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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Court Information
ONTARIO COURT OF JUSTICE
DATE: 2024 10 09 COURT FILE No.: Toronto 4810 998 22 10005270-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
KAVIT SHAH
Before Justice Christine Mainville Heard on September 19 and 20, 2024 Reasons for Judgment released on October 9, 2024
Counsel: Rishabh Nigam................................................................................... counsel for the Crown Nick Kandel.................................................................................... counsel for the accused
Mainville J.:
Reasons for Judgment
[1] Mr. Shah is a registered physiotherapist charged with one count of sexual assault. The assault is alleged to have taken place during a physiotherapy treatment session with the complainant, K.G., at the Bloor West Physiotherapy clinic.
[2] K.G. first attended the clinic in August of 2022 for a knee injury. She consented to massages in that area and around her shoulders. She alleges that on a subsequent visit that same month, the accused squeezed her breasts and brushed her lips with his finger. She later reported the incident to the police.
[3] The accused testified and denied the allegations. The defence also called the clinic’s receptionist and physiotherapy assistant, Ms. Pinto, to contradict some aspects of the complainant’s account of her visits at the clinic.
The Principles to be Applied
[4] In a criminal trial, the accused person is presumed innocent. There is no obligation on the accused to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of the offence beyond a reasonable doubt.
[5] 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 the accused is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
[6] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether that person was trying to tell the truth and if the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence.
[7] In assessing the credibility and reliability of the witnesses, a trial judge does not simply choose one conflicting version of events over another. Instead, I must apply the framework set out by the Supreme Court of Canada in R. v. W.D. :
(i) If I believe the evidence that is inconsistent with the accused’s guilt, I must acquit him.
(ii) Even if I do not believe the evidence that is inconsistent with the accused’s guilt, if I cannot decide whether that evidence is true or if it raises a reasonable doubt in my mind, then I must acquit.
(iii) Even if I entirely disbelieve the evidence inconsistent with guilt, the mere rejection of that evidence does not establish guilt. Instead, I must be satisfied that the evidence I do accept proves the accused’s guilt beyond a reasonable doubt.
The Elements of the Offence
[8] To establish the offence charged, the Crown must prove that the accused intentionally touched K.G. without her consent on any part of her body, in circumstances of a sexual nature. The Crown must also prove that the accused was aware of, or wilfully blind or reckless to, K.G.’s lack of consent to the sexual act.
[9] The central issue in this case is the sexual nature of the touching.
[10] Whether the touching occurred in circumstances of a sexual nature such that the complainant’s sexual integrity was violated is determined objectively. Touching takes place in circumstances of a sexual nature if the sexual nature of the intentional physical act would be apparent to a reasonable observer: see R. v. G.F., 2021 SCC 20; R. v. Litchfield, 1993 SCC 44, [1993] 4 S.C.R. 333; R. v. Chase, 1987 SCC 23, [1987] 2 S.C.R. 293 at 302. To be sure, however, the touch does not have to be to a sexual part of the body: R. v. Dinardo, 2014 ONCA 758.
[11] If I accept that the accused touched K.G.’s breasts and lips as she describes, there is no question that the touching was in circumstances of a sexual nature, rather than as part of the physiotherapy treatment the accused was administering. The accused denies touching those areas of K.G.’s body. On his version, the areas he said he touched were touched for therapeutic reasons, not sexual ones.
[12] The Crown argues that I may find a sexual assault even on the accused’s version based on his account of the areas touched – which could arguably be sexual in nature –if I accept that K.G. was uncomfortable and did not consent to the touching he says he administered. The Crown argues that even on his version, the accused was at least wilfully blind to the absence of consent.
[13] I recognize that I may accept all, some, or none of a witness’ testimony. However, if I accept or cannot exclude the accused’s version in its totality, no sexual assault is made out as he testified that he expressly obtained the complainant’s consent to touching that he testified was therapeutically indicated and not sexual in nature.
The Facts
[14] K.G. testified through a Spanish interpreter. She first provided a statement in English to the police but was clearly not fluent in the language. She provided a second statement a few days later with the assistance of an interpreter.
[15] It is agreed that K.G. first attended the clinic on August 15, 2022, in relation to a knee injury. The accused was the person who conducted her intake assessment.
