R. v. Poon (E.), 2012 SKCA 76

• Judge: Jackson, Richards and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: August 02, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKCA 76;(2012), 399 Sask.R. 89 (CA)

R. v. Poon (E.) (2012), 399 Sask.R. 89 (CA);

    552 W.A.C. 89

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AU.026

Edward Poon (appellant) v. Her Majesty the Queen (respondent)

(1858-CR)

Her Majesty the Queen (appellant) v. Edward Poon (respondent)

(1863-CR)

Her Majesty the Queen (appellant) v. Edward Poon (respondent)

(1864-CR; 2012 SKCA 76)

Indexed As: R. v. Poon (E.)

Saskatchewan Court of Appeal

Jackson, Richards and Herauf, JJ.A.

August 2, 2012.

Summary:

The accused family doctor was charged with six counts of sexually assaulting six female patients during examinations. All involved what the patients believed to be inappropriate acts of touching. The doctor was convicted by a jury of sexually assaulting two of the patients and acquitted on the other four charges. The trial judge sentenced the accused to imprisonment for two years less a day and ordered that he be registered as a sexual offender for 10 years. The doctor appealed the two convictions. The Crown appealed the four acquittals. If the convictions were upheld, the Crown also appealed the sentence.

The Saskatchewan Court of Appeal dismissed the conviction, acquittal and sentence appeals.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused family doctor was convicted of sexually assaulting two female patients by way of inappropriate touching - He was acquitted of sexually assaulting four others - The Crown appealed the acquittals on the ground that the trial judge misdirected the jury on consent - The Crown had not objected to the jury charge or the re-charge after the accused had raised objections - The Saskatchewan Court of Appeal dismissed the Crown's appeal, stating that "Crown counsel at trial appropriately did not object to [the] charge because it was a fair charge. In essence, [the judge] told the members of the jury that: (i) he did not believe the complainants were exaggerating; and (ii) they should have no trouble finding that the complainants did not consent" - The court noted that the accused's defence was not that the patients consented, but that the conduct they alleged had not occurred - The court stated that "given the evidence, the addresses of counsel and the charge, the jury should have been left in no doubt that this was a case about whether the acts took place. ... The case was not about consent" - See paragraphs 88 to 109.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - [See Criminal Law - Topic 674 ].

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - The accused family doctor was convicted of sexually assaulting two female patients by way of inappropriate touching - The accused appealed on the ground that the trial judge erred in failing to leave with the jury the defence of honest but mistaken belief in consent - The trial judge held that there was no evidentiary basis for an honest but mistaken belief in consent where the accused denied the very actions that led to the allegations of sexual assault - The Saskatchewan Court of Appeal agreed, stating that "when an accused states that the act in question did not take place, there can be no factual foundation upon which an accused relies for the honest belief, which means there is no air of reality to the defence. ... To leave the defence of honest belief in consent with the jury in such circumstances would mean that an accused could take the stand and say 'no sexual act took place but, if it did, I honestly believed the complainant was consenting" - See paragraphs 18 to 32.

Criminal Law - Topic 4293.1

Procedure - Trial judge - Duties and functions of - Jury trials - A jury convicted the accused doctor of sexually assaulting two female patients by inappropriate touching - The accused had denied that the alleged acts took place - The trial judge's jury instructions included a statement that "I think you'll have no trouble finding beyond a reasonable doubt that none of the complainants consented to the accused's activities" - On appeal, the accused argued that the judge usurped the function of the jury by telling them how to determine a crucial element of the case - The Saskatchewan Court of Appeal disagreed - A trial judge was entitled to offer an opinion on a question of fact as long as it was made clear to the jury that "the opinion is given as advice and not direction" - The judge clearly instructed the jury that they were the sole judges of the facts - The matter of consent was left with them to decide notwithstanding that the judge told them that they should have no trouble finding a lack of consent - In any event, even if the judge's statements were directive, where the accused denied to touching allegations the issue was whether the acts took place at all, not whether the patients consented to the acts (i.e., accused could not argue that the patients consented to certain acts of touching while denying that those acts of touching actually happened) - See paragraphs 48 to 52.

