



WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)       any
    of the following offences;

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

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

(iii)       REPEALED: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

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

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

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

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

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    information that could identify the victim shall not be published in any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

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

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

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

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

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

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marshall, 2017 ONCA 801

DATE: 20171019

DOCKET: C61978 and C62133

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Appellant by way

of cross-appeal)

and

Daniel Robert Marshall

Appellant (Respondent by way

of cross-appeal)

Mark J. Sandler and Amanda Ross, for the appellant

Eric Siebenmorgen, for the respondent

Heard: May 15, 2017

On appeal from the conviction entered on December 7, 2015
    and the sentence imposed on April 14, 2016 by Justice James A. Ramsay of the
    Superior Court of Justice, sitting without a jury.

Epstein J.A.:

A.

OVERVIEW

[1]

In 2013, the complainant, K.A., read a newspaper article about an
    ongoing criminal trial in which the appellant, then a pediatrician, faced
    multiple allegations arising from historical sexual complaints. K.A. contacted the
    Crown Attorney involved in the prosecution, suggesting that he could provide
    the Crown with more ammo. Ultimately, the appellant was acquitted of all but
    one of those charges. He was sentenced to a term of eight months imprisonment.
    The current charges were laid against the appellant on the day of his
    sentencing in the first prosecution.

[2]

K.A. was 40 years old when he testified in this matter. He gave evidence
    about the appellants brief examination of his genitals that K.A. described as clinical
    in nature. The appellants contemporaneous medical chart supported this
    description. In his testimony, the appellant explained why he performed the
    genital examination and denied any sexual impropriety. Experts gave conflicting
    evidence about the necessity and appropriateness of the genital examination.

[3]

On December 7, 2015, after a judge alone trial, the appellant was
    convicted of one count of sexual assault. The trial judge concluded that the
    appellants touching of K.A.s penis was not medically necessary and amounted
    to a sexual groping. The appellant was sentenced to pay a $5,000 fine. A
    related count of sexual touching of a young person was conditionally stayed,
    and the appellant was acquitted in relation to a second historical allegation
    from another complainant.

[4]

The appellant appeals his conviction. The Crown seeks leave to appeal
    sentence.

[5]

The appellant submits that the trial judge misapprehended or failed to
    appreciate the evidence bearing on innocence, including the significance of the
    appellants contemporaneous medical chart, and failed to provide reasons for
    his credibility and reliability assessment that permit meaningful review. The
    appellant further relies on the fact that the trial judge made no reference to
    the burden of proof or the test in

R. v. W.(D.)
, [1991] 1
    S.C.R. 742
.
The appellant also
    argues that the trial judge erred in disallowing evidence that supported the
    defence experts opinion. The Crowns position is that the record does not
    support these claims.

[6]

For the reasons that follow, I agree with the appellant that the trial
    judges analysis of the evidence and reasoning leading to the appellants
    conviction is flawed. In my view, the trial judge misapprehended important aspects
    of the evidence. I am therefore of the view that the verdict is unsafe and the
    conviction should be set aside. Given this conclusion, I find it unnecessary to
    deal with the appellants submissions regarding the sufficiency of the trial
    judges reasons, the burden of proof, and the trial judges treatment of the
    expert evidence called by the appellant.

[7]

Further, in my opinion, on a correct apprehension of the evidence, no
    reasonable trier of fact could find the appellant guilty of sexual assault and
    an acquittal should be entered.

[8]

Given how I would dispose of the conviction appeal, I find it
    unnecessary to deal with the Crowns sentence appeal.

B.

SUMMARY OF THE EVIDENCE

(1)

Evidence of K.A.

[9]

K.A. was referred to the appellant out of concern that he had attention
    deficit disorder (ADD). The appellant was a pediatric specialist in
    diagnosing ADD.

[10]

The
    offence allegedly took place on December 4, 1990 at K.A.s first appointment
    with the appellant. K.A. and his mother met with the appellant in a
    consultation area. Then, without his mother, K.A. accompanied the appellant
    into an examination room. The appellant proceeded with a normal examination
    that involved such procedures as taking K.A.s height and weight. The appellant
    asked K.A. if he was sexually active. K.A. said he was not, because he was a
    Christian. The appellant then asked K.A. to lie on the examination table and
    unbutton his trousers so the appellant could feel his stomach area.

[11]

In
    examination-in-chief, K.A. testified that he could not recall if the appellant
    actually examined his abdominal area. In cross-examination, K.A. acknowledged
    that he told police that the appellant had, in fact, pressed on his stomach as
    a doctor might do.

[12]

K.A.
    testified that after the appellant asked him to loosen his belt and trousers,
    the appellant reached into K.A.s underwear and pulled out his penis. The
    appellant held K.A.s penis with one hand and pulled back the foreskin with his
    thumb. He then withdrew his hand and said something like ok, were good and
    you can buckle up now.

