An appeals court in Greater Sudbury ordered a new trial for a man convicted of sexual assault related to an incident when he worked at a cannabis clinic in the city.
The man was working as a physician's assistant at the clinic. He is qualified as a doctor in his country of origin, but hadn't yet received his Canadian credentials at the time of the offence in 2017.
His role was "to assist the physician in taking the patient’s history and to conduct examinations and prepare a report for the clinic physician to review when he/she sees the patient," said the court transcript from the Ontario Court of Justice.
A female patient at the clinic in 2017 was dealing with neck pain that radiated down to her arm, and she had sciatic pain in her right leg. She had also previously had a lump removed from her right breast.
The assistant had her do a number of strength tests, then told her he was going to do a breast exam. Whether she consented to the exam is in dispute, but the woman testified that it was unlike any other such exam she had previously experienced.
"The manner in which this particular examination was conducted, was both unusual and caused her to feel uncomfortable," the transcript said.
"First, she had never undergone a breast examination while clothed, without a gown. Second, there was no other person present in the room during the examination. And third, the cupping of both breasts at the same time, as well as the pinching of the nipples by the appellant, was unusual to (the victim) and made her uncomfortable."
The assistant also had her pull her pants down past her buttocks to examine the area where she was experiencing sciatic pain.
As she was leaving the clinic, he then passed her a sticky note with his name and personal cellphone number written on it.
"As he handed her the note, (he said) words to the effect that he was new in town and 'to call him if she ever wanted to go for a drink or more,'" the transcript said. "He then proceeded to attempt to hug (the victim), who turned away."
Charged with sexual assault
She called her husband immediately after the appointment and told him she had been touched inappropriately. Police were called and the man was charged with sexual assault.
While a doctor who testified on behalf of the defence said the breast examine was reasonable and justified, the trial judge said it came down to credibility and reliability of the assistant and the woman.
He described the assistant's testimony as "vague, confusing, contradictory, argumentative and at times sarcastic and irritated with the cross-examiner."
The victim, however, was consistent, straightforward, and much of what she said could be corroborated. The key in the case, the trial judge ruled, was the sticky note the assistant gave the victim.
"If there’s anything in this trial that comes close to being the smoking gun piece of evidence, it would be this," the judge wrote.
The defence argued, however, that the trial judge made a mistake. If the breast exam was medically justified, then the case for sexual assault had not been made.
The appeals court agreed. The trial judge didn't address the issue of whether the exam was justified, a key element to the sexual assault conviction -- and grounds for a new trial.
The trial judge relied too heavily on his assessment of the woman's testimony as more credible than the assistant's, the court ruled, instead of considering all the evidence and relevant law.
"An objective examination of the reasons suggest that the trial judge’s criticism of the appellant was largely driven by the demeanour of the appellant in testifying, rather than by the substance of his evidence, although certain aspects of his testimony were indeed problematic," the transcript said.
"Whether the touching was of a sexual nature is to be assessed objectively. It is not based purely on the subjective feelings of the complainant."
The standard of proof is beyond a reasonable doubt, the court ruled. There was evidence from a qualified physician that the breast exam was medically justifiable, while the Crown provided no evidence to show it was not.
"The (trial) judge did not address whether the crown had proven that the breast examination was not medically-indicated," the transcript said.
While the note with the personal cellphone number was concerning and harmed the man's credibility, the appeals court ruled the trial judge made too many fundamental errors for the conviction to stand.
Read the full transcript here.