) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2603

CITATION : R. v. Daniel Robert Marshall, 2013 ONSC 2603 COURT FILE NO.: 12-3735 DATE: 20130501 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – DANIEL ROBERT MARSHALL ) ) ) ) ) ) ) ) Janet Booy, for the Crown Jennie Stephenson, Brian Whitwham, for the Defence ) ) HEARD: March 18 – 22, 25,26,28, April 9 – 12, 15 – 19, and 29, 2013 The Honourable Mr. Justice Robert B. reid REASONS FOR JUDGMENT A. Introduction : [ 1 ] Daniel Marshall is a paediatrician. He has conducted a general paediatric clinical practice in Hamilton since 1987.

Most of his work is focused on treating children with behavioural, attention and mood problems, particularly involving attention deficit disorder and attention deficit hyperactivity disorder. His patients are typically referred from family physicians and sometimes from other specialists. [ 2 ] Dr. Marshall faces a total of 32 counts. The counts can be broken down into three distinct groups. [ 3 ] The first group consists of eight counts of sexual assault and 21 counts of sexual interference contrary to sections 271 (or

section 246.1(1)) and 151(

a) of the Criminal Code of Canada [1] , respectively. There are 20 complainants, all of whom are former patients and all were boys who were treated by Dr. Marshall prior to and/or during puberty. In each case, the touching occurred in Dr. Marshall’s medical office during the course of purported genital examinations. [ 4 ] The second group consists of three counts of sexual assault contrary to

section 271 of the Criminal Code relating to two complainants. The offenses are alleged to have taken place independently of Dr. Marshall’s medical practice when the complainants were between the ages of 15 and 19 in one case and the ages of 19 and 22 in the other. [ 5 ] There is one count of breach of recognizance contrary to section 145(3) of the Criminal Code , arising from alleged contact between Dr.

Marshall and one of the complainants outside the court during the course of the preliminary hearing and which contact was forbidden by the terms of his judicial interim release. [ 6 ] The matter began with a single complaint, followed by publicity and the solicitation of further possible complaints. Several more complainants came forward followed by further publicity and further charges. [ 7 ] To prove the charges beyond a reasonable doubt, the crown must show as to the sexual assault that there was intentional touching of a sexual nature and the absence of consent.

As to the sexual interference counts, the crown must prove that there was intentional touching of the complainants who were under the age of either 14 or 16, depending on the date of the offense, for a sexual purpose. [ 8 ] Because sexual assault is a crime of general intent, the crown need not prove a specific intent with respect to the sexual nature of the assault because it forms part of the actus reus .

The test is therefore an objective one where all the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainants’ sexual integrity. [2] B. The Patient-Complainants:

[ 9 ] Dealing first with the group of counts which involve the patients of Dr. Marshall, the crown alleges that he sexualized the doctor-patient relationship. There is no doubt about the intentional touching of the complainants’ genital areas. The key issue is whether the touching was of a sexual nature (for sexual assault) or for a sexual purpose (for sexual interference). [ 10 ] The complainants, and in some cases their mothers testified as to the circumstances of the genital examinations. Dr.

Marshall testified on his own behalf. [ 11 ] The complainants provided their recollections of the genital examinations and many of them testified that they felt that the examinations were improper, either at the time or on reflection. The following summarizes some of their recollections: [ 12 ] Patient: Comment: BA groped and touched testicles, stroked penis in an up-and-down motion for 10 to 12 seconds, had a tight grasp of penis and genitals with the whole examination taking about one minute. SA rubbed testicles and penis for five seconds at least.

JC felt testicles and penis, moved them back and forth between index finger and thumb, touching tip and all of penis and going all around it. AF stroked penis up-and-down for 3 to 5 minutes. AG checked for pulse and blood pressure under his testicles. Felt under his testicles for 10 to 30 seconds, thumb grazed his penis. Felt like a grope. JH poked above genitals, grabbed testicles and penis. Took about three minutes. Doctor had patient stand up and, with pants down, squeezed penis between index and middle finger and squeezed scrotum. TH grabbed his dink and felt like playing with his balls.

Felt like it took forever. MJ grazed penis with his fingers. Touched and grabbed his balls. Once squeezed testicles so hard it caused pain. Cupped the testicles with his hand. Lasted 1 to 2 minutes. BL poked his balls and also lifted up his wiener. TM fondled, rubbed and touched, felt like he was given a hand job, stroking his penis up-and-down a few strokes, for less than a minute. Grasped and rubbed testicles. CP pulled back foreskin, grabbed penis at base, grabbed and squeezed testicles and felt around. Lasted a couple of minutes. MP grabbed penis with a closed fist for two seconds.

NP fondled, squeezed and rubbed testicles, pulled on penis with his finger and thumb for 30 to 40 seconds. CR compared testicle with wooden balls, testicle in one hand and wooden balls in other. Lasted about 20 seconds. JR lifted penis and moved testicles, rolling them around between his fingers for 2 to 3 minutes. IR pulled down foreskin and touched his penis for a couple of seconds AS cupped and felt balls for a minute or two, like rolling marbles. Pulled on penis as if masturbating him for just over one minute. DW fondled his testicles.

Played with them like two benewah balls or golf balls rubbing together for 15 to 30 seconds like something you would see in a porn film. [ 13 ] The expert witnesses and Dr. Marshall himself agreed that there would be no medical purpose to cupping both testicles in one hand and rolling them between the fingers. It would be improper to palpate both testicles at the same time or to rub them together. Fondling of testicles would be improper with no medical purpose being served.

Likewise there would be no medical purpose to grabbing the shaft of the penis and pulling on it or stroking it up and down. [ 14 ] For his part, Dr.

Marshall denied the improper conduct alleged by the complainants but acknowledged that subjectively, the complainants’ experience of having normal genital examinations could have been misperceived and considered by them as improper. [ 15 ] In addition to the perceptions of the complainants, the crown relied on several factors which I have collected into three groups to support the allegation that the touching was of a sexual nature: • that there was no medical purpose for the genital examinations; • that even if there was a medical purpose for an initial examination, the examinations happened with unwarranted frequency; and

• that the examinations were performed in improper circumstances with Dr. Marshall using improper methods. [ 16 ] The crown’s position was supported by expert evidence. Dr. Marshall denied each of the allegations of impropriety and called expert evidence to rebut the crown witnesses. [ 17 ] The crown also made a similar fact application, urging that the evidence of any individual count could be supported by the evidence in the other counts in order to establish proof beyond a reasonable doubt. [ 18 ] I have reviewed the evidence as it relates to the three factors to which I have referred. (

i) No Medical Purpose: [ 19 ] With one exception, all the patient complainants were referred to Dr. Marshall as a result of behavioural, mood or attention issues. Most of them had an initial physical examination on either the first or the second visit which included a genital examination. None of the patients identified medical problems relating to the genitals. Several of the mothers expressed surprise and in some cases indignation that a genital examination was necessary given that the referral was for behavioural issues. [ 20 ] Dr. David Warren testified on behalf of the crown.

He was qualified as an expert in paediatrics and child abuse. As a paediatric emergency consultant, he has had numerous opportunities to assess ADHD and other behavioural issues in patients. He teaches acute care, emergency, and general paediatrics as well as child protection to medical students. In his opinion, it is important to take an extensive history in the initial consultation as well as to conduct a full physical examination. As part of that physical examination, a general genitourinary examination would be expected including a visual inspection of the genitalia.

If any abnormalities were noted, a more specific genital examination would be required which would typically be by another specialist or the patient would be referred back to the family physician. He testified that there was no expectation of a manual genital examination in a behavioural referral. [ 21 ] Dr. Shobha Wahi was also called as a witness for the crown. She was qualified as an expert in paediatric medicine and child abuse. She teaches at medical school and has a clinical practice where she sees children with all issues including abuse and neglect. Half or more of her patients have behavioural issues.

