Court File and Parties

COURT FILE NO.: 11 – SA5045 DATE: 2016/06/23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v MICHAEL BEATON

BEFORE: Mr. Justice Rutherford

COUNSEL: Jason A. Nichol, Counsel for the Crown Richard Auger and Natalie Scott, Counsel for Michael Beaton

HEARD: February 9-11, 13, 17-19, April 14, 2015, followed by written submissions.

Judgment

[1] Michael Beaton was tried before me without a jury at Ottawa commencing on Monday February 9, 2015. The indictment contained 10 counts. The counts related to five male complainants, all of whom had sought treatment by Dr. Beaton in the course of his practice as a Chiropractor at his office. One complaint related to treatment given at Dr. Beaton’s home, where he carried on a limited practice outside of regular office hours and following the closing of his office practice.

[2] The counts broke down as follows.

1 and 2. Two counts of indecent assault (s. 156) on JM in 1973. 3 and 4. Two counts of indecent assault (s. 156) on RD in 1979-80. 5 and 6 Two counts of indecent assault (s. 156) on AV in 1979-82. 7 – 9 Three counts of assault with intent to commit indecent assault (s. 246(1)) on GO in 1984-86. 10 One count of assault (s. 271(1)) on JP in 2003.

[3] In his closing written submissions, citing the duplicative nature of some counts and the vagueness of the date of the allegations in counts 7-9, together with contemporaneous amendments to a number of provisions of the Criminal Code, Crown Counsel Mr. Nichol asks that findings of guilt be registered on counts 1, 3 and 5, that a finding of guilt for assault simpliciter be registered on count 7, and that count 10 be amended to charge “sexual assault” and that a finding of ‘guilty’ be registered on that count.

[4] Before closing its case in chief, in addition to the evidence of the five complainants, the Crown tendered the evidence of EH in transcript form, as “extrinsic similar fact evidence.” EH was a complainant in an additional count of indecent assault at the time of the preliminary inquiry. EH testified fully and was cross-examined fully during the preliminary inquiry, but died before the indictment was presented and so the count relating to his evidence was not included in it. For reasons given on the record on February 18, 2015, I allowed the transcript of EH’s testimony to be filed as part of the trial evidence, by way of “extrinsic fact evidence.” I admitted the testimony, but said at that time “I do not say that the probative value of the evidence of EH is enormous. I really cannot assess that at this point in the trial.”

[5] The defence then proceeded and Dr. Beaton and a number of defence witnesses testified, including doctor of chiropractic, Carlan G. Stants. I qualified him as an “expert” allowing him to give opinion evidence as to the practice of chiropractic medicine, including examination, assessment, diagnosis, treatment and practice ethics. I had similarly qualified doctor of chiropractic Frazer D. Smith, who gave expert opinion evidence for the Crown.

[6] At the conclusion of the evidence, Crown counsel, Mr. Nicol, filed a motion seeking to have me consider the evidence of all counts and the extrinsic similar fact evidence I had admitted during the Crown’s case, when I assess each individual count and determine whether it has been proven beyond a reasonable doubt. What Mr. Nichol sought was an approach sometimes called “across the counts similar fact evidence.” Argument was made both for and against the motion. On Friday June 5, 2015 I ruled against the motion, explaining in part:

I have given the submissions of both prosecution and defence a lot of thought. There is force to the arguments on both sides. Ultimately, I have reached the conclusion that I should not consider evidence pertaining to anything but the individual count when determining whether guilt has been proven on each individual count. I have even decided that while I admitted the transcript of the evidence of EH as extrinsic evidence of a similar fact nature, essentially to counter a defence of innocent intent or accident, now that the trial has been completed, I am of the view that I should not consider it while considering the individual counts.

Looking now at the whole body of evidence, and in particular, knowing that the accused has no recollection of the alleged treatment incidents, save for one, that would have occurred in a time span of between one and four decades ago and has no file records to consult to assist him, and appreciating that I have complaints of 6 patients on individual treatment visits out of tens of thousands over Mr. Beaton’s practice over 35 or more years, I simply do not feel that there is sufficient nexus or connectivity between the various incidents, or some of them, to give them a great deal of probative value. What has changed since my preliminary ruling on the extrinsic similar fact evidence is the defence evidence of the sheer numbers of the thousands of treatment episodes Mr. Beaton has conducted, versus the relatively small number of complainants. That is not to say that the complaints may not be criminal assaults but it does, in my view, militate more strongly in favour of looking to the evidence of the complaint itself to determine if it amounts to proof of a criminal assault beyond a reasonable doubt. The other side of the coin is that in light of all the evidence, the potential prejudicial value of considering some or all of the complaints when considering any individual incident, threatens to assume greater proportions.

In my view, looking at the case as a whole, there is a real danger, even for a trial judge sitting without a jury, in allowing the kind of similar fact evidence now presented to lead to thinking, consciously or unconsciously, overtly or subtly, that any one complaint may be validated because Dr. Beaton is a man who seems to do that kind of thing. I do not think that the incidents in question in this case bear such particular and highly specific similarity and clear linkage to each other as to move them from likely proof of “propensity” or “general disposition” to the admissible end of the spectrum. In short, I think that the danger of the prohibited line of “propensity” or “general character and disposition” reasoning would be sufficiently real in acceding to the prosecution motion, as to justify my refusing it.

Accordingly, I am not prepared to grant the prosecution motion and will give individual consideration to each count only on the material evidence relevant to that count.

[7] Dr. Beaton was licensed to practice chiropractic in 1965 following graduation from the Canadian Memorial Chiropractic College in Toronto. He closed his practice in Ottawa in 2000, but kept his licence for another 14 years, seeing only a very few patients at his Ottawa residence.

[8] Each of the five complainants related treatment experiences with varying degrees of being touched on or near the genitals while naked or near naked or exposed. I will deal with the factual circumstances in each of the five complainant cases in due course, but think it appropriate to deal at the outset with some of the evidence about the practice of chiropractic that comes in the form of its legislative framework and from the testimony of Drs. Smith and Stants and of other defense witnesses that relate more or less to all the counts.

