very nervous. She
    claimed that the appellant put his stuff away, came in front of her, and said
    lets see how developed you are. He started to lift up her t-shirt, and she
    believed that she took over holding it up. According to L.C., the appellant
    then said lets feel how developed you are. She alleged that the appellant
    then started touching her entire right breast with both of his hands, though
    she did not recall his touching the nipple. The appellant denied touching
    L.C.s breast or performing any such examination.

Analysis

(i)       L.H.

[20]

The trial judge rejected the appellants denials regarding the
    activities relating to L.H.  She accepted L.H.s evidence respecting what had
    happened and she found the appellant guilty of all of the charges relating to his
    inappropriate touching of L.H.

[21]

In reaching her conclusions, however, the trial judge made certain
    findings that are problematic.

[22]

First, on the evidence regarding the appellants signing of the
    discharge report, the trial judge said, at para. 55:

The fact that Dr. Sanchez signed a detailed 3-page discharge
    report for L.H. in January, 1965, albeit on behalf of Dr. Singer, suggests that
    he was more involved in her care than he was willing to admit.

[23]

The trial judge did not have any basis to make this conclusion.  The
    appellant said that he merely signed the report on behalf of the responsible
    physician.  Crown counsel did not challenge the appellants evidence on this
    point, nor was there any evidence contradicting the appellant on it.  Indeed,
    counsel for the respondent on the appeal conceded that there is nothing unusual
    in one professional signing a document on behalf of another professional.

[24]

Second, in concluding that she believed the evidence of L.H., the trial
    judge said, at para. 50:

There was no tendency in her evidence to exaggerate or to
    amplify her evidence as she went along. There was no apparent motive to lie.

[25]

It is recognized that whether a person does or does not have a motive to
    lie is not generally a reliable basis upon which to assess credibility.  Certainly
    the absence of any apparent motive to lie is an unreliable marker of
    credibility.  There are simply too many reasons why a person might not tell the
    truth, most of which will be unknown except to the person her/himself, to use
    it as a foundation to enhance the witness credibility.  Consequently, it is generally
    an unhelpful factor in assessing credibility:
R. v. L. (L.)
(2009), 96
    O.R. (3d) 412 (C.A.), 2009 ONCA 413, at para. 44.

[26]

Third, the trial judge found that L.H.s evidence was enhanced by the
    fact that she raised the abuse, albeit in a vague way, with her friend at the
    time (at para. 50) and yet failed to mention the fact that the friend was not
    called to confirm that had occurred.  It is difficult to see how that
    uncorroborated evidence could provide enhancement for L.H.s credibility.

[27]

Fourth, the trial judge also rejected defence submissions about the
    importance of the absence of corroboration, commenting, None is required.
    Given the way the alleged crimes were committed where the only persons present
    were doctor and patient, the potential for corroboration does not arise. While
    the trial judge is correct that corroboration is not necessary in such cases,
    she was not correct that the alleged crimes were committed where the only
    persons present were doctor and patient. On L.H.s own version of events, a
    nurse walked in during the most serious of the assaults she described. There
    were other areas of potential corroboration as well, such as records confirming
    contact between the appellant and L.H. that never materialized. The trial judge
    inaccurately dispensed with the potential for corroboration, presenting the
    risk that she may not have given sufficient consideration to the undeniable
    fact that L.H.s allegations stood alone.

[28]

The appellant also took issue with the trial judges rejection of his
    submission that it was implausible that a nurse would not have confronted the
    appellant or reported the assault after walking in during the sexual assault
    L.H. described. Specifically, the appellant is critical of the trial judges
    conclusions, without evidence, about deference and the hierarchical environment
    in hospitals in 1965. I need not decide whether the trial judge was in error in
    reasoning as she did. It was the appellant who invited the trial judge to find
    the nurses reported reaction in 1965 to be implausible, yet he did not lead any
    evidence relating to the likely response of a nurse at the time.  If the
    appellant is correct and evidence is required to ground the relevant inference,
    given that there was no evidence on this point, the trial judge could not
    properly have acted on the appellants invitation to draw an inference of
    implausibility. Any error she may have committed in this regard cannot
    contribute to a miscarriage of justice.

[29]

On this point, I should mention that the appellant sought to introduce
    fresh evidence consisting of affidavits from two doctors on the subject of the
    culture and hierarchy at the HSC at the relevant time.  I would not admit the
    fresh evidence.  It does not satisfy the requirements set out in
R. v.
    Palmer
, [1980] 1 S.C.R. 759.  In particular, the evidence was, with due
    diligence, available at the time of trial and it was not potentially decisive
    of the result.

