Criminal charges against PSW for allegedly sexually assaulting two patients tossed by Ontario court

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An Ontario court has dismissed criminal charges against a personal service worker (PSW) at Montfort Hospital who was accused of sexually assaulting two female patients.

The PSW was accused of assaulting two patients, identified as HMN and MS, during their hospital stays in 2016 and 2019. The prosecution’s case hinged on proving beyond a reasonable doubt that he had committed sexual assault, defined legally as touching or threatened application of force of a sexual nature without consent.

First allegation

In the case of HMN, despite credible testimony, the Court harbored reasonable doubts about the non-consensual nature of the sexual activity. HMN, 72, had multiple health issues and was admitted to the hospital after a fall in 2019.

She engaged in repeated sexual activities with the PSW during her hospitalization. The court found that while he arguably took advantage of HMN, her participation in sexual activities was not induced by his position as a PSW.

Her motivations were rooted in personal attraction and the desire for a romantic relationship, rather than being contingent on his professional role, it said.

Second allegation

The allegations involving MS, admitted to the hospital in late 2016 for confusion when she was 63, presented challenges in establishing the reliability of her testimony.

MS reported experiencing hallucinations and confusion during her stay, casting doubt on her recollection of events.

“She was having auditory and visual hallucinations. For example, she saw two of her uncles as though they were in front of her, one of whom she heard asking her for money. Another time, she believed that one of her sisters was in the hospital room with her,” the Court said.

“When MS mentioned this to Danielle, a friend who was visiting, Danielle told her that her sister was not there. In cross-examination, MS admitted that, had her friend Danielle not been there, she would have no way or confirming or denying her sister’s presence.”

The court found inconsistencies in her accounts of the PSW’s alleged sexual advances and actions. It did note that the hospital found the PSW had gone to MS’ room prior to his shift, and had violated the professional relationship that must be maintained with patients by giving her his telephone number. As a result, the PSW was suspended for day without pay, required to take professionalism training, and prohibited from starting his duties prior to his shift.

While the court said MS was “sincere,” it did not find her account of interactions with the PSW to be reliable.”

It said that evidence the PSW had consensual sexual activity with another patient, HMN, three years later “does not allow me to overlook the fundamental deficiency with the Crown’s case.”

Consequently, the judge concluded that the evidence was insufficient to convict him beyond a reasonable doubt and the PSW was acquitted of both charges.

For more information, see R. v. Dupuis, 2023 ONSC 7238 (CanLII).

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