R. v. Bissonnette, 2023 MBKB 113

Date: 20230706 Docket: CR 22-01-39126 (Winnipeg Centre) Indexed as: R. v. Bissonnette Cited as: 2023 MBKB 113 COURT OF KING’ S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, -and- ) Renée D. Lagimodière ) Patrice K. Miniely ) for the Crown ) ARCEL BISSONNETTE, accused. ) Martin S. Minuk ) Josh A. Weinstein ) Lisa D.

LaBossière ) for the accused ) ) Judgment Delivered : ) July 6, 2023 Restriction on Publication : Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. RULING ON THE CROWN’S SIMILAR FACT APPLICATION BOND J. Introduction [ 1 ] The accused, Arcel Bissonnette, is a family doctor charged with five counts of sexual assault contained on one Indictment.

Each of the five complainants testified to an incident (or incidents) of alleged sexual assault during a medical appointment. [ 2 ] The Crown is seeking a ruling that evidence given by each of the five complainants is admissible in relation to every other count on the Indictment as similar fact evidence. This is often referred to as a cross-count similar fact evidence application. The defence opposed the application. [ 3 ] The evidence is presumptively inadmissible.

In the usual course, a trial judge must consider only the evidence that is called in relation to each count on the Indictment in determining whether the Crown has proved the charge. Evidence given by the complainants in relation to each of the remaining counts cannot be considered ( R. v. Tomasetti , 2000 MBCA 136 , at para. 30 ). However,

exceptionally, the evidence of each of the complainants on all counts in the Indictment may be ruled admissible in relation to other counts pursuant to the similar fact rule. For the reasons that follow, I am satisfied that the evidence in this case meets the threshold test for admissibility as similar fact evidence. Issues [ 4 ] The test for admission involves a balancing of the probative value of the evidence against its prejudicial effect ( see R. v. Handy , 2002 SCC 56 , at paras. 42 and 49 ). [ 5 ] In this case, the balancing requires that I address the following issues: 1.

What is the probative value of the evidence? 2. What prejudice would result from the admission of the evidence? 3. Is the probative value outweighed by the prejudicial effect? Background [ 6 ] Before turning to the issues, I will provide some background regarding the timing of this application and the evidence to be considered, a glossary of terms used in this judgment, and a

summary of the allegations and pertinent testimony of Dr. Bissonnette. Timing of the Application and the Evidence to be Considered [ 7 ] The Crown evidence consisted of the testimony of the five complainants and expert opinion evidence provided by Dr. Kimberly Wintemute. Dr.

Wintemute was qualified to give opinion evidence as an expert in family medicine, and in particular regarding conduct of physical examinations, when manoeuvers and/or investigations are necessary and appropriate, and communication in examinations. [ 8 ] The parties prepared a statement of agreed facts that was filed as part of the Crown’s case regarding the dates and related details of the attendance of each of the complainants to Dr. Bissonnette’s clinic. I will refer to these below. [ 9 ] It was also an agreed fact that on November 5, 2020, the Sainte-Anne Police issued a media release that identified Dr.

Bissonnette and stated that he was charged with six counts of sexual assault and was alleged to have sexually assaulted six patients between 2004 to 2017 (the “media release”). The media release stated that police wanted to ensure that there were no other victims and asked anyone with information to come forward. The media release was broadcast by numerous media outlets between November 5 and 6, 2020. Each of the five complainants in the case before me contacted the police after seeing this media release.

The media release included no details of the allegations. [ 10 ] The Crown sought to argue its similar fact application at the close of its case. The defence argued that the application should be deferred until I had heard all of the evidence called by both the Crown and defence in the trial. The Crown argued, in part, that deferring the argument until after a defence case had been called would conflate issues of admissibility with issues that go to the weight of the evidence and the ultimate determination of the verdict at the end of trial.

Crown counsel argued that the similar fact ruling sought is one of threshold admissibility of evidence in the Crown’s case, and that any defence evidence would be irrelevant to the task. Defence counsel argued that defence evidence, in particular the testimony of Dr.

Bissonnette, would be relevant to, and should be taken into account in deciding, the Crown’s similar fact application. [ 11 ] I acceded to the defence request to defer argument, and in doing so stated inter alia : The Crown’s concerns about conflating the issues of admissibility and ultimate weight can be addressed, as suggested, by hearing argument on the similar fact application, and ruling on that application, before final submissions are made on the proper verdict for the case. …. Whether or not the accused’s testimony is relevant to the similar fact application remains to be determined.

I cannot make that determination without hearing the evidence. It may be that ultimately the defence evidence has no bearing on the decision regarding the admissibility of the similar fact evidence. But it is unnecessary, and not reasonably possible, to make that determination at this stage. …. [T]he determination as to whether the defence evidence has any relevance to the decision on the similar fact application remains to be considered.

[ 12 ] The defence evidence consisted of the testimony of Dr. Bissonnette, and the expert opinion evidence of Dr. Allan Covens. Dr. Covens was qualified to give opinion evidence as an expert in gynecological and pelvic examinations, gynecological cancers, colposcopy, pre-invasive lower genital tract abnormalities, gynecological surgeries, gynecological procedures, breast examinations and anoscopy. [ 13 ] In their argument opposing the similar fact application, defence counsel maintained that the defence evidence should be taken into account in deciding it.

They argued that the expert opinion evidence provided context against which each of the complainant’s allegations should be considered. They also argued that the expert evidence and Dr. Bissonette’s testimony should be considered in the assessment of the reliability and credibility of each complainant’s testimony. [ 14 ] The Crown maintained that the defence evidence should not be considered at this stage.

The Crown again raised concerns about conflation of issues related to their similar fact application and issues related to the ultimate decision in the case. [ 15 ] As I will explain, in my view, the defence evidence has some limited bearing on the admissibility inquiry regarding the similar fact application and so it will be considered to a limited extent. It focuses the assessment of the probative value of the evidence by clarifying the factual issues in dispute. Dr.

