2020 NBCA 31, 2020 NBCA 31

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 53-19-CA ANTHONY BLAIN DOIRON APPELLANT ANTHONY BLAIN DOIRON APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Doiron v. R., 2020 NBCA 31 CORAM: The Honourable Justice Quigg The Honourable Justice Baird The Honourable Justice LeBlond Doiron c.

R., 2020 NBCA 31 CORAM : l’honorable juge Quigg l’honorable juge Baird l’honorable juge LeBlond Appeal from a decision of the Provincial Court: November 21, 2018 (conviction) May 22, 2019 (sentencing) Appel d’une décision de la Cour provinciale: le 21 novembre 2018 (déclaration de culpabilité) le 22 mai 2019 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: None Procédures préliminaires ou accessoires : aucune Appeal heard: January 22, 2020 Appel entendu : le 22 janvier 2020 Judgment rendered: May 21, 2020 Jugement rendu : le 21 mai 2020

Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Baird The Honourable Justice LeBlond Counsel at hearing: For the appellant: Hazen L. Brien For the respondent: Marc A. Bourgeois Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge Baird l’honorable juge LeBlond Avocats à l’audience : Pour l’appelant : Hazen L. Brien Pour l’intimée : Marc A. Bourgeois THE COURT The appeal against conviction is dismissed. LA COUR L’appel de la déclaration de culpabilité est rejeté. The judgment of the Court was delivered by QUIGG, J.A. I.

Introduction [ 1 ] This appeal arises from a decision of a Provincial Court judge dated November 21, 2018, wherein Mr. Doiron, a self-described medium, was found guilty of violating ss. 151(a) (sexual interference) and 152 (invitation to sexual touching) of the Criminal Code and sentenced to a total of four years’ imprisonment. Mr. Doiron contends the trial judge erred in his findings regarding the credibility of the complainant and his overall assessment of medical evidence relating to Mr. Doiron’s ability to commit the offences. II. Overview of the Facts [ 2 ] Mr.

Doiron, a 53-year-old man at the time of the incidents, resided in Memramcook together with his wife, his wife’s sister (both aunts of the complainant) and the latter’s husband. The complainant’s mother is Ms. Doiron’s sister. Prior to the assaults, the complainant, a 15-year-old girl, resided with her mother approximately six kilometres away; however, they were experiencing conflicts. After an argument between the complainant and her mother, the mother discussed the situation with Mr. Doiron, and it was decided the complainant would move into Mr.

Doiron’s house and live there until the end of the school year, in order to defuse the situation. In fact, the complainant resided there from June 2, 2013, to March 1, 2014, until she and her mother resolved their issues. [ 3 ] Toward the end of June 2013, the complainant’s mother went to Mr. Doiron’s home to pay him for the expenses incurred for looking after her daughter. According to the mother, a conversation arose wherein Mr. Doiron advised that he had taken the opportunity, during the period surrounding the student prom, to talk about sex with the complainant. The complainant’s mother

said, when she advised Mr. Doiron she was not in agreement with this discussion being held with her daughter, he accused her of throwing her daughter out of the house and said he had consulted with a lawyer who told him the complainant could stay with him and the other family members for as long as she liked.

When the school year ended, and it became apparent to the complainant’s mother that her daughter was not willing to speak to her and would not return home, she sought help from Social Development to reconcile with her daughter. [ 4 ] A social worker opened a file and prepared a reconciliation plan for the complainant to return home. She consulted with Mr. Doiron and the other members of the household. The plan proceeded well, although the complainant’s mother did not have any communication with Mr. Doiron or the other residents, except to pay the bills for the care of her daughter.

In the fall of 2013, the complainant commenced high school in the ninth grade. After several months, the mother began to have outings with her daughter and the situation became better, but the daughter was still not ready to return home. [ 5 ] Mr. Doiron is allegedly a medium, able to channel spirits of deceased individuals and saints. This is acknowledged by the family members (including the complainant’s mother) who believe in Mr. Doiron’s powers to channel spirits. According to the testimony of the family members, in order for Mr.

Doiron to channel these spirits, he generally lies down on a couch and begins to “dream,” and the spirits speak through him. The spirits deliver messages of hope and positive information. During the period the complainant resided in the home with her aunts and their spouses, she fell in love with the “spirit” of a 16-year-old boy named Martin, channeled by Mr. Doiron, and had at least 15 instances of sexual interactions with “Martin.” He was a young man who had committed suicide.

The complainant felt he helped her because she could confide in him. [ 6 ] In March 2014, arrangements were made for the complainant to return home. It was not an easy move and, soon after her return, the complainant suffered a mental health crisis. The complainant wanted to return to live with Mr. Doiron and her other family members because she missed “Martin”. When she returned home, the complainant divulged that she had been sexually involved with Mr. Doiron. Soon after, a social worker contacted the police. A.

Evidence at trial [ 7 ] At trial, the Crown called seven witnesses: the complainant, her mother, another of the mother’s sisters, a social worker and three RCMP officers. Mr. Doiron, who did not testify, called six witnesses: his wife, his sister-in-law, his brother-in- law who resided in the home, his family doctor, his urologist and his pharmacist.

(1) The complainant [ 8 ] The complainant testified she was not getting along with her mother, so the plan was for her to move to her uncles’ and aunts’ home at the beginning of June 2013. She believed she would be staying at the Doiron residence until the end of the school year and the plan was for her to restore her relationship with her mother. In the end, she remained until March 1, 2014. She said she found the move sad in one respect, but it was a solution to repair the relationship with her mother. [ 9 ] When describing the arrangements in the Doiron household, she testified she went to school each day.

She described the residence as a big house with three floors. Each couple had their own bedroom and bathroom; she also had her own bedroom and access to a bathroom. There was another room for guests. On the second floor there was a kitchen, computer room, and a solarium with a sofa, a small couch and a television. In the basement was a home theatre, as well as a small hairdressing salon used by one of her aunts when she styled family members’ and friends’ hair. Usually, the aunt worked as a hairdresser outside of the home at a shop in Dieppe. [ 10 ] The complainant testified she considered Mr.

Doiron to be like a second father to her because she did not have one. She explained her biological father and her mother had separated when she was young. She testified the sexual interference occurred when she and Mr. Doiron were alone in the house. It started with touching and over time became vaginal penetration. She stated she realized Mr. Doiron had status in the community because he had a special gift. According to her, Mr. Doiron said angels appeared before him and he had special perfume that could make spirits appear. She testified that all the members of her family believed Mr.

Doiron had a special power to speak to saints like St. Anne, or spirits of dead people. She said she was a witness to séances where spirits entered Mr. Doiron’s body and spoke through him. The complainant discussed many spirits but in particular she remembered a spirit Chen Su, the angel Michael and, finally, Martin. During the séances when spirits entered Mr. Doiron’s body, he took on the personality of the spirit. To do this, she said, he would lie down on a couch, as he had to relax to encourage the spirits to arrive.

Once the spirits were in his body, he took big breaths and seconds later the spirit would speak. One spirit the whole family knew of was Chen Su, who was Mr. Doiron’s wife in another life.

[ 11 ] The complainant said when she moved into the home with Mr. Doiron and the other family members, there were occasions where she was alone with him. She testified that one time, early in June 2013, when she came home after middle school, Mr. Doiron was home alone, and was channelling the spirit Chen Su. The spirit told her that if she had any questions, she could discuss them with “her.” The complainant testified she took the occasion to speak to Chen Su regarding the subject she was worried about – a burn injury on her chest. The spirit suggested that it could touch her breasts. After that, the spirit/Mr.

Doiron touched the complainant’s breasts with his hands and attempted to touch her genital area, but the complainant said she did not want this and slapped Mr. Doiron’s hand away. The complainant said that Chen Su told her it was normal for girls to do these things and there was nothing wrong with it. [ 12 ] The complainant said Chen Su appeared again a few days later and wanted to know if she wished to speak to someone her own age, as Chen Su could find a spirit the same age as the complainant. She testified to not having many friends at that time, so she accepted the offer.

She said a few days later, the spirit Martin entered her life, through Mr. Doiron. Martin was kind but did not stay for a long time and she was not sure if he was a girl or a boy that first time. With time, Martin appeared to her more often but he remained shy with her aunt and the other people in the house. He did not speak in front of the others like he did with her when she was alone with Mr. Doiron. The complainant said eventually, Martin explained that he was a 16-year-old young man who had committed suicide. He was going to attend a school dance with a girl.

