R. v. Clarence Clottey, 2018 ONCJ 536

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. R. v. Clarence Clottey Table of Contents Brown, J.: 1 1.0 INTRODUCTION .. 1 2.0: ISSUES BEFORE THE COURT . 3 3.0 EVIDENCE AT TRIAL .. 4 EVIDENCE OF FACT WITNESSES . 5 History With Physicians . 6 Physical Examinations . 6 Chaperone/Third Party . 6 Events Leading Up to Physical 6 Start of Examination . 7 Breast Examination . 8 Vaginal Examination . 10

Conclusion of Examination . 12 Length of Examination . 12 Reporting and Termination of Relationship . 13 Background with Dr.

Clottey . 13 Physical Examinations . 14 History and Initial Assessments . 14 Start of Examination . 14 Breast Examination . 14 Abdominal Examination . 16 Vaginal Examination . 16 Follow-Up Examination and Pap Test 17 Reporting and Termination of Relationship . 18 Initial Meeting . 20 Physical Examination . 21 Chaperone/Third Party . 21 Initial Discussion . 21 Start of Examination . 22 Breast Examination . 22 Abdominal Exam .. 24 Vaginal & Pelvic Examination . 24 Events After Physical Examination . 28 Medical History . 29 Initial Meeting . 30 Physical Examination . 31 Chaperone / Third Party . 31 Vaginal & Pelvic Exam .. 32 Breast Examination . 32 Abdominal Exam .. 34 End of Examination . 34 Reporting . 34 Initial Meeting . 36 Physical Examination . 36 Chaperone/Third Party . 36 Breast Examination . 37 Vaginal Examination . 38 End of Examination . 39 Subsequent Appointments . 39 Reporting and Follow-Up . 40

Initial Meeting . 42 Subsequent Appointment 42 Physical Examination . 43 Breast Examination . 43 Other Examinations . 44 Vaginal Examination . 45 Rectal Examination & Hemorrhoids . 46 End of Examination . 47 Reporting and Follow-Up . 47 Dr. Clottey’s Training and Background . 48 Dr. Clottey’s Clinical Practice . 50 Aspects of Dr. Clottey’s Routine Physical Examination . 52 Dr. Clottey’s Method and Routine for Breast Examinations . 53 Dr. Clottey’s Method and Routine for Pelvic Examinations . 55 Sequence of Criminal Charges . 58 Dr.

Kimberly Wintemute . 59 Background and Qualifications . 59 Opinion . 60 Role of Best Practices and Standards . 61 Breast Examination . 61 Gynecological Examination . 62 Dr. Allan Covens . 64 Background and Qualifications . 64 Opinion . 65 Breast Examination . 66 Gynecological Examination . 66 Chaperone . 69 Dr. Howard Rudner . 69 Background and Qualifications . 70 Opinion . 71 Basis for Opinion . 71 Breast Examination . 73 Gynecological Examination . 74 4.0 LAW & ANALYSIS . 76 5.0 THE LAW ... 79 Requirements For A Finding Of Sexual Assault 79 Impact of Medical Context 79 Legitimate Medical Purpose . 79

Whether Examinations Were Sexual in Nature . 80 Consent 81 Honest Belief in Consent 82 Dr.

Clottey’s Charting and Evidence of Usual or Routine Practice . 83 6.0 ANALYSIS OF EVIDENCE .. 84 RS . 84 Initial Discussion and Timing . 86 Breast Examination . 87 Gynecological Examination . 88 Conclusion of Examination . 91 IF . 93 Breast Examination . 94 June 16, 2015 Pap Test 96 Gynecological Examinations . 100 Complaint to Police . 103 Meet and Greet 114 Chaperone . 115 Physical Examination . 115 Breast Examination . 116 Disclosure and Reporting . 118 DM ... 120 Breast Examination . 121 Gynecological Examination . 124 Subsequent Appointments and Physical Examination . 127 TV .. 128 Timing of Physical Examinations . 128 Breast Examination . 129 Vaginal Examination . 131 Rectal Examination . 133 Complaint to Police . 135 Conclusion on Credibility and Reliability of the Fact Witnesses . 136 Similar Fact/Discreditable Conduct Application . 136 Admissibility of Similar Fact Evidence Legal Principles . 136 Analysis of Similar Fact Evidence . 137 Assessing Probative Value . 137 Strength of the Evidence and Collusion . 137 Issue In Question . 138 Required Degree of Similarity . 138

Connecting Factors . 140 Assessing Prejudicial Effect 140 Uses of Similar Fact Evidence . 141 To Support the Evidence of the Victim – Actus reus or Non-Consent 141 Motive . 143 To Rebut the Defence of Innocent Association . 143 Doctor/Patient Cases . 144 Crown’s Suggested Application to this Case . 144 The Double Inferences Sought to be Drawn . 144 Strength of Evidence . 144 Collusion . 144 Issue In Question . 145 Purpose for Which Similar Fact Evidence is Admissible . 145 Connecting Factors . 145 Extent to Which the Other Acts are Similar in Detail to the Charged Conduct: 146 The Number of Occurrences of Similar Acts: 146 Circumstances Surrounding or Relating to the Similar Acts: 146 Any Distinctive Features Unifying the Incidents . 146 Intervening Events . 147 Any Other Factor that Rebuts or Supports the Underlying Unity of the Similar Acts . 147 Similarities and Dissimilarities . 147 Assessing Prejudice . 147 Moral Prejudice . 147 Reasoning Prejudice . 147 Weighing Probative Value vs.

Prejudicial Effect 148 ADMISSIBILITY: ASSESSING PROBATIVE VALUE .. 150 Evidence of Inadvertent Collusion: Media Reporting . 151 Objective Improbability of Coincidence . 154 The Allegations are Not Sufficiently Similar . 155 Whether the Breast Exam Caused Pain: 156 Clitoral Contact 157 Reporting and “Opportunism”: 157 Other Handy Factors . 157 Breast Examinations . 158 RS’s Allegations . 159 IF’s Allegations . 160 GO’s Allegations . 161 KR’s Allegations . 162

DM’s Allegations . 163 Findings Regarding Breast Examinations . 164 Gynecological Examinations . 167 Allegations of Clitoral Contact 167 Allegations Regarding Forceful Bimanual Examinations . 169 Finding Regarding Gynecological Examinations . 169 Myths and Stereotypes – Victim Behaviour . 170 7.0 CONCLUSION .. 173 CITATION: R. v. Clottey , 2018 ONCJ 536 COURT FILE No.: Halton 581/17 DATE: 2018·08·07 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CLARENCE CLOTTEY Before Justice Stephen D.

Brown Heard on November 20, 21, 22, 23, 24, 29, December 7, 11, 12, 13, 14, 18, 29, 2017 January 8, 9, February 8, 23, 26, 2018 Brief Oral Reasons for Judgment given on July 12, 2018 Written Reasons released on August 7, 2018 Monica Mackenzie ..................................................................................................... for the Crown Jenny P. Stevenson and Jordan V.

Katz ........................................ for the accused Clarence Clottey Brown, J.: 1.0 INTRODUCTION [ 1 ] This is a case about a family physician that performed physical examinations on six of his patients who subsequently complained about the nature of examinations resulting in six charges of sexual assault being laid against him. [ 2 ] Depending on my findings, his career may be in jeopardy.

If he is found guilty of any or all of the counts, the College of Physicians and Surgeons of Ontario (“CPSO” or the “College”) will likely continue with their disciplinary hearing against him, likely resulting in him losing his license to practice medicine. [ 3 ] If he is found not guilty, the CPSO may still very well continue with a disciplinary hearing against him, possibly resulting in the same outcome. [ 4 ] If he is found not guilty of the charges, his patients may question my judgment and may think that I have applied an improper analysis to their evidence.

