His Majesty the King Appellant v. Sylvester Ukabam, 2024 SKCA 15

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3578 Citation: R v Ukabam , 2024 SKCA 15 Date: 2024-02-16 Between: His Majesty the King Appellant And Sylvester Ukabam Respondent Before: Richards C.J.S., Schwann and Barrington-Foote JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Barrington-Foote On appeal from: 2022 SKQB 128 , Regina Appeal heard: June 5, 2023 Counsel: Grace Hession David for the Appellant Aaron Fox, K.C., and Matthew Schmeling for the Respondent Schwann J.A. I. INTRODUCTION [ 1 ] Sylvester Ukabam, a gastroenterologist, was charged with seven counts of sexual assault against five different women. The charges arose out of actions of an allegedly sexual nature performed by him in his professional capacity during various medical examinations or procedures. Following a lengthy trial before a Court of Queen’s Bench judge, Dr.

Ukabam was acquitted of all charges: R v Ukabam , 2022 SKQB 128 [ Trial Decision ]. [ 2 ] In its appeal from acquittal, the Crown argues the trial judge made three fundamental errors that individually or collectively had an impact on the verdict. First, it contends the trial judge’s fact-finding process was flawed when he instructed himself that he was not permitted to use common sense or take judicial notice of the idea that a woman can differentiate between the sensation of vaginal and anal penetration.

The second error is said to reside in the trial judge’s similar fact evidence analysis – most notably, his alleged failure to consider the probative value of the evidence and that it did not have to be free of reliability concerns in order for it to be admitted. In its third line of argument, the Crown asserts the trial judge erred in admitting and relying on expert evidence about memory formation and retention. [ 3 ] Dr. Ukabam claims the grounds of appeal mischaracterize the trial judge’s analysis and ascribe reasoning to the Trial Decision not contained in the decision.

At its most basic level, he says the Crown’s appeal is premised on the assertion that the trial judge erred by failing to accept the complainants’ evidence. According to Dr. Ukabam, the Crown’s appeal must fail because the trial judge’s analysis turned on fundamental principles of criminal law: the requirement for proof beyond a reasonable doubt and the Crown’s inability to prove its case. [ 4 ] As I discuss below, while I find the trial judge erred in his handling of the Crown’s application to admit similar fact evidence, I am not persuaded that these errors had a material bearing on acquittal.

Accordingly, I conclude that its appeal must be dismissed. II. BACKGROUND AND MATERIAL EVIDENCE [ 5 ] Dr. Ukabam, now retired, was a practicing physician with a specialty in gastroenterology. Beginning in 2017, five of his former patients came forward with allegations that he had sexually assaulted them while conducting various medical examinations or diagnostic procedures. [ 6 ] At trial, four of the five complainants testified that Dr. Ukabam had digitally penetrated their vaginas, and the fifth described an odd breast examination. I provide the following brief

summary of their testimony: (

a) J.E. became a patient of Dr. Ukabam in 2009 or early 2010 and was diagnosed with celiac disease. She had regular office appointments, had undergone a gastroscopy, and considered him “a man of few words” ( Trial Decision at para 27). Because she had a family history of colon cancer, on May 29, 2013, she underwent a colonoscopy under conscious sedation as an outpatient at a hospital.

Although “she describes her memory as foggy”, she distinctly described “a sensation of immense pain in her abdomen and a sensation offingers jamming up in her vagina … [R]otating and flexing and digging” (at para 27). A few days after the colonoscopy, J.E. experiencedunexpected tenderness in her perineum during intercourse. She did not confront Dr. Ukabam about the events as she had a high regard forhim and continued to be a patient of his until July of 2018. An upcoming scheduled colonoscopy induced feelings of panic in her, and shedecided to cancel the appointment. While searching for Dr.

Ukabam’s office number, she saw a news report about sexual allegationsagainst him and cancelled her appointment. J.E. contacted a patient advocacy group and was referred to the College of Physicians andSurgeons of Saskatchewan [College] to make a report. On September 27, 2018, the College took her complaint and suggested she contactthe police. The next day, she gave a statement to the police. (

b) A.W. became a patient of Dr. Ukabam in March of 2012. She was diagnosed with ulcerative colitis. She disclosed threealleged incidents of sexual touching during rectal exams at his office. In the first two instances, she described feeling pressure at theopening of her vagina and brief vaginal penetration. She characterized the third incident as involving more prolonged touching. After eachincident, A.W. felt uncomfortable, shocked and upset but did not initially report her experience due to difficulties in finding anothergastroenterologist.

She eventually reported the alleged incidents after seeing news about allegations against Dr. Ukabam. A.W. provided apolice statement in 2018, acknowledging she always knew these were assaults even before learning about the other complainants and that,“if she had said something a long time ago, it would not have happened to others” (at para 27). (

c) K.B. became a patient of Dr. Ukabam in 2004 and was diagnosed with Crohn’s colitis. She attended Dr. Ukabam’s office onmultiple occasions over the years and had various medical procedures performed by him. K.B. did not report feeling any vaginal touchingduring these exams or procedures. However, in a follow-up appointment on April 24, 2017, Dr. Ukabam instructed her to undress for aphysical examination.

She does not remember being given a reason for the examination, which she was not expecting and thought itseemed out of the ordinary, but she said she followed instructions because he had been her doctor of 13 years. K.B. testified thatDr. Ukabam seemed to block the door with a chair, and then undertook a vaginal examination. Right after the examination, sheremembered feeling shocked and violated, having trusted Dr. Ukabam due to their long-standing, doctor–patient relationship. K.B.contacted a friend and told her what had happened.

On May 1, 2017, K.B. reported the incident to the College and also provided astatement to the police. There is a civil lawsuit pending in this matter. (

d) L.B. was referred to Dr. Ukabam in 2006 for Crohn’s disease, ankylosing spondylitis and endometriosis. She had numerousappointments with him over the years, including physical examinations and procedures. She could not recall the date of the alleged 2013assault but did remember that on that day she was asked to disrobe for an examination. Dr. Ukabam and a medical student were present forthe examination, and L.B. was told there was going to be a breast exam. She did not ask the medical reason needed for the exam anddescribed herself as having been frozen.

She remembers making eye contact with the medical student “and that he had a look on his facethat told her something was not right” (at para 27). She continued as a patient “because she needed refills” (at para 27) and did not reportthe incident. But, upon reading an

article about Dr. Ukabam, she provided a statement to the police in December of 2018. She did notmake a formal complaint to the College. (

e) D.M. began seeing Dr. Ukabam in 2002 for Crohn’s disease, attending multiple appointments and procedures. During herinitial interactions with him, she reported no improprieties. However, in the last two years of treatment, she became less satisfied due toDr. Ukabam engaging in what she considered overly personal conversations and comments. On June 23, 2014, she attended anappointment in considerable pain, where Dr. Ukabam, along with an intern, conducted what she described as an unexpected andinappropriate vaginal examination without proper explanation or consent. This left her feeling vulnerable and shocked.

After the incident,he asked for a hug, which she found unsettling and then gave her a referral card for her son. D.M. reported the incident to her familydoctor, who advised her to report it to the College, which she did in September of 2014. The College’s response initially suggested it washer word against his. In late 2017 or early 2018, she was informed by the police of another complaint regarding Dr. Ukabam. [7] A separate charge of sexual assault was laid respecting each of these women, and in the case of one of them (A.W.), therewere two additional charges. [8] Dr. Ukabam testified in his own defence.

He said that he had little memory of the various office visits and proceduresperformed on the complainants and almost exclusively relied on what he had recorded in his medical records. Dr. Ukabam testified that heperformed rectal examinations or procedures on the complainants and that those examinations entailed contact around the perineal area,which may have led the women to have misinterpreted the sensations as being vaginal penetration. Dr. Ukabam pointedly denied havinginserted his fingers into their vaginas or intentionally touching the breasts of L.B. in a sexual manner.

He maintained that he did nothinginappropriate and that at all times had the consent of the patients to perform the procedures and examinations. III. THE TRIAL JUDGE’S REASONS [9] The trial judge rendered a thorough decision. He began with a self-instruction on certain fundamental legal principles, such asthe presumption of innocence, the concept of reasonable doubt (including the application of R v W.(D.), (SCC), [1991] 1SCR 742), and the elements of the offence of sexual assault.

He summarized the testimony of each of the trial witnesses, beginning withthe complainants. [10] The trial judge then turned to the expert opinion evidence of Barry Lumb, a qualified gastroenterologist, who had been calledas a witness by the Crown. Following a voir dire, the trial judge qualified Dr.

