His Majesty the King v. Ronald Dupuis

COURT FILE NO.: 21-SA4538

DATE: 2023/12/22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

RONALD DUPUIS

COUNSEL:

Sonia Beauchamp for the Crown

Dominique Smith for Ronald Dupuis

HEARD: September 27 to October 6; October 30 and 31, 2023; and December 4, 6, 7, 8, and 22, 2023

VERDICT

PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE, any information that could identify the COMPLAINANTS IN THIS CASE shall not be published in any document or broadcast or transmitted in any way.

Justice Sally Gomery

[1] Ronald Dupuis is accused of sexually assaulting two female patients, HMN and MS, while he worked at the Montfort Hospital as a personal service worker or PSW. The Crown alleges that Mr. Dupuis sexually assaulted MS between December 3, 2016 and January 4, 2017 while she was admitted for confusion. It alleges that he sexually assaulted HMN between November 22, 2019, and January 8, 2020, when HMN was in the Hospital recovering from a fall. I have now heard the evidence and the closing arguments. This is my verdict.

Legal framework

[2] Mr. Dupuis is presumed innocent. To obtain a conviction on either count, the Crown must prove, beyond a reasonable doubt, that he has committed the essential element of sexual assault. Assault is touching or the threatened application of force without consent. Sexual assault is an assault committed “in circumstances of a sexual nature, such that the sexual integrity of the victim is violated”: R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293, at p. 302.

[3] Reasonable doubt is “based on reason and common sense … logically derived from the evidence or absence of evidence”: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 39. The Crown does not need to prove the allegations to an absolute certainty, or beyond any imaginary or frivolous doubt: Lifchus, at para. 39. It must, however, prove each element of a charge beyond a reasonable doubt. To find Mr. Dupuis guilty, I must be certain that the events set out in a charge happened, that is, that he touched the complainants in a sexual way, that they did not consent to the touching, and that he had the required criminal intent.

Has the Crown proved that Mr. Dupuis sexually assaulted HMN?

[4] I will begin with the charge that Mr. Dupuis sexually assaulted HMN since her evidence was also admitted, for limited purposes, for the Crown’s case that Mr. Dupuis sexually assaulted MS.

The evidence relating to this charge

[5] The evidence supporting the charge that Mr. Dupuis sexually assaulted HMN consists of her testimony, the testimony of three current or former Montfort Hospital employees, and the evidence of a cellphone company. Mr. Dupuis did not testify and the defence called no other evidence.

[6] HMN is currently 72 years old. She lived independently until mid-2017 when she suffered a series of strokes and her general health deteriorated. She developed Parkinson’s Disease and heart issues. She also has chronic diabetes. HMN takes daily medications and eats a special diet. She now lives in an assisted living facility.

[7] HMN was a patient at the Montfort Hospital from November 22, 2019, to January 8, 2020. She was 68 years old at the time and recovering from a fall. During her admission, HMN was unable to get out of bed unassisted or to walk, even with a walker. She needed help dressing, washing, bathing, and toileting. She wore an adult diaper.

[8] HMN was initially placed in a hospital room in a unit on the fourth floor with three other patients. She was transferred to a semi-private room on the same floor a few weeks later. HMN shared the semi-private room with one other female patient. HMN’s roommate occupied the bed closest to the door to the hallway. There were curtains that could be drawn around each bed for privacy.

[9] Mr. Dupuis was employed as a PSW at the Montfort Hospital for many years. He began assisting HMN after she was moved to the semi-private room. Mr. Dupuis was 58 years old at the time. HMN knew him as “Ron”. She identified him in pictures on a Facebook page.

[10] According to HMN, Mr. Dupuis would come to her room each day at around 5:00 a.m. to wash her and to change her diaper and hospital gown. Based on evidence from other Montfort Hospital employees, Mr. Dupuis’ morning shift did not begin until 6:30 a.m., and he had been cautioned by Hospital management in 2017 not to show up to work early. However, as acknowledged by Sandra Pina, the manager of clinical services in the unit where Mr. Dupuis worked, PSWs sometimes arrive early to stock carts for patient rounds. Ms. Pina also recalled Mr. Dupuis mentioning to her that he arrived at the hospital before his shift because he commuted with a co-worker who had an earlier shift.