[13]

K.A.
    acknowledged that the contact did not seem sexual to him. The appellant did not
    rub the shaft of his penis. The appellant was not breathing heavily and did not
    make any sexual comments. The touching had the same cadence as his other
    examination practices, and lasted for only a few seconds.

[14]

In
    cross-examination, K.A. admitted that the touching of his penis could have been
    part of the medical examination, but he nevertheless found it strange because
    the appellant did not tell him about it in advance. K.A. disputed that the
    appellant told him that he was going to examine his private area.  He testified
    that the appellant did not touch his testes.

[15]

K.A.
    could not remember several aspects of his encounter with the appellant. He
    could not recall if the appellant examined him with any medical instruments or
    examined his eyes, ears and throat. He also could not recall a number of issues
    discussed during the initial interview. He did not recall being sent for a
    bone age x-ray (although the appellants chart noted the x-ray). K.A. could
    not recall revisiting the appellant to discuss the test results. He also could
    not recall the appellants telling him that Ritalin could delay his growth.

[16]

After
    the appointment, K.A. did not tell his mother or anyone else about this
    incident because he did not want to draw attention to something that might have
    been normal.

[17]

As
    mentioned at the outset, in 2013 K.A. learned from a newspaper article about
    the appellants first prosecution and contacted the Crown Attorney involved in
    the prosecution.

(2)

Evidence of the
    Appellant

[18]

The
    appellant was 58 years old at the time of trial. He became a doctor in 1981,
    and received his FRCPC in pediatrics in 1986. By 1990, the bulk of his patients
    referred by family doctors had attention or behavioural problems at school. The
    appellant testified that he was trained to take a broad-based comprehensive
    approach to such patients. His practice was to start with an extensive
    interview about the reason the patient was there. This was followed by a
    complete physical examination, and then his recommendations.

[19]

The
    appellants invariable practice was to conduct a physical examination that
    would include asking the patient to lie down and loosen his belt and his fly. The
    appellant would then explain that he was going to examine the patients abdomen
    and genitalia. According to the appellant, the genital examination of his adolescent
    male patients was important for a number of reasons. First, as already
    indicated, the appellant was trained to perform a comprehensive examination. At
    the time, OHIP considered a genital examination to be part of a comprehensive
    examination for billing purposes. Second, there were then significant concerns
    that the ADD medication known as Ritalin could interfere with growth.
    Accordingly, it was imperative that the appellant understand the patients
    stage of puberty. Third, most of the appellants patients were not being genitally
    examined by their family doctors, resulting in genital concerns and
    abnormalities going undetected. The appellant followed a preventative
    maintenance approach to comprehensive examinations, rather than only performing
    examinations after a patient described an area of concern or complaint.

[20]

The
    appellant testified that children with ADD experience, among other things, have
    difficulties paying attention, concentrating, and starting and finishing tasks.
    In addition, ADD individuals are known to become sexually involved at a much
    younger age. Typically, when teenage males were referred to him for suspected ADD,
    he discussed some subjects with them privately because teenagers were less
    forthright in front of their parents.

[21]

At
    trial, the appellant had a general independent recollection of K.A., as K.A.s
    mother worked in the department of pediatrics at the university where the
    appellant occasionally worked. In addition, the appellant remembered that K.A.s
    stature had come up in the examination and that he had prescribed a bone age
    growth assessment. The appellant acknowledged that he could not remember
    specific conversations with K.A. and that in testifying he had relied heavily
    on his contemporaneously made clinical notes and his practice. The appellants
    notes reflected that he took a detailed history of K.A. They contained
    references to the interview with K.A. and his mother, and to K.A.s having ADD
    and being a late bloomer, a description that was significant given the
    appellant was contemplating prescribing Ritalin.

[22]

The
    appellant believed that he would have discussed with K.A. that he was small for
    his age, explained the relationship between puberty and growth, and suggested
    that they would be taking a look at that. The appellant was confident that he
    had had such a discussion with K.A. based on his clinical notes, the fact that
    he sent K.A. for a bone age x-ray, and his normal practice.

[23]

The
    appellants contemporaneous clinical notes contained references to the physical
    examination, including an examination of K.A.s abdomen and genitalia. Consistent
    with K.A.s evidence, the appellant, relying on his notes and normal practice, testified
    that he would have asked K.A. to lie down and open his belt and his zipper, and
    would then have explained to K.A. that he was going to feel his abdomen. The
    appellant said that he would normally phrase his explanation this way: were
    going to feel your abdomen and check your private parts. Because he had
    discussed the fact that K.A. was short, the appellant was sure he would have
    said, and were going to check how puberty is going. The appellant did not
    believe that he had ever reached into a childs underwear without giving an
    explanation beforehand.