Each of the complainants truly feel that they were violated by the accused and that he subjected them to improper and humiliating sexual assaults under the guise of “necessary medical procedures” and, in so doing, seriously breached the trust that they had in him to provide proper, necessary, and appropriate physical examinations of them

in accordance with the consent to such examinations that they provided. [ 5 ] The translated version of the original Hippocratic Oath can be found on the McMaster University website and is set out as follows: I swear by Apollo Physician and Asclepius and Hygieia and Panaceia and all the gods and goddesses, making them my witnesses, that I will fulfill according to my ability and judgment this oath and this covenant: To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art—if they desire to learn it—without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken an oath according to the medical law, but no one else.

I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice. I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art. I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.

Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves. What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.

If I fulfill this oath and do not violate it, may it be granted to me to enjoy life and art, being honored with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot. [1] [ 6 ] Modern re-written versions of this original Greek oath are usually taken by every medical school graduate and incorporate the principles of respect of the very great trust that is reposed in them by their patients. [ 7 ] This respect is particularly important in this case. [ 8 ] I must base my judgment not on an ancient oath or a more modern version of it that I would assume Dr.

Clottey has taken, but on a fair, unbiased analysis of the evidence presented before me at this trial, weighing it all carefully, and being bound by the principles that are applicable in every criminal trial that I will subsequently outline in my analysis. [ 9 ] I am also aware that the repercussions of what my decision may or may not be are not to influence me when applying the correct law and doing a complete analysis of all the evidence that I have heard in this trial. [ 10 ] I am also aware that this judgment would not need to be written if a chaperone or a staff member was present when the examinations were carried out.

Although I understand why in some cases a third party is not present during sensitive examinations, that it would be an increased cost to the physician and that it is not mandatory to have a third party in the room at the time of the examination, the grief, upset and trauma that has been visited upon Dr. Clottey and all of his patients would most likely have been avoided by taking this step. [ 11 ] It is but a small insurance to pay for the protection and well-being of all. 2.0: ISSUES BEFORE THE COURT [ 12 ] Credibility and reliability of each witness is an important issue in this case.

In this case, the defendant has testified and called evidence. I am mindful of the dictates of the Supreme Court of Canada in R. v.

W.(D.) . [2] [ 13 ] Similar Act evidence as between the six counts must be first assessed to see if it is admissible and, secondly, assigned a weight that is to be used in my analysis of the evidence called at this trial. [ 14 ] Finally, I must assess the expert evidence that was called before me and choose how to apply that to the evidence that has been presented. [ 15 ] Three eminently qualified expert witnesses were called, one by the Crown and two by the defence. [ 16 ] I received written submissions at the conclusion of the trial which were supplemented by oral submissions on the last day.

The submissions made by both counsel were excellent and assisted me greatly in arriving at my decision. [ 17 ] They were cogent, comprehensive and fairly put their respective positions forward in a clear and concise manner. I have borrowed and will borrow heavily from both counsel’s submissions and have at times reproduced their submissions and

summary of the witnesses’ evidence because of their thoroughness and accuracy. [ 18 ] The written and oral submissions were a continuing example of the professionalism and skill of Crown and Defence counsel that were displayed throughout the course of this trial.

[ 19 ] The Crown has elected to proceed by indictment on all counts and the defence elected trial before me. 3.0 EVIDENCE AT TRIAL A. OVERVIEW [3] [ 20 ] Dr. Clottey is a 57-year old family doctor who undertook his initial medical training in Ghana between 1982 and 1986, followed by three years of practice in a Catholic Mission Hospital in Ghana. He eventually commenced training for, and then a career in, public health. He received his Masters of Public Health from Harvard University in 1991.

After working in the public health field in both the United States and Canada, he commenced and completed a residency in public health and preventive medicine from the University of Toronto, which included two years of a family practice residency, allowing him to be qualified as a family practitioner in Ontario. [ 21 ] He began working at Bristol Family Physicians in around 2011, which was one of a number of clinics owned by Jody Mangiardi. He has worked at this location since 2011 as part of a family health team, along with other physicians, nurses and other health professionals. [ 22 ] Dr.

Clottey became the family physician of all six complainants between mid-2012 and 2015. In the case of all six complainants, as was his customary practice, Dr. Clottey initially met each of them for a “meet and greet” and then arranged to perform a complete physical examination because they were new patients in his practice.

This comprehensive assessment would generally include a detailed interview about current and past health, medications, family history, a complete head-to-toe physical exam, including a breast and vaginal exam, and laboratory and other tests as indicated. [ 23 ] Three of the six complainants (GO, KR, and TV) stopped seeing Dr. Clottey following their first comprehensive physical examination which followed the initial encounter. The other three complainants (DM, RS and IF) continued to see Dr.

Clottey for a more extended period of time following that first physical exam, which was anywhere from 6 months (in the case of DM) to 4.5 years (in the case of IF). [ 24 ] Five of the complainants complained about the manner in which Dr. Clottey performed the breast exams, stating that he either pulled, pinched, yanked, tugged, or twisted their nipples, in some cases causing pain or discomfort and in other cases causing no pain but causing the complainants to question what had happened. [ 25 ] Four of the complainants complained about the manner in which Dr.

Clottey conducted the vaginal examinations, alleging that the examination was uncomfortable, overly aggressive and, in some instances, painful, with three of the four alleging that their clitorises were touched in a manner that made them uncomfortable or upset. Two of those four testified that the clitoral touching or pressure was constant, sustained and ongoing throughout the exam. One complainant (TV) alleged that Dr. Clottey’s thumb rested on her clitoris when he was performing a rectal examination. [ 26 ] The first complainant to contact the police was RS.

She spoke to the College of Physicians and Surgeons of Ontario three days after having a complete physical examination with Dr. Clottey at Bristol Family Physicians on June 27, 2016. A few weeks later, she was interviewed by Detective Wendy Clayton of Halton Police Services. [ 27 ] Dr. Clottey was arrested and charged with sexual assault in August, 2016 with respect to the allegations of RS and KR. In November, he was charged with sexual assault respecting the allegations of GO. At that point, there were press releases which led to further charges on three subsequent occasions, regarding TV, IF and then DM.

The last three complainants contacted the police after learning of the sexual assault charges in the media. [ 28 ] Dr. Clottey learned after he was criminally charged that the College had been contacted years prior by GO and a therapist of KR regarding those complainants’ concerns. The College did not take any action at those times that led to Dr. Clottey being notified of the concerns. It was only after the first criminal charge was laid that Dr. Clottey became aware that concerns had been expressed to the College in 2013 by GO and in 2014 by KR’s therapist.

EVIDENCE OF FACT WITNESSES 3.1 Evidence of RS [ 29 ] RS is 50 years old. She was born in Brazil and came to Canada in 2009. She testified that English was not her first language, although she did her best to testify without an interpreter. She worked at the Canadian Mental Health Association until recently, though was not working at the time of her testimony. History With Physicians [ 30 ] RS testified that she was Dr. Clottey’s patient for 2 or 3 years, until June 2016. She became Dr. Clottey’s patient through a referral from friends.

She was initially referred to a female doctor but found it difficult to make an appointment because of that doctor’s schedule. Additionally, Dr. Clottey’s office was near her work. [ 31 ] In addition to two female family doctors that she had in Canada before Dr. Clottey, RS said that she had various physicians in Brazil – both general practitioners and specialists. She explained that she would make direct bookings with gynecologists,

without a referral, and her experience was that she would have full annual physicals with gynecologists in Brazil, which included breast and gynecological exams. She said her gynecologists had been both male and female. Her pattern of having annual physicals continued when she came to Canada, but she relied on her doctors to remind her when they were required. Physical Examinations [ 32 ] RS testified that she had multiple physical exams with Dr. Clottey She testified that she had at least 1 or 2 of these exams before the one on June 27, 2016 that she had concerns and complained to the police about.