[11] Asked about her first impressions of Mr. Dupuis, HMN described him as gentle, soft spoken, quiet, and helpful. He told her that he was “safe”. She appreciated how he helped her. They spoke in English and French to each other. He would ask her how her day was going. In HMN’s words, Mr. Dupuis was “a really nice guy that [she] took a liking to”.

[12] HMN testified that Mr. Dupuis bathed her using a plastic bowl and a face cloth. She was in bed, naked, while he washed and dried her entire body. He did not wear gloves when he bathed her. He used a special bar of soap he carried in his pocket.

[13] The third day that Mr. Dupuis gave HMN a sponge bath, he removed her adult diaper as usual, but did so in an unusual way. Instead of sliding it down her legs as other PSWs had done, he tore it apart at the side seams. After removing the diaper, Mr. Dupuis patted HMN three times on the buttocks, which she interpreted to mean that he was “interested”. She had the impression that he enjoyed touching her. Then, as Mr. Dupuis continued to bathe HMN, he stroked her with his hand while he put his thumb inside her vagina. After he finished bathing her, he kissed her on the lips.

[14] Asked how she reacted to the kissing and digital penetration, HMN said: “To be honest with you, I had been separated since April 2008 and it had been a while since I had had any male contact.” She enjoyed it even though she felt that she should not. She testified that: “I was feeling a little bit guilty and ashamed because it had been a long time since anyone had been interested in me. I was so hungry for attention that I was ready to accept what he did”.

[15] From this day forward, every time Mr. Dupuis gave HMN a morning sponge bath, he digitally penetrated her with his thumb and then would kiss her on the lips before leaving her room.

[16] HMN also recalled that Mr. Dupuis rubbed his lower body against her groin on two occasions. He lowered her bed prior to the sponge bath for this purpose. He was wearing scrubs, so his penis did not touch her body, but she felt that he was erect. Once, when Mr. Dupuis was rubbing himself against her, HMN kissed Mr. Dupuis’ penis and put the tip of it in her mouth for about thirty seconds. She said that she did this on her own initiative, because she assumed that he would want this. HMN said that Mr. Dupuis may have also put his mouth on her vagina a couple of times but was only 75% sure that this happened.

[17] HMN and Mr. Dupuis talked about their relationship while she was in the hospital. HMN told Mr. Dupuis “I’m hooked” and Mr. Dupuis said he was hooked too. Mr. Dupuis would sometimes sing to HMN, older songs that she was surprised that he knew. One day Mr. Dupuis did not kiss her and HMN said that he would owe her a kiss the next day. When Mr. Dupuis told HMN that he was going on holiday at Christmas, she told him to take lots of pictures. She asked Mr. Dupuis a few times whether he had anyone special in his life. He said no, although he had been married at one time. HMN introduced Mr. Dupuis to her daughters as a friend. She invited Mr. Dupuis to go to karaoke after her discharge, and she planned to introduce him to the owners of a karaoke bar. Unfortunately, her doctor told her that she could no longer go to karaoke.

[18] Mr. Dupuis told HMN that he had worked at Montfort for 33 years and that she should not tell anyone about their sexual activity because he would lose his job. This came up every time they were intimate. HMN observed him keeping an eye on the curtain around the bed to ensure that no one was observing them. HMN told him not to worry. She took care to be quiet when they had sex so that they would not be overheard.

[19] HMN and Mr. Dupuis exchanged phone numbers prior to her discharge from hospital. She cried when they said good-bye. After her discharge, though, HMN could not reach Mr. Dupuis. She called him a few times, but a woman who answered said he was not there. He called her once and promised to visit her. This never happened.

[20] HMN saw Mr. Dupuis for the last time when she went back to the Montfort Hospital for follow up after her discharge. She went up to the fourth floor to see him. She asked him if he remembered her name. He said he did not because he had so many patients. This angered her since they had been intimate. HMN said: “You said I was so special, but you can’t remember my first name?” She testified that she felt stupid to think that he had been honest and was very upset.

