R. v. Kadirsahib, 2012 MBPC 28

CITATION: R. v. Kadirsahib, 2012 MBPC 28 Date: 2012 03 14 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Breta M. Passler/ ) Michael M. Desautels ) for the Crown and ) ) ) Mohamed Sadhakkathulla Kadirsahib ) Martin S. Minuk ) for the Accused ) ) ) ) Reasons for Decision delivered: ) March 14, 2012 Restriction on publication: This decision is subject to a s.486.4(1) of the Criminal Code of Canada publication ban. LERNER P.J. [1] The accused, Mohamed Kadirsahib, is charged with two counts of sexual assault.

Count one alleges a sexual assault withrespect to the complainant L.G. on March 17, 2009. The second count alleges a sexual assault with respect to the complainant L.S. onDecember 17, 2008. [2] Dr. Kadirsahib is a physician licensed to practice medicine in the province of Manitoba. On the noted dates, he was working asa physician at the Lac du Bonnet Health Centre in Lac du Bonnet, Manitoba. The evidence before me establishes that on the respectivedates, the complainants attended the Lac du Bonnet clinic and were examined by Dr. Kadirsahib. In

summary, it is alleged in each casethat after a preliminary and appropriate medical examination, the accused conducted a purported medical examination on eachcomplainant that went far beyond the physical parameters of such an examination, that involved physical contact that was not in factconducted for a medical purpose, and that constituted a sexual assault against both women.

I will deal with the specific facts of each casein greater detail in the course of my decision. [3] In a multi-count indictment, a trial judge must normally consider the evidence in each count separately to determine whetherguilt has been proven beyond a reasonable doubt. R. v. Tomasetti, 2000 MBCA 136 , [2000] M.J. No. 573 (Man C.A.), para. 30.In the instant case, the Crown has brought a similar fact application, submitting that the evidence on one count be considered withrespect to the other.

Acknowledging, however, the significant weaknesses in the evidence of the complainant L.S., the Crown submitsthat the evidence of the complainant L.G. ought to be considered in support of the allegation involving L.S., but not vice versa.

Forreasons that I will provide later in this decision, I agree both with the Crown’s position with respect to the weaknesses in L.S.’s evidence,and with the Crown’s position that her evidence cannot be advanced as similar fact in support of the L.G. complaint. [4] A similar fact application is ordinarily a threshold issue that will determine the nature of the evidence to be considered withrespect to each count.

In this case, however, given that the count with respect to L.G. will be considered without reference to theevidence of L.S., I will deal with the former on its merits before considering the similar fact application as it relates to the latter.

[5] Sexual assault is an assault (i.e. the intentional application of force to another person without their consent) committed incircumstances of a sexual nature, such as to violate the sexual integrity of the complainant. The mens rea is simply the intention to applyforce to another person. The actus reus is the application of force of a sexual nature without consent. Whether or not the assault is of asexual nature is an objective test. [6] In R. v. Cuerrier, (SCC), [1998] 2 S.C.R. 371 Cory J., for the majority, wrote at paragraph 99: In R. v.

Maurantonio, (ON CA), [1968] 1 O.R. 145 (C.A.), a man falsely held himself out to be a doctor and purportedto conduct gynecological examinations of several women. It was found that the victims consented to medical examination but receivedsomething which was altogether different. It was held that the fraud related to the nature and quality of the act and vitiated their consent.It was stated at p. 152, that '[t]he general rule is that if deception causes a misunderstanding as to the nature of the act itself there is nolegally recognized consent because what happened is not that for which consent was given...'.

And at para. 127: A consent that is not based upon knowledge of the significant relevant factors is not a valid consent. [7] In the present case, the complainant L.G. testified that throughout most of the examination in question, she had what shedescribed as a dual track internal dialogue: she was afraid that there was a legitimate medical issue (for example, breast cancer) beinginvestigated by the accused, while at the same time feeling “that this exam felt inappropriate, sexual, and not at all okay” Thecomplainant’s also testified that her concern was that the examination conducted by the accused went “well beyond the scope” of anormal medical examination. [8] L.G. was never asked at trial whether she consented to physical contact from the accused. [9] Considering L.G.’s evidence as a whole, I find that her evidence is to the effect that her consent to physical contact from theaccused was clearly predicated on the premise that the physical acts in question were performed by the accused for bona fide medicalpurposes; in other words, that her consent was provided only for those acts that were in fact performed for those purposes.

If the actsperformed by the accused with respect to the complainant during this incident were for a non-medical purpose, then those acts wereperformed without consent, and amounted to an assault; if so, then given the nature of those acts, such an assault could only be construedas objectively sexual in nature. [10] The essential issue in this case, therefore, is whether the acts performed by the accused with respect to the complainant were infact for bona fide medical purposes. [11] The accused gave evidence in this proceeding.

His evidence was that the entirety of his physical examination of thecomplainant was for bona fide medical purposes. In giving this evidence, the accused engaged the process for assessing evidence set outby the Supreme Court of Canada in R. v. W. (D.), (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.). [12] The three stage test in W. (D.) can be summarized as follows: Firstly, if the trier of fact believes the evidence of the accused, the accused must be acquitted. Secondly, if the trier of fact does not believe the testimony of the accused, but is left in reasonable doubt by it, the accused must beacquitted.

Finally, even if the trier of fact does not believe the evidence of the accused and is not left in a reasonable doubt by it, the trier of factmust determine whether, on the basis of the evidence which is accepted, he or she is convinced beyond a reasonable doubt by thatevidence of the guilt of the accused. [13] Looking to the evidence of the accused, I note that there are elements of the accused’s evidence with respect to the incident ofMarch 17th that are, in a broad sense, consistent with that of the complainant: on the date of the alleged offence, the complainantattended to the Lac du Bonnet Medical Centre to see Dr.

Kadirsahib, presenting with a complaint of ongoing cough that had notresponded to the antibiotics and asthma medication prescribed by the accused on previous visits. The accused then conducted a standardmedical examination, which included an examination of her head, eyes, ears, nose and throat, and auscultation with a stethoscope. [14] The conduct which forms the subject matter of the sexual assault allegation with respect to L.G. is that which occurredthereafter, and can be described in

summary fashion as a complete breast examination, as well as an examination that included her pelvicarea. Although there are factual disputes to be resolved as to the circumstances surrounding this subsequent examination and the mannerin which it took place, the accused concedes that the examination in question did take place, but asserts that it was conducted for medicalpurposes.

The thrust of the accused’s evidence in this regard is that he conducted the examination in question for a combination ofreasons: the complainant had not responded to the antibiotics and asthma medication previously prescribed; he had detected what hetestified were two lumps, one submandibular (under the jaw bone), and the other supraclavicular (above the collar bone) when heinitially examined the complainant that day-lumps which he had not observed on previous visits, and which were hard and irregular,distinguishing them from the enlarged glands that one would expect to find in a patient with a respiratory infection; he was concernedthat these factors could be indicative of more serious illnesses, including cancer, lymphoma, fibromyalgia, and Sjogren’s disease; in lightof his expressed concerns, he wished to be especially careful in his examination, lest he miss anything serious, in particular as he had onlyrecently begun practice in the clinic; that the complainant left him with the impression that she was unsatisfied with the treatment he hadprovided to date, and that she was “challenging him” in that respect, therefore inclining him to find other possible causes for hersymptoms than those he had previously identified, and to find more effective treatment for her. [15] Although, as noted, the focus of the first two stages of the procedure set out in W.D. is the evidence of the accused, The analysis of both the accused's testimony and the Crown's evidence is done with full knowledge of all the evidence that has been

adduced at the trial. The first W.(D.) question does not vacuum seal the accused's testimony for analysis... The point of W.(D.)'s first question is not to isolate the accused's testimony for assessment, but to ensure that the trier of fact actually assesses the accused's credibility, instead of marginalizing it as a lockstep effect of believing Crown witnesses. R. v. Lake 2005 NSCA 162 (at para. 22 ) [ 16 ] In the instant case, the analysis of portions of the accused’s evidence requires reference to expert evidence, which in this case was called by the Crown alone.