He had previously performed a full physical exam on February 28, 2015, which included a Pap test and which RS said did not upset her. Chaperone/Third Party [ 33 ] RS said that Dr. Clottey never had a nurse in the room when conducting physicals on her, and that this was different than the gynecologists she saw in Brazil through private insurance, where male gynecologists would have a nurse in the room, without the patient asking, as part of the “package.” In Canada, she only had female doctors before Dr. Clottey, and they did not use chaperones.

Events Leading Up to Physical [ 34 ] RS initially testified that her June 27, 2016 physical exam occurred when she returned to Dr. Clottey’s office 2 to 3 weeks after an appointment where she was having symptoms like fatigue and dry skin which she thought arose from an imbalance in her thyroid hormones. Her evidence was that she wanted Dr. Clottey to adjust her medication levels. She recalled that Dr.

Clottey indicated that she should have a physical examination, but that she questioned why a physical was needed just to renew her thyroid medication. [ 35 ] In cross-examination, RS acknowledged that she had a number of conditions in 2016 that she was seeing Dr. Clottey for and which he recorded - hypothyroidism, for which she took Synthroid; a history of benign breast nodules, for which Dr. Clottey ordered mammograms; and other issues.

She initially denied having any concerns at the time of her appointment, but later acknowledged that at the time of her June 2016 physical she had missed some periods, although she was not concerned about this; and that she had some conversations with Dr. Clottey about menopause, although again, she was not concerned. She also acknowledged she had complained to another physician on May 30, 2016 of fatigue and bloating. [ 36 ] She also agreed that she wanted Dr. Clottey to refer her to a gynecologist at this time because her friend was seeing one and she thought it would be good for her to see a specialist.

She was taken to her chart, which showed an appointment with Dr. Clottey on June 20, 2016. The chart reflected all of her concerns. [ 37 ] Though RS maintained that she thought Dr. Clottey should not have waited to make modifications to her thyroid medication until a physical was done, she acknowledged that at that time she was not sure when her prior physical was. She also admitted that she did not say that Dr. Clottey did not need to perform a physical at that time and she was not upset that he was going to do one. She further agreed with the suggestion that Dr.

Clottey should get a full view of her health before referring her to a gynecologist. [ 38 ] RS recalled Dr. Clottey suggesting to her that she could come in the following Monday morning and she was surprised because he generally did not work during that time. Her evidence was also that it was different to her that his office had called her the prior Friday to remind her about the appointment, as she had forgotten about some appointments in the past. She thought maybe these amounted to new routines at the clinic.

Despite agreeing that she had not been upset at the time that he had suggested a physical, she agreed that by the time she spoke to the police, she thought it “made sense” in the “picture” in her mind of what happened that perhaps Dr. Clottey was trying to bring her in on a day that was isolated, at a time that he wanted, when nobody was there. [ 39 ] When she arrived at the clinic on the Monday morning, Dr. Clottey was late and had forgotten about the appointment which was scheduled for 10:30 a.m.

She said someone at the front desk appeared to contact him, told her that he was coming, and he showed up about 20 to 30 minutes later. She said she was not bothered about it as she could wait as long as needed for a busy doctor on a full day. Start of Examination [ 40 ] RS testified that when she started the appointment with Dr. Clottey, it was just the two of them and she remained in street clothes while they started to discuss her recent health history. She disagreed that Dr.

Clottey only came in once she had been shown to the room by the nurse and changed into a gown; she thought she was still in her street clothes when Dr. Clottey came in. While she agreed that she did do this at some point, she said it was after she had initially chatted with Dr. Clottey and that he left the room to let her change. [ 41 ] RS thought Dr. Clottey was friendly at the beginning of the appointment, and recalls discussing that she was exercising every day and that it improved her mood and overall health. She felt it was valuable that Dr.

Clottey was explaining things very well and she felt clear and had high energy. [ 42 ] RS agreed that she talked about all her health issues during this time. She thinks she may have mentioned some issues she had with her son and they discussed the tests he would be giving to her. It was suggested that they may have also discussed her upset about a friend she had helped come to Canada. She initially said this may have happened, but then said she did not remember it. [ 43 ] She did agree that Dr. Clottey was asking her a lot of questions and it was a long initial conversation. She remembered Dr.

Clottey said something like he had “plenty of time” for her that day, which she perceived as awkward. However, she also described this discussion in her evidence in-Chief as a good conversation about her health and that it was focused on the prevention of future problems.

[ 44 ] She remembers Dr. Clottey discussing the tests he would need to do, including blood tests and a colonoscopy, and that they were regular exams for a woman approaching 50. She remembers him asking about her sexual health. She could not recall if she brought up any concerns of her own, but acknowledged she may have had some questions about menopause. [ 45 ] RS said that this discussion took a long time, but she was not sure how much. She thought it was almost too long for her. She then estimated it could have been 10 minutes, but she was not sure.

When suggested that it could have been longer, she could not say one way or another, but she also testified at one point that the discussion took four or five times longer than it usually did, and that this was “not normal”, going as far as saying that it was wrong and abusive for him to have spent so much time with her. She was not sure if the discussion could have been as much as half of the overall visit that day. [ 46 ] RS agreed that, as with the other physical exams he performed, Dr.

Clottey then proceeded to examine her ears, nose and throat, took her blood pressure, and did a stethoscope examination of her chest before moving on to a breast exam. Breast Examination [ 47 ] RS testified about her complaint regarding the breast exam that Dr. Clottey did during the June 27, 2016 physical where she felt that Dr. Clottey had squeezed her nipples. [ 48 ] She testified that the breast exam started by Dr.

Clottey telling her he was about to do one, had her lie down on the exam table, opening part of her gown, and then examining the right breast by touching around with his flat fingers on the palmar side, in a circular motion, one at a time, which she described as the “usual” check doctors do to check for nodules. She thought this was similar to breast exams other doctors had done. She recalled Dr.

Clottey standing next to the table on the right side when doing this exam. [ 49 ] She described him then squeezing hard on her nipple, and proceeding to do the same process on her other breast, at which point both breasts were exposed, although she could not recall how the gown opened. She recalled Dr. Clottey saying, after he squeezed the second nipple, he said he was looking for discharge. She recalled him again going back to the first breast and squeezing the nipple again even harder than he had earlier. [ 50 ] She said no doctor had ever done anything like his.

She described it as an intense, painful squeeze that was not long, saying “oh my God, it’s too painful.” She thought Dr. Clottey used his thumb and first two fingers. She said that he did mention he was checking for discharge, which she perceived as him reacting to her pain, but also said that she never mentioned any complaint about discharge, did not express any pain to him, and did not say anything to Dr. Clottey when she felt what she described. She said she was trying to understand what happened. [ 51 ] There was varied testimony about how and when she reported her concerns with the breast examination.

Before any questioning on this from defence counsel, RS tried to explain why she complained first and only about the gynecological (internal) exam when she first raised her complaint with the College of Physicians and Surgeons and did not bring up the breast exam herself in that discussion. She did acknowledge that she did not complain about or raise the issue of the breast exam with the College investigator, in an interview that she agreed occurred only 3 days after the appointment, until the investigator brought it up with her. [ 52 ] RS offered various explanations for this.

She first said that the vaginal exam took all her attention because it worried her the most; that she did not bring up the breast exam because she was in shock; and that because she was in trauma, her memory only went to the worst part about her experience.

