R v Delacruz, 2016 ABQB 187

Court of Queen ’ s Bench of Alberta Citation: R v Delacruz, 2016 ABQB 187 Date: 20160406 Docket: 121083802Q1 Registry: Grande Prairie Between: Her Majesty the Queen Crown - and - Romelito Delacruz Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. Corrected judgment: A corrigendum was issued on April 6, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the

Honourable Madam Justice J.M. Ross _______________________________________________________ I. Introduction . 3 II. Evidence and Testimony . 3 A. Accused’s Medical Training and Experience . 3 B. Evidence of the Alleged Offences . 4 1. Ms. W. 4 2. Ms. S. 6 3. Ms. F. 7 C. Expert Witness Evidence . 9 III. Law - Sexual Assault 11 IV. Honest but Mistaken Belief . 14 A. Preliminary Issue - Weighing the Evidence . 14 B. Ms. W. Offence Scenario . 16 1. No Consent 16 2. What Kind of Touching Occurred? . 16 3. Honest but Mistaken Belief in Consent? . 18 4. Conclusion - Ms. W. 19 C. Ms. S. 19 1. No Consent 19 2.

What Kind of Touching Occurred? . 19 3. Honest but Mistaken Belief in Consent 21 4. Conclusion - Ms. S. 22 D. Ms. F. 22 1. No Consent 22 2. What Kind of Touching Occurred? . 23 3. Honest but Mistaken Belief . 23 4. Conclusion . 24 V. What are the Characteristics of a Sexual Assault? . 24 VI. Conclusion . 28 I. Introduction [ 1 ] The accused, Dr. Romelito Delacruz, is a physician and surgeon who works in Grande Prairie. He is charged with three counts of sexual assault ( Criminal Code , RSC 1985, c C-46, s 271) involving three patients, who I will refer to by their initials. It is alleged that Dr.

Delacruz on or about:

Count 1. December 14, 2005 committed sexual assault on Ms. W.; Count 2. August 11, 2007 committed sexual assault on Ms. S.; and Count 3. June 18, 2008 committed sexual assault on Ms. F. [2] There are parallels between all three alleged offence scenarios. In each instance the complainant was allegedly sexuallyassaulted during a medical appointment with Dr. Delacruz. In each offence scenario the alleged sexual assault was a part of a medicalexamination of the complainant conducted by Dr. Delacruz. Dr.

Delacruz testified and indicated that his actions were innocent, and thatany touching was conducted for proper medical purposes and at the instruction of his patients. The complainants say otherwise. [3] The Crown and Accused argued that the key issue in this case is whether Dr. Delacruz’s touching was conducted due to anhonest but mistaken belief in consent. That is a defence to the offense of sexual assault. [4] I have prepared this judgment on that basis, and I conclude that if Dr.

Delacruz’s actions were a sexual assault, then he had ahonest but mistaken belief that the complainants had consented to that touching. [5] However, I also question the Crown and defence agreement that Dr. Delacruz’s actions were sexual touching at all. Iconclude that Dr. Delacruz was factually engaged in medical procedures when he interacted with each of the three complainants.

TheCrown takes the position, as I understand it, that the “sexual” component of a “sexual assault” is tested by the perception of thecomplainant, and whether the complainant subjectively perceived an unauthorized intrusion into their sexual integrity. [6] It is unnecessary for me to decide whether the Crown is or is not correct on that point of law, however I believe it isimportant to at least raise concerns that I have regarding the Crown’s position. II. Evidence and Testimony [7] As noted, Dr. Delacruz testified. I will commence with a

summary of his evidence regarding his medical training andexperience, then summarize his testimony in relation to each of the three charges, following the evidence of each of the complainants. A. Accused’s Medical Training and Experience [8] Dr. Delacruz graduated from medical school at the University of Manitoba in 1997. He completed his residency in theotolaryngology speciality (more commonly known as an Ear, Nose and Throat specialist, or “ENT”) at Dalhousie University in 2003. [9] ENT specialists perform surgery on the head and neck, including facial plastic surgery. During his residency Dr.

Delacruzdeveloped an interest in facial plastic surgery. This included cosmetic surgery. He completed two elective programs in the United Stateswith two surgeons – a general surgeon and an otolaryngologist – whose practice focussed on cosmetic surgery. [10] Following the completion of his residency in 2003, Dr. Delacruz became a fellow of the Royal College of Physicians andSurgeons in otolaryngology. He then pursued additional training in cosmetic surgery in the United States for a period of 18 months,training in a wide range of cosmetic procedures, including breast augmentation, abdominoplasty and labioplasty.

At the conclusion ofthis training he was qualified as a fellow of the American Academy of Cosmetic Surgeons and the American Academy of BreastSurgeons. These specialist qualifications are not recognized in Canada. [11] When Dr. Delacruz started practising in Grande Prairie in December 2004, his plan was to perform cosmetic surgery as wellas working as an ENT specialist. Initially, he advertised cosmetic surgery services in his office and in the Yellow Pages. However, in2006 after his advertisements came to the attention of the College of Physicians and Surgeons of Alberta, Dr.

Delacruz reached anagreement with the College that he would not perform surgeries below the clavicle. This occurred after his appointment with Ms. W. [12] Dr. Delacruz has other areas of interest in relation to oncology and dermatology. These areas can be within the scope of theENT specialty, for example, where surgery above the clavicle is required. There is no dermatologist in Grande Prairie. Dr. Delacruz isreferred cases by a general surgeon in the city requiring revision for skin lesions using skin grafts. [13] Dr.

Delacruz shared office space in Grande Prairie with his wife, who is an obstetrician and gynecologist. His staff included areceptionist, and, at times, a nurse working as “back end” staff. However, during much of the time relevant to these charges, Dr.Delacruz did not have the assistance of a nurse. B. Evidence of the Alleged Offences [14] For each of the three offence scenarios I will review the complainant’s and Dr. Delacruz’s testimony on what transpired.

Inote in advance of commenting on the weight of various witnesses that the Crown did not argue this was a ‘similar fact’ case (see R vB(CR), (SCC), [1990] 1 SCR 717 at 739, 107 NR 241) where the alleged similarities between two or more witnesses’testimony should be interpreted as enhancing the credibility of those witnesses. Instead, each of the offence scenarios and involvedwitnesses will be treated separately. In effect, this means this proceeding is three trials combined. 1. Ms. W. [15] Ms. W. saw Dr. Delacruz on a number of occasions in 2005 in relation to recurring inner ear infections.

The sexual assaultcharge relates to her last visit with him which occurred on December 14, 2005.

[ 16 ] Ms. W. recalled that, during previous visits, she had talked to Dr. Delacruz about a possible cosmetic surgery procedure: a tummy tuck and revision of caesarian

section scars. When she saw him in December she wanted to review this procedure with him. [ 17 ] She laid down on the bed in the examining room and pulled her pants and underwear down to her pubic area so he could see the scars. He told her that a full abdominal procedure would cost $10,000.00. They discussed less expensive options. They talked about another procedure, a vaginal rejuvenation. She pulled her pants and underwear off or assisted while he did this. He told her to put her feet together and bring them up in a “frog style”.

He touched her labia lips and explained that they were rather large and that he could trim them and make it look better. He inserted a finger in her vagina and told her she was loose and he could tighten it. He also, in her words, “played with her clit” and asked if it was sensitive. He said that if she had the procedure it would probably not be as sensitive. She did not see him touching her clitoris; she felt it. [ 18 ] When Ms. W. sat up she noticed Dr. Delacruz was wearing only one glove as he went to wash his hands. This made her nervous. She did not want to think about what had happened.

He had not told her what he was going to do. [ 19 ] Dr. Delacruz testified that he had seen Ms. W. a number of times previously, primarily in relation to ear infections. She was again having a problem with her ear and the first part of the appointment involved examination and treatment of her ear. [ 20 ] Dr. Delacruz and Ms. W. had on previous visits discussed cosmetic surgery, and in fact, Dr. Delacruz had already performed a cosmetic surgery procedure on Ms. W, a scar revision on her breast. On this occasion, they discussed abdominal surgery. Ms. W was not happy with the appearance of her abdomen.