Bissonette denied some of the allegations and otherwise said that he conducted necessary and appropriate medical examinations to which the complainants consented. The issues then are credibility and reliability of each complainant’s testimony and in particular in relation to the issue of consent. Of course, final determinations of credibility and reliability of the testimony of any and all witnesses are not to be made at this stage.

Glossary of terms [ 16 ] Because there were some inconsistencies regarding the use and meaning of certain terms related to the medical examination of female patients by the various witnesses in this case I will use the following words with the following

definitions, derived from the evidence: 1. Speculum examination: an examination using a medical device (speculum) that is inserted in the vagina, and opened to allow the doctor to see the inside of the vagina and the cervix. This examination frequently includes taking a sample of cells from the cervix for the purpose of Pap testing for abnormality and swabs for testing for sexually transmitted infection (“STI”); 2.

Bimanual examination: an examination whereby the doctor inserts one or two fingers of one hand inside the patient’s vagina and palpates the patient’s abdomen with their other hand to examine the patient’s uterus, ovaries and fallopian tubes (adnexa). This examination was also referred to in the evidence as a vaginal examination; 3. Pelvirectal examination: an examination whereby the doctor concurrently inserts one finger (usually the index finger) into the vagina of the patient and one finger (usually the middle finger) of the same hand into the rectum of the patient. Dr.

Wintemute testified that this examination is rarely conducted by family doctors but may be used in the practice of gynecologic oncology to examine the area of the body located between the vagina and the rectum. Dr. Covens referred to this as a vaginal-rectal examination and testified that it is used routinely to examine the internal pelvic region, and in particular the posterior pelvic region. He described a procedure similar to the bimanual examination with palpating on the abdomen while fingers are inserted in the vagina and rectum; 4. Pelvic examination: an examination of the internal organs of the pelvis.

There is inconsistency in the evidence regarding the types of examinations that may be included in a pelvic examination. Specifically, Dr. Wintemute testified that the pelvirectal examination would not be part of a routine pelvic examination conducted by a family doctor. Dr. Bissonnette testified that he conducted a pelvirectal examination as a matter of routine in pelvic examinations. Dr. Covens testified that as a gynecologic oncologist, he would conduct a pelvirectal examination as a matter of routine in a pelvic examination.

It was not disputed that the pelvic examination would include a bimanual exam as described above; and 5. Complete physical examination: a “head to toe” examination where the doctor reviews the patient’s systems usually including cardiovascular, muscular skeletal, gastrointestinal, etc. In women, this might include a gynecological examination and breast examination, although there is some disagreement in the evidence about which types of examinations would be routinely included in a complete physical examination.

Summary of the Allegations [ 17 ] I will briefly summarize below the allegations, along with Dr. Bissonnette’s testimony regarding each. This

summary is only as extensive as necessary for this ruling. B.K. [ 18 ] B.K. testified that she had been a patient of Dr. Bissonnette’s for a number of years, and had seen him on a number of occasions for physical examinations. At one of those examinations, while he was conducting a pelvic examination Dr. Bissonnette moved his fingers in and out of her vagina about four times. She said it felt different from previous examinations that he had conducted. She testified that after the examination she observed a bulge in the front of his pants that she believed to be an erection.

She testified that she reported this to a different doctor at the same clinic, and did not see Dr. Bissonnette again after that appointment.

[ 19 ] There were inconsistencies identified between B.K.’s original statement to police and her testimony at the trial. She acknowledged that her memory regarding details was not strong. She also acknowledged that she may have seen Dr. Bissonnette after the appointment where she observed an erection, but said it was for a complaint about her arm or foot and not a complete physical. The statement of agreed facts indicated that B.K. was a patient of Dr. Bissonnette’s from 2001 to 2020 and that she saw Dr.

Bissonnette for a complete physical in 2015 that included an “internal pelvic examination”. [ 20 ] When challenged in cross-examination, B.K. testified that the media release had not triggered her memory of the incident. In fact, her memory was never lost and she had thought about the incident often in the years since it happened. Rather, she said the media release made her realize that she was not alone. [ 21 ] In his testimony, Dr. Bissonnette said that he recalled B.K. as one of his patients.

He testified that he would have conducted a breast examination, a bimanual examination, and a pelvirectal examination during his examination of B.K. in 2015 (B.K. denied that this pelvirectal examination occurred). He denied having moved his fingers in and out of B.K.’s vagina. Dr. Bissonnette denied having an erection. L.C. [ 22 ] L.C. testified about examinations conducted by Dr. Bissonnette in 2001 when she saw him for abdominal pain following surgery to remove an ovarian cyst. He did vaginal, rectal and breast examinations.

During the vaginal examination he inserted his fingers in her vagina and moved them back and forth turning them. She said there was a lot of “in and out.” She observed that he was watching what he was doing and this was unusual to her because doctors usually look away when performing this kind of examination. During the rectal examination, he similarly moved his fingers in and out, and there was “a lot of prodding.” Again, he was watching what he was doing. She testified that he did not tell her he was going to do the rectal examination and she was not expecting it.

He also put one finger in her rectum and one finger in her vagina. She did not expect this and he did not tell her that he was going to do it. He also examined her breasts, which she felt was unnecessary because she had attended for abdominal pain. [ 23 ] In cross-examination, L.C. acknowledged there were many details that she could not recall. Several inconsistencies between her testimony and prior police statements were identified. Certain details she described in her testimony were not included in her statements to police. She explained that she was anxious, ashamed and did her best to say what she remembered.

When asked in cross-examination about how the media release impacted her understanding and recall of the alleged incident she said that it did not feel right at the time and when she heard he was charged it made sense. She said that she did not want it to be true and she had tried to deny it. [ 24 ] The agreed facts confirmed that L.C. saw Dr. Bissonnette on August 3, 2001 because she was continuing to experience pain in her pelvis/lower abdomen following the removal of para-ovarian cysts on June 6, 2001.

