R v Connelly, 2024 ABCJ 28

In the Alberta Court of Justice Citation: R v Connelly, 2024 ABCJ 28 Date: 20240207 Docket: 220694640P1 Registry: Calgary Between: His Majesty the King - and - Michael Connelly Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victims must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Reasons for Judgment of the Honourable Justice A.A. Fradsham Introduction [ 1 ] Dr. Connelly is charged on a 6 count Information. Counts 1 and 2 were withdrawn. Accordingly, the remaining charges that went to trial are charges that he: “On or about the 2 nd day of February, 2009, at or near Calgary, Alberta, did unlawfully commit a sexual assault upon KF, contrary to

Section 271 of the Criminal Code of Canada ” (Count 3), “On or about the 12 th day of August, 2011, at or near Calgary, Alberta, did unlawfully commit a sexual assault upon RC, contrary to

Section 271 of the Criminal Code of Canada ” (Count 4), “On or about the 27 th day of February, 2020, at or near Calgary, Alberta, did unlawfully commit a sexual assault upon AK, contrary to

Section 271 of the Criminal Code of Canada ” (Count 5) and, “On or about the 13 th day of December, 2012, at or near Calgary, Alberta, did unlawfully commit a sexual assault upon MH, contrary to

Section 271 of the Criminal Code of Canada ” (Count 6). [ 2 ] The alleged offences are said to have been committed by Dr. Connelly, a practicing cardiologist, while he was providing patient care to each of the complainants. [ 3 ] A reference in these Reasons for Judgment to a

section number is, unless otherwise specified, is a reference to that

section

number in the Criminal Code . [ 4 ] In these Reasons, where an exhibit or transcript of testimony is reproduced, names have been replaced by initials in order to comply with the publication ban. Issues [ 5 ] The primary issue is whether the Crown has proven beyond a reasonable doubt the essential elements of the offences alleged. Subsidiary issues involving similar fact evidence must also be resolved. General Matters [ 6 ] The parties submitted an agreed statement of facts admitted by Dr.

Connelly for the purpose of the trial pursuant to s 655 of the Code (the “ASF”). [1] The ASF admits the following: - The voluntariness of Dr. Connelly’s February 2, 2022 and May 4, 2022 police interviews; - Jurisdiction; - The identity of Dr. Connelly as the cardiologist who examined the complainants on the alleged offence dates; - “The qualifications of Dr. John Parker, as an expert in the field of human medicine with a specialty in cardiology”; - “The qualifications of Dr. Saul Isserow, as an expert in the field of human medicine with a specialty in cardiology; and” - The admissibility of Dr.

Connelly’s consult notes and reporting letters in relation to the examination of each of the complainants on their respective alleged offence dates. [2] [ 7 ] Dr. Isserow did not testify so this agreed upon fact is no longer relevant. [ 8 ] There are four allegations of sexual assault made against Dr. Connelly. Count 3 consists of an allegation that Dr. Connelly kissed the complainant at the end of his physical examination of her. Counts 4, 5, and 6 consist of allegations that Dr.

Connelly, for a reason not related to his provision of medical care to the complainants, touched the breasts of each of the complainants without their consent. [ 9 ] Dr. John Parker testified. Based on the agreed fact noted above, Dr. Parker was found to be qualified as an expert in human medicine with a specialty in cardiology. I accept his evidence which related to accepted practices in cardiology.

Similar Fact Evidence [ 10 ] In its efforts to discharge its onus to prove beyond a reasonable doubt the essential factual elements of each of the four charges laid, the Crown relied, in part, on the doctrine of similar fact evidence. Consequently, before setting my findings of fact, it is convenient to set out the law of similar fact evidence so that one may understand how it applies to the case at bar.

Similar Fact Evidence Generally [ 11 ] Similar Fact Evidence is bad character evidence that is external to the charge and reveals discreditable conduct, practises, or character traits of the accused and is used to establish guilt. Being bad character evidence, similar fact evidence is presumptively inadmissible.

The similar fact evidence rule provides that, absent inadmissibility under another exclusionary rule, similar fact evidence is admissible if its probative value outweighs its prejudicial effect. [3] Other terms related to the rule include “prior discreditable conduct,” “prior bad acts,” and “similar offending.” [ 12 ] The “policy basis” for presumptive exclusion is that, though “propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree.” Indeed, its “potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value.” In general, it should not form any “part of the case the accused is called on to answer,” as it risks violating the presumption of innocence by convicting based on prejudices, rather than proof.

This is why similar fact evidence “is excluded notwithstanding the general rule that all relevant evidence is admissible.” [4] [ 13 ] The similar fact evidence rule applies whenever the Crown proposes evidence to assist in establishing the guilt of the accused that directly or indirectly reveals discreditable or stigmatizing conduct of the accused. The Crown must identify a specific, live trial issue which relates to the disposition evidence.

This reduces the risk that evidence will be admitted despite having no relevance beyond the prohibited inference (being general propensity). [ 14 ] Similar fact evidence captures all types of prior discreditable conduct and extends beyond “criminal acts.” [5] When the Crown seeks to expose the accused’s extrinsic conduct, practises, or character traits, the threshold query should be whether “the proposed evidence [is] discreditable to the accused.” If an ordinary person would say “yes”, the bad character rules apply. The similar fact evidence rule may then operate to admit the evidence if the test is met.

[ 15 ] Evidence will be similar fact evidence where it: 1. relates to prior conduct of the accused, 2. may have a prejudicial effect, and 3. is being admitted for a purpose that would help establish guilt. [ 16 ] When similar fact evidence may prove the actus reus , establish identity, or negate a defence, it may be admitted in appropriate cases, even if it is also relevant to the complainant’s credibility. [6] [ 17 ] Handy remains the leading case on similar fact evidence and sets out the test for admissibility.

The onus is on the Crown to prove on a balance of probabilities that : - The similar fact evidence is related to a very specific articulated live material issue identified by the Crown at trial, other than general character/disposition of accused; [7] and - The probative value outweighs its potential for prejudice. [8] [ 18 ] If the evidence of external conduct is “so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse,” then similar fact evidence may be admissible. However, the similar fact evidence must be so probative of the relevant fact(

s) material to a live issue as to outweigh both “reasoning prejudice” and “moral prejudice.” [9] [ 19 ] Admitting similar fact evidence requires the Court to be satisfied that: (1) the conduct is that of the accused; (2) the evidence is relevant; (3) the evidence is material; (4) the conduct is discreditable to the accused; and (5) the probative value of the evidence outweighs its prejudicial effect. [10] [ 20 ] If points (1)-(4) above are established, the following factors are then analyzed to compare the probative value and prejudicial effect of the similar fact evidence.

The Judge must assess the similarity of the acts in question and the improbability of coincidence (and collusion) by evaluating: 1. proximity in time of the similar acts; 2. extent to which the other acts are similar in detail to the charged conduct; 3. number of occurrences of the similar acts; 4. circumstances surrounding or relating to the similar acts; 5. any distinctive feature(

s) unifying the incidents; 6. intervening events; 7. any other factor which would tend to support or rebut the underlying unity of the similar acts. [11] [ 21 ] This list is intended to be helpful, not exhaustive.

Not all factors will apply in every case. [12] [ 22 ] The Court’s task is not to “add up similarities and dissimilarities and then, like an accountant, derive a net balance.” [13] The Court’s task is to query whether there is a “persuasive degree of connection between the similar fact evidence and the offence charged in order to be capable of raising the double inference.” [14] This “double inference” is that the accused: 1.

Had a situation-specific propensity (i.e., a propensity to do X in type Y circumstances); This means identifying first, very specifically, the behaviour and how it very specifically links to a relevant live issue at trial (e.g., actus reus , motive, etc.). [15] and, 2.

Therefore engaged in the impugned conduct in accordance with that propensity (i.e., did X in this type Y circumstance). [ 23 ] The issue which remains in every case is whether the probative value of the evidence outweighs its prejudicial effect. [16] The degree of required similarity is assessed in relation to the issue sought to be established and must be evaluated in relation to the other evidence in the case.