[21] Although HMN testified that Mr. Dupuis did not ask for permission prior to touching her sexually for the first time, she acknowledged that she did not object and went on to actively participate in sexual activity with him. In cross-examination, she admitted that she agreed to have sex with him. She did not call for help or press the help buzzer next to her bed when Mr. Dupuis touched her because she enjoyed what they were doing.

[22] HMN testified that she wanted to pursue a relationship with Mr. Dupuis after she left the hospital. It was only after she learned that he had a girlfriend that she came to believe that he had exploited his position as a PSW. She admitted, however, that she was mostly upset to find out that he had lied to her about the prospect of a relationship after her discharge.

Has the Crown proved that Mr. Dupuis sexually assaulted HMN?

[23] I found HMN to be a credible and reliable witness. She expresses herself clearly, coherently, and forthrightly. She is intelligent and has a good sense of humour. HMN testified that she is fully aware of what she is doing even though she has physical challenges. She sometimes has memory issues, but her mental capacity on the whole is intact.

[24] Based on HMN’s evidence, I find that she and Mr. Dupuis engaged in sexual activity repeatedly while she was a patient at the Montfort Hospital between November 22, 2019, and January 8, 2020. The question is whether the Crown has proved that she did not consent to this activity.

[25] Under s. 273.1(1) of the Criminal Code, consent for the purpose of the offence of sexual assault is “the voluntary agreement of the complainant to engage in the sexual activity in question”. Section 273.1(2) sets out circumstances where apparent consent is vitiated. These circumstances include “if … the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority” (s. 273.1(2)(c)).

[26] The Crown contends that Mr. Dupuis induced HMN to engage in sexual activity by abusing his role as a PSW. The defence concedes that Mr. Dupuis was in a position of trust vis-à-vis HMN but argues that the sexual activity was fully consensual.

[27] In R. v. Lutoslawski, 2010 ONCA 207, 326 D.L.R. (4th) 637, aff’d 2010 SCC 49, [2010] 3 S.C.R. 60, at paras. 12 and 13, the Ontario Court of Appeal described the purpose and scope of s. 273.1(2)(c):

Section 273.1(2)(c) speaks not only to the abuse of a position of authority but also to the misuse of a position of power or trust. The section addresses the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of that relationship. An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity.

[28] Subsection 273.1(2)(c) does not criminalize every sexual act that takes place between two people in a relationship of trust. In R. v Snelgrove, 2018 NLCA 59, aff’d 2019 SCC 16, the accused was a police officer who had sex with a young woman while he was on duty, after she asked him for a ride home from a bar. The trial judge did not instruct the jury on a possible absence of consent based on s. 273.1(2)(c). The Newfoundland Court of Appeal held that this was an error but noted that the evidence of a trust relationship by itself is not sufficient to nullify consent, writing at para.18 that:

[I]t was not sufficient, by itself, that Mr. Snelgrove was an on-duty police officer. The complainant was not prevented from consenting to sexual activity with him on that basis alone. In order to vitiate her consent, the Criminal Code requires evidence from which it could be inferred or concluded that she was induced to consent to the sexual activity by Mr. Snelgrove’s abuse of his position of trust or authority.

[29] Cases in which consent has been nullified under s. 273.1(2)(c) illustrate the need for evidence of inducement.

[30] In R v Emerson, 2022 BCCA 5, the accused was a youth pastor at a church that the complainant started attending when she was about 16 years old. The complainant alleged that he sexually assaulted her on three occasions when she was 21 years old. The trial judge found that the accused and his wife had encouraged the complainant to consider having sex with him as a way of helping her with the problems she was experiencing in her life. The judge concluded that the complainant had been induced to have sex by a person in a position of trust and that she had therefore not truly consented. The Court of Appeal upheld this finding at para. 47, writing that:

[I]t was open to the judge to find that the way in which these incidents began and continued involved an abuse by the appellant of his position of trust, power or authority as the complainant’s pastoral counsellor and spiritual leader. He initiated the conversations, not the complainant. The inducements he offered in advance of the first incident were infused with spiritual justifications—that she was a “touch person”, and that having sex with him would help her confront and deal with her personal issues and “reconfigure [her] life with Jesus.” The benefits to be gained by the complainant from continuing her sexual relationship with the appellant were reiterated before the second incident.