Criminal Law - Topic 4312

Procedure - Jury - Impartiality - Two days into the accused's sexual assault jury trial, the judge was advised from someone who knew a juror that there might be an issue with impartiality because the juror had been a victim of sexual abuse as a child, had been sexually assaulted twice as an adult and was currently in an abusive relationship - There were no allegations of juror misconduct - The accused requested that the judge inquire into the matter by questioning the juror and, if necessary, the person who provided the information - The judge declined to conduct any further inquiry on the grounds that "(1) he had already asked, during jury selection, whether any of the prospective jurors had been a victim of sexual assault and, if so, whether he or she could nonetheless act impartially; (ii) the jurors had sworn an oath saying that they would deliver a true verdict; and (iii) during his opening instructions he had explained a series of fundamental principles, including the presumption of innocence and the Crown's obligation to prove its case beyond a reasonable doubt" - The Saskatchewan Court of Appeal held that the judge was correct - The court stated that jurors were expected to bring their life experiences to the task of judging, jurors who were victims of crime were presumed to judge impartially, and the Canadian justice system was sensitive to the privacy interests of prospective jurors - The Canadian system did not permit the pre-questioning of jurors - Had the allegations been known before the juror took her oath, the accused would not have been permitted to question her about the allegations or challenge her for cause on that basis - See paragraphs 10 to 17.

Criminal Law - Topic 4326

Procedure - Jury - Examination of juror by trial judge - [See Criminal Law - Topic 4312 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of defence - The accused family doctor was convicted by a jury of sexually assaulting two female patients by inappropriate touching - The accused appealed, arguing that the judge failed to review portions of the patients' testimony which raised questions about whether they had exaggerated or misconstrued what had taken place - The Saskatchewan Court of Appeal dismissed the appeal - The accused was correct in stating that the judge had a duty to review with the jury the defence theory and the evidence in support of that theory - The judge advised the jury that the patients could have misconstrued what actually happened, but did not review some matters that the accused believed pointed to exaggeration - Given that all of what was alleged would have constituted sexual assault if not performed by a doctor, the court held that the judge did not err in restricting his review of the evidence "to the allegations of sexual assault themselves" - Although that meant that the judge limited the amount of detail in reviewing the evidence, if the judge had not decided to focus on what would be sexual assault, whether committed by a doctor or not, "the charge would have been extremely long and might have confused the jury" - See paragraphs 36 to 47.

Criminal Law - Topic 4386

Procedure - Charge or directions - Jury or judge alone - Judge's duty to determine if defence available on evidence - [See Criminal Law - Topic 674 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The accused doctor was charged with sexually assaulting six female patients by inappropriate touching - A jury convicted the accused on two counts and acquitted him on the remaining four counts - The Crown appealed the acquittals, arguing that the judge erred in failing to permit the jury to consider, as similar fact evidence, the evidence of each of the patients respecting each count - The judge determined that the prejudicial effect outweighed the probative value of permitting similar fact evidence on each count - The Saskatchewan Court of Appeal held that the trial judge applied the correct test and did not err in his decision, which was subject to deference, that the prejudicial effect outweighed the probative value - First, the evidence respecting each patient was not as probative as asserted by the Crown, as their testimony "varied substantially in the details and surrounding circumstances" - Secondly, the judge "made no error in being concerned that the admission of the evidence, and the complex charge that would have had to accompany its admission, could have had a prejudicial effect on the fairness of the trial by tending to distract the jurors from their primary focus of whether the Crown had proven its case beyond a reasonable doubt in relation to each count" - The court stated that "the decision not to permit the use of similar fact evidence in this case should rest where it was allocated: with the trial judge" - See paragraphs 66 to 87.

