R v Mazhari-Ravesh, 2022 MBCA 63

Citation: R v Mazhari-Ravesh, 2022 MBCA 63 Date: 20220811 Dockets: AR20-30-09514; AR20-30-09519 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : her majesty the queen ) J. R. Wolson, Q.C. and ) L. C. Robinson Respondent/Appellant ) for the Accused ) - and - ) J. M. Mann ) for the Crown amir houshang mazhari-ravesh ) ) S. A.

Inness ( Accused ) Appellant/Respondent ) For the Intervener ) -and- ) Appeals heard: ) January 7, 2022 TRIAL COUNSEL FOR THE APPELLANT ) ) Judgment delivered: Intervener ) August 11, 2022 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainants(

s) or witness(es) (see

section 486.4 of the Criminal Code ). COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , these appeals were heard remotely by videoconference. beard JA I. THE ISSUES [ 1 ] The accused, who is a medical doctor, was convicted following a judge-alone trial, on six counts of sexual assault under

section 271 of the Criminal Code , involving six different patients at his medical clinic. Of the 12 counts on the direct indictment,

two were stayed by the Crown and the accused was found not guilty on four counts. He is now appealing his convictions. He has also applied for leave to appeal and appeals his combined sentence of seven years’ incarceration.

The Crown has also applied for leave to appeal and appeals the sentence. [ 2 ] The grounds of appeal are as follows: - there was a miscarriage of justice due to ineffective assistance of counsel (ineffective representation); - there was improper reliance on witnesses’ prior experience with doctors/medical examinations in concluding that a sexual assault had occurred; - there was a misapprehension of some of the expert’s evidence as it related to the manner in which examinations could occur; - the sentence imposed was harsh and excessive, given the circumstances of the case and of the accused; and - there was an error in the approach to sentencing for multiple offences. [ 3 ] The Crown argues, on its sentence appeal, that the sentence imposed was unfit and that the trial judge erred in his approach to totality. [ 4 ] The Crown’s application to use the evidence of the nine complainants as similar fact evidence for each complainant was dismissed at the end of the trial.

Thus, the counts that went to trial regarding each complainant were decided separately. [ 5 ] The accused has also filed a fresh evidence motion in this Court, to be permitted to introduce fresh evidence related to the allegation of ineffective representation. [ 6 ] Trial counsel was granted intervener status, and he submitted argument on two issues: whether trial counsel is required to provide a client with an opinion as to whether he or she should testify; and whether his arguments related to the complainants’ credibility rested on prohibited myths and stereotypes. II.

THE BACKGROUND [ 7 ] The accused worked as a family physician at a private medical clinic in Winnipeg, where he saw both regular and walk-in patients. All of the complainants were patients at the clinic. [ 8 ] On October 20, 2017, V.W. went to a hospital emergency department with complaints of ongoing abdominal pains. After providing the history of her treatments by the accused, she was referred to the sexual assault protocol nurse at the hospital.

The police were called and V.W. made a complaint that led to a sexual assault charge against the accused. [ 9 ] The police investigation included media releases to the public. This led to a number of women contacting the police, resulting in the 11 new charges against the accused, all regarding his conduct in the context of a doctor-patient relationship. [ 10 ] The Crown’s allegations included that the accused performed unnecessary and inappropriate vaginal, rectal and breast examinations on the complainants. It called an expert witness, Dr.

Martin, who was qualified as an expert in family medicine, including in the standard of care in a doctor-patient relationship. He was called to explain the best practices for the type of invasive and sensitive examinations that come with the practice of family medicine. [ 11 ] A large number of medical records from the accused’s clinic were referenced at various times during the trial, although only a few were provided to the expert witness. Notwithstanding the many references, neither party chose to have them entered as exhibits in the trial.

This led to significant argument and confusion as to what use could be made of the medical records, and of the references made to them during testimony. That said, some entries became evidence when they were accepted as accurate by the complainants during their testimony (see, for example, paras 141-47, 165, 168-71, 262, 368, 405-406, 411-13). [ 12 ] The accused did not testify. As the trial judge noted, the trial was about the credibility and reliability of the complainants.

It is clear from the trial judge’s reasons that the cross-examinations were detailed and vigorous (see paras 41, 156, 215, 318). [ 13 ] Another significant issue was that of inadvertent collusion. This arose because all of the complainants, except V.W., contacted the police only after learning about the police investigation from media releases put out by the police.

Again, this was the subject of cross-examination and was addressed in the trial judge’s reasons (see paras 28-29). [ 14 ] In most of the cases, the complainants were consulting the accused regarding gynecological issues, annual physical examinations or concerns about sexually transmitted diseases (STDs)—matters that could involve rectal, vaginal and/or breast examinations. [ 15 ] In two cases (S.C. and M.V.), the trial judge found, based on the medical records, that he was not satisfied beyond a reasonable doubt, that those complainants had the alleged appointment with the accused, and thus, he acquitted him.

In one case (L.I.), the trial judge found that he was not satisfied beyond a reasonable doubt that the procedure was not a valid medical procedure, and he acquitted the accused. In another case (H.S.), the trial judge acquitted the accused of communication for the purpose of obtaining sexual services, based on a reasonable doubt that a payment made to that complainant was for that purpose.

In two cases (C.H. and P.P.), the trial judge convicted the accused based on facts less serious than those alleged by the complainants, after finding that a portion of the conduct was a valid medical treatment. [ 16 ] The six convictions (P.P., M.H., C.H., P.S., H.S. and V.W.) all involved findings that the accused had engaged in actions that the trial judge found were not medical treatment—some are more obviously so than others. P.P.: after pulling down P.P.’s

top and massaging her breasts, the accused asked her if her boyfriend sucks on her nipples and her “boobs” (at para 221), then he flickedher nipple ring with his finger. M.H.: after an unorthodox vaginal examination for STDs, the accused again stuck his fingers into hervagina and pressed her clitoris, which had no clinical indication. C.H.: the accused massaged her “G-spot”, grabbed her breast andforcibly placed her hand toward his erect penis. P.S.: P.S. insisted that she had no rectal problems, but the accused insisted on doing arectal examination.

He pushed his fingers deep into her rectum, and she objected, saying that it hurt, but he continued. H.S.: theaccused told H.S. that he had feelings for her and asked her to feel his heart. She said “No”, so he asked to check her heart and, withoutgetting permission, he reached under her shirt and cupped her breast. V.W.: after moving his fingers in and out of her vagina and analcavities with increasing speed, the accused took off one glove, undid her bra and massaged her breast, saying that she had a nice ass andthat he wished he could use it.

He then stuck his hand in her mouth and told her to suck it like she was giving him oral sex. He put herhand on his erect penis and told her to rub it, and he put her on his lap and rubbed his genitals against her buttocks. Then he told her notto tell anyone. [17] Following his conviction, the accused retained new counsel, who represented him for the sentencing and for this appeal(the appeal counsel). The accused was sentenced to a combined period of incarceration of 12 years, reduced to seven after applying thetotality principles. III.

INEFFECTIVE REPRESENTATION [18] The accused argues five instances of ineffective representation by his trial counsel that caused a miscarriage justice. They are related to: (

a) his failure to testify, (

b) the failure to file medical records, (

c) the failure to cross-examine P.S. regarding herstatement of claim against the accused; (

d) the failure to file and rely on additional material; and (

e) adopting a trial strategy that wasprohibited and bound to fail (ineffective trial strategy). He has brought a motion to file fresh evidence regarding issues (a), (

b) and (c). (

i) The Standard of Review and the Law Standard of Review [19] The issue of ineffective representation at trial is raised for the first time on appeal.

