DATE: 20010523

DOCKET: C35494

COURT OF APPEAL FOR ONTARIO

ROSENBERG, MOLDAVER and GOUDGE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Leslie Paine for the appellant

Appellant

• and -

MICHAEL DAVID BEDARD

Mark J. Sandler for the respondent

Respondent

HEARD: May 3, 2001

On appeal from the sentence imposed by the Honourable Justice Lucy C. Glenn (O.C.J.) on November 29, 2000.

MOLDAVER J.A.:

[1] The respondent Michael Bedard received an eighteen-month conditional sentence plus three years' probation following his pleas of guilty to nine counts of sexual assault. The sexual assaults related to nine of Mr. Bedard's patients and were committed while he was purporting to treat them in his capacity as a licensed chiropractor.

[2] The Crown applies for leave to appeal from sentence and if leave be granted, seeks at this stage to have the conditional sentence replaced with a prison sentence of nine months. In essence, the Crown submits that the eighteen-month conditional sentence fails to adequately reflect the principles of general deterrence and denunciation and that it is manifestly unfit having regard to the gravity and seriousness of the offences and the respondent's degree of moral blameworthiness.

[3] For reasons which follow, I agree that this was not an appropriate case for a conditional sentence. Indeed, were it not for the plea negotiations that resulted in Crown counsel at trial asking for a custodial sentence of only twelve months, I think this case could well have attracted a penitentiary sentence.

Summary of Facts

[4] For a period of ten years, from 1989 to 1999, the respondent sexually assaulted thirteen of his female patients while purporting to treat them in his capacity as a licensed chiropractor.[^1] Of the thirteen complainants, most were assaulted on more than one occasion and in some instances, the sexual misconduct occurred over the space of several months. While eleven of the victims were adults, two were young persons in their mid-teens. This was a serious aggravating factor.

[5] The complainants had come to the respondent seeking treatment for a variety of conditions, including pain resulting from work and accident-related injuries and in one instance, pain resulting from the still-birth of a child. In addition to their physical complaints, most were also experiencing feelings of emotional distress and mental anguish. Hence, they were vulnerable both physically and psychologically.

[6] The complainants looked to the respondent for help and as might be expected, they placed their faith and trust in him. Instead of nurturing that trust, the respondent chose to betray it, placing his own sexual gratification over the well-being of his patients. His abusive conduct took several forms, including breast fondling, genital manipulation, digital penetration of the vagina and in one case, digital penetration of the rectum. The respondent perpetrated these acts under the guise of providing "treatment" and he persisted in the misconduct despite being questioned about it by his patients and despite being warned on two occasions to cease and desist, once by a senior medical practitioner and once by the College of Chiropractors.

[7] Victim impact statements filed by the complainants attest to the immense psychological harm they have suffered as a result of the respondent's misconduct and the devastating effect it has had on their lives. Some of the more tragic consequences include sexual dysfunction, termination of marriages and long-term relationships, disharmony within the family, loss of trust in the medical profession, loss of self-worth and dignity and overwhelming feelings of shame, humiliation and embarrassment.

[8] Because these offences occurred in a small Ontario community, many of the victims harbour concerns about meeting the respondent in public. For some, this has led to a form of self-imposed house arrest. For example, Ms. H states:

. . . [I] have felt petrified to go out in public, even with my family because I'm afraid I will run into him and I don't know how I would react. So ever since the charges were laid against M. Bedard last year I haven't really been out other than doctors appointments and medical tests and on occasion since we have a new 24 hours grocery store my husband will take me at 1:00 or 2:00 a.m. All this worry and stress has made my physical condition much worse. . . .

Another example is found in Ms. S's victim impact statement:

. . . Or when you go out to a mall and the whole time you're looking all around to see if you are going to run into someone who works at the chiro office or Dr. Bedard himself which has happened to me at Christmas and you completely lose it in a public place. I find that I tend to avoid a lot of situations. . . .