[31] Similarly, in R v Jones, 2017 ONSC 7442, aff’d 2020 ONCA 15, the accused was a pastor who was convicted of sexually assaulting a parishioner. The parishioner had been duped by the pastor into believing that the pastor was possessed by a medium summoned to assist the complainant in her troubled personal life. The judge found that, by exploiting the complainant’s spiritual beliefs, the accused asserted sexual and financial control over her. At para. 231, the trial judge concluded that the complainant was “vulnerable, desperate, and gullible enough to pursue any avenue that would … end her woes” and so performed sexual acts directed by the accused. Applying s. 273.1(2)(c), he found that the Crown had proved an absence of consent.

[32] A s. 273.1(2)(c) analysis accordingly has two components: (1) did the accused have a position of trust with respect to the complainant? and (2) did the accused induce the complainant to engage in sexual activity based on an abuse of that position?

[33] The second question can be further broken down to two inquiries. In para. 24 of the Newfoundland Court of Appeal’s decision in R. v. Snelgrove, Welsh J.A. cited the definition of “inducement” in Black’s Law Dictionary, eighth edition, as “The act or process of enticing or persuading another person to take a certain course of action”. Determining whether someone has been enticed or persuaded to do something requires an assessment of their motivations. If a person takes advantage of the existence of a relationship of trust to initiate a sexual relationship, this does not automatically mean that their partner has agreed to participate because of the trust relationship. As put succinctly by the British Columbia Court of Appeal in R. v. Alsadi, 2012 BCCA 183, at para. 25, the question is not simply whether sexual activity occurred but why the complainant agreed to it.

[34] As a PSW, Mr. Dupuis had a position of trust vis-à-vis HMN. He was entrusted with toileting and bathing her while she was confined to her bed. He took advantage of his access to HMN’s body to touch her intimately. He came to HMN’s room before his shift began and told her not to tell anyone about their sexual interactions. Their exchange of telephone numbers, and of course the sexual touching itself, breached hospital policy.

[35] I have reasonable doubt, however, that HMN participated in sexual activity with Mr. Dupuis because she was persuaded or enticed by Mr. Dupuis’ misuse of his position.

[36] Mr. Dupuis first touched HMN in a sexual way the third time he provided PSW services to her. Based on HMN’s own testimony, she acquiesced to this touching and subsequent sexual activity because she enjoyed being touched, she was attracted to Mr. Dupuis, she thought he was attracted to her, and she believed that Mr. Dupuis was interested in pursuing a romantic relationship with her. HMN did not testify that she participated in these activities because Mr. Dupuis was her PSW or that his conduct as her PSW motivated her decision to participate. She described the sex as arising in the context of a personal relationship that could have developed had they met in other circumstances.

[37] Crown counsel argues that a complainant like HMN might not understand their own motivations. She points out that, in any case of induced consent, the victim appears to consent but as a legal matter is held not to have consented. The question is whether, on the whole of the evidence, consent was meaningful in a legal sense. A victim’s account of their reasons for agreeing to have sex may not be determinative of legal consent, because they might not be aware of their own victimization.

[38] The Crown argues that HMN did not legally consent, because she acquiesced to the accused’s initial sexual touching when she was highly vulnerable and dependent on him. All the sexual interactions that followed, including the oral sex initiated by HMN, were tainted by how Mr. Dupuis induced her agreement at the outset.

[39] In R. v. Snelgrove, at para. 25, Welsh J.A. held that the vulnerability of the complainant in that case was relevant to the question of whether the accused might have induced her to have sex with him by abusing a position of trust or authority:

In the absence of the complainant’s direct evidence of inducement, the surrounding circumstances may provide an evidentiary basis for consideration by the trier of fact in determining whether consent was vitiated by the operation of section 273.1(2)(c). For example, in this case, a circumstance the jury may consider to be relevant is the vulnerability of the complainant who was intoxicated, in contrast to Mr. Snelgrove who was a police officer on duty, in a position of trust or authority in relation to the complainant, and not similarly impaired. This may be one factor the jury could consider relevant in assessing whether Mr. Snelgrove abused his position of trust or authority to induce the complainant to engage in the sexual activity.