In terms of the W.D. analysis, I have therefore considered the evidence of the accused in two respects: whether the accused’s evidence is internally consistent and credible, and whether it is consistent and credible in light of the expert evidence called by the Crown. [ 17 ] I will begin my assessment of the accused’s evidence by placing it in the context of the expert evidence. [ 18 ] Dr. Carl Duerksen was qualified without challenge as an expert witness in the field of family medicine, including accepted standards of care in the administration of physical examinations. Dr.

Duerksen has practised medicine in Manitoba since 1986, with very extensive experience in family practice, and a specialization in that area of medicine. For eleven years preceding the fall of 2011, he had also been an investigator for the Investigations Committee of the College of Physicians and Surgeons. In that capacity, he had investigated and reported to the College with respect to complaints involving competence of care and ethical concerns.

His pending role is as an investigator with the Manitoba Physician Achievement Review program, a standard of care review program for all physicians in Manitoba. [ 19 ] Inter alia, Dr. Duerksen provided an opinion with respect to the appropriateness and medical necessity of the examination described by the complainant L.G. He testified that he based his evidence on the letter of complaint provided by L.G. to the College of Physicians and Surgeons, the reply of Dr.

Kadirsahib, the further response of L.G., the medical records of the complainant- including the medical record of the March 17, 2009 incident prepared by the accused-as well as the evidence of the complainant at trial. The witness also testified that the opinions he offered at trial were not changed by the exclusion of any information he had received that did not ultimately form part of the evidence at trial. [ 20 ] A preliminary observation needs to be made with respect to this witness’ evidence.

The witness did, at various points in his evidence, indicate that certain actions or procedures followed by the accused in this case did not meet the required standard of care. There were instances, however, in which the witness’ evidence was couched in what I would describe as prescriptive language: that is, providing an opinion as to whether a particular method, or procedure, or course of action ought or ought not to have been followed, without explicitly identifying it as failing to meet standard of care.

There were also instances of what I would describe as a questioning of a course of action adopted by the accused, without an indication that it did not meet standard of care, or that it should not have been followed.

Finally, there were other circumstances where it was clear that the witness was simply offering his own preferred method of practice, rather than evidence with respect to standard of care, In that regard, the witness agreed that once a standard of care had been met, there were no “hard and fast rules” with respect to medical treatment or conduct by a physician. [ 21 ] Other than those circumstances in which the witness appears to be simply describing his own preferred method of practice, without suggesting that it is the standard of care or the only appropriate method to be followed in a given situation, I have also considered and given weight to this witness’ opinions as to whether a particular practice or method or course of action ought or ought not to have been followed in this case, and those situations in which a particular course of action was questioned.

Clearly, I attach far greater weight to those instances in which it was explicitly stated that a particular method did not meet standard of care, but the opinions of the witness that are not couched in those terms still register on the scales with respect to the inferences to be drawn from the conduct of the accused, and the ultimate assessment as to what kind of activity the accused was engaged in during this incident. Finally, I have not placed any weight on those aspects of the witness’ evidence that involved an expression of personal preference alone. [ 22 ] It is clear from the evidence of Dr.

Duerksen that based solely on the medical complaint of the complainant on March 17th, as set out in her evidence at trial, as well as the notes to the complainant’s medical chart made by the accused as this witness understood them, there was not a medical indication for the examinations conducted by the accused. [ 23 ] The witness testified as follows as to whether a breast examination was medically indicated: The other guiding principle here is, is, no, the, the questions we ask, the examinations we do and the investigations we order ought to be relevant to the complaint.

So the complaint here is cough at night, lower abdominal pain, right chest pain, back pain. There's no mention of a breast lump or breast discomfort. And most of the time people can characterize the difference between a pain in the breast, which is a superficial organ which is above the pectoralis muscle, below the skin, and, and other aspects of the chest. And further: The, the breast is a superficial organ, the nipple area is a very superficial organ and so if people have specific -- or a very superficial part of the breast.

So if a person has a specific concern regarding that area, then it will be appropriate to examine that. But this is, again, deviating a fair ways away from what the presenting complaint is.” [ 24 ] Dr. Duerksen was later asked whether, in his opinion, given the presenting complaint, a breast examination was indicated: A In my opinion, not. You know what, there's always a next step in this, so you can always be more thorough.

So here is an individual that you've seen for the third time now, who's primarily complaint is respiratory, it's cough, it's those type of things, and you -- and, and the medical care here seems quite reasonable, you know, using Advair, Advair and Ventolin would be reasonable, adding an antibiotic is a reasonable, was a reasonable thing to do. But she's not getting better and she's here on the 17th. So the next logical step would be to do what ultimately was done, which is add Prednisone, or if you wanted to be more thorough with your investigation, it would be a chest x-ray and spirometry.

The physical examination at this point really doesn't take you a step further in terms of the presenting complaint. And further:

Q. …if there's any difference between [the complainant’s evidence in court] and what's wrote (sic) in the chart, does the, does the chart justify the breast exam in any, in any fashion? A … it does not. And further: In addition, there would be some concern because there was a breast exam done four days previously as part of this same complaint and that was normal. So already it seems like a very peripheral part of this complaint. The exam has already been done, and now it's repeated and in a, in a manner which isn't private and isn't dignified and isn't thorough. So that's, that's, that's concerning.

And further: Q….does the chart justify the breast exam in any, in any fashion? A It does, it does not. She's had a, she's had a breast exam three days previously, sorry, four days previously, so it -- what's changed in four days? [ 25 ] Referring to the submandibular lump and the supraclavicular tenderness that the accused noted in the March 17th entry to L.G.’s chart, Dr.

Duerksen testified that both were normal in the case of a respiratory infection, and referring to the disputed physical examination conducted by the accused, he testified that these symptoms “would not be of a concern that would make me move forward, in this particular situation, in a different direction”. [ 26 ] Specifically referring to the inguinal examination conducted by the accused, he testified: That would not be something that would occur to me to do that.

An isolated enlarged gland in the context of a respiratory infection, the, the -- if, if there was some concern, even a, you know, a small concern about that gland, then the next step would be to re-examine it after the cold is gone and see that the lump is going away. So one isolated gland that we have a little bit of a concern about, re-examine a few weeks later. [ 27 ] Dr.

Duerksen was cross-examined as to his opinion with respect to the examination conducted by the accused, as follows: Q It's sort of a fluid area, as I see it, that you in your professional opinion may send me to go breathe at the respirologist and have me in the chamber and blow into the spirometer as hard as I can, and another physician may try something else? A That's correct. Q There's no real hard and fast rule about what to do next?

A That, that's correct. [ 28 ] This very general suggestion i.e. that there is no hard and fast rule with respect to certain steps taken by physicians, and that one physician may refer a patient to a respirologist while another physician may try something else, must be examined in the context of the witness’ specific comments with respect to the course of conduct followed by Dr. Kadirsahib, as set out above.

Considered in light of the specificity and comprehensive nature of his earlier evidence, his very general affirmative response to the two very general questions posed to him in cross-examination on this point does not, in my view, qualify that earlier evidence. In other words, considering his evidence in its totality, I understand Dr.

Duerksen’s opinion to be that while there may be some room for a difference of opinion as to next steps, that does not include room, in his expert opinion, for a legitimate medical conclusion that the complainant’s breasts should have been examined, or that the complainant’s pelvic area should have been explored.