[9] In addition to feeling like prisoners in their own community, several of the victims report that because of the respondent's otherwise unblemished professional reputation and his strong support in the community, they have had to contend with comments from others, including relatives and friends, to the effect that the respondent is innocent and that the charges against him have been concocted for purposes of personal gain. For example, in her victim impact statement, Ms. H reports:

On a couple of occasions since M. Bedard had been charged, when I was out getting tests done at our local hospital, I was just passing by a door way and two ladies were discussing "poor Dr. Bedard and what a tragedy this is for him". I froze still right in my tracks … My husband got the same thing out with his friends one night "that these rotten so and so women were teamed up together to bring him down" [and] "that everyone that knows the man knows the charges are bogus". It has just been very difficult all the way around.

Another example is found Ms. K's victim impact statement:

. . . I have had to listen to family and friends saying how this case is not true and that Dr. Bedard could never had [sic] done such a thing and all the women are only trying to get money from this poor innocent man. They don't know that one of the women are their own granddaughter, niece, and friend. I want to scream and tell them that we are not doing this for money but to make sure this does never happen to another woman. . . .

[10] Although there are many aggravating factors in this case, there are also a number of mitigating factors. The respondent is 44 years old and his wife of thirteen years and two children remain supportive. He is described by many people, including former patients, as an outstanding and caring chiropractor. Prior to his guilty pleas, he resigned from the College of Chiropractors and he has undertaken in writing not to apply for reinstatement. In August 2000, he consented to the formal revocation of his licence.

[11] Over the years, the respondent has engaged in a good deal of community service and he and his family are committed to their church. As is apparent from the numerous character letters filed on his behalf, the respondent continues to have the support and respect of many members of the community.

[12] The respondent has undergone an examination by a noted psychologist who reports that he suffers from a sexual disorder known as "toucherism". According to the psychologist, the respondent requires therapy to address his marital problems and to prevent him from relapsing into inappropriate sexual behaviour. At the time of sentencing, it was his opinion that the respondent did not present a danger to the community at large. As might be expected, the respondent has expressed a willingness to engage in the necessary treatment.

[13] The respondent and his family have also engaged in extensive counselling sessions with an experienced social worker who reports that the respondent feels a deep sense of remorse for the pain and suffering he has caused to his patients and family. To a certain extent, that remorse is reflected in his early guilty pleas, which in turn spared the victims from having to relive their experiences in a public forum.

[14] Against this backdrop, I turn to the trial judge's reasons for sentence.

Trial Judge's Reasons for Sentence

[15] The trial judge delivered lengthy and considered reasons for sentence. She carefully reviewed the aggravating and mitigating factors in the case and she correctly outlined the principles that govern the imposition of conditional sentences. As well, she appears to have appreciated that in the circumstances, the principles of general deterrence and denunciation had to take precedence over the other recognized principles of sentencing.

[16] In the last analysis, however, the trial judge imposed a conditional sentence for reasons that relate more to the principle of specific deterrence than general deterrence or denunciation. After finding that with appropriate conditions, the respondent would not pose a danger to the community and that his greatest risk to "re-offend would be if he were again in a position of trust such as a chiropractor, masseuse, personal trainer or the like", the trial judge continued as follows:

. . . In this case, if it were not for the availability of a conditional sentence, I would in fact, have been inclined to order a one-year jail sentence. But given the availability of a conditional sentence, there is an advantage to having him serve a lengthier custodial sentence that is supervised in the community since this makes it possible to prohibit his re-entry into his former profession or a similar endeavour for a longer period of time.

In other words, it appears that the trial judge opted for an eighteen-month conditional sentence over a twelve-month prison sentence because under the former, the respondent could be prevented from engaging in a high risk occupation for an additional six months.

Analysis

[17] Although the trial judge referred to the appropriate sentencing objectives and principles, the sentence imposed fails to reflect the seriousness of the offences and it is manifestly inadequate. In the circumstances of this case, a conditional sentence, even one of eighteen months on the terms imposed by the trial judge, could not meet the objectives of general deterrence and denunciation.

[18] The crimes committed by the respondent were extremely serious. As indicated, over the course of ten years, he sexually assaulted thirteen female patients and in doing so, he repeatedly broke the sacred bond that forms the essence of a doctor/patient relationship. By any measure, this was a gross breach of trust and, as is all too often the case, it has resulted in tragic consequences for the victims. In many respects, the respondent is responsible for undermining, if not destroying the physical, emotional and psychological well-being of thirteen patients who placed their faith and trust in him, only to have it shattered. He is also responsible for causing several of the complainants to lose faith generally in male health care professionals.