As the matter was not determinedby the trial judge, there is no trial decision to be reviewed and, therefore, no applicable standard of review. (See R v Ramos, 2020MBCA 111 at para 119, aff’d 2021 SCC 15.) Ineffective Representation [20] The principles and test for ineffective representation were set out by this Court in both R v Le (TD), 2011 MBCA 83 atparas 156-89; and R v DGM, 2018 MBCA 88 at paras 4-10. (See also R v Joanisse (1995), (ON CA), 102 CCC (3d)35 (Ont CA), leave to appeal to SCC refused, [1997] 1 SCR viii; and R v GDB, 2000 SCC 22.) [21] There are three routes to a miscarriage of justice due to ineffective representation by a trial lawyer (although there maybe some overlap), being ineffective representation that affected the reliability of the verdict, or that affected the fairness of the trialprocess (see Joanisse at pp 55-64), or that undermined the fairness of the trial or the appearance of trial fairness (see R v Mehl, 2021BCCA 264 at paras 140-44.) The remedy for a miscarriage of justice is at least a new trial (see Joanisse at p 57; and DGM at para 4). [22] The first route usually relates to claims that specific decisions made or actions taken by a trial lawyer providedassistance that was so deficient that the defence was not properly put, or that the Crown’s case was not properly challenged.

Exampleswould include a failure to cross-examine a Crown witness when any competent counsel would have done so, a failure to bring anecessary application and/or a failure to make duly diligent efforts to address relevant defence evidence (see Joanisse at p 62; and Mehlat para 141). [23] The second route usually relates to conduct which “permeates and infects counsel’s entire performance” (Joanisse at p62).

Examples would include: counsel being impaired during the trial; counsel who is in a conflict of interest; and counsel failing toinclude the accused in a fundamental decision or to follow the client’s instructions (ibid; and Mehl at para 143). [24] The third route usually relates to denying an accused the right to make fundamental decisions about the conduct of thedefence, such as whether to testify or elect the mode of trial; and providing no advice, or advice that is so deficient that the accused is notable to make an informed choice about such a matter (see Mehl at para 145). [25] Ineffective representation may also occur where the cumulative effect of trial counsel’s conduct led to an unfair trial(see R v JB, 2011 ONCA 404 at para 6; and R v Hamzehali, 2017 BCCA 290 at paras 31, 43, leave to appeal to SCC refused, 37792 (15March 2018). [26] The test to determine whether there has been ineffective representation has three components: a factual component, aprejudice component and performance component.

The test is applied as follows (Le at para 189; and DGM at para 5): . . .

(1) The factual component: an appellant must establish, on a balance of probabilities, the facts on which the claim ofincompetency is based. If that is not established, there is no need to go any further.

(2) The prejudice component: if the factual foundation has been made out, the court will, for the purposes of this component,assume incompetence on the part of counsel. See Joanisse at p. 62, Doherty J.A. At this stage, an appellant must establish, on a balanceof probabilities, that the presumed incompetence resulted in a miscarriage of justice. If it did not, there is no need to go any further.

(3) The performance component: if it is determined that the reliability of the verdict was affected by the presumedincompetence, the court will then consider whether the actions of counsel were, in fact, incompetent. At this stage of the analysis, thepresumption reverts to “a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” andthe onus falls on an appellant to establish that it did not (G.D.B. at para. 27).

Again, that analysis is conducted without the benefit ofhindsight. [27] This Court has held that, if it is probable that there was an unfair trial process due to incompetent representation, it isnot necessary to ask whether it affected the verdict, as an unfair trial process, alone, would result in a miscarriage of justice (see Le atparas 181, 188; DGM at para 6). (However, see Mehl at paras 147-49, pointing to some appellate jurisprudence suggesting that it is stillnecessary to look to whether the outcome of the trial was affected).

If the alleged incompetence could not have affected the trial process,it is necessary to determine whether it affected the reliability of the verdict (see Le at paras 183-84; DGM at para 6). Admissibility of Fresh Evidence [28] The accused has the burden of submitting evidence to establish the factual foundation for the allegation of ineffectiverepresentation, which is often done by applying to admit fresh evidence (as opposed to relying on the trial record) (see Ramos at para126). This procedure was explained in R v Aulakh, 2012 BCCA 340 (at para 68): . . . 1.

Determine if the fresh evidence is admissible under the rules of evidence (e.g., no hearsay, speculation, opinion or mere argument). 2. If the fresh evidence complies with the rules of evidence and if it is apparent from the trial record that the fresh evidence could notreasonably have affected the result (assuming the allegations of ineffective representation could be established) there is no miscarriage ofjustice and the application to adduce fresh evidence and the appeal should be dismissed. 3.

If that determination is not apparent and the fresh evidence in support of the allegation of ineffective representation is relevant tothat issue and credible, admit the fresh evidence for the limited purpose of determining the allegation of ineffective representation, anissue that was not adjudicated at trial. At this stage the fresh evidence will not be admissible to determine the substantive issue ofwhether a miscarriage of justice had occurred. 4.

In considering whether the performance component of the test for ineffective representation has been established, apply thestandard of “reasonable professional judgment”, remembering that the appellant must establish the facts underlying the claim ofineffective assistance on a balance of probabilities. 5.

If the performance component of the ineffective assistance of counsel claim is established, consider whether the appellant hasestablished the prejudice component of the test, namely a “reasonable probability” that the outcome of the trial would have been differentif the appellant had received the effective assistance of counsel (i.e., if there had been a miscarriage of justice). If the answer is yes, thefresh evidence application should be granted, the appeal allowed, and a new trial ordered.

If the answer is no, the fresh evidence and theappeal should both be dismissed. [29] The jurisdiction to admit fresh evidence on appeal is set out in section 683(1) of the Criminal Code, the test beingwhether it is “in the interests of justice” to do so.

Where the fresh evidence is being adduced to challenge the reliability of the verdict,the criteria in Palmer v The Queen, (SCC), [1980] 1 SCR 759 at 775 apply: (1) whether, by due diligence, the evidencecould have been adduced at trial, although this is not applied as strictly in a criminal case; (2) whether the evidence is relevant, that is,decisive or potentially decisive of an issue at trial; (3) whether the evidence is credible, that is, reasonably capable of belief; and (4)whether the evidence, if believed, could reasonably, when considered with the other evidence, be expected to have affected the result. [30] Where the fresh evidence is adduced to challenge the fairness of the trial process, the appellate court must conduct “‘anexamination of the grounds of appeal raised, the material tendered and the remedy sought’ which may include ‘material extraneous to thetrial record’” (R v Richard (DR) et al, 2013 MBCA 105 at para 204, quoting R v W(W) (1995), (ON CA), 100 CCC(3d) 225 at 233 (Ont CA)) so long as it is relevant to the issue alleged to have affected the fairness of the trial process. [31] Finally, if it is determined that either the fairness of the trial process or the reliability of the verdict was affected bypresumed incompetence, the appellate court will then have to determine whether the actions of counsel were, in fact, incompetent.

Thisis a high standard because there is a presumption that the counsel’s conduct fell within the wide range of reasonable professionalassistance. (ii) Analysis of Ineffective Representation

(

a) Failure to Testify 1. The Parties’ Positions/Background [ 32 ] The accused states that he would have exercised his right to testify if he had been given adequate advice in that regard by his lawyer. The evidence that grounds this allegation is found in the accused’s affidavit, which is offered as fresh evidence in this appeal. The accused was cross-examined on that affidavit and the transcript of the cross-examination is also before this Court.

