A senior osteopathic practitioner and instructor knew that performing an internal vaginal procedure was a “controlled act” that was not permitted to him under the Regulated Health Professions Act of Ontario. Osteopathic practitioners are not recognized under that statute. (As an aside, the title “osteopath” is a protected title under the Medicine Act, 1991.) Despite the fact that osteopathic practitioners were prohibited by law from performing internal vaginal procedures, the procedure was taught at his osteopathy school, and he regularly performed it on patients. One of the patients he performed the procedure on was a student at the school. While he was not her teacher, he did provide her with private tutoring and mentoring. She was also his patient. In 2013 he recommended an internal procedure which he performed in a “clinical” manner. Later she went to the police, and he was charged with sexual assault. There was disagreement as to the degree of voluntariness of the consent by the student/patient. Another issue was whether the procedure was carried out in a sexualized manner.
In R. v. Morelli, 2025 ONCJ 111 (CanLII), the Court dismissed the charge. Even though the osteopathic practitioner performed the internal procedure knowing that it was contrary to provincial law, the Court found that alone did not convert it to touching of a sexual nature:
In my view, when I look at the case in its totality, while the fact that he was not permitted by statute to perform this treatment is one factor to consider, the remainder of the evidence presented at trial all supports a finding that Mr. Morelli was engaging in a treatment that was recognized by the profession, that was reasonable in the circumstances and one that Mr. Morelli honestly and legitimately believed was the appropriate treatment. Moreover, in my view, Mr. Morelli conducted the treatment in a purely clinical fashion. I am therefore left in a reasonable doubt that the conduct that makes up the actus reus of the offence was sexual in nature. Mr. Morelli is therefore not guilty of the offence of sexual assault.
The Court went on to find that, in the circumstances, the osteopathic practitioner “had an honestly held belief that A.M. was consenting, and his belief is objectively reasonable. I therefore find that the Crown has not proven beyond a reasonable doubt the lesser included offence of assault.”
The court noted that two years after the incident, the osteopathy community decided to stop seeking status as a regulated health profession and advised osteopathic practitioners to cease doing controlled acts. The school stopped teaching the performance of internal procedures. The case report contains no indication that enforcement or restraining orders had been sought against the practitioner under the Regulated Health Professions Act.