[40] The opening words of this passage underscore a critical difference between the situation in Snelgrove and the situation here. The complainant in Snelgrove was drunk during her interactions with the accused and could not recall how or why they came to have sex. As a result, the trier of fact in that case had no choice but to rely on circumstantial evidence to make inferences about the complainant’s reasons for having sex with the accused.

[41] The situation is different here. There is direct evidence of HMN’s motivations that contradicts the Crown’s theory of the case. HMN testified in a candid and detailed way about the circumstances in which she and Mr. Dupuis engaged in sexual activity and why she participated. Although she appreciated his thoughtfulness in bringing special soap and taking the time to chat while he attended to her, she did not suggest that these gestures are what motivated her to agree to sexual activity with him. He was “a really nice guy that she took a liking to”. There is no evidence that HMN’s medical condition or reduced mobility, or her reliance on Mr. Dupuis for her care, were significant factors in her acquiescence to the initial touching or her subsequent participation in other sexual activities.

[42] A person does not lose agency nor automatically cease to crave sexual contact as they age. HMN’s own testimony contradicts the Crown’s theory that she agreed to have sex with Mr. Dupuis because he abused his position of trust as a PSW. He arguably took advantage of her desire for sexual intimacy, her loneliness, and her belief that he was interested in a romantic relationship. He could have taken advantage of HMN in the same way if they had met in another setting. He got access to her person, allowing him to initiate sexual contact the third time they met, because he was her PSW. But her reasons for agreeing to sex were not contingent on this.

[43] Mr. Dupuis’ actions towards HMN were morally repugnant. He took gross advantage of his position to initiate a sexual relationship with a physically vulnerable, lonely woman. Many people would be shocked and repulsed by his actions, and disturbed by the idea that elderly family members could be exposed to sexual touching by hospital personnel. They might feel, instinctively, that his conduct should automatically attract criminal sanction.

[44] The fact that Mr. Dupuis and HMN had a sexual relationship that he initiated while caring for her as a PSW, however, does not automatically mean that he sexually assaulted her. Section 273.1(2)(c) balances "[t]he protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity": R. v. Hogg (2000), 2000 16865 (ON CA), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17. The Crown has to prove beyond a reasonable doubt that HMN agreed to sexual activity with Mr. Dupuis because he used the personal feelings and confidence engendered by that relationship to secure her participation.

[45] On the evidence, I have reasonable doubt that HMN was persuaded to have sex with Mr. Dupuis because of the feelings and confidence she had in him as her PSW. The trust relationship was the occasion of the sexual activity but not why she agreed to it. I accordingly conclude that the Crown has not proved that the sexual activity was non-consensual.

Has the Crown proved that Mr. Dupuis sexually assaulted MS?

The evidence on the charge

[46] On December 3, 2016, when MS was 63 years old, she was admitted to the Montfort Hospital. She was discharged on January 4, 2017.

[47] MS was taken by ambulance to the hospital for confusion. Her condition was sufficiently serious that she was admitted for several weeks. She testified that, at the time, she did not know where she was. She only learned about the circumstances of her admission later.

[48] MS’ confusion worsened after her admission. She testified that she had been brought to the hospital for confusion “many, many times” previously. This particular time, her medical team decided to experiment by stopping all of MS’ medications. Unfortunately, this caused MS to suffer severe withdrawal and hallucinations.

[49] MS testified that she remembered almost nothing about the first two weeks or so that she was admitted to the Montfort. MS did not want to speak to her doctor and is not sure she even recognized her during this period. She was having auditory and visual hallucinations. For example, she saw two of her uncles as though they were in front of her, one of whom she heard asking her for money. Another time, she believed that one of her sisters was in the hospital room with her. When MS mentioned this to Danielle, a friend who was visiting, Danielle told her that her sister was not there. In cross-examination, MS admitted that, had her friend Danielle not been there, she would have no way or confirming or denying her sister’s presence.

[50] About ten days after her admission, MS was transferred to a rehab unit on the fourth floor. There she shared a semi-private room with one other patient.

