Warning
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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) MANDATORY ORDER ON APPLICATION — 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.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
DATE: 2025-02-27
Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ROBERT MORELLI
Before Justice Mara Greene
Reasons for Judgment released February 27, 2025
A. Speiser ................................................ for the Crown
R. Posner ............................................... for Robert Morelli
[1] Background and Charges
Mr. Morelli is charged with sexual assault in relation to an osteopathic treatment he conducted on his patient, A.M., on March 15, 2013. Many facts are not in dispute. Both parties agree that Mr. Morelli conducted an internal pelvic osteopathic treatment of A.M. on this date. It is also agreed that the type of treatment conducted on March 15, 2013 is a “controlled act” that pursuant to the Regulated Health Professions Act only regulated health professions may perform. Osteopathy is not a regulated health profession and pursuant to this regulation, Osteopaths are not permitted to perform “controlled acts”. Despite this fact, Osteopaths had historically conducted internal pelvic treatment and in 2013 this type of treatment was still being taught at the Canadian College of Osteopathy. At the present time, the Osteopathic community no longer recommends conducting this kind of treatment.
[2] Issues at Trial
The issues at trial were as follows:
(a) Was the touching involved in the osteopathic internal pelvic treatment a sexual act so as to make any non-consensual touching a sexual assault?
(b) If yes, did the complainant consent to the treatment?
(c) If the complainant did consent, was her consent vitiated by virtue of the relationship between the parties?
(d) If the touching was not sexual in nature, is Mr. Morelli nonetheless guilty of a common assault?
Summary of the Evidence
(i) Background evidence about the clinical relationship
[3] In 2013, A.M. was in her 5th year as a student at the Canadian School of Osteopathy. A.M. met Mr. Morelli a few years earlier while walking to school one day. Mr. Morelli was a supervisor at the school clinic and also assisted in teaching some classes. He was not A.M.’s professor and did not grade her. He may have indirectly supervised A.M. when she was in her second year of school, but he did not otherwise have any role in her formal education. Mr. Morelli was, however, a well-respected osteopath who A.M. held in high regard and wanted him to think well of her. A.M. saw Mr. Morelli as a mentor and wanted his assistance with her thesis.
[4] A.M. testified that as part of the educational program, students at the Canadian College of Osteopathy would often practice the techniques in class on other students. Moreover, the college recommended that students receive osteopathic treatment in the community. In light of this recommendation, A.M. asked Mr. Morelli if he would treat her. When A.M. first spoke to the police she stated that she started seeing Mr. Morelli as a patient in her 5th year at school. Later, when A.M. received her medical file from Mr. Morelli, she realized that she was actually in her second year at the college when she became Mr. Morelli’s patient. The first treatment took place in November of 2011. In deciding to become Mr. Morelli’s patient, A.M. liked the fact that he would accommodate her difficult schedule and would even see her after hours. Moreover, Mr. Morelli had a strong reputation in the community and was well respected.
[5] Mr. Morelli testified at trial. According to Mr. Morelli, at the time of the allegations, he was an Osteopath working in the city of Toronto. He also did some supervising and teaching at the Canadian College of Osteopathy.
[6] Mr. Morelli considered himself to be like a tutor to A.M.. He did not grade her, but she was a student, and he did advise her on her thesis in an informal capacity. Mr. Morelli testified that he mentored and treated about eight students at the time. It was common in the osteopathy community for practitioners to treat students.
(ii) Symptoms and course of treatment
[7] A.M. did not have a strong recollection of all her appointments with Mr. Morelli but prior to attending court she looked at Mr. Morelli’s medical notes and agreed that the dates included in his file were accurate. A.M. saw Mr. Morelli as a patient five times between November 2011 and March 15, 2013, the date of the allegation before the court. A.M. sought treatment from Mr. Morelli three times after the alleged sexual assault.
[8] When A.M. first started seeing Mr. Morelli as a patient, she signed a consent form. The form was signed on November 18, 2011. On this form, there was a place to identify treatment area or symptoms. A.M. wrote “thorax?”. The form then asked about specific complaints and A.M. wrote “open to assessment”. The consent form included confirmation that A.M. was told about the possible risks and side effects of osteopathic treatment and that she may stop treatment at any time.
[9] A.M. testified at trial that she had no specific ailment when she started to see Mr. Morelli. She had some general issues but nothing that was particularly pressing or concerning.
[10] A.M. testified that when Mr. Morelli recommended the internal treatment she was surprised because she had no gynecological or pelvic related complaints that warranted this kind of work. A.M. maintained at trial that in her opinion the treatment was not necessary.
[11] Despite A.M.’s denial at trial about having any pelvic related complaints when she was being treated by Mr. Morelli, when asked about the contents of Mr. Morelli’s notes which included reference to a host of symptoms that could be linked to pelvic issues, A.M. testified that she could not recall the specifics of some of her complaints but agreed that the general nature of the notes was accurate.
