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title A night on the town

December 17, 2001 Issue Full Text

From the Misty Moon to the Nova Scotia Supreme Court, a bizarre legal affray took a decade to settle

by Colby Cosh

YEARS ago, the destinies of three Nova Scotians came together in a situation strange enough to be a Hollywood movie. A promising law student watched his life and career explode when he was charged with sexual assault; an anonymous woman, his accuser, saw her personal history become a public circus; a respected psychiatrist ended up with a huge legal bill and a suspension from the profession just because he was concerned about a possible injustice. Their weird story finally ended on October 9, but the mysteries behind the affair will probably always remain.

The tale begins on October 26, 1991, at the Misty Moon Cabaret in downtown Halifax. Kenneth A. Ross, then 27, was a second-year law student at Dalhousie University. At the bar he met the woman later referred to in legal documents as "Jean Smith." Ross had dated "Ms. Smith" in their undergraduate days, and Ms. Smith agreed to go back to Ross' place for drinks. That is where the accounts of what happened diverge.

According to Ms. Smith, she was fending off amorous advances when Ross suddenly started punching her in the face. He then forced her to perform oral sex. Ross, on the other hand, recalled preparing to sleep with the plaintiff when she started asking strange questions--was he going to tie her up, or force her to perform oral sex? When he said no, she began "kicking" and "thrashing," so he gave up and called her a cab.

Jean Smith, obviously upset, told the driver she had been raped, and he took her to a hospital. Soon after, she spoke briefly with Dr. Eric Hansen, a Halifax psychiatrist who had treated her occasionally since 1983. Dr. Hansen remembered her as a patient who had left home at 16, passed through phases of religious fervour and alcoholism, and had eventually begun to get her life in order. A letter he wrote in 1983 describes her as a "good kid who got into the wrong crowd and has now seen the light." He mentioned an "adolescent adjustment reaction," and believed Ms. Smith had witnessed traumatic, violent events in the family home.

By June 1992, Ross' her-word-against-his jury trial had begun. One day, Dr. Hansen read a newspaper story on it and remembered his most recent conversation with Ms. Smith. Although her name was not published, he recognized her story. The differing accounts of the events in Ross' apartment troubled him. He thought they could result from a "dissociative experience" in Ms. Smith's mind--that she had innocently had a symbolic "flashback" and imagined a harrowing sex assault. He was concerned that her testimony might be unreliable, but he was uncertain what to do.

The guidelines for physicians in this situation are not written in stone. Doctor-patient confidentiality is nearly sacred, but a doctor is allowed to break it to prevent a miscarriage of justice. That is the theory, but Dr. Hansen is perhaps the first Canadian physician ever to actually do so. Through a lawyer, he asked the Provincial Medical Board (PMB) (since renamed the Nova Scotia College of Physicians and Surgeons) how to behave. They refused to advise him, but urged him to consult his conscience. While he was grappling with the dilemma, Ross was found guilty and sentenced to 18 months' imprisonment.

Dr. Hansen chose to notify the crown prosecutor that he had confidential knowledge relevant to the Ross case, though he disclosed no facts. The Crown notified the defence, and the defence asked the court to question Dr. Hansen and seize the relevant records. In April 1993, Ross' conviction was overturned and a fresh trial ordered. Then things started to get really complicated.

Within a matter of weeks, Ms. Smith complained to the PMB about Dr. Hansen's violation of her privacy. Meanwhile, two other women came forward with stories of spookily similar sexual assaults they said Ross had perpetrated. In pre-trial hearings, Ross' lawyer fought to have these new accusations thrown out because of the possibility of collusion. The motions were denied. A new charge, a more serious one of sexual assault causing bodily harm, was tacked on. Ross decided to cut a deal. In February 1995, he pleaded guilty and was sentenced, again, to 18 months.

The PMB, which had been unable to advise Dr. Hansen on his ethical problem, now turned against him. In panel testimony, some fellow physicians came forward to praise him. "An informed and aware psychiatrist would have...come to very similar conclusions," said one. "Whether the same psychiatrist would have had the moral courage to more doubtful." But other doctors disagreed. One psychiatrist told the panel that "People do not re-experience trauma in any symbolic form, but in fact quite is very difficult to take Dr. Hansen's use of diagnostic entities seriously."

In 1996, the panel found Dr. Hansen guilty of professional misconduct and suspended him from practice for three months. Ms. Smith had sued the PMB to keep it from publishing in its decision the private details she had brought forward herself, but that case was dismissed rather contemptuously by a judge. Then Dr. Hansen's lawyers seized on a clause in the medical board's controlling statute allowing for judicial review of its rulings. He appealed to the Nova Scotia Supreme Court, which was set to hold a hearing October 9 of this year.

With less than a week to go, the board's lawyers put a deal on the table: pay us $25,000 in legal costs, accept a two-month suspension and we will drop the matter. Dr. Hansen proved unable to refuse; he would have lost far more than $25,000 if the Supreme Court had turned the tables and awarded costs to the PMB.

"My client settled, in my view, for human reasons," says Dr. Hansen's lawyer, Michael Ryan, Q.C. "This matter had taken a terrible toll on his family. I was confident we would have success at the [appeal], but he settled on my advice. He had to decide whether he was willing to open old wounds." Mr. Ryan says the doctor intends to return to his thriving practice after the two-month break.

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