[16] K.G. testified that during the intake, the accused asked her if she had complaints about any other part of her body. She showed him her wrists, indicating that they hurt but it was nothing serious. She says he stood behind her and put his hands on her shoulders, stating that it was because her shoulders were tense and that she might need some massages. She says she told him that was just from the normal stress from her classes. K.G. was in Canada as an international student at the time.
[17] K.G. does not recall whether she received any treatment or therapy that same day. She did confirm that her treatment plan ultimately provided for electrotherapy on her knee, then massages to her knee and shoulders, and exercises. She was to do three sessions a week for a month, given that she was soon due to leave Canada.
[18] In examination in chief, K.G. denied that there were any discussions about treating her neck area. She also denied complaining about her shoulder or neck area in the first place.
[19] K.G. re-attended the clinic on August 17th. The electrotherapy and exercises were conducted with a physiotherapy assistant, whereas the accused performed the massages. The clinic provides a blue hospital-type gown for the electrotherapy and massages. K.G. had no complaints about the treatments that day.
[20] On August 19th, she again began with the electrotherapy treatment which is performed by a physiotherapy assistant. As per the previous session, the accused then came into the room for the massages.
[21] The clinic still had a Covid-mask policy at the time, such that everyone including staff were expected to always wear masks inside the clinic, with the exception of the staff lunchroom. K.G. stated that when she was in the room with the accused on the 19th, she was trying to chew some sweets behind her mask, and he told her she could take off the mask. She told him she was OK like that.
[22] He then asked her to sit in a chair rather than on the clinic bed as that would facilitate the massages. He began massaging her shoulders then removed her mask, stating that they “didn’t need that”. He massaged her shoulders and neck with a cream, and at some point put his hands in the front on her chest. She felt his hands were too far inside the gown so she moved her body. He apologized and stated he didn’t want to make her feel uncomfortable, but he thought she had pain there. She said no, that her pain was in her shoulders. He continued with the shoulder massages but by then she was very uncomfortable.
[23] K.G. testified that the accused then put both his hands under the gown, all the way to her belly button. He then withdrew them and squeezed her breasts with both hands. She had not been using a brassiere, so she only had underwear underneath the gown. He then swiped her lips with his thumb. She grabbed his hand and told him no, and he stopped. She stood up from the chair while he murmured apologies, indicating that he didn’t want to make her uncomfortable. She felt he used a very low voice as though he did not want others to hear him. She began putting her clothes on. She declined his offer to put a band on her knee as he had done the previous time.
[24] K.G. said she felt afraid and didn’t understand what had happened. She told her wife the next day then decided to return to the clinic for her next appointment to confront the accused. She says she attended on August 22nd with a large male friend. Upon arriving, she says she was told that the accused could not keep the appointment as he was too busy and that she could wait if she wanted or would have to return. She decided to leave. When asked, she could not recall whether she did the electrotherapy treatment with the physiotherapy assistant as in the normal course.
[25] K.G. subsequently reported the matter to the police.
[26] Ms. Pinto, the clinic’s then-receptionist and physiotherapy assistant, testified that on K.G.’s last attendance, K.G. completed her electrotherapy then returned to the reception area to wait for her massage appointment.
[27] Based on an electronic printout from the clinic’s booking software for K.G.’s attendance, the receptionist testified that the massages had previously been scheduled a half hour after the electrotherapy. On August 22nd, unlike these previous attendances, the massages had been scheduled an hour later. She did not recall why this was but testified that it depended on the physiotherapist’s schedule. In any event, this explained why K.G. had to wait longer that day after the electrotherapy had been completed, than on her previous attendances.
[28] Ms. Pinto testified that she apologized for the wait, but she never advised K.G. that the accused was unavailable to see her. Rather, she testified that K.G. told her she could not wait any longer and she left prior to the massages.
[29] Ms. Pinto testified that she recalled this interaction because the clinic director was asking her about this patient a few days after that visit – presumably because the matter had by then been reported to the police.
[30] The receptionist also testified to K.G.’s normal demeanour on that date, indicating that she did not appear to be visibly uncomfortable or stiff, as K.G. described herself to be.
[31] The receptionist also discussed the clinic’s mandatory Covid-mask policy at the time, and the gowns worn by patients.
[32] Finally, Ms. Pinto testified that her only relationship with the accused is as a colleague and that she has never seen him outside working hours.