[12] A.M. did recall that on November 18, 2011 she complained of having no energy and a hormone shift related to the birth control pill. In September 2012, A.M. complained again about hormonal issues related to her period. A.M. also agreed that she could have complained of “genitofemoral symptoms” but could not recall at trial what the specific symptoms were. Moreover, A.M. testified that she did have digestive symptoms. A.M. agreed that pelvic floor work can help with the above symptoms but did not believe that her symptoms were sufficiently severe to justify the internal pelvic treatment she received. At the March 15, 2013 appointment when the internal pelvic treatment was performed, A.M. complained of breast density issues, advised that she had an ultrasound of her breast that came back negative, linked the breast lump to her periods and also complained of stomach discomfort and an irritation in her right hamstring.
[13] Mr. Morelli at the time of trial could no longer remember specific complaints A.M. made, he could only rely on his notes to identify the specific symptoms complained of and the treatment provided. Mr. Morelli testified that his notes reflect that A.M. had specific issues with her hormones, digestion, genitofemoral symptoms and a lump in her breast that came and went her period. She had an ultrasound conducted but it came back negative. Mr. Morelli testified that in his mind A.M. had acute concerns such that internal pelvic treatment was recommended. It was his opinion that the treatment needed to be done and was a reasonable and appropriate course of action.
(iii) The Treatment on March 15, 2013
[14] A.M. testified that she attended at Mr. Morelli’s office on March 15, 2013 for a regular treatment. Upon attending, Mr. Morelli conducted a visual assessment and then advised A.M. that an internal treatment was required. As a fifth-year student, A.M. knew what this involved. A.M. testified that internal work includes palpating the inside of the vagina. A.M. testified that she was aware that there was a course offered at the college specifically on conducting these types of internal exams. She further testified that at the time, internal treatments of this nature were discussed at the college as being a very important way to treat gynecological issues, pelvic pain and incontinence.
[15] A.M. testified that when Mr. Morelli suggested the internal treatment, she attempted to avoid it by asking if an external exam could be conducted instead. Mr. Morelli replied that in his opinion they needed to go to the next step, which was an internal pelvic treatment. He stated they had tried external work and it was “not holding”. A.M. testified that she then told Mr. Morelli that she was on her period. She hoped that this would provide her an excuse to not have the treatment, but Mr. Morelli replied that it was actually a good time to conduct an internal treatment. He said it was the best time to do it because A.M.’s hormones would be neutral. Mr. Morelli explained to A.M. that internal work could be helpful and there was no other way to reach the muscles in issue. He further explained that he had performed this treatment many times in the past with great results.
[16] Before A.M. could even ask anything further, Mr. Morelli started to prepare the room for the treatment. He handed A.M. a sheet and instructed A.M. to remove her bottoms, lay down on the treatment table and to cover herself with the sheet. Mr. Morelli then left the room while A.M. undressed. Upon his return to the room, Mr. Morelli put on gloves and advised A.M. that he was going to use a lubricant. He then touched her thigh and said, “here we go”.
[17] Mr. Morelli conducted the treatment by placing his fingers inside A.M.’s vagina and palpating differing muscles. During the treatment, Mr. Morelli’s eyes were closed and he narrated to A.M. what he was doing by identifying the structures he was working with using the proper anatomical and muscle names. During the treatment, which lasted a few minutes, Mr. Morelli told A.M. that her ovary was twisted, and he was treating this. According to A.M., at no point did Mr. Morelli make eye contact with her, nor did he ask A.M. how she felt. A.M. testified that she felt that she was “a body for him to perform this artistic treatment”.
[18] At one point in the treatment, A.M. felt a lot of pressure in a particular area – like Mr. Morelli was pressing on it too hard. It was somewhat painful. A.M. did not want to complain, so she attempted to show her discomfort by labouring her breath. A.M. testified that Mr. Morelli responded by telling her to calm her breathing and try to relax. A.M. testified that he sounded abrasive when he said this.
[19] At the end of the treatment, Mr. Morelli left the room so A.M. could get dressed. She laid back down on the table and Mr. Morelli returned to the room and finished the treatment through external treatment measures. A.M. testified that she was extremely uncomfortable during this latter part of the treatment because she was on her period and was not able to put her menstrual cup back in.
[20] Mr. Morelli testified that he could not recall what took place on March 15. He confirmed from his notes that he did conduct an internal pelvic treatment. His notes reflected that the treatment was necessary and appropriate in the circumstances as A.M. was suffering acute symptoms. Mr. Morelli testified that his general process was to explain the problem he identified from his assessment and propose a treatment course. He denied that he would push or try to sell a particular treatment and would not proceed with this kind of exam without the patient’s consent. In his mind A.M. and any other patient could refuse treatment at anytime. If a patient was in pain, he would have stopped and made sure it was alright to continue. He would have had no problem proceeding if a patient was on her period as this was a good time to conduct this type of treatment.
