R v Jovel, 2019 MBCA 116

Citation: R v Jovel, 2019 MBCA 116 Date: 20191121 Docket: AR18-30-09091 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella BETWEEN: ) M. S. Minuk andher majesty the queen ) M. M. Gallagher ) for the Appellant ) Respondent ) J. M. Mann and ) D. Y. Simard- and - ) for the Respondent ) ramon eduardo jovel ) Appeal heard: ) June 14, 2019 ) Accused (Appellant) ) Judgment delivered: ) November 21, 2019 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). On appeal from 2018 MBQB 21 mainella JA Introduction [1] After a trial by a judge without a jury, the accused, a family doctor, was convicted of one count of sexually assaultinga female patient contrary to

section 271 of the Criminal Code (the Code). He appeals the conviction. [2] The allegations were that he performed unnecessary internal vaginal examinations, made inappropriate sexualcomments while doing so and, ultimately, proposed intercourse while sexually touching the complainant. He categorically denied all ofthe allegations but admitted that, if the acts alleged occurred, the offence would be proven. [3] As is often the situation in sexual assault cases, the central task of the judge was to evaluate the evidence of thecomplainant and the accused.

Her analysis of the conflicting testimony was complicated by the fact that Spanish was the first languageof many witnesses at the trial; the incidents occurred more than 20 years ago; the medical charts had been destroyed; and there was arisk of the contamination of the memories of the witnesses at a professional discipline hearing, which occurred before the criminal trial. [4] The judge applied the framework in R v W(D), (SCC), [1991] 1 SCR 742 at 758.

She disbelieved theaccused’s denials and, when considered in the context of the evidence as a whole, was not left with a reasonable doubt by the exculpatoryevidence. Despite the passage of time and some frailties with the complainant’s evidence, the judge found that her description of eventswas “extremely compelling” and that her testimony was “both credible and reliable” (at para 76).

Based on the evidence as a whole, shewas satisfied of the accused’s guilt beyond a reasonable doubt. [5] Three grounds of appeal are pursued by the accused: (1) the judge misapprehended his evidence; (2) she unevenlyscrutinised his testimony with that of the complainant; and (3) the verdict was unreasonable. The Crown responds by arguing that eachof the points raised are nothing more than a different way of inviting this Court to retry the case. [6] For the following reasons, I would dismiss the appeal.

Background The Doctor-Patient Relationship [ 7 ] In 1991, the complainant, then age 18, came to Winnipeg as a refugee from El Salvador. She had an irregular menstrual cycle for which the accused treated her with birth control pills. Over a three-year period, he saw her regularly for her menstrual condition and other health issues. The standard medical care for an irregular menstrual cycle does not require a doctor to do an internal vaginal examination unless the patient is sexually active, which was not the case with the complainant.

During the trial, appropriate care was taken by the judge and counsel as to the admissibility and use of evidence about the complainant’s virginity in a manner that did not contravene either sections 276 or 277 of the Code (see R v RV , 2019 SCC 41 at para 81 ). The Complainant’s Evidence [ 8 ] Each time the complainant saw the accused for her irregular menstrual cycle, he did an internal vaginal examination. As of the third appointment, a chaperone was not present and a pattern developed. She would undress and cover herself with a robe or blanket.

He turned the lights off and told her to close her eyes to reduce her embarrassment. He said that he had to “collect the fluid” to see if she was ovulating. In time, he stopped wearing gloves and said, in order to get “more fluid”, he needed to massage her breasts and stimulate her clitoris. Afterwards, he showed her the vaginal discharge on his fingers. He made sexually explicit remarks while examining her, such as saying she was “built” for multiple orgasms, unlike his wife. [ 9 ] The complainant’s final appointment was on a Saturday in the spring of 1994. Nobody else was present at his office.

He locked the office door and told her to get undressed. He commented on how “pretty” her panties were. She did not recall wearing anything or being covered while being examined. As before, he turned the lights off. As he began to touch her vagina and breasts, he told her that he had “fallen” for her and he thought the feeling was mutual. He said he wanted to have intercourse but didn’t want to hurt her because he knew she was a virgin. He unzipped his pants. He then started to rub against her left hip. She could feel his erect penis beneath his underwear. His breathing became heavier. He kissed her.