[51] The rehab unit was where Mr. Dupuis worked as a PSW. At some point after the transfer, MS began to receive assistance from him. MS recalled that Mr. Dupuis would come to her room around 4:00 or 5:00 a.m. He would tell MS that he wanted to bathe her, change her bed and help her dress. MS found it quite early for this morning routine. Mr. Dupuis would give MS sponge baths, make her bed, remove her adult diaper in the morning, and help her walk to the bathroom and shower. MS was able to dress independently.

[52] MS does not remember her first few days on the rehab unit. She does not remember if she saw Mr. Dupuis during that period. She said that she began to remember or become aware of her interactions with him as of about December 20, 2016.

[53] According to MS, on December 20, while Mr. Dupuis was giving her a sponge bath and removing her adult diaper, he touched her breasts and vagina, then penetrated her vagina with one or more fingers for a few seconds. MS recalled that she asked him: “What are you doing there?” He said he was doing the same things he had done on earlier days. The conversation ended there. She testified that she told him to stop and get out.

[54] MS told her sister and her friend Danielle what Mr. Dupuis had done. She testified that this conversation probably took place on December 20. They both questioned whether what she described had actually taken place, because she was still very ill. MS testified that she was convinced that what she remembered was real but was uncertain because of their reaction.

[55] MS initially testified that Mr. Dupuis touched her on the breasts and the vagina during other sponge baths during her hospital stay. She said that she pushed him away and told him he had no right to touch her, but he again told her that he had done the same thing on prior days and that she seemed to enjoy it. She initially suggested that Mr. Dupuis inserted his finger in her vagina on multiple occasions. She later said that this only happened once, on December 20. Throughout her stay, she said, Mr. Dupuis always seemed to be seeking chances to touch her. He would come into her room and draw the curtains around her bed, telling her wanted to talk to her. She testified that he would pinch her nipples, but not otherwise touch her breasts.

[56] MS recalled that, one day, after her condition had improved somewhat, Mr. Dupuis escorted her to the shower. While MS was showering, Mr. Dupuis entered the shower cubicle. MS testified that she asked him what he was doing there. Mr. Dupuis asked if she needed help. MS told him that she would ring the emergency bell if she needed assistance, and he left. She testified that Mr. Dupuis violated her privacy by coming into the shower cubicle uninvited.

[57] MS was given permission to leave the hospital for two days at Christmas. Her time at home did not go well because she was not focused on the holidays but on whether or not what she believed Mr. Dupuis had done to her was real. She returned to the hospital for treatment for another ten days because she was still experiencing some of the confusion that had prompted her admission in early December.

[58] MS testified that she was afraid of Mr. Dupuis when she returned to the hospital after Christmas. She did not, however, report what he had done to other hospital staff or ask for a female PSW. MS provided various explanations for this: she was confused, she did not want to get him into trouble, and hospital staff were busy.

[59] Prior to her discharge in early January, according to MS, Mr. Dupuis suggested that he give her his phone number so he could find out how she was doing after her discharge and give her rehabilitation sessions at her home. MS agreed. She testified that she planned to invite him to her apartment to ask him questions about what had happened between them at the hospital. In chief, she testified that she really wanted to ask him about their interactions before December 20, because she had no memory of this period.

[60] MS recalled that Mr. Dupuis called her two weeks after her discharge, and they agreed that they would meet in her apartment the next day. He came over at a time when her friend and roommate, Danielle, was out. MS testified that, after she and Mr. Dupuis had chatted about inconsequential things for a while, he grabbed her hands, said he wanted to kiss her, and suggested that they go to the bedroom to finish what they had started in the hospital. MS reportedly said that he was no longer welcome in her home and told him to leave. That was the last time she saw him.

[61] In early February 2017, MS phoned Maryse Castonguay, the person responsible for sexual harassment complaints at the Montfort Hospital at the time, to report Mr. Dupuis’ actions during her admission. MS subsequently sent Ms. Castonguay an email explaining what had happened. In the email, she wrote that she was not sure whether her recollection of events was a false memory. Ms. Castonguay advised MS that an investigation would be undertaken. MS was told a short time later that the investigation was complete and that Mr. Dupuis was still a hospital employee.