(iv) Evidence on the issue of consent
[21] A.M. testified that when Mr. Morelli recommended the internal treatment, she did not want to have the treatment. She did not, however, tell Mr. Morelli this. Instead, she asked if an external treatment could be conducted instead. A.M. testified that Mr. Morelli dismissed this request and started to try to sell her on the idea of the internal treatment telling her that the prior external treatments had not worked, that many women feel a lot better after the internal treatment and that he is well trained to conduct this kind of treatment. A.M. then attempted to avoid the treatment by indicating that she was on her period. Mr. Morelli told her that this did not matter and in fact stated that it was a good time to conduct the treatment.
[22] A.M. ultimately acquiesced to the treatment and did not tell Mr. Morelli that she did not want to have the treatment. She testified, however, that despite her acquiescence she did not want the treatment and was uncomfortable with it.
[23] A.M. testified that she felt that she could not refuse the treatment for a number of reasons. Mr. Morelli sounded so authoritative and confident that she was felt she could not say no. Mr. Morelli was a well-known practitioner who had offered to mentor A.M. and as such did not want to look like a bad student by refusing the treatment. She was worried about losing Mr. Morelli’s support and respect. Mr. Morelli was a well-known practitioner and she had no reason to doubt his expertise or his recommendation. She tried to make excuses to avoid the treatment, but her excuses did not deter Mr. Morelli.
[24] A.M. further noted that Mr. Morelli was standing between her and the doorway when they discussed the procedure.
[25] When questioned further about her consent to the treatment, A.M. testified that she felt coerced and pressured into the treatment. This is in contrast to her original statement to the police where A.M. stated that she agreed to the treatment because it helped so many women. She further told the police that she has regretted her decision to consent to the treatment because it has been so traumatic to think about. A.M. also told police in her original statement that she agreed to the treatment in 2013 because she felt that she needed to try it. At trial, when it was suggested to her that this was why she agreed to the treatment, A.M. denied it.
[26] A.M. testified that at the time of the treatment, she felt helpless and that she did not really have the opportunity to choose. She now regrets not saying “no” to Mr. Morelli.
[27] A.M. also testified about how she felt during the treatment. A.M. described her feelings as a dual narrative, on the one hand A.M. did not want to do this and on the other hand, she should relax, and it is O.K. because he knows what he is doing. On the one hand she was just taking her doctor’s advice and he felt certain about it, like he knew better than her. On the other hand, she did not want the treatment. At one point in her evidence, A.M. stated that she leaned into the narrative that the treatment was medically necessary as a way of normalizing the event which made it easier to tolerate the treatment.
[28] In relation to this dual narrative, A.M. testified that on one hand she knew internal treatments like this were a protected act that osteopaths were not permitted to perform under provincial legislation, but on the other hand Mr. Morelli advised that he did it all the time and that it was a good treatment. She also knew that it was taught at the college and that other practitioners used this method of treatment. A.M. testified that she assumed that Mr. Morelli would not jeopardize his practice by doing something improper so she assumed it must be ok.
(v) Subsequent treatments
[29] A.M. sought treatment from Mr Morelli on three occasions after March 15, 2013. She saw him on April 15, 2013, September 19, 2013 and October 17, 2014. A.M. testified at trial that she only continued to see Mr. Morelli as a patient because she did not want to seem weird and wanted Mr. Morelli’s support with her thesis.
[30] Some of A.M.’s email communications with Mr. Morelli leading up to her post March 15, 2013 appointments were filed with the court. On November 21, 2013, A.M. wrote to Mr. Morelli asking for an appointment. She wrote that she wanted to see him before taking the “heart course” because she heard “it was a good idea to get treated before and after”. Mr. Morelli offered her a number of appointment dates and A.M. responded “I will take the Sunday please. I think it will be best to be treated at the end of the course. Thank you so much!!”. This appointment was subsequently cancelled by A.M.
[31] On October 14, 2014, A.M. wrote to Mr. Morelli seeking an appointment sometime between October 15 and October 20. A.M. wrote that there was no particular issue, she just wanted a check up. She was in town for data collection in relation to her thesis for only a few days and wanted to see Mr. Morelli for a treatment. Mr. Morelli treated her on October 17. This was the last appointment.
(vi) Evidence about the use of internal pelvic treatments
[32] A.M. testified that she was well aware that the Osteopath community conducted internal pelvic and internal anal treatments. There was an optional course students could take in their fifth year at the college specifically on internal treatments. When A.M. was in her fifth year, the course had been cancelled. A.M. was not sure of the reason why.
[33] A.M. further testified that she knew that internal exams were a “controlled act” and that Osteopaths were not authorized to engage in this kind of treatment. It was her personal opinion that osteopaths should not conduct internal pelvic treatments.