In her practice, where there is a behavioural issue referral, she takes a detailed history and secures written questionnaires from the patient, school and parents. A general physical examination is performed but she leaves out the genital examination unless concerns are raised by a parent or the referring doctor. This is because in her view many children attending for behavioural issues are hesitant to consult the doctor in the first place and a genital examination can be upsetting.

She typically advises the referring physician that she has not performed a genital examination. [ 22 ] Testifying in his defense, Dr. Marshall indicated that he performed a genital examination as part of the general physical assessment for all new patients in the first or second appointment. This was in part because, until about 2002, OHIP required a complete examination for billing purposes. Also, his experience is that family physicians rarely perform genital examinations and that it is appropriate for him to do so to ensure that there are no abnormalities.

He conceded that asymptomatic abnormalities such as testicular cancer, undescended testicles, varicoceles and unretractable foreskins are rare but routinely should be ruled out. Finally, he indicated that in his specific practice, it is necessary to do an initial genital examination in order to assess the patient’s stage of puberty to establish a baseline. That allows him to determine subsequently whether any prescribed stimulant medication is negatively affecting pubertal development. [ 23 ] Dr. Martin Levin was called as an expert for the defence.

He has expertise in paediatrics and adolescent medicine and operates a clinical practice in which issues of anxiety, depression, learning disability and mood in adolescents occupy a significant part. Dr. Levin routinely performs genital examinations on patients. He reviewed the clinical charts made by Dr. Marshall as regards the patient complainants and in each case considered that it was reasonable for Dr. Marshall to have performed the genital examinations as charted. (ii) Unwarranted Frequency: [ 24 ] Six of the 20 patient complainants had only one genital examination by Dr. Marshall.

The remaining 14, according to Dr. Marshall’s charts, had between 2 and 11 genital examinations and some recalled having significantly more. [ 25 ] Dr. Marshall explained that for patients who were prescribed stimulant medication as a result of their ADHD or similar conditions, it was necessary to monitor how the medication might be affecting their pubertal development. In the early years of his practice, he tended to conduct genital examinations on his patients during visits that coincided with school report cards when he would be monitoring the patients’ progress.

This meant that in some cases, patients had genital examinations every 3 to 4 months. In 2002, as a result of a complaint made by a patient to the College of Physicians and Surgeons, Dr. Marshall received a verbal caution from the complaints committee which recommended in part a reduction in the frequency of genital examinations. He testified that following receipt of the caution, he did reduce their frequency and did not even perform the initial genital examination until the patient was closer to or at an age when puberty was imminent. [ 26 ] Dr.

Levin agreed that based on his own experience in clinical practice with adolescents who experienced behavioural problems, the use of stimulant medication did affect the progress of puberty. According to him, the current state of medical knowledge is that stimulants attenuate growth but the issue is: by how much, and for how long? However he noted that in the 1980s and 1990s, perhaps based on the difference in medication used then as compared to now, there was a worry that use of stimulant medication could permanently affect growth.

As a result, he found it helpful to assess height, weight and the patient’s progress in puberty when on medications. Dr. Levin reviewed Dr. Marshall’s individual patient charts for the complainants and in each case confirmed that the frequency of genital examinations noted was reasonable. [ 27 ] Dr. Warren opined, based on current medical literature, that there is no known side effect of any medication typically used for treatment of ADHD or similar behavioural issues that relates to pubertal development.

He relied on Health Canada and drug company information and also on the Compendium of Pharmaceuticals and Specialties [3] (“CPS”) which is the comprehensive source for drug information in Canada. Based on his view of the lack of relevant side effects, and after a review of the patient charts, Dr. Warren gave

evidence that there was no medical justification for the repeated genital examinations. In the specific case of CR, where a varicocele was discovered during the third genital examination, Dr. Warren would have referred him back to the surgeon for follow-up rather than monitor his progress through repeated examinations as was done by Dr. Marshall. [ 28 ] In response on the issue of pharmaceutical literature, Dr. Levin indicated that he relies primarily on his own experience and that of colleagues as to the effect of specific drugs on his patients and only consults the CPS when he is not familiar with the drug.

He also noted that many of the drugs, in the dosages prescribed, are “off label” for adolescents and therefore the CPS is not a reliable indicator for side effects in young patients. (iii) Improper Circumstances and Methods: [ 29 ] Several criticisms of Dr. Marshall’s examination practices were made by the crown, in support of the allegation that he was sexualizing the doctor-patient relationship.

These included: • failure to wear gloves • failure to invite patients to undress privately and be draped or put on a hospital gown • failure to have a monitor present • touching the patient’s genitals without being able to see them • having the patients lie down for the genital examination • making inappropriate sexualized comments • doing manual rather than visual genital examinations (

a) Gloves: [ 30 ] Dr. Marshall admits that he did not wear gloves as part of his normal procedure in performing genital examinations. He excused this by saying that he was not trained to do so, that he may have a latex allergy, and that he has eczema which causes some reduced sensation in his fingers. He admitted wearing gloves for certain other procedures such as rectal examinations.

In his 2002 caution by the College of Physicians and Surgeons, it was suggested that he consider wearing gloves to desexualize the genital examination “in a spirit of respect for the patient” and thereby lessen patient fear and anxiety. The College did note, however, that there is no medical requirement for wearing gloves during the genital examination. Dr. Marshall did not raise the excuse of eczema or a latex allergy at that time, and chose not to accept the College’s recommendation. [ 31 ] Drs. Warren, Wahi and Levin all confirmed their practice and teaching that gloves be worn.

Patients are made more comfortable and both doctor and patient are protected from contamination. (

b) Gowns or Drapes: [ 32 ] Dr. Marshall conducted the genital examinations in one of two fashions. He would typically have his patients lie on the examining table and open their pants, following which he would lift their underwear and manually examine the penis and testicles. Some patients testified that Dr. Marshall himself opened their pants. On some occasions, Dr.

Marshall would have the patients stand in front of the examining table and drop their pants and underwear so that he could proceed with the examination. [ 33 ] He did not offer the patients an opportunity to privately remove their clothes and change into a hospital gown or cover themselves with a drape prior to the examination. Dr. Marshall said that in his view, drapes or gowns might increase the patient’s anxiety by formalizing and lengthening the process. [ 34 ] Dr. Warren gave evidence that a patient should be gowned for the examination. [ 35 ] Dr.

Wahi would rarely do a genital examination but if she did, her procedure would be to give the patient a gown and then leave the room for privacy, instructing the patient to take his pants and underwear off. Then, with the child on the examination table, she would lift the gown and examine the genitals. [ 36 ] Dr. Levin testified that he is strict about giving his patients the option of wearing a gown or robe and that rarely would he have patients leave their clothes on for the examination. (

c) Monitor [ 37 ] Dr. Marshall’s practice was to have a parent present in the examining room for prepubescent patients. During the genital examination, he would position himself between the parent and the child to provide privacy. For older children, Dr. Marshall would invite the parent to wait outside during the examination since in his experience, young males during puberty do not want their mothers to be present. After a further caution from the College of Physicians and Surgeons received in 2006, Dr. Marshall modified his general practice so that the parent would not leave unless the patient insisted on it.

