An Ontario Court judge has found a former prominent Toronto neurologist not guilty of sexual assault, citing inconsistencies in the testimony of its sole witness.
Allan Gordon, 77, was charged with sexually assaulting 18 patients over a span of 17 years. The initial five charges were stayed this past January, after an Ontario Court judge determined there had been an “excessive” delay in the proceedings. His trial in Toronto’s Old City Hall centred on the story of just one of the remaining 13 patients.
In his 20-page written decision released on Tuesday, Justice Marquis Felix says the prosecuting lawyer provided a “strong foundation” for Dr. Gordon’s guilt. However, he says he cannot ignore significant credibility and reliability issues with the patient’s evidence.
“Those credibility and reliability issues erode my confidence in the powerful evidence provided by the complainant,” Justice Felix says in finding that the prosecution failed to establish guilt beyond a reasonable doubt.
He says the whereabouts of notes the patient said she made describing the alleged sexual assault, and how she learned about a Globe and Mail investigation into other patients who complained that Dr. Gordon had sexually abused them, caused him to have reasonable doubt about the physician’s guilt.
The patient, whose identity is protected by a publication ban, testified during cross-examination over three days beginning on May 31 that a friend forwarded a Globe article to her about Dr. Gordon. She refused to name the friend, and later testified that no one gave her the article. She must have tracked it down herself and blamed the friend comment on a panic attack.
“It is a serious credibility concern to learn that this testimony was false,” the decision says.
Dr. Gordon did not testify during the trial. His lawyer, David Humphrey, argued that the patient “fabricated” the entire sexual assault incident and only complained to Toronto Police years later after seeing The Globe articles.
The patient, now in her early 60s, suffers from a chronic condition known a trigeminal neuralgia, a nerve condition that began decades ago with severe pain in her face and has spread to the rest of her body.
She had been a patient of Dr. Gordon’s since 2002 and continued seeing him until June 14, 2017 – more than four years after the alleged assault.
“The pain kept driving me back,” she testified.
Dr. Gordon was known as a top pain specialist during his four decades at Toronto’s Mount Sinai Hospital. Toronto Police charged him with sexually assaulting the 18 patients between 2002 and 2018, when he was director of the hospital’s Wasser Pain Management Centre.
Under questioning from prosecutor John Flaherty, the patient described the alleged sexual assault on Dec. 6, 2012, a day she had severe burning in her feet. After a fourth-year medical resident accompanied by Dr. Gordon finished examining her and both left the room, she was in so much pain she could not get dressed.
While she was lying on the examination room table with one leg up against the wall to see if the pain would ease, Dr. Gordon came back in, shut the door and began feeling the back of her leg.
“Within seconds,” she testified, “he slid his hand under my underwear and into my vagina. No gloves. No gel. Nothing. The only thing I remember, I reached down and pulled his hand out and he turned and left the room.”
Asked by Mr. Flaherty whether she had consented to an internal exam, she said, “absolutely not.”
The patient testified that she made notes about the alleged incident three months later, as well as a drawing of herself on the examination table, so she wouldn’t have to keep thinking about it. “I wanted to get it out of my head.”
Mr. Humphrey focused much of his cross-examination on the notes, accusing the patient of writing them not in 2013 but shortly before her interview in March, 2020, with the Toronto Police detective investigating Dr. Gordon.
“You made zero effort to prove me wrong,” he said, raising his voice, after she refused to search her home for the notes.
The patient testified that she brought the notes with her to the police interview but does not know whether the detective made copies. The trial heard that Toronto Police turned over incomplete notes from the interview – the detective went on leave in 2021, after her partner was fatally shot while on duty.
The patient said once she gave her statement to police, “I didn’t think I needed to keep the notes.”
Mr. Flaherty declined to say outside the courtroom whether his office plans to proceed to trial on any of the remaining charges.
For her part, the patient said in a statement to The Globe that as the only one whose case has gone forward, “I felt an enormous responsibility to all of the other victims.”
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