I note in that regard that there was no follow-up question to this general suggestion, nor any specific question put to the doctor addressing his very clear evidence on the specific issue of what the accused did in the course of this incident. [ 29 ] Finally, in light of the wording of the question as well as those that immediately preceded it, and in light of the very specific evidence of Dr.

Duerksen as to the appropriateness of what happened in the course of this incident, to the extent that any inference is available from the witness’ response, it is equally likely that his response was directed to what was to happen after the visit i.e. that physicians may differ as to what to try as a next step thereafter, not as to what should have been done in the course of the examination. [ 30 ] Similarly, Dr.

Duerksen did acknowledge in cross-examination that physicians do perform “low yield” tests, i.e. tests that the physician essentially believes will yield no evidence that will assist in diagnosis, but are sometimes done nonetheless. He explained his answer by saying that in terms of next steps in this case, a chest x-ray and spirometry would be the next steps; the comment with respect to low yield tests was clearly not a reference to, or an endorsement of, the physical examination conducted by the accused. [ 31 ] Dr.

Duerksen was also cross-examined as to the general approach that might be taken by a physician with one or two years experience, versus those with Dr. Duerksen’s experience. Dr. Duerksen did offer a qualified and, in keeping with the very general nature of the question, very general agreement that a physician in this category may be more inclined to do certain tests than might a more experienced physician. He added, however, that the practice of new graduates and those with greater experience tended to be similar. [ 32 ] Further, and as previously noted, the question posed to Dr.

Duerksen on this issue was very general, as was the response it elicited. There was no question put to the witness with respect to whether that general observation had any relationship to the examinations conducted in this case by Dr. Kadirsahib, or any suggestion that it would cause the witness to alter his previously expressed opinion that, inter alia, there was no medical indication for the examination of the complainant’s breasts or pelvic area in this case.

[ 33 ] I would also observe that if the hypothetical posed were intended to apply to Dr. Kadirsahib, the evidence before me is that Dr. Kadirsahib was not in fact a physician of one or two years experience, but rather had practiced medicine for a total of ten years as of the date of the alleged offence. [ 34 ] In conclusion, I find the effect of Dr. Duerksen’s evidence to be that there was no medical indication for a breast or pelvic examination on the basis of the symptoms described in the chart as he understood them. [ 35 ] I note, however, that Dr.

Duerksen’s evidence referred only to a single lump being found by the accused, which, as is apparent from his evidence, he concludes in the context of the complainant’s upper respiratory tract infection is a single enlarged gland.

Given the nature of the doctor’s evidence as to the information he relied upon in forming his opinion, the basis of this assumption was clearly the entry made by the accused in the complainant’s medical chart, which refers to a lump (i.e. singular), and with no reference to the additional features (firmness and irregularity) which the accused testified caused him to believe that the lump(

s) may have been something other than an enlarged gland. [ 36 ] I also note that neither the features of feel and shape, nor the accused’s contention that there were two lumps rather than one, were put to this witness in cross-examination. The only cross-examination on this issue was as follows: Q Now, just back to this medical record for a moment. I wonder whether or not that we are reading this correctly where it seems to be, is it a lump submandibular and supraclavicular also tender? Like two lumps or is it one lump, do you know? A So there's a question mark and then lump submandibular. Q And sign slash.

A And then it says plus supraclavicular tenderness. Q Well, there's some other symbol between supraclavicular and tender. A Yes. There's a back slash. Q I'm just wondering whether or not that physician was recording that there was a lump in two spots or just one lump, and if you can determine that by reading the chart. A I read that as there being supraclavicular tenderness. Q So you're saying that your read of it is that there was only one lump, not two? A That's correct. Q Okay. And without speaking to the physician directly, you couldn't confirm that; is that right? A That's, that's correct.

Q And my -- and the report didn't assist you; is that what you're saying? A That's correct. Q His report? A Um-hum. [ 37 ] There is no suggestion to the witness that his

interpretation of the chart as to the number of lumps found will be contradicted by the accused. One of the results of this omission is that I do not have the benefit of specific evidence from this witness as to whether the additional observations testified to by the accused, in particular as to number, size, and shape of the lumps, would have altered his expert opinion as to the threshold appropriateness of the medical examination in this case. [ 38 ] However, and notwithstanding this omission, it is apparent from other comments of the witness that number, size, and feel of the lump(

s) is a significant factor. I note the following exchange in cross-examination: Q Now, if you felt a lump, and you're saying that in order -- if you -- a submandibular lump you would attribute just to the cold or the -- A Right. Sort of in isolation in someone that has respiratory symptoms, and assuming that that, that lump has characteristics that are benign feeling, you know, relatively soft, relatively small, not a large hard fixed -- Q So in order -- A -- abnormal tissue -- Q -- to get there, you've got to read a lot into that? A Well, there's different, there are different possibilities.

Finding, finding a submandibular gland a little enlarged in the context of a respiratory infection would be a common finding and that would normally not concern us.(emphasis added) And similarly:

Q In fact, in another direction, the lump, the tenderness, could indicate the inflammation or some problem in the lymph nodes; is that right? A Well, the submandibular lump that was felt probably was a lymph node so that's the only lymph node that's been identified.

There hasn't been a lymph node identified in the supraclavicular area but some tenderness has. (emphasis added) [ 39 ] I pause to observe that notwithstanding the failure to cross-examine the Crown’s expert on the issue of the number, size, and shape of the lumps that the accused would later testify he discovered, I do not find this to have violated the rule in Browne and Dunn. I do not find that Dr. Duerksen’s credibility was put in issue. There was no suggestion that he was not speaking the truth, or that he was a witness unworthy of credit.

Further, it was open to the Crown to have attempted to call rebuttal evidence on this issue. [ 40 ] In the end result, I am simply left with the conclusion that this witness’ opinion as to the threshold medical justification for the examination conducted by the accused may have been impacted in some way by information as to the discovery of more than one lump, and the size, shape, and feel of those lumps. [ 41 ] Whether I attach any weight to this witness’ evidence as to the absence of a threshold medical justification for the examination conducted will depend on my assessment of the evidence as a whole, including any findings of fact with respect to the nature of the physical observations made by the accused. [ 42 ] I turn now to the evidence of Dr.

Richard Van Gend, who was also qualified to provide opinion evidence in this matter with respect to the practice of family medicine. Dr.Van Gend received his medical training in South Africa, where he practiced medicine before coming to Canada. He has been licensed to practice medicine in Manitoba since 2000, and has extensive experience in all aspects of the practice of family medicine in both Manitoba and South Africa. In addition to his other duties, Dr. Van Gend is a practice advisor for physicians with conditional licenses, and from November of 2008 until April of 2009 supervised Dr.

Kadirsahib at the medical clinic in Lac Du Bonnet, Manitoba where the instant offences are alleged to have occurred. [ 43 ] Dr. Van Gend was questioned in cross-examination as to whether the symptoms indicated in the complainant’s medical chart supported further medical investigation. Specifically, he was asked whether a finding of lumps in the submandibular and supraclavicular area would have caused him to examine the inguinal glands, which are found in the groin area, in the diagonal crease between the pubic and hip bones. This is of some significance, as Dr.

Kadirsahib testified that he had put his hands down the front of the complainant’s pants in

part in order to examine that area for enlarged glands. I note the following exchange in cross-examination: Q All right. Now, when you're examining those glands, is there any reason, for the purpose you were describing in a breast exam, to also examine the inguinal glands? A If there were enlarged glands I would, I would want to know are other glands also involved in, in the body so ...

Q So, for example, if you came across a patient who had enlarged submandibular gland -- or, rather, a lump in a submandibular area, a lump in a supraclavicular area, they were enlarged, that might cause you to go look at the inguinal glands? A If there was -- yeah, if there was more than one.