[33] The accused also took the stand in his defence. He has been registered with the College of Physiotherapists since 2017 and has since been working at the Bloor Street West clinic. He has not previously faced complaints with the College or been criminally charged.
[34] Mr. Shah testified that during the intake phase on August 15th, in addition to her primary concern relating to her knee, K.G. complained not about her wrists but about her neck and upper back when carrying a backpack. That is what led to the treatment plan including soft tissue release (massages) for her neck, as per his intake notes.
[35] Under “Other History”, the initial intake notes state “neck ms [muscle] stiffness with pain with lifting backpack”. The chart also sets out the locations of the palpations done and the treatment plan relating to the soft tissue release (amongst other treatments), including to the backside of her neck.
[36] During that first appointment, aside from the treatment relating to her knee, the accused testified that he palpated the area around the back of her neck and shoulder and the pectoral muscle around the front of her shoulder.
[37] He testified that when he re-entered the cubicle used as an assessment room after the electrotherapy was completed with a physiotherapy assistant, K.G. was lying on the bed. He asked her to sit given that that was the preferable position for the neck massage, in part because of the layout of the room and limited space behind the bed, but also because she could not comfortably lie flat on her front given her knee injury.
[38] After the soft tissue release, she went to the gym area for her exercises with an assistant.
[39] The same order was followed at the next appointment on the 17th, that is, her electrotherapy, the soft tissue release with him, followed by the exercises. The soft tissue release again included a massage of two muscles at the back of her neck, again seated in a chair after the knee treatment which was done with her lying on her back on the clinic bed.
[40] The accused testified that on August 19th, when he asked K.G. how she was feeling prior to starting the soft tissue release treatment, she said a bit better but that she felt some pain in the front of her neck and the upper part of her chest. He said he could look at it once she was in a sitting position, and she said OK.
[41] After the knee and calf massage, K.G. got in the seated position and was getting her phone and had earphones. He said to leave those on the side. He asked her to pinpoint where she was experiencing pain. She designated the front of her neck and the bottom of her neck toward her clavicle – that is, her upper chest area. This included the upper part of her pectoral muscles, part of the clavicle around her collarbone.
[42] The accused says he asked her when the pain started, and she said it was a recent onset. He said he would look and asked her to remove her arms from the gown sleeves and to tuck the gown underneath her arms, so that he could have a better look and so that the seem of the gown around the neck area would not interfere with his examination of that area. He also handed her a towel to tuck around her and her chair, to provide an extra layer of privacy.
[43] Mr. Shah explained that he could not have her tug the gown down each shoulder one at a time, as he wanted to compare the two areas for signs of redness, bruising or inflammation. He explained that by tucking the gown and towel underneath her armpits, K.G. exposed the supra clavicle and pectoral area of her body – essentially her upper chest.
[44] The accused testified that he again obtained K.G.’s verbal consent to palpate that area, and after she agreed, he palpated the inner and upper part of her clavicle, and the upper part of the pectoral area, just under the clavicle. Two groups of muscles were tight, so he suggested soft tissue release for those. After obtaining her verbal consent, he performed that treatment. She had her arms crossed over her chest the entire time, holding her gown and towel in place. She did not express discomfort when he asked her if the pressure was OK.
[45] The accused testified that they both wore their mask throughout the treatments and at no time did he ask her to remove hers.
[46] The accused explained that they are required by the College to make notes of initial complaints and treatments and of any change in a patient’s treatment in addition to new complaints. As such, he made notes in her chart during the initial intake but did not make notes on the second visit as there was no change to the treatment – he was just repeating the earlier procedures. On August 19th, he made notations because he had a duty to jot down the new complaint and resulting change in her treatment plan.
[47] The accused explained that he first wrote this information on K.G.’s treatment card, which contains brief notes intended for the physiotherapists and physiotherapy assistants, for quick reference. It is kept in the clinic’s “preparation area”. He then completed a detailed note in her chart which is kept with other patient files inside locked cabinets at the front of the clinic, and which are only accessed when needed. Both records were filed at trial.
[48] The treatment card includes dated entries for each of K.G.’s visits at the clinic. For the initial intake, there is a note from the accused setting out the treatment plan. For all the dates, there is confirmation by someone other than the accused of the Covid screening having been performed. On August 19th, aside from the Covid screening note, there is a notation from the accused stating “verbal consent taken for STR [soft tissue release] over upper pectoral region and supraclavicle region”. This notation is followed on the next line with a notation dated August 22nd about the Covid screening performed on that date, by someone other than the accused. This suggests that the August 19th entry by the accused was made by August 22nd, when the next entry was written in.