[9] The practice of chiropractic was first regulated in the province of Ontario in 1925 through the Drugless Practitioners Act (DPA). In 1991, chiropractic became regulated under the Regulated Health Practitioners Act (RHPA).

[10] Under the DPA, the system of treatment known as chiropractic was described in Regulation 229, R.R.O. 1970 as follows:

(2) The system of treatment that may be followed by chiropractors is the treatment of persons by the relief of interference with the normal functioning of the nervous system of the body by the adjustment or the manipulation or both of the articulations and the tissues thereof, more especially those of the spinal column and when necessary with the aid of,

a) exercise; b) light; c) thermotherapy; d) hydrotherapy; or e) electrotherapy.

[11] After 1991, the practice of chiropractic became one of 21 self-governing health professions, each provided for in its own statute, but governed under the provisions in the umbrella statute, the RHPA. The DPA system of treatment was replaced by the following provisions in the Chiropractic Act, 1991, S.O. 1991, c. 21;

Scope of practice

3. The practice of chiropractic is the assessment of conditions related to the spine, nervous system and joints and the diagnosis, prevention and treatment, primarily by adjustment, of,

(a) dysfunctions or disorders arising from the structures or functions of the spine and the effects of those dysfunctions or disorders on the nervous system; and

(b) dysfunctions or disorders arising from the structures or functions of the joints. 1991, c. 21, s. 3.

Authorized acts

4. In the course of engaging in the practice of chiropractic, a member is authorized, subject to the terms, conditions and limitations imposed on his or her certificate of registration, to perform the following:

5. Communicating a diagnosis identifying, as the cause of a person’s symptoms,

i. a disorder arising from the structures or functions of the spine and their effects on the nervous system, or

ii. a disorder arising from the structures or functions of the joints of the extremities.

2. Moving the joints of the spine beyond a person’s usual physiological range of motion using a fast, low amplitude thrust.

3. Putting a finger beyond the anal verge for the purpose of manipulating the tailbone. 1991, c. 21, s. 4.

[12] Dr. Frazer Smith, the chiropractic expert called by the Crown, was licensed in 1997 and has practiced ever since. He has also been involved in the governance of the practice in Ontario, in which almost 5000 practitioners are licensed. He has been a “peer assessor’ and Chair of the Ontario College’s Quality Assurance Committee, and of the Fitness to Practice Committee; Pre-hearing Conference Chair for discipline cases; and a member of the Board of the College of Chiropractic for Ontario. He testified that he had knowledge of the scope and parameters of practice both in the era of the DPA and of the RHPA. Dr. Smith’s view was that the scope of chiropractic has remained largely consistent in Ontario over its past 89 years of regulation. In a portion of his written report drawn to the Court’s attention, he wrote,

Four of the five complaints occurred when chiropractic was regulated under the DPA. During this time period there was little direction provided to the profession regarding guidelines or standards of practice. The majority of the communication from the Board of Directors of Chiropractic came in the form of a 4-5 page typed annual report that would provide vague details of discipline findings and/or complaints. In general, the membership was held to a vague standard and any complaints that led to discipline were judged by a panel of the board composed of professional (chiropractors) and public appointed members.

[13] In the RHPA era, the College of Chiropractors of Ontario appears to have published more detailed policies and materials relating to the standards of practice than had previously been the case. For example, in 1995 the College promulgated a practice guideline and direction to the profession which included such things as,

A chiropractor must provide a satisfactory explanation of a procedure to a patient prior to conducting any examination or treatment procedure that could reasonably be misinterpreted by the patient as being sexually abusive.

Chiropractors must recognize that patient controls consent and:

• The patient is entitled to know why, where, and when he/she is to be touched; • Consent may be withdrawn at any time during a procedure; • Agreement, acquired verbally or non-verbally, is required before a patient may be touched;

The following year, another guideline dealing with robing or gowning was distributed, saying,

• Inform the patient to only remove clothing that would materially impede a thorough physical examination of the spinal column and pelvis or any local area the doctor may wish to examine [e.g., shoulder]. • Direct the patient to put on a gown opening to the back.

[14] While the development in published guidelines was significant, that is not to say that prior to such publications, it was open season in chiropractic for all less sensitive, more intrusive and even abusive treatment modalities. Indeed, I think it reasonable to find that at least decades back into the last century, it was generally accepted in health care practices of all kinds that measures to avoid embarrassment and discomfiture to patients were the norm, including keeping the body clothed or covered and limited exposure and touching of sexually sensitive areas to what was reasonably required for the legitimate treatment required. That is not say, however, that practices that did not adhere to such norms were per se criminal.

[15] In his evidence in chief, Dr. Smith adopted from his written report a passage saying

With my knowledge of treatment and examination techniques it is difficult to hypothesize the reason that a chiropractor would find necessary to expose a patient’s genitalia for the purposes of examination when all of the pelvis structures can easily be palpated through the underwear or a gown.

[16] Dr. Smith did, on cross-examination, concede that an inadvertent touching of a patient’s testicles, penis or scrotum by a chiropractor was possible as a result of an appropriate perianal muscle palpation in the area between the anus and scrotum. He also agreed that a chiropractor might appropriately apply pressure to the symphysis pubic at the base of the pubic bone above a male’s penis, and that some pain would be caused by that. Dr. Smith did not agree with suggestions that chiropractic properly extended to examining male testes for such things as an inflammation called orchitis, or for testicular torsion. Although he conceded that chiropractors do encounter hernias, he was of the opinion that touching a male patient’s testicles to test for testicular hernia was beyond the proper scope of chiropractic.

[17] Dr. Carlan Stants, the defence expert was licensed as a Chiropractor in Ontario following graduation from the Canadian Memorial Chiropractic College (CMCC) in 1988. In addition to his practice experience, he taught at the CMCC on a part-time basis over 14 years, and has been involved in number of national bodies “…with regards to chiropractic governing, ... scopes of practice and chiropractic specialties.” He clearly took a more expansive view of the proper scope of the practice or chiropractic than did Dr. Smith. He agreed with what Dr. Smith wrote (set out in the previous paragraph) but went much farther, often qualifying his answers about the propriety of the way Dr. Beaton is said to have treated the complainants, with such phrases as “not ideal,” “in the modern era” or “in this day and age.”