[24]

The
    appellant described the genital examination procedure based on the contents of
    his chart and his usual practice. He would have lifted K.A.s underwear band
    and looked at K.A.s genitalia. Usually, he would lift the penis with one hand
    to see the testicles and palpate them with his other hand. He would then ensure
    that the foreskin retracted properly. This examination would take seconds.

[25]

At
    the time, the appellant would not record his discussions with a patient during
    the physical examination. He was not aware of any doctors who then included
    such information in their notes. During the intervening 25 years, procedures have
    changed.

[26]

The
    appellant testified that K.A. was incorrect when he said that the appellant had
    not palpated his testes. The appellants contemporaneous notes record Tanner
    IV IV. (This is a reference to the widely used Tanner scale of physical
    development in children; the first IV refers to the extent of pubic hair, and
    the second IV refers to the development of the genitals). The appellant
    palpated the testes to accurately gauge the size of K.A.s testicles. The
    appellant denied that he palpated K.A.s testicles to give himself sexual
    pleasure.

[27]

As
    his notes reflect, the appellant documented three further steps for K.A.: [b]one
    age, Connors, and trial. Connors was a reference to a questionnaire to be
    sent to K.A.s school for information about his attention problems.

[28]

The
    appellants reference to [b]one age reflects that he sent K.A. for a bone age
    x-ray on his hand and wrist after he determined that K.A. was Tanner Stage IV
    IV. The bone age x-ray is a way to accurately predict a childs growth
    potential. K.A. was fairly sexually mature, but the appellant wanted to learn
    how long this had been the case because of Ritalins potential effect on growth.
    The appellants notes indicate that the x-ray of K.A.s left hand revealed a
    bone age of 14 years, which represented delayed growth when compared with
    K.A.s chronological age of 15 years and 9 months.

[29]

The
    appellants reporting letter to K.A.s family doctor, written the same day as
    the genital examination, noted the following:

He is 165 cm in height and 51.8 kg in weight. His blood
    pressure is 110/80. Examination of his head and neck is normal, chest is clear,
    heart sounds normal,
abdomen soft with no masses or tenderness, genitalia
    normal Tanner IV IV,
neurological exam shows symmetrical reflexes, good
    fine motor movements, normal balance and tone. He is right handed and right
    footed.



While [K.A.] is clearly a bright fellow he has attention
    problems, and I discussed with his parents the option of attempting to treat
    this with Ritalin, to see if we can help his school performance to be a more
    accurate reflection of his very high abilities.
Additionally I note that [K.A.]
    is quite small for his age, being at the

10th percentile for height
    and below the third percentile for weight. I attribute this to his likely being
    somewhat late maturing; I think he still has a fair bit of growth ahead of him.
    Most boys his age would be close to finishing growing.



I would also like to do a bone age on [K.A.], to reassure him
    about his future growth. [Emphasis added.]

[30]

The
    appellant prescribed Ritalin to K.A. on a trial basis. K.A. remained the
    appellants patient until 1993. In total, K.A. saw the appellant six times. The
    appellant monitored K.A.s height and weight during subsequent appointments,
    but did not perform another genital examination.

(3)

Crown Expert Evidence

[31]

The
    Crown called Dr. Warren as an expert witness. The doctor had three criticisms
    of the appellants assessment of K.A.: (1) the genital examination performed
    was not clinically necessary; (2) the appellant, based on K.A.s evidence, did
    not tell K.A. that he was going to examine his genitals in advance and thus did
    not obtain his consent; and (3) the manner in which the appellant performed the
    genital examination was not appropriate.

[32]

Dr.
    Warren initially testified that he saw no reason to conduct a genital
    examination for an individual presenting for consultation for ADD. Nor was
    there any medical reason to pull back K.A.s foreskin, as nothing in the
    medical charts reflected a relevant complaint by K.A., and this was not
    necessary for Tanner staging. Dr. Warren also disagreed that Tanner staging
    would be necessary during an ADD assessment. If Tanner staging were to be
    conducted, Dr. Warren testified that a reasonable assessment could generally be
    done visually, although Dr. Warren agreed on cross-examination that the more
    accurate practice is to palpate the testes. Dr. Warren assumed for the purposes
    of his opinion that no palpation was done. Dr. Warren did agree that a doctor in
    some circumstances may have to lift the penis in order to visualize the testes
    properly.

[33]

Dr.
    Warren conceded that pediatricians perform genital examinations in different
    ways. He also agreed that pediatricians are sometimes asked to assess
    individuals for sexual maturity. In such a case, Dr. Warren would have no
    concerns with a genital examination being performed.
However, Dr. Warren opined that a genital examination was not within the
    purview of the appellants consultation. There was no information in K.A.s chart
    indicating he had never had a genital examination before, and no recorded
    concerns that would justify such an examination.