If the patient comes in with a sore throat, for example, and he has big tonsils and they're red and he just has the submandibular glands, I wouldn't, at that visit, automatically go and examine the rest of the glands, just because one assumes that common things occur commonly, and these glands are enlarged because of the upper respiratory tract. But if a patient would come in, say, for a physical and you'd find a gland and he wasn't complaining of that gland, I would then go -- or if he was complaining of a gland, I would check for other glands, yes.

And further: Q And as I understand your evidence, it could be that the, in light of the history and not having these lumps before, that that might cause you to do some further investigation, further examination of the patient; is that it? A That's correct, Your Honour. Q And in part, as I understand it, the lymph investigation is done not just for cancer but for other medical purposes? A For viral infections, for infections, yes. You can get conditions where you have just the lymph glands swelling.

Q And in fact, based on the history, as we see it, over this period of time from December, January, and these visits in March, the flaring up, if we could call it that, or the lumps of the subclavicular and submandibular area, these, the note to follow that up, you would expect to find that if they presented themselves on this visit, and you would expect that the next visit someone would look at that to see what the situation was?

A Correct, Your Honour. [ 44 ] I note that in response to the initial question as to whether enlarged submandibular and supraclavicular glands would cause him to examine a patient’s inguinal area, Dr. Van Gend’s initial response is in the affirmative. He then goes on to qualify that answer by suggesting that if the submandibular gland alone were involved in a patient with an upper respiratory tract infection, he would not check other glands. This appears to be in accord with Dr.

Duerksen’s evidence, who, as noted, testified that a single enlarged gland in the context of an upper respiratory tract infection (which was the complainant’s diagnosis both before and after the examination conducted by the accused on March 17th) would not have caused him to examine the inguinal glands. As noted, Dr.

Van Gend then goes on to say that a patient who comes in for a physical –in this context, presumably a reference to an individual who is not being seen for the aforementioned upper respiratory complaint-and a swollen gland were to be found, that would cause him to perform a more general examination for swollen glands. In response to the question as to whether the finding of the lumps that had not been seen on an earlier occasion might cause him to do further investigation, his answer is that it might. However, in response to the question that followed, Dr.

Van Gend agreed that the lumps would be examined on the next visit. It is unclear whether his evidence in this regard is to the effect that the investigation to which he had referred in the prior question would in his opinion take place on the next visit (in line with both his evidence and that of Dr. Duerksen with respect to the relative lack of significance of a swollen gland in the context of an upper respiratory tract infection), or if he is indicating that he would have investigated at the time the lumps were first detected. [ 45 ] Dr.

Van Gend was also not asked at any point as to the significance of size, shape, and feel of the lumps. [ 46 ] There was no re-examination on these issues. [ 47 ] Having considered this evidence, I take Dr. Van Gend’s opinion to be that the presence of more than one lump, specifically both a submandibular and a supraclavicular lump, may have caused him to examine the inguinal glands, even in the context of an upper respiratory infection, as well as to conduct other more general investigation of the patient. [ 48 ] As with the evidence of Dr.

Duerksen, the impact of this witness’ evidence, in particular as to the threshold medical justification for the examination conducted in this case, will depend, inter alia, on findings of fact. [ 49 ] Against this general backdrop, I turn to a consideration of the evidence of the accused. [ 50 ] As previously noted, the cumulative effect of the accused’s evidence was that he considered the shape and feel of the lumps he says he found to be significant, and that it was this, along with the other factors he identified, including his purported concerns as to potential serious and undiagnosed illnesses, that formed the basis of his decision to pursue the examination that he did. [ 51 ] With respect to the number of lumps observed by the accused, I would begin by noting that the entry in the complainant’s chart with respect to the lumps in question was as follows: “? lump submandibular”, and then, on the line below: “+/supraclavicular tender”.

There is no indication as to the existence of a supraclavicular lump, simply that the “supraclavicular” was apparently tender. Similarly, the last entry in the chart indicates “f/u lump subclavicular/supramandibular”. I note the reference to “lump”, in the singular. [ 52 ] These discrepancies alone would not cause me to conclude that there was only one lump found by the accused, or to conclude that his evidence- and chart entries- as to finding one or more lumps should be disbelieved.

My findings in this regard will depend on an assessment of the accused’s evidence as a whole, and I will return to this issue later in my decision. [ 53 ] Most significantly, however, I note that there is no reference to the features that the accused claimed distinguished the lumps from enlarged glands: i.e. that they were firm and irregular. [ 54 ] As previously noted, it was the accused’s evidence that it was the shape and feel of the lumps that caused him to conclude that they were not simply enlarged glands, but rather potentially indicative of a more serious illness. As also noted, Dr.

Duerksen’s evidence appears to have been to a similar effect: that size, shape, and feel are factors in this type of medical assessment. [ 55 ] The unchallenged evidence of Dr. Duerksen was that it is the expectation of the College of Physicians and Surgeons that the objective findings of a treating physician will be recorded on the patient’s medical chart as part of the SOAP (Subjective, Objective, Assessment, and Plan) protocol mandated by the College for chart entries. Dr.

Kadirsahib also testified that he followed this recording practice, and it is clear from the other charts that he prepared that he did so. [ 56 ] I conclude that if the lumps had the characteristics testified to by Dr.

Kadirsahib, and given the significance he testified he attached to them –as supported by the expert evidence- and considering the extensive examinations that he says that he conducted as a result of those purported findings, the specific findings with respect to the lumps would have been noted by the accused in the complainant’s chart. [ 57 ] As well, and as noted, the chart entry that the accused did make with respect to his supraclavicular finding was that it was tender.

I note that the accused testified in cross-examination that if a lump was tender, it was suggestive of a gland, undermining his assertion that he believed the lump may have been something other than an enlarged gland. [ 58 ] I also note that there is no entry in the chart as to the complainant’s alleged anxiety, nor of her purported dissatisfaction with, and challenge to, the accused with respect to the course of treatment to that point. [ 59 ] As noted, the accused also testified that he performed the physical examination in question because he was concerned that the observations he made, in particular with respect to the alleged submandibular and supraclavicular lumps, could have been indicators of cancer and other illnesses, including fibromyalgia.

There is no entry with respect to any of those concerns on the complainant’s chart. Given the significance that the accused purportedly attached to these concerns, both the expert evidence and common sense suggest that they would have been recorded on the chart. [ 60 ] Although the accused’s evidence appears to be that he eventually ruled out the various illnesses that he professed to have been exploring, as he conceded in cross-examination, file notes are of assistance in documenting observations and concerns that may ultimately become relevant in the future.

As the accused conceded, such notes provide a history and context not only for the physician who has made the observations and/or had the concerns, but also for other physicians who may ultimately take over the patient and the file; as the accused conceded, this is particularly the case in a clinic such as the Lac du Bonnet Health Centre, where there was physician turn over. [ 61 ] Given the evidence, I conclude that if the accused had the concerns he expressed, they would have been recorded on the complainant’s medical chart. [ 62 ] Dr.

Duerksen also testified with respect to the lack of follow-up in this case: …after such a extensive exam, which is very peripheral to the presenting complaint, the reason why the individual is there, it does

certainly require an explanation for why that exam was so thorough and why and what were the findings and is there follow-up to this.

Like, no mammogram, anything, it was all normal. [ 63 ] When asked by his counsel what his conclusions were with respect to the complainant at the conclusion of his examination, the accused testified that he concluded that if she did not improve, he intended to send her for a chest x-ray and bloodwork. [ 64 ] It was only at the conclusion of cross-examination that the accused testified that he had in fact ordered follow-up by way of a chest x-ray and blood work. [ 65 ] There is no notation in the complainant’s chart as to follow-up beyond a throat swab, and no notation of follow-up of the type suggested by Dr.