In his view, the parent represented someone with whom the patient was familiar and helped ensure the doctor’s own security. There might have been a few times since the 2006 caution that a parent was asked to leave. He did not use a third-party monitor. [ 38 ] Dr. Warren testified that both doctors and the public recognize that it is appropriate for a child to have a parent present during most examinations and specifically in genital examinations for young children. For older children, he would typically ask if the child

prefers a parent or an alternative person such as a nurse or medical student to be present. According to the Canadian Paediatric Society policy statement on the conduct of genital examinations [4] , for patients from infancy to school age, a parent should stay close to assist the child. With older children or adolescents, a third person other than the parent should be present as a monitor. [ 39 ] Dr. Wahi advised that if a genital examination is needed, she would have a parent or guardian present and would not ask them to leave. She would ask the child if he wanted privacy.

The situation was rare enough in her practice that she could not recall if a third party was ever present in the absence of a parent. [ 40 ] Dr. Levin indicated that his practice is to tell the patient and the parent when a genital examination is about to be done and then ask whether the presence of the parent is comfortable for the child. Often adolescents do not want a parent to be present. He would always have a third person present during genital examinations of females but not usually for same-sex examinations. (

d) Examinations without seeing genitals: [ 41 ] Several of the complainants indicated that when they lay on the examination table with their pants undone, Dr. Marshall would pull up the waistband of their underwear slightly, insert his hand and feel their genitals. Dr. Marshall denied this, indicating that whenever he performed a genital examination, he pulled the underwear up sufficiently to allow a visual observation of the genitalia. There was no disagreement amongst the experts that it would be improper as a medical procedure to perform a genital examination without being able to see the patient’s genitals. (

e) Standing or lying down: [ 42 ] As noted, Dr. Marshall typically asked the complainants to lie down on the examination table for the genital examination. Occasionally, the examination was performed with the patient in a standing position. [ 43 ] Dr. Warren advised that a genital examination on an adolescent boy typically should occur with the person lying down. To examine the penis, testes and scrotum, there is no need to stand. There are exceptions, for example to examine for a hernia, where a standing position is preferable.

He referred to the policy statements established by the Canadian Paediatric Society in 1999 [5] as to how to perform a genital examination on children. Those policy statements include an instruction to examine boys laying on their side or lying flat. [ 44 ] Dr. Wahi admitted that a proper examination could be done in either the standing or lying position and that certain things could be seen more easily when standing. (

f) Sexualized comments: [ 45 ] Several witnesses testified that during the course of their conversation with Dr. Marshall, he made sexualized comments. For example, in looking into their ears, he might say that he saw pictures of girls and ask whether the patients had been thinking about girls. He might have said that he hoped there were no naughty pictures in there. Dr. Marshall asked some of the complainants if they masturbated, or had tingly sensations “down there” or experienced erections.

Some of these conversations occurred when the patients were quite young and prepubescent and in some cases, the attending parents were upset by the comments. [ 46 ] Dr. Marshall did not dispute the allegations. Some comments he characterized as corny jokes but all were apparently designed to help him understand the patients’ stage in puberty and provide advice as required. The expert witnesses did not express any concern about the language used or the subject matter raised by Dr. Marshall. (

g) Manual examinations: [ 47 ] All the patient complainants alleged that Dr. Marshall touched their genital areas inappropriately. [ 48 ] Dr. Marshall responded that it was medically appropriate for him to perform a manual genital examination on each of the occasions when touching occurred. A manual examination typically included a lifting and palpation of the penis to see if it felt normal. He would typically retract the foreskin in uncircumcised patients and observe the urethra. The testicles would be palpated by individually rolling them between his thumb and two fingers.

As well, he would feel the scrotum for varicoceles and run his fingers up the spermatic cord. The genital examination would take approximately 30 seconds in total. Dr. Marshall indicated that his method of examination was consistent with his training and was necessary to check for abnormalities as well as pubertal development. He did not feel that a visual examination of the genitalia was sufficient. After the cautions in 2002 and 2006 from the College of Physicians and Surgeons, Dr.

Marshall testified that he reduced the frequency of genital examinations and in particular the frequency of manual examinations but noted that since in 2006 he has found significantly fewer varicoceles and other abnormalities in his patients. [ 49 ] As I have noted, Dr. Warren did not consider that a specific genital examination was a necessary component in the examination of adolescent patients with behavioural issues. However he did allow that it was reasonable to do a full physical assessment. In his view the genital portion of the general physical examination should be visual.

It could be done in particular if there was a report of aggressive sexual activity by a young patient such that sexual maturity should be measured. That measurement is made through what is known as Tanner Staging, which is a standard visual method of gauging the size of the penis, measuring its length and girth, looking at the scrotum, the size of the testicles and the development of pubic hair. In his view, if abnormalities or concerns were identified from the visual examination, there could be a reference to a further subspecialist such as an endocrinologist for further investigation.

Typically, the Tanner Staging did not involve a specific measurement although he noted that an endocrinologist might measure the size of testicles with an orchidometer, basically a tool with a series of balls of different volumes which could be used as comparators. There would be no medical purpose to retracting the foreskin since that could be perceived as fondling. [ 50 ] Dr. Wahi testified that instances of asymptomatic genital abnormalities in adolescents including testicular cancer and

undescended testicles are extremely rare. As a result, she did not see the need for regular genital examinations. She acknowledged that Tanner Staging could be appropriate for select patients taking medication for ADHD if growth became an issue. It would be done visually and only if necessary would palpation occur. [ 51 ] In considering Tanner Staging, Dr. Levin testified that the examination would be partly visual and partly manual, in the latter case because it is difficult to assess testicular volume without palpation.

In his view, the use of an orchidometer represented a high standard of practice and a more exact measurement of testicular size than would be the case through simple estimation. In a genital examination, he would palpate the penis and testes for lesions and other abnormalities. He would retract the foreskin in sexually active adolescents, checking for concerns and also providing an opportunity for patient education. He typically talks his way through the examination which he testified is comforting for the patients and provides them a sense of relief when they are assured to be developing normally.

The entire genital examination including palpation would take approximately 15 to 20 seconds and could generate a significant amount of information for the physician. (iv) Credibility and Reliability of Witnesses: [ 52 ] With limited exceptions, to which I will refer, the credibility of complainants and their mothers was not in doubt. [ 53 ] Many gave evidence of their recollections as children, concerning events that occurred up to 25 years ago. For half the complainants, the events occured more than 10 years ago. [ 54 ] As set out by Chief Justice McLachlin in R. v.

W.(R.) [6] : In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [ 55 ] There were inconsistencies within the evidence given by the witnesses. For example, AF recalled seeing Dr.

Marshall at two different offices. The addresses to which he referred coincided with the addresses noted in the police publicity. It appears from a review of AF’s medical chart and relevant hydro records that Dr. Marshall only practiced out of one office during the time of AF’s attendance for treatment. Other patients had an imperfect recollection of the number of office attendances or the number of genital examinations, as compared with Dr.

Marshall’s medical charts. [ 56 ] Inconsistencies of that nature fall under the category of peripheral matters where the age of the witness compounded by the passage of time may make for imperfect recollection but not a lack of credibility. [ 57 ] All the complainants except one were referred specifically for behavioural issues, often arising from ADD and ADHD.

Some had histories of depression, learning disabilities, school problems, oppositional defiance disorder, difficulty with concentration, nervousness, and anxiety. [ 58 ] The presence of those issues must also be considered when assessing the credibility and also the reliability of the evidence offered. It is not unreasonable to consider that some details, especially what was said by Dr.

Marshall during the course of treatment may have been forgotten or not well understood at the time. [ 59 ] With the exception of the initial complainant, all the others responded to the police for the first time following the publicity surrounding the initial or subsequent charges. In and of itself, that is not a matter which must negatively affect their credibility. As several witnesses explained, unpleasant memories of the genital examinations performed by Dr.