If the cumulative result is simply to paint the accused as a “bad person,” it is inadmissible. [17] [ 24 ] If the similar fact evidence is admitted, the weight to be attributed to that similar fact evidence is left with the trier of fact. [18] Avoiding Circularity: The independently and reasonably capable of belief standard

[25] Deciding a similar fact evidence application requires the Court to assess the evidence of the allegations collectively. However,this collective assessment may not rely on the evidence of one allegation that is not independently reasonably capable of belief tostrengthen the similar fact evidence of another allegation.

This would be illogical circular reasoning.[19] [26] To avoid this circularity, the similar fact evidence of each allegation must be independently assessed to determine whether itis reasonably capable of belief before assessing all the similar fact evidence collectively to determine whether its probative valueoutweighs its prejudicial effect. Similar Fact Evidence in Physician-Patient Sexual Assault Trials [27] Although the similar fact evidence rule is no different in physician-patient sexual assault cases, such cases provide usefulexamples of how that law may be applied in context.

Consider, for example, what Justice Nielson wrote on behalf of the BritishColumbia Court of Appeal in R v Buna, 2009 BCCA 536 at para 59: The degree and nature of the similarity required for admissibility of similar facts will vary in each case, depending on the issues and thepurpose for which the evidence is introduced (Handy at paras. 78-80). Where the issue is whether inappropriate touching in adoctor/patient context was accidental or done for sexual gratification, the similarity lies in importing a sexual component into theprofessional relationship.

The manner in which that is done need not be the same in each incident: R. v. Stewart, 2004 BCCA 56, 183C.C.C. (3d) 421 at paras. 37-40. [28] Since it is necessary to determine threshold reliability of the evidence relating to a particular count on the Information whendetermining whether one can admit cross-count similar fact evidence, a detailed examination of the evidence is required. [29] Threshold reliability involves the concepts of credibility and reliability. [30] Justice Mandziuk summarized the law in this respect in R v SGH, 2023 ABKB 39 at paragraphs 43-48: [43] ...

Credibility assessment is about witness’ honesty and truthfulness. Reliability is about the accuracy of the witness’ evidence. [44] A number of factors require careful consideration when assessing the credibility of a witness.

The uniqueness of each witness andthe facts of each case must be weighed and evaluated carefully. [45] As Cory J observed in R v S (RD), (SCC) ... at para 128: It is, of course, true that the assessment of the credibility of a witness is more of an “art than a science.” The task of assessing credibilitycan be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed. [46] In making credibility findings, the evidence must be considered in its entirety. Each part of the evidence is part of the whole, andthose parts interact and inter-relate.

Individual pieces of evidence cannot be viewed in isolation: White v The King, (SCC) ... at 271; Ewanchuk at paras 29-30. [47] The factors that can be considered in assessing credibility include the witness’s character, emotions, and feelings, self-interest,hostility, attitude towards the accused, motive to lie, character for truthfulness and prior deceptive behavior. Additionally, evidence ofbias or dishonesty and material facts that are proven through the testimony of other witnesses can weigh into the analysis: R vTash, 2013 ONCA 380at paras 40-43.

Inconsistencies in the particulars and the whole of the evidence are certainly an importantconsideration.

No single factor or group of factors is necessarily determinative, and any list of factors cannot be viewed as exhaustive. [48] Additionally, the trier of fact’s life experience and common sense can weigh into the process, which necessarily involves the trier offact’s view of the evidence in all its diversity as it emerges during the trial, in tandem with their experience, logic, and intuition: R vMarquard, (SCC), [1993] 4 SCR 223 at para 49; S(RD) at para 129.[20] [31] The nuances of credibility and reliability are helpfully illuminated by Justice Gomery in R v MW, 2023 ONSC 3753 at paras6-7: [6] As Molloy J. explained in R. v.

Nyznik, 2017 ONSC 4392, at paras. 15-16, a judge’s task in an assault trial is not only todetermine whether a complainant is telling the truth as they perceive it, but whether their evidence is sufficiently reliable to convict theaccused: Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount thedetails of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. Awitness who is not telling the truth is by definition not providing reliable evidence.

However, the reverse is not the case. Sometimes anhonest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless bemistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still beproven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliableand credible can support a finding of guilt beyond a reasonable doubt. [7] Inconsistencies in a complainant’s evidence may give rise to reasonable doubt.

A complainant may contradict her earliertestimony under cross-examination or give a different account at trial than she did in police statements or another hearing. Witnesses arenot expected to have perfect recollection, but inconsistencies can demonstrate a carelessness with the truth: R. v. G.(M.), (ON CA), 1994 CarswellOnt 181, at para. 23. A single minor inconsistency will not diminish a witness’ credibility, but a series ofinconsistencies or a single inconsistency on a major point may do so.

The trier of fact “should look at the totality of the inconsistencies inorder to assess whether the witness’ evidence is reliable”: R. v. Bowe, [1993] B.C.J. No. 758 (C.A.), at para. 29.

[32] A witness’s evidence is not rendered reliable simply by their having no apparent motivation to lie.

Indeed, as the OntarioCourt of Appeal noted in R v Sanchez, “the absence of any apparent motive to lie is an unreliable marker of credibility,” and a “generallyunhelpful factor in assessing credibility” because “there are simply too many reasons why a person might not tell the truth, most ofwhich will be unknown except to [that person].”[21] However, this does not mean that a trial judge’s credibility assessment is neverpermitted to consider absence of evidence of a motive to fabricate as one factor among others.[22] Collaboration, Collusion, and Inadvertent Tainting [33] The phenomenon of inadvertent tainting and its jurisprudential basis is helpfully described by Justice Roger in R v Ackerman,2022 ONSC 5381 at paras 106-108: In R v Burke, (SCC), [1996] 1 S.C.R. 474, the Supreme Court of Canada discussed concocted evidence outside of thecontext of similar fact evidence.

The Court held that the trial judge must determine what weight, if any, is to be given to evidence that isalleged to have been concocted by means of collusion or collaboration. Under this approach, the trier of fact is obligated to scrutinize thereliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct theevidence and the possibility that these opportunities were used for such a purpose: see Burke, at para. 45; R. v. E.M.M., 2021 ONCA436.

Collusion can arise from both a deliberate agreement to concoct evidence, as well as from communication among witnesses that can havethe effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. It can lead toinadvertent tainting of a witness’s evidence or to the creation of a false memory: see R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321,at para. 81.

More relevant to the circumstances of this case, the reliability of a witness’s account can be undermined not only by deliberate collusionfor the purpose of concocting evidence – there is no evidence of collusion in this case – but also by the influence of hearing or readingother people’s stories, which can tend to colour one’s

interpretation of personal events or reinforce a perception about which one haddoubts or concerns. This includes information consumed by the complainant or witness between the alleged event and trial that couldshift their perception of the incident from what they were at the time the event occurred and the time of trial: see R. v. F.(J.) (2003), (ON CA), 177 C.C.C. (3d) 1, at paras. 77, 85.

Similar Fact Evidence Application Purpose of the proposed similar fact evidence and the parties’ positions on itsadmissibility [34] The Crown seeks to have all the cross-count similar fact evidence admitted for the purpose of proving each of the allegedoffences, specifically arguing that this evidence should be admissible to allow the Court to draw inferences which: 1. refute the argument that the complainants misinterpreted what were actually legitimate medical examinations as acts that occurredin circumstances of a sexual nature; and 2. establish that Dr.

Connelly had a motive or animus to obtain sexual gratification from his patients.[23] [35] The Crown submitted that “the probative value of this evidence outweighs its prejudicial effect; the similarities in theevidence are not [coincidental].”[24] [36] The Defence opposed the Crown’s application, on the following bases: 1. The evidence of the allegations respecting RC and MH are not independently and reasonably capable of belief.

The probative valueof that evidence respecting the inferences the Crown asks the Court to draw is therefore outweighed by the prejudicial effect of admittingit as cross-count similar fact evidence.[25] 2. The evidence of Dr. Connelly’s conduct allegedly constituting a sexual assault of KF does not relate to a live issue at trial becauseDr. Connelly admits the conduct. Therefore, it would only go to general propensity and thus cannot be admitted as similar factevidence.[26] 3.

