Conviction of pediatrician for sexual assault against non-patient complainant upheld on appeal
Accused appealed his conviction for sexual assault. Accused was pediatrician whose practice focused on children with behavioural problems. Accused was charged with 32 counts of sexual assault and sexual interference. Trial judge convicted accused of sexual assault with respect to one count relating to non-patient complainant. Complainant met accused when he was Grade 9 high school athlete. Accused was involved with students as medical doctor and wrestling coach. Accused also took part in Bible study group for students at school. Complainant had challenging home life and at age of 15, he was living on his own in boarding house. Accused befriended complainant, gave him food, gifts, football cleats, camping trip and regularly invited him and his friends to his home. Complainant testified about three events which gave rise to allegations in question: one in kitchen; another involving his sore back; and third event on couch. Accused also testified about each incident. Appeal dismissed. Fair reading of trial judge's reasons demonstrated that he rejected evidence of accused and accepted evidence of complainant in connection with all three events. Trial judge rejected accused's testimony and indicated that evidence in its entirety did not raise reasonable doubt. It was open to trial judge to be sceptical of accused's testimony in connection with apology. Accused referred to trial judge's statement that there appeared to have been pattern of behaviour in incidents described. It was submitted that trial judge applied impermissible similar fact reasoning. Even if court agreed with accused's interpretation, court would apply curative proviso. Alleged perpetrator and victim were same in each of incidents. Similar fact application would most certainly have been allowed. In criticising trial judge's dealings with complainant's testimony, accused was seeking to have court retry factual findings made by trial judge. There was evidentiary basis for each finding made.
R. v. Marshall (Jul. 9, 2015, Ont. C.A., G.R. Strathy J.A., J.C. MacPherson J.A., and M.L. Benotto J.A., File No. CA C57220) 123 W.C.B. (2d) 496.