[34] At the time of the allegations, Mr. Morelli was a well respected and qualified osteopath in Toronto. He had completed two years of premed, five years of education at the Canadian College of Osteopathy and then completed a thesis. In total, he had nine years of training. Included in his training was a class called “gynecology” where he learned to conduct internal treatments of the pelvic and related areas. As part of the training, students performed the treatment in class on each other.
[35] Mr. Morelli testified that he was aware at the time that Osteopaths were not a regulated health care profession and as such were not permitted to conduct this kind of treatment. Nonetheless, it was taught in school and the osteopath community believed that they were entitled to do this treatment as they had been engaging in this technique for well over 100 years. Mr. Morelli testified that it was his belief that Osteopaths would be grandfathered in to do this kind of treatment. At one point in time the osteopath community was lobbying to be permitted to do it. He believed that once they were formally regulated it would be permitted. It was his view that his medical opinion about the treatment superseded the prohibition. In 2015, the osteopathy community decided to stop seeking regulation and encouraged practitioners at that point to stop doing internal treatments.
General Legal Principles
[36] The starting point in understanding any decision in a criminal court is understanding the burden of proof. The burden lies on the Crown to prove each essential element of the offence beyond a reasonable doubt. This is a high standard. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. Morelli is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. In order to convict, a trial judge must be sure that every essential element of the offence has been made out.
[37] In many criminal trials, judges are called upon to make assessments of both credibility and reliability. Credibility relates to the veracity of the witness while reliability focuses on the ability of the witness to accurately recall events. In assessing a witness’s credibility and/or reliability, judges may consider the presence or absence of inconsistencies in a witnesses’ evidence, whether the witness was evasive as well as other factors that may arise in any given trial. What weight a trial judge will place on an inconsistency will depend on the nature of the inconsistency. Moreover, when considering evidence at trial, it is not an all or none proposition. Trial judges may accept some, none or all of a witnesses’ evidence.
Legal Principles – The Offence of Sexual Assault
[38] The offence of sexual assault must be considered in the context in which the offence was created. McLachlin C.J. wrote in R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28: “It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact.” Major J., speaking for the majority of the court in R. v. Ewanchuk, [1999] S.C.J. No. 10 stated at paragraph 28:
…Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every mans’ person being sacred, and no other having a right to meddle with it in any the slightest manner”: See Blackstone’s Commentaries on the Laws of England (4th ed. 1770). Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
[39] With this backdrop in mind, the actus reus of a sexual assault is made out where the Crown has proven beyond a reasonable doubt that: the defendant touched someone; where the contact was sexual in nature; and, the person did not consent. The presence or absence of consent is subjective to the complainant. The defendant’s state of mind or intention is irrelevant at this stage.
[40] The mens rea for sexual assault is made out where the Crown proves beyond a reasonable doubt that the defendant intended to touch the complainant in a sexual manner and knew, or was reckless or willfully blind to the complainant’s lack of consent. Once the actus reus is established, the defendant can only rely on his lack of knowledge about the absence of consent if the defendant took reasonable steps to confirm that the victim was consenting. Moreover, the defence of mistaken belief in communicated consent cannot be raised where any consent obtained has been vitiated by section 273.1(2) of the Criminal Code.
[41] Applying this standard to the case at bar, the Crown must prove the following:
a) That A.M. was touched by Mr. Morelli;
b) The touching was of a sexual nature;
c) That A.M. did not consent to the touching;
d) That Mr. Morelli intended to touch A.M.;
e) That Mr. Morelli knew that A.M. did not consent or was reckless or willfully blind to her lack of consent and that he took reasonable steps to confirm that A.M. was consenting and that consent was not vitiated pursuant to section 273.1(2) of the Criminal Code.
[42] In the case at bar, everyone agrees that Mr. Morelli touched A.M. during the course of an osteopathic treatment that involved touching A.M.’s vaginal area and inserting his fingers inside her vagina. The main issues at trial relate to whether the touching was of a sexual nature and whether A.M. consented to the touching.
Was the touching of a sexual nature?
[43] On the issue of whether the treatment at issue amounts to conduct of a sexual nature, Crown counsel argued that the body part touched is determinative. As Mr. Morelli inserted his fingers into A.M.’s vagina to work on the internal muscles, any objective person would conclude that this implicated A.M.’s sexual integrity.
[44] Counsel for Mr. Morelli argued that given the therapeutic context, the absence of expert evidence that the treatment was not reasonable and the fact that Mr. Morelli acted clinically throughout the treatment raises a reasonable doubt about the sexual nature of the touching. The context was clinical and not sexual and as such the court should be left in a reasonable doubt about whether the conduct in issue was sexual in nature.