There is insufficient similarity among the allegations for the evidence of any one allegation to be admissible to prove another; to theextent that there is similarity among the allegations, it is insufficiently distinct or unique to support the double inference. Any similaritiesamong the allegations are to be expected based on how the parties met.[27] Is the proposed similar fact evidence independently and reasonably capable of belief? KF’s Allegation – Count 1 [37] The KF allegation is unique in several respects. First, the nature of the alleged sexual assault differs, in that it is a kiss and a

hug, rather than touching a breast. Second, the Defence does not argue that the conduct in question did not happen; the Defence argues that the conduct, “if it occurred as alleged, was not a violation of KF’s sexual integrity” because it was not of a sexual nature. [28] [ 38 ] The Defence also submitted that evidence of the KF allegation relates to no triable issue because Dr.

Connelly essentially conceded that the conduct underlying the allegation – or some version of it – happened, and that the evidence therefore has no place in assessing the similar fact evidence application. [29] Respectfully, this argument is unpersuasive. [ 39 ] The Crown seeks to have the evidence admitted to establish that Dr. Connelly had a motive or animus to obtain sexual gratification from his patients, and to refute the argument that the complainants misinterpreted what were actually legitimate medical examinations as acts that occurred in circumstances of a sexual nature.

If the evidence of the KF allegation is reasonable and independently capable of belief, then it may be probative of the relevant issue. [ 40 ] The Defence submitted that the Court should have concerns about the reliability and credibility of KF’s evidence, emphasizing the following purported inconsistencies and potential motivations reasons for those inconsistencies. [ 41 ] First, the Defence submitted that KF was inconsistent in her “description about how she was attired”: In examination-in-chief, she said that she simply recalled being in a bra, but her mind her had in a gown [ sic ].

She was then cross- examined, and she acknowledged that probably she had a gown on. And then under further cross-examination when it was suggested that she was wearing a shirt on the interaction at the end that the examination happened, she conceded that she would accept that. So this would be a fairly major difference in the evidence, and it would be one that would – whether she was in a bra or in a gown or in a shirt, one of those situations has a much more carnal … nature to it than the other.

And it is somewhat significant that the discrepancy or change in evidence was in a way that would make it more carnal, not less. [30] [ 42 ] Although these Defence submissions largely capture the evidence, more detail and context are helpful. [ 43 ] KF stated in examination-in-chief that her first recollection of the appointment was in the exam room, where she had already prepared herself for the exam and was lying on the table with her shirt off but her bra on. When asked if she was wearing anything other than a gown, KF said: I – in my recollection, I don’t – I don’t see a gown.

But I – you know, logic says that I was wearing a gown. [31] [ 44 ] When asked if it was typical for her to wear a gown at medical appointments, KF answered: “Yes.” [32] [ 45 ] In cross-examination, KF agreed that there was a conversation after the exam (or at least that it was fair to say that there was). [33] In response to the suggestion that, during this conversation, she was “back fully clothed, ... wearing a shirt,” KF said that she does not “recall whether [she] had put her shirt on or if [she] had the gown.” She agreed that the gown is a medical gown they would have given her at the clinic, and that the shirt is her shirt that she would have worn to the clinic. [34] [ 46 ] When shown a transcript of the statement she gave the police in 2022, she agreed that she stated: “When he finished his exam, he left so I could get my shirt on,” that she was being accurate and honest when she said this to the police, that this helped refresh her memory as to whether she was wearing a shirt after the examination, and that, after the examination, he had left. [35] When it was suggested to her that she had put her shirt back on before he came back into the examination room, KF said: That’s what’s in these documents.

Between the two, I now – having re-read the statement that I gave, I don’t recall whether or not I was still wearing the gown or my street shirt when we had – when we had the conversation. [36] [ 47 ] KF agreed that the hug and kiss occurred directly before she left the exam room, and that she left the exam room wearing a shirt, [37] but when asked that she was wearing a shirt during the hug and the kiss, she said: I may have quickly put my shirt on before leaving. But it would have – it would have been (INDISCERNIBLE) it would have been on the chair and – if I wasn’t wearing it and wearing a gown.

But it only takes a moment to throw a shirt on. So it was – if it was put on at the end as – after he had left, it would have only taken 2 seconds to put the shirt on and – and grab my bag and leave. ...

So that’s why I say I’m not entirely sure just – whether I was wearing the gown still or the shirt at that point. [38] [ 48 ] KF agreed that she told police in 2022 that she was wearing a shirt when this happened, that she accurately told the police what she recalled when she gave that statement, that her memory of what happened in 2009 was better in 2022 than it is today, that a whole year has passed since the statement, and that if she told police that she was wearing a shirt when this happened, “it is likely to be true.” [39] [ 49 ] KF ultimately agreed to accept the suggestion that she was wearing a shirt when the kiss and hug occurred. [40] [ 50 ] This inconsistency does give some reason to doubt the reliability of KF’s evidence on the issue of her state of dress at the time Dr Connelly praised her, but it doesn’t adversely affect the reliability of her evidence about the kiss and hug. [ 51 ] Second, the Defence submitted that KF’s evidence was inconsistent regarding whether Dr.

Connelly kissed her on the cheek or the ear: The other major discrepancy that I would point to that would potentially point to her evidence changing over time involved whether she was kissed on the cheek or the ear lobe. She initially complained to the College. She agreed she was trying to be truthful. She testified it was a kiss on the cheek. To police she told that it was a kiss on the ear lobe. That was some 13 years later. Eventually under cross- examination she resiled from that position somewhat and said it was a kiss on the cheek but further back.

And so again this was another time where her evidence migrated or changed, and it changed in a way to make the contact between herself and Dr. Connelly as she described it more carnal in nature. [41] [ 52 ] KF’s evidence on this point was indefinite. [ 53 ] In her initial examination-in-chief-description of the alleged sexual assault, KF said: We were wrapping up the conversation. We stood and he hugged me with his arms fully around me, both arms. And he kissed my left ear/cheek area. And – with his mouth still there, said ‘keep in touch.’” [ 54 ] When asked if the two were “still in this embrace” when Dr.

Connelly kissed her, KF said “yes.” She said his lips touched her “cheek, really close to the earlobe.” [42] [ 55 ] When asked why she described this as a kiss, KF said: “I felt his lips touch my cheek.” [43] [ 56 ] When asked why she “would describe that as a kiss, as opposed to simply brushing [her] face, for example,” KF answered: “Oh, it was held for a moment.

Yeah.” [44] [ 57 ] When directed in cross-examination to the statement she provided the College on February 20th, 2009, KF agreed that she indicated that, “when the appointment was wrapping up, he stood up to leave, he came over to [her], sitting on the exam table, and hugged [her] very warmly and kissed [her] on [her] cheek.” She agreed that she was being accurate and honest in that statement, and that she was honest and accurate in her 2022 police interview. [45] [ 58 ] When she was directed to that police statement, KF agreed that she told police that Dr.

Connelly had “like, warmly hugged [her] and kissed [her] earlobe” ... and said: “Keep in touch.” [46] KF agreed that her cheek and earlobe are two different things, and that what she told police in this regard is different from what she told the College in 2009: Yes. I explained, when I was speaking to the Crown, that it – the area is right – they’re the cheek isn’t just, you know, over by my nose. The cheek was right beside my earlobe and including my earlobe.

I also, later in my statement – we say “cheek.” [47] [ 59 ] The following exchange then occurred: Q And so, your testimony today is that it was both the earlobe and the cheek? A That area. Q Okay. Fair to say that, again, almost 15 years have passed here? A Yeah. Q Okay. You don’t have an exact recollection of where specifically in that area this took place? A I – I can feel it as I’m standing here. Q So I’m going to suggest to you again, back when you made the complaint in 2009, you told the College that he kissed your cheek? A Yes. Q You were honest in what you told the College? A Yes.

Q You were accurate with what you told the College? A M-hm. Q You didn’t ever say that he kissed your earlobe? A No, I didn’t. Q Okay. And so, I’m going to suggest to you that Dr. Connelly never kissed your earlobe, do you agree with that? A No. Q The first time that you reported Dr. Connelly had kissed your earlobe was to the police back in 2022? A Yes. Q Okay. That was after you had already gone onto RateMD and found more complaints? A Yes. Q That was after you had learned that there was other women that had come forward to Calgary Police Service and made complaints of a similar nature?