She agreed she knew the College needed accurate information from her. [ 53 ] In terms of the substance of her concern, RS was asked about her statement to the College that she “didn’t see anything different” at the moment about the breast examination and had described it as being done very carefully and that it was “not that intense.” She said this was “true, but not that accurate.” [ 54 ] As part of these explanations, RS generally offered an explanation that she now understands how memory is affected by trauma and PTSD.

She explained that she could not think clearly about all the events in the exam because of her shock and emotion, but that she has recalled other parts of the exam over time, her memory has come back and things have become clearer in her mind than they were at the time she spoke to the College only three days after the events complained of. She said that, looking back, she is not remembering things differently, only that they have become clearer, as her mind has started to settle down.

She relied on a version of this explanation when confronted with different prior descriptions of other events as well. [ 55 ] As a result, according to her, some parts of her testimony one-and-a-half years later were now more accurate than in her interview with the College three days after the events in question. She also testified, to buttress her view of this, by explaining that she understands things about memory from her training as a psychologist. She did not testify about this in detail in her examination in-Chief and was not re-examined on it.

She was not qualified to give expert evidence in this area, wisely, by the Crown. [ 56 ] It was suggested to her that by the time she spoke to the police, she had recalled the breast exam as being more painful and traumatic, and that the testimony had become dramatically different. RS again testified that the vaginal exam was her focus in her initial College interview and that things had become more clear to her over time. She was confronted with the fact that she initially described the sensation as “not that intense” because she trusted Dr.

Clottey, and then testified in-Chief that it felt like he was “squeezing so hard, like a lemon.” She explained that she was just trying to make sense of what he was doing, like checking for discharge at the time of the exam, which he tried to explain – but that now “everything makes sense,” has become more clear, and it fits into the picture of what she thought Dr. Clottey was trying to do to her. Vaginal Examination [ 57 ] RS testified that Dr. Clottey proceeded to conduct a vaginal exam, at which point she covered up her breasts. She said he told her that he was going to start it before he did.

He went to the end of the table to start the vaginal exam.

[ 58 ] Her evidence in-Chief was that Dr. Clottey first said he was going to use a gel and it might feel cold. She did not think he did a Pap test because she did not feel him use a speculum. In cross-examination, she agreed that Dr. Clottey said he was going to do a Pap; and agreed that if he did do a pap, he would have needed to use swabs; and that if he did this, it would have had to be before he did the internal exam. However, she again said she did not think he used a speculum and, based on her subsequent conversations with a gynecologist, did not think Dr.

Clottey could have taken a good or proper swab without having used a speculum. [ 59 ] RS’s evidence was that she was 100% sure Dr. Clottey did not use a speculum. She was then taken to her chart which showed a result from a Pap taken on June 27, 2016, and Dr. Clottey’s anticipated evidence that he did a Pap test with a speculum. RS responded that a Pap could have been taken, but not properly, without using a speculum. When it was suggested that the lab report showing “transformation zone” cells indicates that a proper sample was collected, with a speculum, she disputed it. She said she knew for sure Dr.

Clottey did not do a proper collection because a year later a subsequent Pap showed she had some abnormal cells. She continued to attribute this to Dr. Clottey not using a speculum. [ 60 ] RS also described Dr. Clottey putting gel on his fingers and showing it to her before he proceeded with an internal exam. She said she questioned why he was even using gel, as though there was something wrong or unusual with that practice. [ 61 ] She went on to describe what she felt during the vaginal exam. She described Dr. Clottey using a lot of force, and that the way his hands moved was strong, painful and forceful.

She said that the examination was very intense, that she felt as though she would “lose her sense,” and that she felt as if she was about to faint and may have fainted. She also recalled that Dr.

Clottey told her repeatedly to relax. [ 62 ] She said that she was in so much pain that it took her 11 days for it to resolve, and she said it felt violent like “some kind of rape.” She agreed, however, that she did not seek medical attention, but said it was because she was in shock and that it was a muscular pain that nothing could have helped. [ 63 ] There was some discussion of what words RS used to describe the movement Dr. Clottey used in conducting the vaginal examination and what she perceived. In her examination in-Chief she described Dr. Clottey going “back and forth” with his fingers in her vagina.

The Crown Attorney, in recounting her evidence in-Chief, used the term “in and out.” In cross-examination, she did eventually agree that she did not use those words first in her evidence, but suggested she may have used a similar gesture, and a portion of her video interview was shown when Det. Clayton first used the word “thrusting”. [ 64 ] RS also agreed, eventually, that she did not use the word “thrusting” to describe what Dr. Clottey was doing until Detective Clayton put that word to her in her police interview.

She was taken to each instance in the transcript that that word was used and acknowledged that it had been suggested to her by Detective Clayton. [ 65 ] She agreed that, at that point of the interview, she was using the hand motions that accorded with the language of “back and forth” or “in and out” in her mind. She also agreed that, in any event of the words she used, Dr. Clottey’s examining fingers would at times go in deeper, then less deep, as he was examining her vagina and that his other non-examining hand would remain on her lower abdomen. She said the movements Dr.

Clottey was doing caused her to become wet and involuntarily aroused, but also agreed that the gel Dr. Clottey used for the bimanual could have caused her to feel wet. [ 66 ] RS described feeling Dr. Clottey touch her clitoris when she “came back” from feeling faint. She said that she told him specifically to stop touching her clitoris, at which point his hand moved and the intensity lessened, and he said “Sorry, it was an accident.” Her evidence was that Dr. Clottey was doing this deliberately, and that by Dr.

Clottey apologizing to her, it confirmed that he was doing something wrong and on purpose. [ 67 ] RS also recalled Dr. Clottey saying “something’s wrong” at some point during the vaginal examination. She said that she believed that there was something wrong with Dr. Clottey when he said this and thought he may have been referring to himself when he said it. She did not agree that he was likely referring to his findings on examination, specifically of a bulky uterus, and continued to deny this even when taken to the recording of “bulky uterus” in her chart for that exam.

She even refused to adopt this when her College statement was put to her in which she recalled Dr. Clottey saying something to her like “you have something wrong with your uterus.” Conclusion of Examination [ 68 ] RS testified that shortly thereafter, the examination concluded and Dr. Clottey went to his desk. She remembered him writing things down and she thought his hands were shaking. She also thought he was “sweating like a pig: with sweat pouring down his face.” She did not see anything like heavy breathing or an erection, and he did not make any sexual comments. [ 69 ] She also repeatedly described that Dr.

Clottey was talking and saying the same things to her over and over; that he kept talking and was not saying anything new to her. She described him as going “blah, blah, blah.” She thought he was just trying to keep talking to avoid leaving the room because he was in an “alterated” [sic] state and did not want anyone else to see him. [ 70 ] She also described starting to get dressed while Dr. Clottey was sitting at his desk. She said that she had been very angry that Dr. Clottey did not leave the room for this, but admitted that he was not facing her and never asked her to start getting dressed.

She also agreed that he was writing down information about tests for her to do. She started to get dressed of her own volition when he was doing this, without telling him what she was doing. She did not know how long this concluding part of the exam took, other than to say it was “too long.” Length of Examination [ 71 ] RS testified generally that the entire physical examination was very long, though her estimates were inconsistent. In cross-examination, she thought it was 4 or 5 times longer than previous times with him.

She also testified that she thought her first exam with him was 30 minutes, or maybe less; and that the June 2016 exam was more than an hour. Notably, she thought even the initial

interview at the start of the appointment was 4 times longer than usual; perhaps 10 minutes, as opposed to 2 or 3. She later said it did not even seem “natural or normal” that he took as long as he did to talk to her at the beginning of the exam. [ 72 ] She agreed she had earlier told the police that just the length of the exam was abusive, though she clarified that she really meant it was “too much.” She said she did not feel like it needed to be “all morning,” but also said that she was experiencing pain, which could make every minute feel very long.