The girl abandoned him and, when he arrived at the dance, other students laughed at him. After that, Martin decided to return to his house but before he got home, he committed suicide by jumping off a bridge. Martin also told the complainant his father was violent toward him and his mother. [ 13 ] Martin told her he was close to his grandfather who had given him a ring when he was young to remind him that not all men were like his father and there were good people on earth.

Martin told the complainant he wanted her to have the ring and, not long after certain incidents of touching, the ring appeared in the complainant’s bedroom. Martin wanted her to wear the ring so she could remember him. He told her to always wear it, and the complainant wore it on a chain with an angel that her aunt had given her. Even when she left the house in March 2014, she continued to wear the ring on the chain. She said she continued to do so even after she started to have doubts regarding her relationship with Martin and she began to tell people about the incidents.

She only stopped wearing the ring when the police convinced her to give it to them as evidence. The ring, the chain, and the angel attached to it were seized by the police and became exhibits. The complainant noted that the angel attached to the chain was the type that Mr. Doiron “makes appear” when he interacts with sick children. The complainant testified she believed at first that Martin had put the ring in her room but now thinks it was put there by Mr.

Doiron. [ 14 ] According to the complainant, her relationship with Martin developed from friendship and became intimate as she began to have feelings for Martin and the relationship was no longer just amicable for her. It began with touching and kisses on her neck by Martin. She said there was other touching and finally sexual relations that developed into a serious relationship. The incidents included touching and penetration.

The complainant confirmed she was 15 years of age during the incidents and, when she returned home to live with her mother, she was very confused because of her sexual relationship with Martin. Throughout this period, Martin encouraged her not to return home, and he told her to tell her mother that she was not ready to go back. He also made negative comments about her mother. She related the touching started with kisses on her neck, touching her breasts and, over time, she accepted the touching as normal. She testified to many occasions with Martin, who was in Mr.

Doiron’s body, when he touched her breasts and that over time Martin became more comfortable and had more energy. [ 15 ] The complainant testified to specific occasions when incidents occurred. She described different encounters, which lasted approximately 20 minutes each, where Mr. Doiron did not ejaculate. She testified to another situation where Martin/Mr. Doiron demanded she perform oral sex. She stated she noticed Mr. Doiron was circumcised and he only had one testicle. He had a scar and he had recently been shaved in his genital area.

She said that while performing oral sex on Martin, he took her head in his hands to make movements back and forth. At that point she said she had the feeling that he controlled the situation and she did not have the option to move away. Again, she said there was no ejaculation. She testified that the sexual relations with penetration occurred more than five times in different rooms in the home. Many more instances were described.

She testified that the other residents of the house were aware of her friendship with Martin but did not know about the sexual incidents. [ 16 ] In January 2014, the complainant began a friendship with a young man who became her boyfriend. She told Martin about her boyfriend and the sexual relationship with Martin ended. Not long after this, she found out she would be leaving Mr. Doiron’s household.

(2) Brother-in-law’s testimony [ 17 ] Mr. Doiron’s brother-in-law, who resides with him, testified their wives are twins and the couples built a large house so they could all live in it together. According to the brother-in-law, Mr. Doiron did not have any opportunity to commit the assaults as described by the complainant. He said that the house has an open-concept floorplan and that noises echo in the home. He testified the discussions with the complainant’s mother did not occur as described by the mother, and he had difficulty with the

complainant’s behaviour while she resided with them. He gave the complainant a list of rules to follow and advised her that neither he nor Mr. Doiron would be in the home alone with her. [ 18 ] Regarding the list of rules, he was questioned why the issue with the complainant’s behaviour was not included, nor was the condition that the complainant not be alone in the house with Mr. Doiron or himself. He testified that he was surprised and angry about the allegations because the incidents did not occur. He said historically the complainant and Mr.

Doiron had a good relationship and that the complainant looked upon Mr. Doiron as a father. Therefore, he believed that the complainant blamed Mr. Doiron for her return to her mother’s home. It was his position that the complainant made these allegations up out of revenge. The brother-in-law testified he believed in Mr. Doiron’s “dreams” and that he was able to communicate with St. Anne, Chen Su and Martin. [ 19 ] The brother-in-law testified he knew about Martin and confirmed that he was a spirit who had passed away at 15 or 16 years of age. He stated the spirit had spoken, through Mr.

Doiron, about his suicide, his problems with depression, the bullying he experienced, and the fact his friend had left him. He admitted that the complainant and Martin had very similar issues and that Martin had conversations regarding school with the complainant. The brother-in-law testified Martin had appeared through Mr. Doiron before the prom in June 2013. He testified that for the past 15 years, Mr. Doiron spoke to spirits, always relaying positive messages. He related bad spirits never came through Mr. Doiron, and the positive spirits were present between 15 and 40 minutes. Mr.

Doiron was asleep during séances. He stated Mr. Doiron did not do anything else during his dreams.

(3) Sister-in-law’s testimony [ 20 ] Mr. Doiron’s sister-in-law testified her working hours varied. She remembered she had many cancellations during the summer at the times that the complainant said the incidents occurred. She also denied the conversation between the complainant’s mother and Mr. Doiron, about Mr. Doiron’s discussions with the complainant regarding sex, ever occurred. The sister-in- law testified that, when the decision was made for the complainant to return to her mother’s home, the relationship between the complainant and Mr. Doiron became cold. With respect to Mr.

Doiron’s gift as a medium, she confirmed this has been occurring for approximately 15 years, and it happens when Mr. Doiron is tired; that is why he lies down on a sofa. It takes him about 15 minutes to fall into a trance. She confirmed that Chen Su and Martin were the spirits they were aware of and that Martin was about the same age as the complainant and was helping her with the situation with her mother. She stated she never saw Mr. Doiron alone with the complainant. She also testified Mr. Doiron always acted normal after the séances between Martin and the complainant.

She stated that the complainant cried at times after she spoke to Martin and he came to see her to make sure that everything was okay with her. She did state that Mr. Doiron’s

schedule was flexible because he owned his own business.

(4) Ms. Doiron’s testimony [ 21 ] Mr. Doiron’s wife testified. She denied the conversation about sex as related by the complainant’s mother, and she encouraged the acceleration of reconciliation between the complainant and her mother. She stated once the complainant moved into their home, she would not follow rules like keeping her room clean, washing her clothes and her dishes, etc. She said the complainant had inappropriate behaviour and that incidents escalated. She stated the social worker advised her to suggest to Mr.

Doiron and their brother-in-law to not be alone with the complainant in the house; and, after this was mentioned, a system was put in place to ensure the complainant was never home alone with the men in the residence. She testified she never arrived at the home to find Mr. Doiron and the complainant there alone. She was aware that her husband and the complainant “met” Martin. She admitted that on two or three occasions, the complainant was alone with Mr. Doiron in a room. She also testified the complainant had conversations with Martin regarding the problems she had with her mother. [ 22 ] Mr.

Doiron’s wife also testified about her own sexual relationship with her husband. She said that in 2007, Mr. Doiron began to experience erectile dysfunction. Therefore, he began to take medication to assist him. He would take a pill an hour before they intended on having sexual relations, and it was only after being stimulated by her hand or her mouth that he could achieve an erection. In May 2013, Mr. Doiron had surgery, a circumcision, as he was having pain during an erection. She testified the surgery was painful and the recovery period was difficult.

She testified the complainant knew about this pain and surgery. She said that the complainant was also aware that Mr. Doiron only had one testicle and he was shaved because this was discussed at a family supper when the complainant and her mother were both present. Mr. Doiron’s wife said that, in the middle of July 2013, she and Mr. Doiron attempted sexual relations, but were not successful. They decided to wait and finally, at the end of August, they were able to have sexual relations, but it was painful for Mr. Doiron. They did have sexual relations one or two times a month after that, always with ejaculation.

She stated the sexual relations of six to 15 times as described by the complainant were not realistic because Mr. Doiron was not capable of doing so in June and July 2013, and he would have had to use pills in order to have sexual relations. She said that she did give the complainant the chain to put the ring on, but she did not know from whom the complainant received the ring.

