R. v. M.D. (examination of a defence witness) | Examples Of Favourable Verdicts

EXAMINATION IN-CHIEF OF DR. EMILY SMITH

THE COURT: Just have a seat there and try to speak into the microphone, if you would please.

Q: Good morning, Dr. Smith. You are a medical doctor; is that correct?

A: Yes.

Q: And you could please tell the jury what type of Doctor you are?

A: I have been a family physician and I have been working in Scarborough since 1972. I am on staff at three hospitals in Scarborough, and I also do obstetrics as part of my general practice, and I do some call work at Scarborough General Hospital.

Q: Is Cherice Dawn a patient of yours?

A: She is.

Q: And since when has she been a patient of yours?

A: I just refer to my notes.

Q: I am wondering –

A: November 1992.

Q: — if my friend has –?

THE COURT: She can refer to her notes.

Q: Since you said 1992?

A: Yes.

Q: Okay. And is she under your care for general health
or in some specific area?

CROWN: I am going to object.

THE COURT: That’s irrelevant.

Q: You are required to keep records of all your patients; is that correct?

A: Yes, I am.

Q: And every time you see a patient you make an entry?

A: I do.

Q: And what general things do your entries usually contain?

A: The data of the visit, the time logs are kept separately in the office, and I enter my notes in a format which is recommended by the College of Family Physicians, which is subjective/objective assessment and plan. So I roughly follow that format most of the time.

Q: Are you obliged to keep records of all these things?

A: I am.

Q: Okay. Now, if a patient had told you to the effect they had been raped is that something that you would make a note of in your record?

A: I certainly would.

Q: And would it be your practice to get some detail on that?

A: Yes.

Q: How about in terms of recommending a sort of treatment therapy? What is your practice with respect to that?

A: I would recommend whatever is appropriate at the time that the patient encounter takes place.

Q: And with respect to a patient that is 15 years old, would there be any issues about revealing that allegation to any one else? For instance, would you discuss talking to parents, or police, or something like that?

A: Yes.

Q: Both or just –

A: Both.

Q: Any one else you would?

A: And any other appropriate authorities that may be necessary to do so.

Q: Now, I want to ask you about the 11th of September, 1996 with respect to Cherice Dawn; did you see her on that?

A: I did.

Q: And for what reason did you see her?

A: She came to see me because she was no longer having a menstrual period and she was concerned about that.

Q: And did you have any areas that you wanted to explore with her to find out before you diagnosed her?

A: I addressed what was mostly concerning her and she told me that her major concern was the fact that she wanted to find out if she was pregnant or not.

Q: And did you ask her any question about having engaged in sex?

A: I did.

Q: And what was that question?

A: I asked her if she had intercourse and when.

Q: Okay, and do recall her response?

A: She told me yes there had been sexual activity and she mentioned a rough time.

Q: Okay, and you remember what time she mentioned?

A: First week of August ’96.

Q: Did she mention the word “rape”?

A: No.

Q: Did you get any impression that it was a rape?

CROWN: Objection, you Honour I don’t know how –

THE COURT: Reword it.

Q: Did she say anything even though she didn’t use the word “rape” which indicated that she didn’t want to have sex?

A: Not at that time.

Q: Did she voice any concerns to you with respect to being pregnant?

THE COURT: She said that.

Q: What specific, did she have any specific concerns about the possibility of being pregnant?

A: Yes, that was her main concern.

Q: And did she have any concerns with respect to confidentiality?

A: Yes.

Q: And what was her specific concern with respect to that?

A: She did not want anybody else to find that out and I assured her that with a doctor/patient relationship that her privacy and confidentiality would be respected.

Q: And was there any one in particular that she didn’t want to find out?

A: She didn’t want her parents to find out, specifically her mother.

Q: And did she tell you why?

CROWN: Objection, you Honour.

THE COURT: That is not really why this witness is here.

Q: There was concern about pregnancy; did you run a pregnancy test?

A: Yes, I did.

Q: And did you ask her to call you back some time later to find out about the results?

A: Yes, I did.

Q: And did she do that?

A: No, she did not.

Q: So were you able to convey to her at some point the result of that test?

A: Yes.

Q: Firstly, what was the result of that test?

A: I did a blood test which gives us a specific number which would also have to find out how far along the pregnancy was. So it’s a little bit more than just positive and negative. And that blood test was positive with a high number, and I tried to contact her after that.

Q: Okay. And when and how did you try to contact her?

A: Okay. When I had not heard from her for several weeks I started to become worried about her, and because of her request for confidentiality and privacy I telephoned her school, her high school and the person who was at the answering end was kind enough to get her for me from her class, and I talked to her on the phone.

Q: You spoke to her directly on the phone?

A: Yes.

Q: Okay. And at this point did you advice her of any options, or what was your recommendation to her over the phone at this point?