The accused argues that his affidavit should be admitted as part of the factual foundation for his claim of ineffective representation. [ 33 ] In the affidavit, the accused denied committing any sexual assaults, and he outlined three key areas of concern related to the legal advice that he received: (

i) he was not told that the trial judge could not consider the medical records if he did not testify; (ii) he was not provided with advice as to whether he should testify; and (iii) he was not prepared by his legal team to testify. [ 34 ] Regarding the Aulakh procedure, the Crown agrees that, in general, the accused’s affidavit complies with the rules of evidence (step 1) and that, if believed, it could have affected the outcome of the trial (step 2).

Its position is that the accused’s affidavit is not credible and should not be admitted, even for the purpose of determining the allegation of ineffective representation (step 3).

However, the Crown agrees that the exhibits attached to the accused’s affidavit can be admitted for the purpose of determining the issue of ineffective representation. [ 35 ] In reply to the accused’s affidavit, affidavits were filed by the three members of the accused’s trial defence team (the defence team), being trial counsel, the associate counsel and an articling student, as well as counsel for related civil proceedings (civil counsel). Cross-examinations were conducted and transcripts were filed for all members of the defence team.

The Crown argues that the accused’s evidence is disputed by the defence team in all key respects, that the accused omitted significant and important evidence and that the accused’s evidence is internally inconsistent and incredible. [ 36 ] The accused points to the lack of any meeting notes and to inconsistencies in the evidence of the members of the defence team as reducing its credibility and reliability. [ 37 ] Trial counsel presented argument on the question of whether defence counsel was required to provide a recommendation or opinion on whether an accused should testify in the case at issue, separate from explaining the advantages and disadvantages of the accused testifying. 2.

Admissibility of the Fresh Evidence The Accused’s Evidence [ 38 ] In his affidavit, the accused stated that he told trial counsel that the medical records were of key importance in his defence. He said that he had seen the medical records being used in Court. He felt that they were in evidence and they outlined his position to the trial judge.

Had he known that the medical records and his version of events would not be before the trial judge without his testimony, he would have testified. [ 39 ] Regarding advice about testifying, the accused stated that he asked for, but was never given, a reply to his request that his lawyer provide an opinion as to whether or not he should testify and, further, that he did not receive adequate advice to understand the advantages of testifying. [ 40 ] Finally, he stated that he did not have any meetings with his defence team to prepare him to testify. [ 41 ] In cross-examination, the accused agreed that he had many meetings with trial counsel before the trial to review the evidence.

In addition, there were emails, text messages and telephone communications about the evidence, and he saw his trial lawyer daily while travelling with him to and from court. [ 42 ] The accused stated that, during the pre-trial meetings, trial counsel gave him instructions about how to answer questions, but he initially denied that this was in preparation to testify. He later said that reviewing his version of what happened with each complainant made him ready to answer questions from trial counsel or if he wanted to testify.

When it was suggested that this was also trial preparation, he said that he was not a lawyer, and to him, it meant that the trial lawyer was preparing to cross-examine the witnesses, not preparing him for trial. [ 43 ] The accused agreed that he told the defence team that he would prefer not to testify, one reason being that he was nervous about testifying because he had post-traumatic stress disorder (PTSD) from his experiences dealing with the authorities when he was living in Iran.

He stated that he was worried that he might get “brain freeze, like stop my brain.” Later in the cross-examination, however, he denied being worried for this reason. [ 44 ] Other than on those two occasions, the accused was adamant that there were no other discussions about whether he would testify, although he did acknowledge that he knew that it was his choice whether or not to do so. [ 45 ] The accused agreed that the purpose of his meeting with the defence team and his civil counsel on May 22, 2019 (the May 22 meeting) was to discuss whether he would be testifying.

He stated that he was told that he had to make a decision that day, even though the Crown had not completed its case. He denied that he was told that his version of the events could be considered by the trial judge only if he testified. He also denied that there were concerns expressed about difficulties with his memory and lack of detail in his medical records.

He did say that trial counsel was worried that he talked too much, that he went off the subject and that he would be a bad witness. [ 46 ] When asked whether there was a discussion about the pros and cons of him testifying, he said that there were no pros, only cons and there was nothing good about him testifying.

Trial Counsel’s Evidence [47] In his affidavit, trial counsel stated that there were 20 pre-trial meetings with the accused to review the evidence withhim, in addition to the exchange of many emails and telephone calls. The meetings included six in April and May 2019 to prepare fortrial and to prepare the accused to testify, including how he should answer questions. [48] Trial counsel explained that the medical records were, themselves, the subject of many pre-trial proceedings andconferences, because they were third party records and access was controlled under the Criminal Code.

In addition, an order wasrequired to use them in court (see sections 278.92-278.93 of the Criminal Code). [49] Trial counsel said that, at the meetings, the accused was told that the medical records were not in evidence and that thetrial judge did not have them, even though they were used in cross-examination. He was also told, and he understood, that those medicalrecords would only become evidence for the trial judge to see and use if he testified to identify and authenticate them. [50] Trial counsel stated that the accused was advised of the pros and cons of testifying.

In particular, he was advised that,without his testimony, his position on all of the charges would not be put before the trial judge. [51] Trial counsel advised the accused that, if he testified, the credibility and reliability of his testimony would be challengeddue to his lack of notes about the incidents that he recalled in detail, such as his allegation of sexualized flirtations by somecomplainants, the conspiracy allegations that he made, and his lengthy and digressing answers to straightforward questions. [52] Trial counsel outlined several concerns related to the accused as a witness, which I will review later in these reasons. [53] Regarding the May 22 meeting, trial counsel said that its purpose was to review the status of the evidence and todiscuss the whole issue of whether the accused would testify.

The accused was told that he did not have to testify until the end of theCrown’s case and the similar fact motion, so he should think about his position for the next few days. The information and advicepreviously given to the accused, as set out above, was repeated. As well, the accused was told that it was his decision whether to testify,and trial counsel could not tell him which choice to make. Trial counsel said that the accused appeared to understand the trial processand the discussions about the pros and cons of testifying.

He said that the accused’s message that he would not be testifying wasunsolicited and unprompted. [54] In cross-examination, trial counsel stated that he regularly conducted mock cross-examinations of the accused,including discussing the issue of him testifying or not, as part of their review of each complainant’s video statement. Associate Counsel’s Evidence [55] Associate counsel was involved with this case from the accused’s arrest and throughout the trial.

His evidence, whichwas consistent with that of trial counsel, was that there were many meetings with the accused to prepare to defend the charges and toprepare the accused in the event that he would testify.

He said that the medical records were discussed throughout the pre-trial and trialprocesses, with the accused being told that they were not in evidence and that the only way that they could be put into evidence was if hetestified. [56] Associate counsel said that they reviewed with the accused the “pros and cons” of testifying, which were as outlined bytrial counsel. [57] Associate counsel also said that the defence team was concerned that the accused would be a poor witness.

In responseto questions, he would frequently talk excessively about conspiracy theories related to V.W., and relationships between the complainants,the police, the Crown attorney and the judge at his bail hearing. They attempted to address their concerns in preparing him to testify byexplaining how to answer questions.

He said that the accused was concerned that it would be difficult for him to remain calm, given thatit was challenging for him to remain on topic during trial preparation. [58] In cross-examination, associate counsel agreed that there was no formal mock cross-examination, but he explained thatthey did ask the accused questions in the form of cross-examination.

The Articling Student’s Evidence [59] The articling student generally confirmed the information and advice provided to the accused as explained by both trialcounsel and associate counsel, including whether he should testify and the use that could be made of the medical records. [60] The articling student stated that the accused often expressed his preference not to testify, and he said that he felt that hisability to do so would be affected by his PTSD from his experience with Iranian authorities.