She feared being raped, got up and fled to the bathroom to get dressed. He followed and began to grope her. She left, stopped seeing him and changed doctors. [ 10 ] Other than speaking to her mother and her friend A., the complainant remained silent because of distrust of the police from her upbringing in El Salvador and concern of what may happen to the accused’s wife and family. In 2000, she left Winnipeg and moved to Florida. She moved back in 2010.

On November 6, 2010, based on the suggestion of her therapist, she filed a complaint against the accused with the College of Physicians & Surgeons of Manitoba (the College). The Evidence of the Complainant’s Mother and A. [ 11 ] In her evidence, the complainant’s mother confirmed that the complainant was treated for an irregular menstrual cycle in El Salvador, and then by the accused from 1991-94, until she said she wanted a female doctor.

There were discrepancies between the evidence of the complainant and her mother as to the details of the treatment in El Salvador and of the first meeting with the accused in 1991, as well as to whether the complainant told her mother in 1994 that the reason for the change of doctors was because of the accused’s conduct. [ 12 ] A. testified to rebut an allegation of recent fabrication. She confirmed the complainant’s evidence that, in conversations beginning after an incident at the Winnipeg Airport in 1994, the complainant told her about the accused’s behaviour.

There were discrepancies between the evidence of the complainant and A. as to what happened at the airport and the details of what the accused did at the final appointment in 1994. The Case for the Defence [ 13 ] The accused denied ever doing an internal vaginal examination of the complainant or touching her breasts. He said any gynecological exam is chaperoned, usually by a nurse or his assistant, his wife. He also denied making any inappropriate sexual comments.

He explained that follow-up appointments to treat an irregular menstrual cycle are standard to ensure the birth control pills are working without side effects. He said that, while he did see patients on Saturdays, he did not see the complainant on a Saturday. He said the physical layout of the examination room would have made it impossible for him to touch his penis to the complainant’s left hip because the left side of the patient’s body directly faced a wall. [ 14 ] In her evidence, the accused’s wife confirmed that the complainant was a patient of the accused.

She did not recall chaperoning a gynecological examination of the complainant. She said that the accused would go into his office on Saturdays by himself. One of her tasks was to prepare billings for services provided by the accused. She prepared these based on patient medical charts.

Professional Discipline Process [ 15 ] All five witnesses who testified at the trial were previously interviewed by the College and testified before the inquiry panel created by the council of the College, in accordance with The Medical Act , CCSM c M90 (since repealed). [ 16 ] The complainant’s medical charts were unavailable because they had been destroyed after 10 years, in accordance with the policy of the College.

The College did obtain the accused’s billing records from the Manitoba Health Services Commission (the billing records) which set out the dates on which he billed for treating the complainant and for what purpose. During the professional discipline process, both the accused and the complainant reviewed the contents of the billing records.

The billing records were referred to at the accused’s trial in 2017, but were not exhibits at it. [ 17 ] On September 22, 2014, the inquiry panel dismissed the complaint against the accused because it was unable to conclude that it was more probable than not that the allegations occurred. The complainant was unsatisfied with the decision and went to the police who, after an investigation, charged the accused with sexual assault.

The Judge’s Decision [18] In her reasons, the judge identified inconsistencies in the evidence of the complainant and the accused, internal to theirtestimony or in conflict with other witnesses. For the most part, she called these inconsistencies “minor” (at paras 58, 67), as they weresatisfactorily explained or related to peripheral matters. [19] She disbelieved the accused’s denial of sexually touching the complainant because of two internal inconsistencies in histestimony.

She described these aspects of his evidence as “very troubling” (at para 60). [20] The first related to the accused’s memory of treating the complainant. On direct examination, he said he recalled thecomplainant as a patient; on cross-examination, he agreed he had no independent recollection of treating her.

The judge stated, “How,without an independent recollection of the complainant as a patient can he recall, as he testified, that he never saw her on a Saturday . . .never examined her breasts or gave her an internal examination” (at para 60). [21] The other concerned his memory of the complainant’s sexual activity. On direct examination, he said he had no reasonto do an internal vaginal examination because she was, as he put it, a “virgin, not sexual[ly] active”.

On cross-examination, when he wasasked if he had an independent recollection as to whether she told him she was sexually active, he said, “No, I don’t remember.” Although the complainant testified that the accused had told her at the final appointment that he “knew” she was a “virgin”, the judgewas “troubled” (at para 61) by this inconsistency because, “[the complainant] being a virgin is central to his explanation as to why henever conducted an internal examination” (ibid). [22] The judge considered whether these inconsistencies could be explained by an innocent explanation.