On June 18, 2001 and again on July 18, 2001, L.C. had attended other doctors as a follow-up after surgery, and to address ongoing pain. It was agreed that on those two occasions a pelvic examination was not performed. It was also agreed that following her attendance to see Dr. Bissonnette on August 3, 2001, an ultrasound and bloodwork were ordered, and results were received from those examinations afterwards. [ 25 ] Dr. Bissonnette testified that he had a vague recollection of L.C.’s visit, despite the fact that L.C. was not a regular patient, and saw him only this one time approximately 20 years ago.

Refreshing his memory from a medical record, he testified that he had conducted a bimanual and a pelvirectal examination on L.C. but had not conducted a breast or rectal examination. He said that he had conducted the examinations in an effort to identify the source of L.C.’s pain. L.G. [ 26 ] L.G. testified about multiple appointments when she saw Dr. Bissonnette and he conducted various examinations. She described lengthy breast examinations, and lengthy vaginal examinations where Dr. Bissonnette would insert, remove and then reinsert his fingers.

She described his other hand kneading her abdomen gently with the palm of his hand. Throughout these examinations she was completely naked because he would remove the paper sheet she had been given to cover herself and put it aside. On one occasion she observed him to have an erection. During another appointment in 2016, he wanted to do a vaginal examination and she refused because she had just had one six weeks prior. She testified that she continued to see Dr.

Bissonnette despite her concerns about his conduct because she was unable to find another doctor. [ 27 ] In cross-examination, L.G. acknowledged that her recollection of when any of these examinations occurred was not clear. She could not recall whether she had stopped seeing Dr. Bissonnette after the birth of her first child or second. She testified that she did not recall Dr. Bissonnette to ever perform a pelvirectal examination, but did recall a rectal examination one to three times.

When cross- examined about the media release she said that she felt guilty for not speaking up sooner because she knew something was wrong at the time and she should have trusted her gut. [ 28 ] The agreed facts confirmed that L.G. was a patient of Dr. Bissonnette from 2002 to 2017. She saw Dr. Bissonnette for complete physical examinations on August 23, 2006, September 12, 2007, April 1, 2009, February 6, 2012, and July 16, 2014. She also saw Dr. Bissonnette on June 21, 2012 for her first prenatal visit. She saw Dr. Bissonnette again on August 19, 2015 for a first prenatal visit.

At each one of the general physical and prenatal visits a Pap smear and STI swab was obtained. [ 29 ] Dr. Bissonnette testified that he recalled L.G. as a regular patient. Refreshing his memory from medical records, he testified that between 2002 and 2017 he had seen her five times for complete physical examinations and twice for pre-natal examinations. He would have conducted a bimanual examination on each of the occasions when he saw L.G. He also said he would have conducted pelvirectal examinations as part of the physical examinations but not as part of prenatal examinations. He denied ever having an erection.

B.D.

[ 30 ] B.D. testified that she had been a patient of Dr. Bissonnette and on three occasions he had inserted an instrument that she believed to be a speculum into her rectum. She said he did this without her prior knowledge or consent. On the first occasion, she saw Dr. Bissonnette for a referral due to an external hemorrhoid that she wished to have removed. Dr. Bissonnette had her position herself on the examination table on all fours and inserted the speculum into her rectum and opened it up. He had told her that he was going to examine her rectum, but had not referred to using the speculum.

On the second occasion, she attended for a complete physical and he did a breast examination and vaginal examination. Again, he had her positon herself on all fours and inserted a speculum into her rectum. He had not told her in advance he was going to do this. She was naked at the time because the sheet she had been given had fallen aside when she was on her hands and knees. He then had her stand with her back to him and bend over while she was completely naked. As she did so, he put his hands on her hips. On the third occasion, she testified that although she had requested “just a Pap test”, Dr.

Bissonnette also conducted a breast examination, vaginal examination, and examination of her rectum using a speculum. On this occasion she observed that he had an erection. [ 31 ] In cross-examination, B.D. acknowledged that she had been confused about the dates of her appoitments with Dr. Bissonnette when she gave her police statement but was confident that the “bend over test” had been done at an appointment in 2013.

She also acknowledged that what she thought was an erection could have been a bulge in his pants caused by a zipper, but that she believed it was an erection. [ 32 ] When asked about the media release she said that she felt validated and compelled to come forward. She said she knew what happened was wrong. [ 33 ] The agreed facts confirmed that B.D. was a patient of Dr. Bissonnette from 2009 to 2018. She saw him on August 10, 2010 for a complete physical.

She saw him again on December 28, 2011, complaining of severe heartburn and a problem with hemorrhoids for which she previously had a sigmoidoscopy and a banding procedure. Her medical record from that date states that she “still has some hemorrhoid present”. Dr. Bissonnette referred B.D. to Dr. Galessiere. On February 8, 2012 B.D. saw Dr. Galessiere at which time a plan for excision of a hemorrhoidal skin tag was made. B.D. saw Dr. Bissonnette for a complete physical on May 29, 2013 and June 12, 2014. She saw Dr.

Bissonnette again on April 3, 2017, for what was labelled in the medical record as “a Pap only” appointment. [ 34 ] Dr. Bissonnette testified that at B.D.’s first appointment with him he would have conducted the bend over test (also known as the “Adam’s Forward Bend Test”) to check for scoliosis of the spine. He agreed that he conducted this test while B.D. was naked. He denied touching her, but said he put his hands out in front of him to ensure that she was at an appropriate distance from him for him to observe the movement of her back. He was also looking at her skin for possible skin cancer.

He said that at the December 2011 appointment he conducted an anoscopy examination to rule out cancer, irritable bowel syndrome, or colitis as possible causes of her symptoms. (He did not identify which symptoms he was referring to.) For the anoscopy he had B.D. assume the “knees and elbows” position that he had learned at medical school. He testified that his diagnosis for B.D. was “hemorrhoids” and he referred B.D. to see another doctor for the removal of a hemorrhoidal skin tag. He denied doing an anoscopy on any other date, and denied using a speculum.