Criminal Law - Topic 5817

Sentencing - Sentencing procedure and rights of accused - Evidence - General - The accused family doctor was convicted by a jury of sexually assaulting two female patients by inappropriate touching - He was acquitted on four other counts - After the sentencing hearing, the Crown sought to introduce new evidence respecting a prior complaint to the College of Physicians and Surgeons, which resulted in a mediated settlement requiring the accused to have an attendant present, for a specified time period, while examining female patients - The Saskatchewan Court of Appeal held that the trial judge did not err in refusing to admit this evidence - The court stated that "the sentencing hearing had already been held. ... [the judge] was presented with nothing more than the mediated settlement. It had not been tested either at trial or in the sentencing hearing. It is the kind of evidence that could have had an impact on the sentence as it could have changed the character of the offences, but it is also the kind of evidence for which [the accused] might have had a proper explanation. It may also have been necessary to have heard further from [expert witness who had testified] and perhaps the College of Physicians and Surgeons." - See paragraphs 115 to 121.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The 61 year old accused family doctor was convicted by a jury of sexually assaulting two female patients by inappropriately touching their breasts, clitoris and vagina - Both offences constituted a gross breach of trust - The trial judge sentenced the accused to imprisonment for two years less a day and required that he be registered as a sexual offender under the Sex Offender Information Registration Act for 10 years - The Crown appealed the sentence on the grounds that (1) the judge should have referred to the starting point sentence of three years' imprisonment for major sexual assaults; (2) consecutive sentences should have been imposed; (3) too much weight was given to the mitigating factors; and (4) the sentence was not proportionate to the gravity of the offences - At the sentencing hearing, it was understood (without any objection by the Crown) that the judge would impose a global sentence up to the top of the range of two years less a day - The Saskatchewan Court of Appeal dismissed the appeal - First, the court was reluctant to permit the Crown to change its position on appeal - In any event, prior cases established that "fondling and digital penetration can fall into a different category than that occupied by a major sexual assault" - The court noted that the sentence imposed "is one of the most significant sentences imposed upon a medical caregiver in Canada for two incidents of sexual touching giving rise to two counts of sexual assault" - There was no basis to interfere with the sentencing range used or the imposition of a global rather than consecutive sentence - There was no overemphasis of mitigating factors and the sentence imposed was not manifestly unfit - See paragraphs 122 to 139.

Cases Noticed:

R. v. Tsoumas (1973), 11 C.C.C.(2d) 344 (Ont. C.A.), dist. [para. 14].

R. v. Andrews (1984), 13 C.C.C.(3d) 207 (B.C.C.A.), dist. [para. 14].

R. v. Budai (M.K.) et al. (2001), 153 B.C.A.C. 98; 251 W.A.C. 98; 154 C.C.C.(3d) 289; 2001 BCCA 349, leave to appeal refused [2002] 1 S.C.R. vii; 289 N.R. 398; 172 B.C.A.C. 160; 282 W.A.C. 160, refd to. [para. 14].

R. v. Blackwell, [1995] 2 Crim. App. R. 625, dist. [para. 14].

R. v. Hertrich (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), leave to appeal refused [1982] 2 S.C.R. x, dist. [para. 14].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1; 2001 SCC 42, refd to. [para. 16].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 16].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 16].

R. v. A.K. and N.K. (1999), 125 O.A.C. 1; 176 D.L.R.(4th) 665 (C.A.), leave to appeal quashed [2000] 1 S.C.R. v; 256 N.R. 198, refd to. [para. 16].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 16].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 24].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 24].

R. v. Davis (G.N.), [1999] 3 S.C.R. 759; 248 N.R. 44; 182 Nfld. & P.E.I.R. 78; 554 A.P.R. 78, refd to. [para. 31].

R. v. Despins (D.A.), [2008] 3 W.W.R. 218; 299 Sask.R. 249; 408 W.A.C. 249; 2007 SKCA 119, refd to. [para. 31].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 31].

R. v. Mayuran (S.) (2012), 431 N.R. 232; 2012 SCC 31, refd to. [para. 31].

R. v. Azoulay, [1952] S.C.R. 495, refd to. [para. 36].

R. v. Colpitts, [1965] S.C.R. 739, refd to. [para. 36].

R. v. Gunning (J.J.), [2005] 1 S.C.R. 627; 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C. 51; 2005 SCC 27, refd to. [para. 49].

R. v. R.T. (2004), 205 B.C.A.C. 231; 337 W.A.C. 231; 27 C.R.(6th) 77; 2004 BCCA 633, refd to. [para. 69, footnote 3].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 70].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 70].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 72].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 72].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 72].

R. v. Sutton (K.M.), [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205; 2000 SCC 50, refd to. [para. 73].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 73].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81, refd to. [para. 73].

R. v. T.B. (2009), 250 O.A.C. 177; 243 C.C.C.(3d) 158; 2009 ONCA 177, refd to. [para. 78].

R. v. T.L.M. (2011), 307 Nfld. & P.E.I.R. 262; 954 A.P.R. 262; 271 C.C.C.(3d) 148; 2011 NLCA 24, refd to. [para. 78].

R. v. Stewart (M.S.) (2004), 193 B.C.A.C. 186; 316 W.A.C. 186; 183 C.C.C.(3d) 421; 2004 BCCA 56, refd to. [para. 79].

R. v. Buna (M.P.) (2009), 280 B.C.A.C. 42; 474 W.A.C. 42; 249 C.C.C.(3d) 156; 2009 BCCA 536, refd to. [para. 79].

R. v. Hogg (A.) (2000), 136 O.A.C. 91; 148 C.C.C.(3d) 86 (C.A.), refd to. [para. 92].

R. v. J.A., [2011] 2 S.C.R. 440; 417 N.R. 1; 279 O.A.C. 1; 2011 SCC 28, refd to. [para. 93].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 95].