[18] Further, Dr. Stants ascribed a much broader role for chiropractors in looking out for, identifying, or assessing dysfunctions or disorders well beyond those arising from the structures or functions of the spine and their effects on the nervous system from the structures or functions of the joints of the extremities. In his view, chiropractic extended to identifying disorders ranging from inguinal hernias to meningitis, mumps, spinal tumours, and even polio.

[19] Dr. Stants described several clinical situations in which he said a chiropractor might touch a male patient in the area of the genitalia, for proper assessment, diagnostic or treatment reasons, including examining for mumps, meningitis, polio, spinal cord tumour, testicular hernia, orchitis, or for checking such neurological responses as the perianal or the cremasteric reflexes. Across the board, Dr. Stants was unwilling to express an opinion that anything Dr. Beaton did was inappropriate. At worst he characterized some of his actions as “less than ideal.”

[20] On the other hand, Dr. Smith was prepared to characterize some of Dr. Beaton’s complained of treatment as inappropriate for chiropractic, and to hold the practice to a scope more restricted to the statutory prescriptions described earlier. While I don’t generally accept or reject either expert’s views categorically, my assessment of the testimony of them, particularly where they are in disagreement is perhaps best described in paragraph 86 below.

[21] Dr. Beaton testified in his own defence. He testified that after closing his office, his files were all destroyed and that being without his “charts” and having no specific memory of any but one of the individual patient visits in question, the complaint in count 10, he could not say specifically what had occurred during those treatment sessions. He did not expressly deny the allegations of impropriety, other than by saying that he carried on his practice according to appropriate professional standards of the day. He testified that those standards would include the possibility of touching a patient in the genital area for clinically appropriate purposes. He said that he would not have ventured into such sensitive areas without communicating his intent in advance. He said that exposing the genital area was not rare in his experience, and would occur for testing or examining for such things as hernias, reflexes and pressure points. Whether not having access to his medical charts with notes relating to his dealings with the specific complainants is to the advantage or disadvantage of Dr. Beaton is uncertain, but it is a factor I will bear in mind in dealing with the individual complaints.

[22] Other evidence bearing more or less on all counts came from defense witnesses who had worked for Dr. Beaton, or had been treated by him and in two cases both. Ms. J. Wallace was Dr. Beaton’s receptionist and office clerk from 1980 to 1990. She recalled no patient complaints and described Dr. Beaton as “professional, honest and trustworthy,” and having a good rapport with his patients. She said they had gowns for the patients, noting that she had to fold them.

[23] Mrs. J. Wohler was Dr. Beaton’s receptionist and office clerk from 1990 to 1999. She and the members of her family were all patients of Dr. Beaton as well. She too said there were gowns for the patients but that “…we became lackadaisical later if people were wearing thin clothing.” She described the office atmosphere as congenial and friendly, and that patients called Dr. Beaton “Mike.” She recalled no patient complaints. She recalled that there were from 40 to 50 patients a day, around 200 per week. She described Dr. Beaton as “honest, trustworthy, professional,” and “low-key and friendly.”

[24] Ms. M. Whitfield said that she, her mother and her two young children were all patients of Dr. Beaton. She was his receptionist and office clerk in the late 1970s, and covered as a back-up for his regular receptionists after that until becoming his full-time receptionist and office clerk again in the final year before Dr. Beaton closed his office. She too described the practice as busy, growing and the atmosphere as friendly and relaxed. She described Dr. Beaton as “honest and trustworthy” and with a good reputation as a chiropractor. She recalled only one complaint about him from a male patient who said Dr. Beaton was “rough” in treating him. She said Dr. Beaton had integrity, was compassionate and a good friend. “I wouldn’t let any other chiropractor put a finger on me,” she said.

[25] Finally, there was former patient Mr. R.E. Lecompte, whose father, mother and sisters had all been patients of Dr. Beaton as well. Mr. Lecompte said he had been treated by Dr. Beaton “easily” a hundred times, including some 20 times at Dr. Beaton’s residence. He described Dr. Beaton as a “gentle giant… a really nice man,” and said “If I could have a second father, he’d be the guy.”

Mr. Lecompte testified that Dr. Beaton had massaged him, on occasion, but always while he was fully clothed. He described a treatment modality that Dr. Beaton used on him a number of occasions,

…where I would have to lay on my back and he would actually have to get into the crotch area to manipulate a pressure point and this type of thing, um, to release the – the diaphragm from which [sic] I understand.

He described the location of this “pressure point” as in his crotch area, “between the thigh and the scrotum.” This treatment modality was always done while Mr. Lecompte wore underwear. He said that Dr. Beaton would sometimes ask him to lower his trousers slightly, in order to expose the lower back area, but never his underpants. He explained,

…it was the first two times I would’ve had to maybe take the pants down a little bit, not completely off, but just down enough to be able to get to my back area, to be able to feel what was going on…But again, it was just kinda, you know, pull them down a little bit so I can get to the point and that was it. Not the underwear by the way, just the pants.

When asked whether Dr. Beaton ever made contact with his (Mr. Lecompte’s) penis during any of the visits, he replied, “No, definitely not.”

[26] I will have the testimony of these witnesses in mind too as I consider the evidence of the individual complaints. I shall have to bear in mind however, that good character evidence may have limited value in cases of alleged sexual misconduct committed in private. As well, the fact that a health care practitioner did not abuse some patients is of virtually no weight upon inquiring whether there was abuse to others. See: R v Tyrrell (2001), 151 C.C.C. (3d) 50 (Ont. C.A.) at paragraph 49; and R. v. R. (B.S.) (2006), 81 O.R. (3d) 641 (C.A.) at paragraphs 74-78.

[27] I will turn now to the five individual circumstances based on which the prosecution calls for findings of guilt in accordance with Mr. Nichol’s submissions as set out above in paragraph 3. I deal with them in the order the counts are numbered. In my dealing with each individual case, I have considered only the circumstances of the particular case, as well as such of the evidence I have already outlined in paragraphs 7 through 24 that is generally applicable to all the counts. I am well aware of such generally applicable legal principles as the presumption of innocence, the burden of proof beyond a reasonable doubt on the prosecution and the elaboration on such principles as have been made in such leading authorities as R. v. Lifchus, [1997] 3 S.C.R. 320 and in R. v. W. (D.), [1991] 1 S.C.R. 742.