Regarding the April 3, 2017 appointment, he testified that he had recommended a full physical even though B.D. had requested “a Pap only.” He denied inserting an instrument into B.D.’s anus on that occasion. He denied having an erection. R.G. [ 35 ] R.G. testified that she first met Dr. Bissonnette when she attended at an emergency room because she was pregnant and experiencing abdominal cramping and pain. She attended a follow-up appointment at Dr. Bissonnette’s clinic and he conducted a vaginal examination. She testified that he rubbed lubricant all over her labia as well as inside her vagina.

She described his fingers moving over and between her labia in U-shaped and circular motions, and in and out of her vagina slowly. She felt it took longer than necessary for an examination and that it felt like something done with a sexual partner. Dr. Bissonnette was sitting down between her legs with her feet in the stirrups when he did this. She testified that she told her husband about it and did not want to see Dr. Bissonnette again. [ 36 ] In cross-examination, R.G. admitted that she did not recall many details regarding what Dr. Bissonnette did or said during this visit.

However, she denied the suggestion that she only retrieved her memories of the alleged assault after seeing the media release. She said the memory came rushing back to her. [ 37 ] The agreed facts confirmed that R.G. saw Dr. Bissonnette at Sainte-Anne’s hospital on May 24, 2015, where he was on call. She was pregnant and having abdominal pain. An ultrasound was ordered by Dr. Bissonnette and conducted on May 25, 2015, and another ordered by a different doctor on June 11, 2015. R.G. saw Dr. Bissonnette at the clinic on June 18, 2015 for her ultrasound results.

She saw him again at the clinic on June 24, 2015 for her first prenatal visit. A Pap smear and cervical swab were collected on that visit. [ 38 ] Dr. Bissonnette testified that he did abdominal, bimanual, and speculum examinations on R.G. at her prenatal visit on June 24, 2015. He testified that he applied a small amount of lubricant at the opening to her vagina, but did not rub the lubricant on her labia.

Refreshing his memory from medical records, he also testified that he saw R.G. again on July 22, 2015 for a further prenatal visit and again in 2018 at the hospital where he saw her for a concern regarding her caesarean

section incision. Pertinent Testimony of Dr. Bissonnette [ 39 ] I have already referred to some of the testimony of Dr. Bissonnette in relation to each of the complainant’s allegations. Here I will summarize further testimony of Dr. Bissonnette, but only to the extent that it is necessary for this application. [ 40 ] Dr. Bissonnette testified that he began practice in 1990 in Ste. Anne, and so has practised over 30 years as a family physician.

His practice has included providing care to female patients, that invloved the conduct of breast examinations, pelvic examinations, taking swabs for Pap tests and STI tests, pelvirectal examinations, and prenatal examinations. Although it is difficult to ascertain with precision, he estimated that he conducted an average of at least one complete physical examination on a female patient per day, five days per week, and at least one further pelvic examination per week in relation to a particular concern presented by a female patient.

[41] Dr. Bissonnette testified that he learned to do pelvic and breast examinations, as well as complete physical examinations, in thegynecology and oncology rotations during the clerkship and internship phase of his medical training. He testified that in his practice heroutinely conducted a pelvirectal examination, along with a speculum examination and a bimanual examination as part of a pelvicexamination. He denied moving his fingers in and out of any patient’s vagina during a bimanual examination.

He described, anddemonstrated, the movement of his fingers during a bimanual examination inside a patient’s vagina, from one side, to the middle, andthen to the other side. This might include a slight retraction of his fingers to reposition them. [42] He testified to his usual practice for communicating with his patients and obtaining their consent to conduct examinations. Generally, this entailed speaking with the patient before the commencement of the examination while she was still clothed and seated ona chair.

He would then provide the patient with a paper sheet and ask her to disrobe and sit on the examination table. He would leavethe room to allow the patient to disrobe and then return to conduct the examination. From his perspective, a patient’s consent wasindicated by her disrobing and by her assuming the necessary position on the table for the examination. He testified that he would talk topatients during the exanimations such as to ask them about whether they are experiencing pain. [43] Dr. Bissonnette denied ever experiencing any kind of sexual arousal related to the conduct of examinations of his patients.

Analysis Issue #1 - What is the probative value of the evidence? [44] The inquiry entails consideration of the following questions:

a) What is the issue in question to which the evidence relates and what chain of reasoning links the evidence to the issue?

b) How strong is the link between the evidence sought to be admitted and the issue in question?

c) Is the link undermined by collusion or innocent contamination?

d) Is the evidence reasonably capable of belief? (See R. v. Bent, 2016 ONCA 651, at paras. 35 to 45) [45] I will address each question in turn.

a) What is the issue in question to which the evidence relates and what chain of reasoning links the evidence to the issue? [46] In R. v. Laporte (PLR), 2016 MBCA 36, the Manitoba Court of Appeal provided a helpful description of the assessment ofprobative value in the context of a similar fact application as follows: [143] Similar fact evidence will only be considered probative if a trier of fact is able to infer from that evidence that 1) the accused has asituation-specific propensity; and 2) the accused acted in conformity with that propensity in the situation leading to the charges.

Theseare referred to as the “double inferences” (Handy at para 29). See also Shearing at para 31. [144] When considering the probative value of similar fact evidence, the similarities between the disreputable conduct and the chargesin issue must be such that the double inferences can be made, and it would be an affront to common sense to suggest that the similaritieswere coincidental.