She decided therewas no satisfactory explanation for these inconsistences. She said that, “regardless of the inconsistencies, I am fundamentally troubledby him testifying to certain specifics about the complainant – such as him never examining her breasts or conducting an internalexamination – after more than 25 years and without the benefit of his charts” (at para 63). [23] The judge’s overall impression of the complainant’s evidence was that she was “exceptionally forthright and direct.

She presented with clarity, providing considerable detail but not more than one would expect after so many years” (at para 66). Thejudge said that much of her testimony about the “background and context” (at para 73) of the events was confirmed by the testimony ofher mother, the accused and his wife (see paras 73-74). [24] The judge found that one of the inconsistencies with the complainant’s evidence was, however, on a “material matter”(at para 71). It related to her evidence that the accused touched her left hip with his erect penis at the final appointment.

The judge saidshe had no reason to not believe the accused that the layout of medical examination rooms are standard and, therefore, the complainant’sleft hip would have been facing a wall while her legs were in stirrups. The judge described the effect of this inconsistency this way(ibid): But even if the complainant is wrong on this point, it relates to only one part of the events of her last attendance on the accused.

Andwhen I consider the totality of her evidence, especially in light of the supporting evidence, this discrepancy is not sufficient to discredither generally, including about what occurred that Saturday. Discussion Introduction [25] This appeal is one of a steady diet this Court hears where we are asked to overturn findings of fact made by a trialjudge. As is often the case, while a legal error is alleged, the principal focus of the appeal is about how factual disputes were resolved atthe trial. Accordingly, this Court must be constantly mindful that its function is not to decide factual issues de novo.

As was explainedin HL v Canada (Attorney General), 2005 SCC 25, “In the absence of a clear statutory mandate to the contrary, appellate courts do not‘rehear’ or ‘retry’ cases. They review for error” (at para 52).

The Law Regarding Evaluation of Witness Testimony and the Scope of Appellate Review [26] The evaluation of witness testimony is often determinative because trials turn largely on the facts, not the law, and adecision made as to the reliability and credibility of oral evidence is unlikely to be overturned by an appeal court. [27] Despite the importance of the analysis of witness testimony, there is little in the way of legal guidance to decidewhether a witness is credible (i.e., willing to be truthful) and reliable (i.e., the factual accuracy of observation, perception or recollection).

Historically, in the common law system, the trier of fact is simply told to use logic, life experience and intuition to decide whethertestimony is accepted or not, and to what degree (see White v The King, (SCC), [1947] SCR 268 at 272; R v François, (SCC), [1994] 2 SCR 827 at 838; R v Marquard, (SCC), [1993] 4 SCR 223 at 248; and R v Pan; R vSawyer, 2001 SCC 42 at para 61). [28] Decisions as to the credibility or reliability of a witness are questions of fact determined by an “assessment of thewitness and on consideration of how an individual’s evidence fits into the general picture revealed on a consideration of the whole of thecase” (R v Béland, (SCC), [1987] 2 SCR 398 at para 20). [29] Absent legal error, there is a narrow focus to appellate review of a trial judge’s evaluation of testimony.

Significantdeference is afforded on appeal to findings of fact for the reasons of: (1) limiting the number, length and costs of appeals; (2) promotingthe autonomy and integrity of trial proceedings; and (3) recognising the expertise of the trial judge and his or her advantageous position

(see Housen v Nikolaisen, 2002 SCC 33 at paras 14-18). [30] The standard of review for an appeal court as to an evaluation of testimony is, like any other finding of fact, palpableand overriding error (see R v Gagnon, 2006 SCC 17 at para 10; and HL at para 53), meaning that there must be an obvious error that canbe identified and that error is shown to have affected the result (see HL at para 55; R v Clark, 2005 SCC 2 at para 9; and Benhaim v St-Germain, 2016 SCC 48 at paras 38-39).

Issue One—Allegation of Misinterpretation of the Accused’s Testimony [31] A miscarriage of justice within the meaning of section 686(1)(a)(iii) of the Code occurs when a verdict is reached by amisapprehension of the evidence. There are two aspects to a successful claim of a misapprehension of the evidence. Themisapprehension must be a “readily obvious” error that goes to the substance of the material parts of the evidence rather than to the detail(R v Sinclair, 2011 SCC 40 at para 53).

