



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doodnaught, 2014 ONCA 172

DATE: 20140305

DOCKET: M43465 (C58376)

LaForme J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

George Doodnaught

Applicant/Appellant

Brian Greenspan and Jill Makepeace, for the
    applicant/appellant

Lisa Joyal and David Wright, for the respondent

Heard: February 26, 2014

ENDORSEMENT

H.S. LaForme J.A.:

BACKGROUND

[1]

Dr. George Doodnaught was an anesthesiologist at North York General
    Hospital.  On November 19, 2013, after a six-month trial before a judge
    sitting without a jury, he was convicted of sexually assaulting twenty-one
    female patients over a four-year period ending in February 2010.  His victims
    ranged in age from twenty-five to seventy-five.  The assaults were committed in
    operating rooms during surgery while the victims were in a state of
    semi-consciousness and unable to offer meaningful resistance.

[2]

The trial judge found that with
    eight of his victims, Dr. Doodnaught inserted his penis into their mouths after
    lowering his scrub pants.  He used five other victims for acts of masturbation;
    six others had their breasts squeezed, pinched, or fondled, and some of them
    were kissed in an aggressive sexual manner.  Two other victims were kissed on
    the lips in a sexual manner.

[3]

The trial judge further found that
    over the four year period of his assaults, Dr. Doodnaught became emboldened,
    and the frequency of his crimes escalated: fifteen of the twenty-one assaults
    were committed in the last six months; and, in the ten days before his arrest,
    he assaulted at least four patients, with three of the assaults involving
    forced fellatio.

[4]

On February 25, 2014, Dr. Doodnaught was sentenced to a total of ten
    years imprisonment, which he has commenced serving.  He applies to this court
    for judicial interim release until his appeal against conviction is heard.

[5]

Dr. Doodnaught is a 65-year-old first time offender.  He is married and
    the father of five children; three adult males from previous marriages and two
    from his current marriage who are 8 and 9 years of age.  He practiced as an
    anesthetist at Toronto General Hospital from October 1979 until June 1982.  He
    carried on the same practice at North York General Hospital from 1982 until his
    initial arrest for these offences on March 10, 2010.  He was arrested again on
    September 30, 2010 on further charges related to these offences. He has been
    unemployed since his initial arrest.

[6]

Upon both of his arrests, Dr. Doodnaught was released the same day. 
    Over the four year period from his arrest through his trial, Dr. Doodnaught
    abided by all the terms of his release, including attending court as required.

[7]

Dr. Doodnaught, in his notice of appeal, claims that the trial judge
    committed some 100 errors in his conduct of the trial and ultimate decision. 
    Virtually all the grounds challenge the correctness of finding of facts by the
    trial judge.

[8]

On the whole, Dr. Doodnaught argues that the trial judge engaged in
    conclusion driven reasoning in which he ignored or rejected evidence
    inconsistent with guilt and made findings of fact consistent with guilt which
    were not supported by evidence.  More specifically, he argues that the trial
    judge variously misapprehended, improperly weighed, ignored, misapplied and
    misinterpreted much of the evidence.

THE TEST

[9]

Under s. 679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46, Dr.
    Doodnaught must satisfy me that:

1.    his appeal is not frivolous;

2.    he will
    surrender into custody in accordance with the terms of the release order; and

3.    his
    detention is not necessary in the public interest.

[10]

The
    Crown accepts that some of the grounds of appeal satisfy the very low threshold
    of not being frivolous in that they are arguable.  It also accepts that he will
    surrender into custody in light of his history of release pending his trial. 
    The Crown does, however, oppose his application on the basis of the third component,
    asserting that it is not in the public interest to release him.

ANALYSIS

(1)

The appeal is not frivolous

[11]

An
    appeal is not frivolous if the proposed grounds raise arguable issues.  Dr.
    Doodnaught does not have to satisfy me that such ground has a likelihood of
    success on appeal; rather, he is only required to satisfy me that there is a
    viable ground of appeal that would warrant appellate intervention if
    established:
R. v. Manasseri
, 2013 ONCA 647, at para. 38.

[12]

The
    detailed notice of appeal and the Crowns position on this application satisfy
    me that the appeal is not frivolous in that it raises arguable issues.

(2)

He will surrender into custody

[13]

Dr.
    Doodnaughts history while on release pending his trial indicates that he is
    not a flight risk.  As I noted above, he was initially released on the same day
    as his arrest in March 2010, and again in September 2010, until his trial and
    conviction on November 19, 2013.  On several occasions during this period
    variations on the conditions of his release were granted.  Throughout this
    entire period Dr. Doodnaught fully complied with his release terms and attended
    court whenever required.