A Yes. Q I’m going to suggest that that affected the way that you had viewed what had happened with Dr. Connelly? A Are you asking me a question? Q Yes. A I disagree. Q And so, your position is – today – that back in 2009, when you made the complaint to the College, you didn’t mention the earlobe, correct? A Correct. Q That was despite being honest with the information you provided the College? A Yes. Q Accurate with the information you provided the College? A Yes. Q And complete with the information you provided the College?

A Yes. [48] [ 60 ] This inconsistency also gives some reason to doubt the reliability of KF’s evidence on the detail of where on her face she was kissed, but not that she was kissed. [ 61 ] Third, the Defence submitted that KF lied by saying that Dr. Connelly had denied the allegation against her: Now, the other part that I would highlight with respect to KF’s evidence is, in fact, a credibility one. KF was cross-examined about whether she had told the police that Dr. Connelly had denied the conduct and then had made the same representation on a Facebook post. Both – she admitted that she had told them that.

Both of those comments were demonstrably false. That’s not what was in the letter marked as an exhibit before her – you, sorry, that she had received. It’s fundamentally not what occurred. And this was an area where, frankly, she was dishonest with the – with the police and on Facebook. And the reasons for that were not, frankly, clear. I don’t know why she was dishonest with the police on that point or on Facebook. But in my respectful submission, the cross-examination by Ms.

Matalas on page 41 of her transcript made it abundantly clear that she was, in fact, dishonest about it; and I would point to lines 3 through – actually, the rest of the page 41 and then also some cross-examination on page 42 lines 2 all the way through the page and then continuing on page 43. Simply put, that was not what occurred. Dr. Connelly clearly apologized to KF.

She was aware he apologized, in fact, had spoken to the – a regulator about that specifically. [49] [ 62 ] This is an accurate depiction of KF’s evidence on this issue, which evidence should be considered in some detail. [ 63 ] When directed on cross-examination to the Report she made to the College, [50] KF agreed that she told police that she submitted the complaint to the College, received a response back from the College, and forwarded her response to Dr. Connelly, and that Dr.

Connelly denied anything inappropriate actually occurred. [51] [ 64 ] With respect to the public Facebook post she made in 2022 about the event (which she testified about in examination-in- chief), KF said that she recalled that the post was made before going to the police, that she advised that she had reported Dr.

Connelly to the College of Physicians and Surgeons, that the College had communicated to her and denied her accusation, and that this was the end of it. [ 65 ] KF agreed that the representation she had made in 2022 was that the complaint had gone nowhere with the College. [52] [ 66 ] KF agreed that the College did in fact respond to her, kept her updated on the status of the investigation throughout, and provided her with a copy of the letter dated June 10th, 2009 (Exhibit 4). [53] [ 67 ] When directed to the bottom paragraph of that letter, KF agreed that she was told that Dr.

Connolly had, in fact, responded to her complaint in writing, that in his response, “he does not deny what [she says],” and that she was told in June 2009 that Dr. Connelly was not denying the claims she had made: “Well, that’s the wording on this letter. Yes.” [54] [ 68 ] The following exchange then occurred: Q Okay. That’s what that letter says? A Yes. Q And so, when you told police, in 2020, that Dr. Connelly had denied that anything inappropriate had happened and when you posted on Facebook that he denied it, that wasn’t accurate?

A I based that on the letter that he sent me. Not on the letter that the College sent me. On the letter from Dr. Connelly; not the letter from Karen Mazurek. Q Okay. But you had confirmation from the College that he had not denied it, what – A That’s what they say, yes. ... Q So just to pick up on that last point, KF. You have a copy of the handwritten letter that Dr. Connelly had provided? A Yes. Q You have a copy of that in front of you? A Yeah. Q You agree that he is apologizing for his behaviour? A Yes. Q He’s apologizing for the distress that it caused you? A Yes.

Q That’s consistent with taking accountability for someone’s actions? A Yes. Q Okay. And not denying that something has occurred? A Yes. [55] [ 69 ] In re-examination, the following exchanges occurred: Q So KF, I’ll start with the – what my friend was asking you about the Facebook post and that you indicated that the College denied the accusation or Michael Connelly denied the accusation. A Right. Q Could you just explain a bit more what you meant there, compared to what my friend has gone through with you in terms of the documents that you received from the College?

A My perception of his response was, basically, I’m sorry I hurt your feelings. You know, that response of not accountability. That’s why I felt that he denied it. Q Okay. So were you satisfied with the response you received from Michael Connelly and the College? A No, not at the time and not since. [56] ... Q And then, my friend referred you to – so this is the complaint (INDISCERNIBLE) here. A Yes. Q And she referred you to – so this is the page after your written statement, number 10. A Yes. Q “What do you hope will happen as a result of your complaint?” A Yes. Q What specifically did you write there?

A (as read) Dr. Connelly will receive help to understand that these actions were inappropriate, and he will not ever behave this way towards a patient in the future. Q Thank you. And then, my final question, my friend had asked you about your – the reviews on RateMD that you had read suggested this had affected your memory in some way. And your answer to that was, “I disagree”. Do you recall that? A Yes.

Q Why? A It didn’t change what happened between he and I. And the descriptions that they were giving were different than mine. I mean, I won’t go – I guess I don’t need to go into what theirs said, but they were different than mine. So it didn’t change mine. Mine remained the same. My recollection of the appointment. [57] [ 70 ] These inconsistencies raise significant concern regarding the reliability – if not the credibility – of KF’s evidence. The evidence suggests that KF either: 1. lied to the police, on Facebook, and to the Court when she said that the College or Dr.

Connelly denied any wrongdoing; 2. interpreted the letter in an objectively unreasonable manner, and represented that unreasonable

interpretation as fact in her police statement, in a public Facebook post she wrote, and while giving evidence in trial until confronted with overwhelmingly clear evidence that it was wrong; 3. forgot what the letter(

s) had said and was nonetheless confident in her incorrect memory of what they said, despite not bothering to carefully review the letters before speaking with the police, authoring and publishing the Facebook post, or preparing to give evidence at trial; or 4. forgot what the letter(

s) had said and was nonetheless willing to confidently say to police, on Facebook, and to the Court that they denied the allegations without bothering to carefully review them. [ 71 ] Although these inconsistencies do raise some concerns about the reliability and perhaps credibility of KF’s evidence about what happened in relation to her complaint to the College, it cannot be said that her evidence as to the core allegation is “not reasonably capable of belief.” As such, the evidence on this count should not be ruled out from consideration in the similar fact evidence application at this threshold stage.

MH’s Allegation – Count 6 [ 72 ] MH testified that during an examination of her by Dr.

Connelly in 2012, he touched her breast without her consent. [ 73 ] The Defence submitted that MH’s evidence does not meet the “independently and reasonably capable of belief” threshold justifying collective consideration in the similar fact evidence analysis, [58] and instead “should be completely rejected” as it is “not credible or reliable in any way and … what she describes happening [simply] never did happen.” [59] The Defence emphasized the following purported internal and external inconsistencies. [ 74 ] First, the Defence argued that: MH was not prepared to make reasonable admissions in cross-examination.

For instance, she was unwilling to accept the basic proposition that memory fades with time and did not agree that her memory was more fresh in 2012 than it was today. These are basic propositions that this Court is well familiar with. This was an indication of a witness who was unwilling to be fair in front of the Court and to acknowledge basic truths about memory and testimony because she viewed them as being unfavourable to her evidence. [60] [ 75 ] MH’s cross-examination did not reveal that she refused to agree that her memory was necessarily more fresh in December 2012 than at trial.

Rather, she defended her memory: Q You again didn’t exaggerate or guess or embellish? A No. Q You were accurate with the answers you gave to – A Yes. Q – Crown counsel that time? A Yes. Q Do we agree, MH, that memory fades with time? A Possibly. Q Okay. We agree that we’re talking about an event that you say happened almost 11 years ago? A Correct. Q Do we agree that your memory was fresher in December of – or 2012, rather, than it is today? A Not necessarily, no. Q Okay. So your memory has not faded? A Possibly, but I know what happened, and I’ve never forgotten how it happened and ...