Marshall had been pushed to the back of their minds until the publicity suggested that sexual assaults on others may have occurred. [ 60 ] Except for one complainant, they had no previous experience with any genital examination performed by a doctor prior to involvement with Dr. Marshall. That meant they had no basis for comparison. Three complainants had subsequent genital examinations, one as a result of a serious injury, one relating to an illness and the other as part of a pre-employment physical. Both were reported to be of a different nature than the examinations performed by Dr. Marshall. (

v) Evidence of Dr. Marshall: [ 61 ] I have referred to the explanations offered by Dr. Marshall as to why and how often he chose to perform genital examinations on the complainants. I have also referred to his justification for the procedure used. Dr. Levin found the genital examinations to be medically justified and as to the procedure adopted, found it to be within a range of acceptable possibilities. Dr. Warren disagreed. [ 62 ] In considering Dr. Marshall’s evidence, I am of course required to direct myself according to the analysis set out in R. v. W. (D.) [7] .

If I accept his evidence that there was no touching for a sexual purpose or of a sexual nature, I must acquit. Even if I do not believe his evidence, if it leaves me with a reasonable doubt on the issue of touching for a sexual purpose or touching of a sexual nature, I must still acquit. Finally, even if I do not accept his evidence, if the rest of the evidence in the case leaves me with a reasonable doubt on that essential element of the charges, I must acquit. (vi) Consent: [ 63 ] The evidence of Dr. Marshall was that he did not specifically ask for consent to do a genital examination in most cases.

He followed a consistent practice to the effect that, at a certain point in the physical examination, he indicated what he was about to do in language appropriate to the patients. For those who were too young to understand more formal language, he would advise to the effect that he needed to examine them “down there”, or examine their “private area”. He testified that if there was a concern expressed, he would explain in greater detail and that he would not proceed if there was an objection.

[ 64 ] Since lack of consent is an essential element of the offense of sexual assault, the crown has relied on section 265(3) (

c) of the Criminal Code that no consent is obtained where the complainant submits by reason of fraud. The fraud in this case would be Dr. Marshall’s conducting of the genital examination under the guise of a medical purpose if the touching was actually of a sexual nature. Alternatively, the crown relies on

section 273.1(2)(

c) of the Code which vitiates consent where the accused has induced the complainant to consent to the touching by abusing his position of trust, power or authority, in this case by virtue of being a medical doctor. The issue of consent is not a factor in the sexual interference counts. [ 65 ] Counsel for Dr. Marshall appeared to argue the defense of apprehended consent on the basis that, after telling the patients what he intended to do, Dr. Marshall understood in good faith that he could proceed.

I find that that defense is not available if consent is vitiated under the other sections of the Criminal Code to which I have referred above. (vii) Similar Fact Evidence: [ 66 ] The crown submitted that I should consider the evidence on each of the individual counts in relation to the others to create a pooling effect so that the evidence relating to one count could be used to bolster the evidence of the others.

The cumulative effect of the counts could then establish proof beyond a reasonable doubt. [ 67 ] Normally, it would not be acceptable to prove one count on the basis that the accused has a propensity to do a certain thing. Similar fact evidence is presumptively inadmissible and the crown bears the burden on the balance of probabilities of satisfying the court that it should be admitted. As the Supreme Court of Canada noted in R. v.

Handy [8] , “The danger is that the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence.” [ 68 ] As confirmed by the Supreme Court of Canada in R. v. Arp [9] , similar fact evidence is admitted on the basis of an objective improbability of coincidence and therefore the evidence necessarily derives its probative value from the degree of similarity between the acts under consideration.

In a case such as this one, where the issue is not the identity of the accused but the question of whether a crime has been committed, there need not be a “striking similarity” in the manner in which the crimes are alleged to have been committed.

Once a finding is made that the accused’s involvement in the alleged similar acts is unlikely to be the product of coincidence, the evidence related to one count may be admitted to prove the commission of the offenses alleged in the other count or counts beyond a reasonable doubt. [ 69 ] Amongst the patient-complainant counts, all involved genital examinations performed in Dr. Marshall’s office. All the complainants are boys. All were told, not asked about the impending genital examination. All but one had behavioural issues. Parents were present on about half of the occasions.

All the complainants except one had their own family physicians. In the examinations themselves, Dr. Marshall never wore gloves, and never had the patients draped or gowned. The manner of the actual examination was similar in each count as were the reasons for the examination: either to establish a baseline to ascertain genital health and pubertal development, or to monitor pubertal development during the course of drug treatment. Many of the examinations included some form of “sex talk” by Dr.

Marshall. [ 70 ] There was no evidence of collusion amongst the patient-complainants. [ 71 ] I agree with the crown that the evidence on all of the individual patient-complainant counts should be available in relation to the others. To quote Justice Iacobucci in R. v. Litchfield at paragraph 40 : ….the evidence was not tendered solely to show that the respondent was a person of bad character or of a disposition likely to commit the alleged offenses.

Rather, the evidence provided information highly relevant to understanding the context in which the alleged offenses occurred and shed light on the nature of the respondent’s relationship with his patients, particularly the standard of medical treatment he provided. [ 72 ] All the similarities relate to the actus reus of each offense, and also to the context within which the court must consider the question of whether the touching was of a sexual nature and violated the complainants’ sexual integrity. [ 73 ] In my view, the probative value of admitting evidence of the individual counts in relation to the others substantially outweighs the prejudicial effect. [ 74 ] The crown also submitted that I should consider the evidence of the non-patient complainants as supportive of the patient- complainant counts using the same similar fact analysis.

I decline to do so. The facts of the non-patient complainant counts are set out below. They are in my view significantly dissimilar to those of the patient-complainants. They relate to two young adult men rather than pubescent boys. They do not relate to genital examinations. The circumstances occurred, for the most part, outside of the doctor-patient relationship and not in a medical office. The alleged facts are significantly different from the touching described by the 20 patient- complainants.

To accept the crowns submissions would lead directly to the danger of propensity reasoning which is prohibited. (viii) Analysis and Conclusion as to the patient-complainants: [ 75 ] I will deal first with a general assessment of the evidence, analogizing from the “pooling” process in the similar fact analysis and then deal with the counts on individual basis. [ 76 ] It is important to acknowledge that for the complainants, a genital examination was not a pleasant experience. The examinations were described, for example, as awkward, embarrassing, weird or disgusting.

However, in and of themselves, those characterizations do not mean that the examinations were improper. [ 77 ] For all but one of the complainants, they had no previous experience with a genital examination and therefore no basis for comparison. For three of them, subsequent genital examinations occurred. Those later examinations happened in different circumstances and at a significantly later age such that I consider their evidence of comparison sheds little light on the efficacy of the examinations

performed by Dr. Marshall. [ 78 ] The experts agreed that there is a greater sensitivity today by members of the public as well as by members of the medical profession to issues about healthcare for children and in particular to sexual health and safety issues. Dr. Warren testified that in the past 20 or 30 years, there has been an increasing awareness of those matters. Dr.

Levin noted that in recent years there has been significant publicity about Internet luring and Internet-based pedophilia, and therefore more public awareness of what is appropriate or inappropriate, including the touching of children’s genitalia. It is common knowledge that in Canada, child sexual abuse in residential schools and religious institutions, to name but two problem areas, justifiably have attracted public attention and condemnation.

This greater sensitivity is appropriate, and must be taken into account when considering the reliability of the children’s perceptions. [ 79 ] Some of the complainants initially assumed that the genital examinations were proper at the time, but became concerned once the news reports about the initial charge against Dr. Marshall were publicized. Several of the parents similarly had no reason to question the examinations at the time but became concerned, understandably, that their children had been abused when they learned of the charges against their child’s current or former doctor.

Some of the parents testified that they had no expectation for or understanding of why genital examinations were necessary when they were consulting Dr. Marshall about behavioural issues. Since there was no reason to object at the time, the late reporting cannot be criticized but likewise the reporting itself does not mean that the examinations at the time were improper. [ 80 ] What can be criticized is the lack of clear explanation, in advance, as to the purpose and procedure of the genital examination. Dr.

