Doubts were cast on the two complainants in the sex assault trial against a former Barrie dermatologist in closing arguments this week.
The trial of Rodion Kunynetz continued on Monday, after four days of testimony last week.
The two women – both now 71 – testified on Monday and Tuesday last week that Kunynetz examined their breasts despite them coming to the doctor to examine marks on other parts of their bodies. The first saw Kunynetz in 1998 and the second, in 2008. Their identities are under a publication ban.
When Kunynetz took the stand last Wednesday, he denied that his touching of the patients had any sexual connotation, and that they were normal methods of examining patients.
Defence attorney David Humphrey emphasized throughout his closing arguments Monday that Kunynetz denies the allegations as he contends that the touching was for medical purposes only, and acknowledges inadvertent touching. According to case precedent cited by Humphrey, the focus of the court needed to be on whether Kunynetz was acting as a professional, or if he was seeking sexual gratification. Humphrey also alluded to there being possible collusion between the complainants.
“The evidence doesn't support that these incidents were for sexual gratification,” said Humphrey.
Humphrey also pointed out numerous instances of inconsistency in both complainants' testimony.
With the first complainant, Humphrey noted that according to her own testimony, she indicated she had a “good memory” despite the event occurring 20 years ago, but has no memory of a biopsy she underwent at the same time.
Humphrey also noted that while the first complainant indicated that she had raised her arms when asked by Kunynetz, she changed her story, first indicating that Kunynetz was the one who pulled down her sweater after the incident, and her being the one who pulled the sweater down, and seemed flustered on the stand at not remembering.
Justice Christopher De Sa interjected at this point.
“I think she was trying to understand what she had done,” said De Sa.
“I got the impression she was going from what she should or would have done as opposed to an actual recollection,” he added.
He also indicated that he sees her as trying to be honest, not as an attempt to deliberately embellish.
Humphrey also clarified that he doesn't believe the first complainant is deliberately lying.
“The evidence just doesn't support that the incidents were for sexual gratification,” reiterated Humphrey.
In her closing arguments, Assistant Crown Attorney Lynn Shirreffs argued that sexual assault can be found for the purposes of sexual gratification, but that there are other purposes as well, such as humiliation or power play.
“Sexual gratification is not the only indicator,” she said.
She reminded the court that the second complainant had been to multiple dermatologists in the past and would consider herself an “experienced patient.”
She also brought up that the second complainant had been for breast exams every six months and had a procedure done to remove lumps in her breast, and she testified that no other dermatologist or doctor had done a breast exam on her before in that manner.
Justice De Sa then raised concerns that the second complainant isn't an expert, and that her experience is anecdotal so he was leery about considering that part of her testimony as evidence.
Shirreff continued by addressing the collusion allegation, indicating that there was no suggestion of motive or knowing anyone else involved in the case on the part of either complainant.
“There is no evidence she is lying,” she said, referencing the first complainant.
“It seemed even up until now, she was questioning and reflecting. It seemed there were things she recalled later that happened that made the whole incident seem more normal,” said De Sa. “It became more complicated (the longer she testified).”
Last year, Kunynetz endured a penalty hearing by the discipline committee of the College of Physicians and Surgeons of Ontario. On March 21, 2017, the committee determined that Kunynetz had committed acts of professional misconduct when he engaged in the sexual abuse of four patients and disgraceful, dishonourable or unprofessional conduct. They also determined he had contravened a term, condition or limitation on his certificate of registration.
On Feb. 20, the committee ordered that Kunynetz's licence to practise be revoked. He was also ordered to reimburse the college for funding provided to the patients in the amount of $16,060, as well as paying the college $145,460 directly.
Kunynetz has not practised medicine since his licence was suspended in September 2015.
The issue that launched the story into national headlines was the doctor's defence against some patients' allegations that he rubbed his penis against their legs during examination.
Dr. Kunynetz argued this was physically impossible because his large belly prevented his penis from making contact.
"After reviewing the totality of the evidence, the committee found that there had been contact between the patients and that part of Dr. Kunynetz's lower abdomen at the level of his pelvis, and that the patients were distressed by this," the disciplinary panel wrote.
"However, the committee remained concerned that there was contact between a portion of Dr. Kunynetz's body, in the area of his large abdominal panniculus, or abdominal fat pad, and this contact was not accompanied by any form of warning, apology or excuse."
The committee said it was of the view that a reasonable physician would make every attempt to ensure that this did not occur, and that failure to make such attempts or to apologize if it occurred accidentally, or incidentally, represented an unacceptable level of insensitivity on the part of Dr. Kunynetz, without care or concern for the patients.
The doctor was also found guilty by the college of contravening a condition placed on him by the college to not see female patients without a chaperone on two separate occasions.
"Dr. Kunynetz’s point that he adhered to the undertaking in some 700 patients was given as mitigation; however it can equally be viewed as evidence that Dr. Kunynetz was very aware of the conditions expected by the college," the committee found.
Kunynetz will be facing another hearing with the college, as more than 30 new patients have come forward with more allegations of sexual misconduct.
The patients ranged in age when they visited Kunynetz, the earliest alleging to have seen him starting in 1985. Their identities are also under a publication ban.
When reached for comment this week, Tracey Sobers of the College of Physicians and Surgeons of Ontario said she could not comment on the specifics of this case in regards to why the hearings had been split.
“I can say that, in general, it is not unusual for individual cases to have separate hearings. Reasons for that can be as simple as, for example, the time period when complaints were received and investigated,” said Sobers.
The college hearing dates have not yet been determined.
Kunynetz also has another criminal case pending against him. He is charged with 28 more counts of sexual assault and gross indecency. That case will be in court next on April 13 for a pre-trial, which is closed to the public.
This case is back in Barrie court on April 23 for judgment.
– with files from Sue Sgambati and Robin MacLennan, BarrieToday
Editor’s Note: BarrieToday does not allow comments to be posted on court stories.