[34]

Dr.
    Warren admitted in cross-examination that he had understood that the appellant
    performed ADD assessments as a large part of his practice, but had been unaware
    that the appellant was formally a general pediatrician, in addition to being a
    developmental pediatrician. He agreed that many general pediatricians, acting
    in their role as ADD consultants, do perform a full physical examination.
    Further, Dr. Warren noted that in the 1980s and 1990s, the Ministry of Health
    had tried to force the issue of requiring physicians to conduct full physical
    examinations, which included a genital examination.

[35]

Dr.
    Warren also agreed that Ritalin was known to delay growth in some cases. He
    acknowledged that the appellant appropriately identified K.A. as a late
    bloomer and appropriately sent him for a bone age radiograph. Although he felt
    that a genital examination would not be medically necessary when concerned about
    delayed growth due to prescribing Ritalin, he conceded that his own practice
    did not involve initiating Ritalin treatment for children.

[36]

Dr.
    Warren testified that the appellant should have provided an explanation for a
    genital examination before it was performed. However, he conceded that formal
    documentation of that explanation was not required in 1990 to the extent that it
    is now.

[37]

Dr.
    Warren also testified that, because of distractibility, ADD patients may not
    pay attention to new events. Dr. Warren agreed with the appellant that children
    with ADD may have increased sexual activity. However, he testified that if a patient
    reports that he has not been sexually active, he would not check for STDs.

(4)

Defence Expert Evidence

[38]

Dr.
    Martin Levin was called as an expert for the defence. Dr. Levin was qualified
    as an expert in pediatrics and adolescent medicine. His own practice primarily
    involved the treatment of adolescents for school problems, behavioural issues,
    or chronic issues such as eating or weight issues.

[39]

Dr.
    Levin was asked to provide his opinion as to whether the appellants genital
    examination of K.A. was medically justified and whether it was conducted in a
    reasonable manner. Dr. Levin agreed with the appellant that at the material
    time there was significant concern about the effect of stimulant medication
    (such as Ritalin) on growth. Dr. Levin was of the view that a genital
    examination would be part of a routine examination for a 15-year-old male
    patient in order to assess his stage of puberty and whether any abnormalities
    were present. Dr. Levin was trained to conduct a genital examination with every
    new male patient he saw, especially for ADD or behavioural issue patients,
    given increased sexual risk factors. He also agreed that a genital examination
    was important in K.A.s circumstances due to the appellants contemplated
    stimulant prescription.

[40]

For
    the purposes of assessing the reasonableness of the appellants methodology
    during the genital examination, Dr. Levin assumed that the appellant first
    explained to K.A. that he was going to examine his genitals. In Dr. Levins
    view, such an explanation would be important and appropriate.

[41]

Dr.
    Levin testified that during a genital examination, one views the pubic hair,
    the penis and the glands, and then palpates the testicles and retracts the
    foreskin  a process that could be completed in a few seconds. Dr. Levin
    testified that, at the time, the practice was to advise the patient that a
    genital examination was to be performed, rather than asking for permission to
    do so. Dr. Levin agreed with the procedure endorsed in medical literature
    regarding the examination of genitalia that every adolescent should be
    evaluated for Tanner staging at each checkup so that those with normal
    development can be reassured and those with abnormalities can be further
    evaluated. This procedure was consistent with his own training.

[42]

Dr.
    Levin testified that ADD patients may experience memory deficits. This did not
    mean that the patients memory was poor, but rather that information may not be
    noticed and stored as memory in the first place. In relation to K.A.s
    testimony that the appellant had not palpated his testicles, Dr. Levin testified
    that:

[t]he issue was did [K.A.] take in the entire examination and
    was he focused on that, did he take in all the information; that would be the
    first question. Because he was not treated with medication. He was in a new
    situation and new situations for [ADD] patients cause more increased anxiety
    and theyre more likely to have distractibility issues. So youre assuming that
    he took it all in. Im assuming, from my clinical practice, that thats not
    always the case.

[43]

Dr.
    Levin agreed that if K.A.s account of the genital examination was correct, and
    the appellant reached into K.A.s pants without prior warning, pulled back
    K.A.s foreskin, and did not palpate K.A.s testicles, the examination would
    have been improperly conducted.

C.

REASONS FOR JUDGMENT

(1)

Conviction

[44]

The trial judge found K.A. to be an impressive
    witness. He found that K.A.s attention to the medical examination became
    focused when the appellant lifted up his waistband. As the appellant professed
    no actual recollection of the examination, on the two points on which his
    evidence differed from that of K.A.  whether the appellant forewarned K.A. of
    the genital examination and whether the appellant palpated K.A.s testicles  the
    trial judge accepted K.A.s evidence over that of the appellant.