Q So you agree with me that while your memory may have faded, you believe that you’re confident in the details of what happened?

A Very confident, yes. [61] [ 76 ] What MH said was that while memory may fade over time, there can be some things the memory of which remains clear. She testified that what she alleges Dr. Connelly did to her is one of these memories.

The questions being put to her challenged her memory; she was not prepared to concede that all memories fade equally. [ 77 ] Second, the Defence submitted that MH “was unwilling to make reasonable concessions with her evidence,” including with respect to inconsistencies in her evidence: … When cross-examined about the three different versions that she described, she first of all refused to agree that they were three different versions.

And I am not sure that there is another way to read her evidence other than she described in – to police initially that there was – she didn’t make any mention about being under a gown or under a bra. Then seven days later she admits to the police – again, this is nine years after the alleged interaction – but nine years later she says not only under the gown but under the bra, 100 percent under the bra, makes a detailed description about how that happened, then at trial says under the gown but not under the bra.

These were three different versions of the same event, and MH not being willing to acknowledge that her evidence was different on these three occasions reflected the fact that she was biased in terms of her evidence. These were base – this is a basic truth. There was nothing tricky or hard to understand or, frankly, argumentative, just simply that she refused to acknowledge these points. [62] [ 78 ] This argument is supported by MH’s evidence on cross-examination, immediately following her confirmation that she is “very confident in the details of what happened”: Q Okay.

And I take it that would include the specifics of what had occurred? A Correct. Q Okay. For instance, whether Dr. Connelly’s hand had went under or over your gown would be very specifically something you remembered? A Yeah, I misspoke. Yes. Q Well, it’s not just that you misspoke, is it MH? You gave a detailed description on October 25th of 2021 about how Dr. Connelly’s hand you say went under your bra. Right? A Yes. Q In fact, you went further than that and you said you were 100 percent certain that he went underneath your bra. A I believe I said that, which was incorrect, yeah. Q Which was entirely incorrect.

Right? A Yes. [63] [ 79 ] Third, the Defence, again emphasizing the gown and bra evidence, submitted that MH was “overly confident in her recollection and her testimony,” attempted to deflect or pivot away from direct questions,” did not “give honest straightforward answers about the different versions” of her evidence “about the nature of the touching,” and “was dishonest about … why … she changed her evidence”: She was very – she describes she was very confident with the details despite her memory on these three points changing three – or on these points changing three times.

She claims she was 100 percent certain about how things happened which incidentally is what she described to the police on October 25th of 2021 when she said the hand went under the bra and the gown, and then conceded in cross- examination that in fact when she said she was 100 percent certain, the correct answer would have been that she was 100 percent wrong about that fact. And that had to have been the case with her evidence because she had completely changed her evidence between her initial meeting with the police, her second meeting with the police and then ultimately the evidence she gave at trial.

This is a witness who would – in my respectful submission the transcript reflects attempted to deflect or pivot away from direct questions. Now, the issue with respect to her bra, she was cross-examined … at length … on this point; and … what she told the Court was the reason she didn’t mention wearing a bra on October 18th or that – or anything to do with a bra was because it simply wasn’t asked and that the difference in October 25th, 2021 statement was she was directly asked about the bra. But again, this wasn’t true.

When she was cross-examined about that, … there was a long break, and we … went through these points directly; and she volunteered this – despite saying it wasn’t a detail that she volunteered, she eventually admitted she absolutely did volunteer this evidence. It wasn’t in response to a question, and it was completely different. So even internally, she didn’t give honest straightforward answers about the different versions; and she was dishonest about why – the reasons why were that she changed her evidence.

Now, this is also a situation where it’s, frankly, not very believable that if this had happened, MH would be mistaken about the nature of the touching. This wasn’t peripheral or – this wasn’t whether she had an ECG before she came in or who the nurse was. This was the nature of the touching, and there’s three different versions of it. And the fact that her memory is changing and she was simply, to use her words, mistaken about that, frankly, defies credibility – or credulity would be the right word for that. She was someone that was a

hundred percent correct in her mind until it was pointed out she had given a different version, and then she was 100 percent incorrect. [64] [ 80 ] These Defence arguments find some support in MH’s evidence on cross-examination: Q When you were – said you were 100 percent certain, the correct answer would have been in fact the opposite (INDISCERNIBLE) according to you. A Yes.

In my mind, it was the gown, the bra, I – there was a lot of questions, and I – I mistook the – the gown for the bra, and I know it’s a gown and it’s a bra, but it’s – I wanted to clarify that it was over – under my gown and over my bra, and I – Q Okay. A – mixed them up, yeah. Q Would you agree with me that in your October 18th, 2021 statement, at no point do you even mention that you were wearing a bra? A I wasn’t – I don’t believe I was asked. Q Did you mention that? A Did I mention that I wasn’t asked? Q That you were wearing a bra.

A I don’t know if – I’m sorry, if – Q On October 18th of 2021 – A At the deposition? Q At your home. A Oh, at the home? Q When you were asked questions about what had occurred, did you mention wearing – that you were wearing a bra at the time? A I don’t think – I don’t know if I did or not, but I don’t know – if I wasn’t asked, then I wouldn’t have probably mentioned it. Q So you wouldn’t have asked in this important meeting about the sexual assault that you say happened with Dr. Michael Connelly? A I just answered their questions. Q So you weren’t volunteering information? A Unless they asked me.

There was a lot of detail, and if that’s something they didn’t ask, I may have not mentioned it. Q Do you – so then do you agree with me that you didn’t mention that you were wearing a bra during this interaction October 18th of 2021? A If – if it’s not in the records, then I would not have mentioned it. Q You did not mention it. A Okay, then I did not mention it. Q Okay. You agree with me? A Yes because I wasn’t asked. Q And that was the only reason? A Yes. Q Okay.

So it was clear to you that in fact you were wearing a bra on October 18th of 2021, you just – because the question wasn’t specifically asked, you didn’t think it was important to – to answer that or offer that information? A There was a lot of questions. I just answered their questions. Q And you didn’t think it was important to advise the – the constables that you were wearing a bra? A I didn’t think it mattered if it was above – if – if I did or not. He was grabbing my – had my breast in his hand, so if – Q So that detail didn’t matter?

A I don’t know if it – certainly it would matter, but it’s not something I thought of at the moment – in the moment.

Q Do you agree that the first time that you mentioned anything about a bra was in the October 25th, 2021 meeting? A Say that again, sorry? Q Do you agree that the first time you mentioned wearing a bra was in the October 25th, 2021 – A Okay. Q – statement to police at the police station? A Sure. Q Okay. And I – and I want to be clear about that – that statement. Is it your position that the police specifically asked you about a bra, which is why you brought it up? A Yes, if they asked me I would have answered the question. Q So it wasn’t you volunteering that – a detail that they hadn’t asked?

A I didn’t know what was important and what wasn’t. It’s ... Q So it wasn’t a detail that you volunteered, it was in response to a specific question? A Correct. Q Okay. You I think have a transcript of that statement in front of you? A M-hm. Q Is there a document that says “Transcript October 25th” in front of you? 2021? A Yes. Q Okay. If I suggested to you, MH, that in fact the only way this discussion of a bra even comes up at all is it is at the end of the interview, and you had just signed medical consent forms, do you agree with me? A Sorry?

Q I’m going to suggest that at the time that you bring up this issue with the bra, the interview was all but over. Do you recall that? A Yeah, I was at home by that time. Q So I’m asking about your – during your interview with Constable Chu – A M-hm. Q – on October 25th of 2021. A Okay. Q Do you understand that? A Yeah. Q Okay. I’m suggesting to you that you brought the detail up at the end of the interview. Do you agree with me? A If I did, I did, yes. Q So it wasn’t in response to any specific question that Constable Chu asked you? A I don’t remember. Q Okay.

I’m going to ask you to turn to page 70 of the October 25th, 2021 statement. … A I have it. Q Okay. And I want to be really clear ‘cause I asked you about whether this was in – at the time when you were signing medical consent forms, and I’m going to actually just take you to page 69. Okay. And if – I’m not going to read it out loud, but if you look at that, you can see that you’re having a discussion about forms and documents and reports to get appointment dates from healthcare providers. Do you see that there? A Yes. Q Okay. And we’re on page 69 of 74.