See Sopinka J, dissenting in R v B (CR), (SCC), [1990] 1 SCR 717 at p 751, and quoted at para 41of Handy. [145] Probative value will exceed prejudice where “the force of similar circumstances defies coincidence or other innocent explanation”(Handy at para 47). In other words, it is the objective improbability of coincidence that underpins the admission of similar fact evidence. See Arp at para 44. [146] In Handy, the probative value of similar fact evidence “can only be determined in light of the purpose for which the evidence isproffered” (at para 69).

The importance of identifying the issue in question is that the trier of fact may only use the evidence in relationto that issue and not otherwise (see para 70).

Similar fact evidence cannot be admitted solely to prove that the accused has a generaldisposition for misconduct or is otherwise of bad character (see para 72). [emphasis in original] [147] The degree of connectedness between the similar fact evidence and the alleged offence will determine probative value,particularly if the connections reveal a “degree of distinctiveness or uniqueness” (Arp at para 43), such that the objective improbability ofcoincidence has been established.

See also Handy at para 76. [148] Where the issue is identification of the offender, similar fact evidence will not be admissible unless it reveals a propensity whichis so highly distinctive or unique as to amount to a “signature” (Handy at para 77).

[149] However, where the issue in question is not identification, a “signature” is not required, nor is it necessary to show a “strikingsimilarity” (Arp at para 44). See also Shearing at para 50; and B (CR) at p 729.

Instead, as indicated by Binnie J in Handy quoting fromGrange JA in R v Carpenter (1982), (ON CA), 142 DLR (3d) 237 (Ont CA) at p 244 (at para 78): The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to beintroduced and the other evidence. [47] The Court in Laporte highlights the importance of identifying the issue in question to which the similar fact evidence refers. That is, probative value must be determined in light of the purpose for which the evidence is proffered. [48] This is not an identification case.

It is not a case where a crime has clearly been committed but the perpetrator is unknown, suchas in Tomasetti. In this case, the question is whether a crime was committed. Like in Handy: 78 The issue in the present case is not identification but the actus reus of the offence. The point is not that the degree of similarity insuch a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency inrelation to the desired inferences will be therefore not be the same. … [49] This case is about whether Dr.

Bissonnette committed a sexual assault in relation to each of the five complainants named in theIndictment. Ultimately, the Crown must prove beyond a reasonable doubt that Dr. Bissonnette committed a sexual assault on L.C. forthere to be a conviction on Count one, on B.D. for Count two, on R.G. for Count three, on L.G. for Count four and on B.K. for Countfive. [50] The actus reus of sexual assault requires proof of touching of a sexual nature without consent. The mens rea requires proof of anintention to touch and knowledge of the absence of consent (R. v. G. F., 2021 SCC 20, at para. 25).

This description of the elementsrequired for proof of sexual assault is deceptively simple, particularly in a case such as this where the allegations arise in the context ofmedical examinations and a doctor-patient relationship. It is, however, the starting point for my analysis. [51] The Crown argued that the similar fact evidence sought to be admitted here is relevant to proof of the actus reus of the allegedoffences, in that it is relevant to the credibility of the complainant’s allegations, and tends to establish a pattern of conduct (modusoperandi) on the part of Dr. Bissonnette.

The Crown also argued that it is relevant to rebut “innocent association” and allegations offabrication. [52] Regarding the actus reus, some of the touching alleged by each of the complainants is admitted by Dr. Bissonnette, and some isdenied. Whether admitted or denied, all of the allegations (with the exception of B.D.’s allegation related to the bend over test) involvetouching of parts of each of the complainants’ bodies that are recognized as inherently sexual: breasts, vulva, vagina, anus, and rectum. Each of the complainants ostensibly consented to Dr.

Bissonnette touching parts of their bodies on the understanding that it was for amedical purpose. However, each allege that Dr. Bissonnette touched them in ways that was not consistent with what they expected in amedical examination. [53] In the context of sexual assault, consent has been held to involve the voluntary agreement to the touching in question, as well asits sexual nature (G. F., at para. 29). Moreover, s. 265(3)(

c) of the Criminal Code, R.S.C., 1985 c. C-46 (the “Code”), states that “…noconsent is obtained where the complainant submits or does not resist by reason of … fraud.”

Section 273.1(2)(

c) of the Code states that“…no consent is obtained if the accused induces the complainant to engage in the [sexual] activity by abusing a position of trust, poweror authority.” [54] The theory of the Crown’s case against Dr. Bissonnette in relation to each of the complainants is that he engaged in sexuallytouching her under the guise of a medical examination. The touching he is alleged to have engaged in was either not a necessary orappropriate examination at all, or was not necessary or appropriate as part of an otherwise necessary or appropriate examination. TheCrown alleges that Dr.

Bissonnette touched each of the complainants for a sexual purpose; the touching was sexual not medical. TheCrown says that it is not material whether the alleged crimes are viewed as sexual touching without consent to the sexual nature of thetouching or because the consent was vitiated by fraud.

A central issue is consent, and the credibility and reliability of eachcomplainant’s testimony is central to the question of whether the Crown has proved the absence of consent in relation to each Count. [55] Admissibility of similar fact evidence is characterized in Handy as a narrow exception to the general rule of exclusion ofevidence of previous misconduct. It is restricted to circumstances where, citing R. v.

B.(C.R.), (SCC), [1990] 1 SCR717 at p. 751, “…it would be an affront to common sense to suggest that the similarities were due to coincidence” (Handy, at para.41). [56] The Court in Handy continues as follows: 42 The “common sense” condemnation of exclusion of what may be seen as highly relevant evidence has prompted much judicialagonizing, particularly in cases of alleged sexual abuse of children and adolescents, whose word was sometimes unfairly discountedwhen opposed to that of ostensibly upstanding adults.

The denial of the adult, misleadingly persuasive on first impression, would meltunder the history of so many prior incidents as to defy innocent explanation. That said, there is no special rule for sexual abuse cases. Inany case, the strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice”. The

inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. Although an element of “moral prejudice” may be introduced, it must be concluded by the trial judge on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created. [ 57 ] In my view, these comments are fitting in this case.