If that first hurdle is met, it must be further demonstrated that the error played an essential partin the reasoning process resulting in the conviction, which means that striking the error “would leave the trial judge’s reasoning onwhich the conviction is based on unsteady ground” (Sinclair at para 56; see also R v Lohrer, 2004 SCC 80 at paras 1, 4, 9). [32] The accused advanced several alleged misapprehensions of the evidence by the judge; only one submission meritscomment.

That argument raises whether there was a readily obvious error as to the substance of the material parts of the evidence,namely, the accused’s recollection of treating the complainant. [33] The accused says that the judge misapprehended his evidence as to whether he remembered treating the complainant asa patient and also the necessity of performing an internal vaginal examination given the complainant’s virginity because the judgeignored his evidence that his memory of events had been refreshed by participating in proceedings at the College and reviewing thebilling records.

He says, when his evidence is properly understood in that context, there are no internal inconsistencies to it. The fatalflaw to this submission is that it asks this Court to reinterpret the accused’s evidence. [34] In R v Whiteway (BDT) et al, 2015 MBCA 24, the following

summary was provided as to what is, and what is not, amisapprehension of the evidence (at para 32): A misapprehension of evidence may refer to a mistake as to the substance of evidence, a failure to consider evidence relevant to amaterial issue or a failure to give proper effect to evidence (R. v. Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161 atpara. 83; and R. v. Sinclair, 2011 SCC 40 at para. 13, [2011] 3 S.C.R. 3). A misapprehension of the evidence is not to be confused with adifferent

interpretation of the evidence than the one adopted by the trial judge (R. v. Lee, 2010 SCC 52 at para. 4, [2010] 3 S.C.R. 99). Itis insufficient that the judge may have misapprehended the evidence; the error must be readily obvious (Sinclair at para. 53). [35] As part of its duty to not usurp the function of a trial judge, an appellate court cannot characterise a trial judge’sinterpretation of evidence as a misapprehension simply because it does not agree with it, it raises some unease or concern, or it may be amistake (see R v CJ, 2019 SCC 8, adopting 2018 MBCA 65 at paras 67-68; and Sinclair at para 53). This is particularly the case whenthe

interpretation of evidence is based on a credibility assessment, because assessing credibility is not a science and, given the manyfactors that go into such decisions, it is not always amenable to precise articulation by a trial judge (see Gagnon at para 20; and R vREM, 2008 SCC 51 at para 49). [36] I fail to see what is the readily obvious error here as to the substance of the material parts of the evidence regarding theaccused’s recollection as to treating the complainant.

It is not the function of this Court to reinterpret the accused’s evidence morefavourably than did the judge based on a minute study of the lifeless text of a transcript. In her reasons, the judge made it clear that shewas alive to, but rejected, the possibility that any discrepancy in the accused’s testimony as to his recollection of treating the complainantmight be because of “having his memory refreshed by looking at the documents” (at para 63).

Issue Two—Claim of Uneven Scrutiny [37] Evaluation of evidence by different standards is an error of law that undermines the fairness of a trial and can give riseto a miscarriage of justice within the meaning of section 686(1)(a)(iii) of the Code (see R v JSW, 2013 ONCA 593 at paras 55-56; and Rv CAM, 2017 MBCA 70 at para 33). Such an error necessitates the remedy of a new trial even if the record is otherwise capable ofsupporting the conviction (see R v TT, 2009 ONCA 613 at para 74). [38] A claim of uneven scrutiny of the evidence is easily made, but seldom successful.

It must be clear from the trialjudge’s reasons, or the record, that different standards were applied.

For example, a “tolerant and relaxed” view of frailties with theevidence of the Crown is taken, but the evidence of the defence is rejected based on “irrelevant, tenuous and speculative observationslargely about collateral matters” (R v Gravesande, 2015 ONCA 774 at para 42) or, after a functional view of the reasons, it can be saidthat the trial judge abdicated his or her responsibility to critically assess whether frailties in the evidence of the Crown created areasonable doubt (see R v Willis, 2019 NSCA 64 at para 44).

In consideration of an uneven scrutiny claim, the appellate court mustagain take care to not overstep its role and retry the case; an evaluation of testimony may only be interfered with where it cannot besupported on any reasonable view of the evidence (see CAM at paras 34-37; and R v MJB, 2015 ABCA 146 at para 33, aff’d 2015 SCC48). [39] The accused advances three arguments as to an uneven scrutiny of the evidence by the judge. [40] First, the accused says the judge ignored inconsistencies between the testimony of the complainant and that of hermother, A. and the evidence from the accused that the judge accepted regarding the possibility of his erect penis touching her left hip.