And then if we go to the next page, and I’m going to take you to line 7. This is you speaking: (as

read) MH: I know. [And then you’re passing over documents, and Constable Chu says] CONSTABLE CHU: Thank you. [And then you say] MH: In regards to the details, but I had a bra on. CONSTABLE CHU: Okay. MH: When he initially slid under – but he slid under my bra to grab it. CONSTABLE CHU: Okay. MH: So just (inaudible details). Do you see that, where – A M-hm. Q – you gave that evidence to the police? A Yes. Q So it wasn’t in response to a detailed question, was it? A Not at the deposition.

Q Well, you told me earlier the reason why you didn’t mention that detail in your October 18th statement was ‘cause no one asked you. Right? A When they were at my home? Q Yes. A I believed – yeah, I didn’t. Q Okay. And so on October 25th, they never asked anything about a bra at all either, did they? A I believe not. Q Well, it’s – this is you telling them that you had a bra – A M-hm. Q – for the first time in the statement. A Yeah. Q And if it’s not in response to a question, it’s you just offering something that you remember. A Right. Q Okay. So it’s your detail – A M-hm.

Q – that you’re offering, not something they asked for. A Okay, yeah. Q Do you agree with me? A Yeah. Q Okay. And not only that, you specifically tell them that you – that – and I’ll just go a little further. I want to be fair to you and I want to be clear about what you’re saying in this statement to them. I’m just going to take you down to the next page. And – and I want to be – and sorry, I’ll just back up before I do that. But is it clear to you that – at this stage in your mind, it’s clear to you that what happens is that this – Dr. Connelly’s hand is under the robe but over the bra. A Correct.

Q Okay. So you’re not 100 percent confident that, you know, despite what you told the police, that it was under the bra at any point. A It – I corrected that it was not. Q Okay. A Afterwards. Q Would you be surprised if Constable Chu didn’t have any notes or reports that confirmed any such phone call occurred? A I was concerned when I called her and she called me back and I mentioned it to her that I wanted to correct that statement. She said, That’s okay, don’t worry about it. And I said, you know, Are you sure?

Like, I just – you know, I thought it would have to be – in my mind, it should be on the record, so when she said, Don’t worry about it, I mean, I didn’t worry about that. Q Okay. In fact, was your evidence not earlier about that conversation that she said it was noted? A Excuse me? Q Earlier when you were describing that conversation to me, did you not say that Constable Chu told you it was noted? A Yeah, that she said, Don’t worry about it. She – she – I corrected it, and she said – I don’t know – I don’t know her exact words, but she said, Don’t worry about it, it’s fine. Q Okay.

And she told you – specifically she told you it was noted, right? A If – I don’t know if that’s the exact words she used, but – Q Okay. A – she said it was fine. Q Those were the words that you used earlier to the Court. Are you no longer confident that is what was said? A I didn’t say that was verbatim, but to the effect of, Don’t worry about it, it’s fine. It’s – in my mind, it was noted that that was okay, that I was correcting that by the way.

Q And so when you met with Crown counsel and Constable Chu in – in April of this year, the correction that you told them about - and I want to be clear – wasn’t about the gown, it was about the hand under the bra, right? A It was – excuse me, that it was ... Q The correction that you wanted to make clear – A M-hm. Yeah, I – Q – was about the – was about the gown, nothing to do with the bra. Do you agree with that? A It was all about – it was – for me, it was always to make sure that it was understood that it was over the bra and not under, so ... Q So I’ll read to you from the note that Constable Chu took.

A M-hm. Q (as read) MH stated that she called Constable Chu the next day to say that she recalled that he did slipped (sic) his left hand inside and his other arm came over on top of the gown. That’s what you told Constable Chu and my friend when you met with them in April of this year. … Q … Perhaps I’ll – I’ll ask you differently, MH, so that we’re on the same page here. On October 18th of 2021, you don’t mention going under the gown or going under the bra, right? A If it’s not in – in – then I did not. Q Okay. A Yeah.

Q So then in October 25th of 2021 at the police station, you say under the gown and under the bra, right? A By mistake, yes. Q And then today you say under the gown but not under the bra.

A It was under my gown. His left arm was under my gown, his right arm was over my gown. But his left hand was over my bra. Q Under the grown – or under the gown but over the bra, right? A Yeah. Q And we agree that all three of those things can’t be true? A I don’t agree with that. Q Well, all three of those versions of events are different, right? MS. GREENWOOD: What three things are we – A Yeah. MS. GREENWOOD: – referring to? Q MR. STEEVES: Okay, so you told three different stories about how it happened. One you didn’t mention a gown – going under a gown or under a bra. Right?

We talked about that on October 18th. A Just because I didn’t mention it doesn’t mean (INDISCERNIBLE). Q So in one you didn’t mention going under a gown or under a bra on October 18th of 39 2021, right? A Yeah, that was the first time I was questioned. Q Then October 25th of 2021, you say under the gown and under the bra, right? A M-hm. M-hm. Q And m-hm means yes? A Yes. Q And then today in court, you say under the gown but over the bra, right? A I said that earlier (INDISCERNIBLE) . Q You said it today in court also, right? A As well, yes. Q Okay.

So – and then you of course said that you told that to Constable Chu. Those – A Yes. Q – three things are three different versions of the same interaction, right? A I disagree. Q Well, they’re three physically different descriptions of what you say happened. A I disagree. It was – when they came to my house to when I went into the police station for the deposition, I was able to take more time. So when she asked me at the police station, it was not necessarily all the same question that was asked at home. Q Well – but the detail about under the bra and under the gown you volunteer.

It’s not in response to a question. A Okay. Q So the question that she made (sic) doesn’t make any difference, does it? A I can just tell you what he did and how he – what happened and that’s what happened. Q But the questioning – you volunteered these details. It’s not in response to questions, right? A If it wasn’t a question and I mentioned it, then I volunteered the detail because it’s what I remembered.

Q Okay, the point I’m making is it has nothing to do with what the questions that were asked of you and the difference in those questions between October 18th and October 25th. … Q … I’m suggesting to you that the fact that you volunteer that Dr. Connelly’s hand you say goes under your gown, under your bra. Those are things that you volunteered to the police on October 25th, 2021, right?

A Correct. That does not mean I withheld it intentionally before at all – Q But you said – A – (INDISCERNIBLE). Q – that the difference between those two was that you were asked different questions between October 18th of 2021 and October 25th of 2021 was different questions, right? A There was – they’re not always the same questions, but yes. Q But you’re volunteering the detail. You’re not responding to a question on October 25th of 2021. Do you understand the distinction that I’m asking you about? A If I volunteered that information, it’s because I thought of that information then.

Q Okay, so it’s something that came to you between October 18th and October 25th? A No, it didn’t came (sic) me, I just was – didn’t mention it. Q I thought you had explained to me that you were being complete when you met with the constables on October – October 18th of 2021? A Yes. Q But – but not obviously with what physically happened with respect to your breast. A I wasn’t in – withholding information. It’s at the time what I remembered and what I had been asked and I just told them what happened to me. So – and how it happened. I didn’t withhold anything, so ...

Q And the way that you told them what happened in October 25th was bare hand against breast – bare breast at the time, and your answer, Absolutely, yeah. Right? A M-hm. Q That’s the evidence you gave Constable Chu on October 25th, 2021? A By mistake, yes. Q And that’s absolutely 100 percent incorrect, right? A 100 percent – but 100 percent over my bra, not under my bra. Q Just 100 percent wrong about bare hand on bare breast. Right? A Yes. I misspoke, yes. Q Well, you didn’t misspoke (sic), that’s what you thought happened when you gave a lengthy comment about bare hand on bare breast.

A It was quick questioning, that’s how I answered it. I realized I made a mistake, and I corrected it as soon as I could. Q Sorry, you’re saying that the questioning was too quick for you to respond to it? A There was just a lot of – obviously it was a lot of questions, and I tried to be as detailed as possible, but I was also rushing. Constable Chu was very kind. She said to – to take my time, that there’s no hurry, and yet I – I did feel pressure to – myself to remember as much as possible and to say as – as many details as I remembered. So I just remembered when I said it.