(5) Medical evidence

[ 23 ] At trial, medical evidence was presented relating to Mr. Doiron’s erectile dysfunction, the medication he was prescribed, as well as his circumcision, which had occurred two months prior to alleged assaults. Dr. LeBlanc performed the circumcision on May 23, 2013. He testified there were no complications. He advised Mr. Doiron to avoid having sex for four to six weeks. He also believed Mr. Doiron’s diabetes could cause delays in his healing. [ 24 ] Mr. Doiron’s family doctor, Dr. Rolande Colas, was qualified to give her opinion. Mr.

Doiron had been her patient since 1996 and she testified he took medication to enable him to maintain an erection. She stated Mr. Doiron could not have sexual intercourse without his medication for his erectile dysfunction and only then after stimulation. She confirmed she believed Mr. Doiron was impotent because he requested medication. She stated men are usually too proud to admit their impotence, but it was not the case with Mr. Doiron.

(6) Pharmacist [ 25 ] Dr. Peter Ford testified Mr. Doiron was a long-time customer and had prescriptions filled at his pharmacy. Some of the medications prescribed were for erectile dysfunction.

(7) Position of the defence [ 26 ] Defence counsel brought into play the manner in which the investigation of the complaints was undertaken. The defence maintained the police did not question individuals who lived with Mr. Doiron at the time of the alleged incidents and therefore the investigation was incomplete. For example, the complainant discussed the alleged incidents with her boyfriend, but the police did not speak to him.

Further, the defence asked the trial judge to draw a negative inference because individuals who played intricate roles as employees of the Minister of Social Development were not questioned, even though two employees of the Minister of Social Development were present at a meeting in November 2013, when the rules that were given to the complainant were discussed. The defence said the employees could have clarified the situation. [ 27 ] The defence also submitted there were inconsistencies between the complainant and her mother regarding the number of incidents.

The complainant stated she had not told her mother the number of times of actual penetration, but the mother told the social workers that there were six incidents. The defence indicated these contradictions and inconsistencies of the complainant regarding the number of incidents of touching and penetration affected her credibility. [ 28 ] The defence addressed the uncontradicted evidence given by the urologist, Dr. Guy LeBlanc. He testified Mr. Doiron had undergone a circumcision on May 23, 2013, that recovery from the surgery would be painful, and the convalescence period would be four to six weeks. Dr.

LeBlanc also explained that a person who is diabetic can take a longer time to heal. The evidence of Dr. Colas supported the fact that Mr. Doiron is diabetic. The defence argued the evidence of Dr. LeBlanc signalled the possibility of infection which was consistent with the evidence of Mr. Doiron’s wife who testified that there were complications during Mr. Doiron’s recovery. [ 29 ] The evidence of the other residents in the house was that Mr. Doiron had difficulty walking during this time; they were concerned about his health – evidence the defence said was uncontested. The defence also argued Mr.

Doiron’s erectile dysfunction was not fabricated, and the evidence demonstrated that he had suffered from it since 2007. [ 30 ] According to the defence, the evidence of the doctors and the pharmacist was also uncontradicted. The pharmacist testified when the medication was consumed, stimulation was necessary to attain an erection. There was no evidence from the complainant that she stimulated Mr. Doiron physically. Dr. LeBlanc explained that the recovery period would be four to six weeks or longer if the person is a diabetic, and Ms. Doiron testified the recovery period was longer. [ 31 ] Dr.

LeBlanc also testified Mr. Doiron took Coumadin because he had phlebitis and this drug thins the blood. As such, he asked Mr. Doiron to stop taking it before his surgery, which he did, but he resumed taking the medication after the surgery. This was uncontested and was evidenced by the reports entered through the pharmacist.

[ 32 ] With respect to the proposition that Mr. Doiron could have obtained other prescriptions, the defence advanced the theory of Dr. Colas that men are embarrassed to speak about their impotence. The evidence indicated Mr. Doiron had these preoccupations himself when he went to obtain these prescriptions. Therefore, the defence said, only one source for these medications was possible in the circumstances. Also, his pharmaceutical profile over the years was consistent with the evidence of Dr. Colas that Mr.

Doiron needed this medication and, therefore, the family doctor had prescribed the medication for many years prior to the alleged incidents. The record showed that Mr. Doiron had access to 12 pills for his erectile dysfunction between May 2013 and March 12, 2014. The pharmacist’s reports confirmed his medication profile, and it was clear he was only prescribed 12 pills. [ 33 ] The defence raised the testimony of Mr. Doiron’s spouse that the couple had tried to have sexual relations on two occasions in the summer of 2013 and the medication was used for these attempts.

Therefore, the defence submitted, the testimony of the complainant was inaccurate because she said there were about 15 incidents involving penetration. Mr. Doiron’s wife testified they were unable to have sexual relations in July but did in August. The defence maintained that there was evidence Mr. Doiron purchased more prescribed medication on August 27, 2013. Therefore, the defence submitted that Mr. Doiron was unable to have sex before the month of August and this indicated his ability to have sexual relations was problematic due to the surgery. Furthermore, this was consistent with the evidence of his wife.

The defence emphasized the evidence of Dr. Colas, that it was impossible for Mr. Doiron to have sexual relations without medication and that he had taken medication since 2007. The defence noted the complainant said she had not seen Mr. Doiron take any medication before the alleged incidents. Dr. Colas also testified regarding the different scars on Mr. Doiron’s body, discussed their locations, and the dates of each surgical intervention. [ 34 ] The complainant testified about a scar which was parallel to and underneath Mr. Doiron’s navel, a scar Dr. Colas said did not exist.

The defence argued there was an explanation as to why the complainant knew intimate information regarding Mr. Doiron, such as his having one testicle: it was discussed in her presence at her birthday party, which was several days after Mr. Doiron’s circumcision. Therefore, none of these issues were new to the complainant. The defence submitted the judge had to ask himself two questions: 1) did Mr. Doiron have the physical capacity to undertake the acts that the complainant accused him of; and 2) did he have the opportunity to undertake these actions?

The defence said there was an abundance of proof that he did not have the capacity to accomplish these sexual acts. [ 35 ] Defence counsel submitted, because of the nature of the surgery, it would be very painful and would have taken time to heal. Therefore, Mr. Doiron would not have been interested in having sexual relations as they would have caused him pain. [ 36 ] With respect to opportunity, the defence noted the complainant was in school in June 2013, and in September, she returned to school and was involved in many activities. She also started visiting her mother in September.

The defence submitted that when the judge examined the hours of work and the holidays taken by Mr. Doiron and the other residents of his home, only Tuesday, Wednesday and Thursday afternoons remained available. The defence also brought the court’s attention to the fact that Ms. Doiron’s sister is a hairstylist and explained that when she had cancellations, during the summer of 2013, she often returned to the house. Also, the other members of the household testified that when they arrived at the residence, they never found the complainant and Mr. Doiron alone in the house.

It was also indicated the complainant had spent two weeks of vacation with her grandparents. The evidence further demonstrated she went out with her friends and some visited the house. Overall, according to the defence, Mr. Doiron simply did not have the opportunity to participate in the alleged incidents as described by the complainant. [ 37 ] Submissions were made regarding the living situation and the reason why the complainant moved into the Doiron residence. It was indicated to the judge the complainant believed in Martin, just like many of the others believed that Mr. Doiron is a medium.

She fell in love with Martin. Counsel for Mr. Doiron suggested there was nothing negative or hidden about the subject of Mr. Doiron being a medium. The defence theorized the heart of the problem with the complainant was the conflict she had with her mother and her sense of abandonment. First, she had been abandoned by her biological father, then her stepfather had separated from her mother and finally she had been abandoned by her mother when she was asked to go and live with Mr. Doiron and the rest of the family. Therefore, the complainant was a young girl who had difficulty being accepted and loved.

The defence maintained the evidence was clear that the complainant had chosen to live with the Doirons because she found it a better place to live and never complained about it. It was also submitted the complainant had her own room and bathroom, food and a secure place to live. She did not want to return to her mother’s home. Regardless, everything changed when it was decided in January 2014, that she would return to live with her mother, after Mr. Doiron had allegedly promised she could live with him and the other family members as long as she wished.

