Implied Duty to Google It?

Marshall, a pediatrician was charged with 32 counts of sexual assault and sexual interference in relation to 20 of his former patients and two young males who were not patients. At the conclusion of the trial Marshall was acquitted of all the allegations involving the 20 patients and one of the non-patients.

Marshall was convicted of one count of sexual assault in relation to a young man PM, who was not a patient. PM testified that on three occasions when he was between the ages of 16 and 18, Marshall touched him in a sexual manner. Marshall was found guilty of touching PM’s genitals, rubbing his crotch against PM’s buttocks and laying on top of PM. In the last incident PM was able to break free and run away as Marshall “I am not trying to fuck you yet.” [at para. 8]

Marshall was sentenced to 8 months in custody. He appealed both conviction and sentence and sought to tender fresh evidence. The Ontario Court of Appeal dismissed the appeals from conviction and sentence: 2015 ONCA 518

The Court also declined to admit the fresh evidence. On appeal Marshall sought to tender evidence that PM suffered from PTSD, anxiety and depression, all of which arose following his return from a difficult tour on active duty as a member of the Canadian Armed Forces. Additionally, Marshall wished to tender evidence that in 2006 PM had been charged with two counts of assault causing bodily harm and two counts of assault and that a stay of proceedings was entered following the plea of guilty of a co-accused.

The Court found that none of the proposed fresh evidence met the threshold for admissibility as set out in the Supreme Court’s decision in Palmer. In reaching this conclusion the court noted that the evidence was in fact “available at the time of trial in that it was posted on the internet.” [at para 19].  Such a statement of course begs the question, do lawyers have an implied duty to google it?