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Schwarz decision to be delivered May 28

Crown argues defence is based on 'hackneyed and discredited myth' during closing arguments in physician's sexual assault trial
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The Sault Ste. Marie Courthouse is pictured in this file photo
After hearing the lawyers' closing arguments Friday at the trial of a local doctor accused of sexually assaulting a patient, Ontario Court Justice Romuald Kwolek reserved his decision until May 28.

Dr. Peter Schwarz pleaded not guilty to two charges in connection with complaints from a woman who alleged he touched her in a sexual manner on Oct. 16 and Dec. 4, 2015.

During the trial, which began Wednesday, the court heard testimony from the complainant, whose identity is protected by a publication ban, her sister, and the accused and his office administrator.

On Friday, defence lawyer Dominic Lamb said the complainant "provided every hallmark of an untruthful witness."

He described the 38-year-old woman as evasive and argumentative, and suggested there were a number of inconsistencies in her evidence.

Lamb said she refused to answer questions in a simple and direct manner and became increasingly agitated and irritated, and more creative in her answers during cross-examination.

The efforts made by the witness to convince the court of her version of the events were obvious, the Ottawa lawyer said.

"You should reject it."

The woman told a shifting narrative, "concocting false motives to make herself look credible,  Lamb maintained.

There were inaccuracies in her evidence, based on the medical charts provided to the court, he said.

She testified that there were no physical examinations on Oct. 16 and Dec. 4, but the charts indicated there were on both occasions, the defence stated.

Lamb noted that Schwarz and his office administrator only became aware of the allegations in February when the police came for the charts. 

"There was no opportunity to alter them."

Prosecutor Paul Larsh countered that the case obviously comes down to the assessment of credibility.

"If you look at the big picture, if what the defence is saying is true, that she made up allegations about her doctor you have to scratch your head and wonder why," he suggested.

The complainant admired and trusted Schwarz, thought of him as friend, and was in a quandary when confronted with his behaviour, he said.

It makes no sense "she would make a false allegation against her long-time, respected physician."

She didn't rush to police and make a complaint, she didn't want to report Schwarz because she was concerned about the effect on him and his family, the North Bay Crown said.

"What possibly has she to gain in coming forward to testify."

Larsh said the woman was emotional, but ultimately she did something because she wanted to prevent this from happening to anyone else.

Schwarz's defence is "based on stereotype, the hackneyed and discredited myth" of a rejected woman running out and making a  false allegation, the north region sexual violence Crown attorney maintained.

The defence is saying she was rejected by her physician and accused him of sexual assault, Larsh said.

In his submission to the court, Lamb argued that the complainant's version of events was not possible based on the evidence and started with an impossible timeline.

The woman testified that she visited Schwarz's clinic on Oct. 2, made a joke about oral sex, came back on the 16th, he fondled her breast and buttock, and she was sexually assaulted again on Dec. 4.

Cathy Belsito, the doctor's office administrator, clearly recalled the remark, which she overheard (when the woman was in the hallway and leaving), being made on the 16th, confirming Schwarz's recollection, Lamb said.

Belsito testified that she wasn't working on Oct. 2 and a payroll document confirmed that, he told Kwolek.

If she wasn't working that day, the joke could only have been on Oct. 16 and "so there was no subsequent opportunity for the complainant to be assaulted on two visits," Lamb said.

If the joke happened on the 16th, it would have occurred after the assault and that "doesn't make any logical sense." 

Larsh told the judge he should look at the "level of detail" in the "telling and compelling" evidence given by the complainant.

"She's telling the truth about what occurred in Dr. Schwarz's office on Oct. 16 and Dec. 4."

The Crown's "submission is the evidence is consistent, detailed and there really is no reason for her to fabricate this account and I ask you to accept it," he said.

Larsh argued that Schwarz's evidence had aspects there were not consistent nor logical.

He suggested the physician's recollection of his HPV discussion with the woman "was clearly reconstructed" after checking his medical charts and talking to Belsito.

He pointed to the May 2016 letter Schwarz sent to the College of Physicians and Surgeons in response to a February complaint.

Schwarz had three months to think about it and speak with his legal advisors, and yet he indicated the discussion took place on Dec. 4,  Larsh said,

"The significance __ he's just not sure. He put this together after the fact and is uncertain."

The prosecutor suggested Schwarz was confused about the date, and asked the court to consider what's not in the charts.

The patient made an unfortunate comment, which Schwarz had agreed was "significantly troubling and unusual, but no where does he make any effort to document it."

He also noted that despite the woman's untoward comment, when she came back  on Dec. 4, the doctor hadn't installed any safeguards in his office. The doors were closed and he was alone with her.

"That doesn't make a whole lot of sense," the prosecutor said, suggesting it made sense that he wanted to be alone with the complainant "to do what he is accused of."

The defense argued that Schwarz was candid, believable and never evasive in his testimony.

When confronted in cross--examination about the May 2016 letter he conceded his error about the date, indicating he didn't pay enough attention to it and thought the complainant was frivolous, Lamb said.

Lamb called Belsito "an unassailable witness," pointing to her evidence about the timeline of the events and what was said.

Belsito testified the joke was made on Oct. 16, and that Schwarz was "perturbed and annoyed and told the woman not to speak like that," he said.

He noted Belsito was not interviewed by police, but provided a full statement to the college.

She was "forthright witness, unshaken in cross-examination," was not biased and had unimpeachable evidence, the defence said.

It comes down to the assessment of three witnesses – the complainant, Schwarz and Belsito – he concluded.

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About the Author: Linda Richardson

Linda Richardson is a freelance journalist who has been covering Sault Ste. Marie's courts and other local news for more than 45 years.
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