This was another example of abandonment for the complainant, said the defence. Furthermore, there was animosity between the complainant’s mother and the Doirons and the others in the house because the complainant’s mother believed that they were trying to take her child from her. The mother also disliked Mr. Doiron’s “gift” as a medium, and it was submitted the complainant was encouraged to make false claims against Mr. Doiron by her mother.

Furthermore, according to the defence, the mother had made up stories which she told to the social workers. [ 38 ] The defence submitted that the evidence provided would lead the trial judge to have a reasonable doubt because: 1) Mr. Doiron’s precarious health brought into doubt his capacity to do what he was accused of; 2) he had no opportunity; 3) the complainant could not properly identify the scars on Mr.

Doiron’s body; 4) the proof of the other three residents of the home that contradicted the testimony of the complainant; and 5) there were inconsistencies between the complainant and her mother’s testimonies. Also, the defence said there was no evidence Mr. Doiron controlled the other members of the household.

(8) Crown’s position [39] The Crown stated Mr. Doiron is a manipulator and he effectively exploited the complainant when she was 15years of age, by having sexual relations with her while she was living in his home. The Crown noted it was Mr. Doiron who decided toallow the complainant to move into the home, and the other residents were surprised when she arrived, suddenly, to live in theirresidence without any consultation. Crown counsel indicated there was no dispute that all the members of the family, including thecomplainant, believed in Mr. Doiron’s powers as a medium. The Crown said it was clear Mr.

Doiron is a charming individual and has animportant status in the family and in the eyes of the complainant. She believed he was a medium. She had already been exposed to thespirit Chen Su and others who appeared to overtake Mr. Doiron’s body. Therefore, Mr. Doiron profited from the situation and Chen Suappeared to the complainant as a friend, who would help her reconciliate with her mother.

Crown counsel told the court the relationshipbetween the complainant and Chen Su developed to the point where Chen Su wanted to see her breasts and touch them, under the pretextit was normal for girls to touch each other. [40] Crown counsel submitted the complainant became uncomfortable with the situation and, for that reason, Mr.Doiron took a different approach and advised the complainant, through Chen Su, he was going to find a younger spirit for her to havediscussions with – someone her own age. That was when the spirit Martin appeared. He had more things in common with thecomplainant.

The spirit Martin became the perfect friend, won the complainant’s confidence and eventually she fell in love with “him”.The Crown described the sexual incidents between the complainant and Martin beginning with touching, oral sex and then penetration.According to the Crown, the manipulation by Mr. Doiron, through Martin, became negative about the complainant’s mother and friends,and the situation began to unravel. [41] Counsel for the Crown contested the credibility of the evidence provided by the defence. The evidence of theother three residents of the home was presented to establish alibis for Mr.

Doiron on the subject of his health and his lack of opportunity.Crown counsel maintained these three witnesses were not independent. When looking at the inflexible hours of the residents and theflexible

schedule of Mr. Doiron, lack of opportunity was not a factor that could aid Mr. Doiron because there was much time andopportunity for these sexual encounters with the complainant. Furthermore, the Crown submitted the evidence that concerned theinappropriate behaviour of the complainant and the allegation the men in the residence could not be alone with her after the list of ruleswas prepared in November 2013 was an issue. The brother-in-law testified he had not mentioned her behaviour in the list of rules, and hehad not included conditions in the rules respecting the men in the residence being alone with her.

Crown counsel claimed Mr. Doironwas a predator who developed a sexual relationship with the complainant, granted a voluntary relationship, but illegal nonetheless. [42] Crown counsel indicated the complainant was 15 years of age at the time. Therefore, she could not consent.The Crown believed Mr. Doiron could find sufficient time to be with the complainant and, at the end of the day, even if he was impotent,which could have limited the number of times of penetration, it did not prevent the touching and, in particular, the action by Chen Su,which was also sexual interference. In

summary, the Crown’s perspective was all the elements of proof were established beyond areasonable doubt and, therefore, Mr. Doiron should be found guilty of the accusations.

(9) Judge’s review of the evidence [43] The trial judge provided extensive reasons for his judgment. He recognized the case turned on the credibilityof the witnesses and, with that in mind, he carefully reviewed the conflicting evidence. [44] He gave an oral decision, which is 141 pages long in the transcript. After reviewing all the evidence and thesubmissions made by counsel for the defence and the Crown, the judge undertook his analysis. He explained how Mr.

Doiron would bepresumed innocent until the Crown proved each essential element of the crimes, beyond a reasonable doubt. [45] He then acknowledged this was a case where credibility was very important. Although Mr. Doiron did nottestify, the judge, employing Mr. Doiron’s statement to police, analyzed the evidence under the framework delineated in R. v. W.(D.), (CSC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL); R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. The judgeexplained the test found in W.(D.) and applied it to the situation before him. The judge also referred to E.K.M. v.

R., 2012 NBCA 64, 391N.B.R. (2d) 130, where Drapeau C.J.N.B. (as he then was) explained how to approach credibility. [46] The judge discussed the defence closing submissions, in which it was submitted the police failed in theirinvestigation because they did not question pertinent witnesses and, in particular, the witnesses who lived in the house with Mr. Doiron

at the time of the alleged assaults. One of the police officers testified that they did not seek declarations from the other residents at Mr.Doiron’s request, which they respected. The judge stated courts normally do not question the methods of investigation used by policeunless they become abusive. He said, the police, like the Crown, have to live with the quality of their evidence. Another defencesubmission was the police obtained a declaration from the complainant in the presence of her mother.

The defence submitted thispractice was not acceptable as the complainant could be less disposed to change her views and eventually retract her complaint becauseshe made the complaint in the presence of her mother. The judge said that he was not aware of any authority that supported theproposition. The judge cited R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, a Supreme Court decision that established the Crown doesnot have to call witnesses that it does not consider useful to establish evidence.

The court can evaluate the omission of a witness, but itcannot draw a negative inference from this omission. [47] The judge then reviewed the evidence, which has been thoroughly set out above. He stated, with respect to Dr.Colas, he had to evaluate her evidence respecting Mr. Doiron’s erectile dysfunction. Dr. Colas had testified that it was impossible for Mr.Doiron to have sexual relations without taking medication and being stimulated to achieve an erection. The doctor testified she had cometo this determination because Mr. Doiron had told her it was so.

She testified she believed that men do not like to admit their impotence ifit is not true. The trial judge found the doctor’s explanation, although given as evidence of an expert in the practice of general medicine,was difficult to accept. He said there was no evidence with respect to Mr. Doiron’s erectile dysfunction except for the testimony of Dr.Colas and it was not conclusive in his view. The judge explained there is a difference when an expert forms an opinion based onobjective information obtained in her/his area of expertise, and information obtained from the person who is being treated.

The judgereferred to R. v. Lavallee, (CSC), [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36 (QL). The trial judge said the erectiledysfunction was based solely on information given to the doctor by Mr. Doiron; there was no medical proof to reinforce the doctor’sopinion. [48] With respect to the scars identified by Dr. Colas and not by the complainant, the judge found the fact thecomplainant said Mr. Doiron had a scar below his navel, which was really located above it, was not significant in his opinion. The judgefound that a 15-year-old, in the midst of giving oral sex, would not be solely focused on Mr.

Doiron’s scars. Dr. Colas was conducting acontrolled medical examination in her area of expertise and, for this reason, would be focused on locations of scars. Therefore, the trialjudge said he did not put much weight on this discrepancy. [49] Dr. Ford, who has a doctorate in Pharmacy, testified to the number of prescriptions for erectile dysfunction hehad dispensed to Mr. Doiron. He stated Mr. Doiron attended his pharmacy over a long period of time to fill prescriptions. The judgedetermined this testimony was not conclusive regarding the degree of the erectile dysfunction suffered by Mr.

Doiron. [50] When weighing the evidence of the urologist, Dr. LeBlanc, the judge found it was conclusive that Mr. Doironhad a circumcision surgery on May 23, 2013. The judge said Dr. LeBlanc stated the operation was a success, and he advised Mr. Doironit would take a month to a month and a half to heal. He did not see Mr. Doiron again. The judge said the defence’s hypothesis that Dr.LeBlanc’s testimony fortified the evidence of Ms. Doiron that Mr. Doiron could not have sexual relations prior to the middle of Augustdid not, in his opinion, raise a reasonable doubt in the W.(D.) framework.