Lumb to express an opinion “in the medical practice ofgastroenterology with specific reference to diagnosis, patient examinations, endoscopic procedures including colonoscopy, treatments,patient care, and professional standards and responsibilities appropriate to the practice of gastroenterology” (R v Ukabam, 2022 SKQB 20at para 60). [11] The trial judge accepted Dr.

Lumb’s opinion that “there would have been no valid medical reason for a gastroenterologist toinsert his fingers into the vaginas of those complainants who alleged he did so” or “for a gastroenterologist to conduct a breast exam of thepatient L.B.” (Trial Decision at paras 36 and 37). The trial judge allowed Dr. Lumb to testify as to whether the touching that wasidentified by the complainants was done for a proper or valid medical purpose.

[ 12 ] The trial judge summarized Dr. Lumb’s opinion; the key points of which are as follows (at para 32): (

a) in doing a rectal exam, the procedure starts “with the examining finger behind the anus between the buttock and being advanced down from back to front towards the anal canal. … [T]he examining finger should sweep around a full 360 degrees”; (b) “the hand of the doctor could press against the vagina while conducting a rectal examination”; (c) “the tube of the vagina runs parallel to the tube of the colon and, after a few inches, the membranes separating the two are extremely thin”; (

d) while a woman could “feel pain in the colon during a rectal exam … a woman would not feel pain in the vagina as there are no nerve endings for pain in the vagina”; (e) “if the colon wall was being pushed into the vaginal wall, thus stretching it, either by a finger or by a bowing of a scope, a woman would feel the pressure in the vagina”; and (f) “when conducting a rectal examination, you can palpate the cervix from inside the rectum”. [ 13 ] Dr. Ukabam took no issue with Dr. Lumb’s opinion. [ 14 ] Dr.

Ukabam called Steven Richardson to provide expert opinion evidence on memory and the effects of drugs on memory. The substance of Dr. Richardson’s testimony is discussed below. [ 15 ] Before turning to the analysis part of his decision, the trial judge addressed what he referred to as a significant evidentiary ruling. This related to the question of whether the common sense view that “a conscious female person would be able to accurately sense vaginal penetration” could, on its own, override or trump “other possible conclusions that can reasonably flow from the evidence” (at para 54).

Following R v Kruk , 2022 BCCA 18 , leave to appeal to SCC granted, 40095 (18 May 2023) [ Kruk-CA ], he found it significant that the Crown had not adduced independent evidence about the reliability of those allegations (of having felt vaginal intrusions) that was capable of excluding the possibility that the complainants may have misinterpreted the sensations they felt from the rectal exam. [ 16 ] The trial judge undertook a very detailed assessment of the credibility and reliability of each of the complainants. In

summary terms, and based on the evidence as a whole, other than the similar fact evidence that I address below, he found as follows: (

a) J.E. – “I am satisfied by the evidence that in all probability Dr. Ukabam did not insert his fingers into J.E.’s vagina as she believes he did. Thus, I necessarily have to conclude that the probability is that J.E. misinterpreted either the rectal exam or the colonoscopy as involving finger intrusions into her vagina” ( Trial Decision at para 66). (

b) A.W. – “inconsistency is but one part of the overall details which lead to my conclusion that her evidence on this incident is, overall, unreliable. My conclusion with respect to the unreliability of A.W.’s evidence on the third incident assists in my conclusion that her evidence with respect to the other incidents is also unreliable” (at para 98). (

c) K.B. – “The unreliability of her perceptions and recollections is demonstrated by K.B.’s evidence”, and “Given that I am unable to conclude the evidence of K.B. to the effect that Dr. Ukabam placed a finger in her vagina during a physical examination … is reliable, I must necessarily, on a stand-alone analysis, come to the conclusion that the Crown has not proven … that Dr. Ukabam sexually assaulted K.B. as charged” (at paras 117 and 118). (

d) L.B. – Dr. Ukabam’s accent “contributed to L.B. misunderstanding chest for breast, notwithstanding L.B.’s insistence that she did not misunderstand. The evidence as a whole leads me to the conclusion that what Dr. Ukabam was doing was utilizing palpitation or pressure of the chest looking for musculoskeletal tenderness that might explain the chest pains”, and “her evidence that a student was in the exam room is not reliable” (at paras 130 and 131). (

e) D.M. – “I have come to the conclusion that D.M.’s evidence is not sufficiently reliable for me to conclude that Dr. Ukabam placed a finger in the vagina of D.M.” (at para 140). [ 17 ] Next, the trial judge turned to the Crown’s application to have the evidence of each of the complainants admitted as similar fact evidence and applied to all of the charges. The details of that ruling and the trial judge’s reasoning in dismissing it are addressed below. [ 18 ] Those matters resolved, the trial judge undertook a W.(D.) analysis. Although he could find no reason grounded in the evidence or logic to disbelieve Dr.

Ukabam, neither was he able to find himself able to believe Dr. Ukabam. He concluded that J.E. and L.B. were both mistaken in their perceptions as to what had happened, and in the case of the other three complainants, he found “a reasonable possibility that, for whatever reason, they were mistaken in what they perceived” ( Trial Decision at para 166).

Given the concerns expressed by the trial judge earlier in his reasons about the reliability of the complainants’ respective testimony, and after considering the totality of the evidence, he determined that the Crown had not proven the charges beyond a reasonable doubt: “Stated at its most basic level, proof beyond a reasonable doubt requires me to be sure on each of the charges. For the reasons I have given, I am not satisfied of Dr. Ukabam’s guilt beyond a reasonable doubt” (at para 167). IV. ISSUES ON APPEAL [ 19 ] The Crown’s appeal is grounded in the following three, main issues: (

a) Did the trial judge err in his fact-finding approach by relying on stereotypical reasoning? (

b) Did the trial judge err in failing to admit similar fact evidence?

(

c) Did the trial judge err in permitting Dr. Richardson to provide expert opinion evidence on memory reconsolidation? V. THE STANDARD OF REVIEW [20] This is a Crown appeal from acquittal pursuant to s. 676(1)(

a) of the Criminal Code and is limited to questions of law alone.This means that an allegation of error “must be traced to a question of law” and not to a question of fact (R v Chung, 2020 SCC 8 atpara 10, [2020] 1 SCR 405 [Chung-SCC]). Errors of law are reviewed by an appellate court on the correctness standard: Housen vNikolaisen, 2002 SCC 33 at para 10, [2002] 2 SCR 235. It is an error of law for a trial judge to “make a finding of fact for which there isno supporting evidence” (R v J.M.H., 2011 SCC 45 at para 25, [2011] 3 SCR 197). [21] Credibility and reliability findings involve questions of fact, not law.

As such, “assessments of credibility are subject to a highlydeferential standard of review” (R v Wolff, 2019 SKCA 103 at para 40, 380 CCC (3d) 223). However, reliance on myths, stereotypes orunfounded inferences to ground an assessment of credibility or reliability is an error of law. This point was most recently made in R vMurillo, 2023 SKCA 78 at paras 35–36, 89 CR (7th) 129, where the Court found that such an error had been made in assessing thecredibility of the accused and the complainant.

In R v Adebogun, 2021 SKCA 136, [2022] 1 WWR 187 [Adebogun], Kalmakoff J.A.summarized this principle as follows: [23] It is an error of law for a fact-finder to rely on myths, stereotypes and unfounded inferences to ground credibility assessments,regardless of whether the witness in question is the complainant or the accused, and regardless of whether such reliance is applied toundermine or support the witness’s evidence (R v Greif, 2021 BCCA 187 at para 61 [Greif]; R v J.L., 2018 ONCA 756 at paras 46–47,143 OR (3d) 170; R v Paulos, 2018 ABCA 433 at para 34, 79 Alta LR (6th) 33 [Paulos]; R v Pastro, 2021 BCCA 149 at paras 50–52, 71CR (7th) 296 [Pastro]). [22] An allegation that a trial judge has erred in this fashion is, accordingly, an allegation that they have erred in law and isreviewable on the correctness standard. [23] Generally speaking, the admissibility of evidence is considered a question of law and is, therefore, reviewed on appeal on thestandard of correctness.