Relevant Legal Principles
[45] The leading case on whether the alleged conduct was sexual in nature is R. v. Chase, 37 C.C.C. (3d) 97 (S.C.C.). In that case, the court held a sexual assault is committed where assaultive conduct is sexual in nature such that the sexual integrity of the victim is violated. In assessing whether or not the touching was of a sexual nature, McIntyre J. in R. v. Chase, supra, held that the “test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one”. In determining this issue, the court may consider “the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct”. McIntyre J. further held that the actor need not have committed the offence for a sexual gratification for the offence to be made out.
[46] When looking at the test articulated in R. v. Chase, it is important to be mindful of the context in which this decision was made. It involved an appeal from a finding by the Court of Appeal that the modifier “sexual” referred only to the body part touched, particularly the genitalia. In that case, since the body part touched was not the genitalia, the appellate court overturned the conviction and entered an acquittal. It is in this context that the Supreme Court of Canada rejected the notion that the modifier “sexual” referred only to the body part touched and elected to have a broader interpretation of the word so as to recognize that a touching not involving one’s genitalia can still be sexual in nature. In my view, the decision in R. v. Chase does not preclude a court from finding that in some circumstances the body part touched will be the most important factor and may very well be determinative. In my view, it is open for a trial judge to infer that the touching is of a sexual nature that impacted the sexual integrity of the victim solely because the body part touched was the genitalia of the victim particularly where the context of the touching does not provide an alternative explanation. In other words, absent other evidence, in many cases where the body part touched is a person’s genitalia, the only reasonable inference will be that the touching was sexual in nature.
[47] The case law consistently states that context is important in assessing whether the conduct was of a sexual nature where the alleged touching takes place in the medical or therapeutic context. In R. v. Clottey, 2018 ONCJ 536, a medical doctor was charged with sexually assaulting his patient. Citing many authorities, the Court held that doctor-patient sexual assault cases require a strong consideration of the context in which the touching takes place as opposed to a focus largely on the location where the victim was touched. The court held that this is because “there can be legitimate medical reasons for a practitioner to examine a patient’s sexual organ” (R. v. Clottey, supra, at para 489). The court went on to note that where there is a valid medical purpose for examining the breast or genital area, in order to find that the act is “sexual in nature”, the touching must have been sexual as opposed to medical in nature or as the trial judge stated, “the touching must have been used to sexualize the interaction” (R. v. Clottey at para 490). In assessing this issue, a question that must be considered is whether the physician honestly believed that the examination in question as performed by the physician was clinically justified. The court stated at paragraphs 494 and 495:
[494] As Justice Epstein stated recently for the Ontario Court of Appeal in a successful appeal from conviction of Dr. Daniel Marshall for sexual assault based on a single historic genital examination of an adolescent boy, it is relevant to consider whether the accused physician honestly believed that the examination in question was clinically justified. In that case, not only did the accused physician hold an honest, subjective belief as to the medical purpose for the genital exam, but also, that belief was medically objectively supportable.
[495] If the practitioner’s honest belief as to whether the examination would or could be clinically useful was not relevant, physicians could be held criminally liable simply for honest errors in judgment as to whether an examination was actually necessary, irrespective of their bona fide intentions. This would subject physicians to an impossibly high standard. Even in civil negligence law, physicians are not liable for such errors.
[48] Ultimately in R. v. Clottey, the court held that where “there was a legitimate medical rationale for the examination, and the examination was not performed in a sexual fashion, there can be no finding of a sexual assault” (R. v. Clottey, supra, at para 501).
[49] Similar applications of the law have been made in cases where the practitioner was not a medical doctor, but where the therapy involved was still considered to be a legitimate form of treatment. For example, in R. v. S.L., 2020 ONSC 4036 the accused was a practitioner of Traditional Chinese Medicine. It was alleged that he sexually assaulted one of his patients when he performed a treatment that involved placing his fingers in her vagina. While the act involved was a controlled act that those practicing Chinese Traditional Medicine are not approved to do, the court still found S.L. not guilty on the basis that the Crown had not established that the treatment was not legitimate and because S.L. did not know of the statutory prohibition.
[50] In R. v. Findlay, 2021 ONSC 5661, a registered massage therapist was charged with sexually assaulting a client during a massage. While not a medical practitioner, the court held that the touching occurred in a clinical/therapeutic context which was relevant to whether the touching was sexual in nature. The Court in Findlay summarized the relevant legal principles as follows:
344 In a recent Court of Appeal decision, R. v. Trachy, 2019 ONCA 622, Benotto, J.A. wrote the following about the offence of sexual assault principles which are relevant to this case:
73 The objective test requires the court to look to all the circumstances surrounding the conduct to determine on an objective basis whether it was of a sexual nature and violated the sexual integrity of the complainant: R. v. Litchfield. While the intent or motive of the accused may be a factor in considering whether the conduct was sexual in nature, the Supreme Court in Chase went on to state, at p. 302:It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
74 The mental element in sexual assault and indecent assault is the intention to touch. Proof of sexual purpose is not required because the "factors which could motivate sexual assault are said to be many and varied . . . To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment", which is to protect the sexual integrity of all persons: Chase, at pp. 302-303. As the Supreme Court stated in R. v. Ewanchuk, at para. 28:
Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy . . . It follows that any intentional but unwanted touching is criminal.