[28] Insofar as the concept of “assault” involved in the counts is concerned, given that chiropractic inevitably involves the application of varying degrees of force to a patient during examination and treatment, there is an implied consent on the part of a patient to legitimate elements of chiropractic. If, however, the hands-on activity falls outside the reasonable bounds of legitimate professional treatment, it may, depending on the circumstances, assume the character of criminal assault, and possibly indecent or sexual assault. Whether the latter be the case depends upon an assessment of the circumstances in which the assault takes place and if an indecent, sexual or carnal context of an assault is visible to the reasonable observer. R. v. Chong (1914), 23 C.C.C. 250 (Ont. C.A.); R. v. McKeachnie (1975), 26 C.C.C. (2d) 317 (Ont. C.A.) and R. v. Chase, [1987] 2 S.C.R. 293.

The Complaint of JM

[29] JM, now 53 years of age, testified that his father owned the building on Baseline Road, in Ottawa, in which Dr. Beaton rented his office space. One day summer day in 1973 when he was 12 years old, JM complained of a sore neck to his mother. She suggested that he go and see Dr. Beaton. He did. He told him about his sore neck, and was taken into an examination room where Dr. Beaton told him to strip to his underwear and lie on the bench. In his statement to police JM said that Dr. Beaton had made some initial small talk, including having told him “I am just going to check you out.”

[30] JM said that Dr. Beaton then pulled his (JM’s) underpants down to his knees, moved his penis from one side to the other and manually examined his scrotum, anus and buttocks. He then pulled JM’s underpants back up and told him to sit up. Then Dr. Beaton said that JM had a cold and proceeded to give him a rub-down on his back, chest and stomach, with some lotion.

[31] JM testified that after the sexual touching, it was a blur. He said he was having a panic attack. He was unable to recall with any certainty whether he actually was given any treatment in the neck area. “As soon as he touched my private parts, - I really can’t recall what all happened,” he said. JM left the office and described his feeling once outside that something fundamental had changed and he would never be the same. From that point on, JM described his life spiralling downwards. His good school performance declined drastically. His sociality declined to the point of serious introversion and reclusiveness. He became highly anxious and fearful of social events.

[32] About 6 months after his session with Dr. Beaton, realizing that his outlook on life had seriously deteriorated, JM decided to go back and seek answers from Dr. Beaton as to what was wrong and why he had become so anxious. He said that Dr. Beaton passed his questions off by saying that he too, became nervous on meeting new patients, and then, asserting that JM had a cold, Dr. Beaton again rubbed him down, front and back, with lotion. There was no examining or touching in the genital area this time, or any discussion of what had occurred on the earlier visit. JM departed, and had no further significant contact with Dr. Beaton.

[33] JM acknowledged in cross-examination that he was the 6th of 10 children and that his father was an alcoholic who physically abused his mother and some of his siblings. He said he was aware of this since he was between 4 and 6 years old. He said that his father “binged” and there were cycles of improvement and deterioration in his abusive behavior. The abuse extended at least into his mid-teens and JM described it as upsetting, damaging and traumatizing to him. He himself abused alcohol and from time to time, particularly in his teens and 20s, experimented with drugs, including cannabis, cocaine, lysergic acid, mescaline, amphetamines, psilocybin mushrooms and Ecstasy.

[34] Over the years that followed, his relationship with his parents and siblings deteriorated and he became seriously afflicted with a number of psychological and behavioral disorders. Although he succeeded in obtaining university B.A. and B.Ed. degrees, and becoming a special education teacher, he eventually became unable work and went on long-term disability. He has been treated and examined by a number of health practitioners over a long period, and has been diagnosed as suffering from a variety of disorders, including ADD/ADHD, panic attacks, depression, anxiety, PTSD, and obsessive/compulsive disorder. JM attributes many of his disordered behaviors as having been influenced, possibly triggered, but certainly exacerbated by what happened to him in Dr. Beaton’s office.

[35] He never disclosed the sexual touching to anyone until mentioning it generally to his first wife, who, appeared to take no interest in it. Some years later, his second wife and he watched the movie “Doubt,” a story involving a suspected sexual abuse of young schoolboy. JM disclosed to his wife what had happened. Later, in a letter written in 2009 or 2010 (exhibit 2), he told one of his sisters. Both women reacted and urged JM to tell the police, which he did sometime in 2010. It was his complaint that led to this prosecution, and when charges were laid, the other complainants read about it in the local newspaper and also contacted police. He also sought compensation from the Criminal Injuries Compensation Board and is pursuing a civil claim for damages against Dr. Beaton.

[36] Over the years, and more intensively since disclosing what happened in Dr. Beaton’s office, JM has sought counselling and other therapeutic assistance, and has been assessed by numerous health professionals, including a family physician, psychologists and psychiatrists.

[37] The defence position is that the brief examination of JM’s genital and anal area was, particularly by the practice standards of the time, an acceptable general examination of a patient presenting with an unspecified cause for neck pain. In referring to JM’s complaint, Dr. Carlan Stants said,

I think given the time frame, and the age of the patient and the presenting complaints that it would have been highly appropriate for him to have done the examination that he did.

Detecting the possibility of ‘mumps’ was his principal justification for this. He explained that,

[In] 50’s , 60s, and 70s higher incidence of different types of like mumps, measles, chicken pox, that sort of thing, … So the, the thing is, is that a patient presenting in ’73, 12 year old male, you know, maybe had a cold or presenting with an issue of cold symptoms, one of the things that, of course, you want to include amongst your differential diagnosis is, does the patient potentially have mumps.

He said that in 1973 time frame that line of inquiry was permitted by chiropractors, and added that,

As a matter of fact, when I was training at the Canadian Memorial Chiropractic College in the 80s we were taught how to do testicular examination, we were taught how to do a prostate examination, we were taught how to do perianal examinations.