[45]

The trial judge summarized his assessment of the divide in the
    evidence as follows:

I have considered the evidence of [the appellant] in the light
    of all the evidence. I also note that he professes no actual recollection.
    Given that, on the two points on which he differs with [K.A.], the explanation
    and whether he palpated the testicles, I reject the evidence of [the appellant]
    and I accept [K.A.s] evidence. I recognize that as to the stage of development
    he did document that as Tanner IV IV and he also documented no abdominal
    tenderness.
Notwithstanding that, I do not believe that that translates into
    his doing what he says he must have done.
As I said, I accept [K.A.s]
    evidence and I should particularize that I was impressed not only with his
    honesty, which is not in question, but with his reliability. [Emphasis added.]

[46]

The trial judge further held that the appellant
    did not need to touch K.A.s penis, for two reasons. First, while a genital
    examination was part of a comprehensive examination, the appellant had not been
    consulted for this purpose. Second, the trial judge accepted Dr. Warrens
    opinion that it was not necessary to examine K.A.s genitals to give an opinion
    on ADD. The trial judge noted that the defence experts opinion that a genital
    examination would have been called for in the circumstances was based on the
    assumption that there was a reason to look for STDs. However, there was no such
    reason here, as K.A. had told the appellant that he was not sexually active. The
    trial judge also found that the appellant did not need to touch K.A.s penis in
    order to determine his sexual maturity.

[47]

The trial judge observed that Dr. Levins
    opinion also assumed that it is legitimate to conduct a genital exam when the
    patients family doctor had not performed one. But there was no evidence that
    this was the case with K.A. In the trial judges view, the appellants assumption
    that K.A. may not have previously had a genital examination did not give the
    appellant the right to conduct one without prior warning.  Further, the trial
    judge noted that although the appellant saw K.A. until 1993, he did not repeat
    the genital examination yearly.

[48]

Given the trial judges findings that (i) the appellant did not
    forewarn K.A. that he was going to perform a genital examination, (ii) he did
    not palpate K.A.s testicles, and (iii) a genital examination was not medically
    necessary or appropriate in the circumstances, the trial judge concluded
that the quick touching was done for a sexual purpose,
    characterizing it as a fleeting sexual groping. He convicted the appellant of
    sexual assault.

(2)

Sentence

[49]

The trial judge found this to be a rare case in
    which a fine was justified. He sentenced the appellant to pay a fine of $5,000.

D.

analysis

[50]

As earlier indicated, I am of the view that the
    trial judge misapprehended material evidence. My analysis of this issue will be
    assisted by a review of the elements of sexual assault.

[51]

Sexual
    assault is an assault that is committed in circumstances of a sexual nature,
    such that the sexual integrity of the victim is violated:
R. v. Chase
,
[1987] 2 S.C.R. 293, at p. 302.

[52]

The
actus reus

of sexual assault is established by the proof of three
    elements: (i) a touching, (ii) the sexual nature of the touching, and (iii) the
    absence of consent:
R. v. Ewanchuk
,
[1999] 1 S.C.R. 330, at
    para. 25. The sexual nature of the assault is determined objectively by
    examining the nature and quality of the act. The court must ask itself, viewed
    in the light of all the circumstances, is the sexual or carnal context of the
    assault visible to a reasonable observer?:
Chase
,
at p. 302.
    The circumstances to be considered include the part of the body touched, the
    nature of the contact, the situation in which it occurred, and the words and
    gestures accompanying the act.

[53]

The
    Crown need not prove that the accused had any specific
mens rea

with
    respect to the sexual nature of his or her behaviour. A finding of sexual
    assault does not require proof of an improper or ulterior purpose:
R. v.
    Lutoslawski
,
2010 SCC 49, [2010] 3 S.C.R. 60, at para. 36. The
    intent or purpose of the person committing the act may be a factor in
    considering whether the conduct was sexual, but is only one factor to be
    considered in the analysis:
Chase
,
at p. 302.

(1)

Misapprehension of the evidence  the legal standard

[54]

A
    misapprehension of evidence includes a failure to consider evidence relevant
    to a material issue, a mistake as to the substance of the evidence, or a
    failure to give proper effect to evidence:
R. v. Morrissey

(1995),
    22 O.R. (3d) 514 (C.A.), at p. 538. The well-settled test for appellate
    intervention based on misapprehension of evidence is where a trial judge is
    mistaken as to the substance of material parts of the evidence and those errors
    play an essential part in the reasoning process resulting in a conviction then
     the accuseds conviction is not based exclusively on the evidence and is not
    a true verdict:
Morrissey
,
at p. 541.

[55]

The
    Supreme Court has made it clear that the misapprehended evidence must be a
    central element of the trial judges reasoning on which the conviction is
    based. If the trial judge would inevitably have arrived at the same conclusion
    without the misapprehended evidence, there is no miscarriage of justice. The relevant
    question is whether striking the error in the assessment of the evidence would
    leave the trial judges reasoning on which the conviction is based on shaky
    ground:
R. v. Sinclair
, 2011 SCC 40,
[2011] 3 S.C.R. 3, at para. 56.

