ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20140225
WARNING
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code.
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GEORGE DOODNAUGHT
David Wright and Susan Kim, for the Crown
Brian H. Greenspan and Jill Makepeace, for George Doodnaught
REASONS FOR SENTENCE
J.D. McCOMBS J.
February 25, 2014
The Offences
Dr. George Doodnaught was an anesthesiologist at North York General Hospital. He has been 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.
George Doodnaught committed the crimes while shielded from view behind draping separating him and his victims’ upper bodies from the sterile surgical field.
He knew when he could commit the brief assaults without being seen, because after twenty-six years at the hospital, he was well familiar with procedures and practices during surgery.
The offences were fully discussed in reasons for judgment released on November 19, 2013, and need not be detailed here. It is sufficient to say that with eight of his victims, he 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 also kissed in an aggressive sexual manner. Two other victims were kissed on the lips in a sexual manner.
There were three formal complaints against Dr. Doodnaught during the period covered by the indictment. In each case, he denied the allegations and blamed the drugs.
When the complaints were dismissed with no meaningful action being taken, he became emboldened, and the frequency of his crimes escalated. Although the indictment spans four years, fifteen of the twenty-one assaults were committed in the last six months. Indeed, in the last ten days before he was finally stopped, he assaulted no fewer than four patients, with three of the assaults involving forced fellatio.
In several cases, he compounded his victims’ sense of violation and humiliation by manipulating them to try to make them believe they were somehow responsible—that they had initiated sexual contact or had engaged in sexually explicit conversations.
George Doodnaught betrayed the extraordinarily high degree of trust accorded to him. As the anesthesiologist, he was charged with the responsibility of controlling the level of sedation of his patients, and monitoring their vital signs and levels of consciousness while they lay helpless on the operating table covered only by a surgical gown. The power imbalance between himself and his victims was absolute.
He exploited the trust he was given and used it to enable him to commit his crimes. He paid no heed to the harm it was doing to his victims, who were sedated but aware of what was happening to them and unable to fight back.
By his actions, George Doodnaught betrayed his victims, his colleagues, his hospital, the medical profession, the community, and his own family.
Impact on the Victims
The victims, and indeed, their family members and friends, demonstrated great courage and dignity in coming forward and giving evidence concerning such deeply personal and intimate matters in a public forum. It was apparent during their testimony that their experiences had been profoundly traumatic for them.
The victim impact statements presented to the court at the sentencing hearing have shed further light on the devastating effect the crimes have had on their lives. The profound psychological impact of the physical violations has been compounded by the victims’ deep feelings of betrayal—that these offences were committed during surgery, by a medical doctor, in an operating room, a place of ultimate vulnerability and trust.
Some of the more tragic consequences for George Doodnaught’s victims include sexual dysfunction, inability to form intimate relationships, family disharmony, distrust of the medical profession, sometimes to the extent of being unable to seek appropriate medical treatment, loss of feelings of self-worth, panic attacks, feelings of shame, humiliation and embarrassment, and in some cases, debilitating feelings of anger and bitterness.
Circumstances of the Offender
George Doodnaught has no prior criminal record. He is sixty-five years old. From a modest background, he was able to obtain an excellent education and achieve high standing in his chosen field.
The defence has filed forty-nine letters of support on his behalf. They have been written by members of his family, former colleagues, patients, and long-term friends. They are uniformly shocked that the man they know has been found to have committed these crimes.
His family members and supporters describe him as a modest, caring, and loving person, and a supportive and generous mentor, who took great pride in his work as an anesthesiologist and most of all, in his family.
The letters also provide insight into the effect that his public disgrace has had on him and his family. Not surprisingly, he is described as being in a state of anguish, a shell of his former self.
The Law
Determining an appropriate sentence is an inexact and difficult process. Ultimately, the decision is left to the discretion of the court, subject to a number of guiding principles found in the governing legislation[^1] and in decisions of trial and appellate courts.
In determining an appropriate sentence, I must keep in mind the fundamental purpose of sentencing, which, in the words of the Criminal Code, is “to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions” with one or more of a number of objectives, including denunciation of the conduct, deterrence of the offender and others, acknowledgement of the harm done to victims and to the community, and rehabilitation of the offender[^2].
In deciding on a just sentence, the most important guiding principle is that the sentence must be proportionate to the gravity of the conduct and the degree of moral blameworthiness of the offender[^3].