He offered to examine her and she agreed. She laid on her back on the examining table and pulled her shirt up and lowered her pants and underwear to her pubic area. [ 21 ] Dr. Delacruz said he believes he would have told Ms. W that he did not have a gown and asked whether she would simply lower her pants and underwear and that she agreed. He did not have back end staff at the time and did not offer a chaperone. He thought she was comfortable and proceeded with the examination. [ 22 ] Dr. Delacruz advised Ms. W. that a complete abdominoplasty would cost $10,000.00.

He described a less expensive procedure that involved removing a wedge shaped area including the surgical scars. He said this could distort the vaginal area. However, he could perform a vaginal rejuvenation that would improve the appearance of the vagina by reshaping the labial lips. The cost of that procedure was usually under $1,000.00. Ms. W was interested. He asked if she wanted him to examine her and she agreed. On his instruction, she removed her pants and underwear and put her feet in a “frog” position. He moved to the foot of the examination bed and put on one glove, on his left hand.

This is his practice as he uses the left hand only for the internal examination. [ 23 ] His gloved hand was in contact with the inside surface of her labia majora from the vagina to the clitoral area, to describe where he would remove tissue. He put a finger in her vagina and said that she was loose, and that he could tighten the vaginal wall. He did not “play with her clitoris” but he did examine the labia where it joins the sides of the clitoris and he did discuss sensitivity in this area. [ 24 ] Dr. Delacruz testified that he asked Ms.

W whether she wanted to be examined in relation to a potential vaginal rejuvenation, before the examination took place. He assumed she was expecting an examination in the vaginal area. He did not tell her exactly what he was going to do, but he did tell her that vaginal rejuvenation involved removing part of the labia and tightening the vagina. 2. Ms. S. [ 25 ] Ms. S. saw Dr. Delacruz twice, in 2007. The sexual assault charge relates to the second visit on August 14, 2007. [ 26 ] Ms. S. had been referred to Dr.

Delacruz by her family physician regarding a possible tonsillectomy as she had been having repeated episodes of strep throat. She was 16 years old. She attended the first visit with her mother, but was alone for the second visit. Ms. S. had an unusual medical history for a 16 year old: on her admission form she indicated that she had a “racing heart” that was being treated with “beta blockers”. [ 27 ] On the date of her second appointment, Ms. S. had decided that she wanted to proceed with a tonsillectomy. She also had a sore throat. Dr.

Delacruz took a throat swab and said that they would have to get results before any determination could be made about a tonsillectomy. [ 28 ] Ms. S. recalled that, during the examination, Dr. Delacruz wanted to listen to her heartbeat. He did this by exposing her left breast, folding her shirt and bra back so that her breast was exposed. He had told her that he wanted to listen to her heart before he moved her clothing. He had not asked her if he could expose her breast. She was uncomfortable but did not say this. [ 29 ] Ms. S. had some sore swollen bumps on her legs that were bothering her.

She had already tried, unsuccessfully, to have them diagnosed by another physician. She asked Dr. Delacruz to look at them. The bumps were on her shins. She pulled up her pant legs so he could see her legs. He ran his hands over the bumps and asked if they were anywhere else. She said no. He asked to check. He checked her upper body. She took her pants down to her ankles so he could check her lower body. He did not offer her a gown or offer to have a nurse or someone else present. [ 30 ] During the examination of her lower body, Ms. S. was standing and Dr. Delacruz was seated on a stool in front of her.

He examined the fronts of her legs and her abdomen, touching and pressing in all areas. He nudged her to turn around and she did so. He examined the backs of her legs, buttocks, and lower back. He touched and pressed all over. [ 31 ] He had her turn back to face him and he moved her underwear down to her knees. He examined her upper thighs up to her crotch. He put his fingers briefly between the lips of her vagina. He was not wearing gloves. She was uncomfortable throughout the examination but did not say anything. She had not wanted her vagina examined and had not asked him to do so.

He did not ask her if she wanted her vagina examined.

[ 32 ] Dr. Delacruz then went to his desk and wrote in his chart while she pulled her pants up. He told her he thought the bumps were an allergic reaction to an insect bite and gave her some sample medication. [ 33 ] Dr. Delacruz recalled that, for the August appointment, Ms. S. appeared with a sore throat and other symptoms (fever and malaise) that are associated with an upper respiratory tract presentation. He examined her throat, neck, nose, and ears and he listened to her lungs and her heart, using a stethoscope. He listened to her lungs from the back and front of her chest.

When listening to her heart, he got her to lift her shirt and he lifted her bra, using his stethoscope immediately under her left breast. [ 34 ] He did not have gowns in the examining room and believed that he most likely would have told her this and asked her to lift her shirt. He did not offer to have a chaperone present. He thought she was comfortable. He perceived her to be a mature 16 year old, not a pediatric patient. [ 35 ] Towards the end of the visit, after he had obtained a throat swab and told her that a decision about a tonsillectomy would have to await results of the swab, Ms.

S. told him that she was concerned about some lesions on her legs. He agreed to examine them. She pulled up her pant leg and he saw numerous irregular and discoloured lesions on her shins. He inspected them visually and palpated them. They were painful. He thought that they could be insect bites which caused an infection, but was unsure. There were other possibilities included in his differential diagnoses. He considered rheumatic fever, a sexually transmitted disease, or a tick bite. He asked to examine the rest of her body, as there can be skin abnormalities that a patient is not aware of.

She agreed. [ 36 ] He examined her upper body, including her armpits and chest. He asked her to lower her pants. He examined the front of her thighs as she stood in front of him and he was seated on a stool. He had a headlamp on and was bent over looking for lesions or markings, or ulceration, inflammation or redness. This position was not ideal for a maximum view, but he could see. He motioned her to turn and examined her buttocks and the backs of her thighs. The examination was primarily visual, but he also palpated her skin and lymph nodes in her groin.

He moved her underwear to look for lesions on the labia, and he pulled down her underwear and looked for discharge. He was not wearing a glove as he was not performing an internal examination. He did not contact her labia with his fingers, but did contact her groin area, and he moved her underwear to see her labia. [ 37 ] Dr. Delacruz testified that when he asked Ms. S. whether she wanted him to examine the rest of her body for rashes, he assumed she knew what would be involved and that she consented.

He believes he asked her to lower her underwear in the back, as he was examining her buttocks; he himself moved her underwear to expose her labia, and he removed her underwear, looking for discharge. [ 38 ] He did not find indications of rheumatic fever, a sexually transmitted disease or a tick bite. He concluded that she was likely having an allergic reaction to insect bites and gave her a sample of allergy medication. 3. Ms. F. [ 39 ] Ms. F. attended two appointments with Dr. Delacruz, in 2006 and 2008, in relation to problems that she was having that she believed were the result of chin implant surgery.

The charge before me relates to the second appointment on June 2, 2008. [ 40 ] Ms. F. knew that Dr. Delacruz was an ENT specialist, and understood that he also did cosmetic surgery. [ 41 ] She discussed the symptoms she was having in relation to her chin. The implant had already been removed, but she continued to have problems. Dr. Delacruz thought there could be muscle or nerve damage. He asked her if she had had other cosmetic surgery and she told him she had breast implants and work on her nose, both of which had turned out okay. Her breast implants were old, however, and she thought they might be leaking.

She wanted him to check and made sure they were still intact. [ 42 ] They went into an examination room. Dr. Delacruz examined her chin and face, asking where she felt pain. He told her to remove her top and bra so he could examine her breasts. She did so. He did not apologize for the lack of a gown and she did not ask for one. [ 43 ] He put one hand on each breast, squeezed her breasts and nipples and rubbed for some time. She said it felt like he was fondling her, playing with her breasts.

He told her that he thought the implants were still intact, and she said, okay, that was good. [ 44 ] He had noticed some red spots on her arm and asked her about them, how long she had them and whether she had other spots on her body. She said she had other spots, on her legs, buttocks, and abdomen, and moles on her back. He asked if she wanted him to examine the moles and she said yes. [ 45 ] He examined the moles on her back. He told her one mole was concerning, but he did not say which one. [ 46 ] He asked if he could see the other marks and she said yes.