This includes the question of whether the trial judge applied the proper legal test to decide the evidentiary issue.However, a determination of the admissibility of similar fact evidence turns, as it must, on a balancing of the probative value of suchevidence against its prejudicial effect. This process engages the exercise of discretion, which courts have repeatedly said is entitled tosubstantial deference: see R v Handy, 2002 SCC 56 at para 153, [2002] 2 SCR 908; R v Shearing, 2002 SCC 58 at para 73, [2002] 3 SCR33; and R v Arp, (SCC), [1998] 3 SCR 339 at para 42.

Absent an error in principle, “appellate courts owe deference to atrial judge’s assessment of the comparative probative value and prejudicial effect of the proffered evidence” (footnotes omitted, S. CaseyHill, Louis P. Strezos and David M. Tanovich, McWilliams’ Canadian Criminal Evidence, loose-leaf (Rel 2023-No 4) 5th ed (Toronto:Thomson Reuters, 2013) at § 10:79): also see R v B.(C.R.), (SCC), [1990] 1 SCR 717 at 749–750 (per Lamer J. andSopinka J. in dissent, but not on this point).

In R v James (2006), (ON CA), 213 CCC (3d) 235 (Ont CA),Doherty J.A. framed that standard of review in these terms: [33] The process of balancing probative value against prejudicial effect is the trial judge’s responsibility. Appellate courts will defer to thetrial judge’s assessment of the comparative probative value and prejudicial effect of the proffered evidence unless an appellant candemonstrate that the result of the trial judge’s analysis is unreasonable, or is undermined by a legal error or a misapprehension of materialevidence: see R. v.

C.R.B., (SCC), [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81: 55 C.C.C.(3d) 1, at 23–24; R. v.Harvey (A.W.) (2002), 2002 SCC 80 , 313 N.R. 190; 180 O.A.C. 254; 169 C.C.C.(3d) 576 (S.C.C.), affing. (2001), (ON CA), 152 O.A.C. 162; 160 C.C.C.(3d) 52 (C.A.), at para. 43; R. v. Handy , supra, at para. 153.

See also R v Araya, 2015 SCC 11 at para 31, [2015] 1 SCR 581. [24] The relevant case law also affirms that, absent an error in principle or a material misapprehension of the evidence, appellatecourts owe a measure of deference to a trial judge’s decision to admit or reject expert evidence: R v D.D., 2000 SCC 43 at para 13, [2000]2 SCR 275; R v R.D., 2014 ONCA 302 at para 51, 312 CCC (3d) 363 [R.D. 2014]; and R v Chung, 2018 SKCA 70 at para 16.

Adetermination of “whether the prejudicial effect of the evidence outweighs its probative value, must be made within the factual context ofthe trial” (D.D. at para 12, per McLachlin C.J.C. in dissent, but not on this point). Because the necessity consideration involves acontextual assessment, a trial judge is said to be in the best position to determine “what matters fall within the normal experience ofjurors” or tryers of fact (R v Boswell, 2011 ONCA 283 at para 29, 277 CCC (3d) 156).

That said, while “some degree of deference is owedto the trial judge’s discretionary determination” in deciding whether the requirements have been met in a particular case, “that discretioncannot be used erroneously to dilute the requirement of necessity” to mere relevance or “helpfulness” (D.D. at para 47, per Major J.’smajority reasons). VI. ANALYSIS A. Impermissible stereotyping 1. No impermissible stereotyping in the Trial Decision [25] As noted above, the trial judge turned to the question of whether he could or should accept the reliability of the complainants’evidence that they had felt Dr.

Ukabam’s finger in their vagina in order for him to “conclude beyond a reasonable doubt that suchoccurred” (Trial Decision at para 54). He began his analysis with this statement: [54] While I start from what seems on first consideration a common sense view that a conscious female person would be able to accuratelysense vaginal penetration, for the reasons outlined below, as a judge, I am not to permit what I might perceive as a common sense

conclusion to override or trump other possible conclusions that can reasonably flow from the evidence. (Emphasis added) [26] The trial judge relied on the British Columbia Court of Appeal decision in Kruk-CA for the proposition that he was to refrainfrom making a common sense inference that was not otherwise grounded in the evidence. He opined that this applied “equally” to bothcredibility and reliability assessments (at para 56). [27] I discuss Kruk-CA below.

For present purposes, it is enough to note that the trial judge in R v Kruk, 2020 BCSC 1480 [Kruk-Trial] (reversed in Kruk-CA and currently on reserve with the Supreme Court of Canada) took judicial notice of the fact that it was“extremely unlikely that a woman would be mistaken about feeling” penile penetration (at para 5).

In overturning the trial decision, theBritish Columbia Court of Appeal concluded that it was “unable to find that the judge’s conclusion regarding the extreme unlikelihood ofany complainant, in all circumstances, being mistaken about the feeling of a penis in their vagina is the proper subject of judicial notice orcommon sense” (at para 67).

The Court of Appeal went on to say that the trial judge’s determination was “a finding that was not sought bythe parties, was not grounded in the evidence, and engages questions of neurology (the operation of the body’s sensory system),physiology (the impact of alcohol on perception, memory and the body’s sensory system) and psychiatry” (at para 67). [28] Returning to the matter at hand, the trial judge observed that the Crown had adduced no evidence capable of excluding thepossibility that the complainants had misinterpreted the sensation “of a rectal exam as a potential explanation for what the complainantsremember as being vaginal intrusions” (Trial Decision at para 57).

He then turned to the evidence of Dr. Lumb and, to a lesser extent,Dr. Richardson, which he said could be interpreted as undermining the reliability of the complainants’ testimony. He highlighted thefollowing portions of Dr. Lumb’s testimony, which he considered relevant to this issue: [58] The limited evidence I have, that may provide some evidentiary guidance, comes from the testimonies of Dr. Richardson andDr. Lumb, including Dr.

Lumb’s evidence that: … c. rectal examinations begin with inspection of the area around the anus, palpitation if abnormalities are observed, then a gloved,lubricated finger is inserted into the anal canal, paying attention to the muscular tension of the anus itself and for any abnormalities of theanal canal, and into the rectum, with it being important that the clinician sweep their finger through a total 360 degrees and back again,either clockwise or counterclockwise, to look for any abnormalities on the front, back and sides of the rectum (Transcript, pages T10 andT11); d. the posterior wall of the vagina is close to the anterior wall of the rectum, and they are separated internally by a very thin layer of tissue(Transcript, page T68); e. examination of the perineum could involve momentary touchings of the vaginal introitus or opening (Transcript, page T71); f. the vaginal introitus has sensation but there are no pain fibres in the vaginal wall or the cervix itself (Transcript, page T86) … . [29] Finally, the trial judge directed himself to analyze the reliability of the complainants’ testimony on a stand-alone basis, withoutconsidering the similar fact evidence the Crown sought to adduce – a point I address below. 2.

The Crown’s argument on appeal [30] In its written argument, the Crown asserts that the trial judge erred in law by instructing himself that “he could not or shouldnot accept a complainant’s direct evidence of vaginal penetration in the face of an argument that the women might be mistaken and in theabsence of evidence excluding the possibility they were mistaken” (emphasis in original). It says the trial judge’s error is demonstrated intwo fundamental ways.

First, he is said to have improperly assumed that the medical evidence about the proximity of the rectal canal tothe vaginal canal was proof that penetration of the anal opening was capable of creating a sensation of penetration in the latter. In otherwords, the Crown asserts that evidence about the proximity of the two canals said nothing about the sensation a woman might feel.Second, and more generally, the Crown claims the trial judge relied on an improper stereotypical inference that women do not know theirown bodies.

The trial judge’s error is demonstrated, the Crown says, by his improper reliance on a stereotype and the (allegedly) flaweddecision in Kruk-CA. 3. The law: Common sense and stereotypical inferences [31] The assessment of the Crown’s argument must begin with the law relating to the use and reliance on stereotypes and commonsense inferences. [32] Justice Paciocco in R v JC, 2021 ONCA 131, 401 CCC (3d) 433, outlined two legal rules concerning impermissible reasoningin relation to human behavior.

The first cautions judges to avoid “speculative reasoning that invokes ‘common sense’ assumptions that arenot grounded in the evidence or appropriately supported by judicial notice” (at para 58). He went on to encapsulate the rule in this way: [61] Properly understood, the rule against ungrounded common sense assumptions does not bar using human experience about humanbehaviour to interpret evidence.