For example, the claim of an individual complainant that her doctor, while conducting a pelvic examination, removed and inserted his fingers several times may be explained away as misperception and/or misunderstanding of the examination being conducted. This innocent explanation becomes less believable when there are multiple allegations of a similar nature made by other patients. [ 58 ] The similar fact principles are applied in the health care context at paras. 107 to 112 of R. c. Agapiadis , 2019 QCCQ 7840 .

There, the accused was a naturopath and the Court noted that the similar fact evidence may be admitted to show a pattern of importing a sexual component into the professional relationship (at para. 110). [ 59 ] In this case, the double inference the Crown seeks to invoke with the similar fact evidence is: 1) that the accused had a situation specific propensity to engage in sexual touching of his patients under the guise of a medical examination; and 2) that he acted in conformity with that propensity in relation to each of the complainants named in each count on the indictment ( see Laporte , at paras. 143 and 156 and R. v.

Shearing , 2002 SCC 58 , at para. 31 ).

b) How strong is the link between the evidence sought to be admitted and the issue in question? [ 60 ] In Handy , at para. 82 , the Court suggests a number of factors that may be relevant to the assessment of the link between the evidence sought to be admitted and the issue in question. These factors are not exhaustive and not all will be relevant in every case ( Laporte , at para. 150 ).

Proximity in time [ 61 ] Although the time span over which the allegations in this case occurred is somewhat lengthy, four of the five fall within overlapping time frames: L.C. is 2001; B.D. is 2011 to 2017; R.G. is 2015; L.G. is 2006 to 2015; and B.K. is 2015. There are five complainants and a total of 11 occurrences over a period of 16 years.

Recognizing that the allegation of LC is somewhat of an outlier, this is not a circumstance where the evidence sought to be admitted is so remote in time as to raise concerns that even if there is a pattern of conduct demonstrated the continuity of that pattern of conduct may be called into question. [ 62 ] As explained in Handy , at para. 122 , a lapse of time may raise the possibility that an accused has reformed, and so the expectation of continuity of character or disposition may be undermined.

For example, if this case involved a series of allegations from 2001 to 2006, and then one allegation in 2017, it might not be reasonable to admit evidence establishing the earlier pattern as evidence in relation to the 2017 allegation. [ 63 ] However, that is not the case here. In this case, I ask myself, would it be unreasonable to admit the evidence of the allegations from 2006 to 2015 to the charge that is alleged in 2001, on the basis that although it may demonstrate a pattern of conduct between 2006 and 2015, it is unreasonable to consider that the pattern began before 2006? I do not think so.

The dates are sufficiently close to each other, with allegations arising with sufficient frequency within the timeframe, that they may all be probative of a pattern of conduct over the entire time frame. That the time frame extends over 16 years may, if the evidence is accepted, show consistency of behaviour over the long-term ( see Shearing , at para. 51 ). Similarity vs. dissimilarity [ 64 ] The inquiry about similarity and dissimilarity includes, but is not limited to, the alleged sexual acts themselves.

It includes the surrounding circumstances as well as the nature of the touching alleged as the actus reus of the offences ( Shearing , at paras. 52 and 54 ). [ 65 ] Although the allegations of the complainants are not identical to each other, I find that there are similarities both in surrounding circumstances and in the allegations themselves. [ 66 ] Each of the five complainants alleged that Dr. Bissonnette touched a sexual part of her body during a medical examination in a manner that, from her perspective, was not consistent with the touching being for medical purposes.

Four of the five complainants testified that Dr. Bissonnette moved his fingers in and out of her vagina three or more times during a vaginal examination. B.K., L.C., R.G. said this happened on one visit. L.G. said it happened on several visits. Two complainants (L.C. and B.D.) described unexpected penetration of the anus. One described an unusually lengthy breast examination, another described an unnecessary breast examination. Four of the five complainants described an absence of communication during the examinations; Dr. Bissonnette did not tell them what he was doing or why.

L.C. said there was “a lot of silence.” L.G. said he was “generally silent.” B.K. said “He didn’t talk much.” B.D. said Dr. Bissonnette did not use many words. R.G could not recall what Dr. Bissonnette said. Three of the complainants (B.K., B.D. and L.G.) described a bulge in Dr. Bissonnette’s pants that they believed to be caused by an erection. [ 67 ] The Crown also points to similarities in surrounding circumstances to support its application. The Crown points out that all of the complainants were women seeking medical care. They were alone with Dr.

Bissonnette and in a state of undress, when the alleged offences occurred. The defence says that these similarities in circumstances are too generic and not specific enough to bear upon the test for admission. [ 68 ] It is true that some of the details relied on by the Crown are generic to a medical appointment such as that each of the complainants was alone with Dr. Bissonnette, and that they were disrobed. In my view, however, there are sufficient specific details to justify admission of the evidence as similar fact. One can imagine the myriad of circumstances that could have been present but were not.

This is not a situation where some of the complainants said Dr. Bissonnette was silent and others said he was chatty. None of the complainants allege, for example, overtly sexual comments, or clearly non-medical sexual touching such as kissing, oral genital contact, or sexual intercourse. If I accept the evidence of each of the complainants, each describes sexual touching that from her perspective was inconsistent with that to which she had consented under the guise of a medical examination.

[ 69 ] It is important to note that it is unnecessary for all of the details in each of the allegations to be similar or exactly the same ( see Agapiadis , at para. 111 ). [ 70 ] The analysis is not simply an accounting of similarities vs. dissimilarities ( see Shearing , at para. 60 ). [ 71 ] Like in Shearing , the cogency of the evidence in this case rests on the inference that Dr. Bissonnette has a situation specific propensity and that he acted that way with each of the complainants. Here the situation specific propensity relates to Dr. Bissonnette committing offences in the context of his medical practice.