[14]

Once
    again, this history and the position taken by the Crown satisfy me that Dr.
    Doodnaught would surrender into custody in accordance with the terms of any
    release order.

(3)

Detention is not necessary in the public interest

[15]

The
    public interest component is about the public perception of the reputation of
    the administration of justice.  This is based on the view of a public that is
    reasonably informed of the criminal process and the circumstances of the case.
    It requires that I assess the need to review the conviction leading to
    imprisonment on the one hand, and the need to respect the general rule of
    immediate enforceability of judgments on the other:
Manasseri
, at
    paras. 40-43.  This is commonly referred to in the jurisprudence as
    reviewability versus enforcement.

[16]

Public
    confidence in the administration of justice requires that judgments be
    enforced, and ordinarily requires that a person convicted of a very serious
    offence, who advances grounds of appeal that are arguable but weak, be denied
    release pending appeal.  However, public confidence in the administration of
    justice also requires that judgments be reviewed and that any errors be
    corrected, especially where an appellants liberty is at stake  in these
    circumstances justice usually requires release from custody pending the review:
R. v. Farinacci

(1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp.
    47-48.

[17]

Release
    may be especially appropriate where the hearing of the appeal "will be so
    long delayed and the probability of the success in the appeal so strong that it
    will be contrary to the public interest to refuse a release and
a fortiori
an applicant's detention would not be necessary in the public interest":
R.
    v. Baltovich

(2000), 144 C.C.C. (3d) 233 (Ont. C.A.), at para. 41,
    quoting
R. v. Baltovich
(1992), 10 O.R. (3d) 737 at 740.

[18]

The
    public interest component assumes greater prominence in cases in which the
    applicant has been convicted of a very serious offence and faces the prospect
    of a lengthy period of incarceration:
Baltovich
(2000), at para. 19. 
    This is such a case.

[19]

I will begin with a
    comment on the 49 letters Dr. Doodnaught filed from persons in the community
    which indicate their support for him and their belief in his innocence.  These
    letters were also filed with the trial judge and are entitled to some weight. 
    However, this represents a very small segment of the public.  These opinions
    should be accorded little weight given that a contrary opinion is no doubt held
    by the 21 victims and their families and associates.  The letters thus do not
    assist very much in gauging the public interest in this case.

[20]

The
    trial of Dr. Doodnaught spanned some six months and resulted in 10,000 pages of
    transcript.  There are 21 victims who each complained about Dr. Doodnaught
    independently and without knowing any of the other complainants, or their
    experiences with Dr. Doodnaught.  The very experienced trial judge provided
    extensive reasons for his decision that covered 84 single-spaced pages and
    consisted of 855 paragraphs.  The trial judge concludes his reasons for
    convicting Dr. Doodnaught by saying [t]he evidence supporting guilt is
    overwhelming.

[21]

My
    review of the trial judges reasons leaves me with the strong impression that
    he considered all the evidence carefully and that he was very much alive to the
    defence theories advanced and the evidence in respect of those theories. 
    Moreover, from the reasons alone I am not able to assess the merits of Dr.
    Doodnaughts claim that the trial judge engaged in conclusion driven reasoning
    by ignoring or rejecting evidence inconsistent with guilt and that he made
    findings of fact consistent with guilt which were not supported by evidence. 
    The trial judges reasons, without anything more, certainly do not convey that.

[22]

As
    I said, virtually all the grounds of appeal advanced by Dr. Doodnaught
    challenge the correctness of the findings of fact by the trial judge.  Such
    grounds of appeal pose an uphill battle for success on any appeal given the
    high degree of deference owed to trial judges by appellate courts in respect of
    their findings of fact.  Here, Dr. Doodnaughts claims of misapprehension,
    misapplication and ignorance of evidence by the trial judge are not viable for
    me to assess as to their strength because the transcripts of the trial are not
    yet available, and apparently will not be available until the end of May 2014.

[23]

It
    follows that on this record I cannot reach any final conclusion on the strength
    of the grounds of appeal.  Suffice it to say - and without more - that while I
    find some of the grounds to be arguable, none leave me with a very strong
    opinion in favour of the applicants chances of success on appeal.  Because of
    this, the fact that perfection of the appeal may be 16 to 18 months away, as
    counsel contends, is of little impact.

CONCLUSION

[24]

Dr.
    Doodnaughts offences, described above, are very serious. From my assessment
    based on the record before me, his grounds of appeal are weak and not likely to
    succeed, although some may be arguable.  In cases like this, the need for
    immediate enforcement of the judgment outweighs the need to review the
    decision. Release, therefore, would not be in the public interest.

[25]

The
    application for release pending appeal must be dismissed.

H.S. LaForme J.A.