It prohibits judges from using “common-sense” or human experience to introduce new considerations, notarising from evidence, into the decision-making process, including considerations about human behaviour. (Emphasis added) [33] The second, overlapping rule is that factual findings cannot be based on stereotypical inferences about human behavior. It isaccepted law that using sexual stereotypes and rape myths to ground a credibility assessment on a sexual assault charge constitutes anerror of law: R v A.R.J.D., 2018 SCC 6, [2018] 2 SCR 218 [SCC-A.R.D.], and R v Seaboyer; R v Gayme, (SCC), [1991] 2

SCR 577 [Seaboyer]. As noted in Seaboyer, there is no probative value in myth and stereotype, which, the Supreme Court emphasized,“have no place in our law” (at 630).

This is true whether the witness is the complainant or the accused and whether those misconceptionsare used to undermine or support a witness’s evidence: see, for instance, Murillo, Adebogun, JC, R v Pastro, 2021 BCCA 149, CR (7th)296, or R v Greif, 2021 BCCA 187, leave to appeal to SCC refused, . [34] Speaking to the rule against stereotypical inferences specifically, Paciocco J.A. offered this synopsis in JC: [63] The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypicalinferences about human behaviour.

I will call this “the rule against stereotypical inferences”. Pursuant to this rule, it is an error of law torely on stereotypes or erroneous common sense assumptions about how a sexual offence complainant is expected to act, to either bolsteror compromise their credibility: Roth, [2020 BCCA 240] at para. 129; R v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5; Cepic,[2019 ONCA 541] at para. 14. It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act:R. v.

Quartey, 2018 ABCA 12, 430 D.L.R. (4th) 381, at para. 21, aff’d 2018 SCC 59, [2018] 3 S.C.R. 687; and see Cepic, at para. 24. [35] Justice Paciocco identified two significant points to assist with an understanding of this rule. The first is that it “does not bar allinferences relating to behaviour”: only those “that are based on stereotype or ‘prejudicial generalizations’” (at para 65).

Similarly, as thisCourt pointed out in Adebogun, a trier of fact is permitted to use assumptions about ordinary human conduct, “life experience, commonsense and logic”; however, they will “fall into error where the assessment becomes infected by prejudicial or stereotypical reasoning” (atpara 24): see also R v Roth, 2020 BCCA 240 at para 73, 66 CR (7th) 107; R v Delmas, 2020 ABCA 152 at para 31, 452 DLR (4th) 375,aff’d 2020 SCC 39, [2020] 3 SCR 780; and R v A.R.D., 2017 ABCA 237 at paras 8–9, 422 DLR (4th) 471 [A.R.D.-CA], aff’d SCC-A.R.D. [36] Put another way, although evidence that may appear on the surface to suggest that a trial judge has resorted to a sexualstereotype in drawing an inference, “it is not the case that evidence capable of being relied upon to support a stereotypical assumption isnecessarily being used for that purpose” (Greif at para 62).

What matters is the type of inference the evidence is being relied on to support,not the type of evidence: see Lisa Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44 Queen’s LJ 316 at 319and 322–323. The second point made in JC is that while the rule “prohibits certain inferences from being drawn … it does not prohibitthe admission or use of certain kinds of evidence” (emphasis in original, at para 68): see also A.R.D.-CA at paras 6–8.

Thus, it is not anerror “to admit and rely upon evidence that could support an impermissible stereotype if that evidence otherwise has relevance and is notbeing used to invoke an impermissible stereotype” (JC at para 69). [37] Finally, it is not enough to point to what is or is not stereotypical reasoning; an appellant must demonstrate that the trial judgerelied on that reasoning in making their determination.

Further, it is not an error “to arrive at a factual conclusion that may logically reflecta stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence” (at para 70):see also Adebogun at para 29, Pastro at para 42 and Greif at para 65. 4. Application to the facts a. The trial judge based his consideration on the evidence [38] The Crown asserts the trial judge instructed himself not to accept the complainants’ testimony based on Dr.

Ukabam’s mereargument that the sensations they felt from rectal examinations could be mistakenly interpreted as vaginal penetration. As discussed in itsfactum, the Crown says Dr. Ukabam’s proposition led the trial judge astray in his reliability assessment: “He instructed himself thatbecause of that argument he should look for other evidence to exclude the possibility the complainants were mistaken”. [39] I am not persuaded by this argument. [40] As the trial judge explained in his reasons, he was not simply responding to Dr.

Ukabam’s argument, or as the Crown wouldhave it, disregarding the complainants’ testimony merely because Dr. Ukabam had surmised the complainants could have been mistakenabout what they said they had felt. Nor is it apparent from his reasons that he was looking for a basis to discount their testimony.

The trialjudge understood that he was not to “permit what I might perceive as a common sense conclusion to override or trump other possibleconclusions that can reasonably flow from the evidence” (emphasis added, Trial Decision at para 54). [41] The trial judge considered the evidence that spoke to the issue of reliability, most notably the testimony of Dr. Lumb, who hadtestified that the insertion of a finger into the anus can be felt in the vagina. He found Dr. Lumb’s opinion “was confined to medicalissues” and that it was “largely undisputed” (at para 32).

As mentioned, and repeated here for emphasis, the trial judge then referred to theparts of Dr. Lumb’s testimony that, he said, “may provide some evidentiary guidance”: [58] The limited evidence I have, that may provide some evidentiary guidance, comes from the testimonies of Dr. Richardson andDr. Lumb, including Dr.

Lumb’s evidence that: … d. the posterior wall of the vagina is close to the anterior wall of the rectum, and they are separated internally by a very thin layer of tissue(Transcript, page T68); e. examination of the perineum could involve momentary touchings of the vaginal introitus or opening (Transcript, page T71); f. the vaginal introitus has sensation but there are no pain fibres in the vaginal wall or the cervix itself (Transcript, page T86); and g. if, during a rectal examination, pressure on or stretching of the rectal wall occurs, the vagina would not feel pain because there are nopain mechanisms in it, but it could feel pressure (Transcript, page T87). [42] Not only was this body of evidence capable of giving rise to an inference that vaginal sensations felt during an anal exam couldpossibly be misinterpreted (thus providing an alternative explanation), but as a matter of law, the trial judge was obliged to consider

whether this evidence had an impact on his determination of whether the Crown had proven its case beyond a reasonable doubt. The trial judge understood that the case for the Crown was wholly dependant on the testimony of the complainants and that both their credibility and reliability had to be tested in light of the totality of the evidence. He was correct in taking that approach. [ 43 ] The trial judge found all the complainants, except for K.B., to be credible witnesses “in the sense that they honestly believe what they have testified to” (at para 63).

However, a finding that a witness is credible does not mean that the witness’s testimony is reliable. Credibility is not a proxy for reliability: “even a witness who is credible may provide unreliable evidence because honest witnesses can misperceive events, have poor memory, or just be wrong” ( R v Thompson , 2023 SKCA 66 at para 22 , 426 CCC (3d) 534): see also Wolff at paras 38–39 . [ 44 ] Moreover, a trial judge’s failure to consider all of the evidence relating to the ultimate issue of guilt or innocence constitutes an error of law: R v Walle , 2012 SCC 41 at para 46 , [2012] 2 SCR 438.

This principle requires trial judges to step back and consider whether, on the whole of the evidence, including that put forth by an accused, it gives rise to reasonable doubt: Murillo and R v Esquivel-Benitez , 2020 ONCA 160 , 61 CR (7th) 326. [ 45 ] Where, as here, there was evidence that the complainants might have been mistaken about the sensations they said they had felt, the trial judge could not simply ignore it, treat it as irrelevant to the issue of reliability, or, as the Crown would have it, discount it completely because it constituted a sexual stereotype that women do not know their own bodies.

Indeed, it would have been an error of law on his part had he not considered the whole of the evidence. To be clear, it was open to the trial judge to accept the complainants’ evidence about the sensations they said they had felt.

However, the trial judge was also obliged to consider whether the medical evidence was probative and had a bearing on his assessment of their reliability and, notwithstanding that there was direct evidence, if “the criminal standard of proof beyond a reasonable doubt requires triers of fact to consider ‘other plausible theories’ and ‘other reasonable possibilities’ which are inconsistent with guilt” ( Murillo at para 25 ). b.

Reference to Kruk-CA was not problematic [ 46 ] The Crown begins with the assertion that the trial judge’s assessment of the evidence operated from, and was tainted by, an underlying stereotype: i.e., that women do not know their own bodies. Although the Crown was not able to point this Court to any case law where a stereotype of this sort has been identified in Canadian jurisprudence, that does not mean it might not be shown to exist.