[38] I have given the evidence relating to this count and the submissions on both sides much consideration. Ultimately, each time I review the count, I fall short of the certainty we tell juries they must have before finding proof beyond a reasonable doubt. I have never been able to say that I am sure that Dr. Beaton indecently assaulted JM in his 1973 treatment of him. While JM gave his evidence forthrightly, the events in question happened a long time ago, when he was only 12 years old. His childhood was a troubled one involving by his own admission, traumatizing, physical abuse in the family. He has experienced substance abuse and extensive psychological instability. There is room for some doubt about the reliability of his account. The consequences he attributes to what on the spectrum of sexual assault lies closer to the minimal pole by far than to the maximal end, are very difficult to appreciate in the absence of expert analysis. Then there is the evidence that in the DPA era, the practice standards for chiropractors were somewhat vague compared to the practice publications in the subsequent RHPA era. Although I look pretty skeptically at Dr. Stants’ evidence about full physical examination including probing the genital area upon presentation of a complaint of a sore neck, it is part of the evidentiary picture.

[39] Whether Dr. Beaton advised JM he was going to examine his genital and anal region is somewhat uncertain. JM doesn’t recall any such advice, he conceded that there was some conversation but cannot recall what it was about. He recalled it as small-talk. Finally, it must be noted that when JM returned for a second session with Dr. Beaton, he did not successfully seek answers as to his anxiety about the first visit, and there was no repeat behavior of the complaint.

[40] I do not say I reject JMs account or necessarily disbelieve him. On the other hand, I do not feel that in light of all the circumstances I can say that I have no reasonable doubt as to it. I cannot say I am sure an offence was committed. If the examination did proceed as JM recalls, it would certainly be a most inappropriate bit of treatment at the very least. But there is room for some doubt, in my view, that there was an indecent assault. Accordingly, I find Dr. Beaton “not guilty” on count 1. In light of the Crown submission set out in paragraph 3 above, count 2 is also dismissed.

The Complaint of RD

[41] Now 69, RD was a high school teacher and wrestling team coach. He testified that at about age 35, in the fall of 1979, he took a ‘bad throw’ during wrestling practice and injured his neck seriously. He was having real mobility problems and, on someone’s recommendation, sought chiropractic treatment from Dr. Beaton in or about December 1979 – January 1980. He recalled going to Dr. Beaton’s Baseline Road office about eight times over a period of weeks. He described Dr. Beaton cracking his neck and back and rubbing his muscles, producing what he called “short-term” relief. He described the treatments as similar, one session to another, and although with a lot of physical contact, nothing that made him uncomfortable or that seemed abnormal to him.

[42] On the 5th or 6th visit, however, RD said things became different. There was more rubbing, touching and hand movement. The contact was different. Dr. Beaton rubbed his groin area on RD’s shoulder area for a few seconds. While on his stomach with his face down, RD said he felt Dr. Beaton’s groin area against his head and shoulder and realized that Dr. Beaton had an erection. Then, Dr. Beaton had him lie on his back and, for the first time, began to work on the front of his body, his shoulders and his chest.

[43] On his 7th visit, after cracking and aligning his neck and back, Dr. Beaton had RD turn over and put his hands on his chest. Dr. Beaton told him there was a new technique by which he could find stress in the body. Dr. Beaton unbuckled RD’s belt, unzipped his fly, and began rubbing his stomach. RD said he was feeling very uncomfortable about what was going on. Dr. Beaton’s hands went in the area of RD’s undershorts and then underneath the shorts in contact with his penis. His right hand “grabbed, groped, and took hold of RD’s penis and testicles.” At that point RD grabbed Dr. Beaton’s hand from his penis and testicles and yelled, “What the fuck are you doing? The pain is in my neck not my groin.” Dr. Beaton again offered that this was a new technique to find tension in the body, and RD responded, “Bull shit! Get the fuck out of this…” and jumped up. He described his being in shock, thinking he had just been abused and that what had happened was not normal and not right. “Are you gay?” he asked Dr. Beaton, who replied “No.” RD testified that he was in a rage, and gave him a little speech.

[44] He buttoned up but said he would return for one more adjustment the next day but it would be the last one. On the last visit, Dr. Beaton did the normal cracking of the neck and back but there was no rubbing or other touching. RD had no further contact with Dr. Beaton and told no one about the events until, after reading about the complaint made against Dr. Beaton giving rise to these proceedings, he decided to go to the police with his account.

[45] Dr. Smith, the Crown’s expert said this about the RD account.

Again, I would, I would just reiterate that, you know, contacting any patient’s genital area is absolutely inappropriate. It’s out of the scope of practice of chiropractic, you know, under the DPA and the RHPA, and, you know, I’ve studied numerous techniques and examined a lot of techniques as part of my role at the, the College of Chiropractic and, and there’s no such technique that would require you to do that.

[46] When asked about RD’s complaint, Dr. Stants’ response was,

Again, if you are looking at potentially problems, okay, cord problems, and we’ve talked about that before are things like abnormal reflexes may be a rationale for it. Potentially things like hernia, okay, would be another potential explanation for it.

[47] The defence position on this count was that RD had never been to a chiropractor before and may have misunderstood Dr. Beaton. Although it was suggested that it might have been something in his pocket, his wallet, a reflex hammer or something of that sort, RD insisted that it was an erection he felt as Dr. Beaton pressed against him. He did concede that Dr. Beaton may have explained why he was grabbing, groping and taking hold of his penis and testicles as he actually did so. That, it seems to me, makes no difference in the nature of the act.

[48] There is simply no evidence that gives chiropractic or other justification to Dr. Beaton’s actions, as described by RD. I found RD to be a very compelling witness. He gave his evidence forcefully, effectively and clearly. He was not shaken on cross-examination nor do I find his keeping silent about the matter for some 35 year surprising. He could have made an immediate complaint. But I find it unsurprising that a 35 year old high school teacher and wrestling coach would prefer to bury such an embarrassing experience instead. Nor am I inclined to find RD’s account less reliable for his going back one more time for a final, but uneventful last treatment. His reaction on the penultimate treatment was clear, forceful and unequivocal and there would certainly be no repeat misconduct of the sort he described on the final visit.

