Nick Kandel

The accused, a registered physiotherapist, was charged with one count of sexual assault during a physiotherapy treatment session.

The complainant alleged non-consensual touching of her breasts and lips.

The accused denied the allegations, asserting all touching was therapeutic and consented to.

The court assessed the credibility and reliability of both the complainant and the accused.

The complainant's testimony was found to have significant reliability issues and inconsistencies, including denials of complaining about shoulder pain despite evidence, and contradictory accounts of events.

In contrast, the accused's testimony was deemed credible and consistent.

The court found reasonable doubt regarding the mens rea for sexual assault and whether the touching occurred in circumstances of a sexual nature.

Consequently, the accused was acquitted.

This decision concerns an application by the accused, Kavit Shah, a registered physiotherapist charged with sexual assault, to admit the complainant's physiotherapy records at trial under sections 278.92-278.94 of the Criminal Code.

The Crown and Complainant opposed the application, primarily arguing a lack of proper evidentiary foundation for authenticity.

The court found that a hearsay affidavit from defence counsel's associate, along with the records obtained through police disclosure, provided a sufficient basis for the pre-trial admissibility assessment.

The court determined the records were relevant to the complainant's credibility and reliability, and that their significant probative value was not substantially outweighed by the danger of prejudice to the administration of justice, given the limited privacy interest in the records and the accused's right to make full answer and defence.

The application was granted, allowing the defence to use the records for cross-examination and to establish prior inconsistent statements, with authentication to be addressed at trial if the defence seeks to prove their contents for truth.