Retired Halifax-area dentist Errol Gaum’s assault trial to go ahead

A retired Halifax-area pediatric dentist has lost his bid to keep his trial on historical assault charges from going ahead next month.

Errol Franklyn Gaum, 81, faces one count of assault causing bodily harm and eight of assault.

The charges involve six women who allege they were assaulted as children during dental procedures at clinics in Halifax, Dartmouth and Bedford between January 1971 and March 1989. 

Gaum applied for a stay of proceedings on the charges because of pre-charge delay, claiming the loss of memory, records and witnesses over the passage of time will make it impossible for him to have a fair trial.

Judge Elizabeth Buckle heard evidence and submissions on the stay application in Halifax provincial court on Jan. 5. She said the first issue she had to decide was whether she should rule on the application right away or wait until the end of the trial, after she’s heard all the evidence.

The Halifax senior returned to court Friday for that preliminary decision, which did not go his way.

“The Supreme Court of Canada has cautioned that often where a stay is sought, it is best to wait until the end of the trial,” Buckle said in her decision.

“In my view, the case before me is a close call. However, I have decided that is what I should do here.”

The judge admitted she has most of the information necessary to assess the impact of the lost information.

“However, in some important areas, I don’t,” she said. “For example, the applicant has relied at least in part on the possible impact of a sedative that may or may not have been given to the complainants.

“At this stage, I have Dr. Gaum’s experience-based evidence about the impact of that sedative, but I don’t have properly admissible expert evidence. That may be available at trial and could impact my assessment of potential prejudice from the delay.”

Buckle said this may be a case where deciding the stay application pre-trial could actually cause prejudice to the defence.

“I realize that by reserving my decision, I have also caused potential prejudice to the applicant, if the stay is ultimately granted, since he would have been required to absorb the financial impact and emotional impact of a lengthy trial,” she said.

“However, in all the circumstances, I believe that reserving my decision till the end of the trial is the fairest approach, both to the accused and to the Crown.”

Gaum’s trial is scheduled to begin Feb. 20 and sit for 10 days.

Five of the complainants allege Gaum slapped them in the face during their procedures. One of those women also says Gaum would restrict her airway, while another says he put his hand over her nose and mouth.

The sixth complainant told police Gaum hit her face against a sink, causing a cut on her chin.

The Provincial Dental Board suspended Gaum’s licence in November 2020, when police opened an investigation after receiving numerous reports that he had assaulted patients over a 50-year period.

A Halifax Regional Police spokesman said investigators looked into more than 100 complaints before laying 10 charges involving seven complainants in March 2022. One of those charges was withdrawn by the Crown in August 2022.

In an affidavit filed with his application, Gaum said he cannot remember if he ever treated any of the six complainants.

Gaum said he carried on a “busy practice” in pediatric dentistry in the Halifax area for almost 50 years, from January 1971 until November 2020.

“I was often referred patients who had a history of acting out or presenting with behavioural issues during their visits to the dentist,” Gaum said in the affidavit.

“Over my career, I estimate that I had roughly 90,000 patient visits in my practice as a pediatric dentist. Most of these patient visits were one-time appointments. It was infrequent that I would see a patient more than once, given the fact that most referrals were for specialty treatment.”

Gaum said he often administered a sedative to the children that caused disorientation, amnesia and sometimes hallucinations.

“I do not currently have any records related to my practice in pediatric dentistry from any time in the 1970s, the 1980s or the 1990s,” Gaum said. “I was required to keep records for seven years. After seven years, the records were destroyed, along with the information they contained.”

Gaum said he employed and worked with dental hygienists and dental assistants during the 1970s and ‘80s but cannot remember how many or all their names. “It was rarely my practice to treat a patient alone, without a dental assistant present,” he said.

Gaum’s lawyers argued that the lost information would critically undermine their ability to challenge Crown witnesses on cross-examination and mount a defence. They said their client’s loss of memory is a significant barrier and that it is reasonable to infer that the lost records and witnesses would have been exculpatory.

Defence lawyer Stan MacDonald argued that the court should exercise its discretion under the Canadian Charter of Rights and Freedoms and enter a stay of proceedings.

“Dr. Gaum recognizes that a stay is a remedy reserved for the ‘clearest of cases,’ and submits that this is such a case,” MacDonald said.

Prosecutors opposed the application on multiple bases.

“Broadly, the Crown argues that none of these issues, alone or together, would result in an unfair trial and that the applicant has not established that this is one of the clearest of cases where a stay is required,” Buckle said.

“More specifically, the Crown argues that the applicant has not demonstrated that the loss of records or inability to call witnesses would actually harm his defence. The Crown further argues that this application should be decided at the end of the trial, when I’ve had the benefit of the opportunity to assess the actual impact of the losses on the trial.”