[62] Thérèse Antoun was Clinical Director, Rehab, Geriatrics, Therapy, Palliative Care and Discharge, in 2017. During her testimony, she produced a letter that she sent to Mr. Dupuis on March 13, 2017, following an investigation of MS’ complaint. In the letter, Ms. Antoun wrote that the Hospital was unable to confirm whether Mr. Dupuis had behaved in a sexual way with MS. It did, however, find that he had regularly gone to MS’ room prior to his shift and had violated the professional relationship that must be maintained with patients by giving her his telephone number. According to the letter, Mr. Dupuis was suspended for a day without pay, required to take professionalism training, and prohibited from starting his duties prior to his shift.

Has the Crown proved that Mr. Dupuis sexually assaulted MS?

[63] As Molloy J. explained in R. v. Nyznik, 2017 ONSC 4392, at paras. 15-16, a judge’s task in an assault trial is not only to determine whether a complainant is telling the truth as they perceive it, but whether their evidence is sufficiently reliable to convict the accused:

Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right,but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.

[64] While finding MS sincere, I do not find her account of her interactions with Mr. Dupuis reliable. As she admitted many times during her testimony, she remained in a state of confusion throughout her hospital stay and was not sure, at and following her discharge, whether Mr. Dupuis had touched her in a sexual way.

[65] In her examination in chief, when asked if she was still having hallucinations when she was discharged on January 4, 2017, MS answered unequivocally: “No, as of this date, I was not hearing things, I was healed.” By contrast, when she was asked if she was having hallucinations on December 20, she responded: “Not to my knowledge”. This more equivocal answer reflects MS’ uncertainty about whether what she recalled about that day was real or not. She also admitted that she had to return to hospital after Christmas because the symptom that had prompted her admission — confusion — still necessitated medical treatment.

[66] Later in her testimony in chief, MS was asked how sure she was, during the hospital admission, that touching had occurred, MS replied: “I was asking myself questions, not entirely sure if it was true. There was a part of me that thought it was true.” In answer to further questions by the Crown about her state of mind, MS suggested that she was unsure only because her friend and her sister had questioned whether the incident she described to them had actually happened. Based on MS’ initial answer and the whole of her evidence, I do not accept this explanation. I find that she was not sure because she had been having hallucinations and bouts of confusion since her admission. She testified that she never hallucinated about being touched, but I do not understand how she could be sure about this given her condition at the time.

[67] When asked in chief what questions she wanted to ask Mr. Dupuis when she invited him to her apartment after her discharge, MS responded: “About what had happened between him and me during my stay at the hospital” because “I wanted to really know what was the truth”. Although she testified that she particularly wanted to ask Mr. Dupuis about what happened prior to December 20, she acknowledged that she also wanted to ensure that she was accurately recalling their interactions on and after that date. She said she was aware that “something was happening” as of December 20. I am not persuaded, based on this testimony, that MS was sure that Mr. Dupuis had done anything inappropriate at any point during her admission.

[68] In cross-examination, MS agreed that, when she started to remember events after December 20, she was “not certain of herself and had lots of questions in her head”. She saw Mr. Dupuis every day during her hospital stay and conceded that this would have presented a good opportunity for her to ask him questions about their past interactions, but she did not ask him because she was, in her words, confused. She admitted that she was still confused about the things that she believed Mr. Dupuis had done when she was discharged on January 4, 2017. Defence counsel then put this question to MS:

Q: And part of what you told us earlier today, when you were discussing what happened with [Crown counsel], is you really wanted to know what the truth was, and this is when you were discharged from hospital, you wanted to know what the truth was, you still didn’t know what the truth was?

A: I still didn’t know what was the truth.

[69] MS reaffirmed this evidence in re-direct, saying: “It was just a question of finding out if it was true, what happened between me and [Mr. Dupuis]. I really wanted to find out if it was true.”

[70] When asked in cross-examination about her rationale for inviting Mr. Dupuis to her apartment after her discharge, MS testified: “I really wanted to find out, and it was a chance that I was taking, I know that, but I really wanted to find out about this, asking him to come over, that’s why I did ask him to come over, I wanted to find out if it was true or not.” When asked whether, without Mr. Dupuis’ assistance, she knew whether the events she recalled were real, MS stated: “It was sort of half and half, like I wasn’t sure, but the other half was sure.”

