R. v. Bissonnette, 2023 MBKB 170

Date: 20231128 Docket: CR 22-01-39126 (Winnipeg Centre) Indexed as: R. v. Bissonnette Cited as: 2023 MBKB 170 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 : ) November 28, 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on Publication : Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. BOND J. Introduction [ 1 ] Arcel Bissonnette (Dr. Bissonnette) is a family doctor charged with five Counts of sexual assault in relation to five female complainants (L.C., B.D., R.G., L.G., and B.K.) between 2001 and 2017 in Ste. Anne, Manitoba. Each of the five complainants saw Dr.

Bissonnette as a patient. Each Count alleges an incident (or incidents) of sexual assault during a medical appointment. The Crown says that Dr. Bissonnette took advantage of the opportunity that was afforded to him by his position as a family doctor to sexually assault the complainants, committing the sexual assaults in his medical clinic under the guise of medical examinations. [ 2 ] Dr. Bissonnette pleaded not guilty. He testified, denying some of the allegations outright, and explaining others as medically appropriate examinations to which the complainant had consented. The defence position is: where Dr.

Bissonnette denied a complainant’s allegation, her testimony is unreliable; where Dr. Bissonnette admitted the conduct in question, it was medically appropriate. Further, the defence takes the position that the Crown has not proven that the touching alleged was of a sexual nature and has not proven that the complainants did not consent to the conduct that is the basis of the allegations. [ 3 ] For the reasons that follow, I find Dr. Bissonnette guilty on all five Counts. [ 4 ] My reasons will address the issues that arise in this case under the following headings:

a) The law of the offence of sexual assault;

b) The presumption of innocence, burden of proof, and credibility and reliability of evidence;

c) The expert opinion evidence called by the Crown and defence;

d) Dr. Bissonnette’s testimony, in context;

e) The testimony of the complainants, and use to be made of the similar fact evidence; and

f) Analysis of the evidence in relation to each of the five counts. The Law of the Offence of Sexual Assault [5] The actus reus of sexual assault requires proof of touching of a sexual nature without consent. The mens rea requires proof ofan intention to touch and knowledge of the absence of consent (R. v. G. F., 2021 SCC 20, at para. 25). Touching of a sexual nature [6] 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 one exception) involve touching of parts of each of the complainants’bodies that are generally recognized as sexual: breasts, vulva, vagina, anus, and rectum (R. v. Mastronardi, 2014 BCCA 302, at para.19). [7] The test to determine whether the alleged conduct is of a sexual nature is an objective one. I must consider whether, viewed inlight of all the circumstances, the sexual nature of the conduct would be evident to a reasonable observer.

The part of the body touched,the nature of the conduct, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstancessurrounding the conduct will be relevant to that assessment. The intent or purpose of the accused may also be a factor. A sexual motivemay be a factor, although it is simply one of many factors to be considered (R. v. Chase, (SCC), [1987] 2 SCR 293, atpara. 11). [8] Having said that, in relation to mens rea, it is certainly not necessary for the Crown to prove that Dr.

Bissonnette had animproper purpose or a sexual purpose to obtain a conviction of sexual assault (R. v. Lutoslawski, 2010 SCC 49). [9] I must consider, on an objective view of the entirety of the circumstances revealed by the evidence that I accept, was Dr.Bissonnette’s conduct of a sexual nature? Considering all of the circumstances, viewed objectively, was the touching of thecomplainants of a sexual nature? Did the touching violate the sexual integrity of the complainants? (See Chase; R. v.

Litchfield, (SCC), [1993] 4 SCR 333.) [10] The analysis is somewhat complicated by the medical context within which the allegations in this case arise. This is recognizedin Litchfield where the Supreme Court of Canada addresses sexual assault in the context of a doctor-patient relationship. FollowingChase, the Court in Litchfield confirmed that a trial judge must consider all of the circumstances surrounding the accused doctor’simpugned conduct to determine if the touching was of a sexual nature. Medical evidence in that regard is important in assessing thenature of the doctor’s conduct.

It is not, however, determinative (Litchfield at para. 14). I must consider the testimony of thecomplainants, of the medical experts, and of the accused in making this assessment. [11] Further, the Crown is not required to prove that Dr. Bissonnette’s conduct was entirely inappropriate or unnecessary from amedical point of view. What is required to establish the offense, is that the Crown prove that the conduct of Dr. Bissonnette had a sexualcharacter in addition to whatever medical character that conduct might have had.

A factor in determining whether the conduct was of asexual nature might include a medical purpose for the touching. However, that is only one factor and it is not determinative (Litchfield atpara. 57). Consent [12] In the context of sexual assault, consent is the voluntary agreement to the touching in question, as well as to its sexual nature (R.v. G.F., 2021 SCC 20, at para. 29). [13] The Criminal Code, R.S.C., 1985 c. C-46, (the “Code”) definition of consent in the context of sexual assault is: the voluntaryagreement of the complainant to engage in the sexual activity in question. (s. 273.1(1)).

The question of what is the sexual activity inissue is contextual, dependent on the facts and circumstances of the particular case (R. v. Kirkpatrick, 2022 SCC 33, at para. 40). Consent is found in the subjective state of mind of the complainant (G.F. at para. 32). [14]

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, power or authority.” Section 265(3)(

c) of the Code states that “…no consent is obtainedwhere the complainant submits or does not resist by reason of … fraud.” [15] Although the allegations in this case include sexual touching under the guise of medical examinations, I need not considerwhether consent was initiated by fraud because I find that the Crown has proved that each of the complainants did not consent to sexualtouching (G.F. at para. 53). Each consented to some touching for medical examinations. Each testified to touching that I find to be of asexual nature that went beyond the boundaries of any consent given.

Honest but mistaken belief in consent [16] Counsel raised honest but mistaken belief in consent in Dr. Bissonnette’s defence. With respect, in my view, this defence doesnot arise in this case. To invoke the defence, an accused must have an honest but mistaken belief that the complainant actually

communicated consent to the sexual activity in question by words or conduct (R. v. Barton, 2019 SCC 33, at paras. 90 to 91). Thesexual activity in question includes the activity’s sexual nature (G.F. at para. 29). As I will explain, I find that Dr. Bissonnette’s conductin relation to each of the complainants was sexual in nature. There is no basis in the evidence upon with Dr. Bissonnette could claim thathe honestly but mistakenly believed that any of the complainants communicated consent to touching of a sexual nature.

Further, anyclaim of honest but mistaken belief in communicated consent cannot be based on a mistake of law. It is a mistake of law to infer consentfrom a complainant’s silence or passivity or to rely on a belief that the complainant gave broad advance consent to sexual activity of anundefined scope (Barton at paras. 98 to 99). The Presumption of Innocence, Burden of Proof, and Credibility and Reliability of Evidence [17] The presumption of innocence is an overriding principle that is fundamental to any criminal case.

