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EVIDENCE - Methods of proof - Circumstantial evidence - Similar fact evidence

Friday, November 03, 2017 @ 8:36 AM  

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Appeal by the accused, Doodnaught, from a conviction for 21 counts of sexual assault. The accused was a senior anesthesiologist who worked at a large general hospital. In the course of investigation of a single complaint, several female patients came forward with complaints of sexual misconduct by the accused while they were under conscious sedation after the accused administered a spinal anesthetic. The alleged sexual contact included kissing, touching and fondling patients' breasts, placement of the accused's penis in patients' hands and inserting his penis into patients' mouths. The assaults were allegedly committed while concealed from view behind draping separating the sterile surgical area from the non-sterile area where the accused was positioned for the purpose of monitoring the patients. The trial judge concluded that the accused had the opportunity to commit the offences as the complainants were in a sedated and vulnerable state and the accused was shielded from the view of other medical personnel focused on their respective roles in the surgery. The trial judge rejected the contention that the anesthetic rendered patients' accounts of the misconduct unreliable. The evidence, viewed independently on each count without regard to the others, established that 18 of the assaults had been proven on a balance of probabilities. The remaining three counts, viewed together, left no rational conclusion other than guilt. The accused appealed.

HELD: Appeal dismissed. The trial judge did not misapprehend the evidence or otherwise err in concluding the accused had opportunity to commit the offences. The trial judge adequately explained the rejection of evidence regarding likelihood of detection in concluding it did not diminish the accused's exclusive opportunity. The trial judge understood the issue of opportunity, considered the relevant evidence, and made findings of fact supported by that evidence. No misapprehension of the expert evidence regarding the effect of anesthesia on the patients' credibility and reliability was established. It was open to the trial judge to conclude that the hallucinogenic properties of the anesthetics could not account for the events reported by the complainants. No legal error arose from the trial judge's use of similar fact evidence. Even if a reasonable doubt existed in relation to each allegation considered in isolation, the individual allegations remained mutually supportive and capable of establishing proof beyond reasonable doubt.

R. v. Doodnaught, [2017] O.J. No. 5263, Ontario Court of Appeal, D. Watt, P.D. Lauwers and G. Huscroft JJ.A., October 13, 2017. Digest No. TLD-October302017010