[49] The detailed note for August 19th set out that K.G. “complained of pain over supraclavicle and around upper chest with tightness. Pain is dull in nature with on/off symptoms”. The note then relays his objective assessment of tightness of the right pectoral muscle and mentions “verbal consent taken to examine and palpate SC joint supraclavicular and upper pectoral region”. The note then includes notations under “Tenderness on Palpation” and “Assessment”. It ends with a notation about an “Add” to the treatment plan relating to soft tissue release of those areas.
[50] The accused explained that specific reference to a verbal consent obtained for a change in the treatment plan is required, in contrast to the initial consent obtained at the time of intake. That is because written consent is obtained on that initial attendance, but also because the intake form sets out a checkbox to mark that verbal consent was obtained. On subsequent visits, no such checkbox is available on the documents used for notetaking. And only verbal consent is usually obtained for changes to treatment, in line with the clinic’s policy.
[51] The accused denied touching K.G.’s stomach, breasts, or lips. He stated that after he had completed the soft tissue release, she got dressed while he was outside the room likely writing up his notes. She then left and did not say anything upon leaving the room.
[52] At her next appointment on August 22nd, he recalls asking at the front desk if she was there and being told that she had left a few minutes prior as she could not wait any longer.
[53] Based on the clinic’s attendance card, he testified that she completed her electrotherapy that day as well as her exercises. The card includes initials in those spaces that are not those of the accused and that line up with the earlier initials for those dates. The attendance card shows no signature or initials for the soft tissue release portion of her treatment on the 22nd.
Analysis
Admissibility of the Clinic Notes as Business Records
[54] I first address a disagreement between the Crown and defence as to whether I can accept the clinical records and notes for the truth of their contents, based on the clinic file constituting a business record.
[55] As stated in Gourlay et al., Modern Criminal Evidence, Emond, 2022, first edition, at p. 246, “[d]ocumentary evidence admitted for its truth will have strong circumstantial guarantees of trustworthiness. This will generally arise from the circumstances in which the records are created and their purpose. … There will be no motive to misrepresent the information recorded since the records are relied on for business purposes and must be reliable.”
[56] Certainly, there are precedents for medical or clinic notes constituting a business record, at least where there is no motive or interest to misrepresent facts: see, for e.g. the foundational case of Ares v. Venner, 1970 SCC 5, [1970] S.C.R. 608.
[57] Here, I accept that at least part of the clinic records introduced at trial have clear markers of reliability, in particular the attendance sheet and the notations made by persons other than the accused. I heard from Ms. Pinto about some of the clinic’s systems and the clinic would have relied on some of these records for billing and insurance purposes.
[58] I would also be inclined to find that the intake assessment notes have sufficient markers of reliability, but do not need to determine this to come to a conclusion in this case nor is there any need for me to adjudicate the reliability of the accused’s notations from the date of the alleged incident. Indeed, as the below analysis makes clear, I have a reasonable doubt about the accused’s guilt without considering the clinical notes at all. Ultimately, there is no need for me to engage in the business record analysis in respect of his own notes, which may in any event become a circular exercise.
[59] It should nevertheless be noted that even where documents are accepted in evidence as business records, I am not compelled to accept the contents as true: “[c]hallenge to the veracity or reliability of documentary evidence may be pursued through other evidence or from permissible inferences from the records themselves”: Modern Criminal Evidence, at p. 247.
[60] More important here is an assessment of the testimony heard at trial.
Credibility and Reliability Analysis
[61] There were some reliability issues with K.G.’s testimony. Some were minor and inconsequential, such as having been mistaken about the date when she first attended the clinic and not recalling whether she received any treatment on that date, or how many times she had attended for treatment prior to the incident. Others were more significant.
[62] But of primary concern to me is the fact that K.G. initially denied in her testimony that she had ever complained about pain in her shoulders, whereas I find that she did.
[63] K.G.’s testimony was that she merely complained about pain in her wrists, and she minimized the tension in her shoulders when pointed out by the accused. However, when confronted with her police statement in cross-examination, she agreed that she said there was pain in her shoulder area. She explained that this was after the accused had already touched her, and that although what she testified to was different than the statement she made to the police, she believed there may have been a misinterpretation by the interpreter as her statement was in Spanish.