An accused person cannot beconvicted of a crime unless the offence is proved against him beyond a reasonable doubt. The onus of proof is always on the prosecutionto prove the charge. The application of this principle in cases such as this one, where credibility of the witnesses’ testimony is a centralissue, leads to the principles articulated in the case of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. In W.(D.), at p. 758, theSupreme Court of Canada provided guidance to trial courts on how a jury ought to be instructed so as to give effect to the presumption ofinnocence.

A jury is to be instructed as follows: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [18] It has been repeated in many cases following W.(D.) that a trial judge is not required to slavishly follow these steps.

What isrequired is that the court stay focused on the central issue, being whether the Crown has proved the case beyond a reasonable doubt. “The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubtabout the guilt of the accused…” (R. v. Vuradin, 2013 SCC 38, at para. 21). [19] When I consider Dr. Bissonnette’s testimony, it must not be considered in isolation, but is to be considered in the context of theother evidence called at the trial (Vuradin; R. v.

Menow, 2013 MBCA 72). [20] As I consider the testimony of all of the witnesses in this case, I remind myself that I may accept some, none, or all of thetestimony of any witness (R v Jovel, 2019 MBCA 116, at para. 41). [21] I must consider not only the credibility but also the reliability of the testimony of any witness. The distinction betweencredibility and reliability is discussed in the Manitoba Court of Appeal decision of R. v. Perrone, 2014 MBCA 74. There our Courtquotes the Ontario Court of Appeal in a case called R. v.

Morrissey, (ON CA), 22 O.R. (3d) 514, and states: [25] Jurisprudence recognizes that there is a difference between credibility and reliability. In R. v. Morrissey… Doherty J.A. wrote (atp. 526): Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingnessto speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. Theaccuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events inissue.

When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with theaccuracy of a witness’s testimony, one speaks of the reliability of that testimony. … The evidence of a credible, that is, honest witness,may, however, still be unreliable…. [22] Each of the five complainants testified that Dr. Bissonnette touched her breasts, vagina, or anus when she attended for a medicalappointment.

In some instances, the question is whether the Crown has proved that the alleged touching occurred at all, and in otherinstances whether it was of a sexual nature engaged in by Dr. Bissonnette without consent. A number of the allegations are somewhatdated. The reliability of each of the complainant’s memory is in issue. Some of the allegations raise questions about the complainant’sperception of what occurred at the time of the medical appointment. [23] In some instances, the complainants compared their experience of Dr.

Bissonnette’s conduct with their experience of similartypes of examinations conducted by other doctors before and since. I must be cautious with respect to this testimony. It was admittedinto evidence only to permit the witness to describe her experience with Dr. Bissonnette. It was not admitted as evidence of the propermanner in which a particular examination should be conducted. In considering the reliability of each complainant’s testimony, I haveconsidered factors that might have influenced not only her recollection, but also her perception of what occurred. A complainant’sperception that Dr.

Bissonnette was touching her in a sexual way rather than for a medical purpose may be influenced by herunderstanding that it was different from what other doctors do. The complainant’s perception is not determinative, of course. Whetheror not the touching was of a sexual nature is to be determined objectively based on all of the circumstances.

[ 24 ] I have also considered whether the complainants’ memories are tainted by their knowledge of the media release that each of them saw before reporting to the police. I address this issue below. Expert Opinion Evidence [ 25 ] The Crown and the defence each called expert opinion evidence to support their positions and assist the Court. Dr. Kimberly Wintemute, for the Crown, and Dr. Allan Covens, for the defence, testified about their respective practices and methods, as well as their involvement in training medical students in those practices and methods.

It was not disputed that it could be inferred that both Dr. Wintemute and Dr. Covens were providing evidence of what, in their opinion, would be standard or accepted practice for medical doctors, even though their testimony was generally not given in those terms. This expert opinion evidence was helpful in understanding the testimony of Dr. Bissonnette, as well as that of the complainants. [ 26 ] As I explain my analysis in relation to each Count in the Indictment below, I will refer to specific aspects of the experts’ testimony. This

summary provides context to my assessment of Dr. Bissonnette’s testimony. Glossary of terms [ 27 ] Because there were some inconsistencies regarding the use and meaning of certain terms related to the medical examination of female patients by the witnesses in this case I will use the following words with the following

definitions, derived from the evidence:

a) 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”);

b) 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;

c) 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;

d) 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 usually include a bimanual examination and speculum examination as described above; and

e) 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. Dr. Wintemute – Crown Expert [ 28 ] It was not contested that Dr.

Wintemute was qualified to give expert opinion evidence regarding the practice of family medicine, including: the conduct of physical examinations; when particular physical examinations, maneuvers and/or investigations are necessary and appropriate; and communication in the course of physical examinations. Although initially the defence indicated some reservations regarding aspects of Dr. Wintemute’s anticipated testimony, once she had testified the defence did not oppose the admission of her expert opinion evidence.

There were elements of her testimony that were, however, challenged by the defence and in some instances contradicted by the defence expert, Dr. Covens. [ 29 ] I found Dr. Wintemute to be a credible and reliable expert witness. Her expertise in family medicine could not be disputed. It is unnecessary to review all of the details of her Curriculum Vitae here. Following her training, she began practice as a family doctor in 2002, and continues in that practice. She has expertise in the day-to-day clinical practice of a family doctor as well as from a broader perspective of family medicine as a medical discipline.

She has years of experience seeing patients both in a clinical setting in the Toronto area and a hospital setting, including some experience in a hospital outside of the urban centre. She has been in leadership positions and teaching roles in family medicine. She has provided expert opinions in relation to proceedings of the College of Physicians and Surgeons of Ontario, civil lawsuits, and criminal cases. Throughout her career she has engaged in ongoing professional development in family medicine. [ 30 ] Dr. Wintemute described the broad scope of the practice of family medicine.

It includes care for patients of all ages. It includes preventative care such as screening for disease such as cancer, diabetes, and cardiovascular disease. Cancer screening might include a manual breast examination and/or a pelvic examination that might include a speculum examination and bimanual examination. Dr. Wintemute testified that the use of these examinations has become less common in family medicine practice over the years, as other investigative techniques and preventative measures have become available. For example, Dr.

Wintemute testified that the manual breast examination is not done consistently by family doctors anymore because research has shown that the examination does not prevent deaths from breast cancer, and mammograms are more commonly used. As another example, she testified that vaccination has become the main means for the prevention of cervical cancer, and annual Pap tests are no longer recognized as the norm.