81 ... There was no analysis with respect to the sexual integrity of the complainants and whether that integrity was violated by the respondent's touching of their breasts. The trial judge did not address the position of trust between the child-students and their teacher. He did not address the sexual nature of the touching.
84 As Lutoslawski makes clear, the sexual nature of the touching is determined by an objective standard. The question is whether a reasonable observer would perceive a sexual or carnal context to the touching in light of all the circumstances. [Citations omitted].
345 In considering all of the circumstances to decide if the touching was of a sexual nature in a medical or clinical setting, the court must consider the difference between conduct that might suggest professional incompetence or conduct that does not meet professional standards and conduct that must meet a criminal standard to be a crime.
[51] It is important to be mindful that even where the touching is for a clinical purpose a patient may still feel violated where in their mind the procedure involved is unnecessary. As De Sa J. stated in R. v. R.K., 2018 ONSC 2590, “I have no doubt that the complainants perceived the touching as ‘sexual’, and that they did not consent to ‘sexual’ touching. However, their perception of the nature of the touching may have been largely influenced by their expectations at that time….The unexpected touching was disturbing to both of the complainants. However, this perception is not sufficient to satisfy me that the ‘touching’ was of a sexual nature” (R. v. R.K., supra, at para 102).
[52] In assessing whether the touching was part of a reasonable medical or therapeutic examination or treatment, many of the cases I have reviewed included expert evidence on the appropriateness of the procedure. To that end, in R. v. R.K., supra, where a dermatologist touched his patient’s breasts during an examination, De Sa J. wrote that medical evidence will often be required. He stated, “Whether the examination is a reasonable medical approach to the issue will factor into the analysis of whether the touching can be characterized as sexual at all. Medical evidence may be critical to this assessment” (R. v. R.K., supra, at para 91).
Application to the facts in this case
[53] In the case at bar, I accept Mr. Morelli’s evidence that when he treated A.M. on March 15, 2013, he was engaging in what he believed to be a legitimate clinical treatment. I found Mr. Morelli to be an honest and reliable witness. He was consistent about his practice, policies and memories of events. He was not moved at all in cross-examination and answered all questions posed in a very straightforward manner. I accept his evidence in its entirety. I accept that Mr. Morelli did not try to sell his patients on particular treatments or pressure them into a treatment. I accept that he listened to the symptoms identified by his patients, conducted an assessment and recommended a course of action. I am mindful that at times Mr. Morelli’s evidence differs from A.M.’s evidence. For example, A.M. testified that she never actually consented to the treatment, but instead she silently acquiesced to it. Mr. Morelli testified, however, that in relation to this kind of treatment it was his practice to ask the patient if they were comfortable with going ahead and only proceed with their consent. I accept that while Mr. Morelli could not recall this particular patient that as per his testimony, he would not have deviated from his general practice and did confirm that she was consenting to the treatment.
[54] With this in mind, I find that Mr. Morelli approached the treatment of A.M. in a purely clinical and therapeutic fashion and that nothing occurred during the treatment to sexualize the interaction. I note that Mr. Morelli explained the procedure to A.M., he left the room while she undressed, he told A.M. at the time why he thought it was necessary to conduct the treatment, he described what he was doing as he was doing it in a clinical fashion and explained at trial why he thought the treatment was necessary. I am mindful that A.M. testified that in her mind Mr. Morelli seemed to treat the process as a “work of art”. When I consider A.M.’s evidence about why she formed this opinion, I am unable to find that it accurately portrays Mr. Morelli’s state of mind at the time of the treatment. The only behaviour A.M. identified to explain this opinion was that at times Mr. Morelli’s eyes were closed and he did not look at her face at all during the treatment. Mr. Morelli testified that he did close his eyes while doing internal work. This is because he was focused on what he was feeling as he administered the treatment. Since the treatment was touch based, I find that Mr. Morelli choosing to close his eyes as he treated A.M. and his failure to look at A.M. in the face is completely reasonable. Mr. Morelli testified that while his eyes were closed, he did talk to his patients advising them what he was feeling and doing. A.M.’s evidence is consistent with this.