(2)

The trial judges misapprehension of the evidence

[56]

The
    trial judge concluded that the touching was not medically necessary or
    justified, and was not carried out in an appropriate manner. Although his
    reasoning is not entirely clear, the trial judge
appears to
    have concluded that any gratuitous touching of the genitals was for a sexual
    purpose.

[57]

The trial judges conclusion that the touching was gratuitous was
    heavily dependent on the expert evidence and on two findings: (i) that the
    appellant did not forewarn K.A. that he was going to examine his genitals, and (ii)
    that the appellant did not palpate or otherwise touch K.A.s testes.

[58]

For reasons I will now set out, I am of the view that both of those
    key findings, as well as the trial judges appraisal of the expert evidence,
    were based on misapprehensions of evidence. Further, in his analysis the trial
    judge failed to address other important evidence that related to K.A.s
    reliability, as well as evidence that supported the appellants innocence.

(a)

The failure to
    address problems with the reliability of K.A.s evidence

(i)

The evidence
    that the appellant forewarned K.A.

[59]

The appellant contends that the verdict was the
    result of a misapprehension of the evidence relevant to what was clearly a key
    issue at trial; namely, the reliability of K.A.s evidence that the appellant
    did not forewarn him that he would be conducting a genital examination. As
    previously indicated, the appellant testified that he did forewarn K.A. of his
    intention to examine K.A.s genitals. He gave a detailed explanation of his
    normal practice, outlining that he would tell the patient were going to feel
    your abdomen and check your private parts. The appellant added that given K.A.
    was short, he was sure that he would have told him and were going to check
    how puberty is going.

[60]

As Mr. Sandler, counsel for the appellant, put it, the divide in the
    evidence as to whether there was a forewarning of the genital examination was small.
    K.A. may have been attempting to recall something as subtle as the difference
    between the appellants saying I am going to examine your tummy versus I am
    going to examine your tummy
and your genitals
 (emphasis added). The
    trial judges finding that what the appellant said was effectively the former
    rather than the latter depended on his conclusion that K.A.s evidence was more
    reliable than the appellants.

[61]

The Crown submits that the reasons for judgment,
    read as a whole and in the context of the entire trial, demonstrate that the
    trial judge fully and fairly considered all the evidence before him. It is
    clear that the trial judge was alive to the potential frailties of K.A.s testimony.
    For example, the trial judge found that K.A. provided a legitimate reason why
    he did not earlier report what had happened and acknowledged the potential
    impact of K.A.s ADD on his memory. Despite K.A.s ADD, the trial judge
    reasoned that when the appellant put his hands into K.A.s pants, K.A. must
    have been quite focused. The trial judge also clearly addressed the potential
    significance of evidence that the appellants actions lacked any overt indicia
    of sexual assault.

(ii)

The
evidence that the appellant palpated K.A.s testicles

[62]

Reliability
    also played a key role in the trial judges findings that the appellant did not
    palpate K.A.s testicles. Recall that K.A. testified that the appellant did not
    touch his testicles.

[63]

The
    appellant vigorously disputed K.A.s evidence on this point.
In
    addition to the appellants own testimony that, based on his training and his
    invariable practice, he was able to testify with some assurance that he touched
    K.A.s testes, the appellant
relied on his contemporaneous notes that
    record K.A.s stage of development as Tanner IV IV, an assessment that would have
    involved palpation of the testicles.

[64]

Moreover,
    Dr. Levin gave evidence that palpating the testicles was a necessary part of a Tanner
    IV IV finding. Dr. Warrens evidence also supported the appellants position on
    this issue as he acknowledged under cross-examination that many general
    pediatricians, acting in their role as ADD consultants, perform a full
    physical, including a genital examination.

(iii)

Conclusion  palpation and forewarning

[65]

I
    agree with Mr. Sandler that it was incumbent on the trial judge to grapple with
    the reliability of K.A.s recollection on these two important points  the lack
    of forewarning and the lack of palpation of the testicles  in the face of the
    appellants competing evidence. But he did not.

(iv)

Other concerns about evidence relating to K.A.s reliability

[66]

There
    were other reasons to be concerned about the reliability of K.A.s evidence.

[67]

I
    start with K.A.s testimony that he had no recollection of any discussion
    between him and the appellant about growth  in other words, he did not recall
    discussing his stature, tests to be done to assess the stage of his development,
    or the potential effects Ritalin may have on growth. When faced with the
    appellants files recording the discussion about growth, the related tests and the
    results of those tests, K.A. admitted that he may have forgotten the discussion
    about these issues. The trial judge had to resolve how he could rely on K.A.s
    evidence on the lack of discussion about his stature, given the evidence to the
    contrary. Again, he did not.

