Already lengthy delay in proceedings won’t see verdict rendered until January
The fate of Charles Duncan, the former Pelham family doctor charged in autumn 2019 with multiple historical sexual assault and exploitation offences, now rests in the hands of Justice Deborah Calderwood.
Crown and defense attorneys had opportunity to critique each other’s written submissions before the court last Friday at the Robert S. K. Welch Courthouse in St. Catharines, with Calderwood interjecting with questions during the proceedings. Her Honour will now review the extensive transcript and other trial documents, with the intention of rendering her decision on January 21, 2022.
Duncan, who practiced family medicine in Pelham for decades, resigned from the College of Physicians and Surgeons of Ontario in October 2019, and also gave up his license to practice medicine, after the College commenced an investigation into allegations against him of professional misconduct and incompetence.
After one of the alleged sexual assault victims told her story to the Voice, several other women came forward to the paper with similar allegations.
In November 2019, Duncan was first arrested and charged in relation to two separate alleged incidents involving a 16-year-old girl and a 39-year-old woman. Three more women later came forward, aged between 54 and 64, alleging offenses which took place between Aug. 31, 1994, and Sept. 31, 2018.
Of the nearly 20 women who spoke to the newspaper, 11 agreed to be interviewed, and the complaints of five were taken up by the Crown. Duncan was formally charged with seven counts of sexual assault and one of sexual exploitation.
Duncan was initially released under the supervision of his son Callum. He was banned from being in the presence of children 16 or younger without a parent or other adult present. He was also instructed to have no contact with his accusers or their families.
Assistant Crown Attorney Todd Morris prosecuted the case. Duncan’s Toronto-based lawyers were Seth Weinstein and Jill Makepeace. Duncan’s defence team opted for trial by judge, rather than a jury. Duncan pleaded not guilty to all seven charges against him at the beginning of the case. A publication ban is in place to protect the identities of the women who gave testimony.
Weinstein focused on perceived inconsistencies in witness testimonies, and spoke to the credibility of evidence provided by Duncan.
(Although he voluntarily gave up his medical license in 2019, the judge, Morris, and Weinstein all referred to the defendant as “Dr.” Duncan during the hearing.)
At issue, according to the defense, were Duncan’s “propensity” for the behaviour that prompted the charges, and the possibility of “collusion” among the complainants who gave testimony.
“Tainting” of testimony through exposure to the media (specifically the Voice) was suggested by the defense, given that several complainants only came forward after one victim’s story appeared in the newspaper. The defense asserted that the onus was on the Crown effectively to prove a negative— to show that evidence had not been “tainted.”
The Crown should have called family members [to testify] … This has dragged out for too long.
In response Morris told the court that only a theoretical “opportunity for collusion” existed, and that it was erroneous to assert that the complainants had conspired against Duncan. Weinstein countered with “You can’t assess unintentional collusion through the lens of opportunity.”
As to “specific propensity” to commit sexual assault, the defense argued that over Duncan’s 49-year medical career, in which he saw thousands of patients during “hundreds of thousands” of visits to his office, five complainants does not constitute “propensity.” Judge Calderwood noted that other women who felt violated could have chosen not to come forward with testimony, which is not unusual. Weinstein responded, “alleged exploitation does not demonstrate propensity.”
Perceived inconsistencies in Duncan’s testimony were raised by Morris, to which Weinstein responded, “the Crown wants to hold Dr. Duncan’s comments to a higher standard than those of the complainants.” Weinstein noted that the alleged sexual assaults took place over a 25-year period, and that it was unreasonable to ask Duncan to have detailed recollections of what he considered to be “unremarkable patient visits.” Weinstein characterized Duncan as a “candid, honest, and credible witness.”
(Not all of the complainants, however, were patients or former patients of Duncan’s.)
Duncan testified during the trial that his retirement and surrender of his medical license was in part due to an ultimatum from his wife, and the hope of retaining a positive legacy in the community.
A number of accusations involved Duncan allegedly touching women’s breasts unnecessarily, and making unprofessional remarks with sexual overtones. On one occasion, Duncan admitted responding to an email from one of the complainants, telling the woman “I regret what I said to you,” and, “I apologize if I offended you.”
Weinstein took issue with an assertion from one of the complainants, who said she had contacted the College of Physicians and Surgeons of Ontario (CPSO) to register a complaint against Duncan. During the discovery process of the court proceedings, no complaint with CPSO could be corroborated. Weinstein said that since 1997, the CPSO has had a zero-tolerance policy regarding sexual assault accusations directed at its members, and that it was “implausible” they would not have acted on such a complaint. Justice Calderwood noted, however, that the police routinely receive complaints, which they keep on file without laying formal charges.
In fact, it was the CPSO that reached out to one of the alleged victims during the College’s investigation of Duncan, a woman who told the Voice that she had contacted Niagara Regional Police about Duncan’s conduct in 2009, after the second of two alleged assaults.
Addressing the complainants’ credibility, and reliability of their testimony, Morris said that given the passage of time since the alleged incidents occurred, the witnesses should be allowed some minor inconsistencies, as long as the “core issues remained intact.”
A small entourage of Duncan supporters was present in court. One was an 81-year-old man, who said that he and his family had been patients of Duncan’s for 45 years, and had never experienced anything but fine treatment from the doctor. Another woman berated a reporter for “publishing untruths” and damaging Duncan’s family through coverage of the case.
After the hearing, some family members of alleged victims pointed out that the newspaper’s reporting of Duncan’s alleged misconduct came only after Niagara Regional Police failed to follow up on earlier complaints.
“The basic fact remains that had the NRP investigated the historic cases when they were reported,” said the mother of one complainant, “these women would not be being re-victimized and their honesty and integrity would not be open for discussion. The Crown should have called family members [to testify] who were aware that their loved one had been sexually assaulted by Duncan [at the time]. This has dragged out for too long.”
Duncan’s defense team did not respond to a request for comment.
With files from Dave Burket and John Chick.