She confirmed the concern that the accusedwould be a poor witness due to the inconsistencies in his recollections, his conspiracy theories and his tendency to go off on tangents.

She said that, throughout the process, he was given feedback on how to improve, but he would revert to performing poorly whenanswering questions. [61] In cross-examination, the articling student confirmed that she had no knowledge of any mock cross-examination of theaccused, but she said that, throughout the trial, they had discussions with him about his responses to certain allegations and he was told totighten up his answers and stop talking so much.

Analysis–Admissibility of Fresh Evidence [62] The courts have recognized that an accused’s complaints of ineffective representation, particularly regardingdiscussions with defence counsel and advice given by defence counsel, should “not [be] blindly accept[ed]” (Le, at para 177). As wasstated in R v Archer (2005), (ON CA), 202 CCC (3d) 60 (Ont CA), “Common sense dictates a cautious approach to

allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms” (at para 141). [ 63 ] This caution was repeated recently in R v Kaczmarek , 2021 ONCA 771 , wherein Trotter JA, for the Court, stated (at para 77): This court has struck a cautious tone when considering a claim that trial counsel usurped or compromised an [accused’s] decision to testify, noting that there is sometimes a strong motive to fabricate such an allegation after being convicted and sentenced to jail . . . . [citations omitted] [ 64 ] The threshold issue is whether the accused has established that his affidavit is sufficiently credible to be admitted.

I would find that he has not done so. [ 65 ] First, the accused’s affidavit did not disclose important problems related to his version of certain events. For example, the accused stated, in his affidavit, that he would have testified that he did not perform a rectal examination on P.S. That was different from what he had been telling his defence team throughout the trial, even after reviewing her medical records, watching her video statement to the police and seeing her direct examination. During that time, he had maintained that he had performed a rectal examination.

It was only hours before her cross-examination was to begin that he advised trial counsel that he remembered that there had been no rectal examination. This change in position was not disclosed in the accused’s affidavit, but only in the defence team’s affidavits, and he only acknowledged the change when confronted in cross-examination. [ 66 ] Second, the accused’s affidavit was inconsistent with his evidence on cross-examination, as explained above.

While he stated in his affidavit and initially in cross-examination that he had not been properly prepared to testify, he ultimately agreed in cross- examination that the pre-trial meetings to review the evidence also got him ready to testify.

In cross-examination, he acknowledged the many meetings and significant contact that he had with the defence team before and during the trial, and the directions that he was given about the problems with the way that he was responding to questions and how to give better answers. [ 67 ] Third, the accused said, in his affidavit and on cross-examination, that he was not told of the advantage of testifying, being that, if he testified, his version of what occurred between him and the complainants would be in evidence in the trial, or of the disadvantage of him not testifying, being that the medical records would not be in evidence if he did not testify. [ 68 ] The accused’s affidavit on these issues was categorically disputed by the defence team.

The evidence of each member of the defence team was that the accused had been told, on many occasions, that the medical records would not be in evidence if he did not testify and that his explanation of the medical records and his version of the complaints would only be before the trial judge if he testified—the pros and cons. Each explained, albeit in somewhat different words, the details of the advice that he was given in many meetings before and throughout the trial regarding how to testify.

While all agreed that there had been no formal mock cross- examination conducted, both trial and associate counsel said that they were continuously cross-examining the accused as they were reviewing the complainants’ statements and other evidence with him in preparation for, and during, the trial. [ 69 ] While there were some differences between the members of the defence team as to some details of their discussions with the accused, in my view, those differences were not material to either the credibility or reliability of their evidence.

Regrettably, no one on the defence team made notes of this aspect of the interviews with the accused: all were going from memory.

They were, however, consistent on the important aspects of their discussions with the accused and the information and advice that he was given. [ 70 ] In conclusion, it is evident, on reviewing the accused’s affidavit and cross-examination, that his answers on cross- examination do not support the assertions in his affidavit regarding the lack of trial preparation, or the inadequacy of the advice he received regarding whether to testify or the use that could be made of the medical records if he chose not to testify.

Further, those allegations are strongly refuted by the evidence of the defence team, which I would find to be credible. Considering all of the evidence, I am of the view that the accused’s affidavit is not credible on these issues and should not be admitted into evidence. [ 71 ] As noted, I would find that the affidavits and cross-examinations of the defence team are credible and should be admitted into evidence for the purpose of determining the allegation of ineffective representation.

Further, I would agree that the exhibits attached to the accused’s affidavit should be admitted into evidence for the same purpose. 3.

Analysis–Failure to Testify [ 72 ] The accused’s position is that the advice that he received was inadequate, both because he was not fully and carefully advised to be able to make an informed decision as to whether to testify and because his trial counsel failed to provide an opinion as to whether he should testify, when asked for that opinion. [ 73 ] On the last point, the accused argues that trial counsel owes a duty to advise his client as to whether or not he or she should testify, especially where such advice is sought. [ 74 ] Both the accused and trial counsel referenced R v DA , 2020 ONCA 738 , as explaining trial counsel’s duty to advise a client on whether to testify (at paras 32-33):

Effective representation by counsel includes advice as to whether or not to testify: Archer , at para. 139 . As noted in G.D.B. at para. 34 , defence counsel are ethically bound to discuss the decision whether or not to testify with the client and must obtain instructions from the client about his or her choice. That advice should include a review of the advantages and disadvantages of testifying in language that the accused person understands.

The decision whether to testify is ultimately the client’s, but the client cannot make an informed decision unless he or she understands what is at stake at this crucial moment in the proceedings. The form and content of that review will vary in almost every case. In some cases, a skeletal discussion may suffice. In others a more detailed review will be required. Sometimes it will be lengthy, at other times it may be quite brief.

Counsel should document that discussion, by a scribbled note to file if more is not possible. [ 75 ] The Court went on to clarify that duty: “By advice, I mean a reasoned explanation of the advantages and disadvantages of testifying that would enable the appellant to make an informed decision about whether to testify” (at para 35). [ 76 ] The risk arising from counsel providing an opinion as to whether the client should testify is explained in Archer (at para 142 ): . . . [I]t is not uncommon that a person who has been convicted after having received strong advice from his counsel that he should not testify comes to believe, while awaiting his appeal, that counsel’s strong advice was in fact a decision by counsel that the client should not testify.

Looking backwards through the bars of a jail cell is not the most reliable of vantage points from which to see events that culminated in the conviction. [ 77 ] This same risk would arise where counsel provides advice that the client should testify. [ 78 ] The accused relies on R v Ross , 2012 NSCA 56 , to support his argument that trial counsel had a duty to provide an opinion on whether he should testify (see para 51). That finding arose from the facts in that case, which were noted by the Court to be “unusual” (at para 1).

The charge was sexual interference and the accused’s defence was that he had a mistaken belief that the complainant was at least 14 years old. In effect, this required the accused to point to evidence that he took all reasonable steps to ascertain her age. The Court noted that the trial judge had no evidence on which to make that finding because the accused did not testify, he called no evidence and defence counsel did not ask any questions of any witness, relying on cross-examinations by counsel for a co- accused.

Thus, the issue in Ross was not whether the complainant was credible, but whether there was any evidence to support the accused’s defence, which related to his knowledge. Further, defence counsel in Ross admitted that he did not prepare the accused to testify because he did not anticipate calling him, and that he gave the accused no advice about whether or not to testify, nor of the risks of not testifying.