Levin testified that he talks his patients through the examination and uses the occasion for patient education. Given that the patients were experiencing an awkward and embarrassing procedure with which they were not familiar, added to the fact of their young ages and that they were typically being treated for attention deficit or mood disorders, a careful and detailed explanation was called for. This was consistent with the recommendation of the College of Physicians and Surgeons when Dr. Marshall was cautioned in both 2002 and 2006.

Of course, the lack of clear explanation feeds the argument that the examinations themselves were improper. [ 81 ] Likewise, the failure to use gloves, allow the patients to gown or be draped and failing to have a monitor present for older patients were all choices that Dr. Marshall made despite the cautions received which point to a conclusion that the examinations were sexualized. The experts were clear in their views about the appropriateness of gloves, gowning and ensuring a third party presence, and Dr.

Marshall’s excuses for failing to do so were not convincing. [ 82 ] I have already addressed the issue of assessing the reliability of evidence based on the recollections of children, even where those children are adults at the time the evidence is provided. Based on Dr. Marshall’s evidence, a normal genital examination would be completed in about 30 seconds. Dr. Levin thought one could be done within 15 to 20 seconds. Some of the witnesses agreed with those timeframes recalling examinations that were described as quick, brief, a couple of seconds, etc.

In fact 17 of the complainants recalled examinations that took, by their estimations, less than one minute. AF estimated that the examination took 4 to 5 minutes and then, in cross-examination, revised his estimate to between 3 and 10 minutes. JH thought the examination took 2 to 3 minutes and JR recalled 2 minutes or so.

In reviewing that evidence, and allowing for some inaccuracy based on the age of the patients and the passage of time, I consider that the complainants’ recollections were not dissimilar to what was expected in a proper genital examination. [ 83 ] In alleging improper contact, the patient-complainants and their mothers have relied on their perceptions of what was occurring. The adults typically could not see the genital examinations if they were in the room at all because their view was purposely blocked by Dr. Marshall. He said this was for privacy reasons.

The patients were normally lying down and despite their evidence, were in no position to observe what Dr. Marshall was able to see or not see during examination. The evidence that he did not raise their underwear sufficiently to see the genital area is not reliable. A young boy lying on his back could not be expected to follow Dr. Marshall’s line of sight to the genital area. If one assumes that Dr. Marshall was unable to see the genital area, it would make the subsequent charting entries including Tanner Staging false.

If that was the case, one would expect some evidence of the charts being fabrications as opposed to a reliable record of the patient’s actual treatment and development. [ 84 ] In the same way, the evidence of stroking or rubbing the penis, touching the tip of the penis and going all around it could well be a young boy’s way of describing the palpation and foreskin retraction described by Dr. Marshall. Rubbing, squeezing and moving the testicles could well have been the perception of proper testicle palpation.

Checking the scrotum, feeling for varicoceles and running one’s fingers along the spermatic cord as part of a proper genital examination could well have been interpreted as cupping or groping the testicles. [ 85 ] In addition to considering the evidence of all of the complainants as a whole [10] , I have reviewed the evidence previously noted about the lack of medical purpose for the genital examinations, the unwarranted frequency and the improper circumstances and methods employed by Dr.

Marshall. [ 86 ] On the latter point, I have already commented on the impact of the failure to wear gloves, allow for gowning or draping, and ensure the presence of a monitor. [ 87 ] I see no impropriety, even accepting the evidence as alleged by the complainants, in Dr. Marshall conducting some of the examinations with the patient in a prone position and some in a standing position.

Certainly the experts were not critical of that aspect of his practice. [ 88 ] Similarly, the sexualized comments which were reported by some of the complainants and their mothers did not form the basis of a concern on the part of any of the experts. In the same way that the genital examination itself was awkward, I have no doubt that discussing masturbation and other aspects of sexual maturation was uncomfortable, particularly if Dr. Marshall had not clearly established the purpose for asking the questions. However, based on the evidence offered at trial, those questions were designed to help Dr.

Marshall deal with the pubertal influences on the patients’ behavioural issues and were therefore not improper or a reliable sign of the sexualisation of the relationship. [ 89 ] As to the conducting of manual examinations, it is obvious that without the touching, it is unlikely that the current charges would have been laid against Dr. Marshall. He justified manual as opposed to visual genital examinations based on a combination of his

regular routine and the need to do a thorough examination whenever a genital examination was required. He testified and the patient charts appear to confirm that following receipt of the cautions from the College of Physicians and Surgeons, the frequency of genital examinations and the number of manual genital examinations decreased. This leaves one to question why the examinations were necessary in the first place if they were not still sufficiently important to continue, perhaps with the extra precautions of gloves, drapes and a monitor after the cautions were received.

Although there was a disagreement amongst the experts as to whether manual examinations were necessary except in unusual circumstances, it appeared to me that there was evidence of sufficient weight from Dr. Levin to satisfy me that Dr. Marshall’s conduct in that regard was not out of keeping with the conduct of others in his field. [ 90 ] The issue about there being no medical purpose for a genital examination in a patient with behavioural issues is related to the matter of unwarranted frequency. Dr. Warren and Dr. Levin appeared to agree that an initial genitourinary examination was warranted for new patients.

They parted company on the issue of whether that should be a manual or visual examination to which conflict I have already made reference. I find that Dr. Marshall’s practise of doing and initial physical examination including a genital examination was within a medical norm, and was not improper conduct or an indication of the sexualizing of the doctor-patient relationship. [ 91 ] As to frequency, the experts engaged in a debate with counsel as to whether there is a reason to do Tanner Staging to monitor a patient’s progress through puberty in addition to measuring height and weight.

Apparently the general medical opinion on the subject has changed over the years. The focus is the extent to which stimulant medication delays or attenuates growth and whether the effect is permanent or temporary. This is not a matter for resolution in court. However, the evidence at trial did demonstrate a sufficient lack of clarity on the issue to prevent me finding that the frequency of examinations conducted by Dr. Marshall must lead to a finding of improper conduct through the sexualization of the examinations. [ 92 ] As noted, Dr.

Marshall gave evidence as to his own practice for charting and as to why and how often he chose to perform genital examinations on the complainants. I have referred to the fact that in some respects, he chose to follow the recommendations from the College of Physicians and Surgeons following the cautions in 2002 and 2006, despite his evidence that it was better patient care to continue with the type of examination and at the frequency that he typically had been conducting.

In other respects and for reasons that were not made clear at trial, he chose not to follow recommendations from the College. [ 93 ] He gave his evidence in advance of that of the defense expert but in many respects it reflected an uncanny agreement with the evidence subsequently provided by Dr. Levin. [ 94 ] His evidence of the several reasons for conducting a genital examination as part of the general physical seemed like overkill. Presumably either the examinations were clinically indicated or they were not.

It seems to me that OHIP rules for payment (up to 2002) and the fact that family physicians typically did not perform genital examinations should have been unnecessary afterthoughts to the alleged need to establish and monitor a patient’s progress through puberty when engaged in a course of stimulant medication if that was the case. [ 95 ] I now turn to the individual patient-complainants. [ 96 ] Counts 1 and 2 in the indictment relate to BA. The medical records indicate that he had 21 visits with Dr.

Marshall between February 2004 and July 2010 including three genital examinations, approximately yearly in August 2007, September 2008 and October 2009. The first genital examination was deferred until BA was approaching puberty, in accordance with the caution received by Dr. Marshall from the College. He was between the ages of 10 and 13 during the time he received the genital examinations. [ 97 ] On the occasion of the first genital examination, Dr. Marshall told BA that he was doing it to make sure that he had developed properly and that it was standard procedure. The examination took approximately 1 minute.