[ 31 ] Dr. Wintemute testified that the bimanual examination used to be conducted as part of a routine physical examination for female patients. However, for the last 20 years it has been recognized that it is not a useful examination for screening purposes. As a result, many family doctors no longer conduct the examination, although some do as a matter of routine. Generally the doctor conducting the bimanual examination is looking for the absence of tenderness and the absence of any mass within the pelvic region.

The examination usually involves palpation at the centre of the abdomen as the doctor attempts to trap the uterus between their two hands, then palpation to the right and to the left in the area of the ovaries. The ovaries are generally not actually located during this examination; what is important is the absence of pain and the absence of any masses in the region. The examination is generally very brief. An examination lasting 30 seconds would be considered long.

Although the doctor would move the fingers they have inserted inside the vagina from the centre to the left and to the right, there would be no reason or need to remove the fingers in the conduct of this examination. Any retraction of the fingers to adjust their position would be about one to three centimeters at most. [ 32 ] Dr. Wintemute testified that a rectal or anal examination is not a routine examination for family doctors, and it is not a screening test for anything. She testified that it might be conducted if a patient reports rectal pain, or possibly abdominal pain.

She testified that the examination would generally not be conducted if a patient reports pain in the anal area because it would be painful for the patient and unnecessary to conduct the examination. She testified that there would be no reason to remove a finger inserted for the purposes of the rectal examination and then reinsert it. [ 33 ] Dr. Wintemute testified that the pelvirectal examination is generally not conducted in family medicine practice. It would most commonly be conducted in oncology.

However, it is rarely used now because of technological advances in remote imaging that allow for other investigations of the pelvic region (MRI). She testified that in the past the examination might be done on a patient who has an ovarian mass that is suspected to be cancer to check the region between the rectum and the vagina where cancer cells can settle. She could not say how often an oncologist might use the examination in an office setting. [ 34 ] Dr. Wintemute testified that conduct of the pelvirectal examination involves the insertion of a finger in the rectum and a finger in the vagina.

It is aimed at investigating the wall or structure between the vagina and the rectum. It would involve a slow withdrawal of the fingers, noting any nodule or mass observed as the fingers were removed. There would be no reason to withdraw and reinsert the fingers in this examination. This is an unusual and uncomfortable examination and it would be important to talk the patient through it. [ 35 ] Dr. Wintemute testified about the examination of a patient’s lower rectum using an anoscope.

The anoscope is a tubular device that is introduced into the rectum by way of an obturator that is removed from the centre of the scope so that the internal surface of the rectum can be observed. The anoscope is then slowly withdrawn and the doctor observes the tissue as the device is withdrawn. She testified that anoscopy is rarely used in family practice. It is not useful if an internal hemorrhoid is suspected because the doctor cannot treat the hemorrhoid by using the scope. It would not be used to investigate a fissure or thrombosed external hemorrhoid because that would be very painful.

It is not useful to identify colon cancer and any concern related to colon cancer requires referral to a specialist for a colonoscopy. Anoscopy is an unusual procedure and would usually be documented in the patient’s file. [ 36 ] Overall, I found Dr. Wintemute’s testimony to be credible and helpful. Dr. Covens - Defence Expert [ 37 ] Dr. Covens has decades of experience in gynecologic oncology. His practice includes the physical examination of female patients, including pelvic and breast examinations. He is engaged in teaching medical students about the conduct of those examinations on an ongoing basis.

He has been a member of national and international committees and engaged in research and academic writing almost exclusively in the area of gynecologic oncology. His impressive Curriculum Vitae reflects a lengthy and successful career in his specialty. [ 38 ] One aspect of Dr. Covens’ practice includes a weekly clinic, where he sees female patients referred for colposcopy, usually as a result of an abnormal Pap test. Colposcopy is the examination of the cervix, as well as the vulva and vagina, using a microscope. Dr.

Covens’ examinations of these patients would include pelvic examinations, as well as the colposcopy itself. [ 39 ] The defence sought to have Dr. Covens qualified to give expert opinion regarding gynecological and pelvic examinations, gynecologic cancers, colposcopy, pre-invasive lower genital tract abnormalities, gynecologic surgeries, gynecological procedures, breast examinations and anoscopy. The Crown conceded Dr. Covens’ expert qualification in those areas.

The Crown did not agree to admissibility, however, arguing that the testimony did not meet the threshold of logical and legal relevance. [ 40 ] With reasons given orally on May 25, 2023, I ruled that the testimony of Dr. Covens did meet the test for threshold admissibility as expert opinion evidence. [ 41 ] Like Dr. Wintemute, Dr.

Covens testified about doctor-patient communication, patient consent to medical examinations, patient preparation, including draping and covering, necessary or unnecessary medical examinations, techniques and manoeuvres in conducting medical examinations, record-keeping, chaperones, conduct of breast examinations, conduct of pelvic examinations, speculum examinations, bimanual examinations, pelvirectal examinations, rectal examinations, and anoscopy. [ 42 ] Dr. Covens’ testimony was helpful, but subject to an important limitation. Dr.

Covens is not a family doctor and not an expert in the practice of family medicine. Usually, Dr. Covens sees patients when they are referred to him after they have been screened by a family doctor or gynecologist. He does not see them as a family doctor would (and in this case as Dr. Bissonnette did) for general physical examinations, prenatal examinations, or other complaints unrelated to cancer or suspicion of cancer. The defence conceded that Dr. Covens could not give expert opinion evidence regarding the common and accepted practices of family doctors. [ 43 ] I found Dr.

Covens’ testimony more helpful in relation to the manner of conduct of a particular type of examination, than it was in relation to whether any particular type of examination would be necessary, or appropriate, as a component of a routine physical examination conducted by a family doctor. His testimony regarding the conduct of bimanual, pelvirectal, rectal, and breast examinations must be viewed in the context of Dr. Covens’ expertise as a gynecologic oncologist, rather than as a family doctor.

As a matter of common sense, one would expect that the examination of a part of a patient’s body would be conducted more or less in the same way

regardless of the particular specialty of the doctor conducting the examination. On the other hand, also as a matter of common sense, such an examination might be more or less extensive or conducted somewhat differently depending on whether the doctor was conducting the examination as part of screening on a healthy patient versus investigation in response to symptoms already identified or where disease is suspected. Indeed, Dr. Covens testified that his conduct of a bimanual examination would be tailored to his patient’s illness or symptoms. [ 44 ] Dr. Wintemute and Dr.