The sentence must take into account both aggravating and mitigating circumstances. Aggravating factors include abuse of trust or authority by the person committing the crimes[^4], and significant adverse effects on the victims[^5]. In imposing a first sentence of imprisonment, however, courts should not focus exclusively on principles of denunciation and deterrence and ignore mitigating factors such as the lack of a prior criminal record and evidence of prior good character[^6].
Where an offender has been convicted of several offences, the court may impose consecutive sentences, but the combined sentence should be governed by the principle of proportionality or totality, so that the resulting sentence does not become overly harsh or excessive.
In applying the principle of totality, the court must first identify the core or gravamen of the conduct giving rise to all of the criminal offenses, and then determine the total sentence to be imposed. Once the appropriate total sentence is determined, the court should impose sentences reflecting the seriousness of each offence and then decide whether the sentences for each offence should be made concurrent or consecutive to each other[^7].
Positions of the Parties
The parties agree that the overriding governing principles in this case must be the denunciation of the conduct and the deterrence of others. Both sides agree that on the facts as I have found them, a very substantial period of imprisonment is required.
Mr. Wright, on behalf of the Crown, submits that the appropriate range of sentence is between 12 and 15 years imprisonment, and urges me to impose a sentence at the upper end of that range. Mr. Greenspan, while acknowledging the gravity of the offences, submits that his client should not be judged without regard to the good that he has done in his lifetime. He submits that although his client has been convicted of very grave crimes, he has done much that is good in his life and his otherwise exemplary conduct is entitled to consideration in mitigation of sentence. Mr. Greenspan submits that the appropriate range of sentence having regard to all the circumstances, both aggravating and mitigating, is between 8 and 10 years imprisonment.
Discussion and Conclusion
This case is unique. There are no reported Canadian cases in which an anesthesiologist sexually assaulted sedated patients in an operating room during surgery.
However, general principles of sentencing emerging from the decided cases make it clear that the overriding principles in this case must be denunciation of the conduct and the deterrence of others.
The offender’s moral blameworthiness is at the high end of the spectrum. His conduct did enormous damage and was reprehensible in the extreme. It must be condemned in the strongest of terms.
The court has a duty to send a clear message that reflects society’s abhorrence for the conduct, and serves as a deterrent to others in a position of trust who might be inclined to prey upon vulnerable, sedated patients.
I have concluded that the appropriate total sentence in this case is one of imprisonment for ten years.
The sentences respecting each count shall be recorded as follows: The counts involving forced fellatio (counts 1, 2, 4, 8, 12, 13, 16, & 20): 6 years. The counts involving masturbation (counts 7, 11, 15, 17 & 19): 3 years. The remaining counts, involving breast fondling and/or sexualized kissing (3, 5, 6, 9, 10, 14, 18, & 21): 1 year.
To respect the principle of totality, the 6-year sentences on counts 1, 2, 4, 8, 12, 13, 16 & 20) will be concurrent to each other. The 3-year sentences on counts 7, 11, 15, 17 & 19 will be concurrent to each other but consecutive to the six-year concurrent sentences. The one-year sentences on the remaining counts will be concurrent to each other but consecutive to the 6 and 3-year consecutive sentences, for a total sentence of ten years imprisonment.
I also make the following mandatory ancillary orders: a DNA order under s. 487.051(1); a section 109(1) weapon prohibition order for life; and a lifetime order under the combined operation of Criminal Code ss. 490.012 (1) and 490.013(2.1), requiring that the offender comply with the Sex Offender Information Registration Act.
J.D. McCOMBS J.
Released: February 25, 2014
[^1]: The purpose and principles of sentencing are codified in part XXXIII of the Criminal Code.
[^2]: Criminal Code s. 718.
[^3]: Criminal Code s. 718.1; R. v. Ipeelee 2012 SCC 13, [2012] 1 S.C.R. 433; 280 C.C.C. (3d) 265, at para. 37.
[^4]: Criminal Code s. 718.2 (a)(iii)
[^5]: Criminal Code s. 718 (2) (iii.1)
[^6]: R. v. J.H. 1999 3710 (ON CA), [1999] O.J. No. 1308 (C.A.), 135 C.C.C. (3d) 338 at para. 22.
[^7]: R. v. Jewell; R. v. Gramlick, 1995 1897 (ON CA), [1995] O.J. No. 2213 (C.A.), at para. 27; R. v. R.B. (2013) 114 O.R. (3d) (C. A.). at para 30; R. v. Smith 2011 ONCA 564, [2011] O.J. No. 3832, endnote 2 (C.A.).