[71] MS admitted that she told her friend Danielle after her discharge that she wanted to talk to Mr. Dupuis to find out whether she “was really delusional or not”. She wanted to determine whether if what she thought happened in the hospital was “made up in her head”.

[72] In cross-examination, MS did not affirm that her confusion was confined to events prior to December 20. She had earlier admitted that she had no recollection of any interactions with Mr. Dupuis prior to that date. By definition, she could not have been confused about what had occurred prior to December 20 because she had no memory at all of what had happened. If she was unsure whether or not her memories of Mr. Dupuis touching her were real, this must have related to their interactions on or after December 20.

[73] MS testified that, after Mr. Dupuis visited her apartment, she was convinced that he had touched her inappropriately because he suggested, during the visit, that they go to the bedroom to finish what they had started in the hospital. In her email to the hospital complaining of his conduct a few weeks later, however, she acknowledged that she was still not sure whether her recollection of the touching was a false memory.

[74] There were other concerns about MS’ evidence. Her account of the alleged assaults was inconsistent. She initially said that Mr. Dupuis digitally penetrated her on December 20 as well as the next day, and that he touched her in a similar way a few times. A few minutes later, she testified that he digitally penetrated her only once, for a few seconds, and did not otherwise touch her vagina. She testified that he was always seeking to touch her body, and that he touched her breasts on December 20 and 21 while giving her a sponge bath. A moment later, she said that he pinched her nipples but did not otherwise touch her breasts. Still later, she said that he was always trying to touch her breasts when he came to her room after December 20.

[75] Inconsistencies in a complainant’s evidence may give rise to reasonable doubt. Witnesses are not expected to have perfect recollection, but inconsistencies can demonstrate a lack of reliability: R. v. G.(M.), 1994 8733 (ON CA), 1994 CarswellOnt 181, at para. 23. A single minor inconsistency will not diminish a witness’ credibility, but a series of inconsistencies or a single inconsistency on a major point may do so. The trier of fact “should look at the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable”: R. v. Bowe, [1993] B.C.J. No. 758 (C.A.), at para. 29.

[76] MS’ testimony was inconsistent on the central issue — whether Mr. Dupuis touched her in a sexual way, and how — as well as with respect to other issues. As a result of these inconsistencies, and her confusion about events during her hospital admission, I conclude that her evidence is generally unreliable. I am not persuaded of the reliability of her varying accounts of how Mr. Dupuis touched her, or that she accurately remembers their conversations during her hospital admission. I am also not persuaded that she accurately described her conversation with Mr. Dupuis when he visited her apartment after her discharge.

[77] After the Crown presented its evidence, I granted its similar fact evidence application. This permitted the prosecution, as part of its case on the alleged assault of MS, to rely on HMN’s evidence about her interactions with Mr. Dupuis. The Crown contends that HMN’s evidence is reliable and credible, and that, together with MS’ evidence, it shows that Mr. Dupuis had a modus operandi for sexually assaulting female patients.

[78] Most of the conduct that the similar fact evidence helps to establish — Mr. Dupuis’ arrival in MS’ room before his shift and his suggestion that she call him after her discharge — does not necessarily imply a nefarious intent. There could be an innocent explanation for this behaviour. There would be no innocent explanation for a PSW inserting their finger in a patient’s vagina. There would, however, be reasons why MS could have mistakenly believed that Mr. Dupuis had touched her this way. As Ms. Antoun, Ms. Pina, and MS herself acknowledged, a PSW giving a patient a sponge bath in bed touches their whole body. When a PSW is removing an adult diaper, they wash the patient’s genital area. It is entirely possible that MS, in a confused or even hallucinatory state, misinterpreted or mistook what Mr. Dupuis was doing while he was engaged in these tasks.

[79] I cannot convict Mr. Dupuis of sexually assaulting MS unless I am persuaded, beyond a reasonable doubt, that he touched her in circumstances of a sexual nature. MS’ evidence falls well short of establishing that an assault occurred. Evidence of Mr. Dupuis’ consensual sexual activity with another patient three years later does not allow me to overlook the fundamental deficiency with the Crown’s case.

Disposition

[80] The accused is acquitted of both charges.

Justice Sally Gomery

Released: December 22, 2023