R. v. Brass (D.A.R.), [2007] 11 W.W.R. 191; 304 Sask.R. 20; 413 W.A.C. 20; 2007 SKCA 94, leave to appeal denied [2009] 1 S.C.R. vi; 395 N.R. 392, refd to. [para. 95].

Baert et al. v. Graham et al. (2011), 371 Sask.R. 1; 2011 SKCA 21, refd to. [para. 95].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 97].

R. v. Daley (W.J.) - see R. v. W.J.D.

R. v. Bernier (J.) (1997), 119 C.C.C.(3d) 467 (Que. C.A.), affd. [1998] 1 S.C.R. 975; 226 N.R. 364, refd to. [para. 112].

R. v. Edwards (S.) (2001), 147 O.A.C. 363; 155 C.C.C.(3d) 473 (C.A.), refd to. [para. 118].

R. v. Pannell (R.W.) (2000), 188 Sask.R. 254 (Prov. Ct.), refd to. [para. 125].

R. v. West (D.J.) (2007), 401 A.R. 320; 391 W.A.C. 320; 219 C.C.C.(3d) 207; 2007 ABCA 67, refd to. [para. 125].

R. v. Alfred (A.) (1998), 105 O.A.C. 373; 122 C.C.C.(3d) 213 (C.A.), refd to. [para. 125].

R. v. Cameron (D.I.) (1995), 136 Nfld. & P.E.I.R. 105; 423 A.P.R. 105 (P.E.I.C.A.), refd to. [para. 125].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 125].

R. v. Bedard (M.D.) (2001), 146 O.A.C. 179; 158 C.C.C.(3d) 216 (C.A.), refd to. [para. 125].

R. v. Ashley-Pryce (A.) (2004), 204 B.C.A.C. 186; 333 W.A.C. 186; 2004 BCCA 531, refd to. [para. 125].

R. v. Cappo (T.) (1993), 116 Sask. R. 15; 59 W.A.C. 15 (C.A.), refd to. [para. 127].

R. v. Jackson (D.H.), [1994] 3 W.W.R. 125; 116 Sask.R. 146; 59 W.A.C. 146 (C.A.), refd to. [para. 127].

R. v. Charles (A.D.) (2008), 311 Sask.R. 216; 428 W.A.C. 216; 236 C.C.C.(3d) 92; 2008 SKCA 108, refd to. [para. 127].

R. v. M.J.H. (2004), 257 Sask.R. 1; 342 W.A.C. 1; 2004 SKCA 171, refd to. [para. 127].

R. v. Iron (L.J.) (2005), 269 Sask.R. 51; 357 W.A.C. 51; 2005 SKCA 84, refd to. [para. 127].

R. v. A.W.C. (2007), 304 Sask.R. 224; 413 W.A.C. 224; 2007 SKCA 87, refd to. [para. 130].

R. v. D.J.J. (1999), 172 Sask.R. 182; 185 W.A.C. 182 (C.A.), refd to. [para. 131].

R. v. P.D. (2004), 260 Sask.R. 216; 2004 SKPC 216, affd. (2005), 275 Sask.R. 120; 120; 365 W.A.C. 120; 2005 SKCA 60, refd to. [para. 131].

R. v. Bunn (T.A.), [2000] 1 S.C.R. 183; 249 N.R. 296; 142 Man.R.(2d) 256; 212 W.A.C. 256, refd to. [para. 135].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 136].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 136].

R. v. G.W., [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139, refd to. [para. 137].

R. v. Stroshein (K.B.), [2001] 5 W.W.R. 259; 203 Sask.R. 183; 240 W.A.C. 183; 2001 SKCA 20, refd to. [para. 137].

Authors and Works Noticed:

Ruby, Clayton, Sentencing (7th Ed. 2008), §§ 4.51 to 4.55 [para. 128].

Counsel:

Aaron A. Fox, Q.C., and Brian Banilevic, for Edward Poon;

W. Dean Sinclair, for the Crown.

These appeals were heard on November 8-9, 2011, before Jackson, Richards and Herauf, JJ.A., of the Saskatchewan Court of Appeal.

On August 2, 2012, Jackson, J.A., delivered the following judgment for the Court of Appeal.