COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Doodnaught, 2014 ONCA 172
DATE: 20140305
DOCKET: M43465 (C58376)
LaForme J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
George Doodnaught
Applicant/Appellant
Brian Greenspan and Jill Makepeace, for the applicant/appellant
Lisa Joyal and David Wright, for the respondent
Heard: February 26, 2014
ENDORSEMENT
H.S. LaForme J.A.:
BACKGROUND
[1] Dr. George Doodnaught was an anesthesiologist at North York General Hospital. On November 19, 2013, after a six-month trial before a judge sitting without a jury, he was convicted of sexually assaulting twenty-one female patients over a four-year period ending in February 2010. His victims ranged in age from twenty-five to seventy-five. The assaults were committed in operating rooms during surgery while the victims were in a state of semi-consciousness and unable to offer meaningful resistance.
[2] The trial judge found that with eight of his victims, Dr. Doodnaught inserted his penis into their mouths after lowering his scrub pants. He used five other victims for acts of masturbation; six others had their breasts squeezed, pinched, or fondled, and some of them were kissed in an aggressive sexual manner. Two other victims were kissed on the lips in a sexual manner.
[3] The trial judge further found that over the four year period of his assaults, Dr. Doodnaught became emboldened, and the frequency of his crimes escalated: fifteen of the twenty-one assaults were committed in the last six months; and, in the ten days before his arrest, he assaulted at least four patients, with three of the assaults involving forced fellatio.
[4] On February 25, 2014, Dr. Doodnaught was sentenced to a total of ten years imprisonment, which he has commenced serving. He applies to this court for judicial interim release until his appeal against conviction is heard.
[5] Dr. Doodnaught is a 65-year-old first time offender. He is married and the father of five children; three adult males from previous marriages and two from his current marriage who are 8 and 9 years of age. He practiced as an anesthetist at Toronto General Hospital from October 1979 until June 1982. He carried on the same practice at North York General Hospital from 1982 until his initial arrest for these offences on March 10, 2010. He was arrested again on September 30, 2010 on further charges related to these offences. He has been unemployed since his initial arrest.
[6] Upon both of his arrests, Dr. Doodnaught was released the same day. Over the four year period from his arrest through his trial, Dr. Doodnaught abided by all the terms of his release, including attending court as required.
[7] Dr. Doodnaught, in his notice of appeal, claims that the trial judge committed some 100 errors in his conduct of the trial and ultimate decision. Virtually all the grounds challenge the correctness of finding of facts by the trial judge.
[8] On the whole, Dr. Doodnaught argues that the trial judge engaged in conclusion driven reasoning in which he ignored or rejected evidence inconsistent with guilt and made findings of fact consistent with guilt which were not supported by evidence. More specifically, he argues that the trial judge variously misapprehended, improperly weighed, ignored, misapplied and misinterpreted much of the evidence.
THE TEST
[9] Under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, Dr. Doodnaught must satisfy me that:
his appeal is not frivolous;
he will surrender into custody in accordance with the terms of the release order; and
his detention is not necessary in the public interest.
[10] The Crown accepts that some of the grounds of appeal satisfy the very low threshold of not being frivolous in that they are arguable. It also accepts that he will surrender into custody in light of his history of release pending his trial. The Crown does, however, oppose his application on the basis of the third component, asserting that it is not in the public interest to release him.
ANALYSIS
(1) The appeal is not frivolous
[11] An appeal is not frivolous if the proposed grounds raise arguable issues. Dr. Doodnaught does not have to satisfy me that such ground has a likelihood of success on appeal; rather, he is only required to satisfy me that there is a viable ground of appeal that would warrant appellate intervention if established: R. v. Manasseri, 2013 ONCA 647, at para. 38.
[12] The detailed notice of appeal and the Crown’s position on this application satisfy me that the appeal is not frivolous in that it raises arguable issues.
(2) He will surrender into custody
[13] Dr. Doodnaught’s history while on release pending his trial indicates that he is not a flight risk. As I noted above, he was initially released on the same day as his arrest in March 2010, and again in September 2010, until his trial and conviction on November 19, 2013. On several occasions during this period variations on the conditions of his release were granted. Throughout this entire period Dr. Doodnaught fully complied with his release terms and attended court whenever required.