In her article, Lisa Dufraimont points out that “[i]n Canadian legal discourse, the phrase ‘myths and stereotypes’ refers to false beliefs about sexual assault that distort the fact-finding process” (at 331) and notes that “[i]t is difficult to know how widely-held are these beliefs in Canadian society, but the Supreme Court of Canada has accepted that such myths are common enough that they can and do distort the adjudication of sexual assault cases” (at 331–332). [ 47 ] In furtherance of its argument, the Crown asserts that the trial judge relied on Kruk-CA , which it says is a fundamentally flawed decision.

In Kruk-Trial , the accused was convicted of sexually assaulting an intoxicated woman by inserting his penis into her vagina while she was asleep. The sole issue at trial was whether the sexual activity had occurred. After the trial judge rejected the accused’s evidence, he turned to the evidence as a whole in his assessment of the complainant’s credibility and reliability. He then said as follows: [68] … I must assess the core assertion made by the complainant that when she woke up, the accused’s penis was inside her vagina.

Her evidence is devoid of detail, yet she claims to be certain that she was not mistaken. She said she felt his penis inside her and she knew what she was feeling. In short, her tactile sense was engaged. It is extremely unlikely that a woman would be mistaken about that feeling . (Emphasis added) [ 48 ] In overturning that decision, the Court of Appeal concluded that the trial judge had overcome his reservation about the complainant’s reliability (given her extreme level of intoxication) by finding that it was unlikely that she would have been mistaken about the feeling of a penis inside her.

That finding, the Court of Appeal observed, was not grounded in the evidence nor was it the proper subject of judicial notice or a common sense inference. The issue that troubled the Court of Appeal in Kruk-CA was the absence of any evidence to support the trial judge’s determination that a woman would never be mistaken about feeling a penis inside of her. [ 49 ] That is not the same circumstance as the matter at hand. In this case, there was evidence capable of supporting the conclusion that the complainants were mistaken or, at the very least, giving rise to a reasonable doubt about their reliability.

Much of that evidence is set out above and will not be repeated here. It also includes Dr. Ukabam’s direct evidence as well as independent medical evidence from Dr. Lumb. Suffice it to say, the trial judge did not have to accept the medical evidence, but as I have discussed above, he had to at least consider it and decide what weight it should be given. [ 50 ] To sum up, Kruk-CA is distinguishable from the facts of this case, and it is, therefore, not necessary to consider whether it was decided correctly.

The trial judge relied on it for no more than the proposition that common sense reasoning must be grounded in the evidence. I see no error in how he used that decision. Nor am I persuaded that there is a stereotype at play that distorted the adjudication of this case. c.

No requirement to give significant weight to the complainants’ testimony [ 51 ] Next, the Crown argues the trial judge erred by denying the probative force of the only direct evidence adduced at trial about what had happened in favour of a tenuous argument that the complainants might have been mistaken about the sensations they said they had felt. [ 52 ] There are several problems with the Crown’s submission. [ 53 ] First, I begin with the point that, contrary to the Crown’s position, the trial judge did not make a finding that women cannot be trusted to know when they have been digitally penetrated in their vaginas.

He found, based on the evidence as a whole, including the medical evidence and the evidence of Dr. Ukabam, that each of the complainants were mistaken. As Paciocco J.A. observed in JC , it is not an error to rely on evidence that could possibly support an impermissible stereotype so long as that evidence is relevant and is not

being used to invoke an impermissible stereotype: see Adebogun at para 29, Greif at para 65 and Pastro at para 42. [54] Second, while the Crown does not dispute that there was some evidence that touched on the issue, it asserts that the evidencethe trial judge relied on was vague, unpersuasive and should not have been preferred over the complainants’ direct evidence.

It says thefact-finding process endorsed by the trial judge led him to do what he was prohibited from doing: denying the probative force of thecomplainants’ testimony, which was the only direct evidence on the matter, in favour of evidence that was vague and not directly on point.Embedded in this argument is the premise that direct evidence must be preferred over indirect or circumstantial evidence. [55] I reject that suggestion principally for the reasons expressed above in relation to the Crown’s first argument. The trial judge wasnot only entitled to consider the evidence from Dr.

Lumb that bore on this point – he would have erred had he not done so. [56] A further premise underlying the Crown’s argument is that the trial judge fell into error by giving too much weight toDr. Lumb’s testimony. However, it is for a trier of fact to determine whether the evidence adduced at trial has probative value. If theevidence is admissible and relevant (as it was in this case), it was for the trial judge to determine how much weight, if any, to give it inrelation to the case as a whole. It is trite to say that he could accept some, all or none of the evidence of any witness.

That is precisely whatoccurred here. [57] The Crown’s argument also suffers from another impediment. This is an appeal from an acquittal, and the Crown’s right ofappeal against the verdict is limited to “any ground of appeal that involves a question of law alone” (s. 676(1)(a)). The weight assigned tothe evidence by a trier of fact is not a question of law: R v Alves, 2014 SKCA 82 at para 57, 314 CCC (3d) 313, and R v Morin, (SCC), [1992] 3 SCR 286 at 297 [Morin-1992].

Reliability, like credibility, is a finding of fact, not law – R v W.H., 2013 SCC22 at paras 33–34, [2013] 2 SCR 180; R v Hornby, 2018 ABCA 377 at para 21, 368 CCC (3d) 372; and R v Schaff, 2017 SKCA 103 atpara 44: “absent a legal error, such as assessing the evidence on the basis of a wrong legal principle, an appellate court cannot interferewith a trial judge’s assessment of credibility [or reliability] unless it is established that such assessment cannot be supported on anyreasonable view of the evidence” (R v R.D., 2023 SKCA 111 at para 16): see also R v Burke, (SCC), [1996] 1 SCR 474at para 7; R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746; and R v Englot, 2022 SKCA 129 at para 5. [58] As mentioned above, “An appealable error must be traced to a question of law, rather than a question about how to weighevidence and assess whether it meets the standard of proof” (Chung-SCC at para 10).

By taking issue with the allocation of weight indetermining reliability, the Crown is engaging a question of fact, not law. That said, I recognize that, in limited circumstances, an error offact can constitute an error of law in a trial judge’s assessment of the evidence.

Speaking for the Supreme Court in paragraphs 25 to 39 ofJ.M.H., Cromwell J. set out four situations where errors in the handling of evidence can give rise to legal error; the list is not exhaustive.They are as follows: (a) “It is an error of law to make a finding of fact for which there is no evidence — however, a conclusion that the trier of fact hasa reasonable doubt is not a finding of fact for the purposes of this rule” (at para 24), and “The principle that it is an error of law to make afinding of fact for which there is no supporting evidence does not, in general, apply to a decision to acquit based on a reasonable doubt” (atpara 26) – see also R v Walker, 2008 SCC 34 at para 22, [2008] 2 SCR 245. (

b) Where a trial judge’s findings can be traced to an error of law and not a question of weight, the “legal effect of findings of factor of undisputed facts raises a question of law” (J.M.H. at para 27).

That is, “[i]f a trial judge finds all the facts necessary to reach aconclusion in law and in order to reach that conclusion the facts can simply be accepted as found, a Court of Appeal can disagree with theconclusion reached without trespassing on the fact-finding function of the trial judge” (Morin-1992 at 294). (c) “An assessment of the evidence based on a wrong legal principle is an error of law” (J.M.H. at para 28); aside from amisdirection on the law, “doubts about the reasonableness of the trial judge’s assessment of the evidence [in the context of a Crownappeal of an acquittal] do not constitute questions of law alone” (R v B.(G.), (SCC), [1990] 2 SCR 57 at 79). (d) “The trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error oflaw” (J.M.H. at para 30), and “it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonabledoubt; the evidence must be looked at as a whole” (at para 31) – see also B.(G.) at 75–77. [59] The Crown did not identify where the alleged error might fit within the menu of options outlined in J.M.H. or how the trialjudge’s failure to give greater weight to the complainants’ evidence in his reliability assessment amounted to a legal error.

In fact, theCrown’s submission reduces to an invitation to revisit the trial judge’s reliability findings, which, as noted, are entitled to deference onappeal. Absent an error of the sort described in J.H.M., that is beyond the scope of appellate review. d. Dr. Ukabam was not required to challenge the complainants’ testimony [60] Next, the Crown attempts to buttress its argument by pointing to the fact that Dr. Ukabam’s legal counsel failed to askDr.