Covens were more or less consistent regarding the manner in which the breast examination, speculum examination and bimanual examination was conducted. As noted above, their testimony was starkly inconsistent regarding whether a pelvirectal examination should be conducted as a matter of routine in a pelvic examination. [ 45 ] Dr. Wintemute and Dr. Covens were more or less consistent regarding appropriate draping of a patient during examinations.

They both testified that the use of paper sheets and/or paper gowns is appropriate so long as sensitive areas of the body that are not being examined, are covered. [ 46 ] Dr. Wintemute and Dr. Covens were more or less consistent regarding obtaining a patient’s consent to an examination. Both confirmed the importance of communication and the patient giving informed consent to an examination. Dr. Covens testified that, generally speaking, it could be inferred from the fact that the patient has disrobed and put on a paper gown that she is consenting to an examination.

He testified that consent to a bimanual examination could generally be inferred from a patient’s consent to the speculum examination. In cross-examination, he conceded that this inference would not apply to consent to a rectal or pelvirectal examination. Dr. Wintemute emphasized the importance of ongoing communication during an examination so that a patient has an understanding of what is to be done and why.

She testified that each doctor will use their own style of communication, but that it usually involves the doctor providing an ongoing description or commentary about what they are doing and the observations that they are making. [ 47 ] I will refer to the expert opinion evidence further below. Dr. Bissonnette’s Testimony [ 48 ] I will address Dr. Bissonnette’s testimony specific to each Count in the Indictment as I address each one below. Here, I will explain my overall findings regarding Dr. Bissonnette’s credibility and reliability as a witness. [ 49 ] Dr.

Bissonnette practiced as a family doctor for over 30 years. In his practice, he provided care to female patients, including the conduct of routine physical examinations. Dr. Bissonnette conducted breast examinations, pelvic examinations, and prenatal examinations. Although it is difficult to ascertain with precision, Dr. Bissonnette 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. [ 50 ] Dr.

Bissonnette testified that he began medical school in 1985 and graduated in 1989. After that, he completed the required one year of internship, and began his medical practice in 1990. (Further training by way of a two-year residency in family medicine was available at that time, but was not required for general practice.) [ 51 ] Dr. Bissonnette testified that he attended annual professional development programs as required by the College of Family Physicians of Canada.

He testified that he attended seminars geared towards general practice of medicine, and attended more than a dozen such seminars at the Mayo Clinic in Rochester, Minnesota. He testified that although he had attended continuing education conferences in Canada, he could not be certain whether any of these were offered by the College of Family Physicians of Canada. [ 52 ] Regarding the allegations of sexual assault, Dr. Bissonnette either denied that the alleged assault occurred or claimed that the alleged assault was an appropriate medical examination. I found that there were aspects of Dr.

Bissonnette’s testimony that were inconsistent, contradictory, or nonsensical such that the overall credibility of his testimony was negatively affected. I had concerns about some particular aspects of Dr. Bissonnette’s testimony that not only lead me to reject the testimony, but also impact my assessment of his credibility overall. Following are some examples. Recollection, refreshing memory, and record keeping [ 53 ] Dr. Bissonnette testified about the record keeping system at his clinic. Beginning in the 1990’s a computer system was used to

schedule appointments and keep patient charts. The system generated a template for physical examinations. These templates would have default entries that would indicate “normal” for examinations of a patient’s body systems. For example, the template’s default entry for an examination of a patient’s heart and lungs would be “normal” and any abnormality would have to be specifically noted. [ 54 ] Dr. Bissonnette testified that in his practice a pelvic examination included Pap and STD checks, a bimanual examination, and “possibly pelvirectal” examination.

These examinations would not necessarily be specifically noted in the template. It would show “normal” for the pelvic examination, abbreviated as PV, but would not necessarily indicate specifically which examinations were done. [ 55 ] Dr. Bissonnette referred to these electronic medical records during his testimony to refresh his memory regarding an appointment with a complainant.

Given the number of patients he has seen over his years of practice, as well as the passage of time, it would be impossible for him to recall every patient visit or even particular patients who he saw only a limited number of times over a limited period. The allegations in this case go back a number of years. That Dr. Bissonnette would refer to his records to refresh his memory while testifying is reasonable and of no concern. He also relied on his usual practice to describe what he would have done at a particular appointment and this is reasonable as well. [ 56 ] For example, that Dr.

Bissonnette remembered B.K. is not surprising because she was a regular patient of his for almost 20 years, as was her husband. That he recalled her but did not recall the specifics of any particular appointment with B.K. would be expected. There was nothing wrong with Dr. Bissonnette referring to his usual practice when testifying about how an examination of B.K. would have occurred. He acknowledged that all he could offer was his usual procedure and that he would not have deviated from that procedure in the appointments with B.K.

[ 57 ] On the other hand, Dr. Bissonnette’s claim that he recalled L.C., even vaguely, is not believable. It was an agreed fact that L.C. saw Dr. Bissonnette on one occasion in 2001, more than 20 years ago. She attended his office complaining of ongoing pain in her abdomen some eight weeks after surgery to remove para-ovarian cysts. An ultrasound and blood work were ordered. [ 58 ] Dr. Bissonnette testified that he recalled L.C.’s visit. He said he recommended to her an abdominal, pelvic and pelvirectal examination and she appeared to understand.

He claimed to recall that she was undressed only from the waist down and he described asking her to lie down. Dr. Bissonnette testified that he remembered the appointment because she was there for pelvic pain. [ 59 ] Dr. Bissonnette testified that although his electronic medical note simply refers to L.C.’s symptoms, he recalled that he conducted a bimanual and pelvirectal examination, but not a rectal examination. He testified to specific details of his interaction with L.C., despite no note to refresh his memory about those details. It is simply not believable that Dr.

Bissonnette recalled details of L.C.’s appointment with him. It would be reasonable that he could testify to what would have been his usual practice and might be able to infer certain details from the notes he made. But he went further than that. He claimed that he remembered those details, and I do not believe him. Pelvirectal examination [ 60 ] Another aspect of Dr. Bissonnette’s testimony that I found unbelievable is in relation to his conduct of pelvirectal examinations. [ 61 ] Dr.

Bissonnette testified that in his practice when conducting routine physical examinations on female patients, he conducted a pelvirectal examination as part of a pelvic examination. [ 62 ] Dr. Bissonnette testified that he learned to do pelvic examinations in the gynecology rotation during the clerkship and internship phases of his medical training.

In direct examination, he testified that the pelvic examinations he learned included taking swabs for Pap tests and STI checks, a bimanual examination, and “sometimes pelvirectal checks.” In cross-examination, he testified that it was his practice to include pelvirectal examinations in all pelvic examinations conducted as part of a routine physical examination, unless the patient refused or was having pain or if it was a pre-natal examination. [ 63 ] Dr. Bissonnette claimed that the pelvirectal examination was done regularly while he was in his training in the gynecology/oncology rotation.