Duerksen. [ 66 ] In addition, given the accused’s professed concern as to the complainant’s dissatisfaction with his treatment to that point, and her alleged challenging behaviour during the visit, it is difficult to conceive that the accused would have neglected to note all the steps he claimed he had taken to thoroughly assess and treat her, including the follow-up tests he claims to have ordered. [ 67 ] Further, common sense dictates that if in fact the accused had ordered follow-up, there would have been a record of that fact in the chart, as well as the reason for doing so, so that when the results came back, either he, or whoever may have been seeing the patient, would have had an explanation and/or context for the tests. [ 68 ] As well, and as previously noted, the evidence is clear that the accused was aware of and followed the SOAP protocol mandated by the College of Physicians and Surgeons for chart entries, which would have required the purported plan for x-rays and bloodwork to have been recorded in the chart.

The only entry in the chart suggests that the accused’s plan was to order chest x-rays and blood work only if the complainant did not improve, as confirmed by his initial evidence at trial. [ 69 ] The accused also testified that the only test he had initially intended to order was with respect to a throat swab he had taken from the complainant (which test, I note, was in fact recorded on the chart).

In an apparent attempt to explain why he had not ordered the chest x-ray and blood work immediately, he testified that it was only after he came back from lunch that he “ realized the seriousness [of the situation]” and ordered the chest x-ray and blood work.

This evidence is particularly difficult to accept. [ 70 ] The entire thrust of the accused’s evidence was as to the seriousness with which he claimed to have viewed the complainant’s possible medical condition, and his concerns with respect to the possibilities of metastasised cancer, lymphoma, Sjogrens’, and fibromyalgia, concerns which he relied upon to support the examination that he conducted.

Against this backdrop, and in particular in light of the accused’s claim that the examinations he performed on the complainant were in an effort to be thorough and “not miss anything”, it is difficult to accept that it was that only after the complainant had left his office, and he himself had returned from lunch, that he realized the seriousness of the situation.

As with the other logical inconsistencies in the accused’s evidence, this explanation flies in the face of the accused’s professed rationale for the examination that he conducted. [ 71 ] The accused also testified that he contacted the complainant’s residence after her appointment, leaving a message with a family member that he had ordered the noted tests, and that he had left a prescription for same at the front office. Once again, I observe that there is no note to this effect on the file.

As well, there is no evidence or explanation from the accused as to what became of the alleged prescription. [ 72 ] I note as well that the suggestion of subsequent contact was not put to the complainant in cross-examination. [ 73 ] There are numerous instances throughout the evidence of the accused in which testimony contradicting that of the complainant was not put to the complainant in cross-examination. [ 74 ] The Rule in Browne v.

Dunn [ (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 H.L.] is to the effect that where counsel intends to impeach a witness by presenting contradictory evidence, the evidence should be put to the witness. [ 75 ] In the instant case, I do not disbelieve the accused’s evidence solely as a result of the failure to cross-examine on disputed evidence, but given the numerous instances of failure to do so, it is a factor that I take into account in assessing credibility. [ 76 ] Given the timing of the accused’s contention at trial that he had in fact ordered follow-up, coupled with the fact that no such entry was recorded in the chart, as well as his testimony in direct-examination that he had determined to order blood tests and a chest x- ray only if she hadn’t improved, considered against the backdrop of the previously listed credibility concerns, the conclusion that I reach is that the accused did not order bloodwork or a chest x-ray for the complainant.

I also conclude that the reason for the accused’s claim in this regard was an attempt, given the extent of the examinations he conducted and the evidence of Dr. Duerksen on this issue, to address the lack of any follow-up noted on the chart. [ 77 ] Of significant further concern is the absence of any explanation to the complainant as to the reason for the examination that was conducted. [ 78 ] It was Dr.

Duerksen’s evidence that given the extent to which the accused had deviated from the complainant’s presenting complaint, and the extent of the examination that this entailed, an explanation was required from the accused. [ 79 ] The accused conceded in his evidence that he should have explained to the complainant what he was doing and why, and provided a number of reasons for his failure to do so. [ 80 ] One of the reasons offered by the accused for his failure to explain what he was doing was that the complainant was anxious, and that he didn’t want to worry her.

In that regard he testified that he remembers that she looked more worried and anxious than on previous visits. As previously noted, there is no entry to this effect in the complainant’s chart.

[ 81 ] The failure to make this notation is inconsistent with the fact that the accused had purportedly relied upon it in two significant ways: it was one of the factors that he says caused him to conduct the extensive examination in question, and was also a factor in his decision not to provide an explanation to the complainant as to what he was doing. [ 82 ] The rationale offered by the accused in this regard is also inconsistent with common sense and logic in several other ways. [ 83 ] Dr.

Kadirsahib’s testimony presupposes that the only explanation that could have been offered during the examination was one that would have been anxiety provoking: i.e. “I’m just checking for cancer and lymphoma...”. It was clearly open to the accused to have volunteered a much more general and reassuring explanation to the complainant. [ 84 ] As well, Dr.

Kadirsahib’s testimony as to the failure to explain presupposes that the only explanation he could have volunteered was in the course of the examination, when he says that his purported concern about the possibility of cancer and other serious illnesses still existed. Given his evidence that by the end of the examination he had ruled out all of the serious illnesses he had purportedly been investigating, it is unclear why his concern as to the complainant’s anxiety would have prevented him from providing an explanation at the conclusion of the examination.

He confirmed in his evidence that he had found that there were no lumps palpable in her breast, no abnormalities in her back or abdomen. He had essentially ruled out serious illnesses. Why not give her all of that reassuring news at the conclusion of the examination? [ 85 ] The fact that Dr. Kadirsahib had thoroughly examined the complainant in ways and in areas that appeared to have nothing to do with her presenting complaint would of course have been abundantly clear to her.

If the complainant’s anxiety had in fact been a consideration for the accused, standard of care aside, common sense and logic also dictated that the complainant be told, at least at the conclusion of the examination, what had just happened and why.

As the complainant testified, and as common sense would suggest, it was the uncertainty of what was happening, and why, that provoked anxiety. [ 86 ] The accused also testified that he “missed” providing an explanation to the complainant because he had so many differential diagnoses on his mind. [ 87 ] There are several ways in which this explanation does not ring true. For reasons I will elaborate upon later in this decision, I do not accept that a physician of Dr.

Kadirsahib’s training and experience would have been so overwhelmed by what he claims to have observed in this case such that it would have blotted out his duties as a physician, as well as the requirements of logic and common sense, that required that he explain. [ 88 ] As well, this testimony fails to address the situation at the conclusion of the examination, at which point, according to the accused’s evidence, he had ruled out the various differential diagnoses he claims to have had on his mind during his interaction with the complainant. [ 89 ] The accused also testified that in the course of examining the complainant, he noticed a “lumpy, lump-like feeling” in her left breast.

He then had the complainant touch her own breast, and she said it felt grainy. [ 90 ] In cross-examination, the accused was asked whether he had told her that he had felt the lump. It was at that point, for the first time in his evidence, that the accused testified that he told the complainant that one of the grains felt bigger. He was then asked what happened when he told her that. He responded that he simply continued on with the examination. [ 91 ] I note again that this version of the incident was not put to the complainant.

The complainant’s version of the incident involved the accused placing her hand on her breast and asking whether she “could feel that?” The complainant testified that she felt a grainy texture, described that texture to the accused, and he simply agreed. [ 92 ] Of greater significance, the accused’s evidence in this regard, if true, suggests that there would have been an even greater imperative to provide an explanation to the complainant, at the very least at the conclusion of the examination, as to his conclusions.