[49] Dr. Beaton, as noted earlier, had no recollection of the treatment of RD, and his file records could hardly be of any help against this complaint. Believing RD’s account, as I have no hesitation in doing, there is no reasonable doubt in my mind that Dr. Beaton indecently assaulted RD in grabbing his penis and testicles in his bare hand underneath RD’s underwear. I find Dr. Beaton “guilty” on count 3 and in accordance with paragraph 3 herein, I dismiss count 4 against him.

The Complaint of AV

[50] Now 53, AV sought chiropractic treatment from Dr. Beaton while he was a student at Algonquin College between 1979 and 1982. AV had neck and back problems as a result of very heavy lifting work, and Dr. Beaton was recommended to him by his mother and his aunt. He recalled visiting Dr. Beaton twice. He recalled Dr. Beaton working on his back and his front, with AV stripped down to his underwear. He testified that on the first visit, while on his back, Dr. Beaton manually fondled his testicles for about ten seconds. He could not recall clearly whether it was underneath or through his undershorts. Nothing was said about it, but AV said it was not nice and he tried to blur it out of his mind. He dressed, and departed, but made a further appointment.

[51] On the second visit, about a week later, AV described the same sort of treatment, including a further fondling of his testicles by MB, underneath his undershorts, for about 10 seconds. AV did not go back again, but testified that although he didn’t like it and felt it had no place there, he didn’t complain because he assumed what Dr. Beaton did to him must have been appropriate treatment, since “Dr. Beaton was a professional.”

[52] I found AV to be a totally credible and reliable witness. Dr. Beaton had no recollection or records relating to his treatment of AV. When asked about the fondling of AV’s testicles underneath his undershorts, Dr. Stants replied,

Yes, I think it could have been very appropriate.

[53] He explained that it could have been related to detecting a herniated disc, an umbilical or an inguinal or a testicular hernia. The problem with Dr. Stants’ opinion is the total absence of any supporting evidence that there was any indication or discussion about hernia, especially testicular hernia, herniated disc, or any indication by Dr. Beaton of what he was going to do or why. The fact that the same fondling of testicles under the underpants occurred on the second visit simply puts the lie to the suggestion that this was legitimate exploratory examination.

[54] In my view, in all the circumstances, the treatment conduct of Dr. Beaton in the case of AV is nothing more than an unauthorized and unprofessional groping in indecent circumstances and amounted to an indecent assault on him. The fact that AV may never have realized that Dr. Beaton’s conduct was not legitimate or authorized treatment does not lessen the criminal nature of the acts. I find Dr. Beaton “guilty” on count 5 and dismiss count 6 in accordance with paragraph 3 herein.

The Complaint of GO

[55] Now 61, GO suffers from cerebral palsy as a result of pre-birthing brain injury. “What is sometimes referred to technically as “spastic quad,” his condition involves severe involuntary muscle contractions and concordant difficulty with voluntary motor control over his skeletal muscle structure. He ambulates with the assistance of crutches. He sought chiropractic treatment from Dr. Beaton for a severe and painful “kink” in his neck over several months in late 1984 and into 1985. The neck problem was so severe it interfered with his ability to get around.

[56] GO described four visits. On the first visit, he recalls manipulation to his neck. His partner, BG, who had driven him to his appointment, was with him during the treatment.

[57] On the second visit, Dr. Beaton suggested that it would be preferable for BG to wait out in the waiting room while he treated GO. GO testified that early in the course of the treatment, while he was lying on his back, without warning or explanation, Dr. Beaton pulled the sweat pants and underpants he was wearing down to his mid-thigh. GO was embarrassed at being so exposed, and more so when Dr. Beaton questioned him about his shaven pubic region, asking why it was shaved, who did it, and with what instruments.

[58] GO then described Dr. Beaton pressing down very hard with two fingers on the area between his pubic bone and the upper base of his penis. Finding it very painful, GO cried out, and says he might even have almost lapsed into unconsciousness from the pain. After a short recovery period, Dr. Beaton repeated the procedure, causing such pain that GO yelled and moaned, but apparently drawing no response from Dr. Beaton.

[59] GO testified that on the third visit, Dr. Beaton repeated this painful procedure, causing him “paralyzing pain.” GO also described Dr. Beaton bending his knees up and cradling him in what he described as a sort of reverse bear hug, causing him great discomfort and leaving him in pain as a result of it for several days. On the fourth visit, the painful pressure prodding below the pubic bone was repeated.

[60] The visits occurred over a period of months and while he suffered great pain from the pubic bone prodding by Dr. Beaton, GO testified that he never questioned the many health professionals he was treated by, trusted they were doing what they, as professionals, felt was proper for his health benefit. However, he decided to terminate his treatment at the hands of MB and never sought chiropractic assistance again.

[61] The evidence of GO’s partner, BG, was put before the court in the form of her videotaped interview with Det. Cst. Andrea Giampaolo on April 14, 2001. Counsel for the Crown and the defense agreed to the evidence going in this way.

[62] BG herself had received treatment from Dr. Beaton, and made the initial appointment for GO. She really had little helpful evidence other than what GO told her. She recalled that GO’s problem was a frozen shoulder and that on one visit, Dr. Beaton “cranked” GO’s back leaving him with pain for some time. She also had been told of the pubic bone pressure and wondered why anyone needed to touch him in that area.

[63] Both experts, Dr. Smith for the Crown and Dr. Stants for the defence gave evidence as to the treatment given by Dr. Beaton to GO. The reverse bear-hug would appear to be a technique known as an anterior thoracic adjustment. Dr. Stants called it “appropriate, given the presenting complaint.

[64] Both experts agreed that the putting of pressure on a point at the edge of the pubic bone just above the base of the penis was also a recognized chiropractic “active release technique” and that it could produce considerable pain. Dr. Smith considered it to be within the normal context of a chiropractic treatment procedure, while Dr. Stants said the following about its use in GO’s case.

Pressure over the pubic area most likely I’m assuming that, and I think it would have been highly appropriate for, for Dr. Beaton should have done more of a, a full spine assessment of this patient, and that if there were pelvic abnormalities that to have pressed on the symphysis pubis, okay, which is anterior part of the pelvis. He would have been looking probably specific for things like trigger point therapies or assessment of the, of the abdominal musculature.