This argument is unpersuasive. [41] As is the case with any witness, the judge had the right to resolve the frailties with the complainant’s testimony by

accepting all, some or none of the testimony, and also assign differing weight to the parts of the testimony that she accepted (see S CaseyHill, David M Tanovich & Louis P Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters, 2013)(loose-leaf updated 2019, release 3), pt VI, ch 30 at para 30:20.20 (online: WLNext Can (date accessed 21 October 2019))). There isnothing in the judge’s reasons, or the record, which clearly shows that she used a different lens to assess the testimony of the accused andthe complainant. She fairly summarised the evidence she heard.

She equally identified and weighed the inconsistencies for both thecomplainant and the accused, as well as any explanation for a discrepancy. She did not use minor or collateral inconsistencies indifferent ways.

The mere fact the judge accepted, for the most part, the complainant’s version of events despite contradictory evidencefrom other witnesses in the trial, including the accused, does not clearly establish that she unevenly scrutinised the evidence, even ifanother trier of fact may have assessed credibility differently (see CAM at paras 35-36). [42] The second submission of the accused is that the judge ignored a material inconsistency when assessing thecomplainant’s credibility. In her testimony, the complainant said she could not recall being covered at the final appointment.

Sheagreed with the suggestion put to her on cross-examination that she was “naked”. Her testimony was then contradicted with her earlierstatement in 2011 to investigators with the College, where the complainant had said she thought she was always covered when examinedby the accused.

She explained this inconsistency by stating that she remembered feeling “vulnerable” as there was “nothing between[her] and his hands” and that she had some difficulty recalling precise details of the touching when she was first interviewed in 2011because it seemed like a “bad dream.” She agreed with the suggestion put to her that her memory of events in 1994 had “improved”between the 2011 statement and the trial in 2017. [43] The absence of reasons as to why evidence on a critical fact in dispute is accepted, despite obvious frailties, can be asign of uncritical analysis of the evidence by a trial judge that can justify appellate interference with a credibility assessment (see R vBurke, (SCC), [1996] 1 SCR 474 at para 53). [44] I agree with the accused’s submission that it was incumbent on the judge to critically analyse the effect of thecomplainant’s testimony, that her memory of what happened 23 years previously had become clearer the more she “remember[ed][herself] in that situation”, on her credibility.

It is well accepted that a memory of events fades with time. As Lord Pearce explained inOnassis and Calogeropoulos v Vergottis, [1968] 2 Lloyd’s Rep 403 (HL), “with every day that passes the memory becomes fainter andthe imagination becomes more active” (at 431). [45] However, based on a functional view of the judge’s reasons, I see nothing to suggest she abdicated her responsibility tocritically assess this obvious frailty with the complainant’s evidence and, particularly, whether it undermined the case for the Crown.

She specifically considered the conflicting versions as to the state of nudity of the complainant at the final appointment and herexplanation for changing her evidence at trial from what she told investigators at the College.

The judge’s finding was that this was a“minor” inconsistency (at para 67), stating, “It strikes me as believable that [the complainant] would have felt naked – even if she hadpaper clothing or a paper blanket or some other form of cover provided by the accused” (ibid). [46] I am not persuaded that the judge’s finding cannot be supported on any reasonable view of the evidence (see CAM atpara 37). The complainant was unequivocal in her testimony as to how “vulnerable” she “felt” by what the accused was doing at thefinal appointment.

The judge clearly accepted that explanation as being reasonable enough to diffuse the negative effect theinconsistency had on the complainant’s evidence. [47] While an alleged inconsistency is a consideration in evaluating testimony, equally so is the reasonableness of anyexplanation for it (see François at pp 839-40; and R v WH, 2013 SCC 22 at paras 45-46). The corrosive effect of an inconsistency on thecredibility or reliability of evidence decreases and may be neutralised altogether if there is a satisfactory explanation.

The converse isalso true: unexplained, unsatisfactory or dishonest explanations for an inconsistency increase the likelihood that the trier of fact will notaccept the evidence in whole or in part. [48] In my view, it would be inappropriate for this Court to interfere with the judge’s perception and

interpretation of thecomplainant’s evidence of her final appointment. It was open to the judge, applying her common sense and experience and with thebenefit of familiarity with the tableau of all of the evidence at the trial, to come to the decision she did as to the significance of theinconsistencies raised about what the complainant was wearing while being touched and whether it was her left hip which had contactwith the accused’s erect penis.