On the accused’s version, he would simply have left the complainant with the unresolved impression that she had an enlarged substance in her breast, with no further explanation from him and no further inquiry from the complainant. I find this version of this aspect of the incident impossible to accept. [ 93 ] Given all of the above, including the late disclosure in evidence of this supposed exchange and its lack of logical coherence, I do not accept that the accused told the complainant that he had felt an enlarged substance in her breast.

I conclude that the accused belatedly volunteered this testimony in order to suggest that at least some explanation was provided to the complainant as to the reason for the examination he was conducting. [ 94 ] Similarly, I note that the accused admitted in cross-examination that when he put his hands down the back of the complainant’s pants, she asked him- as she had testified- what he was looking for. For the first time at trial, he testified at this point that he did respond to this inquiry, and explained to the complainant that he was looking for “abnormal signs”.

I find this evidence to be entirely inconsistent with the accused’s other evidence on the issue of explanation, and in particular his earlier evidence that he had not explained what he was doing, and that he had not done so because he did not want wish to alarm the complainant. [ 95 ] This version, in which an explanation, albeit limited, was provided to the complainant, was also never put to the complainant in cross-examination. [ 96 ] For the reasons noted, I do not accept the accused’s belated evidence as to the provision of this limited explanation to the complainant. [ 97 ] For the reasons noted, I also do not accept the accused’s reasons for the overall absence of explanation during the examination.

I conclude that had there been a legitimate medical explanation for his conduct, it would have been provided to the complainant. [ 98 ] The manner in which the accused performed various aspects of the purported medical examination is also of concern.

[ 99 ] The accused testified that prior to commencing the portion of the examination that forms the subject matter of this charge, he advised the complainant that he was going to examine her breasts.

He testified that the complainant then arched her back to try to remove her bra, and when she had difficulty, as a “reflex action” he reached under her back with one hand and made a pinching motion with two of his fingers to try to assist her by pulling the bra straps together; according to the accused, the complainant was able to undo her bra on her own at this point. [ 100 ] The complainant’s testimony on this point was that the accused leaned over her to undo her bra as she was prone on the examination table.

She testified that the accused put his arms around her and under her back, and in doing so, put his upper body into contact with her upper body. She testified that there was no preparatory request for permission, or even an announcement by the accused that he was going to do this. [ 101 ] These are of course significantly different versions of this aspect of the incident, and as previously noted, the rule in Browne v.

Dunn required that the accused’s version be put to the complainant. [ 102 ] Further, and considering only the version of the facts offered by the accused, I have difficulty accepting the accused’s explanation as to why he touched the complainant’s bra, and why he was assisting her in removing it. [ 103 ] In an apparent acknowledgement of, and explanation for, this departure from accepted physician/patient interaction, the accused referred to the many possible diagnoses that were going through his mind, the implication being that he forgot himself when he acted in this fashion.

As previously indicated, I don’t accept that a physician of Dr. Kadirsahib’s training and experience would have been overwhelmed by the possible diagnoses he claims to have been considering, and certainly not to the extent that this would constitute an explanation for having assisted a patient in disrobing. [ 104 ] It is not disputed that the accused did not offer the complainant a gown for the purposes of the breast examination. [ 105 ] The accused offered a number of explanations for not having done so.

He testified that he did not offer a gown on March 17th because the complainant had declined a gown on the previous March 13th visit. This was never put to the complainant, whose evidence was to the effect that she was not offered a gown on the 13th. [ 106 ] The accused also testified that in India, gowns are not used in breast examinations, but rather only for pelvic examinations.

Given his training and experience in Canada, I do not accept that the accused would have placed any reliance on his experience in India in failing to offer a gown. [ 107 ] In that regard, the accused acknowledged in cross-examination that he had observed gowns provided to patients in Canada, but testified that in cases of an unexpected breast exam (a “regional” breast exam), “more than 60% of the time” no gown was provided. He testified that when he examined L.G., he thought that as it was a regional breast examination, no gown was needed.

When it was put to him that he had testified that he had offered the complainant a gown on March 13, which was as well a regional breast examination, he replied that he thought that gowns were not mandatory in regional examinations, but that they could still be offered. [ 108 ] In addition to this trail of varying and conflicting explanations for the failure to have the complainant gown, I also note the accused’s further explanation for the failure to have the complainant gown: since the complainant’s appointment was at 11:30 and the clinic closed at noon, he felt that it would be too time consuming to have her gown.

When asked whether he could not have continued the examination past noon, the accused replied that he had various errands to run over the noon hour, including mailing a letter and taking money out from the bank. [ 109 ] It is difficult to reconcile the accused’s evidence in this regard with his evidence that he was conducting these various examinations because he was concerned that his patient may have cancer or lymphoma, amongst other possible serious illnesses. [ 110 ] I conclude that the accused’s various explanations for failing to have the complainant gown, or at least offering her a gown, are internally inconsistent, nor consistent with the thorough examination he professed to be conducting. [ 111 ] In reaching this conclusion, I bear in mind that while it was Dr.

Duerksen’s evidence that it was an expectation of the College of Physicians and Surgeons that the patient would be gowned for a “proper” breast examination, Dr. Van Gend agreed in cross-examination that practices amongst physicians varied in this regard.

It is not a departure from standard procedure that causes me to reject the accused’s explanation in this regard, but rather its various internal and external inconsistencies. [ 112 ] The complainant testified that the purported examination progressed into what she described as the accused squeezing her breasts in an “almost a kneading-like fashion”, with his whole hand around each breast, squeezing the entire breast.

She testified that when doing so, at certain points the accused had his hand on one breast at a time, and at certain points had a hand on each breast at the same time. [ 113 ] The complainant described the accused as then moving to the complainant’s nipple area, and “rolling” her nipple between his index finger and thumb.

She testified that the accused rolled both nipples in this fashion. [ 114 ] The complainant testified that the accused then also “flicked” each nipple with his finger. [ 115 ] The accused’s version of the incident was significantly different. [ 116 ] He did not testify to kneading or squeezing the complainant’s entire breast. He did not admit having his whole hand around her breast. He denied flicking the complainant’s nipple. He did not admit that he rolled her nipple between his fingers.

He testified only that he touched the complainant’s left nipple, and that he did so accidentally when his hand briefly slipped as he was squeezing her areola to check for discharge. [ 117 ] The accused testified that although he touched both breasts simultaneously, he did so to check for nipple elasticity, with his palms

out and pressing down on the nipple and areola. [ 118 ] I note again that the accused’s version as to this aspect of the incident was not put to the complainant. [ 119 ] Further, the only challenge to the complainant’s version of this aspect of the incident was a single suggestion in cross- examination, with which the complainant agreed, that she had not mentioned the touching of her nipple in her March 17th letter to the College of Physicians and Surgeons. [ 120 ] I have also considered the accused’s version of this aspect of the incident in light of the expert evidence. [ 121 ] The opinion of Dr.

Duerksen as to simultaneous touching of the breasts in a breast examination was as follows: Q And are both breasts ever palpated at the same time? A No. Q Why not? A You know, that's not, that's just not standard of care. I'm not aware of any of that, of breast exams being taught in that way. I think it would be confusing to try and do two sides at once. Most physicians do one thing with one hand. It's always the same. And now I'm involving two sides; it's not, it's not standard of care. And at p. 49: ...that's not the manner in which we examine breasts.

And in cross-examination (p. 71): Q Now, on the matter of examining both breasts at the same time, is there any reason (inaudible) based to be doing this? A No. Q And you would not know of any physicians that would do that; is that it? A I do not. Q Now, are you saying that it's wrong or that they just, it's not something to be done? A It's not part of a clinical breast exam. And similarly Dr. Van Gend: Q ... when exams are being conducted of the breasts, not visual but a physical exam of a breast, are they done individually or are they ever done at the same time? A No.