[65] Dr. Smith conceded that pubic bone pressure could possibly be justified in the case of a neck pain complaint. He called it “a bit of a stretch” but allowed that

There are certain techniques that certainly work far away from the neck that might be used to correct a structural problem in the pelvis that, that could, you know, ultimately affect the neck so it is plausible.

[66] Dr. Smith’s criticism, however, was that GO had been rendered naked in the genital region at the time. He said,

The issue really for me, and I think we would find at what I would experience at the college, a nature of an interaction like this that involved exposing that member’s, you know, genitals, would never be appropriate. It’s just not customary for any chiropractor to do this, particularly in light of the pubic bone is very easily palpated through clothing, you know. A reasonable chiropractor knows that anatomy very well, and, you know, a reasonable chiropractor also knows that it’s a very painful region, and when delivering this kind of a treatment there needs to be quite a bit of verbal, you know, consent and communication about what’s going to happen.

[67] When asked about skin-to-skin contact with a patient’s pubic bone as opposed to touching through a gown or the patients clothing, Dr. Stants’ response was,

Well, chiropractic is a manual technique, and very often we are required to have skin on skin contact in order to do the various techniques and things like that that we do.

As to the skin-to-skin touching in GO’s case, he said.

I think that it would have been appropriate.

[68] I think I need not consider the element of nakedness, including Dr. Beaton’s inquiry about GO’s shaved pubic region. Dr. Beaton hypothesized over concern about the kind of razor used and the possibility of serious self-injury because of GO’s muscle spasms, but since the prosecutor, Mr. Nicol calls only for a finding of simple assault in the case of GO, I need only consider the nature of the force applied by Dr. Beaton in pressing on GO’s pubic bone. That is the focus of Mr. Nicol’s written submissions on this count.

[69] Some attention was focussed at trial on GO’s assertion that on each visit, it was Dr. Beaton who, without warning, pulled his pants, including underpants, down to his mid-thighs. Dr. Beaton testified that unless the patient needed some assistance, he would expect the patient to do any disrobing necessary. Dr. Smith said that in chiropractic, exposing the genital region was just not part of proper chiropractic procedure. As for Dr. Stants, the following exchange took place during cross-examination.

Q. So you think that’s an appropriate discussion that a chiropractor should have with a, with a male patient about a shaved pubic area? A. I think, I think it falls within the scope. Q. Okay. And you’ll note that right below that it notes that Mr. Beaton pulled down the patient’s pants and underwear to mid-thigh while the male was lying on his back. And I want you to assume that the doctor did that without telling the patient he was going to do that. Do you think that was appropriate? A. Maybe not ideal but certainly not inappropriate. Q. Not inappropriate. You think a chiropractor with no notice to a patient yanks down someone’s pants and underwear to mid-thigh exposing their genitals and you think that’s appropriate? A. What I’m saying is it’s not the ideal scenario. Q. No, it’s far from ideal. I’m suggesting to you it’s inappropriate. That should not have happened without communication, do you agree? A. I think that better communication could have been, could have been communicated but I don’t think that there was anything that was necessarily inappropriate with him.

[70] On the basis that the focus of this count was dealt with by counsel, I will leave the pulling down of GO’s pants as a matter of practice propriety, and for purposes of the question of criminality, focus on the pressing on the edge of the pubic bone.

[71] GO testified that he returned to Dr. Beaton a number of times and endured the pubic bone pressure technique repeatedly because he trusted what Dr. Beaton was doing, as a professional, was proper for his health benefit. It may be that there should have been much better communication from Doctor to patient, and more sensitivity to the patient’s pain; however, in light of the evidence about both the reverse bear-hug and the pubic bone pressure point being within the range of appropriate chiropractic procedure in GO’s situation, I think I have to conclude that there was not a criminal assault in this case. Counts 7-9 are dismissed.

The Complaint of JP

[72] Now 57, JP testified that around 1989, in his mid-thirties, he began to receive chiropractic treatment from Dr. Beaton and continued to do so frequently until an incident in the winter of 2003-04 following which he ceased to have any contact with him. He testified that other than this one incident, Dr. Beaton seemed to be professional and respectful, exhibiting no other inappropriate conduct and delivering some relief to him over the years. JP’s problems for which he sought chiropractic help included disc deterioration in the neck and lower back, and arthritic joint deterioration in his hips, knees and ankles. He testified that he was arthritic in all his joints.

[73] JP said that he sometimes went to Dr. Beaton’s home for treatment, sometimes without even a prior appointment, and described Dr. Beaton as willing to tend to him if he was home. On occasion, he had even found Dr. Beaton next door at his neighbour’s house but willing to come and tend to JP on a large, custom-made oak coffee table in front of the fireplace in Dr. Beaton’s living room. JP said that he had gone to Dr. Beaton’s home for treatments on 20 to 30 occasions over the years.

[74] On the night in question, after working at Home Depot, JP testified that he stopped at Dr. Beaton’s home and was taken in for treatment by Dr. Beaton. After some adjusting on the oak coffee table, Dr. Beaton told him he was really tense, and needed massage. JP said he had received massage treatment from Dr. Beaton previously, but in his office. Dr. Beaton told JP on this occasion that in order to adjust him, it would be necessary to get his muscles relaxed.

[75] Dr. Beaton suggested that JP go into his bedroom, remove his clothing and lie on the edge of the bed. It was the first time that JP had been asked to take off all his clothes during treatment by Dr. Beaton. While JP lay naked on his stomach, Dr. Beaton proceeded to massage his neck, back, hips, buttocks and legs, using some kind of gel or lotion. He then told JP to lie on his back. He massaged JP’s neck and chest and down to his genital region area. He massaged his buttock area, shaking his hips from side to side with a resultant back and forth motion of JP’s penis. JP described it “…as if he was trying to get a reaction from the movement of my penis.”