The judge reiterated that according to Dr. LeBlanc, Mr. Doironcould have healed by the month of July. Therefore, Ms. Doiron’s evidence that Mr. Doiron could not successfully have sexual relationswith her in July was not conclusive that Mr. Doiron could not have had sexual relations with the complainant in July. The trial judge saidhe did not question the veracity of the evidence of Ms. Doiron on this point, but it did not exclude the possibility that Mr. Doiron couldhave had sexual relations with the complainant in July. With respect to the defence’s proposition that Mr.

Doiron could not have anerection without medication and stimulation, and that there was no proof that the complainant had stimulated Mr. Doiron beforepenetration, the judge did not accept this because the touching could be considered stimulation. [51] After forming his opinion as to whether or not sexual assault had occurred, the judge discussed R. v. R.R., 2018ABCA 287, [2018] A.J. No. 1061 (QL), a decision of the Alberta Court of Appeal regarding judicial assumptions about human conduct.As such, it did not form the basis of his conclusion that the assaults had occurred.

In his lengthy and thorough decision, this aspectoccupies approximately two-and-a-half pages of the 141-page long decision. [52] The judge also found the evidence of the other three residents of the home left him with the impression thatthey hold Mr. Doiron in high esteem. They believe Mr. Doiron is a special person, a medium, and that he would never do anythingwrong. They all contested the complainant’s evidence regarding the touching while they were present in the house. Mr.

Doiron’shousemates testified they were present at times when the complainant spoke to Martin, but they all stated it was impossible for thetouching to have occurred during these periods, because they were always attentive as to what went on between the complainant andMartin. They further said there was no opportunity for Mr. Doiron to assault the complainant.

For example, one of the residents testifiedthe doors in the home are always open, no exceptions, and they could not be locked; while the complainant testified that on occasion,because of interference from the television, they closed the doors, so she could hear Martin speak. The judge found that doors beingclosed on occasion was more plausible than doors always being open as they could not be locked. [53] The judge reviewed the fact the complainant did, in her testimony, admit she was aware Mr. Doiron had one

testicle, but she did not know that he had been shaved. The testimony of two of the residents attempted to impute this information to the complainant, but Ms. Doiron testified that she had had a direct conversation with the complainant regarding Mr. Doiron’s surgery. The judge stated it could be argued there was a fault in the complainant’s testimony, but there could also be an argument made that the complainant was in the process of celebrating her birthday and may not have paid attention to the conversation because it was not important to her.

The witnesses also contradicted the complainant on the subject of her inappropriate behaviour. The judge said he had difficulty reconciling the evidence of the residents with the evidence of the complainant. He said he did not believe the residents had fabricated these incidents. The judge said that perhaps the complainant did not remember the incidents because she was embarrassed and then denied them.

Regardless, the judge found that this did not affect her credibility. [ 54 ] The judge reminded himself that all residents of the house testified they had accepted unequivocally the relationship between the complainant and Martin. Furthermore, the judge found there was an undeniable confidence in Mr. Doiron held by the family members. The judge reiterated the residents of the house explained Mr. Doiron lacked the opportunity to commit the offences.

This was based on the number of activities the complainant had, meetings with social workers, outings with her mother, vacation with her grandparents, the residents’ vacation, the residents’ hours of work and the complainant’s interactions with her friends. The judge found that, overall, the residents wanted to convince him Mr. Doiron did not have the opportunity to engage with the complainant as she described it. The judge found the evidence established that Mr. Doiron has a business, that his hours of work were very flexible and, although the opportunities Mr.

Doiron had to engage with the complainant could have been restricted, they nonetheless did exist. [ 55 ] The judge had difficulty accepting the evidence of the other three residents of the home, as they contradicted the complainant at every possible opportunity. He was convinced that they were not aware of the alleged incidents; however, in the end, their testimony, that of the medical experts, and the objective proof left no reasonable doubt in his mind.

The judge stated that, considering the context of the evidence, he did not accept the evidence of the defence witnesses. [ 56 ] After conducting the W.(D .) analysis, the judge found the complainant was a young woman with intelligence; she expressed herself easily and her testimony was sincere. He further found the details the complainant related regarding the incidents with Mr. Doiron, Chen Su and Martin were extraordinary and uncommon. After many interactions, the complainant testified she fell in love with Martin and initially did not resist the touching.

She eventually participated in sexual relations with Martin including oral sex and penetration. The complainant testified her love for Martin became profound and that on one occasion, she was the instigator. That incident, she testified, occurred when she was outside barbecuing and, upon entering the house, she discovered Mr. Doiron sleeping on the sofa. Martin “appeared”, and she initiated intimate relations. The trial judge found that this was noteworthy as evidence of the details she provided were impressive given the circumstances.

The complainant also testified as to details regarding oral sex and different positions taken during penetration. Despite cross-examination, the complainant did not waver or hesitate in her responses. The judge found her credibility was supported by the fact she was comfortable living with Mr. Doiron and the other residents.

In her testimony, she did not deny the fact that all her needs were met at the house and she was happy in her relationship with Martin, although she did have some guilt when she met her new boyfriend. [ 57 ] The judge accepted as fact the complainant’s description of returning to her mother’s home; she was angry, and she said so. The judge found that, despite her disappointment, the complainant’s evidence was delivered without bitterness. He found she remained stoic.

The judge concluded his review by referring to the evidence respecting the number of incidents of sexual interference, the invitation to sexual touching and the penetration. He stated he was satisfied that the complainant, in all the circumstances, testified with sincerity. There were many incidents over a long period, including the penetration that the complainant said took place five times or more. She testified she did not count every time there was a sexual interaction and, since then, she has been wanting to forget them.

The judge said that, despite the arguments put forth by defence counsel, the complainant’s evidence was convincing. Therefore, the judge concluded the inconsistencies and the faults in the testimony of the complainant were harmless and did not affect his overall conclusion. The nature of the sexual contact, the parts of the complainant’s body that were touched, the particular situation when this occurred as well as the intention to obtain sexual pleasure are all elements pertinent for the judge to consider in order to determine whether the act was sexual.

The judge stated that, considering all of the circumstances, a reasonable person would perceive sexual contacts occurred.

(10) Conviction [ 58 ] In the end, the trial judge discounted the evidence of Mr. Doiron’s witnesses concerning his physical inability to commit the alleged conduct, convicted him of sexual interference ( s. 151 (

a) of the Criminal Code ), and of invitation to sexual touching ( s. 152 ). He sentenced Mr. Doiron to consecutive terms of three years and one year of imprisonment respectively for those offences. [ 59 ] Mr. Doiron appeals his conviction on grounds that involve a question of law alone and seeks leave to appeal against his conviction on grounds that involve a question of fact or a question of mixed law and fact and, if leave is granted, appeals his conviction. Mr. Doiron requests this Court to allow the appeal, quash the conviction and order a new trial.

III. Grounds of Appeal [60] Mr. Doiron alleges the trial judge’s findings regarding the credibility and reliability of the complainant are theproduct of material errors of law alone, due to a palpable and overriding error in his overall assessment of the medical evidence relatingto his health issues at the time of the alleged commission of the offences. IV. Standard of Review [61] This Court has been clear: trial judges are in the best position to make findings of fact, weigh evidence andassess the credibility of witnesses at trial.

Therefore, these findings are owed considerable deference on appellate review unless theyadmit of palpable and overriding error, meaning they are obviously or plainly wrong on a review of the record, and they go to the root ofthe challenged finding of fact (Wilson v. R., 2013 NBCA 38, 412 N.B.R. (2d) 100; D.L.M. v. J.A.M., 2008 NBCA 2, 326 N.B.R. (2d)111). [62] In J.N.C. v. R., 2013 NBCA 59, 409 N.B.R. (2d) 310, Richard J.A. (as he then was) explained the concept ofpalpable and overriding: In R. v. Arsenault, 2005 NBCA 110, 295 N.B.R. (2d) 123, at para. 26, and in other cases, including R. v.

Mollins, 2011 NBCA 62, [2011]N.B.J. No. 237 (QL), at para. 14, this Court has adopted the definition of “palpable and overriding” articulated in Waxman v. Waxman, (ON CA), [2004] O.J. No. 1765 (C.A.) (QL): The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error isone that is obvious, plain to see or clear: Housen[, 2002 CSC 33 , [2002] 2 S.C.R. 235 at p.] 246.