I've not heard of them being done at the same time. [ 122 ] In his evidence, the accused testified that he observed this procedure in India, where he was taught it, and that he had also seen it in Canada on one occasion at the Health Sciences Centre. [ 123 ] Given the clear and unequivocal expert evidence as to standard of practice in this regard, I do not accept that the accused touched both of the complainant’s breasts simultaneously for the reason he has advanced. I reject his evidence that he did so because he was taught this procedure in India: given the clear standard of practice, and given Dr.

Kadirsahib’s training and experience in Canada, I do not accept that he would have followed this practice in this case. [ 124 ] I also reject the accused’s evidence that he touched the complainant’s breasts simultaneously in the manner that he has advanced. [ 125 ] The complainant also testified that while the accused held her right breast in what the complainant described as “his whole hand”, he reached up with his other hand and rubbed her lips and said, "You're dry," in what she described as almost a questioning fashion.

When the complainant replied that she was, he took the finger that he had placed on her lips and “immediately put it on [her] nipple and began rubbing his finger on [her] nipple in a circular fashion.” [ 126 ] The accused agreed in his evidence that he had touched the complainant’s lips, but testified that he did so in order to check for Sjogren’s disease, one of the symptoms of which is dry mouth. [ 127 ] In cross-examination, Dr. Kadirsahib agreed that Sjogren’s disease is an auto-immune disease that attacks the tear ducts and salivary glands.

He also agreed that one would expect to find dry eyes and a very dry mouth in someone suffering from the disease, although the disease may not be full blown all at once. When asked if he had asked the complainant if her eyes had been sore or dry, he testified that he couldn’t remember.

He also agreed that when he had examined the complainant’s eyes at the beginning of the appointment, he did not note any problem with her eyes; no problems with the complainant’s eyes were noted in the chart. [ 128 ] The accused also agreed in cross-examination that there is a blood test for Sjogren’s, but that he didn’t ask for a blood test, or tests to check her saliva flow or her tear ducts. He testified that he did not order tests for Sjogren’s because he had ruled it out.

When asked why he had ruled it out, based on the limited tests he did, he testified that he knew she was taking Celexa, a drug which can cause dry mouth, that her other glands were not enlarged, her spleen and liver were normal, and she no autoimmune problems (e.g. arthritis). He

testified that he came to this conclusion at the end of the examination, after the complainant had left. [ 129 ] I note, however, that later in the accused’s cross-examination, at the point that he asserted that he had ordered blood work for the complainant, he testified that he had ordered an “anti-rheumatoid” blood test, which he testified was indicative for Sjogren’s. I find this to be a blatant internal inconsistency. If the accused had already ruled out Sjogren’s at that point, the reference to the usefulness of the blood test in identifying Sjogren’s disease makes no sense.

And if, contrary to his earlier evidence, he had not ruled out the disease, it is impossible to believe that a doctor of his experience would have failed to order these tests immediately, if indeed he had the medical concerns he claimed. [ 130 ] On either version, I note that there was no entry as to his exploration for Sjogren’s disease in the complainant’s medical chart, or his findings in that regard. [ 131 ] I do not accept that the accused touched the complainant’s lips for the medical purpose claimed. [ 132 ] The accused also testified that the extensive physical examination he performed on the complainant, including putting his hands down the back of her pants, was in part to determine if the complainant was suffering from fibromyalgia. [ 133 ] Dr.

Duersken’s unchallenged evidence on this issue was as follows: Q In your review of the chart notes made by Dr. Kadirsahib, were there any findings, either any complaint from L.G. or any findings from Dr. Kadirsahib that might support a need to investigate fibromyalgia? A No. [ 134 ] Dr. Duerksen went on to state that fibromyalgia is a diagnosis of exclusion, in other words a diagnosis that is made when other possible diseases or medical conditions are ruled out.

He was then asked: Q But when you examined the chart and the assessment and plan here on the notes from March 17, 2009, do you see any testing that would have been done if one was attempting to rule out fibromyalgia? A No. [ 135 ] Dr. Duerksen’s evidence in this regard is significant: the implication is that one would have seen such testing recorded in the chart. [ 136 ] The accused did not challenge the expert evidence with respect to the contents of the chart. His explanation as to why he had pursued this possibility in the circumstances was also not credible.

Once again, there was no note in the chart that he was exploring this possible diagnosis. [ 137 ] I do not accept that the accused put his hands down the back of the complainant’s pants for the medical purpose claimed. [ 138 ] As previously noted, the accused purported to conduct an examination of the complainant’s pelvic and inguinal areas. The manner in which this purported examination took place is also of concern. [ 139 ] The accused testified he had examined the complainant’s pelvic and inguinal area by placing his two hands under the front of her fastened pants. [ 140 ] Dr.

Duerksen testified: And that part of the exam, again, it's not allowing you adequate exposure. So if you would like to examine the lower abdominal area above the pubic bone and not have someone gown, then you could ask an individual to, if they're comfortable, undo the snap and just fold the jeans or pants down to give you exposure, still maintaining the person's privacy. If, if one needs to, if one wants to examine an area below the abdomen, so now you're getting to the pubic area, you need to have someone change into a gown. You can't, can't do that without a person changing. [ 141 ] Similarly, I note Dr.

Van Gend’s evidence that his practice is to view the area being examined in the course of an inguinal exam: …if I'm specifically interested in the inguinal area, then inspection, having a look… would be part of the standard of care, yeah. [ 142 ] I note the accused’s explanation that he pulled up on the snap of the complainant’s pants, allowing him a view of the area in question. He later added that he had the complainant hold up her own pants, an apparent attempt to explain how he could have examined her with two hands while pulling up on her pants at the same time.

Neither version was put to the complainant in cross-examination. [ 143 ] I find that if this had been a legitimate medical examination, the standard of practice (and I would add the logical conclusion) is that one would have expected the physician to want to be able to see what he was examining without any possibility of obstruction, in particular in the course of a medical examination in which, as the accused claimed, thoroughness was the objective.

The manner in which the purported examination was conducted is simply a further indication that this was not physical contact for a medical purpose. [ 144 ] In direct examination, the accused was asked by his counsel whether he had helped put the complainant’s bra on after the examination. The complainant’s evidence had been that the accused had attempted to do so. The accused replied that he could not recall.

I find this impossible to credit. [ 145 ] Throughout his evidence, the accused seemingly had an astonishing ability to recall even the most minute and arcane aspects of the incident: for example, the combination and sequence with which he had touched the complainant’s breasts- which hand touched first, which second, etc. He also purported to recall that the complainant had not coughed at any point during the five times he had seen her in

the clinic. Notwithstanding these feats of memory, it was his evidence that he could not remember whether he had helped a female patient put her bra back on. [ 146 ] Compounding the concern, when asked the same question in cross-examination, the accused definitively replied that he had not assisted the complainant to do so. [ 147 ] I find that this to be a further example of a lack of consistency and credibility. [ 148 ] Dr. Kadirsahib’s background is also a factor when assessing the credibility of his evidence. Dr.

Kadirsahib is an international medical graduate, that is, a graduate from a medical school outside of North America. His medical training and experience prior to coming to Manitoba was extensive. [ 149 ] Although Dr. Kadirsahib had not practiced medicine for the three years after he first came to Canada, as of the date of the offence, Dr. Kadirsahib had effectively been practicing medicine for a total of some 10 years. [ 150 ] Dr.

Kadirsahib was licensed to practice medicine in the province of Manitoba on February 5th of 2007, and on November 13, 2008 became a conditional registrant, licensed to practice in Lac du Bonnet with certain geographic and oversight conditions. Dr. Kadirsahib was a conditional registrant as of the date of the present allegations.