He said he was taught to do it for the purposes of getting more information about the pelvis, to detect any masses in the pelvis and in particular the posterior aspect of the pelvis. He also testified that it would allow him to identify rectal tumors if there happened to be one. In cross-examination, while being asked about his routine conducting physical examinations of adult patients, it was suggested to Dr. Bissonnette that he conducted pelvirectal examinations during every complete physical examination conducted on female patients. In his response, he hesitated and then said: “I think so.

Yes.” [ 64 ] I found his testimony on this issue to be contrived. While I accept Dr. Bissonnette’s testimony that he learned how to conduct the pelvirectal examination when he was at medical school, I find it difficult to accept his testimony that he continued to do this examination as a part of his routine for the conduct of physical examinations of a female patient.

First of all, it is hard to imagine that a doctor who has practiced family medicine for 30 years since graduating medical school, and has regularly attended professional development seminars focused on family medicine during those years, would take his guidance for how to conduct a routine physical examination on a female patient from medical training rotations in the specialty areas of gynecology or oncology 30 years ago. I simply do not believe that claim.

The testimony, in my view, was contrived to explain why he conducted a pelvirectal examination on L.C. when those examinations are not part of the routine practice of family medicine. [ 65 ] I want to be clear here that I am not assessing whether Dr. Bissonnette was a good or competent doctor. I am not concluding that he should have, but failed to, keep up with developments in the practice of family medicine. Rather, I find Dr. Bissonnette’s claim that he conducted pelvirectal examinations as part of routine screening of female patients, and did so because of his medical school training, is not credible.

It is entirely inconsistent with the expert opinion evidence provided by Dr. Wintemute regarding the practice of family medicine. [ 66 ] I find Dr. Covens’ testimony in this regard less helpful because he does not practice family medicine. His testimony that the pelvirectal examination can be useful in examining the pelvic region of the female patient is based on his years of training and practice in gynecologic oncology. He cannot speak to its utility or appropriateness in the practice of family medicine.

I accept that the pelvirectal examination can have a medical purpose, but I do not accept that it is indicated for routine screening of healthy patients. In my view, Dr. Bissonnette attempted to justify his conduct, (described by L.C. as “double penetration”), as a medical examination when it was not. [ 67 ] It is significant as well, in my view, that although Dr. Bissonnette said he conducted this examination as a matter of routine, B.K. (a regular patient of his) testified he had never done such an examination on her. L.G. also had no recollection of that type of examination. B.D. was not asked about it. Dr.

Bissonnette’s testimony about his routine conduct of the pelvirectal examination was simply not credible. [ 68 ] I want to add here that I recognize that there may be a range of acceptable practice in family medicine and in the examination of female patients. Dr. Covens testified that the conduct of a pelvirectal examination has a medical purpose. However, I am not persuaded that Dr. Bissonnette conducted the pelvirectal examination as a matter of routine for a medical purpose. Rather, he claimed to do so to justify engaging in that conduct with L.C.

Again, I found this contrived testimony negatively affected his credibility overall. The Adams test [ 69 ] I come to a similar conclusion with respect to Dr. Bissonnette’s testimony about the Adams test. The Adams test involves having the patient bend over while standing in front of the doctor who watches the patient’s back for curvature of the spine. Dr. Bissonnette’s explanation for conducting this test on one occasion on B.D. while she was naked was, to put it bluntly, nonsensical. [ 70 ] Dr. Bissonnette claimed that he conducted the test on B.D. to screen for scoliosis.

When asked in direct examination whether he conducted the Adams test routinely in a physical examination, he said it would be used for screening for all children. When specifically

asked in direct examination about whether it would be used for screening on an adult first-time patient, he testified that sometimes he would use it in those circumstances as well. [ 71 ] Dr. Bissonnette testified that the fact that an Adams test was conducted would not necessarily be shown in the electronic medical record. The record would simply indicate muscular skeletal system (MKS) “normal” and if an abnormality was identified that would have to be added to the record template. [ 72 ] Dr.

Bissonnette testified that he would conduct this Adams test after a female patient had disrobed for her full physical examination but before any breast or pelvic examination was conducted. He claimed this would also allow him to look at the skin on the back to check for abnormality. The patient would be completely naked without a drape to cover herself. [ 73 ] Dr. Bissonnette claimed that he would conduct the test at that time with the patient naked because it was part of the flow of the physical examination that he was conducting. Again, this does not make sense.

The patient would be disrobed and sitting on the examination table in preparation for breast and pelvic examinations. According to Dr. Bissonnette, he would then have the patient get off the table and stand in front of him completely naked while he sat in a chair behind her and watched her bend over. He would then have the patient return to the table for the breast and pelvic examinations. [ 74 ] Dr. Bissonnette’s testimony about conducting the Adams test with B.D. was inconsistent with the expert opinion evidence given by Dr. Wintemute about the use of the test. Dr.

Wintemute testified that such a test might be indicated if a patient complained of back pain. In particular, it might be used if a child complained of back pain. It was not used by family practitioners in routine physical examinations of adult female patients. She testified that if it was indicated it would generally be done with the patient clothed, or possibly having lifted or removed some clothing from the upper body so that the movement of the muscles of the back and spine could be seen. Dr. Covens could not comment on the Adams test.

Both experts testified about the importance of draping generally to maintain dignity for patients. [ 75 ] I find Dr. Bissonnette’s testimony regarding the Adams test is completely unbelievable and was a deliberate attempt to mislead the Court about why he had B.D. bend over in front of him while she was naked. Overall Impression of Dr. Bissonnette’s Testimony [ 76 ] Overall, I did not find Dr. Bissonnette to be a credible witness. I found his testimony to be contrived, sometimes nonsensical, and at times obviously fabricated. [ 77 ] Even though I do not accept Dr.

Bissonnette’s evidence, I must go on to consider whether his evidence nevertheless raises a reasonable doubt. There are cases, certainly, where despite not accepting an accused’s testimony, a court may be left in a reasonable doubt by it. This is not one of those cases. I have found that Dr. Bissonnette’s testimony was contrived and that portions were fabricated. I find that Dr. Bissonnette attempted to provide innocent explanations for the Crown’s evidence, but that his explanations were false. His evidence does not raise a reasonable doubt. [ 78 ] This does not, of course, end the inquiry.

I must go on to consider all of the evidence that I do accept and decide whether I am satisfied beyond a reasonable doubt of Dr. Bissonnette’s guilt on each Count with which he is charged. The Testimony of the Complainants, and the Similar Fact Evidence and Media Release [ 79 ] In July 2023, I granted the Crown’s application to admit similar fact evidence such that the evidence of each of the complainants is admissible with respect to each and every Count in the Indictment ( R. v.