Examples of “palpable” factualerrors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on amisapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference. An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact.

Where the challenged finding offact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does notautomatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challengedfinding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, (CSC), [1996] 1S.C.R. 254 at [p.] 281. [paras. 296-97] [para. 15] [63] The role of this Court is not to retry cases, even where the circumstances of the case may seem uncommon ornovel.

It is the role of the trial judge to weigh inconsistencies in the evidence and make appropriate credibility findings in order todetermine guilt. V. Analysis [64] As counsel for the Crown states in his written submission, to characterize the specific factual underpinnings ofthe case at bar as unusual is an understatement. Regardless, the trial judge provided a thorough analysis and considered the whole of theevidence presented at trial without, in any way, disparaging the belief of many of the witnesses that Mr.

Doiron is a medium and has thepower to speak to saints and deceased persons. [65] A review of the record indicates that, after a ten-day trial, the judge undertook a thorough and proper analysisand consideration of all the evidence that was presented at trial. The trial judge provided a 141-page oral decision. He did not treat thissituation as a mere credibility contest between Mr. Doiron’s witnesses and the complainant. Although Mr.

Doiron did not testify, thejudge took into consideration his statements and undertook a W.(D.) analysis, which is an analysis of the conflicting evidence and, in myview, properly applied the reasonable doubt standard as dictated by the W.(D). framework. The trial judge was cognizant of the factors tobe considered, including the contradictions specific to this case and his credibility assessments of all of the witnesses. In E.K.M.,Drapeau C.J.N.B. speaks to the assessment of credibility:

In Moose, it was suggested trial judges should determine credibility by analyzing the evidence of the accused before turning to thecomplainant’s contradictory version of events. That sequence was favored for the following reasons: The danger in dealing with the credibility of the complainant first is that the trial may turn into a contest between the credibility of thecomplainant and the accused and the question of whether the accused’s testimony, though disbelieved, might raise a reasonable doubt isoverlooked.

It is preferable to decide on the credibility of the accused before that of the complainant in order to avoid the inadvertentshifting of the burden of proof which occurs if there is no genuine determination of whether the testimony of the accused raises areasonable doubt. [para. 20] In R. v. T.V.B., 2005 NBQB 473, [2005] N.B.J. No. 564 (QL), Grant J. emphasizes Moose does not purport to make mandatory anyparticular sequence in the assessment of conflicting testimonial accounts. He also points out that the sequence-related views expressed inMoose are not universally shared.

In that regard, Justice Grant adverts to the views expressed by Doherty J.A. in R. v. Carrière, (ON CA), [2001] O.J. No. 4157 (C.A.) (QL): I pause in my review of the trial judge’s instructions to address a submission made by counsel in oral argument. If I understand himcorrectly, he argues that the decision in R. v. W.(D.), supra, mandates that where the accused testifies, the jury must first consider theappellant’s evidence and decide whether that evidence is believed or raises a reasonable doubt before going on to the rest of the evidence. I do not think that R. v. W.(D.), supra, stands for that proposition.

As a matter of common sense, a jury could not assess an appellant’sevidence, except in the context of the rest of the evidence. [...] The instruction suggested by Cory J. does not advise the jury to begin with the evidence of the accused. Rather, it tells them that whenassessing the credibility of the accused, they should approach it in the three stages outlined in the model charge. Properly understood, R.v. W.(D.), supra, does not impose any limits on how the jury proceeds with its deliberative process. [paras. 47-50] See, as well, R. v.

D.A.M., 2010 NBQB 80, 356 N.B.R. (2d) 367, per Ferguson J., at paras. 53 and 56. The Moose approach has failed to attract followers elsewhere. In R. v. Schauman, 2006 ONCJ 304, [2006] O.J. No. 3425 (O.C.J.) (QL),Fairgrieve J. offers the following criticism: The difficulty with such an approach, it seems to me, is that the assessment of credibility is not a linear reasoning process whereindividual factors are given consideration on a seriatim basis or where one version of events is assessed in a vacuum without reference tothe rest of the evidence.

Rather, I think, determinations of credibility require an analysis of the evidence that involves the simultaneousweighing of a multitude of factors. While reasons may have to be organized and presented in a coherent way, it is difficult to accept thatappellate courts have imposed straightjackets on trial judges requiring that witnesses whose credibility is at issue should be considered ina particular order, isolated from the factual context in which at least some tentative assessment of the reliability of other confirmatory orcontradictory evidence may have been made.

The most important factor in assessing a witness’s credibility, I think, remains the assessment of whether the testimony seems plausiblein terms of the inherent likelihood that events occurred as the witness described them. This involves an exercise of what has been referredto as common sense and judicial experience.

As part of that process, it seems to me, a court would inevitably consider the extent to whicha particular witness’s evidence accorded with other factual findings which were either not in dispute or were compelled by other evidenceaccepted or considered reliable by the court. [paras. 6-7] [Emphasis in original.] [paras. 20-22]

[ 66 ] The trial judge referred to W.(D .) and was guided by the standard of proof in his credibility assessment. He was not required to recite verbatim the rule from W.(D .) ; his reasons indicate he clearly understood the concept of reasonable doubt when making credibility determinations. In the end, he gave considered reasons for rejecting the evidence of Mr. Doiron and accepting the complainant’s version of what transpired. In my view, the trial judge analyzed the evidence and weighed all of the applicable factors when he accepted the complainant’s version of the events and not that of Mr.

Doiron or his witnesses. [ 67 ] Mr. Doiron’s sole ground of appeal is the trial judge erred in his overall assessment of the medical evidence relating to his health issues at the time of the offences, especially in taking judicial notice of particular aspects of human sexuality. As a result, the judge’s finding regarding the complainant’s credibility and reliability were the products of material errors. I do not agree. [ 68 ] Throughout her testimony, Dr. Colas explained that with the medication she prescribed to Mr. Doiron, along with [TRANSLATION] “a lot of stimulation,” Mr. Doiron could achieve an erection.

She also stated that, without medication and a lot of stimulation, Mr. Doiron could not achieve an erection. Dr. Colas never described exactly what type of stimulation was necessary, be it visual, mental or manual. During cross-examination of Dr. Colas, the Crown asked her the following: [TRANSLATION] Q. O.k. In the end, the -- the – except for what the patient tells you with respect to his ability, or inability, to have an erection, without a test with medication and visual or manual stimulation , I don’t know -- R. Uh-huh.

Q. -- but, without -- without that test -- without that -- that stimulation, we don’t really know if it works or not, the medication? R. Yes, that’s right. Q. O.K. R. No, because he needs -- he needs to take the medication, he also needs stimulation. Q. Yes. [Transcript, Vol. 7, pp. 125-26] [Emphasis added.] Therefore, the trial judge could take from this exchange that visual stimulation, along with the medication, could result in an erection. [ 69 ] The evidence of Dr. Ford was also central to the issue of Mr. Doiron’s ability to attain an erection.

During direct examination, when asked what was required, along with the medication, for men to achieve erection, Dr. Ford testified: So, what is it — what is required in order to — with this medication in order to — for it to function? A. So, there has to be a visual sexual stimulation . Q. Okay.

A. Or the drug will not work . So, if you just took it and sat in this courtroom, I mean it probably wouldn’t work, so you — actually has to be something going on in the brain to signal to the penile tissue to relay certain enzymes and nitrous oxide to be able to make it work properly . Q. And how does it work? A. So, when you have — when you are sexually aroused, your brain will send a signal to produce nitrous oxide. Nitrous oxide then interacts with a thing called cyclic guanosine monophosphate. That will break down the nitrous oxide leaving the penis to become flat again.

So how the drug works is it has what we call a phosphodiesterase inhibitor number five, which works on sample type — or type five type tissues, and it prevents the breakdown of the cyclic GMP material which will leave the penis harder for a longer period of time. Q. Okay. So, let’s try to use simpler — so just — I know it’s — but what — how does it actually work? A. So, what it does is, it will relax the penile muscle tissue and allow a greater blood flow. Q. Okay. A. Okay, a greater blood flow, you’ll get an erection. Q. Okay, so duration of this medication? Lasts how long did you say? A.

