COURT OF APPEAL FOR ONTARIO

DATE: 20000510

DOCKET: C33028

RE: HER MAJESTY THE QUEEN (Respondent) –and– LAM VAN
NGUYEN (Appellant)

BEFORE: MOLDAVER, FELDMAN and MacPHERSON JJ.A.

COUNSEL: William McDowell and Peter Neumann, for the appellant
Ken Campbell, for the respondent

HEARD: May 5, 2000

On appeal from the decision of Lofchik J. dated September 23, 1999.

E N D O R S E M E N T

[1] The complainant attended the office of the appellant because

she was suffering from head and stomach aches. On her evidence,

prior to this visit, she had never met or been treated by the

appellant.

[2] When the complainant entered the appellant’s examination

room, the appellant instructed her to lie down on the examination

table. According to the complainant, without a word of

explanation, the appellant lifted her blouse to her neck and

after feeling her stomach, he partially removed her brassiere and

proceeded to squeeze her exposed breasts, first with one hand and

then with both hands. He then began to move his hand under the

complainant’s pants below her bellybutton, at which point the

complainant, of her own volition, got off the table and

straightened her clothing.

[3] According to the complainant, the appellant said nothing to

her at this time. He did not ask if anything was wrong, nor did

he request that she return to the table so that he could complete

his examination. Rather, he directed his attention to the

complainant’s infant child who had accompanied her that day

because she was running a fever. The appellant felt the child’s

forehead and prescribed some medicine. He also provided a

prescription for the complainant. The complainant then left the

office.

[4] In the circumstances, we are satisfied that it was open to

the justice conducting the preliminary hearing to conclude that

there was some evidence upon which a reasonable jury, properly

instructed, could conclude that the appellant squeezed the

complainant’s breasts and placed his hand underneath her pants

for a sexual, as opposed to a medical purpose.

[5] Accordingly, the appeal is dismissed.

“M.J. Moldaver J.A.”

“K. Feldman J.A.”

“J.C. MacPherson J.A.”