Lumb if, in his opinion, a woman might confuse the sensation of anal penetration with vaginal penetration or that his counsel failed tocall his own expert, or both, to address this point. The fact that Dr. Lumb was not asked for his opinion in this regard by eitherDr. Ukabam’s counsel or Crown counsel does not mean that his evidence should have been dismissed or discounted. As I have noted, thetrial judge was obliged to take account of Dr.

Lumb’s evidence and was entitled to accept it and to consider whether, when examinedalong with all the other evidence, it raised a reasonable doubt as to whether the complainants were mistaken. Further, this argument mustbe rejected because it effectively represents an attempt to reverse the burden of proof in a criminal trial and disregards the presumption ofinnocence guaranteed under s. 11 of the Charter.

It is a fundamental principle in our criminal justice system that the Crown, not theaccused, bears the burden of proof: “There is no onus on the accused to prove their innocence or to explain the complainant’s allegations”(Greif at para 41). e. There was no Browne v Dunn error [61] By way of its final argument on this front, the Crown asserts that the trial judge violated the rule in Browne v Dunn, (1893) 6 R

67 (HL), by failing to give all of the complainants an opportunity to respond to the defence theory that they were mistaken about thesensations they said they had felt. It says that type of question was put directly to only one of the complainants and in a more ambiguousway to another. [62] I would not give effect to this argument. The Crown did not allege a Browne v Dunn problem at trial. It did not draw thisconcern to the attention of the trial judge and ask him to remedy the issue, recall a witness or call evidence to respond to Dr. Ukabam’scase. Moreover, the Crown misapprehends the gravamen of the rule, which is grounded in the notion of trial fairness. A good

summary ofthe Browne v Dunn rule is found in R v Wapass, 2014 SKCA 76, 314 CCC (3d) 561, where this Court said as follows: “As the Courtexplained in R. v. Lyttle, 2004 SCC 5 [at para 64], [2004] 1 S.C.R. 193, the rule in Browne v. Dunn ‘requires counsel to give notice tothose witnesses whom the cross-examiner intends later to impeach’” (at para 21).

Give notice in this context means that, if counsel intendsto challenge the credibility of a witness by calling contradictory evidence on matters of significance to the facts in issue, “the witness mustbe given the chance to address the contradictory evidence in cross-examination while he or she is in the witness box” (R v Henderson(1999), (ON CA), 134 CCC (3d) 131 (WL) (Ont CA) at para 18). [63] Simply put, the rule was not broken here. Dr. Ukabam did not call evidence that the Crown says impeached the complainants’credibility; that evidence came, predominantly, from its own witness, Dr.

Lumb. [64] Further, it bears noting that it was readily apparent that the central issue in this prosecution was the reliability of thecomplainants’ allegations. The Crown cannot reasonably contend that it or the complainants were not aware, based on the questioning ofthe complainants at the preliminary inquiry and the cross-examination at trial, that the position of the defence was that the complainantswere mistaken in their belief as to what took place. 5.

Conclusion on impermissible stereotyping [65] To conclude, I am not persuaded by any of the Crown’s various arguments under this ground of appeal, including thosesuggesting that the trial judge improperly relied on assumptions and stereotypes in his reasoning. Simply put, the trial judge was required,as a matter of law, to be guided by the principle of reasonable doubt and to carefully assess the Crown’s case to determine if, based on theadmissible evidence, it had proven the charges against Dr. Ukabam beyond a reasonable doubt.

I interpret this part of his decision to reflectan understanding of those bedrock principles. B. Similar fact evidence 1. The Trial Decision on similar fact evidence [66] After the Crown called its witnesses, it sought to have the evidence of each of the complainants admitted as similar factevidence and applied as against all counts in the indictment. This body of evidence, the Crown said at trial, was intended to serve thefollowing three purposes: (a) “The first pertained to the actus reus of the offence” – that the non-consensual touching of a sexual nature had occurred. (

b) The second, which it acknowledged overlapped somewhat with the first, was to rebut the “defence or potential defence thatthe incidents described by the complainants did not occur”. (

c) Finally, the Crown said its purpose was to show that Dr. Ukabam was “importing a sexual component into the doctor–patientrelationship”. [67] The trial judge’s ruling on the Crown’s application is found at paragraphs 141 to 161 of the Trial Decision.

While portions ofthe ruling will be examined in more detail below, in connection with the Crown’s arguments on appeal, I will begin by providing a briefoverview for the purposes of context. [68] The trial judge began his analysis by referring to paragraphs 41 to 48 of Handy, as an expression of the governing law andstatement of principles he was to use in determining the admissibility of the proposed similar fact evidence.

The trial judge set out what hesaw as the factual similarities and dissimilarities in the evidence (paragraphs 146 and 147 of the Trial Decision, respectively), concludingthat the “similarities that do exist are, with the exception of four complainants stating he placed a finger into their vaginas, … generic tothe fact that Dr.

Ukabam was the complainants’ physician and was conducting physical examinations of them at the time of the assaultsalleged” (at para 148). [69] The trial judge then expressed concern with what he saw as circular reasoning in connection with the use that could be made ofthe proposed similar fact evidence in this case: [152] The suggestion that I can use the proposed similar fact evidence to assist in deciding the issue of whether Dr.

Ukabam introduced asexual component into the doctor/patient relationship engages the logical fallacy of circular reasoning (known as petitio principii orbegging the question) which occurs when the premises presume, openly or covertly, the very conclusion that is to be demonstrated. [70] The trial judge went on to characterize the Crown’s application as a blatant attempt to bootstrap the complainants’ unreliableevidence to make it reliable “because others have made the similar allegations” (at para 157).

Ultimately, he dismissed the application,concluding that he “must find [the evidence] to be so highly relevant and cogent that its probative value in the search for truth clearlyoutweighs the potential for misuse” (at para 159), which he said, “I am unable to so conclude” (at para 160). [71] As such, the trial judge dismissed the Crown’s application. 2. The law: Similar fact evidence

[72] At common law, evidence proffered by the Crown to show that an accused has the general disposition or propensity to havecommitted the charged offence is presumptively inadmissible because its probative value is outweighed by its prejudicial effect: Handy atpara 31 and B.(C.R.) at 734–735 – that is, “[p]roof of general disposition is a prohibited purpose” (emphasis in original, Handy atpara 72). [73] The rationale for this prohibition is rooted in the idea that evidence of an accused’s bad character or disposition has limitedprobative value yet is prejudicial and presents an unfairness to an accused.

This is so because, without more, a trier of fact may be temptedto rely on evidence of discreditable conduct to infer guilt based on propensity reasoning: i.e., “there is a concern that from theconstellation of themes in these postings, that a jury would consider that the accused is the type of person who would commit the offencescharged, or that he is a bad man who needs to be punished” (R v Bright, 2017 ONSC 377 at para 30). This sort of reasoning is referred toas moral prejudice. [74] The rule is also grounded in reasoning prejudice.

As noted in the jurisprudence, bad character evidence may cause the trier offact to become distracted or confused “by evidence of multiple incidents or may put more weight than is logically justified on the similarfact evidence” and thereby lose track of the real issue at trial (R v Tsigirlash, 2019 ONCA 650 at para 35).

The real issue at trial iswhether the Crown has proved the charge beyond a reasonable doubt: see Handy at paras 31, 35 and 37. [75] The rule, however, admits of an exception where the evidence is adduced for a valid purpose unrelated to an accused’s generaldisposition or an inference that they are a bad person. Evidence of disposition is admissible “where the probative value of the evidence to aspecific and properly identified factual issue is sufficiently strong to outweigh its prejudicial effect” (Sidney N. Lederman, Michelle K.Fuerst and Hamish C.

Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed (Toronto: Lexis Nexis, 2022) at§11.7 [Law of Evidence]).

To invoke this exception, the “evidence of previous misconduct may be so highly relevant and cogent that itsprobative value in the search for truth outweighs any potential for misuse” (Handy at para 41). [76] To similar effect, in R v D’Amico, 2019 QCCA 77, 375 CCC (3d) 1, leave to appeal to SCC refused, , theQuebec Court of Appeal summarized the exception in this way: “The probative value of similar fact evidence depends on the similarpatterns found in the accused’s conduct, and the objective improbability of coincidence.

Where such similar patterns are found, theprobative value of the evidence is high enough to outweigh its potential prejudicial effect” (at para 237): see also B.(C.R.) at 751. [77] Similar fact evidence is circumstantial evidence. As such, it derives its usefulness “entirely on the validity of the inferences it issaid to support with respect to the matters in issue” (Handy at para 26).