The half-life of the drug is about four to five hours . Q. Okay. What effect, if any, does ejaculation have on the lasting effect? A. Well, when a man ejaculates, generally that shuts off the system and the penis will go soft or flaccid again in a relatively short period of time. If there is no ejaculate, the penis could stay hard for upwards of sixty minutes. [Transcript, Vol. 6, pp. 154-56] [Emphasis added.] Q. Okay. Okay, so I just want to take you — because your — your report is a bit technical, if you will. A. Yes. Q. Okay. So, I just want the judge to — to understand what these various parts of your report.

It’s just because I — A. Yes, it’s pretty complete. Q. Yes. Yeah. So — so when you were requested to provide information on this drug — okay — you went — you explained everything about this drug, right? A. Yes, I did.

Q. Okay. So, let’s just take the general that talks about what? A. The general just kind of tells you where I got the information. So, this would be from the Canadian Health Canada drug database. Q. Okay. The portion that says sexual dysfunction, that deals with what part of your — A. Just that area that’s of — of how the drug kind of works in sexual dysfunction and what’s also involved in sexual dysfunction. So, you have to have the visual, etcetera. Q. Okay. A. And it kind of talks a little about the nerves and release of nitric oxide, etcetera. Q. The Levitra? A. Yeah. Q. The subsequent.

So, you have one, two, three then it talks Levitra indications. So that explains what? A. That is the only indication for this drug and it’s only the treatment of erectile dysfunction or the inability to achieve or maintain penile erection. Q. And to your knowledge, with the report dated (sic) D-11, how long has Mr. Doiron been prescribed Levitra? A. He was first prescribed it on the 24 th of September 2007. Q. Okay, so it’s as far back as that period of time? A. Yes. Q. And, so you have 2007, and what other years did he receive them?

Like — he’s received them continuously (inaudible) this? [Transcript, Vol. 6, pp. 157-58] A. These pills are not inexpensive, so they’re kind of expensive, so most men will get four or eight pills, because insurance companies do not pay for this, so they have to pay for this out of pocket. [Transcript, Vol. 6, p. 159] [ 70 ] Although the medical evidence did not define “stimulation” it is apparent from the evidence provided that visual and mental stimulation were essential to the drug working properly. Dr.

Colas agreed when the Crown stated she had spoken about her patient’s inability to achieve erection when taking the medication without visual or manual stimulation.

[71] Dr. Ford, an expert in pharmacology, explained there has to be “visual sexual stimulation” or else themedication would not work. He testified there had to be something going on in the brain to signal the penile tissue to relay certainenzymes and nitrous oxide to make the medication work properly. [72] Dr. Ford had also filed a report which was received into evidence. Therefore, a review of the record reveals thetrial judge had more than enough evidence before him to infer that, contrary to the evidence of his wife, Mr. Doiron could have achievedan erection. Furthermore, Mr.

Doiron could have taken the drug four hours in advance of the anticipated encounters. [73] The test for drawing inferences comes from R. v. Munoz, (ON SC), [2006] O.J. No. 446(S.C.J.) (QL): (1) are there positive proved facts from which the inference can be made; and (2) can the proposed inference be(reasonably) drawn from the established primary facts? Two facts are undisputed: 1) Mr. Doiron used a sexual performance enhancer,Levitra; and 2) the pharmacy dispensed 12 Levitra pills to Mr. Doiron between March 2013 and March 2014.

The medical evidence wasthat visual stimulation was required in order to make the medication work properly, so Mr. Doiron could achieve erection. Thecomplainant testified to all the sexual touching that occurred. From these proven facts, the trial judge could reasonably infer that Mr.Doiron could achieve an erection without physical stimulation. [74] The medical evidence was not inconsistent with the complainant’s testimony.

The judge accepted thecomplainant’s version of the incidents and found that what occurred provided enough stimulation, along with the medication, for Mr.Doiron to achieve an erection. [75] In my view, the trial judge’s finding regarding Mr. Doiron’s ability to achieve an erection through visualstimulation was not the result of judicial notice but was rather an inference drawn from proven facts: an inference that the stimulation didnot have to be physical.

While the trial judge delved into jurisprudence respecting judicial notice, it seems he attempted to explain whyhe drew the inference that visual stimulation was all that was necessary in the circumstances. The trial judge accepted the complainant’sversion of events and thus believed there was enough stimulation, visual or otherwise, for the Levitra to take effect. There was noevidence to the contrary. [76] In the end, the trial judge accepted the complainant’s version of the events. His findings were the result of athoughtful analysis.

The judge reconciled the various testimonies and made perfectly clear he believed the evidence as presented by thecomplainant. The trial judge considered the evidence tendered by the defence and arrived at a sound conclusion based on the evidencebefore him. Nowhere in the analysis does it appear that he misapprehended the two different versions that were presented. He gave bothversions proper weight and consideration and reconciled the complainant’s version with that of the defence. There was no medicalevidence stating Mr. Doiron could not achieve an erection at the times of the alleged incidents.

The complainant testified Mr. Doironwas erect during the times in question and this occurred without manual or oral stimulation. Although the defence tendered evidencefrom Ms. Doiron, who testified that during sexual relations with Mr. Doiron she had to manually or orally stimulate his penis in order forhim to achieve an erection, one version does not preclude, contradict or vitiate the other. It is apparent the trial judge was alive to thisissue and explained it well in his decision. [77] In arriving at that conclusion, the judge recognized the onus of proof rested with the Crown and he could onlyconvict Mr.

Doiron if he was satisfied of his guilt beyond a reasonable doubt. [78] When read as a whole, the judge’s reasons clearly indicate how he arrived at his decision. He carefullyexplained why he rejected the defence evidence and in turn accepted the complainant’s testimony, thus providing a basis for meaningfulappellate review. This is all that is required. In my view the judge correctly applied the burden of proof and correctly assessedcredibility; therefore, the decision is not open to appellate intervention. VI.

Conclusion [79] Although I would grant leave to appeal the conviction, having found no error of law or any palpable andoverriding error of fact or mixed law and fact that would justify appellate intervention, I would dismiss the appeal.

Version française de la décision de la Cour rendue par LA JUGE QUIGG I. Introduction [1] Il s’agit d’un appel de la décision d’un juge de la Cour provinciale du 21 novembre 2018 déclarant M. Doiron, un soi-disant médium, coupable d’avoir enfreint l’ al. 151a) (contacts sexuels) et l’art. 152 (incitation à des contacts sexuels) du Code criminel et le condamnant à une peine d’emprisonnement de quatre années en tout. M.

Doiron prétend que le juge du procès a commis une erreur dans ses conclusions concernant la crédibilité de la plaignante et dans son évaluation globale de la preuve médicale relativement à la capacité de M. Doiron de commettre les infractions. II. Aperçu des faits [2] Au moment des incidents, M. Doiron, âgé à l’époque de 53 ans, habitait Memramcook avec sa femme et la sœur de celle-ci (toutes deux tantes de la plaignante) ainsi qu’avec le mari de sa belle-sœur. La mère de la plaignante est la sœur de M me Doiron.

Avant les agressions, la plaignante, âgée de 15 ans, habitait avec sa mère à environ six kilomètres de là; cependant, elles avaient des conflits. Après une dispute entre la plaignante et sa mère, celle-ci a discuté de la situation avec M. Doiron, et il fut décidé que la plaignante irait vivre chez M. Doiron jusqu’à la fin de l’année scolaire pour calmer la situation. En réalité, la plaignante y est restée du 2 juin 2013 au 1 er mars 2014, jusqu’à ce que ses problèmes avec sa mère fussent résolus. [3] Vers la fin juin 2013, la mère de la plaignante s’est rendue au domicile de M.

Doiron pour lui rembourser les dépenses que ce dernier avait prises en charge en s’occupant de sa fille. Selon la mère, au cours de leur entretien, M. Doiron l’a informée qu’il avait saisi l’occasion, à l’époque du bal de fin d’année, pour parler de sexe avec la plaignante. La mère de la plaignante a dit que, lorsqu’elle a avisé M.

Doiron qu’elle n’approuvait pas la tenue de cette discussion avec sa fille, il l’a accusée d’avoir mis sa fille à la porte et a indiqué qu’il avait consulté un avocat, qui lui avait dit que la plaignante pouvait rester avec lui et les autres membres de sa famille tant qu’elle le voulait.