That is not the situation in this case. [ 79 ] In my view, while it is open to defence counsel to provide an opinion or recommendation to an accused as to whether or not he or she should testify, that recommendation is not required in every case, or even in every case in which an accused asks for such a recommendation. Defence counsel is required to provide advice as to the advantages and disadvantages of testifying, as set out in DA , so that the accused can make a reasoned decision.

Whether there are individual cases in which, on the facts of the case, such a recommendation is required must be determined on a case-by-case basis. [ 80 ] In this case, as explained earlier, I would accept the evidence of the defence team that the accused was told, on many occasions, that, if he did not testify, the trial judge could not consider the medical records and, also, that his version of the events at issue could not be considered by the trial judge. [ 81 ] Further, I would accept the evidence of the defence team, which was confirmed by the accused in his cross- examination, that the accused was prepared to testify, including to reply to the evidence of the complainants and to explain the medical records, as well as how to testify.

While there was no formal mock cross-examination, that is not the only manner in which a witness can be prepared. The evidence was that the defence team spent a significant amount of time with the accused on an on-going basis, both pre- trial and during the trial, in preparing him to testify. While the accused may not have recognized this as trial preparation, he ultimately stated that he was “not a lawyer” and he agreed that this preparation would help him. He also acknowledged the instructions that he was given about how to testify.

In my view, the evidence does not support a finding that the accused was not adequately prepared to testify. [ 82 ] The accused also argues that this was a credibility case that cried out for his testimony, to reply to the allegations of the complainants. As already noted, I would accept that the accused was advised that this would be a reason for him to testify. That was not, however, the only consideration.

Trial counsel explained the other considerations as follows: - The accused’s credibility and reliability were subject to attack because of his inconsistent and unclear memory of some complainants and some medical procedures, even after watching their video statements and reviewing his medical records—one example being the change in his position regarding P.S.

This was in contrast to his vivid recollection of some non-medical discussions, even though they were not contained or referenced in the medical records or in chart notes. - The accused described, in detail, sexual or flirtatious advances or overtures towards him by some of the complainants, but nothing was noted in any of his medical records. Trial counsel was concerned that this would be used by the Crown as corroborative of the allegations of sexual misconduct. - A further credibility issue related to the accused’s position regarding the signage at his office that did not permit a patient to be

accompanied by a chaperone during an examination, and that he had the right to examine patients alone, without a chaperone. While theaccused maintained that there was nothing wrong with the signs or the policy, he later agreed with trial counsel that it was contrary to thepolicy of the Winnipeg Regional Health Authority.

Trial counsel was concerned as to the effect of this evidence, when combined withthe testimony of the expert that the accused’s method of conducting an anal examination (with the patient bent over a table instead oflaying on her side), while acceptable, was unorthodox. - The accused consistently expressed views that the police and prosecution were part of a conspiracy against him, and he couldnot be disabused of those views. - The accused was overconfident that he would be acquitted, to the point of asking trial counsel to review a proposed mediarelease regarding his exoneration before the Crown had closed its case.

Trial counsel stated that he felt that the trial was going as well ascould be expected, but neither he, nor anyone else in his presence, suggested that there was a high likelihood of success, that he shouldexpect to be acquitted of all charges, or that he should be 99% sure about not testifying. - The accused struggled with the concept of answering only the question asked, and trial counsel was of the view that he wouldbe a difficult witness. [83] The concerns that weighed against the accused testifying were considerable.

The credibility of all of the complainantswas very much at issue, as would have been the credibility of the accused. Trial counsel pursued a vigorous cross-examination of themedical expert and the complainants, which led to four acquittals, two partial acquittals and the rejection of the more serious allegationsin relation to another complainant. [84] When weighing the reasonableness of a decision related to whether an accused should testify, the Court in DA stated (atpara 31): Reasonable competent counsel may well have different views about whether a particular accused should or should not testify.

Asthis court noted in R. v. White (1997), (ON CA), 114 C.C.C. (3d) 225, at p. 247, leave to appeal refused, [1997]S.C.C.A. No. 248: An appellate court’s review of trial counsel’s performance should be deferential…. (D)eference is called for because of the broadspectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no twolawyers will defend an accused in the same way.

Different defence counsel will use different trial strategies and tactics, differentapproaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of themreasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for onecounsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill andjudgment.

Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer’sperformance was deficient because they would have conducted the defence differently. [85] In R v KKM, 2020 ONCA 736, Doherty JA, for the Court, explained (at para 91): An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides noadvice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying. . . . [86] In my view, this was not a clear case in which the advice was so wanting as to preclude the accused from making ameaningful decision about whether to testify, or in which defence counsel should have provided a recommendation in that regard.

Forthese reasons, I would not accept the accused’s argument that the advice that he received from his trial counsel on whether or not totestify was incompetent or that it fell outside of the wide range of reasonable professional assistance. (

b) Failure to File Medical Records 1. The Parties’ Positions [87] The medical records at issue are the clinic patients’ electronic medical records that were kept at the clinic where theaccused worked, including billing records and patient charts with appointment histories (the medical records). [88] The accused’s position is that these medical records should have been filed, whether or not he testified, because theywere the “central focus” of the trial for the defence.

He argues that trial counsel relied on them heavily to challenge the complainants’credibility in cross-examination by pointing out discrepancies between the medical records and the testimony, which reliance wascontinued in the closing argument. He states that, without the medical records being admitted into evidence, any discrepancies orinformation contained in those records that were not specifically adopted by a complainant became meaningless, which had a substantialimpact on the trial judge’s ability to critically assess the complainants’ evidence.

He referred, in particular, to the testimony of V.W. andP.S. [89] The Crown’s position is that, without the accused’s testimony, no weight could have been placed on the medical

records by the trial judge. As a result, trial counsel’s decision not to file them was reasonable. 2. The Evidence [ 90 ] As noted earlier, I would find that the medical records attached to the accused’s affidavit and the affidavits and cross- examinations of the defence team are credible evidence that should be admitted in this motion to determine the issue of ineffective representation. [ 91 ] Trial counsel stated, in his affidavit, that the medical records would be used both to assist the accused in recalling the events and his treatment of each complainant, and to cross-examine them.

He was of the view that simply introducing the medical records as evidence would not be sufficient, as the trial judge would only be able to make use of them if the accused testified. He explained his reasoning as follows: In my opinion, the medical records did not “disprove” the allegations against the [accused]. The medical charts were the sole creation of the [accused], without any involvement of the patient/complainant in their creation. The complainants were not given an opportunity to verify and confirm the accuracy or their agreement with the contents of the medical charts after every visit.

The entries in the electronic medical records were made by the [accused]. Other staff at the clinic may have entered data and the accuracy of those records, again, was dependent on the person inputting the information.

Also, the [accused] told us that not all patient entries in the electronic medical charts created by the [accused] were made contemporaneously. [ 92 ] Trial counsel also pointed out that the Crown would likely argue that it was highly unlikely that the accused would make a notation of inappropriate sexual comments or behaviour on his part, so that the absence of notes on these points would not receive any weight. [ 93 ] There is support for trial counsel’s conclusion in the accused’s admissions on cross-examination, wherein he agreed that there were parts of the medical records that would not be understood without his explanation.

Examples from the cross-examination include: the meaning of the notation in P.S.’s record of “Sept 15 left on lorazepam”; the error in P.P.’s chart regarding a cyst; the accused’s explanation for some information not being noted in the medical records because it related to patient behaviour that had nothing to do with the medical chart; and his explanation regarding the medical services that were indicated by billing codes and his use of those codes. The accused also agreed that sometimes he did not have enough time to complete his notes during an appointment, so he went back and added information later. 3.