Bissonnette , 2023 MBKB 113 ). [ 80 ] In my view, the similar fact evidence has particular probative value in relation to the reliability of the testimony of each complainant, and Dr. Bissonnette’s defence that he was conducting medically appropriate examinations. It allows me to consider whether Dr. Bissonnette’s conduct in relation to any particular complainant or incident was consistent with a pattern of conduct.

As I consider the testimony of each complainant, I will explain the part played by the similar fact evidence in my analysis. [ 81 ] 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. [ 82 ] On November 5, 2020, the Sainte-Anne Police issued a media release stating that Dr.

Bissonnette had been charged with sexual assaults on six of his patients. The complainants who 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. T he media release did not include any details of the allegations in relation to the charges laid against Dr.

Bissonnette in 2020. [ 83 ] It was the defence position with respect to all of the complainants that their testimony was tainted because they did not report their allegations to police until after seeing the media release. The defence argued that after hearing about the media release, each of the complainants looked back on their experience “through a sexual lens”, and only then saw their experience as sexual in nature rather than medical.

The difficulty for the defence argument is that it is not supported in the evidence. [ 84 ] Each of the complainants testified about her particular reaction to the media release. Each testified that she knew that what Dr. Bissonnette did was wrong at the time that it occurred, and that they had known all along that what had happened to them was wrong. Each in her own way expressed some sense of validation or vindication from knowing that Dr. Bissonnette had been charged with sexually assaulting other women and knowing that she was not the only one.

Certainly delay in reporting does not undermine a complainant’s credibility. It is quite understandable that they decided (and for some of them felt a duty) to come forward only after they became aware that they were not the only ones.

[ 85 ] Three of the complainants (B.D., R.G., and B.K.) testified that they had told somebody about what Dr. Bissonnette did before they heard about or saw the media release. L.G. testified she told her husband after seeing the media release. L.C. testified she told no one. The defence argued that I should draw an adverse inference against the Crown’s case because the Crown failed to call as witnesses the people that the complainants told. I agree with the Crown that no adverse inference should be drawn. The proposed evidence would be presumptively inadmissible as a prior consistent statement.

The defence says that the evidence would have been admissible to rebut their allegation of tainting by the media release. In my view, whether the evidence would have been admissible on that basis is debatable. Perhaps the defence’s claim of tainting of the complainants’ testimony by the media release could have been rebutted by evidence from persons to whom the complainants disclosed before the media release. Defence counsel argued that they would not have been in a position to resist the admission of prior consistent statements to rebut this allegation of tainting.

But, with respect, that is a hypothetical argument made in an evidentiary vacuum. [ 86 ] The drawing of an adverse inference in a criminal case is exceptional. The discretion to draw an adverse inference should be exercised with caution. It should only be drawn if there is no plausible explanation for why the evidence has not been presented, and the evidence must be relevant to a material issue. Here, the Crown says that the admissibility of the prior consistent statement evidence was questionable at best.

In my view, that explanation for not calling the evidence is plausible and is not undermined by counsel’s suggestion that the defence would not have objected if the Crown sought to call it. In addition, although the evidence of prior consistent statements could arguably have been ruled admissible, given the nature of the evidence of the complainants it does not reach the threshold of materiality required for an adverse inference to be drawn ( see R v RMK , 2016 MBCA 63 , at paras. 33 and 36 ).

In my view, the most that can be said about the Crown’s failure to call those witnesses is that the testimony of any of the complainants to the effect that she told somebody about what had happened with Dr. Bissonnette before the media release stands alone. It is not appropriate in this case to draw the inference that any of those individuals would have given testimony adverse to the Crown’s case. Analysis of the Evidence in Relation to Each of the Five Counts Count 1 - L.C. [ 87 ] L.C. testified about an appointment with Dr.

Bissonnette in 2001 when she saw him on one occasion for abdominal pain following surgery to remove an ovarian cyst. [ 88 ] 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. [ 89 ] L.C. testified that Dr. Bissonnette conducted vaginal, rectal and breast examinations. During the vaginal examination he inserted his fingers into her vagina and repeatedly moved them back and forth turning them. She said there was a lot of “in and out.” In cross- examination, it was suggested to her that the movements of Dr. Bissonnette’s fingers were consistent with him conducting the pelvic examination to which she had consented.

She made it clear that what she experienced was much more than that. She said what she found to be unusual was that he moved his fingers in and out of her vagina repeatedly over a lengthy period of time. For example, she testified: “It was the amount of movement in that length of time that he continued and continued and continued and continued and kept doing that over and over.” [ 90 ] L.C. observed that Dr. Bissonnette 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 finger in and out, and there was “a lot of prodding.” Again, he was watching what he was doing. [ 91 ] L.C. remembered that there was a lot of silence during the appointment. She testified that Dr. Bissonnette did not explain what he was doing either before he commenced or during the manoeuvres. She said that at one point, when his finger was in her rectum, he also put another finger in her vagina. She described this as “double penetration.” She did not expect this and he did not tell her that he was going to do it.

He did not tell her that he would be doing a rectal examination or pelvirectal examination. He also examined her breasts, which she felt was unnecessary because she had attended for abdominal pain. [ 92 ] L.C. testified that after the appointment she went to her car and sat there for a bit because she was distraught and confused, in shock and in disbelief. She could not make sense of what had happened and had to collect herself before she drove home. She did not tell anybody about what happened. She testified that she was so confused and upset that she did not know how to explain it to somebody else.

She felt that she could not explain to herself what it happened. She did not want it to be true. [ 93 ] In cross-examination, L.C. acknowledged there were details of the appointment that she could not recall, because it had occurred 20 years ago. 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. [ 94 ] L.C. acknowledged that there were aspects of the alleged assault that she did not fully describe to the police in her initial statement. In particular, she did not tell the police in detail about what she described in her testimony as “double penetration.” She acknowledged that in her statement she had told police that she had a vague recollection of this. In her testimony she explained that she was well aware that this had occurred but that she felt so disgusted by it that she could not provide details to the police.

She explained that she had been unable to describe the “double penetration” to police because she did not want to accept that it had occurred. She admitted that it was not true that her recall of this conduct was vague. She remembered it, but did not want it to be real.

[ 95 ] Similarly, L.C. admitted that she had told the police that she had “a vague recollection that he did a breast exam”, when, in fact, she did clearly recall that he conducted a breast examination. She testified that she did not go into any detail because in that moment she was in denial; she was purposefully blocking it out because it solidified that what had happened was a sexual assault and she did not want to be a victim of a sexual assault. She testified that she did not want it to be true, so she described it as a “vague recollection”.

