A new trial has been ordered for a physician assistant convicted in 2019 of one count of sexual assault when he peformed a breast exam on a woman.
Ontario Court Justice Louise Gauthier said there are apparent errors in Ontario Court Justice John Keast’s assessment of evidence and burden of proof when he sentenced Danish Bhuiya to 179 days (six months less a day) in jail on Feb. 5, 2020. He was convicted of sexual assault on Nov. 23 following three days of trial.
He was also given a five-year weapons ban, DNA order and two years probation. He is not to contact the victim, and he has to perform 100 hours of community service and take counselling.
Bhuiya was represented by defence lawyer Glenn Sandberg.
On May 9, 2017, Bhuiya conducted a breast exam on a patient at the Canadian Cannabis Clinic, even though she attended the clinic upon referral from her family physician to look into a prescription for medical marijuana to deal with chronic pain and sciatic pain.
Bhuiya is a qualified physician in his home country of Pakistan. He is not yet licensed to practise as a physician in Ontario. He came to Canada in 2012 and then to Greater Sudbury in early 2017.
At the time, he was employed as a physician assistant at the cannabis clinic.
The woman said the way the exam was conducted was “unusual” and caused her to feel uncomfortable.
During the exam, Bhuiya told the woman to lay down on the exam table. He told her to put her arms above her head. He pushed her bra above her breasts.
Having undergone a lumpectomy on her right breast, she told the court she was familiar with the process. Never had she undergone an exam while clothed, without a gown, and while there was no other person present. She told the court he cupped both her breasts and pinched her nipples.
Once the examination was complete, Bhuiya asked her to pull down her pants to show her where the sciatic pain was. She said he pulled her pants lower, exposing her entire buttocks.
Following a consultation with the physician and a cannabis counsellor, the woman was leaving the clinic when she was approached by Bhuiya. She said he handed her a note with his first name and his personal cell phone number written on it. She said he told her he was new in town and to call him if she ever wanted to go for a drink or more, then attempted to hug her.
She called her husband and told him she had been touched inappropriately and that she had been “hit on.” She called police, which led to Bhuiya’s arrest for sexual assault.
For his part, Bhuiya told the court during his trial that he gave her his cell phone number, but only for professional reasons. There was no direct phone number for the receptionist, counsellor or physician assistant at the clinic. He said he provided his number to other patients, too.
He said the woman had nodded her consent to the breast exam, however, the judge, Keast, said he should have pressed her for consent, and should not have assumed consent through a nod.
Keast said the reason for the conviction was predominantly weighted on Bhuiya’s credibility. Keast called the victim a “credible and reliable witness,” while Bhuiya was not. Keast described Bhuiya as “vague, confusing, contradictory, argumentative and, at times, sarcastic and irritated with the cross-examiner.”
Keast said the note given to the victim with Bhuiya’s name and phone number is a “smoking piece of evidence.”
Furthermore, given Bhuiya was not qualified to prescribe, counsel or educate a patient on the use of cannabis, there was no professional reason for him to have provided the complainant with his personal cell number.
“The evidence in this area of the cellphone number and the use of the first name and the utterances that were made, and the hug casts a dark shadow over (Bhuiya’s) evidence in total.”
Keast said what also hurt Bhuiya’s credibility is, at the highest, he did a cursory discussion on the issue of consent.
“He should have done more to get an informed consent out of her,” Keast said. “In this kind of a situation. where this lady is attending a cannabis clinic for pain, for any doctor to embark upon this kind of a breast exam. the doctor should be asking detailed questions to make sure that the patient gets an informed consent.”
Keast also rejected evidence from a physician brought in as an expert witness. That physician testified in their opinion, it was medically appropriate to do a breast exam, given the woman’s history.
However, Keast said the breast exam was not medically indicated, therefore, it constituted a sexual assault.
In his appeal, Bhuiya said Keast’s approach to the issue of credibility and to the law of sexual assault was seriously flawed. He also said Keast’s reasons are deficient and do not permit a meaningful review, that he misunderstood critical evidence, including that of the expert witness who testified, and erred in applying differing standards of scrutiny to the crown and the defence evidence.
Appeals judge Gauthier said despite the issues around Bhuiya’s credibility, Keast erred on a number of factors when considering his verdict. She said he based his verdict on the fact the breast exam was not clinically indicated; even if the appellant believed it to be, and his failure to ask relevant questions of the complainant rendered him willfully blind to the actual necessity of the breast exam in the circumstances of the victim.
She said she is concerned Keast preferred the victim’s evidence to such an extent he may have shifted the burden of proof.
Keast did not address whether the Crown had proven the breast exam was not medically indicated, she said. Furthermore, his finding against Bhuiya’s credibility based on the facts and answers around consent are “problematic” and not supported by evidence.
Gauthier also said Keast rejected evidence from the expert witness without reasonable basis.
“There is no doubt that there were live issues around the (Bhuiya’s) credibility, particularly around the issue of the note with his first name and telephone number, and the alleged utterance,” Gauthier said.
In light of the errors, Gauthier said she cannot agree with Keast’s “apparent error” in assessing evidence and the burden of proof.
The matter will return to court Oct. 7 to be spoken to.