She unzipped her jeans and pulled them down to the level of her pubic hair. He examined all over her hips and buttocks. He asked to examine the back of her thighs and she lowered her pants and underwear to just above her knees. [ 47 ] She felt uncomfortable, but did not say so. He felt her buttocks and then the insides of her legs. Then he used the fingers of one hand to spread the lips of her labia and then he inserted his finger into her vagina and back out. [ 48 ] She was shocked and froze.

He had not asked for permission before he put his finger in her vagina and she had indicated no concerns about her vagina. She had had vaginal examinations before and this was not a procedure that she was familiar with. [ 49 ] She thought he was not wearing gloves, as she remembered skin-to-skin contact. She agreed that when questioned in 2009 in relation to an investigation by the College of Physicians and Surgeons she had said that it was possible that he was wearing a glove but she could not see it and it did not feel like it. [ 50 ] Ms. F. confirmed that Dr.

Delacruz did not focus his examination on her genitals; he examined her back, buttocks, thighs, and

genitals and did not spend any longer examining any particular area of her body. [ 51 ] After the examination, they continued to talk about her chin. He said she could get dressed and he left the room. She spoke to him further in his office. He did not have a recommendation for treatment of her chin pain. They discussed her seeing a lawyer. He wrote a note on a prescription pad about what she could discuss with a lawyer, whether there had been informed consent regarding potential consequences of the chin implant surgery. [ 52 ] Dr. Delacruz testified that Ms.

F. made the June 2008 appointment directly with him in relation to problems with her chin. They discussed her other cosmetic surgery, a rhinoplasty and breast implants. He wanted to know how other surgeries had affected her. [ 53 ] Her breast implants had been in place since the 1980s, which gave rise to potential concerns regarding leaking. He asked her if she wanted him to inspect her breasts and she did. This examination takes place with the breasts exposed. She removed her shirt and he helped her with her bra clasp. For this examination, the patient is upright, with gravity pulling the implants down.

She stood in front of him. He did a visual examination and palpated deeply, feeling for any unusual mass. [ 54 ] He noticed that Ms. F. had large moles on her torso. Patients with breast implants have an elevated rate of skin cancer. He inquired whether she had moles that were changing, or were large or bleeding. She pointed to red marks on her abdomen and he explained that they were angiomas, benign birthmarks. She was not sure about other moles on her back and asked him to look. [ 55 ] He examined moles on her arms, chest and back.

One in particular was of concern, and he told her to have it photographed and watch for changes. She said that she also had moles on her hips and buttocks. He asked if he should examine there and she agreed. She took her pants and underwear down to around her knees. He examined her hips and buttocks, then put on a glove and examined her anal area. He also looked at the back of her thighs. He examined the area of the vulva, especially the labia majora and minora where there is an increased risk of skin cancer. He pushed the labia to the side to inspect, using his gloved hand.

He did not put a finger inside her vagina. [ 56 ] During the examination, he was sitting on a stool while she stood facing away from him. He used a headlamp and magnifying glass. With the light and magnification, he could see adequately. He thought it was easier than having her remove her pants and underwear fully and get onto the examining table. He did not feel it was necessary to move her to the bed and put her into a full lithotomy. [ 57 ] Dr. Delacruz acknowledged that he had not told Ms. F. that he would examine her vagina; he assumed she knew.

He was looking for marks on the skin in areas that she could not see herself. She had disrobed herself for the examination and he took that to be a form of implied consent. [ 58 ] He found nothing unusual in the lower body examination. After Ms. F. dressed, they went to another room and discussed her chin pain. She thought the plastic surgeon who had placed and later removed the implant was evading her. She did not believe the surgeon’s denial that the procedure caused her pain.

She had also seen a second plastic surgeon and a neurologist. [ 59 ] She showed him a legal form provided to her by the plastic surgeon, and they discussed the possibility of her going to see a lawyer. He wrote a note about what she should discuss with the lawyer (informed consent). C. Expert Witness Evidence [ 60 ] Two expert witnesses testified for the Crown. Dr. Bosch, an otolaryngologist, and Dr. Coe, an obstetrician and gynecologist. [ 61 ] Dr. Bosch testified that his examinations usually stop at the clavicle.

If patients raise a concern about a medical condition not in that area, he refers them to their family physician or another specialist. If he were presented with a 16 year old female patient for a tonsillectomy consult, who had a history of “racing heart” and was receiving treatment in the form of a “beta blocker”, he would not examine her heart and lungs, as he is not an expert in this area. He might hold her wrist to feel her pulse. [ 62 ] If an ENT patient disclosed bumps on their legs, he would tell them to see their family doctor.

If they raised issues about skin lesions below the clavicle, he might ask questions as skin issues may be connected to ear issues. He never examines the genital area of his patients; in his opinion, such an examination is not reasonable in an ENT’s office. [ 63 ] On cross-examination, Dr. Bosch agreed that some physicians have cross-qualifications. He himself has no training in cosmetic surgery, other than facial plastic and reconstructive surgery. He is not trained in breast surgery or labioplasty.

ENT specialists do treat skin lesions on the head and neck, and many skin lesions in this area are also found on other parts of the body. In this respect, the areas of competence of ENTs and dermatologists overlap. Bumps on the legs or other skin rashes could be related to a throat infection; so it could be reasonable in context to look at that area. However, it would not be reasonable to examine completely the genital area. He might ask, but he would not look. He would refer or turn the matter back to the family physician. [ 64 ] Dr. Bosch’s practice is in Calgary.

He performs surgery at a university teaching hospital. He has the ability to consult other specialists including dermatologists. He can also refer patients to pre-operative clinics. Smaller centres would not have all of the same resources. [ 65 ] Dr. Coe described the procedure that he uses to examine the pelvic area. It is important to establish rapport with the patient and explain what he will be doing while the patient is still dressed. He leaves the room while a female patient changes into a gown. She is told that she is entitled to have a chaperone if she chooses.

With patients under the age of 18, the procedure depends on their familiarity with the examination. They have an opportunity to have a parent or staff person present. [ 66 ] He examines patients in a dorsal position, with their feet up in stirrups. When there is skin-to-skin contact in the genital area, the physician should be gloved. A glove is not required to examine intact non-genital skin. It is his normal practice for a routine internal

examination to use one glove only. [67] It is unusual to have a vaginal examination with the patient standing; however, it could be an appropriate position dependingon the problem. The position would be very limited for visual examination. The position could be used to examine upper thighs and theinguinal crease. [68] Dr. Coe conducts complete physical examinations, from the face down, examining skin, breasts, and abdomen. He will havethe patient sit for a skin examination, and for a back examination could have the patient standing and facing away.

For buttocks, backs ofthe legs and external genitalia he would use a knee-to-chest or lateral position. He would not have the patient standing to look for skinlesions in the genital area. Lighting would be an issue and, even with a light source, it would not provide the best exposure. He does notwear a headlamp, but is aware that ENT physicians do so. [69] Dr. Coe testified that, in his understanding, when a patient comes to a medical office for a specific issue, the concept ofimplied consent applies. With discussion of the problem and the examination, the patient becomes comfortable. [70] Dr.

Coe does not perform cosmetic surgery; however, he is aware that cosmetic surgeons perform procedures on the externalgenitalia, including procedures to tighten the vaginal canal. He agreed that if a patient were contemplating vaginal surgery, it would bereasonable to assess the laxity of the vagina. When he assesses a patient for a medically required labioplasty, it is necessary to examinethe labia to determine what is to be removed. He will articulate the nature of the examination “to a point”, but the patient knows he isgoing to look at the labia and hear her issue and tell her what he can and cannot do. III.

Law - Sexual Assault [71] The meaning and scope of the offence of sexual assault has been the subject of extensive judicial commentary. The rulesinvolved are a combination of Criminal Code provisions and common law principles developed in Canadian jurisprudence. [72] Criminal Code, s 265(1)(

a) defines an “assault” as when a person “... without the consent of another person ... applies forceintentionally to that other person, directly or indirectly ...”. This includes a sexual assault: Criminal Code, s 265(1). [73] The Criminal Code however does not define what a sexual assault is. This issue was addressed by the Supreme Court ofCanada in R v Chase, (SCC), [1987] 2 SCR 293, 45 DLR (4th) 98, where McIntyre J for the court concluded thepotential sexual aspect of an assault is tested on an objective basis (para 11), and exists where

an act: ... is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. (para 11). [74] The test is both objective and contextual (para 11): ... "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" ... The partof the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and allother circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant ...