This Court brings no special insight or judicial experience to better assess the evidence of a sexual assaultcomplainant over that of a trial judge (see R v RP, 2012 SCC 22 at para 13; and WH at paras 45-46). Further, it is not the role of thisCourt to “second-guess the weight to be assigned to the various items of evidence” (Housen at para 23). [49] The final assertion of uneven scrutiny relates to the judge’s comments on demeanour. She said the accused was “quitedefensive during much of his testimony” (at para 59).

The accused says that comment was unjustified given the record and, moreover,the judge should have had concerns about the complainant’s demeanour, which he described in his factum as being “argumentative,defensive and embellished”. I see no clear indication in the record or the judge’s reasons to support this submission.

Furthermore, itdoes not assist the accused, given the fact that the judge explicitly said that her negative assessment of the credibility of the accused wasnot based on his demeanour while testifying, which she was satisfied was attributable to him having to testify to a serious allegation“without the benefit of his clinical charts” (at para 59). [50] In

summary, I am not persuaded that the judge took an incongruent approach to the evidence and would not accede tothis ground of appeal. Issue Three—Reasonableness of the Verdict [51] In order to determine whether a verdict is unreasonable within the meaning of section 686(1)(a)(

i) of the Code, theappellate court must decide: (1) whether the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably haverendered; and (2) whether the trial judge has drawn an inference or made a finding of fact essential to the verdict that: (

i) is plainlycontradicted by the evidence relied on by the trial judge in support of that inference or finding; or (ii) is shown to be incompatible withevidence that has not otherwise been contradicted or rejected by the trial judge (see RP at para 9; and Sinclair at para 22).

[52] In considering whether a verdict is unreasonable, the appellate court must re-examine and, to some extent at least,reweigh and consider the effect of all of the evidence at the trial through the lens of judicial experience with due regard to the advantageenjoyed by the trial judge. Ultimately, an evaluation of testimony may only be interfered with where it cannot be supported on anyreasonable view of the evidence (see R v W (R), (SCC), [1992] 2 SCR 122 at 131-32; Burke at paras 3-7; Gagnon at para10; R v Beaudry, 2007 SCC 5 at para 63; RP at para 10; WH at para 34; and R v Walker, 2015 MBCA 69 at para 15).

In particular, whena conclusion on a disputed fact turns on an assessment of the credibility of witnesses, it will be only in the rarest of instances where thatassessment cannot be supported on any reasonable view of the evidence (see Burke at para 7; Gagnon at para 20; and R v Vuradin, 2013SCC 38 at para 11). [53] The accused argues in his factum “that the evidence adduced at the trial when examined in totality is incapable ofsupporting the conviction.” He relies on the submissions that the judge misapprehended his evidence, the complainant’s evidence wasfraught with overwhelming inconsistencies and discrepancies, and she had an ill motive to contact the police because she testified she didnot “feel like justice . . . had been served” by the inquiry panel dismissing her complaint to the College. [54] I will begin with the last submission as to the complainant having an ill motive.

The argument is not persuasive. Aninference about credibility, one way or the other, cannot be drawn from speculative or unclear evidence of motive. There is no expectedbehaviour as to the manner and timing of disclosing an allegation of sexual assault (see R v DD, 2000 SCC 43 at paras 60-65). Sexualassault is an underreported crime.

It is impermissible to reason that a sexual assault complainant may have a motive to fabricate simplybecause the police were not told about the sexual assault first or soon after it occurred. [55] Leaving aside the unchallenged evidence of the complainant having a genuine distrust of the police based on herupbringing, which her mother corroborated, it is also important to remember that both the police and the Crown were well aware that theinquiry panel had dismissed the allegations, yet a criminal charge was nevertheless pursued after a police investigation.

The decision-making independence of these actors in the justice system cannot be glossed over. Those institutions, in differing ways, controlled thecriminal prosecution of the accused, not the complainant. In my view, it would be inappropriate to accept the submission that somehowthe complainant’s decision to continue to seek justice after the decision of the inquiry panel affects her credibility. [56] Little more needs to be said about the accused’s next argument that the verdict is unreasonable because the judgemisapprehended his evidence.