She testified that even though she could not remember the specifics of what he did at what moment, she knew what he did. [ 96 ] L.C. testified that there was nothing unusual about the breast examination except that it was unnecessary because she had attended with abdominal pain. She was cross-examined at length about purported inconsistencies between her statement to police, her interviews with Crown counsel, her testimony about whether she recalled a breast examination, and when during the appointment the breast examination occurred.

For example, it was put to her that she told police that she had a vague recollection of a breast examination, and that she did not have a vivid memory of it happening. However, she explained that she meant that she did not have a clear recollection of the mechanics of how it occurred. She explained that her distraught emotional state at the time of giving the statement meant that she was not precise. She was doing her best at the time. [ 97 ] When asked why she came forward in 2020 she said she did so for her own mental health and moral compass.

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 Dr. Bissonnette was charged it made sense. She said that she did not want it to be true and she had tried to deny it. It was not the fact that he was charged that made her question what had happened at her one appointment with him.

The fact that he had been charged made her feel a responsibility to come forward with what she knew had happened to her. [ 98 ] In cross-examination, it was suggested to L.C. that after she was told a charge would be laid in relation to her allegations, this influenced her memory of the incident. L.C. explained that her memory had not changed. She always knew what happened was wrong and her feelings about it did not change. She felt compelled to tell the police what happened to her and it would be up to them to decide whether to charge Dr. Bissonnette.

She testified that had she been told by the police that what happened to her was medically appropriate she would have accepted that and moved on, but it would not have changed how she felt about what happened. I found her detailed explanation about her understanding about what had occurred, and how and why she went to the police, to be compelling. [ 99 ] L.C. was thoroughly cross-examined about inconsistencies between her first statement to police, her second statement to police, and her testimony in court. L.C. provided detailed explanations for the apparent inconsistencies.

In essence, she explained that when she first talked to the police she had difficulty explaining what had happened to her. She had strong feelings of disgust and shame about what had happened. She did not want to believe that she had been the victim of a sexual assault. However, she asserted again and again that she knew at the time of her appointment with Dr. Bissonnette that what he did was wrong. [ 100 ] Dr. Wintemute testified that a bimanual examination and perhaps a rectal examination might be appropriate when a patient presents with ongoing pain following surgery to remove an ovarian cyst. Dr.

Covens testified that bimanual and pelvirectal examinations would be appropriate in the circumstances. Both experts testified that a certain amount of movement of the doctor’s fingers in the patient’s vagina would be expected for the bimanual examination but that retraction of the fingers would be limited to one to two or three centimeters. Both experts testified that the rectal examination involved inserting a finger into the patient’s rectum, and feeling for abnormalities of the rectum, but that this would not involve moving the finger in and out of the anus. [ 101 ] Dr. Wintemute and Dr.

Covens both gave evidence regarding the generally accepted practice for a doctor to obtain consent from a patient and to communicate with the patient during an examination so the patient understands what is happening. Both acknowledged that there is an acceptable range of styles and extent of communication, but some communication is required. Both testified a doctor should obtain explicit informed consent for a rectal or pelvirectal examination. [ 102 ] 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. He said that the pelvirectal examination would not have been specifically documented in his records, where only his findings would be noted.

He testified that had he conducted a breast examination it would have been noted, and it was not. [ 103 ] Dr. Bissonnette denied L.C.’s allegations that he repeatedly, and over an extended period of time, moved his fingers in and out of L.C.’s vagina. He denied doing the same in her rectum. He claimed that the pelvirectal examination was for a medical purpose, aimed at identifying what might be causing her ongoing pain. [ 104 ] Dr. Bissonnette acknowledged that at the time of L.C.’s appointment he would have had access to notes made by other doctors regarding L.C.’s surgery and postsurgical pain.

In particular, he would have been aware of a note from the surgeon who performed the surgery to the effect that if the pain continued an ultrasound would be the next step. [ 105 ] I find when I consider Dr. Bissonnette’s testimony regarding L.C.’s appointment in 2001 in the context of all of the other evidence, I do not accept it. I have already explained my rejection of his claim that he has a recollection of the appointment. It is just not credible that he would have any recollection of L.C. or this appointment.

This appointment would have been one of hundreds that occurred over the years, and, on his evidence, there is nothing about it that would have made it memorable. That he has even a vague recollection is not credible. [ 106 ] I found L.C.’s testimony to be credible and reliable, despite the inconsistencies that I have already addressed. L.C.’s explanations regarding why she told police that she had a vague recollection of certain aspects of the appointment with Dr. Bissonnette are believable and I accept them.

I also found L.C.’s responses to the suggestion that her memory or understanding of what had occurred was influenced by knowing that Dr. Bissonnette had been charged to be believable. She knew when it occurred that it was wrong. She did not want to accept that she had been victimized by Dr. Bissonnette. Understandably, she found it extremely difficult to acknowledge, let alone describe, what had happened to her. After he had been charged, she felt a moral obligation to tell police what happened to her. It took her some time to be able to provide details.

Incremental disclosure is recognized as a common phenomenon in sexual assault cases

( R v Ramos , 2020 MBCA 111 , at paras. 65 to 68 ). [ 107 ] I found L.C.’s description of how Dr. Bissonnette touched her by moving his fingers in and out of her vagina to be credible and reliable. She was thoroughly cross-examined about the nature of the movement of his fingers and the length of time it took. She made appropriate concessions to the effect that some movement would be normal in a bimanual examination.

However, she steadfastly maintained that he moved his fingers in and out and continued for an extended period of time. [ 108 ] L.C.’s description of this conduct is consistent with that of R.G., L.G., and B.K. Her description of an absence of communication and a lot of silence is similarly consistent with the testimony of the other complainants. [ 109 ] While I accept the expert testimony that a bimanual, rectal, and/or pelvirectal examination might have been indicated for L.C., I do not accept that the conduct described by L.C. was medical. I accept as fact that Dr.

Bissonnette moved his fingers in and out of her vagina repeatedly over an extended period of time. I accept that he also inserted a finger in her rectum and moved it in and out, and that he also inserted a finger in her vagina and a finger in her rectum simultaneously. I accept L.C.’s testimony that Dr. Bissonnette did not explain to her what he was doing, and that this occurred mainly in silence. I am satisfied that this conduct was sexual in nature. [ 110 ] I find that I am left with a reasonable doubt with respect to L.C.’s allegation. Dr. Bissonnette did a breast examination.