Theintent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor inconsidering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from theevidence, it may be a factor in determining whether the conduct is sexual.

It must be emphasized, however, that the existence of such amotive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [Citationsomitted.] [75] The elements of a sexual assault were defined in R v Ewanchuk, (SCC), [1999] 1 SCR 330 at para 23, 169DLR (4th) 193 and confirmed in R v Handy, 2002 SCC 56 at para 118, [2002] 2 SCR 908: ... The actus reus of assault is unwanted sexual touching.

The mens rea is the intention to touch, knowing of, or being reckless of, orwilfully blind to, a lack of consent ... [Italics in original.] [76] Sexual assault is a crime of general intent, therefore the Crown only need prove the accused intended to touch thecomplainant: R v Daviault, (SCC), [1994] 3 SCR 63, 118 DLR (4th) 469. General intent crimes “... do not require anintent to bring about certain consequences that are external to the actus reus ...” [italics in original]: R v Tatton, 2015 SCC 33 at para 35,[2015] 2 SCR 574.

I note that in R v Tatton Moldaver J at para 21 observes that the labels “general intent” and “specific intent” are “...not particularly helpful in describing the actual mental elements required for a crime ...” but instead relates more to the offence’s “... thecomplexity of thought and reasoning ...” and “... social policy underlying the offence.” [77] The absence of consent is subjective and “... determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred ...”: R v Ewanchuk, at para 26. [78] The Criminal Code provides additional guidance on the issue of consent.

For all assaults, sexual or not, certain factors cannotbe a basis to obtain consent: 265(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or

(

d) the exercise of authority. [79]

Section 273.1(2) identifies circumstances where consent is not obtained in relation to sexual activity: 273.1(2) No consent is obtained ... where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue toengage in the activity. [80] Criminal Code, s 273.2 restricts the potential scope of a mistaken but honest belief in consent defence in relation to sexualassault: 273.2 It is not a defence ... that the accused believed that the complainant consented to the activity that forms the subject-matter of thecharge, where (

a) the accused’s belief arose from the accused’s (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainantwas consenting. [81] Criminal Code, ss 265 and 273.2 identify factors that cannot be an objective basis for an honest but mistaken belief. So doescase law: 1. silence, passive, or ambiguous conduct is no basis for an honest but mistaken belief: R v M (ML), (SCC), [1994]2 SCR 3, 30 CR (4th) 153; and 2. ‘no” never means “yes”: R v Ewanchuk, at para 51. [82] The possibility of honest but mistaken belief is evaluated from the perspective of the accused: R v Ewanchuk, at para 45.

Ithas both a subjective and an objective component. Subjectively, the accused must believe consent existed. That, however, is consideredin light of objective factors, and not merely conjecture about what the complainant was thinking: R v Ewanchuk, at para 46. [83] The purpose of the reasonable steps to investigate requirement in Criminal Code, s 273.2(

b) was explained by Abella JA (asshe then was) in R v Cornejo (2003), (ON CA), 68 OR (3d) 117 at para 21, 179 OAC 182, leave denied [2004]SCCA No 32: The purpose of these provisions is to ensure that there is clarity on the part of the participants to the consent of the other partner to sexualactivity.

The legislative scheme replaces the assumptions traditionally - and inappropriately - associated with passivity and silence.Someone in [the accused’s] circumstances takes a serious risk by founding an assumption of consent on passivity and non-verbalresponses as justification for assuming that consent exists. [84] This is the same point made in R v M (ML), a non-response or an ambiguous response warrants investigation.

The timing ofthe inquiries is prior to touching, as is explained by Morden ACJO in R v Darrach (1998), (ON CA), 107 OAC 81,122 CCC (3d) 225 at para 90 (Ont CA), affirmed 2000 SCC 46, [2000] 2 SCR 443, that s 273.2(

b) requires that “a person about toengage in sexual activity take reasonable steps ... to ascertain that the complainant was consenting” [emphasis added.] [85] This component also has both a subjective and objective component. Reasonable steps are assessed from what, subjectively,the accused knew at the time (R v Darrach, at para 88), but then the finder of fact must ask whether the steps taken were reasonablefrom an objective standpoint, given that subjective knowledge (R v Malcolm, 2000 MBCA 77, 148 Man R (2d) 143, leave denied [2000]SCCA No 473). [86] In R v Ewanchuk at para 99, Madam Justice L’Heureux-Dube makes it explicit that Criminal Code, s 273.2(

b) bars relianceon an honest but mistaken belief in consent when one increases the level of sexual activity in the absence of explicit consent. [87] Restated, a sexual assault is: 1. intentional touching; 2. that is “... committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated”; 3. where the complainant does not consent to the touching, and 4 where the accused intended to touch, “knowing of, or being reckless of, or wilfully blind to, a lack of consent”.

IV. Honest but Mistaken Belief A. Preliminary Issue - Weighing the Evidence [88] The analysis that follows involves several agreed facts. The first is that the Dr. Delacruz’s touching of the complainants wasintentional; that is his testimony. The second is that the touching was of a sexual nature. As I have previously noted, that was a point notdisputed by the Crown and defence. [89] Returning to the elements of a sexual assault, that means what remains in question is whether: 1. the complainant had not consented to the touching, and 2. where Dr.

Delacruz had engaged in that touching, “knowing of, or being reckless of, or wilfully blind to, a lack of consent”. [90] At this point it is necessary to review the manner in which the Supreme Court of Canada has in R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397 [“W(D)”] instructed a finder of fact should approach exculpatory testimony of an accused.A W(

D) analysis (para 11) has three steps: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [91] One reason for the W(

D) procedure is to ensure that the criminal burden remains on the Crown to prove every element ofguilty beyond a reasonable doubt: R v JHS, 2008 SCC 30 at para 13, [2008] 2 SCR 152. The second key aspect is that the finder of factnot engage in a ‘credibility contest’ between the accused and other witnesses (R v CLY, 2008 SCC 2 at para 7, [2008] 1 SCR 5): The key is whether the correct burden and standard of proof were applied, not what words were used in applying them ...

Its purpose wasto ensure that triers of fact – judges or juries – understand that the verdict should not be based on a choice between the accused’s and theCrown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt.[Emphasis added.] [92] W(

D) is used to structure how a finder of fact approaches potentially contradictory evidence between the accused and others,typically complainants. However, for one aspect of the sexual assault analysis, the presence or absence of consent, Dr. Delacruz’sobservations and evidence is irrelevant. Consent is evaluated strictly on a subjective basis (R v Ewanchuk, at para 26): what thecomplainant was thinking at the time of the alleged sexual assault. This means that when I evaluate the complainants’ testimony onwhether they did or did not consent, I do that analysis outside the W(

D) procedure. The issue for me is whether I believe, beyond areasonable doubt, that a complainant did not consent to the touching that occurred. If the Crown enters evidence from a complainant thatthe complainant did not consent, and I believe that, then this element of the offence is proven: R v Ewanchuk, at para 29. [93] On the other outstanding issue, whether Dr. Delacruz had an honest but mistaken belief that the complaints had consented,since Dr. Delacruz testified I must first evaluate his evidence in isolation, following steps 1 and 2 of the W(

D) procedure. Only then, andif necessary, I will evaluate the Crown and defence evidence as a whole to determine whether Dr. Delacruz had a viable argument that hehad a mistaken but honest belief in consent. [94] This has both a subjective and objective component. If I believe Dr. Delacruz’s testimony that he believed he had consent toengage in the examination, then that meets the subjective branch of the honest but mistaken belief defence.

His evidence, if believed, isalso then part of an overall matrix of findings of fact on whether, objectively, he had a basis to hold an honest but mistaken belief inconsent, or instead whether he was reckless or willfully blind to the true situation. [95] Last, my findings concerning the in-court testimony of Dr. Delacruz and the complainants means an evaluation of a witness’scredibility and reliability. This is a multifactorial and contextual process.