It wasn’t – it – it – I got that confused, and I wanted to correct that. [65] [ 81 ] Fourth, the Defence argued that MH’s evidence was “materially contradicted” by the medical evidence admitted in Exhibits 5 and 11, [66] specifically her evidence that Dr. Connelly did not actually conduct any kind of medical examination of her: … She was very clear in her evidence there was no examination, didn’t examine her neck, didn’t do a full examination, didn’t do anything, not an examination, full stop. And then she also further described that her April 16th, 2015, the same thing, no examination.

Well, admitted in the records are handwritten notes identified by Lori Newman and Dr. Connelly about the physical examination conducted on December 13th of 2012 when she says there was no examination. Dr. Connelly – these were contemporaneous records as well as a reporting letter which included things that Dr. Connelly would have no way to note but for the fact that an examination had to have occurred.

Blood pressure, that she has an ejection click which is audible only by listening with a stethoscope, information about her consumption of alcohol, that she doesn’t smoke, that she had children, that she was divorced, that she’s asymptomatic, that she had a bunch of acronyms that work out to her medical condition. These were things that he only knew – which are the only reason they’re recorded here, because he asked them during the exam that he conducted on her which she claims never happened. And this is significant because it’s – her narrative is that Dr. Connelly walks in.

He talks to her and just tells her the results of this – of some test that she had and then gives her the exam and sexually assaults her. There’s no exam, nothing happens. But we know the contemporaneous records show the exact opposite.

We have similarly again on April 16th, 2015, when she claims no examination, we have the handwritten notes of Dr. Connelly again from the medical records showing that’s not the case. And so while she claims 1 there’s no – no examination which is the core of her narrative, frankly, that this is what happened and there was nothing to do with an examination, we know otherwise. These are records where the – the importance of them was testified to by Dr. Parker, how important they are. Simply put, those records are reliable indications of what happened. [67] [ 82 ] MH did testify that Dr.

Connelly did not conduct any medical examination as described by the Defence: Q Okay. I want to understand your – your talk about this December 13th of 2012 consultation with Dr. Connelly, right? A M-hm. Q When you go there, Dr. Connelly does not conduct an examination of you at all. That’s your evidence? A Correct. Q He doesn’t listen to your heart? A I believe not. Q Okay. I want to – I want to make sure we understand what your memory is. He comes in, he talks to you about your condition, right? A Correct.

Q And then the next thing that happens is he is asking about whether you want to listen to your heart, right? A Yes. Q Then he’s behind you, and he’s putting the stethoscope on your sternum? A Yes. Q Yeah. Then when that’s done, he talks to you about follow up? A Yes. Q And then he leaves? A Yes. Q So there’s no examination at all that happens on December 13th of 2012 (sic). A It was just a consultation. Q So he doesn’t check for your pulse? A I don’t believe so. Q Doesn’t examine your neck? A I don’t believe so. Q Okay. Well, you – you said it didn’t happen, right? It’s not whether you believe it.

A I don’t remember that happening. Q Well, is it possible there was a full examination, or you don’t remember? A No, there was not an examination. Q Okay, it didn’t happen, right? That’s what your evidence is, it did not happen. Right? A Okay. Q Was – is that the case? A I don’t remember that happening. Q Okay. So I – I don’t want to be pedantic with you, MH, but I want to understand, okay? Do you remember whether there was an examination or not? A There was no examination by him. Q So then he didn’t check any of those things that I asked you about. A Okay, he did not.

Q Right? That’s – that’s what your memory is? A I don’t recall that happening, no. Q So then your evidence is no, he didn’t check – do a respiratory check on the back of your – of your lungs? A No. Q He didn’t check your stomach to see if you have an enlarged liver? A No. Q Didn’t check your legs to see if you had edema? A No. Q Okay. He didn’t do any of – any listening with his stethoscope on you at all? A No. Q Okay. If I suggested to you that at one point during the exam, you were laying down on your left side, would you agree with me? A No.

Q And your hands would have been above your head, would you agree with me there? A No. Q And the doctor would have been talking to you about a soft ejection click, do you agree with me? A I don’t recall that, no. Q And what I understand is that you believe that your – or what you understand about your medical condition is that your heart does a double beat every 10 beats or so. A That’s what he told me. Q Okay. If I said that you had a condition called bicuspid valve, would that ring a bell? A Yes. Q Okay. A M-hm. Q Do you understand those to be the same thing or different things?

A I don’t understand if it’s the same thing. Q Now, you said that you returned to the clinic in 2015 or something like that, right? A Correct. Q Okay. And again, just so I – I’m clear, you don’t have any physical exam in 2015. A I – no, I had my echo. Q Okay, but you don’t get physically examined by Dr. Connelly at all? A No. Q He doesn’t touch you, he doesn’t do any kind of medical exam? A No. [68] [ 83 ] Dr. Connelly’s contemporaneous notes of these appointments, marked as Exhibits 5 and 12 contain detailed information that suggest that Dr.

Connolly must have physically examined MH. [ 84 ] However, MH’s answers in cross examination clearly indicate that she did not remember the particular details of her examination as they were set out in the questions. MH’s denials of Dr. Connelly conducting a physical examination of her were the result of counsel not accepting MH’s assertion that she simply did not recall. [ 85 ] Fifth, the Defence argued that MH’s evidence was contradicted by Lori Newman’s evidence as follows: … MH claimed that she confronted Lori Newman about how Dr. Connelly was, that she said, Lori, you know what he does.

She testified it was clear to her that Lori Newman understood her, that she was suggesting that Dr. Connelly was sexually inappropriate, that Lori

Newman heard this, nodded and that it was a very memorable experience and the confrontation was a very clear memory. Lori Newman who in our – my submission was a careful, thoughtful witness testified she had no recollection of her telling her that, that if she had any hints of sexual impropriety, she would have talked to her manager, another one of the clinic physicians. She did not report anything to her manager with respect to MH. And if she had told her that, she would have done something. The confrontation which MH tells us about happening as a clear memory did not happen.

Lori Newman had no reason to lie about this. Now, that was one aspect that was externally contradicted by her evidence about Lori Newman. But the other part was that on the subsequent visit in 2015, she had a meeting with Dr. Connelly in an office space. Dr. Connelly obviously testified that never happened, that he doesn’t meet with patients in his office itself but only in exam rooms. But Lori Newman’s evidence was that she did not ever direct MH – she did not recall ever directing MH to Dr. Connelly’s office space. She did not remember observing MH in Dr.

Connelly’s office space and that she had never seen any patient in Dr. Connelly’s office space during medical exams. That’s because the evidence of MH is untrue. [69] [ 86 ] MH did testify about her interactions with Lori Newman in the way that the Defence described: Q Okay. And the person that – and you say this all happens in his office, right? A Correct. Q And the person that takes you to that office is Nurse Lori. A Correct. Not to – to the 2015 appointment? Q Yes. A I got an echo done at the Peter Lougheed. Q And then when you go to see Dr.

Connelly, you said – A For my – Q – what happened in his office, right? A For my results? Yes. Q And Nurse Lori’s the one that takes you to his office? A I don’t remember if she was the one that took me. Q So you – you don’t have a memory of that? A I don’t know who took me to follow them to – to his office. I just know that I just had to get my test results by meeting with him. Q Okay. A She was there. She was there, but I don’t know if she was the one that took me to his office.

Q Well, I think you told the police that you interacted pretty extensively with Dr. – or Nurse Lori Newman on April 16th of 2015, didn’t you? A Yeah. When I checked in and when I – when I left, yes. Q And when you left, what you told police - and we haven’t heard yet today - is about how you told the police you confronted Lori Newman. A I did, yes. Q And you told – you told police that you told Lori Newman that Dr. Connelly was inappropriate with you? A I went – I went up to her, and I was very angry because I was made to see him for my results.

And I confronted her, and I said, Lori, I said, you know what – not verbatim, but I said – I said – I did say to her, You know what he does. You know what he does. You know what he does. Q And you were implying – you were suggesting outright to her that Dr. Connelly was somehow sexually inappropriate with you. That’s what you thought you were – you were conveying. A Yes. She nodded. She nodded. Q M-hm. She nodded – A She didn’t say anything. Q She was sympathetic towards you? A Yes.