His mother was present. The examination occurred as he was lying down. He described feeling Dr. Marshall’s palm on his testicles, scrotum and penis in a cupped position. He described his penis being touched with five fingertips and stroked a few times in an up and down motion. He felt the examination was improper because he was seeing Dr. Marshall to get medication for ADHD. Subsequent examinations were similar. BA recalled six rather than the three examinations that are charted. He testified that he believed it was wrong for Dr.

Marshall to do an examination on him as a child and that to touch him was a criminal offense. He felt that no doctor should be able to touch little kids. [ 98 ] BA’s mother did not understand why a genital examination was necessary under the circumstances but accepted the doctor’s advice. Her estimation was that the examinations took 20 to 30 seconds. She was upset that Dr. Marshall discussed masturbation with BA. [ 99 ] Dr.

Marshall recalled that, as per his chart, BA’s mother had raised the issue of his sexual conduct and masturbation, and that in those circumstances, it is appropriate to have a frank discussion about sex and the potential consequences of sexual activity. [ 100 ] The duration of the examinations recalled by BA and his mother were in the usual range described by Dr. Marshall. [ 101 ] In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall. The perceptions and recollections of BA and his mother could well be consistent with a properly conducted examination.

There was no evidence of false charting, and BA’s view of the proper limitations on doctors – that is, no genital touching of children discloses a high and unrealistic sensitivity. [ 102 ] Counts 3 and 4 on the indictment relate to SA, the brother of BA. He was charted by Dr. Marshall to have had 20 visits from September 2003 to July 2010 with a genital examination in July 2007 and in September 2008. The first genital examination was deferred until SA was approaching puberty. He was between the ages of 12 and 13 during the time he received the genital examinations.

SA was referred due to behavioural issues arising from autism. His mother was in the room for each physical examination. [ 103 ] SA felt uncomfortable discussing masturbation. He described that Dr. Marshall rubbed his penis and testicles with his palm and fingers in a rotating way, using light pressure for five seconds at least. He testified that he did not mind seeing Dr. Marshall and felt fine going to the doctor’s office. He did not feel that the touching was improper although after the arrest occurred, he was not sure.

[ 104 ] In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall. The perceptions and recollections of SA and his mother could well be consistent with a properly conducted examination as described by Dr. Marshall. [ 105 ] Count 5 on the indictment relates to HB. He did not testify, but his mother gave evidence. According to Dr. Marshall’s records, he was referred for ADHD and had two visits in January and February 1997 when he was a few months over seven years of age. There was one genital examination on the January visit.

His mother testified that the genital examination happened without warning, shortly after a physical examination had begun. She apparently asked what that had to do with the physical examination. She testified that she could see Dr. Marshall’s hand underneath her son’s clothing using a grasping motion but could not see HB’s genital area. She testified that she swore at Dr. Marshall and told patients in the waiting room not to go in because there was something wrong with “that guy”. She told her mother, friends and apparently the College of Physicians and Surgeons about the problem but the matter went no further.

She did not go to the police until after the news report. [ 106 ] I did not find the evidence of HB’s mother credible. She claimed to have only attended one session but there are clearly two visits charted. She claimed not to have provided the information contained in the chart which indicates a typical lengthy detailed history and she maintained that the visit took only a few minutes despite the impossibility of securing all the noted information within that time. She had no recollection of the questionnaires that were given to her by Dr.

Marshall for delivery to HB’s teacher to be brought back on the second visit and which were in fact returned. There was no notation of the outburst by HP’s mother in the chart and Dr. Marshall had no recollection of the occasion. He testified that he would have made a note of that behaviour if it had occurred. [ 107 ] In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall. The perceptions and recollections of HB’s mother as to the circumstances are not reliable. [ 108 ] Count 6 on the indictment relates to JC. He was referred to Dr.

Marshall for depression and according to Dr. Marshall’s charts attended for four visits between April and August 2003. There was one genital examination. At the time, JC was 14 years of age. [ 109 ] As part of a general physical examination, with his pants on and lying on the examination table, Dr. Marshall performed a genital examination on him, feeling his penis and testicles with his fingers. JC recalls that Dr. Marshall’s fingers moved back and forth, that his penis was touched with the index finger and thumb and that Dr. Marshall felt around the whole area of the tip of the penis.

His mother was present in the room. Dr. Marshall made a comment to the effect that his development was on par with other kids of his age. Masturbation was discussed. JC felt uncomfortable as result of the examination but did not tell his parents because he was shy and embarrassed. [ 110 ] In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall. The perceptions and recollections of JC could well be consistent with a properly conducted examination in the manner described by Dr. Marshall as his normal practise and accepted as reasonable by Dr.

Levin. [ 111 ] Count 7 on the indictment relates to AF. He was referred to Dr. Marshall for ADD and according to Dr. Marshall’s charts attended for four visits between July 1999 and April 2000. There were two genital examinations. As well there was a second referral for ADHD which resulted in two further visits in September and October 2001 including one genital examination. AF was between 10 and 11 years old at the time of the first two genital examinations and 12 years old on the occasion of third. [ 112 ] On what appears to have been the third genital examination, AF described Dr.

Marshall as stroking his penis for four to five minutes which made him feel very uncomfortable. In cross-examination, he changed his estimate to between three and ten minutes. He described Dr. Marshall’s hand cupped around his penis, moving up and down and side to side without touching the testicles. AF was in a standing position and Dr. Marshall was crouching in front of him. He asked the doctor to stop, which he did whereupon AF pulled his pants up and was told that he was free to go. AF told his mother the details on the way home and never went back to Dr. Marshall.

That was the only genital examination that AF could recall. [ 113 ] Although he was diagnosed for ADD, AF denied any behaviour problems at school that would differentiate him from other students. He denied being forgetful, impulsive, or disorganized as indicated by the teacher in the school questionnaire. AF had no recollection of any general physical examination by Dr. Marshall even though the charts indicate that such examinations were performed. He was referred to in his referral note by Dr.

Marshall as having trouble with attention and behaviour, with poor attention, concentration and task completion. [ 114 ] AF had not thought of the situation with Dr. Marshall until he heard news of the charge against Dr. Marshall, when he came forward to the police. This seems surprising given the significant impropriety that he alleged in his evidence. No other complainant made similar allegations. [ 115 ] Even after considering that AF’s evidence was given based on his childhood recollections and after minimizing any significance of his misidentification of Dr.

Marshall’s office location to which I previously referred, I have a reasonable doubt that the touching for a sexual purpose occurred as described. There are too many inconsistencies between AF’s evidence as to what he recalls at the time and what his medical chart contains, including information provided to his family doctor and information received from his school. It may be that this is a situation where AF’s medical condition has affected his ability to accurately recall an event that occurred twelve years ago. [ 116 ] Count 11 on the indictment refers to JH.

It was his initial complaint as a result of a single examination by Dr. Marshall that triggered the first charge and the subsequent publicity. JH was seen by Dr. Marshall on April 14, 2010. He was eleven years of age at the time, and has just turned fifteen during the course of the trial. According to Dr. Marshall’s notes, JH had a previous diagnosis of ADHD. He attended with his mother for a two-hour consultation. Dr.

Marshall’s notes indicate that JH was anxious, nervous, had attempted self- harm, had grief issues, rage, fear of crowds and had been avoiding school as a result of his anxiety. [ 117 ] The plan for a genital examination was explained to JH who advised that he did not want the examination. Dr. Marshall testified that he felt that JH’s reluctance was because his mother was present and she volunteered to leave the room. Dr. Marshall felt that JH was more relaxed in her absence and conducted the normal genital examination.