[64] Whatever the case may be, the fact is that she acknowledged confirming to the accused that there was pain in that area. More tellingly, when describing the events of August 19th and the treatments she had in fact consented to, she positively referenced the pain in her shoulders. This was not reflected in her examination in chief. The gist of her testimony was that she had complained about her wrists, and indeed she did not view it as normal that the accused then linked that pain to tension in her shoulders.
[65] It is clear that K.G. consented to shoulder massages as part of her treatment plan on August 15th, 17th and 19th. In my view, in light of this and of the fact that there was no indication of any treatment to her wrists for all those visits – including on her own account – it is far more plausible that she did discuss pain in her shoulder area with the accused during her intake assessment.
[66] K.G. also testified that there was no discussion about treating her neck and she denied that she first complained in the intake phase of pain or stiffness in that area when lifting her backpack. She indicated that her neck was not part of the ensuing treatment she consented to, testifying that the accused would massage the part between her shoulder and her neck. However, after resisting the suggestion that the accused also treated her neck, she ultimately agreed that he touched her neck during these massages. In my assessment, K.G. tried to minimize the extent to which she had consented to massages beyond those relating to her knee.
[67] Her efforts to deny or minimize complaints relating to other parts of her body suggests a lack of candour that has some bearing on the credibility of her assertion that she never complained about her upper chest area on the date of the alleged incident.
[68] Moreover, K.G. was generally adversarial in cross-examination, occasionally denying things that she more readily accepted when questioned by the Crown.
[69] For instance, she agreed that she told the police that the second time the accused put his hands inside her gown, he squeezed her breasts twice, whereas she testified at trial that it was only once. In cross-examination, she insisted that it was once. Yet, when asked by the Crown in re-examination why she told the police twice, she indicated that a few years had gone by and that is what her video statement was there for. This suggests that she accepts her statement to the police as being more reliable, but this contrasts with her refuting the defence’s suggestion that she had testified incorrectly.
[70] Similarly, under cross-examination by the defence, K.G. was adamant that she had told the police about the accused removing her Covid mask. She ultimately agreed that she had not when she was describing the incident of that day. This was an important point from the defence’s perspective as the lip incident could not have unfolded as she described if she was wearing a mask. When the Crown re-examined her on why she may not have told the police about this, she provided an explanation for the omission. This contrasted with the adamancy with which she resisted the defence’s suggestion that she had failed to mention this to the police.
[71] This signals a need for caution when assessing her testimony, as in my view she did not do her best to answer questions in a fair and balanced way.
[72] K.G. also could not recall where the mask was put when it was removed, or when she put it back on if at all. She did not put it back on immediately or while she was still in that room, but she could not recall whether she put it on afterwards when she went to get her exercise sheet and to leave.
[73] When asked in cross-examination about the accused removing her mask on August 19th, she added that he had already removed his when he first entered the room that day, indicating that it was more comfortable without it. She had not mentioned that he had taken off his own mask in examination in chief, and she acknowledged that he had worn his mask through the duration of his other sessions with her.
[74] I also accept Ms. Pinto’s evidence that the accused was available to see K.G. on August 22nd, but that the appointment was later than it had been in the past. She accordingly apologized for the wait time. I reject K.G.’s account that she was informed that the accused could not see her that day as he was too busy. This would make little sense for Ms. Pinto to say when he had an appointment time set aside for her. Ms. Pinto was a credible witness. I accept her explanation of how she recalled this interaction and do not believe she had any reason to lie to protect the accused. And there were other issues with K.G.’s account of her attendance at the clinic that day.
[75] K.G. first testified that when she returned to the clinic on August 22nd after the date of the incident to confront the accused, she did not proceed with the other components of her treatment that day. She was told upon arriving at the clinic that the accused could not see her.
[76] It was only after being shown her statement to the police that she acknowledged having completed the electrotherapy session and the stretching exercises, although she indicated that the exercises were done with a different person than usual and that that person did not understand the exercises. As a result, the person suggested that she simply continue with the same exercises she had been doing at home and they did not complete the exercise session. K.G. testified that it was after the electrotherapy and the limited exercises she did that day that the person told her the accused could not talk to her because he was busy.
