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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant's 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-10-19

Docket: C61978 and C62133

Panel: 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)

Counsel:

• 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.

Judgment delivered by: 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 appellant's brief examination of his genitals that K.A. described as clinical in nature. The appellant's 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 appellant's 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 appellant's 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 expert's opinion. The Crown's position is that the record does not support these claims.

[6] For the reasons that follow, I agree with the appellant that the trial judge's analysis of the evidence and reasoning leading to the appellant's 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 appellant's submissions regarding the sufficiency of the trial judge's reasons, the burden of proof, and the trial judge's 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 Crown's 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, we're 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 appellant's chart noted the x-ray). K.A. could not recall revisiting the appellant to discuss the test results. He also could not recall the appellant's 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 appellant's 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 appellant's 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 patient's 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 patient's stage of puberty. Third, most of the appellant's 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 appellant's 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 appellant's 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: "we're 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 we're going to check how puberty is going." The appellant did not believe that he had ever reached into a child's 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 appellant's 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 appellant's 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 child's growth potential. K.A. was fairly sexually mature, but the appellant wanted to learn how long this had been the case because of Ritalin's potential effect on growth. The appellant's 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 appellant's 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 appellant's 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 appellant's 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 appellant's 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 appellant's 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 appellant's contemplated stimulant prescription.

[40] For the purposes of assessing the reasonableness of the appellant's 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. Levin's 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 patient's 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 they're more likely to have distractibility issues. So you're assuming that he took it all in. I'm assuming, from my clinical practice, that that's 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. Warren's 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 expert's 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. Levin's opinion also assumed that it is legitimate to conduct a genital exam when the patient's family doctor had not performed one. But there was no evidence that this was the case with K.A. In the trial judge's view, the appellant's 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 judge's 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, 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 accused's 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 judge's 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 judge's 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 judge's 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 judge's 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 judge's 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 appellant's 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 "we're 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 we're 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 appellant's saying "I am going to examine your tummy" versus "I am going to examine your tummy and your genitals" (emphasis added). The trial judge's 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 appellant's.

[60] 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 appellant's 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 judge's 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 appellant's 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. Warren's evidence also supported the appellant's 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 appellant's 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 appellant's 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 appellant's chart recorded "no abdominal tenderness", an observation that necessarily involved touching K.A.'s abdomen. This is a clear example of the appellant's 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 appellant's 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 judge's 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 appellant's 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.), 71 O.R. (3d) 388 (C.A.), at para. 37 citing R. v. Lagace, 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 appellant's examination of him 25 years earlier undercuts the trial judge's 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. Warren's opinion that it is not necessary to examine the genitals to give an opinion on ADD. Dr. Levin's 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. Levin's 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 person's purposes and it was not conducted like a medical examination. Lifting up the waistband of a boy's 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 judge's 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. Warren's 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 appellant's 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 they're 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 appellant's 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. Levin's 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 appellant's 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 defence's 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 appellant's 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 appellant's and Dr. Levin's evidence relating to why an examination of K.A's 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 appellant's 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 judge's 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 judge's 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 appellant's 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.A's sexual integrity had been violated.

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

Released: October 19, 2017

"Gloria Epstein J.A."

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

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