Retired dentist wants historical assault charges stayed before Halifax trial

A retired Halifax-area pediatric dentist accused of assaulting six female patients between 35 and 53 years ago wants a judge to stay his charges, claiming the loss of memory, records and witnesses with the passage of time has made it impossible for him to have a fair trial.

Errol Franklyn Gaum, 81, is scheduled to go on trial in Halifax provincial court Feb. 20 on one count of assault causing bodily harm and eight counts of assault.

Judge Elizabeth Buckle heard the application Friday and reserved her decision. She said she must decide whether she should rule on the application right away or wait until the end of the trial, after she’s heard all the evidence.

“Dr. Gaum has been prejudiced in several ways by pre-charge delay and lost evidence,” defence lawyer Stan MacDonald wrote in his brief to the court.

“The accumulation of prejudices is significant and amounts to a breach of his right to a fair trial.”

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,” he wrote.

Police allege the complainants were assaulted during dental procedures at clinics in Halifax, Dartmouth and Bedford between January 1971 and March 1989. 

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 hand and mouth.

The sixth complainant told police Gaum smashed 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 a criminal investigation after receiving numerous reports that he had assaulted patients at various locations 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 One of those charges was withdrawn by the Crown in August 2022.

Affidavit filed

In an affidavit filed with his application, Gaum said he carried on a “busy practice” in pediatric dentistry in the Halifax Regional Municipality 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 cannot remember if he ever treated any of the six complainants.

During his time in practice, he 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 both dental hygienists and dental assistants. 

“The dental assistants I employed worked alongside me and were present during treatments and procedures,” he said. “It was rarely my practice to treat a patient alone, without a dental assistant present.”

He said he cannot remember how many hygienists and assistants he employed during the 1970s and ‘80s or all their names.

‘Unfair to proceed’

In his oral submissions Friday, MacDonald said the circumstances leave Gaum unable to properly cross-examine the complainants at trial and make full answer and defence to the allegations.

“There is so much evidence available to him that is completely lost that it is unfair to proceed to trial on this basis,” the defence lawyer said.

He said Gaum would essentially have to “fight a fight with one arm and one leg tied behind him.”

MacDonald asked the judge to find that the defence has shown that Gaum’s charter rights have been breached and that “it’s more probable than not that he cannot have a fair trial in these circumstances.”

Crown submissions

Crown attorney Lauren Lindsay, in her oral submissions, urged the judge to dismiss the stay application.

Lindsay said the application speculates about the impact of lost evidence on Gaum’s ability to mount a defence but does not demonstrate a “real, actual prejudice to his right to full answer and defence and his right to a fair trial.

“A stay is the most drastic remedy, permanently ending the possibility of a trial on the merits,” she said. “It’s extraordinary and it’s reserved for the clearest of cases. This is simply not a case that reaches that threshold in any way.”

In their brief, Lindsay and co-Crown counsel Stephen Anstey said, given the absence of evidence of prejudice, the court need not consider other remedies short of a stay. 

“The applicant will have a fundamentally fair trial where he will be able to hold the Crown to its evidentiary burden, challenge its witnesses and be permitted to defend himself,” the prosecutors wrote. “The charter requires nothing more and permits nothing less.”

Last June, a Nova Scotia Supreme Court judge refused to certify a class action against Gaum that was proposed on behalf of hundreds of former patients interested in suing him for misconduct.