[55] I am also mindful that A.M. testified that in her opinion the treatment was not necessary; but this is not the test. The issue is whether it was a legitimate treatment that was reasonable in the circumstances. I am satisfied that the evidence establishes that A.M. had expressed the types of symptoms where internal pelvic treatment was recognized at the time as being a helpful treatment. While A.M. could not recall the details of all her symptoms and was of the view that her symptoms were not acute, she did admit to having some of the symptoms that support Mr. Morelli’s conclusion that an internal pelvic treatment was appropriate. I accept Mr. Morelli’s evidence that he made a clinical decision based on the information received, his training and his experience. Moreover, I note that I have no expert evidence indicating that the treatment was not consistent with osteopathic treatments at the time. Given the evidence before me, had Mr. Morelli been identified as a registered health professional, I would have no difficulty finding that the Crown has failed to prove beyond a reasonable doubt that the conduct involved when Mr. Morelli treated A.M. on March 15, 2013 was sexual in nature.
[56] This case, however, presents an additional complication. This is because at the time of the offence, osteopaths were not permitted to conduct the kind of examination performed by Mr. Morelli. The Regulated Health Professions Act states that no person “shall perform a ‘controlled act’ in the course of providing health care services to an individual unless the person is a member authorized by the Health Profession Act to perform the controlled act”. A controlled act is defined as “putting an instrument, hand or finger beyond the labia majora”. Crown counsel argued that because osteopaths are not authorized by the Regulated Health Professions Act to perform controlled acts, I must find that Mr. Morelli acted outside what is a reasonable treatment and as such, the treatment must be viewed as being sexual in nature. Respectfully, I disagree.
[57] In R. v. S.L., supra, the accused practiced Traditional Chinese Medicine and admitted to conducting a vaginal exam of his client. In finding that even though persons practicing Traditional Chinese Medicine are not authorized to perform controlled acts, the court held that “the breach of regulatory provision does not amount to a criminal act” (R. v. S.L., supra, at para 131). Lemon J., in R. v. S.L., supra, noted that there was no evidence that S.L. knew that he was not authorized to conduct this type of treatment. As such, at its highest, he inadvertently engaged in a treatment that was contrary to provincial regulation.
[58] In the case at bar, Mr. Morelli testified that it was common practice in 2013 for osteopaths to perform internal pelvic and anal treatments. While he knew it was a ‘controlled act’ and that osteopaths were not identified as a regulated profession, in his mind he thought they would be grandfathered in to conduct these procedures once they became regulated. This is because osteopaths have performed this kind of treatment for years and at the time the osteopathic community was lobbying to become a regulated health profession. Moreover, there was even a course at the Canadian College of Osteopaths that taught students how to perform internal pelvic treatments and Mr. Morelli had been trained at the college to perform this kind of treatment. While A.M. personally believed that osteopaths should not perform this type of treatment, this was a personal belief as opposed to the profession’s standard.
[59] I appreciate that this case differs from R. v. S.L., supra, in that Mr. Morelli, unlike S.L., knew osteopaths were not a regulated profession and as such not authorized to perform controlled acts. In my view, Mr. Morelli’s non-compliance of a provincial statute, while a relevant factor in assessing if the treatment was reasonable in the circumstances, it is not determinative. In the case at bar, there was uncontradicted evidence before me that in 2013 osteopaths were conducting internal pelvic treatments. Mr. Morelli testified that it was a recognized treatment within his profession and A.M. confirmed that there had been a course at her college specifically on internal pelvic exams. Mr. Morelli was a trained osteopath and was trained in the area of internal pelvic treatments. Mr. Morelli testified that he believed that osteopaths would become a registered health profession and that they would be grandfathered into the provision since the practice had existed long before the enactment of the Regulated Health Professions Act. In my view, when I look at the case in its totality, while the fact that he was not permitted by statute to perform this treatment is one factor to consider, the remainder of the evidence presented at trial all supports a finding that Mr. Morelli was engaging in a treatment that was recognized by the profession, that was reasonable in the circumstances and one that Mr. Morelli honestly and legitimately believed was the appropriate treatment. Moreover, in my view, Mr. Morelli conducted the treatment in a purely clinical fashion. I am therefore left in a reasonable doubt that the conduct that makes up the actus reus of the offence was sexual in nature. Mr. Morelli is therefore not guilty of the offence of sexual assault.
[60] Crown counsel made extensive arguments about the application of consent pursuant to section 273(2) of the Criminal Code. Given my finding that the conduct in question is not sexual in nature I need not address these issues.
Assault
[61] Having found Mr. Morelli not guilty of sexual assault, I must still determine if the Crown has proven beyond a reasonable doubt that Mr. Morelli committed the lesser included offence of common assault. An assault is committed where the accused touches a victim without her consent. Crown counsel argued that since A.M. did not consent an assault is still made out in law.
[62] In assessing whether A.M. consented, I must remind myself that a patient is in a position of vulnerability when in the care of a health professional. This vulnerable position is important when assessing if the consent involved in this case was voluntary.