Analysis–Failure to File the Medical Records [ 94 ] While the medical records were, in some ways, the “central focus” of the trial, there were many reasons for that focus. The defence team needed early access to the medical records to prepare for trial. However, even though the accused had created the medical records, they were in the possession of the clinic. Defence access and use was limited and controlled by the provisions in the Criminal Code , which required many pre-trial appearances and motions to resolve.

All complainants, except one, were represented on this issue by legal counsel and issues related to access and use continued throughout the trial. [ 95 ] The defence team was successful in using the medical records to cross-examine many of the complainants.

For example, the use of the medical records led to acquittals on the charges regarding S.C. and M.V., even though they were not in evidence as exhibits. [ 96 ] In my view, even if the medical records were admissible as business records without the accused’s testimony, they were of little value as substantive evidence, absent adoption by a witness, without the accused’s testimony to explain when and how they were created.

Further, there are many entries that are in medical code or in the accused’s own shorthand that required an explanation of their meaning. [ 97 ] Trial counsel has explained why he did not try to have the medical records admitted as evidence without the accused’s testimony to explain them. His explanation is not unreasonable, and, given the strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance, I would not find that his decision in this regard was incompetent or that it fell outside of that wide range. (

c) Failure to Admit the P.S. Statement of Claim 1. The Evidence [ 98 ] P.S. filed a statement of claim against the accused for damages for assault, battery and trespass to the person (the civil claim); however, it was filed ten months after she provided a video statement to the police that led to the criminal charge. The statement of claim was not filed as an exhibit in the criminal trial and was not used to cross-examine P.S. [ 99 ] Trial counsel stated, in his affidavit, that he was aware of P.S.’s civil claim.

He said that he made a judgment call not to use it after he was told of the accused’s last-minute reversal of position from having conducted an anal examination on P.S. to not having done so, because he was “concerned it may give her criminal allegations more credence and potentially prejudice the civil case.” 2. The Parties’ Positions [ 100 ] The accused argues that this civil claim is evidence that P.S. had a financial motive for her allegations of sexual assault, which was relevant to the credibility of her testimony. He argues that the failure to raise this motive and to cross-examine P.S. on her

civil claim are further instances of incompetence. [101] The Crown’s position is that the civil claim was filed ten months after P.S. made her report to the police; it is not thecase that she made a civil claim and then reported the incident to bolster it. It argues that P.S. was entitled to seek compensation fromher abuser, and victims are not required to choose between personal reparation and criminal justice. 3. Analysis [102] P.S. explained the motivation for her complaint to the police.

She said that, upon hearing the news report of a complaintby a 19-year old against the accused, she thought that, if she had made a complaint to the police when she had been advised to do so byher regular doctor, that 19-year old would have been spared. [103] In my view, the decision not to cross-examine P.S. on the basis of her civil claim did not prejudice the accused.

A sexualassault victim is entitled to pursue a civil remedy and there is nothing in the evidence in this case to suggest that P.S.’s sexual assaultcomplaint was made to support a claim for civil damages that was filed ten months later. (See R v Flis, (2006), (ONCA), 205 CCC (3d) 384 at paras 99-103 (Ont CA).) [104] Further, trial counsel explained that he made a tactical decision not to pursue this line of cross-examination. In my view,that decision was not incompetent, and it did not fall outside of the wide range of reasonable professional assistance. (

d) No Evidence to Support Some of the Credibility Challenges [105] The accused argues that trial counsel attacked the credibility of some witnesses where there was a lack of evidenceand/or a failure to call witnesses to lay the foundation for the attack, saying that there was no basis for a finding that the witness was notcredible. He refers to C.H. as an example. [106] C.H. testified that she disclosed the accused’s inappropriate sexual conduct to the call-taker at the Family Doctor Finderservice and to her new doctor, but neither took further steps to pursue her disclosure.

Trial counsel argued that it was not believable thatneither would make further inquiries or follow-up, and that this was an illustration of C.H.’s lack of credibility and unreliability. Further,C.H. testified that she tried to report her complaint to the College of Physicians and Surgeons of Manitoba (the College), but she was notable to maneuver its automated answering system and did not pursue the matter.

Trial counsel argued that this was inconsistent with heruse of social media posts and later contact with the police, and that it was another indication of her lack of credibility. [107] The trial judge rejected these arguments, stating that he would not speculate as to how the Family Doctor Finder call-taker or another doctor would respond to the information.

He also accepted that C.H. had not been successful in contacting the College,but found that that did not impact her credibility. [108] The accused has not produced any fresh evidence before this Court to show that there was any evidence from these thirdparties that could have been produced at trial to support these arguments or to demonstrate that the failure to produce that evidence attrial was incompetent. [109] In my view, raising these arguments, even though they were not successful, did not prejudice the accused’s defence and,therefore, they could not have affected the outcome of the trial, so there was no prejudice to the accused. (

e) Ineffective Trial Strategy [110] The accused argues that the cumulative effect of trial counsel’s trial strategies leads to the conclusion that the trialstrategy employed was ineffective and did not fall within the wide range of reasonable professional assistance. He specifically refers to: cross-examination on medical records not in evidence; calling no evidence from the accused; and making arguments that, if accepted,could not survive appellate review—primarily, using prohibited myths and stereotypes to discredit the complainants. This is a trialfairness argument—that the cumulative effect of these strategies was to render the trial unfair, or gave the appearance of unfairness. (

i) Arguments Based on Myths and Stereotypes 1. The Parties’ Positions [111] The accused argues that the trial strategy was “doomed to fail” because it was focussed on prohibited myths andstereotypes. Specifically, he argues that trial counsel followed a course of questioning some complainants and challenging theircredibility on the basis of prohibited myths and stereotypes related to why they returned to see the accused after he allegedly sexuallyassaulted them (i.e., non-avoidant behaviour). His position is that this reasoning was bound, at law, to be rejected; therefore, it wasdestined to fail.

As a result, it was incompetent and constituted ineffective representation as a trial strategy. [112] The Crown argues that there is no indication that reliance on prohibited myths and stereotypes caused any prejudice tothe accused, so there is no need to consider whether the strategy was the result of incompetence or ineffective representation. [113] Trial counsel disputes the accused’s argument that his questioning and submissions at trial relied on prohibited mythsand stereotypes.

His position is that the law does not prohibit any and all consideration of a complainant’s non-avoidant behaviour orpost-event demeanour, but only that which invokes prohibited myths and stereotypes. He argues that the questioning and arguments inthis case that related to non-avoidant behaviour arose from the factual circumstances in this case and did not rely on prohibited reasoning. 2. The Law Regarding Myths and Stereotypes [114] The use of myths and stereotypes refers to the improper reasoning process used to draw conclusions about theplausibility or likelihood of human behaviour.

Paciocco JA recently explained permissible and impermissible reasoning in R v JC, 2021

ONCA 131 (at paras 58 , 61, 63): The first such rule is that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice . . . “the rule against ungrounded common-sense assumptions”. Properly understood, [this] rule . . . does not bar using human experience about human behaviour to interpret evidence. It prohibits judges from using “common-sense” or human experience to introduce new considerations, not arising from evidence, into the decision- making process, including considerations about human behaviour.

The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this “the rule against stereotypical inferences”. Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility . . .

It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act . . . . [citations omitted] [ 115 ] He explained the application of these rules as follows (at paras 65, 68-70): . . . [T]he rule against stereotypical inferences does not bar all inferences relating to behaviour that are based on human experience. It only prohibits inferences that are based on stereotype or “prejudicial generalizations” . . . . . . . [T]his rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence. . . .