The Crown argues that like in Shearing , Dr. Bissonnette created or took advantage of opportunities to offend sexually in the course of his medical practice. The similarities between the complainants’ respective allegations inevitably arise as components of Dr. Bissonnette’s medical practice. That these similarities are not each themselves criminal or inappropriate in nature does not mean that they are irrelevant to the analysis. They are components of the opportunity that the Crown says Dr.

Bissonnette sought to take advantage of to commit sexual assaults. [ 72 ] Further, the similarities are not only in relation to the so-called generic surrounding circumstances such as the absence of a chaperone or that the complainant was disrobed. There are quite striking similarities in the descriptions given by four of the five complainants regarding the movement of Dr. Bissonnettes fingers inside her vagina, as well as the general absence of communication.

c) Is the link undermined by collusion or innocent contamination? [ 73 ] As conceded by the defence, there is no evidence of actual collusion between the complainants in this case. Indeed, there is no air of reality to any claim that the complainants had the opportunity to collude or that they discussed their testimony. There is no evidence that they knew one another or had any communication with one another before or after contacting the police about Dr.

Bissonnette. [ 74 ] However, the defence argued that the possibility of tainting or contamination of each complainant’s evidence by the media release published in 2020 should undermine the Crown’s application. The media release specifically identified Dr. Bissonnette as having been charged with sexual assaults on his patients. The complainants that testified before me all disclosed their allegations to police after becoming aware of this media release.

The media release played a role in motivating each of these complainants to contact the police. [ 75 ] The media release did not include any details of the allegations that were the basis for the charges laid against Dr. Bissonnette before the release. In my view, there would be no merit to any suggestion that the description of what Dr. Bissonnette allegedly did, given by any of the complainants who testified before me, was influenced by the media release. [ 76 ] A concern could be raised that the complainants might not have identified their experience with Dr.

Bissonnette as being a sexual assault until seeing the media release. However, all of the complainants testified that they felt at the time of the incidents that the touching was wrong or not appropriate. This was not a realization that came to them only after the media release. [ 77 ] Each of the complainants testified that the media release prompted them to contact the police about something that they knew had happened to them and that they believed to be inappropriate. B.K. testified that after seeing the media release she felt a duty to tell her story.

When it was suggested that the media release triggered her memory, she denied this. She said that the memory had not been lost to her and she had thought about it often. The media release made her realize that she was not alone, and she felt a duty to come forward. [ 78 ] L.C. felt morally obligated to speak to the police. She had tried not to think about the incident over the years. When it was suggested to her in cross-examination that knowing that Dr. Bissonnette had been charged made her conclude that what she experienced was a sexual assault, she denied this. She said she knew it at the time.

L.C. testified that immediately following the incident she knew it was wrong and she sat in her car in the parking lot of the clinic feeling upset and in shock. She did not want to accept that it had happened to her and this led to a lot of self-doubt. In the interim, she saw a therapist who helped her develop confidence and get rid of the shame. [ 79 ] L.G. testified that when she saw the media release, she felt both guilty and vindicated. She felt guilty that she had not come forward earlier. She felt that she should have trusted her gut because she knew something was wrong.

When cross-examined about the media release, she said that she could not recall whether she had heard that Dr. Bissonnette had been fired or charged, but she knew right away what it was about. [ 80 ] B.D. testified that when she saw the media release she felt compelled to come forward to “help the case.” She knew that what had happened to her was wrong. [ 81 ] R.G. testified that she told her husband about the incident when it happened and decided she did not want to see Dr. Bissonnette again, if she had a choice.

She knew that what she had experienced was wrong, and when she became aware of charges against him, her experience came rushing back to her. [ 82 ] I find that the objective improbability of coincidence that is the basis of the similar fact rule is not undermined by the possibility of innocent contamination in this case. It does not render the evidence inadmissible as similar fact evidence.

The testimony of each complainant regarding her awareness of the media release, and how and why it prompted her to report her allegations is a factor to be considered in assessing the credibility and reliability of each complainant in the final disposition of this case ( see R. v. Dorsey , 2012 ONCA 185 , at paras. 20 to 26 ).

d) Is the evidence reasonably capable of belief? [ 83 ] The strength of the evidence - its credibility and reliability - is a factor to be considered in deciding admissibility because the probative value of the evidence must be weighed in the analysis. The evidence to be admitted must meet the threshold of being reasonably capable of belief ( see Handy , at para. 134 ).

[84] It is not necessary that each incident be proved beyond a reasonable doubt before considering it as similar fact evidence. Indeed,similar fact may be admitted to support credibility of testimony. As stated in R. v.

Arp, (SCC), [1998] 3 SCR 339, atpara. 66: “…Two separate allegations can support each other to the point of constituting proof beyond a reasonable doubt, even where areasonable doubt may have existed in relation to each in isolation. …” (see also Agapiadis, at paras. 81 and 90 to 98). [85] The defence argued that weaknesses in each complainant’s testimony rendered it so unreliable as to not meet the threshold ofbeing capable of belief. Defence counsel pointed to prior inconsistent statements, poor memory about details, and poor memory aboutwhen and how often the complainants saw Dr. Bissonnette.

In my view, none of these concerns rise to a level where the testimony ofany one of the complainants is simply not capable of belief. [86] The evidence is sufficiently reliable and sufficiently credible to meet the necessary threshold for admissibility as similar factevidence. Issues of credibility and of ultimate reliability must be considered in deciding the verdict at the end of the day.

Issue #2 - What prejudice would result from the admission of the evidence? [87] The potential prejudice regarding similar fact evidence is succinctly described in Laporte as follows: [139] There are two types of prejudice that may arise from the admission of similar fact evidence. Reasoning prejudice arises if the juryis confused or distracted by the evidence of other misconduct and the time it takes to hear it, and the jury puts more weight on it than iswarranted. Moral prejudice arises if the jury convicts based on its conclusion that the accused is a bad person.