[19] In my view, criminal conduct of this nature calls for severe punishment. Normally, it would attract a penitentiary sentence. In this case however, because of the plea negotiations, Crown counsel at trial requested a sentence of only twelve months imprisonment. Giving full effect to the mitigating factors, the sentence requested by Crown counsel was, in my view, an extremely lenient one.

[20] To realize this, one need only consider the recent decision of the Supreme Court of Canada in R. v. R. (R.A.) (2000), 2000 SCC 8, 140 C.C.C. (3d) 523. There, the court overturned a six-month conditional sentence imposed on appeal and restored the one-year custodial sentence imposed at trial in a case involving a single incident of sexual fondling and digital penetration by an employer against his employee. Writing for the majority, L'Heureux-Dubé J. explained at pp. 535 and 536 why the six-month conditional sentence imposed on appeal was inappropriate:

. . . With respect, I find that the Court of Appeal erred in imposing the six-month conditional sentence for the sexual assault. In doing so, it substituted a short conditional sentence for the one-year sentence of incarceration imposed at trial. Based on the sentencing principles set out in the companion appeal of R. v. Proulx, 2000 SCC 5, 2000 S.C.C. 5 [ante, p.449], I find that the Court of Appeal's sentence was unfit in light of the gravity of the offences committed and the respondent's moral blameworthiness given his abuse of a position of authority. (Emphasis added)

At p. 537, L'Heureux-Dubé J referred with approval to the reasons given by the trial judge for imposing a one-year prison term. The passage is instructive because of the similarities it bears to the case at hand:

Schwartz J. [the trial judge] recognized that there was little or no risk of re-offence and that with the support of family and friends, the offender would rehabilitate himself. Nevertheless, the record also shows that the trial judge was aware that many members of the respondent's community supported him and tended to deny that the respondent could have committed the offence of which he was convicted. Taking into account these factors, he emphasized that in light of the gravity of the sexual assault and other assaults committed, the court needed to send the message to the community that this type of conduct was reprehensible and would not be tolerated. In his view, this meant that the objectives of denunciation and general deterrence were more important than the objective of rehabilitation in this case. In fact, he viewed the one-year sentence requested by the Crown for the sexual assault conviction as being at the "low end of the scale". . . (Emphasis added)

[21] I recognize that no two cases are alike and that trial judges must be flexible in their approach to sentencing. I refer to R. v. R. (R.A.) simply to explain why, in my view, the sentence of twelve months imprisonment requested by Crown counsel in this case was at the low end of the scale. Absent extenuating circumstances of the most compelling kind, of which there are none here, the gravity of these offences and the respondent's degree of moral blameworthiness called for a sentence of immediate imprisonment. Manifestly, this was not an appropriate case for a conditional sentence.

Disposition

[22] I would grant leave to appeal and allow the appeal against sentence. On behalf of the Crown, Ms. Paine submits, correctly in my view, that the respondent should be credited for three months of the time he has already served pursuant to the conditional sentence. Accordingly, I would set aside the conditional sentence and in its place, substitute a sentence of nine months imprisonment to commence on the day the respondent surrenders into custody. The terms of probation and the weapons prohibition imposed by the trial judge will remain.

[23] As part of the conditional sentence, the trial judge ordered that the respondent make a $15,000.00 donation to a named sexual assault crisis centre. She further ordered that if the centre refused the donation, the funds were to be paid by way of victim surcharge. In argument, we were informed that the centre did not accept the donation. In light of my disposition, the donation/surcharge is to be returned to the respondent if it has been paid. In its place, there being no basis for an exemption, the respondent will pay a surcharge of $900.00 as prescribed by s. 737(2)(b)(ii) of the Criminal Code.

RELEASED: MAY 23, 2001 "M. J. Moldaver J.A."

"I agree Marc Rosenberg J.A."

"I agree S. T. Goudge J.A."

[^1]: The respondent entered pleas of guilty with respect to nine of his patients. By agreement, the facts relating to the other four patients were read into the record and treated as aggravating circumstances.