Reporting and Termination of Relationship [ 73 ] RS testified that after the physical examination in question her mind was running, and she called her husband and a friend who did not answer, but then eventually talked to another friend and her husband. Her friend gave her information and support to call the College of Physicians and Surgeons, which she did. She then gave an interview to a College investigator at her home on June 30, 2016 (three days later).

She said she was thinking from her time as a psychologist in Brazil that if you did something wrong, they would take your licence, and that would be enough. [ 74 ] She gave an additional statement to the police on July 27, 2016. She said she needed some time to empower herself to talk to them and she kept going over and over the events in her mind. She also told herself that “one step” (meaning the College) would not be enough and she needed to do more.

She said the College investigator told her that the police had tools to investigate better, and that “if you want to make it harder, go to the police.” 3.2 Evidence of IF [ 75 ] IF is 45 years old. She is married and has worked for a financial institution for 20 years. Background with Dr. Clottey [ 76 ] IF began seeing Dr. Clottey as her family doctor sometime in late 2011 or early 2012, after she moved to the Oakville area. When confronted with her chart in cross-examination, which showed a first entry on July 2012, she agreed that sometime in 2012 was correct.

IF came to his clinic because she did some research and found that his clinic was accepting new patients, and ended up booking an appointment with him. She had previously had several other male and female family doctors. [ 77 ] IF’s evidence was that Dr. Clottey would perform an annual physical examination on her until she stopped seeing him in January 2017, and that she would otherwise see him often for medication refills, to obtain referrals to specialists, and for other medical issues that came up from time to time.

She estimated she would need to see him every 3 or 4 months, and about 20 times total over a 4.5 year period. [ 78 ] She agreed that these issues included glucose monitoring, hypertension, a neurological issue requiring an MRI and other tests, and some anxiety issues that occasionally caused panic attacks, for which she took Paxil and Clonazepam at night from time to time.

She also had a history of genital warts (condyloma) and had a procedure on her Bartholin’s gland on her vulva. [ 79 ] IF agreed in cross-examination that she wanted her doctor to monitor her closely, and that she was conscientious about her health, such that she wanted timely assessment and discussion of any medical problems. [ 80 ] IF testified in-Chief that in the normal course of her physical examinations with Dr. Clottey he would not have a chaperone or nurse, which was not concerning to her. She also remarked that Dr.

Clottey generally took longer for all his physical examinations than she had experienced with other physicians. Physical Examinations [ 81 ] IF testified generally about her experiences undergoing physical examinations with Dr. Clottey. Her evidence was that Dr. Clottey generally performed these examinations the same way, and she experienced the same thing, at each physical, save for one different experience she had with the breast exam that Dr. Clottey performed at the first physical exam she had with him. She agreed that she had full physicals 4 times with Dr.

Clottey, roughly one year apart, until her last visit with him in January 2017. [ 82 ] Aside from the specific issues she complained about, IF described Dr. Clottey in her evidence in-Chief as a good doctor whom she was happy with, and she agreed that he seemed thorough and conscientious. She also said that Dr. Clottey would always talk about and explain the next steps he would take in his physical exams before he did them, even though she could not remember specifics about what he said. History and Initial Assessments [ 83 ] In addition to her ongoing medical issues, IF was asked about Dr.

Clottey’s recording of specific medical issues in her chart. She agreed that she had treatment of a Bartholin’s gland cyst in her vaginal area, and that she had genital warts, both of which she would have wanted Dr. Clottey to know about. She also agreed that she wanted to continue to have a Pap test done with Dr. Clottey every year, which continued her past practice with other doctors. She thought this seemed sensible, and Dr. Clottey proceeded to do so with her annual physical exam.

Start of Examination [ 84 ] IF testified that for her physical examinations a nurse would show her into an exam room and give her a disposable gown to change into before Dr. Clottey entered the room. She recalled that he would take a history, and always examine her neck, blood pressure, and heart and lungs with a stethoscope, but thought that he never checked her eyes or ears. She also recalled that he would

consistently check her abdomen and her reflexes. Breast Examination [ 85 ] IF testified about the breast examinations that Dr. Clottey would perform as part of her annual physical exams. She agreed he would always talk about and explain the next steps he would perform in the exams, including the breast exams, as he was about to do them. She agreed he would always proceed in the order of the initial examinations followed by a breast exam, checking her organs on her belly, then a gynecological exam that included a Pap smear and internal exam. [ 86 ] For the breast exam, IF testified that Dr.

Clottey would ask her to lay down and he would examine one breast at a time. She agreed that she would have had to remove an arm from the gown to expose each breast. She recalled that her arm would be raised and bent at the elbow. She agreed Dr. Clottey’s examination method involved using the palmar surface of his fingers, working from the outside of the breast to the inside, to feel her tissue. She agreed that she understood Dr.

Clottey to be checking if she had any lumps, though did not specifically recall him asking her about a family history of breast cancer, if she had lumps, or if she had experienced discharge during these exams. That said, she agreed that she did not remember all the things he would say. [ 87 ] She did, however, complain about one occasion on the first breast exam she had with Dr.

Clottey during her first comprehensive physical on July 18, 2012, in which he made contact with her nipple which she described as “squeezing and pulling” using the thumb and index finger in a pinching motion, and pulling outwards away from her body. She recalled it being painful and it surprised her as it was unexpected. [ 88 ] She agreed that this occurred fairly quickly, and her description was based on what she felt as she did not visually see any part of his hand when he did this. She acknowledged that while palpating, Dr.

Clottey’s fingers could have come close to her nipple, and applied pressure on and around her areola, but she did not agree that what she felt could have been Dr. Clottey squeezing or applying pressure immediately underneath the nipple; she was sure it was directly on the nipple. She also described what Dr. Clottey did as a “pinching motion” with his thumb and index finger. [ 89 ] She was not sure how to reconcile what was described to her about Dr. Clottey’s practice with what she said she actually experienced.

She said that it had never happened before with other doctors and did not happen again in subsequent physicals and breast exams with Dr. Clottey [ 90 ] IF also testified that Dr. Clottey did not explain, before he did the maneuvre with his thumb and index finger on the first breast, why he was doing it, but that he did say he was “checking for liquid” right after he did it. He then proceeded to do the same exam and maneuvre on her other breast. She acknowledged generally knowing that fluid can come out of the nipple and can be a sign of something wrong, but disagreed that this was what Dr.

Clottey was doing or that he explained this to her. Her evidence was that she found this shocking, that it hurt, and that she was very uncomfortable, but also that it was something that she never experienced before. Like the vaginal exam, she agreed that she found this “a bit odd” at the time. Additionally, IF testified that she had previously described the breast exams generally, as she described, as fine and they did not make her uncomfortable. Abdominal Examination [ 91 ] IF testified that Dr. Clottey proceeded to do an abdominal check after the breast exam by feeling and pressing down on her belly.

She said it was very similar to other exams she had on her abdomen and she had no concerns. Vaginal Examination [ 92 ] IF expressly agreed that Dr. Clottey always did his vaginal examination the same way each time he performed one on her. In general, it started with a speculum and swabs, then a bimanual examination with 2 fingers inserted and his other hand on her abdomen. She underwent one of these examinations at each of the 4 physicals she agreed that she had with Dr. Clottey She said that Dr. Clottey would generally be positioned on a stool at the end of the exam table, with her feet on the table itself.

She testified that Dr. Clottey remained in this position, at her feet at the end of the table, while doing the internal examination. [ 93 ] IF testified that, aside from any clitoral contact, she had concerns with Dr. Clottey’s vaginal exam which included the length of the exam, including the Pap itself (which was longer than what she was used to). With respect to the length of the exam, she estimated that Dr.