[63] At trial, A.M. testified about her mental state at the time of the treatment in March 2013. During the trial, A.M. testified that on the one hand, she trusted Mr. Morelli as a well-respected osteopath, he strongly encouraged the treatment, he sounded authoritative about it and she accepted that the treatment was necessary. A.M. also wanted Mr. Morelli’s approval and was afraid that he would think poorly of her as a student if she did not agree to the treatment and she wanted his assistance with her studies. On the flip side, A.M. believed that osteopaths should not perform internal pelvic treatments, she did not personally think her symptoms warranted such an invasive treatment, she was not comfortable with this kind of treatment and felt pressured into it. At trial, it was clear to me that A.M. truly believes today that she did not consent. Years later, A.M. now looks back at this event and feels that in the moment she was pressured into having the treatment and had Mr. Morelli been less authoritative, or given her more time to consider her options she would have said no. Crown counsel urged me to find that this dual narrative was how A.M. managed to get through a distressing event. She attempted to normalize the assault by convicting herself that the treatment was proper. In light of this, Crown counsel argued that I should not view the dual narrative as evidence of consent.
[64] I generally found A.M. to be an honest witness doing her best to describe her state of mind back in 2013 about an event that has clearly been distressing to her for some time. There is one area of her evidence, however, that I do not accept and do not find credible. At one point, A.M. testified that she agreed to the treatment because Mr. Morelli was standing between her and the door. The implication being that she could not physically leave. I reject that Mr. Morelli did anything to physically force A.M. into the treatment. Firstly, A.M. had ample opportunity to leave. Mr. Morelli left her alone in the room to change prior to the treatment starting. Secondly, A.M.’s evidence about her dual narrative at no point included concerns about being forcibly confined and thirdly, Mr. Morelli denied blocking the doorway and I accept his evidence on this point. Mr. Morelli described the set up of his treatment room and was not challenged on his description.
[65] While I accept that A.M. was doing her best to be truthful when she testified, there were a number of inconsistencies between A.M.’s evidence at trial, her statement to police and other evidence that I do accept that causes me to have some doubt about the reliability of her present recollection about why she acquiesced to the treatment. Firstly, A.M. originally testified that she was not suffering from any meaningful symptoms and definitely was not suffering from symptoms that were pelvic related. At trial, when questioned about the symptoms Mr. Morelli recorded in her patient file, A.M. agreed that she did have hormone complaints, an issue with a lump in her breast and digestive issues, all of which can be linked to pelvic issues. Secondly, A.M. told police that she agreed to the treatment in part because she knew it had helped other women. She also told police that she agreed to the treatment in part because she felt that she needed to try it. At trial, A.M. denied this. Thirdly, when questioned about why she continued to seek treatment from Mr. Morelli after March 15, 2013, A.M. testified that she only did this because she was worried it would look weird if she abruptly stopped treatment. A.M.’s communications with Mr. Morelli’s office contradict this. Reading the emails I find that A.M. actively sought out Mr. Morelli for treatment. Moreover, she cancelled a treatment in late 2013 without any issue. This was a clear opportunity for a clean break from Mr. Morelli, yet in 2014, A.M. actively sought out Mr. Morelli for a treatment even though she was only in town for a few days. In my view, A.M.’s memory as it relates to her treatment and engagement with Mr. Morelli is not completely reliable.
[66] I accept that A.M. was significantly impacted by this treatment and that she truly believes that she was pressured into a treatment she did not want. The emotional toll this has taken on A.M. is obvious. Having said that, when I consider all the evidence, I am left in a doubt about what was really going through A.M.’s mind at the time the treatment took place.
[67] Regardless of whether or not A.M. truly consented to the treatment, I am satisfied beyond a reasonable doubt that Mr. Morelli had an honestly held belief that A.M. consented to the treatment and that his belief is objectively reasonable.
[68] First of all, as previously stated, I found Mr. Morelli to be an honest and reliable witness and I accept his evidence. I accept Mr. Morelli’s evidence that he would not have proceeded without A.M.’s actual consent to the treatment and that at the time A.M. verbally agreed to the treatment. Mr. Morelli testified that in relation to this kind of treatment it was his practice to ask the patient if they were comfortable with going ahead. I accept that while Mr. Morelli could not recall this particular patient that as per his testimony, he would not have deviated from his general practice.
[69] I am mindful that A.M. asked some questions about the necessity of the procedure. A.M. testified that this was her way of showing hesitancy in relation to the treatment. When I consider all the evidence, I am not satisfied that Mr. Morelli would have or should have understood that the questions posed suggested hesitancy. In my view, the questions A.M. posed were the kind of questions any patient might pose to better understand the course of treatment being proposed. I accept Mr. Morelli’s evidence that he did not pressure A.M. into the treatment and that he did not try to “sell it” to her. I am satisfied that Mr. Morelli had an honestly held belief that A.M. was consenting, and his belief is objectively reasonable. I therefore find that the Crown has not proven beyond a reasonable doubt the lesser included offence of assault.
Released February 27, 2025
Justice Mara Greene