In White v R, (SCC), [1947] SCR 268, 1947CarswellOnt 8 paras 8-10, the court described this task: The issue of credibility is one of fact and cannot be determined by following a set of rules that it is suggested have the force of law and,in so far as the language of Mr. Justice Beck may be so construed, it cannot be supported upon the authorities.

Anglin J. (later ChiefJustice) in speaking of credibility stated: by that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities of knowledge andpowers of observation, judgment and memory – in a word, the trustworthiness of their testimony, which may have depended very largelyon their demeanour in the witness box and their manner in giving evidence. Reymond v. Township of Bosanquet [(1919) (SCC), 59 Can. S.C.R. 452, at 460]. The foregoing is a general statement and does not purport to be exhaustive.

Eminent judges have from time to time indicated certainguides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate allthe possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong and theweak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity toremember and his accuracy in statement are important.

It is also important to determine whether he is honestly endeavouring to tell thetruth, whether he is sincere and frank or whether he is biassed, reticent and evasive. All these questions and others may be answered fromthe observation of the witness' general conduct and demeanour in determining the question of credibility. [Emphasis added.]

[96] I also am mindful of the instructions of the Supreme Court of Canada in R v Litchfield, (SCC), [1993] 4 SCR333 at para 9, 161 NR 161 that a court which considers an alleged sexual assault that occurs during a medical procedure should: ... neither ignore the testimony of a patient who complains of sexual assault nor underestimate the position of vulnerability in which apatient often finds herself when she is in the care of a professional medical doctor. ... and that when evaluating the potential sexual nature of touching the court (para 8): ... must have at its disposal as much relevant information as possible in order to determine whether the conduct was of a nature to whichthe complainant did not consent.

B. Ms. W. Offence Scenario 1. No Consent [97] A number of points are not in dispute in relation to Ms. W.’s interaction with Dr. Delacruz. Ms. W. voluntarily permitted Dr.Delacruz to examine her with the intention of possible plastic surgery treatment. One of the possible treatments was a vaginalrejuvenation. There is agreement that Dr. Delacruz examined Ms. W.’s labia and inserted a finger into her vagina. There are otherdifferences in the evidence concerning the physical contact that occurred, but I will address those separately. There was, in any case,intentional touching by Dr.

Delacruz. [98] I will next examine the issue of whether Ms. W. had subjectively consented to the touching that occurred. [99] There was inconsistency in Ms. W.’s evidence about whether she and Dr. Delacruz talked about the vaginal rejuvenationprocedure before or while Dr. Delacruz was examining her vagina. She testified that the discussion occurred during the examination. Oncross-examination, she admitted there might have been discussion about the surgery before the examination commenced. This is whatshe had testified to at the preliminary inquiry. The evidence is clear that Ms.

W. cooperated in preparing for a vaginal examination, byremoving her pants and underwear and putting her legs in a frog position. These actions only make sense if she already knew she was tobe examined in relation to a vaginal procedure, and no other procedure was being considered. [100] I conclude that Dr. Delacruz and Ms. W. must have discussed at least some aspects of the vaginal rejuvenation procedure beforethe examination took place. However, there was no evidence that Ms. W. was aware in advance that the procedure could includetightening the vaginal wall. Ms.

W.’s evidence was that she did not consent to having Dr. Delacruz put a finger inside her vagina. TheCrown submits that this demonstrates her lack of consent, as there must be consent for each specific touching. The defence does not takeissue with this submission. I find that the element of lack of consent is proven. 2. What Kind of Touching Occurred? [101] There is a significant inconsistency in Ms. W.’s and Dr. Delacruz’s accounts as to what kind of touching occurred. It is clear thatDr. Delacruz intentionally touched Ms. W., however, there is a dispute in the evidence as to the nature of the touching. Dr.

Delacruztestified that he touched her labia and inserted a finger into her vagina. Ms. W. testified that he “played with” or rubbed her clitoris. [102] I received no evidence that the kind of contact that Ms. W. reported had a possible valid medical purpose. [103] The procedure in W(

D) requires that I first evaluate Dr. Delacruz’s evidence on this point in isolation. If I believe him, then Ishould conclude his account of how he examined Ms. W.’s vagina is correct. [104] I found Dr. Delacruz to be a credible witness. He gave a full account of his encounter with Ms. W. His description of thecircumstances and details of his examination of Ms. W. is to a large extent corroborated by her evidence. It is also consistent with hisnotes. He was not evasive on cross-examination; he answered fully and explained his actions and the reasons for them. He admittedshortcomings in his practice.

For example, he agreed that he while he did not have gowns in his own examination rooms, he could easilyand quickly have obtained them from nearby examination rooms used in his wife’s practice. He agreed that he was trained that it wasgood practice to offer patients a gown, and to pull a curtain or leave the room while they are gowning. This is for the patient’s comfort.He conceded that his own practice in this regard was not ideal, in fact it was not good policy. [105] The Crown submits that I should find Dr.

Delacruz’s evidence not credible or less reliable because he wrote very brief notes onDecember 14, 2005 after his examination of Ms. W. and he later added to those notes. The circumstances were described by Dr. Delacruzas follows: some time after Ms. W.’s appointment, he was told by his receptionist that RCMP members had come to his office and wereseeking access to patient files. He did not know which patient had complained. He pulled out files involving “sensitive” examinations tomake further notes. On Ms.

W’s file, he wrote the date, “December 22” and three headings, “Addendum”, and he added further notesregarding his recollection of the examination. On direct examination, Dr. Delacruz recalled that he had made additional notes severalweeks later; on cross-examination when he was presented with the document he testified that all of the additional notes were made on thedate shown, December 22, 2005. [106] The Crown submits that Dr. Delacruz altered Ms. W.’s chart in the face of a police investigation, that this is discreditableconduct, and an after the fact action which brings his behaviour during Ms.

W.’s visit into question. I disagree. Dr. Delacruz specificallyidentified in the chart the fact that information had been added on a later date; he did not seek to conceal this fact, or that his actions weremotivated by concerns about a police inquiry. It makes sense that he would want to record his memory about events under investigationas early as possible. He did so within a relatively short time after the events, and his evidence that he had at the time and continues tohave a good recollection of the visit is credible. [107] Dr. Delacruz indicated he did not ‘play with’ or rub Ms. W.’s clitoris.

I accept that, and that would normally end the W(

D) analysis of this evidence. However, I will continue to comment on how, applying the third step of W(D ), I would interpret the combination of all the available evidence. My conclusion is that Ms. W. may have mistaken contact with her labia with contact with her clitoris. She did not see the examination. Dr. Coe explained that because the labia minora divide and go around the clitoris, forming the clitoral hood, manipulation of the labia minora can put indirect pressure on the clitoris. Ms. W.’s evidence, considered in light of the evidence of Dr. Delacruz and Dr.

Coe, does not satisfy me beyond a reasonable doubt that contact with her clitoris as she described in fact took place. I am not satisfied based on all of the evidence that this specific touching occurred. [ 108 ] This, of course, still leaves the implications of Dr. Delacruz touching Ms. W.’s labia and inserting a finger into her vagina. 3. Honest but Mistaken Belief in Consent? [ 109 ] The next issue is whether Dr. Delacruz had an honest but mistaken belief in consent to engage in the touching that occurred. [ 110 ] I believe Dr. Delacruz’s evidence that he touched Ms. W. for a medical, not a sexual purpose.

I accept Dr. Delacruz’ evidence that his examination of Ms. W. was conducted to determine whether she might wish to undergo a cosmetic surgery procedure known as a vaginal rejuvenation. There is no dispute that the examination that Ms. W. underwent was conducted in that context. [ 111 ] The evidence of both Dr. Delacruz and Dr. Coe was that this type of surgery involves reshaping the labia and potentially tightening the vaginal wall.