Clottey took about twice as long as the other family doctors and gynecologists who had done internal examinations before. [ 94 ] She also complained about the contact with her clitoris which she described and which had not happened to her before. She said the contact between his thumb or digits and her clitoris happened on each of the bimanual exams he conducted on her. [ 95 ] She could not generally recall Dr.

Clottey saying anything to her while doing the internal examination, aside from telling her on two occasions that she had a small uterus. [ 96 ] With respect to the clitoral contact, it was her evidence that Dr. Clottey made this contact deliberately, and not incidentally, because she felt “constant pressure” and rubbing on the clitoris continuously throughout the whole vaginal exam. She was not sure initially what finger or part of it was touching the clitoris, but agreed that whatever part was touching her was also moving as he did his exam. She did not find it sexually stimulating. She also testified that Dr.

Clottey’s non-examining (left) hand was positioned on her lower abdomen during his bimanual exam, and did not testify about it moving down towards her introitus or vagina at all. [ 97 ] Her evidence was that she did not tell Dr. Clottey anything in terms of medical concerns that she felt necessitated this conduct. [ 98 ] In cross-examination, IF agreed that while she felt Dr. Clottey making contact with her clitoris, he was performing the

bimanual exam with what felt like his fingers inside her vagina, moving in different directions inside her, and probing for her ovaries and feeling her uterus, and moving to different depths inside her vagina. She agreed it was not a situation where his hand was “frozen” or staying still, while his thumb made contact with her clitoris. She could not specifically say whether the angle of his hand or thumb on her clitoris changed during the exams. [ 99 ] Moreover, she agreed that she did not find the contact with her clitoris sexually stimulating, nor did Dr.

Clottey ever make any sexual comments or exhibit any other signs of sexual stimulation or arousal. She did not observe his demeanour to change while doing these exams, and agreed he looked pretty calm. She said only in re-examination that she thought there was a sexual component to what Dr. Clottey was doing just from the fact that the contact was with her clitoris. [ 100 ] IF testified that she never said anything to Dr. Clottey regarding his method of performing vaginal examinations or what she experienced, such as “please stop,” or to alert him that she felt his thumb on her clitoris.

She also said that she did not ask for a referral elsewhere for her vaginal exams. She agreed that she could have said something at some point, but that it was a “very unusual situation” and that she trusted her doctor and did not want to say anything because she felt vulnerable and ashamed. She agreed she would not generally have qualms about expressing pain or discomfort to other medical professionals, though in re-examination she attempted to clarify by saying that Dr.

Clottey did a “movement that was not welcome” but not something that was so painful as to cause her to scream out. [ 101 ] Her evidence was that at her last vaginal examination with Dr. Clottey when she experienced this clitoral touching, there was something at the “tip of her tongue” but she did not end up saying anything. She explained that she thought it would be a strange or bizarre dynamic to have said something to Dr. Clottey about touching her clitoris as she went over it in her mind, so she elected not to say anything. [ 102 ] IF agreed that she continued to go back to Dr.

Clottey for annual exams, which she understood would include vaginal exams, multiple times. She explained that she would put the thought of the vaginal exams “in a cubby hole,” or at the back of her mind, until it was time to return for another exam. She felt that whatever discomfort the vaginal exams caused, it was not bad enough to stop going to see Dr. Clottey who she was familiar with and managed her other health issues. Indeed, she testified in-Chief that Dr.

Clottey was a good doctor who sent her to the right specialists and made the right referrals, and she did not want to start over. [ 103 ] IF also agreed that the nature of the touching she experienced during the vaginal exams did not change, or get worse, or evolve, during the 4.5 years she saw Dr. Clottey. Follow-Up Examination and Pap Test [ 104 ] IF testified that the last internal exam that she had with Dr. Clottey was in 2016 and was not part of an annual physical exam. She remembered that it was a recall visit for a Pap test result which showed something to be out of balance.

When taken to her chart, she agreed that she had a “standalone” Pap test on June 16, 2015, and that she had a full physical exam with a bimanual on September 15, 2015. She was initially conflating these visits, as well as a recall appointment she had in November 2014 to discuss the results of her previous Pap test in September 2014. [ 105 ] In re-examination, IF clarified that her own view was that she did not think a repeat Pap test was necessary after her September 2014 Pap results which showed endometrial cells.

She said that she received a letter from the Ontario government with her results and then returned to Dr. Clottey’s office for the follow-up attendance. She had testified that she looked up the results online once she got that letter, and understood that her pH balance might change as you age and it was nothing to be concerned about. [ 106 ] She testified that she nevertheless returned to Dr. Clottey’s office, and that Dr. Clottey suggested another exam which she agreed to because she had already come back to his office.

She agreed she was content to have the test done again, despite it not being her own wish initially. She was not alarmed about this and acknowledged there could have been a mutual decision to do another test; she agreed it was reasonable to do a repeat given that she was back in the office. She did not remember details of the discussion she had with Dr. Clottey at this recall visit. [ 107 ] IF could not recall further discussions about what was said at this visit. She acknowledged that there may have been a discussion with Dr. Clottey about risk factors for endometrial cancer, though she could not remember one.

She also acknowledged that at the time she had a weight gain issue, hypertension, and she has also never had children. [ 108 ] Her evidence was that Dr. Clottey did not clarify or explain that the result required another internal examination to be done. Though she was confused about what happened on each exam, she thought a bimanual was done after she was recalled because she again felt the contact with her clitoris. She did understand that the repeat vaginal exam could have been in relation to the Pap result as well, but that the result only came from the Pap test, not the internal exam.

It was clear that the contact she complained about occurred during a bimanual exam, which would have been part of the comprehensive annual exam in September 2015 and not the Pap test that occurred in June 2015. [ 109 ] IF testified that by the time of this examination her “tolerance” for what Dr. Clottey was doing had diminished and she began seriously considering telling someone what he was doing. Reporting and Termination of Relationship [ 110 ] IF said that she told her husband about what she experienced with Dr.

Clottey after her first exam with him and again later on, and then to a friend later in 2015 or 2016. She did not make any formal complaint to anybody before reading a news release in November 2016. She remembers the release as referring specifically to criminal sexual assault charges, and she found this shocking and upsetting. It was only after reading the release that she decided to contact police. [ 111 ] She ultimately gave a statement to Detective Clayton on January 13, 2017. Prior to this, in September 2016, she said she

became aware that Dr. Clottey had restrictions on his practice because her husband attended his office and saw signs saying he needed to be chaperoned while having exams or seeing him. She said this made her uncomfortable, but that she put it aside, though she said she began thinking that she may not be the only one who experienced something and that it “validated” what she experienced.

It was not until she decided to Google him in November that she saw that he had been charged with sexual assault, which she said made her feel upset. [ 112 ] She said she debated until January whether to come forward, and it was not until she got a call from Dr. Clottey’s office to follow-up on a referral to a nutritionist that something “went off” and she decided to contact police. [ 113 ] IF testified that she did go back in to Dr. Clottey’s office after meeting with Detective Clayton.

She went into his clinic to see a nutritionist and also asked the front desk for a refill of all her medications for a year, as she would be looking for another doctor. She recalled that the front desk person went back to speak to someone and then advised her that she would need to meet with Dr. Clottey in order to do so. She said she felt like she did not have a choice, that she proceeded to meet with him, that it was very brief, and that he asked if something was wrong. She remembered saying she did not want to discuss it, and that he did indeed give her the prescriptions she asked for and wished her good luck.

She also remembers a chaperone being present, and that she remarked to the chaperone that she was being made to see someone (Dr. Clottey) that she did not want to see. [ 114 ] Notably, she agreed that reading the press release made her feel different about her experiences with Dr. Clottey than she previously had, but also testified that it “reinforced” how she was feeling. She admitted in cross-examination that it made her change her mind about reporting Dr. Clottey to the College of Physicians and Surgeons and the police. [ 115 ] She acknowledged that prior to that time she had described Dr.