The uncontested evidence at trial was that a conditional registrant is expected to perform at the level of a fully licensed physician, and to be aware of, to understand, and to respect the College’s code of conduct, and College guidelines. [ 151 ] At the point that he became a conditional registrant, Dr. Kadirsahib had also been required to obtain certification from the Medical Council of Canada, which required passing a three part series of examinations. He had also successfully completed a one year training program for international medical graduates at the University of Manitoba medical college.

The program was described as being akin to an internship, and is comprised of twelve four week blocks, with a number of different rotations, including three rotations in family medicine, along with other rotations include emergency medicine, gynecology and obstetrics. [ 152 ] Given the expert evidence presented in this case, I do not accept that a physician of Dr. Kadirsahib’s experience would have reacted in the way that he claims to have done in this case. Specifically, I do not accept that the factors identified by the accused, even had they existed, would have thrown a physician, let alone a physician of Dr.

Kadirsahib’s experience, into the panic that he effectively describes, causing him to question whether his patient had cancer, or lymphoma, or fibromyalgia or Sjogren’s disease, or the variety of other possibilities testified to by Dr.

Kadirsahib, and causing him to perform such an extensive examination so unrelated to the presenting complaint. [ 153 ] The fact that at the end of the extensive examination there were no objective findings that support the medical concerns that the accused purported to have, and upon which he purportedly based his alleged medical investigation of the complainant, simply adds further confirmation to the conclusion that the accused had no bona fide medical purpose for the physical acts that began with his touching of the complainant’s breasts, and ended with his attempts to put his hands down the back of her pants. [ 154 ] In conclusion, for the reasons set out above, I do not believe the evidence of the accused.

More particularly, I do not believe his evidence that in his physical examination of the complainant he found a lump in the complainant’s supraclavicular area. While I am uncertain as to whether there was in fact a lump in the submandibular area as entered in the chart notes, if there was such a lump I do not believe that it was firm and irregular, nor that he believed it to be indicative of a more serious illness than that suggested by the complainant’s other symptoms.

I do not believe the accused when he claims that he found the complainant to be challenging him, and that this constituted a further factor in support of the extensive examination he conducted in this case. I do not believe him when he claims that the examination in question was performed in order to be thorough, and to ensure that the complainant was not suffering from a serious or previously undiagnosed medical illness.

I do not believe the accused when he claims that the physical examination in question was conducted for medical purposes. [ 155 ] In disbelieving the accused, I emphasize that it is not any specific instance of contradiction, or inconsistency, or lack of credibility, that has caused me to reach this conclusion, but rather their cumulative effect.

That said, given the number of serious concerns that exist with respect to the accused’s credibility, I find that any number of the individual credibility findings that I have made would have caused me to reach this same conclusion. [ 156 ] Given the nature and number of the negative credibility findings associated with the accused’s evidence, I am also not left with a reasonable doubt based on that evidence. [ 157 ] I turn now to the third test set out in W.D. [ 158 ] I would begin by observing that until the accused took the stand, the complainant’s version of this incident had essentially not been challenged. [ 159 ] Further, the complainant’s credibility was challenged in only two very limited and tangential respects. [ 160 ] As previously noted, it was put to the complainant that in her March 17th letter of complaint to the College of Physicians and Surgeons, she had not mentioned that the accused had touched her nipple. [ 161 ] The complainant explained, and I accept, that the letter to the College was written an hour and a half after the incident, and she was under the impression she would have a subsequent opportunity to elaborate.

In light of that explanation, and given the limited nature of the omission, I find this to have no impact on the complainant’s credibility. [ 162 ] It was also put to the complainant, and she agreed, that after alerting the RCMP of the incident, she initially determined that she did not wish to have a criminal investigation take place.

[ 163 ] I draw no adverse conclusions from this fact. The complainant was never asked why she had done this. Given my other findings as to credibility, there is absolutely nothing to suggest that there is an inference to be drawn that it had anything to do with the reliability of her complaint. If any inference at all is to be drawn as to the complainant’s decision in this regard, it may be on the basis of her evidence as to why she had contacted the College of Physicians and Surgeons before contacting the RCMP.

She testified that because she felt this incident involved a physician violating his ethical and professional responsibilities, she had prioritized the complaint to the College of Physicians and Surgeons.

Finally, I note that the complainant did ultimately decide to pursue the criminal component of her complaint. [ 164 ] I also note that there were no other instances of inconsistency or contradiction put to the complainant with respect to her letter to the College, her ultimate statement to the RCMP, or her evidence at trial. [ 165 ] In addition to the absence of challenge to the credibility of the complainant or her version of the incident, I also find that there is no other basis to doubt her evidence. [ 166 ] Similarly, other than those instances that I have cited in my assessment of the expert evidence, I find that the evidence of Drs.

Duerksen and Van Gend that I have explicitly relied upon in this decision, in particular as to standard of care and standard of practice, was not contradicted or effectively challenged either in cross-examination or by virtue of the evidence given by the accused. [ 167 ] Having reached these conclusions, I will summarize the evidence called by the Crown, specifically that of L.G. and the two Crown experts, that I have accepted. [ 168 ] I find that after conducting an initial preliminary examination that was uneventful and not the subject of concern, the accused had the complainant lie down on his examination table. [ 169 ] He then lifted the complainant’s shirt and bra himself, and pushed them up to her neck, leaving both of the complainant’s breasts exposed. [ 170 ] In this regard, I pause to note the evidence of Dr.

Duerksen that The expectation would be that …she would change herself and, and to assist in that and do that in the fashion it was done would be concerning. [ 171 ] The accused initially performed a standard, typical, and familiar to the complainant breast examination by moving the pads of three fingers around her breast in a circular motion. [ 172 ] Thereafter, and as previously described, the purported examination progressed into what the complainant described as the accused squeezing her breasts in an “almost a “kneading-like fashion”, with his whole hand around each breast and squeezing the entire breast. [ 173 ] The expert evidence is clear and unchallenged that the medical standard of care requires that a breast examination be conducted via a palpation of the breast, rather than in the manner conducted by the accused. [ 174 ] When handling and touching the complainant’s breasts in this manner, at certain points the accused had his hand on one breast at a time and at certain points had a hand on each breast at the same time. [ 175 ] As previously described, both Drs.

Duerksen and Van Gend were clear that touching both breasts at the same time did not meet standard of care. [ 176 ] The accused is described as then moving to the complainant’s nipple area, and “rolled” her nipple between his index finger and thumb. The accused rolled both nipples in this fashion. [ 177 ] I note the following evidence from Dr. Duerksen as to the method by which a nipple should be medically examined: Normally we would simply either ask the patient or we ourselves would squeeze the area that's just below the nipple and up towards the nipple and see if that expresses any, any blood or fluid.

It would, it would be a quick, you know, second or two, part of the examination. (emphasis added) The accused then “flicked” each nipple with his finger [ 178 ] I note the following evidence from Dr. Duerksen: Q ...She described a flicking motion to the nipples. Is there any investigatory need for that? A No. [ 179 ] There was no comment or explanation from the accused while this was occurring. [ 180 ] After manipulating the complainant’s breasts in this manner, the accused then took a step back and began questioning the complainant about her prior experience with a certain medication.

At this point, the complainant’s shirt and bra were still up around her neck, leaving both of her breasts exposed. [ 181 ] I would add that even though this particular act (questioning his patient while she lay on the table with her shirt and bra up around her neck and breasts exposed) was not the subject of questions posed to the experts, in light of my conclusion as to what this “examination” was actually about, in these circumstances, I draw the inference that the accused took the step back in order to be better able to see, in a sexual context, both of the complainant’s breasts.

[ 182 ] Because the complainant felt uncomfortable having the conversation with her breasts exposed in this manner, she pulled down her shirt before replying. [ 183 ] After what the complainant described as a very brief discussion, the accused then lifted the complainant’s shirt once again, exposing her

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