See Handy at para 31. [88] The risk of prejudice here is reduced in part because the trial proceeded without a jury, but the potential for prejudice cannot beignored. Trial judges are not immune from the potential impact of moral prejudice and reasoning prejudice (see Laporte, at paras. 160 to164). [89] Having said that, trial judges are routinely called upon to exercise caution in assessing the weight to be assigned to evidence afterit has been ruled admissible.

Evidence that meets the test for threshold admissibility may, nonetheless, ultimately be assigned littleweight when considered in the context of all of the other evidence. Trial judges must always carefully assess the credibility andreliability of evidence at trial.

Trial judges are keenly aware of the presumption of innocence, the requirement for proof beyond areasonable doubt, the onus of proof on the prosecution, and the dangers of general propensity reasoning. [90] Regarding reasoning prejudice, I note that because the five counts have been tried together there is no need to call furtherevidence beyond what would be required to prove each of the counts on the Indictment individually. Regarding moral prejudice, I notethat, although the allegations of each complainant are serious, none is especially egregious so as to overwhelm the decision-makingprocess.

Issue #3 - Is the probative value outweighed by the prejudicial effect? [91] Weighing the probative value of the evidence against its prejudicial effect is not a mathematical equation. Probative value andprejudice operate on separate planes. Probative value goes to proof of an issue. Prejudicial effect relates to the fairness of the trial.Ultimately, the question is whether it is just to admit the evidence.

The question relates to the value of the evidence to the determinationof the case on its merits (see Handy, at paras. 148 to 150). [92] Of particular concern in this weighing exercise is the possibility that despite other safeguards in the trial process the similar factevidence will be improperly determinative of the accused’s guilt. That is, that the accused will be convicted not based on the evidencebefore the court but based on a perception that the accused is a bad person inclined to commit crimes. Evidence that simply tends toshow that an accused has a propensity to commit crime is not admissible.

The evidence sought to be admitted in this case is not of thatnature. [93] Each of the five complainants has reported an alleged sexual assault in the context of a medical examination by a qualified familydoctor. The Crown says that Dr. Bissonnette committed each sexual assault under the guise of a legitimate medical examination. TheCrown says he took advantage of the opportunity that was afforded to him by his position as a family physician seeing thesecomplainants as patients. [94] Dr.

Bissonnette denied some of the allegations, and explained others as legitimate medically appropriate examinations, to whichthe complainants consented. The defence position is that, where Dr. Bissonnette denied a complainant’s allegation, her testimony isunreliable; where Dr. Bissonnette admitted the conduct in question, it was medically appropriate. In my view, the similar fact evidencehas particular probative value in relation to the reliability of the testimony of each complainant, and Dr. Bissonnette’s defence that hewas conducting medically appropriate examinations. It will allow me to consider whether Dr.

Bissonnette’s conduct in relation to anyparticular complainant or incident was consistent with the evidence of a pattern of conduct. It will assist me in assessing whether or notthe Crown has proved each charge on the Indictment beyond a reasonable doubt. There are cogent similarities amongst the allegations ofthe five complainants who collectively testified to 11 incidents over 16 years.

In my view, the probative value of the evidence issignificant in this case. [95] Before concluding I will address two cases upon which the defence relied in responding to the Crown’s application: R. v.Ukabam, 2022 SKQB 128, (currently under appeal to the Saskatchewan Court of Appeal), and R. v. Clottey, 2018 ONCJ 536. Both arelengthy trial decisions where the trial judges engage in detailed analysis of the evidence before them. Both involve charges of sexualassault against a practicing doctor that were alleged to have occurred during, or under the guise of, a medical examination.

Defencecounsel urged me to follow the approach taken by the trial judges in those cases, with an emphasis on two aspects. One is in relation tothe analysis of similarities between the complainants’ allegations. The other is in relation to the assessment of the likelihood ofcoincidence.

With respect, I decline to follow the approach taken in those cases to these issues. [96] Regarding similarities, the trial judges in both Ukabam and Clottey caution against identifying generic similarities that do notrelate to the details of the alleged offense, but relate only to the surrounding circumstances, such as those that relate to the conduct of a

legitimate medical examination. Examples include the absence of a chaperone and the type of draping used. I agree that these particular circumstances taken alone may not carry much weight as similarities between the complainants’ testimony. However, when coupled with the specific allegations of sexual touching, they become part of the pattern of conduct that the Crown seeks to establish.

In my view, they are not to be ignored because they are generic, but rather they may be considered along with specific similarities in the assessment of whether the double inference may be available on the evidence. [ 97 ] Similarly, I decline to follow the approach taken by the trial judges in Ukabam and Clottey to the issue of likelihood of coincidence. In both cases, the trial judges appeared to engage in a mathematical calculation (albeit a rough one) of the probability of founded versus unfounded allegations of sexual assault made by patients against a busy medical doctor.

In my view, the inquiry contemplated in Handy is not mathematical in nature. It involves the application of logic, common sense, and human experience to the assessment of the improbability of coincidence. In the extreme example of the Makin case referred to in Handy , at para. 45 , while the burial of one dead child in Makin’s yard could be explained as an accidental death, it seems unlikely that multiple graves holding dead children could be likewise explained way.

In the case before me, one complainant’s allegation of touching of a sexual nature not consented to in the context of a medical examination might be explained as a misunderstanding, misperception, faulty memory, or fabrication on the part of the complainant. However, five allegations of similar conduct in similar circumstances seem as a matter of common sense, logic and human experience unlikely to be coincidental. This does not mean, of course, that at this stage of the proceedings I find the pattern of conduct to be proven.

Only that the inference the Crown seeks to support by the admission of this evidence is an inference that is available on the evidence before me. Conclusion [ 98 ] I conclude that the probative value of the cross-count similar fact evidence outweighs its potential for prejudice, and it is therefore admissible. That is, the evidence of each of the complainants is admissible with respect to each and every charge in the Indictment. ______________________________J.