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Doctor is innocent in court but guilty in a professional tribunal

Updated: Jul 18, 2023

By Rosie DiManno - The Star - 14.07.2023 - [CANADA] - [Romeo Tan] He was a Filipino family doctor. She’d been a physician in the Philippines too, specializing in obstetrics and gynecology, but in Canada was licensed only as a registered practical nurse.

Doctor and patient.

A doctor who, she claimed, had sexually assaulted her during a visit to his North York office in 2014. She alleges he had given her an internal examination during which he inserted his fingers deep into her vagina, in a thrusting motion back and forth and sideways. She said this went on for five minutes in front of her four-year-old daughter and with his nurse and his wife — who worked in the office — in the nearby reception area.

“I think you are aroused,” the doctor told her, she would testify years later. “Look.” Showing her secretions on his fingers.

If she’d never experienced orgasm, he encouraged her to book an “arousal session” with him; he’d show her how because he had experience in digital masturbation. This conversation took place as the woman’s daughter sat in her lap.

The woman never went back. Didn’t, at the time, express to the doctor any indignation or anger over the intimate violation. Too shocked, she said.

Told her husband about it later that week but decided against lodging a formal complaint because, as a newcomer to Canada, she didn’t want the “mess.” And then forgot about it — literally. Repressed the memory for three and a half years. A memory that resurfaced only after she read a newspaper article about another doctor who’d lost his medical license for sexually abusing a patient. The memory came back “all at once.”

She spent five days writing a two-page outline of the incident. In that outline — which she would reference at trial — the woman noted that her allegations were similar to the plot of a movie, “Hysteria,” which she’d seen in the Philippines, about a doctor who stimulated female patients to bring them to orgasm and who conducted arousal sessions in his office.

A memory that was quashed for more than three years. A newspaper article. A movie. And testimony that was impacted by all those things.

The woman — a publication ban protects her identity — filed a complaint with the College of Physicians and Surgeons in November 2017. In the fall of 2018, the College decided there was enough to warrant the case be sent to its Discipline Committee. At that point, she also went to the police.

On April 24, 2019, Dr. Romeo Tan was arrested and charged criminally with sexual assault. The College disciplinary hearing was held 10 months later. Tan insisted the incident had never happened. At the hearing, the woman admitted she had a poor memory in general. She denied that her daughter was examined on the same day as the alleged sexual assault for a lump on the shoulder and disputed it under cross-examination, although Tan produced office records indicating this had taken place.

Then — this came out at the preliminary hearing on the criminal matter much later — she went home and remembered that, why yes, her daughter had indeed been examined. Yet she never corrected her evidence, although the hearing was still ongoing. At the preliminary and at trial, Tan’s lawyer, David Humphrey, argued that the woman was reluctant to admit her mistake because she wanted the court to believe her testimony over Tan’s records, which would be of greater significance when judging her overall credibility in a case that had no independent corroboration.

There were two separate legal procedures: The College hearing, similar to a civil case in court, with a lower standard of proof, “on the balance of probabilities,” and the criminal case, “beyond a reasonable doubt.”

In September 2021, the College found Tan guilty of professional misconduct of a particularly “egregious” nature because the sexual abuse — “disgraceful” — had occurred in front of a child. The panel revoked Tan’s medical license and demanded a “line of credit” to cover the cost of any professional counselling his patient undertook to address her trauma, as well as tribunal costs of $43,110 to the College.

Tan shuttered his office, as compelled. He has not worked since. The tribunal decision went to Divisional Court on appeal, where Tan was unsuccessful, although that court acknowledged the fresh evidence — from the complainant’s change in testimony, what she’d misremembered — might have resulted in a different outcome. Still, it wasn’t overturned.

Which brings us to the criminal case in Superior Court last December. Last month, Tan — now 63 and nearly a decade since this all began — was acquitted on the single count of sexual assault, in a judge-alone trial, by Justice Jill Presser. “My client is grateful that he received a fair hearing from a careful judge who recognized the fundamental weaknesses in the complainant’s memory,” Humphrey told the Star in an emailed statement. “The trial judge recognized the real risk that the complainant’s purported memory was not a real memory at all.”

Suppressed and recovered memory is a tricky issue. There have been numerous cases where alleged resurfaced memories don’t stand up to scrutiny; where false memories have actually been planted, say, by a therapist. Canadian courts, however, have recognized retrieved memory as a thing since a Supreme Court of Canada decision in 1994. “I accept that it is possible for a person to repress and then recover memories,” Presser asserts in her recently released written reasons for judgment.

Repressed memory is most often cited in historical sexual assault.

At trial, Tan’s defence was not only that he’d never sexually assaulted his patient, but that he’d never performed an internal exam at all. There was no record of an internal exam in his patient file. Nor, as the woman agreed, had Tan ever made any sexual comment or advance in her six previous appointments. The defence argued further it was utterly preposterous that Tan would have conducted a sexualized examination, or held a conversation about arousal, in the presence of a child. The Crown’s position was that people do engage in risky behaviour, even if illegal or unwise.

Regardless of the numerous inconsistencies in the woman’s evidence — dates, conversations, etc. — contradictions and deviations are not uncommon for traumatized sexual assault victims. “I have come to the conclusion that, in the circumstances of this case, the so-called implausibilities and improbabilities do not impact” on her credibility or the reliability of her evidence, Presser writes. There was a “power imbalance” as well in the doctor-patient relationship. These factors could account for changes in the complainant’s accounts. She had not realized her erroneous evidence at the College hearing could be changed.

“But her core evidence about the sexual assault remained consistent throughout,” said Presser.

Yes, the woman’s evidence at trial was different. Yet, “this did not necessarily signal” that she “was a dishonest or deceptive witness,” especially given that she’s always had a poor memory. Though the judge was troubled by the woman’s failure to rectify her evidence at the College tribunal, there was no intentional lie. Presser determined that she did not correct her evidence because she was an “inexperienced sexual assault complainant, not because she was generally dishonest or careless with the truth …”

Presser concluded she “was a sincere and credible witness.”

But then Presser had to move on to the next step in her deliberation — whether the woman’s evidence was reliable, as distinct from credible.

Noting the patient had seen the movie “Hysteria,” among other factors, Presser surmised that the complainant was a highly suggestible witness, depending on what was put before her. “It was often difficult to tell what she remembered and what she accepted as true, without actually remembering.”

She may have honestly been convinced that Tan sexually assaulted her and still remembered it wrong. She may have recovered memories and described the event sincerely in her outline and subsequent testimony. “But it is also possible” that her “recovered memory is not a true memory at all, but a figment of her imagination” confabulated by constant retelling.

Presser concluded that, while inconsistencies did not undermine the woman’s credibility, “they do undermine her reliability” and the Crown had failed to persuade her otherwise beyond a reasonable doubt. She had to acquit.

Which doesn’t actually remedy the harm caused to Tan. The revocation of his license still stands. Which is flatly illogical. He’s considering, with another lawyer who specializes in such matters, whether there’s an avenue to revisit the College’s decision. Innocent in a court of law, guilty in a professional tribunal. Ruined either way.

If you have been affected by any of the issues raised in this article, you can contact Dignity4Patients, whose helpline is open Monday to Thursday 10am to 4pm.



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