[77] The attendance card suggests that both the electrotherapy and exercises were completed that day and that the same person in fact assisted K.G. with her exercises on each attendance, including on the 22nd. The card reflects the same initials, Y.R., on each date, and the accused testified these were the initials of one of the physiotherapy assistants at the clinic who provided the exercises to K.G. on each attendance.
[78] Ms. Pinto’s evidence that she did not tell K.G. that the accused could not see her that day is more reliable and credible. I accept that K.G. left of her own accord, indicating she could not wait any longer.
[79] The fact that K.G. suggested that the accused had avoided her on August 22nd in my view reflects a tendency by K.G. to portray matters in a way that she felt would help her.
[80] Another example of this is that K.G. testified that on August 19th, after the incident, she only went to get her exercise sheet and she then left the clinic. She did this as she wanted to leave the place. They gave her the sheet with the exercises because they had instructed her on how to do them in the previous sessions.
[81] K.G. then agreed that she told the police she did two to three minutes of exercises in that exercise session, but with another person. At trial, she explained that it would have taken her some time to get to the other person who did the exercises, and that this person was busy with another person.
[82] I do not accept this explanation. I find that she did complete some exercises – with the same person as before – and that she was minimizing the time that she subsequently spent at the clinic in an effort to substantiate her assertion that she was frozen after the improper touching and just wanted to leave the clinic. It makes little sense that the physiotherapy assistant would have been busy with another person when they were scheduled to see K.G. Or that K.G. simply needed a sheet for the exercises since they had been shown to her the previous time. There clearly was to be an exercise session to be completed at the clinic. And K.G. testified that no one questioned why she wasn’t completing her exercises. There appears to have been no discussion with the physiotherapy assistant about not completing her exercises and only wanting the exercise sheet, which does not make much sense. K.G.’s attendance card also has her completing her exercises that day, and with the same physiotherapy assistant as before, as per the initials Y.R.
[83] To be clear, I would not have seen the fact of remaining at the clinic to complete her exercises as somehow detracting from her allegations that she had just been sexually assaulted. She could well have wanted to act normally or not yet have fully processed what had happened, as she in fact stated. What is problematic here and what does undermine K.G.’s credibility is that she testified that she was frozen and just wanted to leave the clinic, so she got her exercise sheet and left. And that the other person was busy with someone else. But I find that her statement to the police meant that she did do some exercises at the clinic that day, contrary to her assertion at trial that she did not. Her explanation of what she meant in her statement to the police did not make sense.
[84] K.G. also displayed some suspiciousness of the accused from their first encounter, indicating that he was very kind to her, asking her questions about her such as where she was from and what she was doing in Canada, and asking to see a picture when she told him she was just married. It appeared to her that he was becoming too friendly for what is normal in Canada. This again seemed intended to cast the accused in a bad light.
[85] The above issues cast doubt on some aspects of K.G.’s testimony, including her denial that she complained about her supraclavicular or upper chest area, and her testimony that she did not consent to therapeutic touching in those areas. I am not able to find that she was telling the truth to the best of her ability.
[86] By contrast, the accused came across as very credible. He was in fact quite an impressive witness. He answered questions directly and did not display any hesitancy, confusion, or uncertainty in his answers. They were clear and made sense. I did not perceive any implausibility with his account nor was he contradicted on anything of substance.
[87] At first blush, it may seem odd for the accused to have explicitly referenced in his clinical notes the verbal consent he says he obtained to treat K.G.’s upper chest area, whereas there is no similar note relating to the areas that she consented to being treated on her first visit. However, there is indeed a checkbox relating to the patient’s verbal consent on the intake form (which was checked off in this case), whereas there is no such checkbox available for subsequent visits. Nor would it make sense for there to be, as the treatment provider would still need to set out what the consent relates to. During the intake process, the nature of the treatment being consented to is evidenced by the other entries that are filled out on the intake form. The accused’s explanation on this point therefore makes sense. As does his explanation for including this change in the treatment plan on K.G.’s treatment card.
[88] I at least have no basis to reject his account.
Conclusion
[89] Given that I cannot exclude Mr. Shah’s version of events, I have a reasonable doubt on the requisite mens rea for sexual assault and in respect of any touching having been in circumstances of a sexual nature.
[90] The accused is therefore acquitted.
Released: October 9, 2024 Signed: Justice Mainville