[ 118 ] According to Dr. Marshall, he observed what appeared to be a small penis and needed to ascertain whether hypogonadism was present which would require medical attention. He pushed down on the fat pad to expose what turned out to be a normal penis. That action may have felt like more aggressive touching than normal. Mother returned and the matter was discussed. She was again excused and in a further examination with JH standing, Dr. Marshall demonstrated to JH that the penis was normal.

He formed no impression that JH was upset. [ 119 ] For his part, JH indicated in the videotaped interview with the police that despite his objection to the examination, Dr. Marshall insisted that he continue because he was going to prescribe medication and needed to see the size of JH’s genitalia. JH recalled that at first on the examination table, and then once again standing, Dr. Marshall poked above the penis and testicles and when standing, started grabbing at his testicles and penis. He said that afterwards, Dr. Marshall acted as if nothing had happened. Dr. Marshall also checked for hair under JH’s armpits.

Dr. Marshall discussed matters such as an erection and ejaculation with him which made him uncomfortable. He felt the doctor should not ask those questions at his age or at all. The first examination took about two minutes and the second examination about three minutes. He recalls nothing about the so-called “buried penis”. [ 120 ] When asked by the interviewing police officer whether he had been told by Dr. Marshall to keep the matter secret, JH said that he had. [ 121 ] JH was very upset in the van on the way home, told his mother that he had been poked and grabbed and refused to be calmed by her.

He testified that he thought it was against the law for a doctor to touch a patient unless the patient was comfortable with it. [ 122 ] In some respects, the evidence given by JH’s mother was closer to Dr. Marshall’s evidence than that of her son. She recalls the discussion about the need to establish JH’s level of maturity because of comments JH had made at home. As well, she acknowledged that Dr. Marshall wanted to ensure that JH could handle certain medication, the side effects of which were explained. JH seemed anxious with her in the room and anxiety was one of his psychological issues.

He remained uncomfortable so Dr. Marshall asked her to leave. She went out of the room for one minute or so until Dr. Marshall came out and asked her to return. They had a discussion about medication. JH looked upset. He did not like medication. The next appointment date was set and Dr. Marshall commented to her that JH was not as far advanced in puberty as JH had indicated. Dr. Marshall asked JH to stay back while his mother waited outside for about three minutes. She recalled no discussion of the buried penis and would likely have questioned Dr. Marshall about that.

When JH emerged, he was angrier with tense body language. In the parking lot he commenced a verbal attack on Dr. Marshall. She tried to be supportive of both Dr. Marshall and JH. Anger management was another one of JH’s issues but she had never seen him at that heightened level of behaviour. Eventually the Children’s Aid Society was contacted and the police became involved. [ 123 ] In cross-examination, JH was asked about his objection to the genital examination. He insisted that Dr. Marshall had been instructed not to proceed with the examination even after his mother had left the room.

However, in his videotaped interview with the police, he was asked if he ever told Dr. Marshall not to touch him when they were alone. His answer at that time, on April 23, 2010, nine days after the incident was that he was too nervous and giggling too much so he couldn’t say no. To explain the contradiction in court, he said that he was still in shock at that time. It was then suggested to him that in January 2012 at the preliminary hearing he provided a similar answer indicating that the only time he was not comfortable was when his mother was present in the room and that on her way out, she heard him say no.

He answered that he was still in shock and that his memory was not complete. He testified that now, because he has had more time to consider the matter, he remembers more about the visit. [ 124 ] The only reference to the so-called “buried penis” comes from Dr. Marshall’s evidence and from his notation in the chart for that day. However, it is interesting that Dr.

Marshall’s description of how to examine that for condition, by pressing two fingers into the fat pad at either side of and above the penis coincides with JH’s description that he was poked right above the penis. [ 125 ] In JH’s videotaped statement, he indicates that the following day he attended a sex education class at school and that when he came home he had a conversation with his mother and was furious. He was swearing, shaking and started throwing things around. He said he wanted to punch Dr. Marshall in the face. It was then that he was taken to the hospital. He even said that he wanted to kill Dr.

Marshall and cut himself, but then advised at the hospital that he was not being literal about that. [ 126 ] Both JH and his mother were apparently articulate, intelligent individuals. JH was described by Dr. Levin after a review of his chart as not a well person with lots of problems. JH’s evidence given to the police shortly after the examination and confirmed on the preliminary hearing was to the effect that he did not say “no” to Dr. Marshall once his mother had left the room. Dr.

Marshall’s description of the genital examination including the examination of the buried penis generally accords with JH’s evidence. [ 127 ] This appears to be a situation where, once again, a young person has felt violated by what appears to be a normal genital examination. JH formed the impression, whether in health class or before, that no one should touch one’s genital area without the person being comfortable with it. This is consistent with the heightened sensitivity that the experts described.

His reaction may well have been exacerbated by his multiple mental health issues. [ 128 ] In the result, I am left with a reasonable doubt that there was touching for a sexual purpose. [ 129 ] Count 12 on the indictment refers to TH who was referred to Dr. Marshall for ADHD and had fourteen visits including nine genital examinations between August 1996 and December 2001 according to Dr. Marshall’s charts. During that period, TH was between the age of eight and thirteen years of age. TH’s mother was present with him during the examinations but her view was blocked by Dr.

Marshall’s body. [ 130 ] TH recalled that during one examination, he tried to sit up but Dr. Marshall pushed him back down onto the examining table. This was denied by Dr. Marshall and not observed by TH’s mother. [ 131 ] TH described that Dr. Marshall grabbed his penis and played with his testicles for a minute or so on each occasion. Dr. Marshall would say words to the effect that “here comes the bad part” before performing the genital examination. [ 132 ] TH’s mother recalls Dr. Marshall indicating that he wanted to perform a genital examination in order to check on TH’s growth

and development because the prescription medication could have an effect on that. She recalls the duration of the examination to be less than a minute. On the last occasion, Dr. Marshall asked her to leave the room because TH was getting to be of an age where he might not want to talk about things in front of his mother. TH asked her never to take him back. His mother agreed and felt that Dr. Marshall put too much emphasis on medication. She wanted to find a more natural way to deal with the symptoms. [ 133 ] In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall.

The perceptions and recollections of TH and his mother could well be consistent with a properly conducted examination. [ 134 ] Counts 13 and 14 on the indictment refer to CH. He was referred to Dr. Marshall for ADHD and had 60 visits between June 2001 and February 2010 including eleven genital examinations between 2001 and 2006. He was between ages seven and fifteen or sixteen during that time. His mother testified because CH is now deceased. [ 135 ] Dr. Marshall’s diagnosis was Tourette’s Syndrome. CH’s mother always accompanied him to Dr.

Marshall’s office except on the last couple of occasions when he attended on his own. Ms. H was across the room from her son during the genital examinations but blocked by Dr. Marshall’s body. The examination took a few seconds on each occasion. There were no questions about why the genital examination was necessary and no complaints from CH. Dr. Marshall typically said that the examination was to ensure that CH was developing properly. Although she had no concerns about the propriety of the genital examinations at the time, she suggested that CH contact the police once she saw the matter of Dr.

Marshall’s charges on the television, feeling that maybe something was not right because of the lack of gloves or because there was no drape over CH during the examination. [ 136 ] In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall. The perceptions and recollections of CH’s mother could well be consistent with a properly conducted examination. [ 137 ] Count 15 on the indictment relates to MJ. He was referred to Dr. Marshall in 1992 for second opinion relating to a diagnosis of ADD. He saw Dr.