[14] Once again, this history and the position taken by the Crown satisfy me that Dr. Doodnaught would surrender into custody in accordance with the terms of any release order.
(3) Detention is not necessary in the public interest
[15] The public interest component is about the public perception of the reputation of the administration of justice. This is based on the view of a public that is reasonably informed of the criminal process and the circumstances of the case. It requires that I assess the need to review the conviction leading to imprisonment on the one hand, and the need to respect the general rule of immediate enforceability of judgments on the other: Manasseri, at paras. 40-43. This is commonly referred to in the jurisprudence as “reviewability versus enforcement”.
[16] Public confidence in the administration of justice requires that judgments be enforced, and ordinarily requires that a person convicted of a very serious offence, who advances grounds of appeal that are arguable but weak, be denied release pending appeal. However, public confidence in the administration of justice also requires that judgments be reviewed and that any errors be corrected, especially where an appellant’s liberty is at stake – in these circumstances justice usually requires release from custody pending the review: R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.
[17] Release may be especially appropriate where the hearing of the appeal "will be so long delayed and the probability of the success in the appeal so strong that it will be contrary to the public interest to refuse a release and a fortiori an applicant's detention would not be necessary in the public interest": R. v. Baltovich (2000), 2000 5680 (ON CA), 144 C.C.C. (3d) 233 (Ont. C.A.), at para. 41, quoting R. v. Baltovich (1992), 1992 7538 (ON CA), 10 O.R. (3d) 737 at 740.
[18] The public interest component assumes greater prominence in cases in which the applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: Baltovich (2000), at para. 19. This is such a case.
[19] I will begin with a comment on the 49 letters Dr. Doodnaught filed from persons in the community which indicate their support for him and their belief in his innocence. These letters were also filed with the trial judge and are entitled to some weight. However, this represents a very small segment of the public. These opinions should be accorded little weight given that a contrary opinion is no doubt held by the 21 victims and their families and associates. The letters thus do not assist very much in gauging the public interest in this case.
[20] The trial of Dr. Doodnaught spanned some six months and resulted in 10,000 pages of transcript. There are 21 victims who each complained about Dr. Doodnaught independently and without knowing any of the other complainants, or their experiences with Dr. Doodnaught. The very experienced trial judge provided extensive reasons for his decision that covered 84 single-spaced pages and consisted of 855 paragraphs. The trial judge concludes his reasons for convicting Dr. Doodnaught by saying “[t]he evidence supporting guilt is overwhelming”.
[21] My review of the trial judge’s reasons leaves me with the strong impression that he considered all the evidence carefully and that he was very much alive to the defence theories advanced and the evidence in respect of those theories. Moreover, from the reasons alone I am not able to assess the merits of Dr. Doodnaught’s claim that the trial judge engaged in conclusion driven reasoning by ignoring or rejecting evidence inconsistent with guilt and that he made findings of fact consistent with guilt which were not supported by evidence. The trial judge’s reasons, without anything more, certainly do not convey that.
[22] As I said, virtually all the grounds of appeal advanced by Dr. Doodnaught challenge the correctness of the findings of fact by the trial judge. Such grounds of appeal pose an uphill battle for success on any appeal given the high degree of deference owed to trial judges by appellate courts in respect of their findings of fact. Here, Dr. Doodnaught’s claims of misapprehension, misapplication and ignorance of evidence by the trial judge are not viable for me to assess as to their strength because the transcripts of the trial are not yet available, and apparently will not be available until the end of May 2014.
[23] It follows that on this record I cannot reach any final conclusion on the strength of the grounds of appeal. Suffice it to say - and without more - that while I find some of the grounds to be arguable, none leave me with a very strong opinion in favour of the applicant’s chances of success on appeal. Because of this, the fact that perfection of the appeal may be 16 to 18 months away, as counsel contends, is of little impact.
CONCLUSION
[24] Dr. Doodnaught’s offences, described above, are very serious. From my assessment based on the record before me, his grounds of appeal are weak and not likely to succeed, although some may be arguable. In cases like this, the need for immediate enforcement of the judgment outweighs the need to review the decision. Release, therefore, would not be in the public interest.
[25] The application for release pending appeal must be dismissed.
“H.S. LaForme J.A.”