I am satisfied she did not commit a palpable and overriding error in rejecting his evidence, and in notbeing left with a reasonable doubt because of it and the other exculpatory evidence.

The negative credibility assessment of the accusedwas open to the judge on the record and she took great care to not simply leap to the conclusion of disbelieving him without firstconsidering innocent explanations for inconsistences in his evidence, such as language difficulties, the passage of time, the destruction ofthe medical charts and the risk of contamination of his memory because of prior proceedings at the College. [57] Appropriately, the accused devoted the majority of his submission to the verdict being unreasonable based on thefrailties with the complainant’s evidence, namely: she was testifying to events which happened more than 20 years previously; whilethere was some corroboration for her description of events generally, there was none directly implicating the accused; there wereinconsistencies between the evidence of the complainant, her mother and A.; there was a major inconsistency between her and theevidence of the accused that the judge accepted evidence about the layout of his examination room; there was the prior inconsistentstatement about her nudity at the final examination; and there was the risk of memory contamination given prior proceedings at theCollege. [58] The mere fact that a verdict is based on a witness where there are contradictions in his or her evidence does not, byitself, make the verdict unreasonable (see François at p 837).

When the case for the Crown rests on the uncorroborated testimony of onewitness, as is the case here, there is no red line or “rule” as to when a series of inconsistencies ought to have given rise to a reasonabledoubt (R v B (RW), 1993 CarswellBC 943 at para 29 (CA)). The rarity of the situation where a trial judge’s assessment of the credibilityof witnesses “cannot be supported on any reasonable view of the evidence” is illustrated by the circumstances in Burke (at para 7).

InBurke, there were many undisputed weaknesses and outright falsehoods with the evidence of three complainants going to the core ofallegations of historical sexual offences. [59] The situation here is entirely different. The complainant has not been found to have been dishonest or categoricallyunreliable on the core allegation of having her breasts and vagina repeatedly touched without medical necessity. Weaknesses in herevidence goes simply to the reliability of some details of what happened on one incident where sexual touching occurred.

She did notcome to Court with a history of chronic dishonesty or a clear motive to concoct her evidence, as was the case in Burke. The complainantdid not give exaggerated or bizarre testimony of what occurred; rather, she gave an account which was plausible and open to the judge tobelieve. The significance of the frailties in her evidence pale in comparison to the egregious situation in Burke.

Finally, the judgeidentified the problems with the complainant’s evidence, critically analysed them in terms of whether they undermined the case for theCrown and gave adequate reasons outlining her reasoning (see B (RW) at para 29; W (

R) at pp 135-36; and R v Braich, 2002 SCC 27 atpara 39). [60] In our system of justice, reasonable disagreements about the appreciation of the facts must be tolerated (see R vBiniaris, 2000 SCC 15 at para 24).

An appellate court cannot interfere with findings of credibility based on a difference of opinion withthe trial judge or some unease or lurking doubt of an unsafe verdict based on its own view of the record (see Braich at para 39; andGagnon at para 10). [61] The anomaly here is that the inquiry panel, during proceedings at the College, heard essentially the same case as thejudge later did and, applying the lesser civil standard, dismissed the allegations based on its credibility assessment of the witnesses.

Thejudge, however, after a trial, reached a different result, applying the more stringent criminal standard of proof beyond a reasonable doubt,based on her credibility assessment. Accordingly, it is understandable that, at first blush, there may be some concern about the safety ofthe judge’s verdict. [62] This Court was not asked, nor is it our role, to compare and contrast the reasoning of the inquiry panel with that of thejudge and state our preference between the two. Rather, our task is to guard against a wrongful conviction by reviewing the judge’s

decision for clear error. Despite the thorough submissions of counsel, there simply is no obvious error with the judge’s credibility findings that can be identified in her reasons, let alone one that affected the result. The judge understood the evidence, was alive to the issues, and resolved the relevant factual disputes, mindful of the frailties of the witnesses and the criminal burden of proof.

In the absence of a palpable and overriding error, deference must be afforded to her credibility assessment. [ 63 ] In my view, a properly instructed trier of fact, acting judicially, could reasonably have rendered the verdict reached because the judge’s credibility assessment is reasonably supported on all of the evidence. I am also satisfied that the judge did not engage in an illogical or irrational reasoning process that would vitiate the verdict. Disposition [ 64 ] In the result, I would dismiss the appeal. JA I agree: JA I agree: JA