As illustrated in Shearing, the companion case to Handy, similarfact evidence can be useful to show an accused’s “situation-specific propensity” to commit the same offence and that this “character orpropensity thus established gives rise to” the charges at issue (at para 31): also see paras 31–40.

This is referred to as a double inference:R v Batte (2000), (ON CA), 145 CCC (3d) 449 (Ont CA) at para 97. [78] The value of the proffered similar fact evidence is gauged by its cogency, strength and nexus to the material issue in dispute.An assessment of probative value requires the trial judge to consider the factors connecting the evidence to the issue at trial (R v Z.W.C.,2021 ONCA 116 at para 98, 402 CCC (3d) 427): [98] The assessment of the probative value of the evidence requires the trial judge to consider: (

a) the strength of the evidence that theextrinsic acts in question occurred; (

b) the connection between the accused and the similar acts, and the extent to which the proposedevidence supports the inferences the Crown seeks to make (sometimes referred to as the “connectedness” between the similar act evidenceand the “questions in issue”); and (

c) the materiality of the evidence -- that is, the extent to which the matters the evidence tends to proveare live issues in the proceeding: see David Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law,2020), at pp. 74–75. [79] It is incumbent on the party seeking to adduce similar fact evidence to identify the live issue to which the evidence is said torelate. It then falls to the trier of fact to consider its cogency: R v J.B., 2014 ONSC 6208 at para 43.

Handy sets out a non-exhaustive list offactors for use in determining the connectiveness or nexus of the past conduct to the offence charged – in other words, its probative value: [82] … Factors connecting the similar facts to the circumstances set out in the charge include: (1) proximity in time of the similar acts: D.(L.E.), [ (SCC), [1989] 2 SCR 111], at p. 125; R. v. Simpson (1977), (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), (ON CA), 16 O.R. (3d) 214(C.A.), at p. 220; (2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v.

Rulli (1999), (ON CA), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C.(M.H.), [ (SCC), [1991] 1 SCR 763], at p. 772; (3) number of occurrences of the similar acts: Batte, supra, at pp. 227–28; (4) circumstances surrounding or relating to the similar acts (Litchfield, [ (SCC), [1993] 4 SCR 333], at p. 358); (5) any distinctive feature(

s) unifying the incidents: Arp, supra, at paras. 43–45; R. v. Fleming (1999), (NL CA), 171Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104–5; Rulli, supra, at p. 472; (6) intervening events: R. v. Dupras, [2000 BCSC 1128], at para. 12; (7) any other factor which would tend to support or rebut the underlying unity of the similar acts. See also R v Durant, 2019 ONCA 74 at paras 87 and 88, 372 CCC (3d) 66. [80] There is need for caution with the application of the similar or similarity factor.

It is not the precise factual similarity that isimportant so much as the connection to the issue for which the evidence is proffered. Justice Binnie clarified the point in Handy with theobservation that “[s]imilarity in this respect does not necessarily require a strong peculiarity or unusual distinctiveness underlying the

events being compared, although similar facts manifesting a singular trait (such as necrophilia) would likely be a powerful tool in thehands of the prosecution” (at para 81). He went on to note that similarity was “a question of degree” and “[n]ot every dissimilarity is fatal,but … substantial dissimilarities may dilute probative strength and, by compounding the confusion and distraction, aggravate theprejudice” (at para 127).

Much depends on the issues at play in the case and the purpose for which the similar fact evidence is tendered. [81] By way of illustration, where identity is at issue, as it was in Arp, similar fact evidence “is not admissible ‘unless the propensityis so highly distinctive or unique as to constitute a signature’” (Handy at para 77, quoting R v Scopelliti (1981), (ONCA), 63 CCC (2d) 481 (WL) (Ont CA) at para 45). However, where that is not the issue, it is unnecessary to show a striking similarity:see Arp at para 44 and Shearing at para 50.

Quoting R v Carpenter (1982), (ON CA), 142 DLR (3d) 237 (Ont CA) at244, the Supreme Court in Handy affirmed that the “‘degree of similarity required will depend upon the issues in the particular case, thepurpose for which the evidence is sought to be introduced and the other evidence’” (at para 78). [82] The prejudicial effect of the proposed evidence is the other component of the analysis.

As mentioned, it has two aspects (R vBent, 2016 ONCA 651, 342 CCC (3d) 343): [46] … The first is moral prejudice, which may cause the jury to convict the accused not on the basis of the evidence but on the basis thathe is a bad person who deserves to be punished. The second form of prejudice, reasoning prejudice, diverts the jury from its task and risksthe jury giving the evidence more weight than it deserves.

The authors of McWilliams suggest at p. 10-9 the following factors should beconsidered when addressing prejudice: • prejudice exists on a continuum – some evidence may be so repugnant that it raises real concerns about trial fairness, whereas otherevidence may be at a lower level of prejudice; • the evidence must be considered in the context of all the evidence in the case; and • the prejudicial effect of the evidence does not necessarily diminish as its probative value increases. (Emphasis in original) [83] The legal principles discussed above are not affected by the fact that the trial involves a multicount indictment.

The issue in thatsituation is “not whether the evidence will be heard … but to what use it will be put” (Tsigirlash at para 38). 3. Arguments about similar fact evidence [84] The Crown submits the trial judge committed a number of errors in his application of the Handy framework and that the errorsled him to exclude highly probative, similar fact evidence of Dr. Ukabam’s propensity to sexually offend against female patients in thecourse of conducting medical tests, examinations or procedures. This body of evidence, it says, was material to the prosecution because itsupported these two inferences: (

a) based on the conduct that had occurred, Dr. Ukabam had a certain propensity or state of mind, and (b)given that specific disposition, Dr. Ukabam acted in a way that was consistent with his behavioural propensity. In more direct terms, theCrown says that because Dr. Ukabam imported a sexual component into the doctor–patient relationship, it was open to the trial judge todraw an inference that he had acted in conformity with that propensity in relation to each of the complainants. [85] The Crown’s argument under this ground of appeal is built around the allegation that the trial judge erred as follows: (

a) failing to identify the issues for which the Crown sought to have the evidence admitted; (

b) making a finding of reliability before determining whether to admit the similar fact evidence; (

c) undertaking a flawed similarity analysis; (

d) failing to appreciate the probative value of the evidence; (

e) failing to appreciate that the prejudice was attenuated; and (

f) acceding to the unsupported theory of unconscious collusion. [86] I will address each of these points in turn. a. Error with issue identification [87] The Crown submits the trial judge went astray at the outset of his analysis by failing to grasp the probative value of the similarfact evidence and the reason why it sought to have that evidence admitted in this case. The material issue at trial was the actus reus of theoffences. The theory of the Crown’s case was that, although the complainants had consented to having Dr.

Ukabam touch them, it was fora medical purpose only in connection with the various gastrointestinal and other health-related issues they were experiencing. However,each complainant testified that he had touched them in a place on their body that was inconsistent with the medical purpose they hadconsented to, and in so doing, he had sexualized the doctor–patient relationship and committed sexual assault. [88] Dr.

Ukabam took the position at trial that the touching did not occur in the manner described by the complainants or that thecomplainants mistakenly thought he put his fingers into their vaginas when they were, in fact, inserted into their rectal canals. In the caseof L.B., she alleged that he improperly touched her breasts in a sexualized manner. The Crown argued that, given Dr. Ukabam’s defence,the similar fact evidence was clearly relevant to the reliability of the complainants’ testimony because it tended to prove a pattern ofconduct and a disposition on his part to do the very act charged in the indictment.

More specifically, the Crown submitted that the similarfact evidence could and should be used to support an inference of the improbability of coincidence: that is to say, that the complainantscould not have been mistaken about where Dr. Ukabam had inserted his fingers.

[ 89 ] Contrary to the Crown’s argument, the trial judge identified the purposes for which the Crown sought to adduce the similar fact evidence in paragraph 151 of the Trial Decision . Those purposes, in my view, lined up with its argument for admission of the similar fact evidence. Although the trial judge found the Crown’s issues were “too broad”, lacked the “appropriate focus” and had potential to lead to “logical error” (at para 151) – points I will return to later in my reasons – he was not oblivious to the underlying reasons for why the Crown had sought to have the evidence admitted.