[30]

Although individually none of the failings I have identified might prove
    fatal to the trial judges credibility findings, collectively they raise serious
    concerns regarding the validity of the reasons upon which the trial judge
    accepted the evidence of L.H., especially given her treatment of the appellants
    evidence.  They are based, at least in part, on a misapprehension of the
    evidence that undermines the validity of the convictions.  As Doherty J.A. said
    in
R. v. Morrissey
(1995), 22 O.R. (3d) 514, at p. 541:

Where a trial judge is mistaken as to the substance of material
    parts of the evidence and those errors play an essential part in the reasoning
    process resulting in a conviction then, in my view, the accused's conviction is
    not based exclusively on the evidence and is not a "true" verdict.  This
    is so even if the evidence, as actually adduced at trial, was capable of
    supporting a conviction.

[31]

In the light of these concerns, I am of the view that the convictions
    with respect to L.H. cannot stand.

(ii)      L.C.

[32]

The conviction as it relates to the incident with L.C. raises a
    different issue.  In this instance, there was a single event that was alleged
    to have occurred in L.C.s home during one of the weekly house calls that the
    appellant made to administer the allergy injection to L.C.

[33]

In reaching her conclusion with respect to this offence, the trial judge
    said that the appellants evidence that he agreed to make weekly house calls
    with no ulterior purpose was not credible (at para. 128).  Yet the appellant
    was not contradicted at trial that, at the time, he regularly made house calls
    for a number of patients.  Given his practice, all of those patients would have
    been children.  There was simply no evidentiary foundation for the trial
    judges conclusion that the appellants willingness to make house calls to give
    injections to L.C. was the result of an ulterior motive.

[34]

More significantly, however, is that the trial judge made the following
    finding, at para. 128:

His evidence of the number of housecalls[
sic
] he
    regularly made in his practice was not credible. I find that he exaggerated
    this evidence in an attempt to make it look less unusual that he would offer to
    make housecalls[
sic
] to L.C. in a non-emergency situation and on a
    weekly basis.

[35]

This finding repeats the error regarding the uncontradicted evidence
    that the appellant routinely made house calls.  Given that fact, there was no need
    for the appellant to have to make any effort to make the house calls look less
    unusual.  More troubling, however, is that the trial judge uses that fact to
    elevate her finding into a planned orchestration of events by the appellant to
    gain access to L.C. for the purpose of molesting her.

[36]

Indeed, the trial judge said, at para. 137:

I find that Dr. Sanchez offered to make housecalls[
sic
] to
    L.C.'s home with the ulterior motive, if the opportunity arose, of molesting
    L.C.

[37]

In effect, the trial judge appears to have drawn an inference of guilt
    from her disbelief of the appellants evidence. It is an error of law to do so
    absent independent evidence that the accused person concocted a lie for the
    purpose of evading responsibility:
R. v. OConnor
,
(2002), 62
    O.R. (3d) 263 (C.A.);
R. v. Wood
, (1989), 33 O.A.C. 260, leave to
    appeal refused 40 O.A.C. 240 (note);
R. v. Sandhu

(1989), 35
    O.A.C. 118.

[38]

I would also note on this point that the trial judge again used the lack
    of a motive to lie to enhance the credibility of both L.C. and her mother.

[39]

The trial judge could have rejected the appellants evidence, including
    his evidence about the frequency of house calls, and accepted the evidence of
    L.C. on a proper basis.  However, once again, the trial judge cannot do so on a
    foundation that is entirely inconsistent with the evidence.  Nor was it proper
    for the trial judge to attribute a motive to the appellant that arises from a
    misunderstanding or misstatement of the evidence.

[40]

Given these errors, I am of the view that the conviction with respect to
    L.C. also cannot stand.

[41]

In light of that conclusion, I do not need to address the fresh evidence
    that the appellant sought to adduce from the appellants two stepsons regarding
    his practice of making house calls during the relevant timeframe.

Conclusion

[42]

I would allow the appeal and set aside the three convictions.  I would
    order a new trial on those three counts.  In the light of that conclusion, it
    is not necessary to consider the sentence appeal.  Nevertheless, I want to recognize
    that counsel for the respondent quite fairly agreed that the sentence ought to
    be converted into a conditional sentence in the light of the appellants age
    and medical condition.  On that basis, counsel for the respondent did not
    contest the admission of the fresh evidence that the appellant sought to adduce
    relating to his medical condition.

[43]

I assume that those same considerations may factor into the respondents
    determination of whether a new trial is in the public interest.

Released: GE Dec 18 2017

I.V.B. Nordheimer
    J.A.

I agree. Gloria
    Epstein J.A.

I agree. David M.
    Paciocco J.A.