[76] As Dr. Beaton moved his hands, palms down, from one side to the other of JP’s upper legs, JP described Dr. Beaton’s whole hand surface and fingers coming in contact with his penis in a brushing or sliding fashion enduring a second or two. “I don’t feel that the penis contact was inadvertent,” said JP. “He was testing me for reaction to see if he would continue.”

[77] JP described the situation as increasingly uncomfortable, inappropriate, even though he had always trusted Dr. Beaton’s professionalism. He broke off the treatment, telling Dr. Beaton that he was now feeling fine. He dressed and went home. He had no further contact with Dr. Beaton.

[78] This was the one case that Dr. Beaton could recall. He accounted for that on the basis that he and JP had become good friends. He said he had treated JP hundreds of times over the years. His recollection was that after adjusting JP on the coffee-table-cum-treatment bench, JP complained he was still sore in the back and joints, and that he told JP that he couldn’t do further adjustment but could give him massage therapy and sent him into the bedroom and told him to lie on the bed. “I told him it was up to him whether he took off his underwear,” Dr. Beaton testified.

[79] Dr. Beaton said that at Chiropractic College he had been taught about house calls and that they were told to use whatever was available, table, bed, etc. He explained that his home was eight miles from his office and that he had developed a practice of using his large, custom made oak coffee table as a treatment bench in the case of after-hours calls. “Patients were happy with that,” he explained. “I treated lots of them on that coffee table.”

[80] According to Dr. Beaton, he massaged JP’s back from his neck to the base of spine, and his shoulders and legs. He had him roll over and massaged his neck, shoulders and rib-cage area, and his thighs and lower legs. “His hip joints were very tender,” he said, so he shook his hips, working the muscles around the hip joints. At one point near the end of the treatment, in reaching across JP to get at the far thigh, the base of his palm on one hand touched JP’s penis. His intention was to touch the muscle on the other thigh. “It was not for a sexual purpose. I had no interest in him. I never had a sexual interest in my patients – no touching with sexual interest in mind,” said Dr. Beaton.

[81] Dr. Beaton said he had treated about 10 patients on his bed over time. None before the JP episode were completely naked. “It was probably completely inappropriate but they were people who didn’t mind,” he testified. What I did with JP “was probably crossing the proper boundaries.” He noted that by 2003, “…after the rules changed in 1995, I agree I was in breach of the rule. But this was the first time I did it after 1995.”

[82] The count in relation to JP’s complaint charges simple assault. However, as noted in paragraph 3 herein, the prosecution asked that the count be amended to charge sexual assault. Mr. Nichol, the prosecutor, says that throughout the proceedings this count was always dealt with as a “sexual assault.” The original information alleged sexual assault for this count and the defence treated it as such at the preliminary inquiry and subsequently. I see no prejudice to the defence in making the amendment and there was no argument about it. The amendment is therefore made.

[83] Although he conceded that in the broad treatment context, some chiropractors provide massage treatment, when asked about doing so in the bedroom, Dr. Smith said,

…it’s a very inappropriate area to conduct a treatment. It’s certainly unexpected, and I would certainly, myself, I would say that’s inappropriate.

…and with the patient completely naked? Dr. Smith replied,

Never.

…and for either a male or female patient to remove or expose their groin or genital region? He replied,

It just doesn’t happen.

[84] When asked in chief for his opinion as the propriety of Dr. Beaton’s treatment of JP, Dr. Stants replied,

I think in this situation, clearly there had been numerous occasions where the patient had been treated both in Dr. Beaton’s practice but also in his home. Again, looking at the, the time frame and not having access to the other clinical notes and records, I can see where while perhaps not an ideal scenario that the treatment rendered would have been appropriate.

[85] His attention was drawn to the fact that the patient was totally naked, and asked for whether that was expressly prohibited at the time. He responded,

No, it’s, it was not and still isn’t. …perhaps not an ideal scenario. I don’t think that there’s anything that would [have] precluded Dr. Beaton from treating the patient as he did.

Dr. Stants was pressed on this by Mr. Nicol on cross-examination. The exchange went like this;

Q. Dr. Beaton suggests a massage and suggests that the male go into the bedroom and completely undress, and do you see any issues with that? A. Again, not an ideal scenario in this day and age, but I don’t see necessarily anything totally inappropriate… Q. I’m gonna suggest to you that that is totally inappropriate and crossing boundaries of professional and personal boundaries to have a patient come into your private bedroom and get completely naked on your bed. Don’t you agree? A. In this day and age, yes. Q. Forget the age. Regardless of when this occurred this was totally inappropriate don’t you agree with that? A. Not completely, no. Q. No? You think in 2003, 2004 when this occurred that would have been appropriate? A. Potentially. Q. And so you don’t think the fact that this man’s naked on, on, on Mr. Beaton’s bed that doesn’t raise any red flags for you? No? A. Not the ideal scenario.

[86] It is understatement on my part to say that my assessment of the objectivity and authoritative value of Dr. Stants’ opinions about the entire practice of chiropractic dipped to a new low after this exchange.

[87] As to the question of culpability, it could be argued that JP’s apparent voluntary behavior in going into the bedroom and taking off all his clothing introduces a consensual element into a thoroughly inappropriate and improper chiropractic episode. However, JP did not consent to being touched on the penis by his chiropractor. And accepting his account of the episode as I do, he certainly didn’t consent. It had never happened before. He terminated the session and never came back. I accept his interpretation that the hand contact Dr. Beaton made with his penis was not inadvertent but part of his testing JP, one step at a time for reaction to see if he, Dr. Beaton should continue. The scenario is so bad, so unprofessional, so clearly improper and against the College’s practice guidelines, as Dr. Beaton concedes, it is simply beyond reason to excuse it as an inadvertent sexual touching. Even were I to accept that Dr. Beaton’s actions were not intended to be for a sexual purpose, the context of the touching without consent is clearly demeaning and a violation of JP’s sexual integrity.

[88] The only reasonable conclusion I can reach on the evidence is that Dr. Beaton sexually assaulted his patient, JP on the night in question and I find him guilty on amended count 10.

Conclusions

[89] For the reasons given, I find Dr. Beaton guilty on counts 3, 5 and 10 of the indictment. The other counts are dismissed.

Rutherford J. Date: Thursday June 23, 2016