Indeed, the trial judge noted at several points in his reasons that he was required to make a ruling on whether “similarities exist as to make coincidences or innocent explanation improbable” (at para 150): see also paragraphs 143, 158 and 160. [ 90 ] Reading the Trial Decision as a whole, I am satisfied that the trial judge grasped the purpose underpinning the Crown’s application. He understood, but ultimately did not agree, that it was to show the improbability of coincidence. I see no error with his issue identification. b.

The reliability findings [ 91 ] In its written argument, the Crown asserts that the trial judge “put the cart before the horse” in determining “the weight he should assign to the evidence of each complainant before he assessed the admissibility of the similar fact evidence” (emphasis in original). By proceeding in this fashion, it says the trial judge erred by instructing himself to make a final reliability assessment “without considering whether the reliability of each complainant might be enhanced by the admission of similar fact evidence”.

In the Crown’s view, the logical progression of this approach caused the trial judge to ignore the probative value of the similar fact evidence in making his reliability findings. Framed more directly, the Crown asserts that the trial judge confused threshold admissibility of the proposed similar fact evidence with the weight he would assign to it, if it were admitted. [ 92 ] The reasoning in R v Larsen , 2012 NWTCA 9 , [2012] 9 WWR 211, illustrates the difference between a ruling on threshold admissibility and a trial judge’s ultimate finding of credibility or reliability.

The Court of Appeal in Larsen described two stages of analysis that must be undertaken when an application to adduce similar fact evidence is made. At the initial stage, the judge plays a gatekeeper role to determine whether, on a balance of probabilities, the proposed similar fact evidence is sufficiently probative to be admitted: Larsen at paras 24 and 69 . In a judge-alone trial, as Larsen notes, the trial judge must consider credibility and weight at both the admissibility stage and when deciding whether the Crown has proved its case beyond a reasonable doubt – if the evidence were to be admitted.

In his majority reasons in Larsen , O’Brien J.A. discussed the importance of weight at the admissibility stage because “the Crown must establish, on a balance of probabilities, that the proposed evidence is sufficiently probative to be considered” (at para 24). He then continued with the following: [25] The credibility or reliability of the proposed similar fact evidence is one aspect of its probative value.

At para 104 of Handy , Justice Binnie stated: The trial judge’s gatekeeper role in this respect was addressed in B.(C.R.) by McLachlin J., at pp. 733–34: The difficulty of the trial judge’s task and the amount of discretion entrusted to him or her is great. As Forbes, [ Similar Facts , (Sydney: Law Book Co., 1987)], puts it at pp. 54–55: A judge presented with similar facts for the prosecution has to exercise an extraordinary complex of duties and powers. First he has to assess not only the relevance but also the weight of the disputed evidence, although the latter task is normally one for the jury.

Second, he must somehow amalgamate relevance and weight to arrive at “probative value”. And, at paras 134 and 136 [of Handy ], [Binnie J] said: 134 In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury. However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration.

Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief. (All emphasis omitted) [ 93 ] Similarly, in concurring reasons in Larsen , Slatter J.A. said, “In the first stage, the credibility of the evidence is used to determine if, on a balance of probabilities, the evidence is admissible.

In the second stage, the credibility of the evidence is used to determine if the Crown has proven the case beyond a reasonable doubt” (at para 73). Although Larsen was concerned with credibility, this same reasoning applies to the reliability of the evidence. [ 94 ] The demarcation between admissibility and weight is easier to maintain in a jury trial, where the question of admissibility proceeds by voir dire in the absence of the finder of fact (the jury).

However, keeping those steps and burdens straight in a judge-alone trial, particularly on a multicount indictment where, as here, the judge had already heard the Crown’s case, can lead to a blurring or conflating of the task at hand. That was what had occurred in Larsen , where the accused had been charged with sexual interference against three complainants. The trial judge found that the evidence of each of them was sufficiently credible to justify its admission as similar fact evidence.

The question posed on that appeal (albeit in obiter reasons) was whether the blurring of admissibility and the trial judge’s credibility findings effectively undermined his decision on threshold admissibility. The majority concluded that the trial judge had erred by engaging in circular reasoning, as he considered only the similarity between the complainants’ allegations in deciding to admit the evidence. Justice Slatter did not agree that the trial judge had erred in this way.

Rather, he concluded that the trial judge, having heard all the evidence that would bear on credibility, must have determined that it was reasonably capable of belief – the standard specified in Handy when considering credibility at the admissibility stage of the analysis – when he stated as follows: [74] … By the time the trial judge ruled on admissibility, he had already heard the complainants tell their entire story, and be cross- examined.

It is a strained reading of the trial judge’s reasons to suggest that he only relied on the similarity of the alleged acts, and not on other aspects of the credibility of this evidence, such as the cross-examination. Prior to hearing the defence’s denial, in the trial judge’s

mind the testimony of the three complainants was clearly credible enough to make it admissible. It was “reasonably capable of belief”. Atthe end of the trial, the defence evidence and the analysis in R. v W.(D.), (SCC), [1991] 1 SCR 742 must also be broughtinto play. But that does not undermine the decision on threshold admissibility. [95] Justice Slatter’s reasoning is of interest in the context of this appeal.

It reflects the fact that in a judge-alone trial with multiplecomplainants, the failure to undertake a separate and more limited analysis of credibility and reliability at the admissibility stage may,nonetheless, have no material effect on the bottom line of a trial judge’s decision, depending on how their reasoning on that issue unfolds.If it is alleged that the trial judge failed to consider the credibility or reliability of the proposed similar fact evidence at that initial stage,the important question will be whether they have properly considered it at the second stage when deciding if the Crown has proven theoffence beyond a reasonable doubt.

That sort of question arises here. If the trial judge erred in deciding that he could not use the cross-count evidence as similar fact evidence, did he nonetheless deal with that evidence as if it had been admitted for that purpose? [96] With these principles in mind, I will return to the case at hand. This is a Crown appeal. The Crown does not allege that the trialjudge erred by admitting similar fact evidence without deciding whether it met the reasonably capable of belief standard.

Rather, asmentioned above, it alleges that the trial judge erred by failing to admit the similar fact evidence as a by-product of having finallydetermined reliability “without considering whether the reliability of each complainant might be enhanced by the admission of similar factevidence”. It says that this was the result of, among other things, the failure to apply the reasonably capable of belief standard and,instead, making a final determination as to the reliability of the complainants’ evidence at the admissibility stage. [97] The first question that arises is whether he erred in this fashion.

If he did, the second is whether that error had any materialimpact or whether he, nonetheless, considered the similar fact evidence in a way that addressed the right questions. [98] Here, the trial judge organized the analysis part of his decision by first addressing the evidentiary issue relating to memory andcommon sense, which, as mentioned, forms one of the Crown’s first ground of appeal.

After determining that issue, the trial judge laid outhow he would proceed (Trial Decision): [61] I have concluded I should first analyze the reliability of the evidence of each of the complainants, on a stand-alone basis, withoutconsideration of similar fact evidence. If I find the evidence so analyzed is sufficiently reliable to justify me finding a sexual touching hasbeen proven beyond a reasonable doubt, then consideration of similar fact evidence may be moot and not considering it would avoid thepotential prejudices that could arise from relying upon it.

On the other hand, if reliability concerns leave me undecided at that stage, thenconsideration of admissible similar fact evidence may assist in my ultimate decision. [99] This statement sets out the road map that the trial judge intended to follow. He was clear: he would begin by analyzing thereliability of the complainants’ evidence. If he found their evidence sufficiently reliable, the admission of the similar fact evidence, hesaid, was self-evidently unnecessary.

However, as the trial judge went on to say, if he had concerns with their reliability, such that he wasleft undecided on the issue, he would then consider whether the “similar fact evidence may assist in [his] ultimate decision” (at para 61). [100] This self-instruction is inconsistent with the two-stage analysis. A trial judge should first decide whether similar fact evidencecan be admitted, by applying the reasonably capable of belief standard – doing so before determining whether the offences charged havebeen proven beyond a reasonable doubt.

The two-stage process is designed to ensure that similar fact evidence is admitted if theconditions relating to its probative value have been met. Approaching the question of admissibility in the manner the trial judge did tendsto blur the lines between the two stages, increasing the likelihood that a trial judge will decide to improperly admit or improperly excludethe evidence. [101] On the face of it, that is exactly what occurred here.

Let me clarify. [102] To begin, I note that the Crown points to several specific passages from the Trial Decision that, in its view, tend to suggest thetrial judge made a final determination of the complainants’ re

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