À la fin de l’année scolaire, constatant que sa fille ne souhaitait pas lui parler et ne reviendrait pas à la maison, la mère de la plaignante s’est adressée au ministère du Développement social pour qu’on l’aide à se réconcilier avec sa fille. [4] Une travailleuse sociale a ouvert un dossier et a dressé un plan de réconciliation en vue du retour de la plaignante à la maison. Elle a consulté M. Doiron et les autres membres du ménage. Le plan s’est bien réalisé, si ce n’est que la mère de la plaignante n’a eu aucune communication avec M.

Doiron ou ses cohabitants, sauf pour payer les factures de l’entretien de sa fille. À l’automne 2013, la plaignante est entrée au secondaire, en neuvième année. Plusieurs mois plus tard, la mère a commencé à avoir des sorties avec sa fille et la situation s’est améliorée, mais la fille n’était toujours pas prête à rentrer à la maison. [5] Paraît-il que M. Doiron est un médium, capable de communiquer avec les esprits de personnes défuntes et de saints. Cela est reconnu par les membres de sa famille (y compris la mère de la plaignante), qui sont persuadés que M. Doiron a le pouvoir de communiquer avec les esprits.

Selon les témoignages des membres de la famille, pour communiquer avec ces esprits, M. Doiron a l’habitude de se coucher sur un sofa et de se mettre à [TRADUCTION] « rêver », et les esprits parlent par son entremise. Les esprits livrent des messages d’espoir et à connotation positive. Pendant qu’elle habitait chez ses tantes et leurs maris, la plaignante est tombée amoureuse de l’[TRADUCTION] « esprit » d’un garçon de seize ans, du nom de Martin, par l’intermédiaire de M. Doiron, et a connu au moins 15 épisodes d’interactions sexuelles avec « Martin ». C’était un jeune homme qui s’était suicidé.

La plaignante sentait qu’il lui apportait de l’aide du fait qu’elle pouvait se confier à lui. [6] En mars 2014, des dispositions ont été prises en vue du retour de la plaignante à la maison. Le déplacement n’a pas été facile et, peu après son retour, la plaignante a subi une crise de santé mentale. La plaignante voulait retourner vivre avec M. Doiron et les autres membres de sa famille parce que « Martin » lui manquait. Lorsqu’elle est rentrée à la maison, la plaignante a révélé qu’elle avait eu des interactions sexuelles avec M. Doiron. Peu après, un travailleur social a contacté la police. A.

La preuve au procès

[7] Au procès, le ministère public a appelé sept témoins : la plaignante, sa mère, une autre des sœurs de sa mère, un travailleur social et trois agents de la GRC. M. Doiron, qui n’a pas témoigné, a appelé six témoins : sa femme, sa belle-sœur, son beau-frère qui habitait avec lui, sa médecin de famille, son urologue et son pharmacien.

(1) La plaignante [8] La plaignante a témoigné qu’elle ne s’entendait pas avec sa mère, donc il était prévu qu’elle aille vivre chez ses oncles et tantes au début juin 2013. Elle croyait qu’elle y resterait jusqu’à la fin de l’année scolaire, et le plan visait la reprise de ses rapports avec sa mère. En fin de compte, elle y est restée jusqu’au 1 er mars 2014.

Elle a dit que le déplacement était regrettable d’un certain côté, mais qu’il était nécessaire pour le rétablissement des rapports avec sa mère. [9] Au sujet des arrangements par rapport au ménage des Doiron, elle a témoigné qu’elle se rendait chaque jour à l’école. Elle a décrit la résidence comme une grande maison de trois étages. Chaque couple avait sa propre chambre avec salle de bain; elle aussi avait sa propre chambre et son propre accès à une salle de bain. Il y avait en plus une chambre d’amis.

Au deuxième étage, il y avait une cuisine, une salle d’ordinateur et un solarium avec sofa, causeuse et téléviseur. Au sous-sol, il y avait un cinéma maison ainsi qu’un petit salon de coiffure utilisé par une de ses tantes pour coiffer les membres de la famille et des amis. Habituellement, la tante travaillait comme coiffeuse hors de chez elle dans un commerce de Dieppe. [10] La plaignante a témoigné qu’elle considérait M. Doiron comme son père de substitution, étant donné qu’elle n’avait pas de père. Elle a expliqué que son père biologique et sa mère s’étaient séparés quand elle était jeune.

Elle a témoigné que les contacts sexuels avaient eu lieu à des moments où elle était seule à la maison avec M. Doiron. Cela avait commencé par des attouchements, qui aboutirent au fil du temps à de la pénétration vaginale. Elle a déclaré qu’elle voyait bien que M. Doiron avait un rang social dans la collectivité parce qu’il avait un don spécial. Selon elle, M. Doiron a dit que des anges apparaissaient devant lui et qu’il avait un parfum spécial qui pouvait faire apparaître des esprits. Elle a témoigné que tous les membres de sa famille étaient persuadés que M.

Doiron avait un pouvoir spécial de parler aux saints, comme sainte Anne, ou aux esprits des morts. Elle a dit qu’elle avait été témoin de séances au cours desquelles des esprits entraient dans le corps de M. Doiron et parlaient par son entremise. La plaignante a mentionné plusieurs esprits, mais elle se souvenait en particulier d’un esprit du nom de Chen Su, de l’ange Michel et finalement de Martin. Pendant les séances où des esprits entraient dans le corps de M. Doiron, il revêtait la personnalité de l’esprit.

Pour cela, dit-elle, il s’étendait sur un sofa, car il avait besoin de relaxer pour encourager les esprits à venir. Une fois les esprits dans son corps, il prenait de grandes respirations et, quelques secondes plus tard, l’esprit se mettait à parler. Un esprit connu de toute la famille était Chen Su, la femme de M. Doiron dans une autre vie. [11] La plaignante a dit que, lorsqu’elle était allée vivre chez M. Doiron et les autres membres de la famille, il y avait des occasions où elle était seule avec lui.

Elle a témoigné qu’à une occasion, vers le début juin 2013, lorsqu’elle est revenue de l’école intermédiaire, M. Doiron était seul à la maison et communiquait avec l’esprit Chen Su. L’esprit a dit à la plaignante que, si elle avait des questions, elle pouvait en discuter avec [TRADUCTION] « elle ». La plaignante a témoigné qu’elle a saisi l’occasion pour parler à Chen Su d’une chose qui la préoccupait : une blessure causée par une brûlure à sa poitrine. L’esprit a proposé de lui toucher les seins. Ensuite, l’esprit / M.

Doiron a touché de ses mains les seins de la plaignante et a tenté de toucher sa zone génitale, mais la plaignante a dit qu’elle ne le voulait pas et a repoussé rudement la main de M. Doiron. La plaignante a dit que Chen Su lui avait dit qu’il était normal pour les filles de faire ces choses et qu’il n’y avait rien de mal à cela. [12] La plaignante a dit que Chen Su était apparue de nouveau quelques jours plus tard et qu’elle voulait savoir si elle souhaitait parler à quelqu’un de son âge, car Chen Su était capable de trouver un esprit dont l’âge serait celui de la plaignante.

Elle a témoigné que, ayant peu d’amis à cette époque, elle avait accepté l’offre. Elle a dit que, quelques jours plus tard, l’esprit Martin était entré dans sa vie par l’intermédiaire de M. Doiron. Martin était gentil, mais il n’est pas resté longtemps et elle n’était pas certaine, cette première fois, s’il s’agissait d’une fille ou d’un garçon. Au fil du temps, Martin lui est apparu plus souvent, mais il était plus réservé avec sa tante et les autres habitants de la maison. Il ne parlait pas devant les autres comme il le faisait avec elle quand elle était seule avec M. Doiron.

La plaignante a dit que Martin a fini par expliquer qu’il était un jeune homme de 16 ans qui s’était suicidé. Il devait se rendre à une soirée dansante avec une fille. La fille l’a abandonné et, quand il est arrivé à la danse, les autres élèves se sont moqués de lui. Par la suite, Martin a décidé de retourner chez lui, mais, avant d’y arriver, il s’est suicidé en sautant d’un pont. Martin a aussi dit à la plaignante que son père était violent

[…]