Marshall on twenty-seven occasions from June 1992 to April 1996 and according to Dr. Marshall’s charts, had nine genital examinations. He was between eight and twelve years of age at the time. [ 138 ] MJ’s mother typically waited outside the examination room unless there was a discussion of his progress or change in medication. The genital examinations took place as part of the overall physical check-up. [ 139 ] On one occasion, Dr. Marshall grabbed a testicle and squeezed with his hand hard enough to cause pain. MJ characterized the examinations as genital fondling or groping. Dr.

Marshall may have grasped the penis with his fingers with the examination lasting a minute or two. After having a very bad side effect from one of the medications, MJ refused to take any more and did not see Dr. Marshall again. After his visits with Dr. Marshall ended, he put the matter out of his mind until Dr. Marshall’s arrest was noted in the newspaper following which he contacted the police. At the time, he did not refuse the Dr. Marshall touched him. [ 140 ] MJ’s mother testified that she always took him to the doctor’s office and sometimes she would be involved in the discussions with Dr. Marshall.

Other times, she was asked to leave and presumed that Dr. Marshall wanted to speak to MJ alone. She was not aware of the genital examinations until she read about Dr. Marshall’s arrest in the newspaper and then spoke to MJ about it. It is possible that Dr. Marshall advised that he needed to do a physical examination or check-up but she cannot recall the details of the discussion that took place some twenty years ago. [ 141 ] In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall.

The perceptions and recollections of MJ and his mother could well be consistent with a properly conducted examination and the duration of the examination recalled by MJ twenty years after the fact may well be inaccurate and more properly in the range typically identified by Dr. Marshall. [ 142 ] Count 16 on the indictment relates to BLW. Dr. Marshall’s charts indicate a referral for ADD and 12 visits from January 2008 to May 2010 including one genital examination on April 29, 2010.

BLW was between the ages of 10 and 12 years at the time. [ 143 ] BLW described his one genital examination as being poked in the balls for a couple of seconds. Dr. Marshall told him that he needed to check to see if his medication was making puberty “go slower”, and asked if he could proceed with a quick examination. He had trouble remembering if there was a brief touch to his penis as well. [ 144 ] BLW’s mother indicated that Dr. Marshall asked her if he could proceed to look at BLW’s genitals.

The impact of medication on puberty was discussed. [ 145 ] The evidence of BLW and his mother was consistent with the rationale used by Dr. Marshall for the genital examinations. In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall. The perceptions and recollections of BLW and his mother could well be consistent with a properly conducted examination. [ 146 ] Counts 18 and 19 on the indictment relate to TM. He was seen by Dr. Marshall fourteen times according to the medical chart between September 1999 and May 2008.

He had two genital examinations, one each in 2004 and 2006, when TM was fourteen and sixteen years of age. Dr. Marshall took over primary care for TM when he assumed the practice of a retiring doctor. Most of the consultations with TM were for asthma. [ 147 ] TM would sometimes attend alone, and sometimes with his mother. [ 148 ] The genital examinations were part of general physical check-ups. TM felt that the genital portion of the examinations lasted less than one minute, during which time he felt fondled, rubbed and touched in an inappropriate way. He described Dr.

Marshall’s hand gripping his penis in an up-and-down motion for a few strokes, and rubbing his testicles. Since TM was embarrassed and ashamed, he said nothing to his mother. He recalled a genital examination on each attendance, six to eight times per year, although the chart records only two in total. He said nothing to anyone until seeing the news reports of Dr. Marshall’s arrest. [ 149 ] TM’s mother testified that she was aware of and present for the genital examinations which she assumed were routine. She did

not ask questions and Dr. Marshall did not volunteer why the examinations were being done. However, she did inquire about TM’s growth, since he was interested in playing basketball, and discussed with Dr. Marshall the possibility of drug therapy to stimulate puberty. She recalls TM objecting to the genital examination on the last occasion and Dr. Marshall agreeing not to proceed. That refusal was recorded in TM’s chart. [ 150 ] In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall.

The perceptions and recollections of TM and his mother could well be consistent with a properly conducted examination. [ 151 ] Counts 20 and 21 on the indictment refer to CP. He was referred to Dr. Marshall because he was “globally slow.” He had twenty-three visits to Dr. Marshall between June 1999 and July 2010, including five genital examinations. He was between four and fifteen years of age at the time. The relationship ended when he found out about the outstanding charges against Dr. Marshall. Until then, CP had assumed that Dr. Marshall’s examinations had been proper.

After he found out about the charges, CP felt violated. [ 152 ] Over the years, CP saw Dr. Marshall for medication and physical check-ups including genital examinations. Dr. Marshall made jokes about seeing naked girls in his head, which CP thought was quite funny. They spoke about his progress in puberty including discussions about masturbation. He recalls his mother being present for the examination, and Dr. Marshall feeling his scrotum, testicles, and retracting his foreskin. It took a couple of minutes. This was to see if he was progressing OK and Dr. Marshall asked him if he could proceed.

The doctor advised that he was feeling his testicles to make sure they were fine. [ 153 ] CP’s mother recalls Dr. Marshall advising that he wanted to check CP to make sure he was developing properly, given the medication that he was taking. She had no concerns at the time with Dr. Marshall’s procedure. [ 154 ] In my view, this is another case where the evidence was consistent with Dr. Marshall’s practise. I find that there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall.

The perceptions and recollections of CP and his mother could well be consistent with a properly conducted examination. [ 155 ] Count 23 of the indictment refers to MP, who was referred to Dr. Marshall for ADD and a learning disability. According to the medical charts, he had six visits to Dr. Marshall between October of 2008 and October of 2009, including one genital examination in November 2008. MP was between 11 and 12 years of age at the time. [ 156 ] According to MP’s evidence, Dr. Marshall spoke of MP’s level of maturity in his “private area”, and made jokes about seeing pictures of girls in his ears.

MP’s mother was present for the examination. MP did not expect the genital examination, which he described as Dr. Marshall grabbing his penis “as with a closed fist” for a couple of seconds. On the second examination (which was not referred to in the charts), the doctor said he was checking to see if MP was more mature than on the previous occasion. [ 157 ] As with CP, MP’s mother had no concerns with the genital examinations at the time.

She felt MP had under-estimated the time of the examination at a couple of seconds, and felt it was more like 2 to 3 minutes. [ 158 ] In my view, there is reasonable doubt about the sexual purpose of the touching by Dr. Marshall. The perceptions and recollections of MP and his mother could well be consistent with a properly conducted examination. [ 159 ] Counts 24 and 25 on the indictment relate to NP. He was referred to Dr. Marshall for ADD and had 8 visits, including 5 genital exams between March 1991 and December 1992.

He was between 13 and 14 years of age during that time. [ 160 ] NP recalled that, when in the examination room alone with Dr. Marshall, a first genital examination was performed which included fondling of his testicles, cupping them in Dr. Marshall’s hand, and pulling on his penis with fingers and thumb, moving up and down, all in a time period of 30 to 40 seconds. Subsequent examinations followed the same procedure, ostensibly to ensure that all was “going well”. He asked and was told that the procedure was to see if there were any side effects of the medication which impacted on his growth.

NP reported that he was upset, but was too embarrassed to tell his father why he felt that way, and eventually insisted that he not return. [ 161 ] NP stated that he has trust issues with doctors as a result of seeing Dr. Marshall, as well as due to some issues with other doctors that he feels caused his daughter’s blindness and his father’s death. He lost his temper with his family doctor and was asked not to come onto that property, and was also asked by his daughter’s paediatrician not to return. [ 162 ] NP admitted that part of the reason he stopped seeing Dr.

Marshall was that he did not want to take the medication that was prescribed. [ 163 ] By NP’s evidence, Dr. Marshall was expressing a reason for undertaking the examinations consistent with his practise which has been endorsed by Dr. Levin. The duration of the examination recalled by NP was similar to Dr. Marshall’s evidence of his normal procedu

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