Clottey’s gynecological exams as “unusual” or “a bit odd”, and attempted to explain that they had made her uncomfortable. Her evidence was now that the contact with her clitoris caused her to feel violated, distraught and in shock. She attempted to clarify this by saying that the physical feeling of what Dr. Clottey did was odd at the time, but that when she went back and understood that it should not happen with a gynecological exam, based on her own history, speaking with friends, and the news about Dr.

Clottey in the press, that was when she said she felt “violated.” 3.3 Evidence of GO [ 116 ] GO is 34 years old. She has worked as marketing manager for 11 years. She had worked for RIM (Blackberry) as a student in 2005, in public relations and marketing. Incidentally, she said she had owned Blackberry devices since that time. [ 117 ] GO testified in her examination in-Chief and cross-examination that she wrote emails to herself about her physical appointment with Dr. Clottey 2 to 3 days after it occurred on April 16, 2013.

She said she reviewed these emails before coming to Court to testify. [ 118 ] GO became a patient of Dr. Clottey at his clinic in Oakville towards the end of 2012, and stopped being his patient in 2013. She worked on the same street as his clinic. She went in one day and met with a female doctor. When she asked the front desk about new patients, she was told a male doctor was available, and she agreed to meet with him. This doctor was Dr. Clottey. Initial Meeting [ 119 ] She had an initial meeting or “meet and greet.” GO remembers that at that meeting they discussed her eczema, and that Dr.

Clottey discussed various creams with her. [ 120 ] She perceived Dr. Clottey to be very professional, and that he took his time to explain options to her. She agreed that she was finding out a bit about him and was comfortable with him. She agreed to make him her family doctor, and could not recall anything else about this appointment, which she thought was 5 to 10 minutes. [ 121 ] She filled out some paperwork at the front desk of the clinic to make Dr.

Clottey her family doctor and took steps to make an appointment to come back for a Pap and physical with him, though she could not remember exactly how this occurred. She testified that it had been longer than a year, and closer to two, since she had a full physical, and agreed that she was due for one. She testified that these physicals included breast examinations. [ 122 ] GO said that she cancelled either one or two appointments that she had booked with Dr. Clottey, starting in January 2013, because she does not like Paps, and got nervous at the idea of a male doctor.

She agreed it took months for her to eventually see Dr. Clottey. She had only had a male doctor as a child and never had one perform a physical or Pap on her. She agreed in cross-examination that she had been overthinking things, and really all those types of sensitive examinations made her uncomfortable regardless of gender of the physician, although a male physician was an “element” of her nervousness. [ 123 ] She thought that perhaps she just needed more time to calm her nerves, and eventually did go through with an appointment with Dr.

Clottey She said she had no other concerns at the time she booked this appointment. Physical Examination [ 124 ] GO attended Dr. Clottey’s office for an appointment on April 16, 2013. [ 125 ] GO specifically recalled arriving at the clinic at 10:53 a.m. that day to sort out some allergy shots she needed at the front desk. She had met with an allergist and a dermatologist before her physical appointment, although she could not remember if Dr. Clottey or the female doctor at the clinic gave her that referral.

There was initially some confusion about whether the clinic had forms for her allergy shots, but the receptionist eventually told her that the shots could be done after the physical. [ 126 ] GO testified that a nurse then brought her into the exam room where she dropped off her things. She was then taken into

another room to be weighed and measured. She was then taken back to the exam room where she changed into a paper gown and sat on a chair to wait. She recalled sorting through some documents to renew her Irish passport, which she thought Dr. Clottey could sign for her as a physician. [ 127 ] She specifically recalls Dr. Clottey coming into the exam room at 11:10 a.m. Chaperone/Third Party [ 128 ] When Dr.

Clottey entered the exam room, GO said he was alone and she was never offered the presence of a third party. [ 129 ] In cross-examination, GO agreed that it did not bother her at the time that there was no third party present, and she did not know it was an option, nor was she expecting one, and she expected that everything would go smoothly. She agreed she probably looked up later whether someone else should be in the room, and that when she spoke with the College of Physicians and Surgeons on April 22, 2013, they clarified for her that it was a guideline, not a rule.

Initial Discussion [ 130 ] GO recalled that Dr. Clottey then came into the room and spent a fair bit of time (about 25 minutes) talking about her history and medical concerns. She did not recall specific details of the discussion, what she mentioned to him or what he asked of her, but she did agree that Dr. Clottey was writing things down and that they covered a lot of areas in regards to her health and history. She did not think she told Dr. Clottey that there was anything specific she wanted him to examine. [ 131 ] She also remembered discussing a concerning mole on her neck, and that Dr.

Clottey offered to take a photograph of it with her Blackberry, using a light. She thought this was so she could compare if it had changed, later on. She also remembered Dr. Clottey giving her an opinion about an antibiotic for her allergies which she agreed with. Start of Examination [ 132 ] GO testified that Dr. Clottey then started the physical examination by taking her blood pressure and examining her head, neck, ears, eyes and throat as most doctors would. She then described him moving on to a lung examination.

She agreed she was sitting up on the exam table up to this point. [ 133 ] She recalled her white paper gown, which was “crinkly,” as being open at the back; she did not tie anything up. She remembered Dr. Clottey then examining her with a stethoscope, with the head of the stethoscope against her bare skin (not the gown), moving it over the lung fields on her chest. She understood why Dr. Clottey would want to examine directly on the skin as opposed to over a gown or shirt. She testified that she found it uncomfortable and strange, and that it “didn’t seem quite right” that Dr.

Clottey was examining on or near her breasts or breast area as he did this. [ 134 ] In cross-examination, she agreed her breast tissue lies over her lung fields. She also agreed the top of her gown was up near her neck area and would have needed to be moved down somewhat to place the stethoscope directly on her skin to examine her lungs. She remembered Dr. Clottey doing this movement himself and that one breast became fully exposed. She disagreed that both breasts could have been exposed; she could not recall if her other breast became partially exposed. [ 135 ] GO also said that her breast became exposed as Dr.

Clottey was doing this examination, that Dr. Clottey was “staring” at it and that this made her uncomfortable. However, she agreed that although she thought this examination was strange and “weird and uncomfortable,” that since Dr. Clottey was a doctor, it was probably okay. [ 136 ] She recalled Dr. Clottey then moving to examine her back with the stethoscope. He was asking her to take deep breaths throughout. Breast Examination [ 137 ] GO then testified that Dr. Clottey asked her to lie down on the exam table, with her gown still on, to do a breast exam. She agreed that Dr.

Clottey asked her to remove one arm from the gown so he could examine her breast, and that this was done one at a time. She believed everything started off in a normal way. She also recalled that Dr. Clottey told her before conducting the breast exam that he would be doing that examination. [ 138 ] She agreed that she could not see everything Dr. Clottey’s hands were doing during the exam since she was lying flat on her back. [ 139 ] GO could not remember whether Dr. Clottey asked her to put her arm up over or behind her head at the start of the exam.

She did remember him starting to pat or touch with the palmar surface of his fingers in a circular motion around the breast tissue. She could not remember which direction he went in – outside-in or inside-out. She did agree, however, that this part of the exam was similar to what other doctors had done. [ 140 ] She testified that Dr. Clottey then, using his index and middle finger bent at the knuckles, squeezed her nipple and twisted it a quarter turn, or 90 degrees, then “yanked up” with force.