The touching that has been proven is consistent with a medical assessment for this procedure - touching the labia to assess what might be removed and contact with the vaginal wall to assess laxity. [ 112 ] Apart from the part of the body touched, other circumstances do not suggest that there was a sexual nature to the touching of Ms. W. The touching took place in a medical office in an examination room. Dr. Delacruz was wearing a lab coat and stethoscope. There was nothing sexual in Dr. Delacruz’ words and gestures accompanying the touching. [ 113 ] On the last point, I note that Ms.

W. said in cross-examination that Dr. Delacruz told her that her vagina looked funny. Dr. Delacruz testified that Ms. W. told him that her fiancé had said this to her. That is what Ms. W. very clearly told police when she spoke to them on December 14, 2005 – that she told Dr. Delacruz that her fiancé said she had a funny looking vagina. At trial, Ms. W testified that she made a mistake when she spoke to police, and that it was Dr. Delacruz who said these words. I found this explanation of her earlier statement unconvincing and do not accept Ms. W.’s evidence is this regard. [ 114 ] Dr.

Delacruz testified that he believed he had consent to touch Ms. W.’s labia and vagina. He and his patient had discussed the vaginal rejuvenation procedure as one plastic surgery option among others. Ms. W. had voluntarily adopted a position that permitted the examination. It is logical that a surgeon considering operating on a body region would examine that region as part of a pre-operative evaluation, and that would include physical manipulation and examination of the parts in a medically relevant manner. Dr.

Coe confirmed that it is reasonable in relation to this type of surgery to assess the laxity of the vagina and to examine the labia to determine what is to be removed. I have previously accepted Dr. Delacruz’s testimony that the touching he engaged in was medically relevant. I therefore conclude, on the first step of W(D) , that Dr. Delacruz believed he had consent to engage in the examination he conducted. [ 115 ] The next question is whether Dr. Delacruz was reckless or willfully blind in his belief that Ms. W. consented to the examination. I conclude the Crown has not established that was the case.

Again, the examination was conducted in a medical context, for a valid medical purpose, with an apparently cooperative patient. There was nothing in the circumstances to alert Dr. Delacruz that Ms. W. might not be consenting, or to indicate recklessness in his failure to make further inquiries. Ms. W. expressed an interest in being examined for the procedure; she cooperated in making the examination possible; and she did not indicate at any time or in any way that she had ceased to be interested. [ 116 ] Finally, did Dr.

Delacruz take reasonable steps, in the circumstances known to him at the time, to ascertain that Ms. W. was consenting? [ 117 ] The Crown argues that Dr. Delacruz cannot rely on the defence of honest but mistaken belief in consent because he did not meet the requirements of Criminal Code , s 273.2(b): that a person must “... take reasonable steps ... to ascertain that the complainant was consenting.” I disagree. Appellate case law makes clear when that inquiry must occur - prior to the touching: R v Darrach , at para 90.

As escalation in sexual conduct requires further reasonable inquiry: R v Ewanchuk at para 99 . Here, the facts are not in dispute: Dr. Delacruz was given explicit consent by the complainant to examine her. That was given before the touching occurred. [ 118 ] The Crown argues that the contact went further than was authorized, so Dr. Delacruz should have paused to make further reasonable inquiries. I disagree. The test of whether that additional inquiry is made with the knowledge of the accused, but evaluated on an objective standard. Dr. Delacruz reasonably understood that Ms.

W. wanted to be examined in relation to a possible vaginal rejuvenation procedure. The vaginal rejuvenation procedure involves reshaping the labia, and can involve tightening the vagina. The examination he performed was directly in relation to these aspects of the procedure. There was no escalation of sexual conduct requiring further inquiries; there was a continuation of a medical examination that had been consented to. [ 119 ] The Crown’s expert, Dr. Coe, testified that when he is assessing a patient for a labioplasty, he describes the examination “to a point” only.

He is satisfied that the patient knows he is going to examine the labia to explain what he can and cannot do. This evidence further supports the reasonableness of Dr. Delacruz’s belief and the reasonableness of the steps that he took to ascertain Ms. W.’s consent to the medical examination that he undertook. 4. Conclusion - Ms. W. [ 120 ] I accept that Ms. W. did not consent to Dr. Delacruz’s inserting a finger into her vagina. However, I also accept Dr.

Delacruz’s testimony that he did that with the honest belief he had consent to take that step, that he was not reckless or willfully blind in that belief, and that he took reasonable steps in the circumstances known to him to ascertain that Ms. W. was consenting. He could have communicated in a more explicit manner with Ms. W. on the nature of his impending examination, but it cannot be said that a physical

examination of that kind would be unexpected or out of place in these circumstances. [ 121 ] I therefore find Dr. Delacruz not guilty on Count 1. C. Ms. S. [ 122 ] The testimony of Ms. S. and Dr. Delacruz concerning the Aug. 11, 2007 appointment is largely consistent. Ms. S. initially arrived to evaluate whether she should have a tonsillectomy. Dr. Delacruz listened to her heart after moving her clothing. Ms. S. inquired about lesions on her legs. Dr. Delacruz conducted an investigation of her body to evaluate the nature of these injuries.

There is a divergence on the extent of genital touching which occurred during this examination. 1. No Consent [ 123 ] Like Ms. W., Ms. S. testified that she did not consent to the Dr. Delacruz touching of her genitals. She indicated she did not expect that kind of contact, and I accept her evidence on that point. 2. What Kind of Touching Occurred? [ 124 ] There clearly was intentional touching. Dr. Delacruz moved Ms. S.’s shirt and bra, or her bra, and used a stethoscope just below her breast. He also touched Ms. S.’s genitals, at least indirectly.

However, there is a discrepancy in the evidence about the exact nature of the touching of her genitals. [ 125 ] Dr. Delacruz testified that he visually examined Ms. S.’s labia, moving her underwear to do so. He also palpated lymph nodes in her groin, and he pulled her underwear down to check for discharge. He was not wearing a glove as he was not performing an internal examination. The examination did not focus on Ms. S.’s genital area. Dr. Delacruz visually inspected and palpated many areas of her body. Ms.

S. acknowledged that he spent no longer on her genital area than any other part of her body, and that contact with her labia was brief. [ 126 ] I have previously explained why I found Dr. Delacruz a credible witness in my analysis of the Ms. W. offense scenario, and the same conclusions apply here. The Crown submits that I should find that it is not believable that Dr. Delacruz would have such a detailed recollection of the examination, when he has seen many other patients since, and he had kept only very brief notes of the examination. [ 127 ] Regarding the examination of Ms. S.’ skin lesions, Dr.

Delacruz’s notes indicate “large welts anterior shin” and “nil else on body”. Dr. Delacruz acknowledged that his note-taking was brief and did not include items such as consent to examination or “pertinent negatives” which led him to reject possibilities considered in his differential diagnoses of Ms. S. [ 128 ] Dr. Delacruz indicated that it is not his practice to document consent, except for surgery. He did note consent to the examination in his added notes about Ms. W., but that was in the context of concerns about a police investigation.

His notes are usually brief because they are for his own use only, as he does not work with other physicians in a clinic setting. I do not know how common Dr. Delacruz’ note-taking style is, or whether it breaches professional rules; there was no evidence on this. However, nothing contained in the notes, or absent from them, causes me to find his evidence less credible or reliable. [ 129 ] As to the Crown’s point that Dr. Delacruz would be unlikely to remember details of the examination, this was put to Dr. Delacruz and he was firm in his responses that he does remember the examination.

He said that he does have a good memory and he remembers a lot of things about his patients. I accept this. It was apparent from Dr. Delacruz’ description that this was not a completely routine examination. Ms. S. presented with an unusual history and with a combination of symptoms that could be associated with potentially serious conditions. I found Dr. Delacruz’ description of his reasoning process and his examination of Ms. S to be convincing. [ 130 ] Since I have accepted Dr. Delacruz’s account of the kind of touching that occurred during his examination of Ms. S., that on the first step of W(

D) ends my investigation of how Ms. S. was touched. If I had continued my analysis to consider all the evidence I would nevertheless have found this was the extent of the touching. Ms. S. testified that she felt Dr. Delacruz put a finger or fingers on her labia. She did not see this, she had her head up and eyes closed. She was uncomfortable throughout the examination. She was very upset about it when she left Dr. Delacruz’s office, and remains very upset. While I have no doubt that Ms.