[68]

Then
    there was K.A.s evidence in chief that he did not recall if the appellant
    examined or otherwise touched his abdomen. Under cross-examination, K.A.
    acknowledged that he had told the police that the appellant had pressed on his
    stomach as a doctor might. I note that the appellants chart recorded no
    abdominal tenderness, an observation that necessarily involved touching K.A.s
    abdomen. This is a clear example of the appellants notes being more plausible
    than K.A.s account.

[69]

The
    trial judge had to deal with this evidence and explain how he resolved the
    reliability problems it raised. He did not.

(v)

Evidence in
    support of innocence

[70]

There
    was also evidence in support of innocence; namely:

(i) the potential tainting of K.A.s recollection, 25 years
    after the fact, based on reading about other allegations being made against the
    appellant;

(ii) the evidence of K.A.s focusing problems when not
    medicated;

(iii) K.A.s own testimony admitting that the appellants
    actions in relation to his penis could have been part of the examination;

(iv) the absence of any indication of sexual arousal or
    stimulation; and

(v) the steps the appellant took out of respect for K.A.s
    privacy.

[71]

I
    appreciate that the trial judge touched on some of these points. But, in my
    view, the most important of these factors bearing on innocence was the effect
    of K.A.s untreated ADD at the time of the interaction in question. With
    respect, the trial judges reasons discussing that issue reflect a
    misunderstanding of the key point. The trial judge reasoned that since this was
    the first time a doctor had touched K.A.s penis, K.A. would have been quite
    focused on what was happening during the genital examination: it was something
    he would have remembered.  The problem with this reasoning is that the issue,
    at least with respect to the advance warning, was not whether K.A. was focused when
    his genitals were being examined, but whether he was focused when the appellant
    was talking to him just
before
that part of the examination.

[72]

The
    trial judge also provided no explanation for his conclusion that the
    appellants contemporaneous notes did not translate into a finding that the
    appellant did what he said he must have done  palpate K.A.s genitals. The
    Crown did not allege that the notes were altered or prepared 25 years after the
    fact. In my view, the trial judge was obligated to explain why he was in a
    position to reject this powerful evidence that undermined the reliability of
    K.A. The appellant was entitled to some analysis of this evidence, both alone
    and in the context of the evidence as a whole: see
R. v. M. (Y.)
(2004)
,
71 O.R. (3d) 388

(C.A.), at para. 37
citing R. v. Lagace

(2003), 181 C.C.C. (3d) 12 (Ont. C.A.).

(vi)

Conclusion regarding the reliability of K.A.s evidence

[73]

In
    my view, the failure to take into account much of the evidence relevant to the
    pivotal issue of the reliability of key aspects of K.A.s testimony concerning
    the appellants examination of him 25 years earlier undercuts the trial judges
    findings on the critical issue of whether the touching of K.A.s penis was
    gratuitous and constitutes a misapprehension of the evidence that warrants
    appellate intervention.

(b)

The misapprehension
    of the expert evidence

[74]

The
    appellant also submits that the trial judge misapprehended the expert evidence.
    Focusing on the testimony of Dr. Warren and Dr. Levin, the trial judge said
    this:

The [appellant] did not need to touch [K.A.s] penis to
    determine his sexual maturity. Touching the penis and retracting the foreskin
    is part of a genital examination, and a genital examination is part of a
    comprehensive examination. Dr. Marshall was not retained to do a comprehensive
    examination. I do not take the defence evidence as showing that Dr. Marshall
    could not have billed for the work for which he was retained and I accept Dr.
    Warrens opinion that it is not necessary to examine the genitals to give an
    opinion on ADD. Dr. Levins contrary opinion assumes that there is a reason to
    look for STDs, which there was not in this case, and which Dr. Marshall was not
    doing anyway. And Dr. Levins opinion assumes it is legitimate for a
    paediatrician to conduct a genital examination when the patient has not had one
    at the family doctor or at the general paediatrician.

In this case there is nothing in the evidence to say that Dr.
    Marshall knew that such was the case with [K.A.]. His assumption that most boys
    do not get such an exam did not give him the right to conduct such an
    examination without even announcing it beforehand, which, as I have found, he
    did not do. Furthermore, he saw Kevin until 1993. Why did he not then repeat
    the genital examination yearly, as Dr. Levin said is indicated, if he was so concerned
    that neither the general paediatrician nor the family doctor were doing that?

The cadence of the genital exam was
    clinical, but it was not a clinical exam. It was not necessary for the accused
    persons purposes and it was not conducted like a medical examination. Lifting
    up the waistband of a boys underwear and reaching in with an ungloved hand
    unannounced is not clinical.

[75]

I
    agree with the appellant that this passage reveals several material misapprehensions.