A: I told her that she could come into the office to discuss where she would like to go next, and that, you know, if she did not want to come in or if she could not come in I could give her information on the phone that would help her decide what she wanted to do.

Q: And did you give her information over the phone?

A: I did.

Q: And what was that in regards to?

A: It was in regards to giving her a choice in terms of whether she wanted to go ahead with the pregnancy or not, and that if she wished to go ahead with it I will give her some telephone numbers where she would be able to go and obtain a therapeutic abortion.

Q: And did you get the impression that she was going to go ahead with that, or if she was undecided?

A: It was a short phone call because she had been called from class and she was very anxious, and I told her that, you know, whatever she wanted to do that I was there to help her with whatever decision she decided to take.

Q: And did she voice any concerns to you about spotting or anything to that effect over the phone at that point in time?

A: I have to be honest and say no, I do not recall that she may have said.

Q: And when was the next time you heard or saw her after that phone call?

A: The next time her mother brought her in on the 16th of November, 1996.

Q: And that was the next time that you had any contact since that phone call?

A: Yes.

Q: I’m sorry, I’m not quite sure who got the date on that phone call. Did you have an approximate date for that?

A: I called her approximately four weeks after the first visit.

Q: May, October, would that be –?

A: Probably early October, yes.

Q: Then the next time you saw her was the 16th of November?

A: Yes.

Q: Now, when you initially saw her she came with her mom; is that correct?

A: Yes.

Q: Did you see her alone or did you see her with her mom?

A: I saw her alone first so I could speak with her.

Q: And did you discuss the pregnancy?

A: Yes.

Q: And what was your concern and/or advice to her?

A: Well –

CROWN: I am going to object on the basis of relevance. I don’t know what –

THE COURT: Her concern is completely irrelevant.

Q: What did the patient tell you?

A: She told me that her mother was worried because she was gaining weight and her abdomen, her stomach was getting larger, and that’s why she had brought her to see me to find out what was going on, and so I told her yeah, it is correct you are pregnant and that is why the way your body looks and feels is changing, and you will have to tell your mother what is going on because that would be the best thing to do now.

Q: And did you discuss abortion again?

A: Yes; I was really concerned at that time because when I examined her she was 18 weeks, which is almost like four months, and according to the legal requirements in Ontario it would be difficult to or impossible to obtain an abortion after 20 weeks, which is the half way cut off time, and if she did not truly want to go ahead with this pregnancy then we really do not have too much time. She first told me that she will go to the clinic next week and I told her that I do not think that she should wait anymore.

Q: Why did she say next week? Did she tell you why she wanted it to be next week?

A: She didn’t tell me, but I was my –

THE COURT: Excuse me; don’t speculate, please.

Q: Okay. So she said next week and then you had concerns about the time limits and what did you recommend?

A: I told her that she was in denial, that she was not accepting what was going on which is a normal thing when adolescents are facing an unwanted pregnancy, and I told her that my advice to her would be to bring her mother into the room and I would be there to support her, and she must tell her now today, five minutes, and she asked me to do it.

Q: Okay, now why is it you wanted to tell her mom?

A: Because first of all, her mom was the one who had brought her in to see me because of concerns about what was happening to her, and it was important for her to get the support of her parents so that she could make the decision that she wanted to make, and this would facilitate her ability to obtain the medical care that she required at this point in time. So obviously she had not done it on her own until then, plus I would have to explain to her mother what was happening to her daughter. So it was only sensible for me to got her mother and advise her to do the same thing.

Q: In your mind did you have an obligation at that point to let her mother know she was pregnant?

A: That is a question that can be debatable. If I have a mature minor request confidentiality and who is able to follow my medical instruction and obtain the care that they want, we do not necessarily have to disclose it to the parent if they do not want it. If we have a minor who is not really able to look after themselves and obtain the care that they need, then we would definitely involve the parents. Now at this time she was 15, she was 15 and –

THE COURT: Can 15-year-olds get an abortion on their own without their parents knowing?

THE WITNESS: They can.

THE COURT: In any event you advised her to tell her mother and the mother was brought in?

THE WITNESS: Yes.

Q: And now so the mother is brought in, and then she tells the story of what happened; is that correct?

A: That’s true.

Q: And that’s when she mentioned rape; is that correct?

A: That’s true.

Q: And when was the first time that you had heard about rape?

A: That was the first time I heard about it.

Q: On that day?

A: Yes.

THE COURT: Did you write all this down in your notes.

THE WITNESS: Yes my notes are here.

THE COURT: Let me see.

THE WITNESS: I have my trial in the two days I type them out because it’s hard to read my writing.

THE COURT: You typed up your notes?

THE WITNESS: Some of them.

THE COURT: That’s just one page.

THE WITNESS: I have other notes here.

Q: Those are all my questions. Please stay there. The Crown will have some questions for you.