S. perceived the examination as a violation, I do have a doubt about her perception and recollection with regard to the specific detail of whether Dr. Delacruz directly touched her labia with his finger. Considering all of the evidence, including Dr. Delacruz’ denial (which I accept), and the potential that Ms. S. was mistaken, this particular form of touching has not been proven beyond a reasonable doubt, per the third step of W(D). 3. Honest but Mistaken Belief in Consent [ 131 ] The next issue is whether Dr. Delacruz had an honest but mistaken belief that Ms.

S. had consented to his examination and touching. [ 132 ] Ms. S. presented with a sore throat and other symptoms of an upper respiratory infection. She was interested in having a tonsillectomy. Her stated medical history included a rapid heart rate that was being treated with beta blockers. [ 133 ] Dr. Delacruz conducted an examination to assess those issues, which included listening to her lungs and heart. Dr. Bosch testified that he would not have listened to Ms.

S.’s heart, but he did not suggest that there was no medical purpose to doing so, only that he himself would not have conducted the examination, he would have had it done by another specialist or a family doctor or a physician at a pre-operative clinic. This difference in evidence does not, in my view, detract from the credibility of Dr. Delacruz’s evidence. It is simply a reflection of different professional situations. The difference in the styles of practice is explained by the fact that Dr.

Bosch has been practising in a specialized area for many years, in a large city and large hospital setting where there are many other resources available, while Dr. Delacruz was relatively new to the practice and practising in a smaller city and hospital, without the same resources.

[ 134 ] The evidence of both Ms. S. and Dr. Delacruz is that she then raised an additional concern with him about lesions on her legs. She wanted him to try to diagnose the lesions. After examining her legs, he considered it to be medically relevant to determine whether there were lesions or markings, or ulceration, inflammation or redness, on other parts of her body. Although Ms. S. thought there were no other lesions, Dr. Delacruz thought he should examine other areas of her body, because patients may be unaware of marks or lesions on their skin in areas that are hard to see.

He asked whether she wanted him to examine her body and she agreed. [ 135 ] The touching that followed was for the purpose of diagnosing the skin lesions. Dr. Delacruz was checking for swellings or lesions that would support possible diagnoses. Given the multiple possible diagnoses, the more expansive investigation made sense. [ 136 ] Ms. S. cooperated in the examination, removing clothing and moving as directed by Dr. Delacruz. She testified that she was uncomfortable, but said nothing because she was worried about the bumps on her legs and thought he might be able to diagnose them. I accept Dr.

Delacruz’ evidence that that is exactly what he was trying to do. [ 137 ] I accept Dr. Delacruz’ evidence that all of the touching had a medical purpose, and it was all performed to investigate issues that Ms. S. wanted him to investigate. That is sufficient for the subjective aspect of his mistaken belief in her consent. [ 138 ] Ms. S. expressly consented to an examination of her body. When Dr. Delacruz extended that examination to her genital area, was he wilfully blind or reckless regarding her consent?

Given the whole body nature of the examination, and that the entire examination was for the medical purpose desired by the patient, I find that there was nothing to indicate willful blindness or recklessness on Dr. Delacruz’s part. He had no reason to think that her consent to examination did not include this medically relevant step. [ 139 ] Did Dr. Delacruz take reasonable steps, in the circumstances known to him at the time, to ascertain that Ms. S. was consenting? [ 140 ] Dr. Bosch testified that it was unreasonable for an ENT specialist to examine a patient’s genital area.

Again, this difference in approaches is accounted for by differences in the practices, and also in the training, of Dr. Bosch and Dr. Delacruz. In light of those differences, the fact that Dr. Bosch would not have conducted this examination and Dr. Delacruz did so, is not significant. [ 141 ] My conclusion is Dr. Delacruz did make appropriate inquiries to Ms. S. to establish consent. Dr. Delacruz was authorized by Ms. S. to conduct a body examination to understand whether her leg lesions were a local phenomenon, or represented something else. Dr.

Delacruz correctly believed that he had been invited to examine and touch Ms. S. to evaluate her condition. He did so. Subjectively, he did not need any further authorization after Ms. S. authorized him to take medically appropriate steps to better understand her skin lesions. Objectively, it was reasonable not to seek further consent, as there was no escalation of sexual conduct, merely the continuation of an authorized medical examination. 4. Conclusion - Ms. S. [ 142 ] While I have accepted that Ms. S. did not consent to being touched in her genital region I also accept that Dr.

Delacruz’s testimony that his actions were based on an honest but mistaken belief he had consent to take those steps as part of a medical examination. The Crown has not disproven the defence of mistaken belief. I therefore find Dr. Delacruz not guilty on Count 2. D. Ms. F. [ 143 ] The examination of Ms. F. had several parts, two of which are potentially a basis for an allegation of sexual assault: Dr. Delacruz’s investigation of Ms.

F.’s breast implants, and the part of his investigation for skin cancer that extended to examination of her genital region. [ 144 ] There is really nothing about the examination of Ms. F.’s breasts, objectively speaking, that suggests anything other than a medical examination that had been expressly consented to by the patient. Ms. F. thought the examination felt different from other breast examinations that she had in the past, but she acknowledged that she had never before had the implants checked to determine whether they were leaking. [ 145 ] Dr. Delacruz described the nature of an examination.

His notes indicate that he examined Ms. F.’s breast implants, that there was no tethering, no scarring, no dimpling, no rippling, and no discharge, and his conclusion that the implants were “ok”. [ 146 ] There was no evidence to suggest that the examination varied in any way from accepted procedure for this type of examination. Neither Dr. Bosch nor Dr. Coe are experts regarding breast implant examinations, and neither testified on this point. An examination of breast implants would not be within Dr. Delacruz’s expertise as an ENT specialist, but he was trained and certified as an expert in the United States.

He had agreed with the College that he would not perform surgery below the clavicle, but there is no suggestion that he was violating his agreement by examining breast implants for leakage. [ 147 ] My analysis of the alleged illegal conduct will therefore concentrate on the body examination that followed Dr. Delacruz’s examination of Ms. F.’s breast implants. 1. No Consent [ 148 ] The evidence is clear that Ms. F. did not consent to the touching of her genitals. 2. What Kind of Touching Occurred? [ 149 ] It is clear that Ms. F.’s labia was touched.

There is a dispute in the evidence as to whether her vagina was touched. Ms. F. testified that Dr. Delacruz inserted a finger into her vagina. She thought that he was not wearing a glove. Dr. Delacruz testified that he examined the labia majora and minora for evidence of skin cancer. He pushed the labia to the side to inspect, using his gloved hand. He

did not put a finger inside her vagina. [ 150 ] Ms. F. was not certain about whether or not Dr. Delacruz was wearing a glove, but she was certain that he inserted a finger into her vagina. However, Ms. F. did not see the examination; she was in the awkward position of leaning forward and holding her pants and underwear around her knees. She described a brief contact, in which Dr. Delacruz used the fingers of one hand to spread the lips of her labia and then inserted his finger into her vagina and back out.

In these circumstances, it is possible that her perception or memory about exactly where and how she was touched may not be accurate. [ 151 ] I have previously indicated why I found Dr. Delacruz to be a credible witness. I believe Dr. Delacruz’s evidence that his examination of Ms. F. had a medical purpose. I will detail the reasons for this finding below. This finding is significant in relation to the nature of the touching. Dr. Delacruz did not suggest that there would be any medical reason to insert his finger in Ms. F.’s vagina.

As I accept this evidence, it follows that any such contact on his part would not be intentional. When I consider further that the position was not ideal for an examination of the vagina, and that the contact described by Ms. F. was very brief and immediately following contact with her labia, I conclude that it is possible that Dr. Delacruz put a finger in Ms. F.’s vagina unintentionally. [ 152 ] I therefore conclude under the third branch of the W(

D) test, considering all of the evidence, it has not been proven beyond a reasonable doubt that Dr. Delacruz intentionally inserted a finger into Ms. F.’s vagina. 3. Honest but Mistaken Belief [ 153 ] As to the examination of Ms. F.’s body, including the area of her vulva, I am satisfied that Dr. Delacruz undertook this examination for a medical purpose. He was authorized to do this investigation by Ms. F. [ 154 ] The fact that Ms. F. had breast implants, and large moles on her torso which he observed while examining the implants, raised a concern regarding skin cancer. Ms. F. wanted Dr.