For this reason, it is not an error to admit and rely upon evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype . . . . . . . [I]t is not an error to arrive at a factual conclusion that may logically reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence. . . . [citations omitted] [ 116 ] Paciocco JA then addressed the effect of reasoning errors based on the plausibility of human behaviour as follows (at para 71): . . .

As a matter of principle, such errors are reversible only when they “ground” the relevant inference by playing a material or important role in the impugned conclusion. Put otherwise, it is not per se a reversible legal error to draw impermissible inferences that do not matter, but it is reversible legal error to reach a material factual conclusion based on such reasoning. [ 117 ] Finally, he stated that an error is “based” on a stereotype or improper inference if it played a material or important role in explaining the impugned conclusion (see para 73), even if it was not the only reason for that conclusion.

In that case, it could not be said that the trial judge would have reached the same conclusion absent the erroneous reasoning. If, however, the erroneous reasoning was only incidental to the impugned conclusion, there would be no prejudice and no reversible error. Erroneous reasoning that was material to the conclusion constitutes a reversible error of law ( ibid ; see also para 74). [ 118 ] Two examples from JC will help to explain.

It would be an error for a trial judge to infer that a complainant would not have consented to sex outside on the dirt, gravel and wet grass where the sexual act occurred, in mid-December. That inference would be based on a generalization about human behaviour that was not based on the evidence and was, therefore, impermissible.

However, if there was evidence from the complainant that she was careful or concerned about her appearance, her clothing, or her physical comfort, the inference would be grounded in the evidence and would be permissible (see para 62). [ 119 ] It is a stereotype to conclude that a woman would not behave in a sexually aggressive manner, or that men would be

interested in sex, as this reasoning, on its own, is based on impermissible inferences. Where, however, a man drives a resisting woman to a secluded spot, it is not an impermissible inference to conclude that she did not consent or that he intended to touch her without her consent (see paras 67-68). 3.

Analysis [ 120 ] The accused refers to five examples of the use of prohibited myths or stereotypes related to non-avoidance behaviour, taken from the trial evidence or closing argument. [ 121 ] In analyzing these examples, it is important to remember that the error related to myths and stereotypes, if there is one, is not in asking the questions, but in the use that is made of the answers.

As Paciocco JA stated, “this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence” (at para 68). [ 122 ] The excerpts related to V.W. and C.H. are taken from cross-examination during the trial.

I have reviewed them, and, in my view, there is nothing inappropriate about the questions, which do not raise any issues related to prohibited myths or stereotypes. [ 123 ] Trial counsel argued, in his written submissions at trial, that “[C.H.’s] allegations given her continuing attendance to [the accused] are not credible.” This appears to invite the prohibited myth or stereotype that, if a woman had been sexually assaulted, she would avoid the perpetrator.

The impermissible reasoning is that C.H.’s failure to conform to that stereotype by continuing to see the accused after the alleged sexual assault was indicative of untruthfulness related to that allegation. The trial judge rejected the argument. Further, it was made in relation to complaints about inappropriate rectal examinations, and the trial judge acquitted the accused in relation to those allegations on the basis that they were proper medical procedures.

For both of these reasons, the argument did not affect the outcome of the trial and it did not lead to any prejudice to the accused. [ 124 ] M.H. testified that the purpose of her appointment on September 22, 2017, was to get medication for a vaginal bacterial infection and to get tested for STDs. She agreed that it was important to treat any STD, because leaving them unattended could cause health problems, but she left that appointment feeling frustrated because she felt that the accused had not tested properly for STDs.

She also alleged that, during that appointment, the accused inappropriately pressed her clitoris during a vaginal examination. She agreed that, notwithstanding her concern about STDs and her frustration at not getting tested on September 22, she did not go to see any other doctor for the STD testing before returning to the accused in October for an unrelated medical problem.

Her explanation was that she was too “traumatized by what had happened” to see another doctor regarding the STDs. [ 125 ] Trial counsel’s trial argument about her “astonishing” and “incredulous” failure to see another doctor because she was “traumatized” related to an inconsistency with M.H.’s concern that she required the STD testing for health reasons and her frustration with the accused for, in her view, not doing the testing properly on September 22, 2017.

In my view, the impugned argument is based on the evidence and not on a prohibited myth or stereotype. [ 126 ] In any event, the trial judge did not accept the argument, so it neither affected the outcome of the trial, nor caused any prejudice. [ 127 ] In written submissions related to H.S., trial counsel argued that H.S.’s complaint that the accused inappropriately touched her breast was not believable, given that she continued to take her young daughter to see the accused after that appointment.

He stated that H.S.’s testimony that her daughter was her “number one priority” was inconsistent with taking her back to see the accused after he had sexually assaulted H.S., which made her testimony about the inappropriate breast touching unbelievable. [ 128 ] While the accused was arguing that the complainant’s non-avoidance behaviour was evidence of her lack of credibility regarding the sexual assault, in this case, this argument does not rely on a prohibited myth or stereotype.

It arises from the evidence in the case, being that her daughter was her “number one priority” and that the concern for her daughter’s welfare would be inconsistent with taking her to see a doctor who had recently sexually assaulted the complainant. [ 129 ] In my view, the impugned argument is based on the evidence and not on a prohibited myth or stereotype.

Further, the trial judge did not accept this argument, so it did not affect the outcome of the trial and was not prejudicial to the accused. [ 130 ] Finally, the accused argues that trial counsel’s submissions regarding P.P. also relied on impermissible myths and stereotypes. He references a quote from the written submission about P.P.’s trial testimony that she returned to see the accused within a week after the alleged sexual assault. That testimony was from P.P.’s direct examination, not her cross-examination, so this timing issue was first raised by the Crown.

Further, trial counsel’s argument about P.P. returning to see the accused after the alleged sexual assault was related to her having forgotten the later appointment in her statement to the police, which was very shortly after the appointments, not in relation to a non-avoidance argument. In fact, while trial counsel questioned P.P. about why she would return to see the accused after the alleged sexual assault, that non-avoidance issue was not raised at all in the written submission. [ 131 ] In my view, the impugned argument is based on the evidence and not on a prohibited myth or stereotype. 4.

Conclusion [ 132 ] In my view, trial counsel did not rely on a trial strategy based on prohibited myths and stereotypes. With one possible exception, the examples of non-avoidance arguments referenced by the accused were based on the evidence in the trial and not on prohibited inferences.

In any event, none were accepted by the trial judge, so none caused any prejudice to the accused or affected the outcome of the trial. [ 133 ] The accused also argues that the trial judge felt that it was important to state in his reasons that the myths and stereotypes were not considerations in assessing the complainant’s evidence. That is not surprising, because it is part of the law related to sexual assault.

However, the only specific references to myths and stereotypes in the trial judge’s reasons are found in his quote of the general law related to sexual assault, taken from the Crown’s written brief (see para 58), in relation to C.H. There was no other comment or

criticism by the trial judge that the defence rested on arguments based on prohibited myths and stereotypes. (ii) Cross-Examinations on Medical Records Not in Evidence [ 134 ] The accused also argues that another example of incompetence is trial counsel’s trial strategy of cross-examining the complainants on medical records that were not put into evidence, and then advancing arguments based on that evidence.

He refers, in particular, to the cross-examination of V.W. and to the trial judge’s finding that, because V.W.’s medical records were not in evidence, they were not available to challenge her testimony regarding the timing of her last appointment (see para 422). [ 135 ] At the time that trial counsel was cross-examining the complainants, no decision had been made as to whether the accused would testify, and the defence was proceeding on the basis that he would do so. Had the accused chosen to testify, the medical records would have become evidence.