In cross-examination, she said she watched his hand come down to where her nipple was, was able to see the movement of his arm, then saw him “pulling up” at the end of this. However, she agreed that she could not see his hand on the nipple when she experienced what she described; she could feel it, as well as the pain that was associated with what Dr. Clottey did. She said he repeated the whole process on the other breast. [ 141 ] She did not agree or recall that Dr.

Clottey could have used his index finger and thumb for this maneuvre or that he could have been touching the areola around the nipple with his fingers. She did admit that she could not recall if she actually saw his hand

doing what she described. What she did see was his hand rotating 90 degrees, then moving up. However, she did remember that she “jumped” or flinched when it happened, as it was quite painful, and she was not expecting it. That said, she testified that she did not say anything to Dr. Clottey about this when it happened or at all. [ 142 ] GO testified that Dr. Clottey repeated the whole examination as she described, with nothing different on the other breast, which was just as painful or uncomfortable. She does not think Dr.

Clottey said anything throughout this exam except that after he did the maneuvre on her first nipple, he said he was “just checking for discharge.” She agreed she had never had a doctor check for nipple discharge before, she had not said she had any problems with her nipples or with discharge, and that she thought what Dr. Clottey did was improper. She also agreed that the nipple area is the most sensitive part of her breast. [ 143 ] She did say this part of the exam was completely different than what she had ever experienced before with doctors.

She agreed, however, that it took a normal amount of time and that it was normal that he covered the whole breast area with his fingertips while examining. [ 144 ] GO agreed in cross-examination that while she thought Dr. Clottey may have done something he should not have done, one of the things she thought at this time was that Dr. Clottey might be really thorough, that it may just be how he does his exam, and she trusted that he was a doctor who knew what he was doing and just doing what needed to be done. She acknowledged that she was not overly concerned about the exam at that point of it.

In re-examination, she explained that while she had never had a doctor grab or twist her nipples, if that was the only thing she thought was wrong, she could have “talked herself out of it”. Abdominal Exam [ 145 ] GO testified that while she remained lying down, Dr. Clottey proceeded to press on her abdomen with his hands, taking a fair bit of time to press all over the abdomen. She said he told her at this point that he was checking for “swollen organs.” She said Dr.

Clottey put another sheet or drape over the lower part of her body during this part of the exam which remained during the vaginal exam that followed. Vaginal & Pelvic Examination [ 146 ] GO’s evidence was that after the abdominal exam, Dr. Clottey went on to do a vaginal exam. She agreed that she knew and understood that she would be having a vaginal exam, and she moved down to the end of the table when asked. GO agreed that Dr. Clottey would “narrate” what he was doing while he was conducting the vaginal examination. She recalled Dr.

Clottey saying that he would take three swabs, and had no reason to believe he did not take them. She also recalled that he said he was going to enter his fingers into her vagina, showed her his lubricated fingers, and that he asked permission, which she gave. [ 147 ] GO recalled Dr. Clottey turning on a light at the end of the exam table and telling her to relax and take deep breaths. She thought her feet were in stirrups at this point. She agreed she was tense at this time, but only because those types of exams were always tense and unpleasant, with any doctor. [ 148 ] She recalled Dr.

Clottey then noting that someone had forgotten to give him the swabs for the tests he was to do, so he left the room. She agreed that Dr. Clottey was gone for only a matter of minutes. She recalled the door being left slightly open, perhaps a half a foot. She said she was worried when he left the room because a nurse or other patient might walk in thinking it was an empty room, and she was left exposed. She agreed that Dr.

Clottey had put a sheet over her lower half (though she could not feel it to know how much it covered). [ 149 ] In cross-examination, she acknowledged that this situation caused her some panic, despite previously disagreeing with that characterization. She did not think that she showed any outward signs of panic, but agreed that Dr. Clottey asked her to relax when he re- entered the room. [ 150 ] She testified she could not see Dr. Clottey or his face at that point because of the positioning of the sheet and her legs. She testified she then heard what she thought was Dr.

Clottey using a Blackberry to take a photograph. She described the sound for the Court, and noted that it was a distinctive and loud sound, which she was sure was a Blackberry camera as she was very familiar with Blackberry devices having owned them since 2005. She later said it had “instantly registered” to her that it was a Blackberry. She testified that she listened intently after she heard the sound to determine whether it could have been any of Dr. Clottey’s instruments, but nothing else sounded like the Blackberry camera noise she perceived.

To her, the noise was “loud and clear.” After she heard the camera sound, she said that she froze, turned beet red, and was in a state of shock. She said all she could think about after that was the photograph. She said she panicked and could only think about what he might do with the photo, and also acknowledged that a friend had talked to her about the possibility that he might have been sending the photo to others or posting it online. [ 151 ] She did remember Dr.

Clottey inserting a speculum, taking the swabs, describing what she might feel, and making some small talk. [ 152 ] At this point, GO said she believed that Dr. Clottey had just taken a photograph of her genitalia and did not converse with him, perhaps just giving short answers. She described being frozen and in shock as a result. [ 153 ] She does remember Dr. Clottey removing the speculum from her vagina and proceeding with a manual internal exam after explaining and obtaining consent, as she has described. She recalled the gel on Dr. Clottey’s fingers being cold and remarking upon it.

She recalled him first examining her left and right ovaries in line with what she experienced at other examinations, which was not concerning. [ 154 ] She then recalls Dr. Clottey explaining that he would examine her vaginal walls and that he was checking for “swollen organs.” She recalled him positioning himself to be standing at her right side for this part of the exam. She said usually other doctors finish the internal exam after checking the ovaries, so she already thought this part of the examination with the checking of the vaginal

walls was really strange. She described him checking the right vaginal wall closest to himself, then the left, lower and upper vaginal walls, giving some indication to her by pointing with his non-examining hand in the direction of where he would be moving, to each wall in succession. She agreed, based upon the fingers Dr. Clottey showed her, that his thumb would have been upright at a 90-degree angle to his fingers during this exam. [ 155 ] It was during this part of the examination, while Dr. Clottey’s fingers were moving around inside of her vagina, that GO testified Dr.

Clottey’s thumb was rubbing on her clitoris, and also that the contact was “consistent” and “continuous.” She agreed that she first thought that Dr. Clottey may not have realized that his thumb was on her clitoris and that he was doing what she felt, but she then explained that she was “in denial” and trying to make up excuses when talking to a friend. When she perceived the contact with her clitoris persisting after Dr. Clottey examined the right vaginal wall, she no longer thought it was an accident. Notably, she said she felt rubbing on her clitoris as Dr.

Clottey’s non-examining hand was pointing upwards, indicating he was checking the upper (anterior) vaginal wall. [ 156 ] GO acknowledged that she could not see what Dr. Clottey was doing during this part of the exam, and only felt it. She also testified that she did not know for sure which part of his hand was on her clitoris the whole time and thought at one point he may have flipped his hand around so that it was his knuckle. She could not specifically recall what movements or angles his hands were using, but did remember the contact being right on the clitoris.

She said at that point she was also concerned the examination was taking too long and was longer than what she previously experienced. [ 157 ] She also remembers Dr. Clottey saying he needed to check her cervix, which she found odd, as she thought he would have visualized it when doing the speculum portion of the exam; she remembers his fingers going deeper at that point. [ 158 ] She testified that nothing like this part of the examination had ever happened to her before in a physical, and that her head was racing and she felt like puking.

She also described feeling like she was becoming involuntarily aroused. [ 159 ] GO then described Dr. Clottey moving on to examine her external genitalia. He asked her if she had a history of genital warts, which concerned her, and which she denied. She felt he had no reason to be checking for them, as she had not raised this concern to him. She did agree that she later asked Dr. Clottey at the end of the examination if he could do a check for sexually transmitted diseases, and despite not initially recalling, she acknowledged that she would have previously advised Dr.

Clottey that she had been given the Gardasil vaccine which i

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