Delacruz to examine her skin. The examination did not focus on the genitals. It included all areas of her body, as referred to in his notes: “numerous moles and angiomas – benign on chest; scaly mole, raised on back – [patient] to photo; buttock, vulva, thighs, legs ok.” [ 155 ] The fact that Dr. Delacruz is an ENT specialist, rather than a dermatologist, does not indicate that the examination was not performed for a medical purpose. Dr. Delacruz, like all ENT specialists, had some training in dermatology.

He had additional exposure to the area during his cosmetic surgery fellowship, and he had developed a practice in Grande Prairie in the treatment of skin lesions. There was no dermatologist practising in Grande Prairie. It was reasonable in the circumstances for Dr. Delacruz to offer a skin examination to Ms. F. [ 156 ] Dr. Coe testified that he would not perform an examination of the genital area from behind, with the patient standing. However, Dr. Coe does not wear a headlamp, and Dr. Delacruz does. Dr.

Delacruz explained that he felt he could see adequately, and he did not feel it was necessary at that point to have Ms. F. further undress and move to the bed. While the examination might be criticized as falling below the standard of care in terms of thoroughness, this does not indicate an improper purpose. [ 157 ] The defence submits that, in relation to credibility, a significant consideration is the fact that Dr. Delacruz suggested to Ms. F. that she consult a lawyer, even providing her a note for this purpose. Dr. Delacruz’s notes of his examination of Ms.

F. are noticeably more legible and detailed than what appears to be his usual style. He explained that he was careful in his note-taking because he thought, given his discussion with Ms. F. about her concerns regarding her chin implant, that he might eventually end up referring to his notes in court. I agree with the defence submission that it is not reasonable to suggest that Dr. Delacruz would have sexually assaulted Ms. F. at the same visit where he suggested she should consult with a lawyer, and was aware that his own examination of Ms.

F. could become the subject of evidence in court. [ 158 ] In conclusion, Dr. Delacruz was clearly authorized by Ms. F. to inspect her skin for potentially cancerous or precancerous features. The inspection he conducted was for that medical purpose. The Crown has not proven that in conducting that examination Dr. Delacruz was reckless or willfully blind as to whether Ms. F. had authorized him to examine her genital region. [ 159 ] Again, I conclude that Dr. Delacruz met the Criminal Code , s 273.2(

b) requirement to take reasonable steps to obtain consent. He asked Ms. F. if she wanted him to look for skin abnormalities. She pointed out some on her torso, which he then examined. He asked if she wanted him to look for potentially problematic moles. She said to do that, and so he did. I have concluded that Dr. Delacruz’s examination was medically appropriate (or that any additional contact was accidental), and therefore he had no obligation to make further inquiries. He did not escalate sexual contact; he completed the medical examination that his patient asked him to do. 4.

Conclusion [ 160 ] I conclude that the Crown has not proven beyond a reasonable doubt that Dr. Delacruz’s examination of Ms. F. was a sexual assault. The breast implant examinations were an appropriate medical procedure. Ms. F. authorized Dr. Delacruz to inspect her for possible skin cancer, which he did. I have concluded that the Crown has not proven beyond a reasonable doubt that Dr. Delacruz inserted a finger into Ms. F.’s vagina, but if he did, I conclude that was unintentional, and not an assault. Crown has not disproven the defence of honest but mistaken belief. I therefore find Dr.

Delacruz not guilty on Count 3. V. What are the Characteristics of a Sexual Assault? [ 161 ] As I have previously indicated, the parties did not dispute that the three incidents of touching were of a sexual nature. The Crown took the position that what is essential is that the nature of the touching violates the complainant’s sexual integrity. If a complainant gave evidence to that effect and indicates that they, subjectively, experienced a violation of their sexual integrity, then the touching is a sexual assault.

[162] The Crown submits that, apart from the purpose of the touching, there was a violation of sexual integrity because thecomplainants’ breasts and genitals were touched without their consent, and without even an opportunity to give or withhold consent. Thiswould amount to a finding that the part of the body touched is determinative of the sexual character of an assault. [163] I question whether the Crown’s position is correct in law.

I have not been referred to any case law that has held that a touchingof a patient’s genitals in the context of a medical examination, for a medical purpose, is a touching of a sexual nature. What is clear isthat the part of the body touched is not determinative: an assault may be sexual even if the victim’s sexual organs are not touched: R vChase, at para 9.

My question is therefore whether the mere fact that sexual organs were touched is sufficient to constitute a sexualassault, even if all of the other circumstances were not sexual? [164] The Crown’s position is that a sexual purpose for touching is a secondary, or even irrelevant factor. The key authority cited forthat proposition is the majority decision of the Ontario Court of Appeal in R v V(KB) (1992), (ON CA), 8 OR (3d) 20,52 OAC 393 (Ont CA), affirmed (SCC), [1993] 2 SCR 857, 154 NR 277.

It is worthwhile looking closer at the unusualfacts of this case to see if it supports the Crown’s proposition. [165] A father was convicted of sexual assault after he admitted to having painfully squeezed the genitalia of his three-year old son asa disciplinary step to have the son stop grabbing male and female genital areas. The Court of Appeal quotes at para 7 the trial judge’sconclusion that there was no element of sexual gratification in the father’s assault: “… however, the fact that it does not exist does notdetract from the indicia that I have found that the assault here was in fact sexual. …”.

The “other indicia” are not reproduced in theappeal judgment, and the trial proceeding is unreported. [166] The Crown highlights paragraph 10 of the Court of Appeal’s reasoning: I do not propose to attempt to set out a definition of the term "sexual assault". What elevates an assault to a sexual assault will depend onthe circumstances of each case. A sexual assault does not require sexuality and, indeed, may not even involve sexuality. It is

an act ofpower, aggression and control. In general, sexual gratification, if present, is at best a footnote. [167] This analysis continues to the review facts of the case: 13 The appellant's alleged purpose was to discipline his son for touching certain body areas of others. He considered his son'sbehaviour to be inappropriate because of the private and sexual nature of the anatomy involved.

He chose to modify what he viewed asinappropriate sexual intrusions by his son by doing to the child what the child had allegedly done to others. 14 In my view, the appellant's misguided and primitive disciplinary exercise was an aggressive act of domination which violated thesexual integrity of his son and constituted an assault which can properly be viewed as a sexual assault.

The attack is no less a sexualassault than would have been the case had the appellant attempted to discipline his three-year- old daughter in a generally similarmanner. 15 … the presence or absence of sexual gratification is merely one of the factors to be considered in determining whether a sexualassault has occurred … Sexual assault,

an act of power, aggression and control, does not require sexual gratification. In some cases, it isinimical to it. In my view, its absence in these circumstances does not detract from the finding that the assault here was sexual in itsoverall context. [168] Grange J in dissent concluded the admitted discipline was “misguided” and “... a cruel, unjustified attack upon a helpless child...”, but it was not a sexual assault: para 25. [169] The Supreme Court of Canada decision that confirms the trial result is very brief.

Justice Iacobucci quotes paragraph 11 of R vChase, and concludes (para 3): In the case at bar, the trial judge referred, as did Osborne J.A. for the majority in the Ontario Court of Appeal, generally to [R v Chase,para 11] in convicting the appellant. Among other things, the appellant, on three occasions, violently clutched the little boy's scrotumand there was evidence of bruising and severe pain.

In my view, it was clearly open to the trial judge to conclude from all thecircumstances that the assault was one of a sexual nature and that the assault was such that the sexual integrity of the appellant's son wasviolated. The Supreme Court decision does not endorse the Court of Appeal’s majority definition of a sexual assault as “...

an act of power,aggression and control... ” that “... does not require sexuality and, indeed, may not even involve sexuality ...”. [170] In the vast majority of sexual assault scenarios the two parts of the R v Chase sexual assault definition, “

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