[76]

First,
    with respect to the trial judges statement that the appellant did not need to
    touch K.A.s penis to determine his sexual maturity, both Dr. Warren and Dr.
    Levin testified that touching the penis may be necessary in a Tanner staging
    exam in order to visualize the testicles. Second, the trial judge accepted Dr.
    Warrens opinion that it was not necessary to examine K.A.s genitals to give
    an opinion on ADD, and stressed that the appellant was not retained to do a
    comprehensive examination that would involve a pulling back the foreskin on
    K.A.s penis as part of a genital examination. From these findings the trial
    judge inferred that the touching was for a sexual purpose.

[77]

With
    respect, these findings miss the point. The fact that the appellant was not
    retained to perform such an examination and that it was not necessary to give
    an opinion on ADD, does not necessarily lead to the inference that the
    examination was unnecessary, unjustified, or, most significantly, conducted for
    a sexual purpose. The relevant issue was the appellants belief that a
    comprehensive medical exam was a suitable diagnostic tool and otherwise justified
    and appropriate in the circumstances.

[78]

Dr.
    Warren conceded that he had previously testified that many general
    pediatricians, acting in their role as ADD consultants, perform a full physical
    examination during a consult because it is their feeling that theyre acting
    as a pediatrician as well as the developmentalist or individual assessing the
    patient for the reason for consultation. Dr. Warren admitted that he provided
    his opinion on the appropriateness of the appellants examination unaware that
    the appellant was a formal general pediatrician, not merely a developmental
    pediatrician. Dr. Warren agreed that if a general pediatrician were concerned
    about sexual maturity, he would have no concerns about their conducting a
    genital examination.

[79]

Further,
    the trial judge mischaracterized Dr. Levins opinion on this point. Dr. Levin
    testified that he would perform a comprehensive examination whenever he saw a
    new adolescent male patient. This comprehensive examination would include a
    genital examination. He testified that it was
especially important

to conduct such an examination for a patient with ADD, given the increased
    risk of STDs. However, the trial judge mischaracterized his evidence as assum[ing]
    that there is a reason to look for STDs, which there was not in this case, and
    which Dr. Marshall was not doing anyway. Dr. Levin provided alternative
    reasons for a general pediatrician to perform a comprehensive exam, including a
    genital examination, on any patient  not only those at risk for STDs.

[80]

Most
    importantly, both Dr. Levin and Dr. Warren testified that similarly situated
    general pediatricians
may

perform
    a comprehensive examination  which would include a genital examination  in
    those circumstances. A comprehensive physical examination would include a
    genital examination. This is entirely consistent with the appellants position
    on why he examined K.A.s genitals. And this evidence is supported by the
    letter from the appellant to K.A.s family doctor, in which he details his
    findings from the physical examination, including his finding that K.A.s genitalia
    [are] normal.

[81]

Dr.
    Marshall also testified that at this time OHIP was pressing doctors to perform
    full physical examinations, something that would include an examination of the
    genitals. The trial judge misunderstood the defences argument concerning OHIP
    billing, stating that he [does] not take the defence evidence as showing that
    Dr. Marshall could not have billed for the work for which he was retained
    [without a genital examination]. The defence position was that if a
    comprehensive examination legitimately formed part of the appellants ADD examination,
    it had to include a genital examination in order to be billed as such.

[82]

Given
    these various misapprehensions, I am of the view that the trial judge erred in
    rejecting the appellants and Dr. Levins evidence relating to why an
    examination of K.As penis would have been warranted.

[83]

As
    outlined above, a finding of a sexual motivation is not necessary in order to
    find sexual assault. However, the supposed sexual rather than medical purpose
    of the touching was clearly a central factor leading the trial judge to
    conclude that the appellants touching was of an objectively sexual nature so
    as to conclude that sexual assault was made out. To the extent that that
    finding turned on the trial judges misapprehensions of evidence, it amounted
    to a serious error that impacted the result.

D.

CONCLUSION

[84]

In
    my view, the trial judge's misapprehension of the evidence set out above is an
    error of law that calls for appellate intervention.

E.

DISPOSITION

[85]

In
    my view, on a correct apprehension of the evidence, the trial judges verdict
    was unreasonable. K.A. described a brief clinical examination of his penis by
    his pediatrician with no evident sexual arousal or other manifestations of
    sexual purpose. K.A. acknowledged that the appellants conduct could have been
    part of an appropriate medical examination.

[86]

In
    these circumstances, I am also of the view that a reasonable trier of fact,
    correctly apprehending the evidence, could not be satisfied beyond a reasonable
    doubt that this was a sexually motivated touching or that, viewing the
    circumstances objectively, K.As sexual integrity had been violated.

[87]

I
    would therefore allow the appeal, set aside the conviction and enter an
    acquittal.

Released: JCM OCT 19 2017

Gloria Epstein J.A.

I agree. J.C. MacPherson J.A.

I agree. R.A. Blair J.A.