Q You were angry with her? A Not to her – towards her, but I was angry in general for what having to see him. Q It was a very memorable experience. A Yes. Q You were emotional at that time? A I was, yeah. Q And again, that’s a clear memory? A That I confronted her? Absolutely. I insisted on having my file transferred. I said to her, I don’t care who transfer it to, I want a different cardiologist. I want my – my files to be – my – my – my records transferred. I said there’s a ton of different names on different doors on this floor. Just pick one. I don’t want to see him. Q It was a prolonged confrontation.

It wasn’t 5 or 10 seconds. This took some time for you to explain what was wrong. A A few minutes. M-hm. Q I want to be clear. You say that you don’t remember if Lori Newman was the person that took you to his office on that day. I’m going to ask you to turn to page 28 of your October 25th, 2021 statement. I’m going to start you on line 15. Okay, and it’s going to take me a while to get to the point ‘cause this is a bit of a long passage. Q And I’m going to start you on line 14: (as read) So I went back and again I got the appointment for the echo. I told Lori, I’m not seeing him.

I – and – and he can just call me or email me or what have you, and she insisted that I had to come in for the results. There was absolutely no other way. And I said, Well, if – if nothing’s changed, if – if it’s – unless it’s serious, why would – why would I have to come and see him? And she insisted I – I can only get the results if I see him. And so I was hoping that ML would be in town. It – for my follow up because I didn’t – I was very resistant to go. I was very anxious, you know. I felt like wanting to confront him.

And I ended – I ended up – instead of a – it wasn’t in – in a waiting room – in the examination room. I actually – she asked me to go into his office, and he was sitting behind the desk, and I thought of – I can’t – as long as I’m staying over there. And you continue on. A M-hm. Q Does that refresh your memory that – A M-hm. Q – it was Lori Newman that took you to the – the office? A She asked me to go into his office. I don’t know if she took me. Q So it was Lori – A To his office. Q – Newman that asked you to go to his office? A Yes. Q Again, clear memory that you have?

A She didn’t – I don’t know if she physically – if she was the one that physically took me. There’s a few ladies there, but she said he was in his office. Q So she told you to go into his office to see him? A Yeah. Q And yeah, I want to be clear. In October of 2019, when you went to see him again, you say there was no examination done by Dr. Connelly at all? A Right. Q Now, we agree that when you met with police on October 18th that you thought that Lori Newman would be the perfect person to talk to – A M-hm. Q – to confirm your version of events, right?

A M-hm. Yes. Q And – and you still think that today, right? A Yes. [70] [ 87 ] Lori Newman did not confirm this account in her examination-in-chief: Q Now, I understand – actually, I want to shift our focus to asking you some questions about your professional obligations as an RN. I understand that you’ve been an RN for approximately 35 years – 37 years? A Thirty-seven. Q Thirty-seven years. So as an RN, do you have any responsibilities if you become aware of sexual misconduct by a health care practitioner?

A Yes, with the Health Professions Act, we are legally obligated to report any reports or disclosure of sexual misconduct. Q And so practically, what would that look like for you? A Umm, I believe it would be that I would report it to either their – to one of the clinic physicians or to my manager. And then they would take it forth and report it to the College of Physicians and Surgeons as is the requirement, m-hm. Q I want to ask you some questions about a patient named MH. I understand in advance of testifying today that you had an opportunity to review the medical records of MH; is that correct?

A Yes, that’s correct. Q You were also interviewed by police about MH; is that fair? A Yes, that is. Q And so upon reviewing the medical records, did you have any memory of dealing with this patient? A Not a lot. She was only present in our clinic for three separate visits. I was present at all three of those visits, and I had a couple of phone calls with her over a few months’ time period in 2017; but that’s all that my notes show on her chart. Q I wanted to ask you specifically about whether or not MH on any occasion ever said something to you along the lines of, “ You know what he does to women”?

A I don’t have any recollection of her telling me that. Q If there had been any hint of sexual impropriety towards women in his professional context, what would you have done? A As we talked about, I would have reported it to my manager or another one of our clinic physicians. Q And at any point involving MH, did you report anything to your manager? A No, I did not. Q At any time for anything involving MH, did you report anything to anyone? A No. Q If she had, in fact, said this, would you have done something? A Yes. Q Lastly, during any of MH’s visits, did you ever direct her to Dr. Connelly’s office space?

A Not that I recall, no. Q Did you ever observe MH in Dr. Connelly’s office? A No, not that I can remember. Q And in fact to be fair to you, you’ve never seen any patient in Dr. Connelly’s office during medical exams? A No. [71] The cross-examination of Ms. Newman added clarity to the matter: Q Okay. And again as you indicated earlier, you don’t have an independent memory of anything with respect to MH; this was purely based off what you recorded in the medical records? A That’s correct, yes.

Q Okay. And in those thousands and thousands of interactions that you’ve had with patients, I would imagine given you are dealing with people with serious heart issues, there’s going to be times where you’re dealing with patients who are quite upset; fair to say? A Yes, that’s correct. Q Okay. And if you didn’t record that conversation in the medical notes, you wouldn’t have an independent recollection of that particular conversation with an upset patient, right? A Umm, sorry, can you sort of repeat that.

Q So you said that – you agreed with me that there are times where you would be having conversations with patients who are upset? A Yes. Q Right? And if you hadn’t recorded that conversation in the medical notes or the chart, you wouldn’t have an independent recollection of that – the specifics of that conversation today, right? A No, I would not. Q Now, the statement, You know what he does to women, you would agree with me that the statement could mean a few different things like he is rude to women, he is mean to women, he is a misogynist to women, he talks down to women?

A I could – yeah, but I couldn’t really comment – Q But you agree with me that that statement could mean a variety of things – A Yes. Q – right? So it’s, You know what he does to women, is a vague statement? A Yeah. Q So you could have took it to mean a variety of things? A I don’t recall that conversation though. Q Right. A Yes. Q And if you didn’t take that vague statement to suggest that he had sexually assaulted a patient in some way, then you wouldn’t have had a reason to record it, would you? A If someone would report that they had been assaulted, I definitely would have reported it. Q Right.

But my question was – and maybe I didn’t frame it correctly – if you’re – if someone says a vague statement to you like, You know what he does to women, and you don’t take that statement to suggest the doctor sexually assaulted me, you’re not going to report anything because in your mind – A Yes. Q – nothing untoward has happened, right? A Correct. Q You could have taken that statement in a variety of different meanings? A Yes. Q Okay.

So at the end of the day when you say I don’t have a recollection of that in terms of that statement being made, that doesn’t mean it didn’t happen; it just means that you don’t remember it, right? A I definitely don’t remember it, no. [72] [ 88 ] I accept that Ms. Newman did not recall MH complaining about Dr. Connelly. I also accept that if Ms. Newman had been told by MH of sexual impropriety on the part of Dr. Connelly that Ms. Newman would have reported it to her manager. However, the words which MH testified that she said to Ms. Newman were ambiguous and may not have been interpreted by Ms.

Newman as intended by MH. [ 89 ] I do not find Ms. Newman’s failure to remember the exchange between her and MH to be determinative of whether the exchange occurred. [ 90 ] Sixth, the Defence argued, as a “minor point,” that MH’s “evidence displayed … an unreasonable suspicion about the medical procedure itself,” including taking a “social history” as based on, for example, this exchange: … She made comments about how when she was asked questions, she found them odd, that she believed – or she was concerned that

they maybe had been used by Dr. Connelly to keep tabs on her and that she took something negative away from these questions being asked.

Evidence that social history was a routine part of an examination, it reflects potentially on a witness whose perception of events cannot be trusted, never mind their reliability of their evidence or their credibility. [73] [ 91 ] This Defence observation that MH’s evidence displayed a suspicion about the medical procedure itself, including taking a social history: Q One thing I want to understand, MH, is I want to ask – understand about the situation or your concern about what Lori Newman was doing when she was asking you questions when she did the intake for you – A M-hm. Q – when you first went there. A M-hm.

Q I take it you were suspicious of why she was asking you questions? A I wasn’t suspicious, I just found it odd.

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