Thus, it was incumbent on trial counsel to use them in cross-examination, and the failure to do so could have led to a complaint of ineffective representation. [ 136 ] Further, even though, following the accused’s decision not to testify, the medical records were not put into evidence, there were, as noted earlier, many successful inroads made through the use of those records in cross-examination. [ 137 ] I will deal with the use of medical records for V.W. Trial counsel successfully used the medical records to challenge aspects of V.W.’s testimony.

He was able to use the medical records in cross-examination to show that V.W. was confused about the purpose of her appointments on October 3 and 10, 2017, even though they were within a week of each other and only a couple of weeks before she made her complaint, which was on October 20, 2017. The trial judge accepted that she was mixed up and found that it demonstrated unreliability. In the end, however, it was not material to his decision. [ 138 ] V.W. testified that the October 19, 2017 appointment took about 30 minutes.

Following cross-examination using the medical records, she agreed that the appointment could have been as short as 11 minutes. The trial judge accepted that she did not know the exact length of the appointment, but he stated that he would not expect her to know that. [ 139 ] Finally, V.W. testified that that appointment was at 11:00 a.m., while the times recorded in the medical records were around 1:00 p.m.

The trial judge stated that this could point to an inconsistency, but the medical records were not in evidence. [ 140 ] V.W. testified she texted her boyfriend following the appointment, while she was on the bus. She agreed that the text message was at 2:26 p.m., but she maintained that the appointment was at 11:00 a.m. and that it took her three hours to go by bus directly from the doctor’s office to the university. The trial judge questioned how the bus trip could take that long.

Thus, V.W.’s evidence on the time of the appointment was problematic, whether or not the medical records were in evidence, due to the timing of her text message. [ 141 ] While the medical records were used to successfully demonstrate other inconsistencies in V.W.’s testimony, the trial judge did not view those inconsistencies as being material to his credibility findings. In his reasons, he stated (at paras 453-54): I have carefully examined the inconsistency regarding the confusion of her visits on October 3 and October 10 th .

I have concluded that this discrepancy does not diminish the reliability of her evidence regarding the visit on October 19 th . The description of the examination that took place on October 19 th was very detailed. It would be difficult to make it up and maintain it. There was no reason for her to make it up. There is no evidence of any animus toward [the accused]. I accept her evidence about the visit on October 19, 2017. . . . [ 142 ] He then listed 13 details of the appointment that he accepted, none of which related to timing.

He concluded that, “[t]he evidence I accept prove[d] the case beyond a reasonable doubt. [The accused] is guilty of sexually assaulting [V.W.]” (at para 455). [ 143 ] Considering all of this evidence, I am of the view that, even if V.W.’s medical records had been in evidence, it was very unlikely that an error in the appointment time between 11:00 a.m. and 1:00 p.m. on the same day would have been material to the trial judge’s credibility finding, whether considered alone or together with the other inconsistencies in her evidence.

This is consistent with the trial judge’s credibility findings regarding other complainants who were inconsistent with minor details in dates (H.S. and M.H.) and forgotten appointments (P.P.), wherein he held that those inconsistencies did not affect their credibility. [ 144 ] Thus, I would find that there was no prejudice to the accused from the failure to file the medical records for V.W. or from cross-examining her on records not in evidence. (iii) Cumulative Effect of Trial Strategies [ 145 ] The accused argues that the cumulative effect of adopting a trial strategy premised on cross-examination on medical records not in evidence, no evidence from him, and arguments offered that, if accepted, would not survive appellate review (primarily credibility findings based on prohibited myths and stereotypes) does not fall within the wide range of acceptable professional assistance.

He is arguing that, considered cumulatively, these strategies resulted in either trial unfairness, the appearance of unfairness, or an unfair trial process, leading to a miscarriage of justice. [ 146 ] For the reasons set out above, I would reject the arguments that the accused’s decision not to testify and trial counsel’s

decision not to file the medical records in evidence were the result of the incompetence of counsel. I would come to the same conclusionregarding the decision not to admit the evidence of P.S.’s civil claim or to cross-examine her on it. I would find, with one exception, thatthe accused has not pointed to any questions or arguments that were based on prohibited myths and stereotypes, and the one argumentthat appeared to do so was rejected by the trial judge. Thus, none of these allegations could have prejudiced the accused.

I would cometo the same conclusion regarding the allegations of the failure to call evidence to support some of the credibility challenges and cross-examining witnesses on medical records not in evidence. Thus, none of these allegations meets the test for ineffective representation. [147] I would find that, even considered cumulatively, these allegations do not constitute ineffective representation.

Further, Iwould reject the argument that the cumulative effect of the trial strategies resulted in trial unfairness, the appearance of trial unfairness oran unfair trial process. (iv) Conclusion–Ineffective Representation [148] For these reasons, I would find that the accused has not proven the allegations of ineffective representation or a resultingmiscarriage of justice, and I would dismiss this ground of appeal. IV. RELIANCE ON PRIOR EXPERIENCE WITH MEDICAL EXAMINATIONS 1.

The Parties’ Positions [149] The accused argues that the trial judge improperly relied on complainants’ prior experiences with doctors/medicalexaminations in concluding that a sexual assault had occurred. He says that the range of medical examinations, the reasons to undertakecertain actions and the acceptable approaches are well beyond the scope of a lay person.

His position is that the trial judge erred inconcluding that the complainants could provide lay opinion, based on past experience, to support a conviction when it was made clear bythe expert witness that there are different approaches to performing a medical examination. [150] The accused references only the trial judge’s reasons in relation to P.P. He argues that, in concluding that theexamination of P.P. was “beyond inappropriate” (at para 222), the trial judge failed to consider the evidence of the expert witness, Dr.Martin.

His position is that there was a medical purpose for the examination, which P.P. had requested, and there were reasons toexamine the breast, to compare, and to examine the nipple.

He says that the Crown had the onus to call evidence to support a findingthat the examination or action was not medically called for, and it failed to do so. [151] The Crown argues, firstly, that the trial judge must have access to all relevant information to determine whether acomplainant consented to the treatment or procedure, particularly given that the law requires consent to all aspects of a medicalexamination, including those done for a legitimate purpose. (See R v Litchfield, (SCC), [1993] 4 SCR 333 at 345.) Forthis reason, a complainant’s experience as to the unusual nature of an examination is relevant to her/his perception of the examination. [152] The Crown further argues that, at no point in his analysis, did the trial judge mention P.P.’s experience with otherdoctors or other examinations, other than when setting out the Crown’s position.

He did not rely on it earlier in his reasons, when hefound that the vaginal examination was a “proper medical examination”, even though she testified that that examination differed from herexperience with other doctors. 2. The Trial Judge’s Reasons [153] The trial judge set out the arguments of both the Crown and trial counsel regarding the expert witness’s evidence as tohow to perform a breast examination. He then summarized P.P.’s evidence as to how the breast examination was performed, being thatthe accused unzipped her sweater and pulled down her shirt, exposing her breasts.

He massaged both breasts at the same time in acircular motion. He did not say anything, and she felt uncomfortable. After that, he asked “if her boyfriend sucks on her nipples and herboobs. She did not respond and he proceeded to flick her nipple ring with his finger” (at para 221). He then found that “[t]he manner ofthis breast examination was beyond inappropriate; it was a direct assault on the sexual integrity of [P.P.]” (at para 222) and that theaccused was guilty of sexual assault. 3. Analysis [154] In my view, evidence of ot

[…]