Acupuncturist sentenced for sexually assaulting patient during treatment

Dr. Musa Andkhoie will serve his one-year jail sentence in the community because of his age and multiple chronic health issues, the judge ruled.

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A Saskatoon acupuncturist convicted of sexually assaulting a patient during an acupressure treatment will serve his one-year jail sentence in the community, then spend another year on probation.

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Judge Vanessa Monar Enweani agreed with the defence that a conditional sentence — jail time served under conditions in the community — can satisfy the sentencing principles of denunciation and deterrence, considering Dr. Musa Andkhoie’s health risks if we were to be jailed.

Andkhoie, 80, was sentenced after a provincial court trial in 2021.

The victim testified that Andkhoie applied appropriate pressure during an initial treatment, but touched their genital region, both underneath and over top of their clothing, without consent during a second treatment days later in September 2019.

Acupressure uses fingers to apply pressure to parts of the body while acupuncture uses needles.

Only the victim and Andkhoie were in the room during the assault, court heard. The victim contacted family members and police immediately after.

At trial, Andkhoie said the patient was lying and had consented to any touching he did, which he said he would have documented in his chart.

Monar Enweani found the victim to be credible and reliable based on their detailed recollection, anatomical description and clear timeline of both the assault and the surrounding events, Crown prosecutor Aaron Martens said.

“In contrast, the judge found the accused had minimal independent recall of the event beyond his notes from a chart, and those notes did not involve inappropriate touching. On the whole, his lack of detail, and evidence as a whole, was found to be less reliable and did not raise a reasonable doubt in the judge’s mind,” Martens said.

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He argued for a custodial sentence of between four and six months, followed by 18 months of probation, given the violation of trust and the need to deter others from doing the same.

The victim described an overall loss of trust in health care, and anxiety throughout the lengthy court process, Monar Enweani said. She also noted the doctor’s lack of remorse and failure to accept responsibility as reflected in his pre-sentence report.

Defence lawyer Lisa Watson argued for a conditional sentence of between nine and 12 months, due to her client’s age, his lack of a prior criminal record and his multiple chronic health conditions, including hypertension, diabetes, coronary artery disease, kidney stones, hydronephrosis and depression.

Watson provided scientific evidence, supported by the federal government, that she said “shows that he is at risk of developing severe disease if he contracts COVID-19 in custody.”

She added that the “psychological impact of jail during the pandemic on a vulnerable offender like Dr. Andkhoie would result in an unfit sentence.”

As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or the excessive lockdowns to prevent the risk of infection, Monar Enweani said, citing case law during her oral decision.

She noted Andkhoie is deemed a low risk to reoffend and has strong family support.

He got his doctorate in anesthesia and received training in acupuncture and acupressure before coming to Canada in 2003 after fleeing to India from Afghanistan, court heard. He began practising in Saskatoon in 2004 and retired in 2021.

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His conditions, during both his community jail term and his probation, include not practising any form of health care, participating in sex offender treatment as directed by his supervisors and having no contact with his victim.

He will be on a 24-hour curfew during his conditional sentence, but not during his probation.

Martens said only Andkhoie’s unique factors of age and health issues kept him out of jail.

“Instead, he is under very tight conditions to protect the public and keep him from reoffending. All patients have a right to say no to any caregiver who isn’t respecting their boundaries or getting consent to have contact, and this case reflects that.”

bmcadam@postmedia.com

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