L.C. acknowledged that she was unable to provide details about how that examination was conducted. I accept her explanation regarding what she meant when she told police that she had a vague recollection of it, but that vague recollection remains without any detail. [ 111 ] I conclude that Dr. Bissonnette committed a sexual assault on L.C., including digital penetration of her vagina and anus without her consent, and find him guilty of sexual assault on Count 1 in the Indictment. Count 2 - B.D. [ 112 ] B.D. testified about three appointments with Dr.

Bissonnette during which he inserted an instrument that she believed to be a speculum into her rectum without her consent. She also testified that on one occasion he had her stand with her back to him and bend over in front of him while she was completely naked. [ 113 ] The statement of agreed facts confirmed that B.D. was a patient of Dr. Bissonnette’s from 2009 to 2018. She saw him on August 10, 2010 for a complete physical. She saw him on December 28, 2011, complaining of severe heartburn and a problem with hemorrhoids for which she had previously had a sigmoidoscopy and banding procedure.

Her medical record from that date states “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 hemorrhoidal skin tag was made. B.D. saw Dr. Bissonnette on May 29, 2013 and again on June 12, 2014, both times for a complete physical. A Pap smear and cervical swab were collected on both dates and results were received by the clinic thereafter. B.D. saw Dr.

Bissonnette on April 3, 2017 for “a Pap only” and samples were collected with the results received at the clinic shortly thereafter. [ 114 ] B.D. testified that it was her recollection that the first time Dr. Bissonnette inserted an instrument into her rectum without her consent was when she saw him for an external hemorrhoid. She wanted him to give her a referral to a surgeon to have it removed. Dr. Bissonnette had her go on all fours on the examination table, then lower herself onto her elbows. Dr. Bissonnette then inserted the instrument into her rectum and opened it like a speculum.

She said that he had told her that he was going to examine her rectum but had not referred to using the instrument. She had been given a paper sheet or drape, but could not keep it on her body because of the position she was in. She described the instrument as a speculum because she recalled that it was cold and felt like metal when it was inserted in her anus. She said that she heard it click and she believed it opened like a speculum used during a vaginal examination. [ 115 ] B.D. testified that on the second occasion that Dr.

Bissonnette inserted a device into her anus, she had attended for a physical and he did a breast examination and vaginal examination. Again, he had her get on all fours and inserted a device into her rectum. He had not told her in advance he was going to do that. Again, she was naked at the time because the sheet she had been given had fallen aside when she was on all fours. She testified that Dr. Bissonnette also had her stand with her back to him and bend over while she was completely naked.

He was sitting down behind her and he held onto her hips as she bent over. [ 116 ] On the third occasion, B.D. testified that although she had requested “just a Pap” when she made the appointment, Dr. Bissonnette also conducted a breast examination, vaginal examination, and again inserted the instrument into her rectum. [ 117 ] B.D. testified that on the last occasion, she observed that Dr. Bissonnette had an erection. However, in cross-examination she acknowledged that what she thought was an erection could have been a bulge in his pants caused by the zipper of his pants.

She acknowledged that although in her mind, what she had observed was an erection she could not prove that is what it was. She conceded that although it looked to her like an erection and not a zipper, it “could have very well been a zipper”. [ 118 ] Based on B.D.’s testimony regarding the erection, I cannot be certain that what she observed was an erection. I do not find, however, that B.D.’s testimony in that regard undermines her credibility or reliability in relation to other aspects of her testimony. In fact, quite the opposite. B.D. testified that in the context of Dr.

Bissonnette inserting an instrument into her anus while she was on her hands and knees naked, she believed that the bulge that she saw in the front of his pants was an erection. She was, however, forthright in conceding that she could not be certain and that it was possible that what she observed was a bulge caused by the zipper of his pants. I found B.D. to be very cautious in giving her testimony on this issue. She conceded that her conclusion about her observation could have been coloured by the context. She did not want to overstate.

I found her to be a credible and forthright witness. [ 119 ] B.D. was similarly forthright about inconsistencies between her police statement, her interviews with Crown counsel, and her testimony regarding the dates and order of the appointments she had with Dr. Bissonnette. She acknowledged that in her statement to police her description of the order of the appointments was different from her testimony in court.

Also, B.D. readily acknowledged that she had told the police that her observation of the erection was during the first time that he inserted the instrument into her anus, but that she later recalled that it in fact had been at the last occasion. I do not find her inconsistency regarding the order of the appointments to undermine the credibility or reliability of her testimony regarding Dr. Bissonnette’s conduct during those appointments. The order of the

appointments is not particularly material to the allegations and charges against Dr. Bissonnette. Similarly, whether her observation of a bulge in his pants was at the first occasion or the third is not material. [ 120 ] The defence argued that B.D. was not reliable, as well, because her testimony was somewhat inconsistent about how she got onto her hands and knees or elbows and knees on the examination table. However, I found her description of how this occurred to be quite believable, and the inconsistencies to be minor. She said it was awkward and she was not sure what he wanted her to do.

She testified that Dr. Bissonnette did not say much and did not tell her what position to get into, but rather guided her into position with his hands. [ 121 ] B.D. testified that when these incidents occurred she was shocked but did not want to question him. She testified that she felt dirty, violated, gross and vulnerable. She said she told family members and coworkers after it happened. [ 122 ] B.D. testified that when she saw information online and in the media about Dr. Bissonnette having been charged she felt compelled to come forward.

She felt that what he did was wrong and she felt that her story might help the case. She said she also felt validated. She said she had written off the first two occasions as possibly being old-school medical procedure. However, by the third time, she knew it was wrong, but she did not want to question him, in part, because she had worked alongside him at the hospital. [ 123 ] Dr. Bissonnette admitted that he had B.D. bend over in front of him while naked and said he did so to assess her for scoliosis.

He testified that he would have held his hands out in front of him to ensure that she was an appropriate distance from him to allow him to observe her spine. I have already explained why I do not accept his testimony in that regard. [ 124 ] Dr. Bissonnette denied inserting an instrument into B.D.’s anus on three occasions, but acknowledged he did so on one occasion. He testified that he used an anoscope to examine her lower rectum when she had presented with a hemorrhoid on December 28, 2011.

He said that the anoscope would not have made a clicking sound and did not open like a speculum. [ 125 ] The expert opinion provided by Dr. Wintemute was that anoscopy would not be indicated for a patient presenting as B.D. did with a complaint about hemorrhoids. She testified that generally a family doctor would make observations of the perianal area and make a diagnosis on that basis. Anoscopy would not be helpful because it would not be possible to treat the hemorrhoid using the anoscope. [ 126 ] Dr.

Covens testified that anoscopy could be used to look for a growth in the rectum such as a polyp, hemorrhoid, tumour, fistula, or fissure. He testified that for a patient presenting with an external hemorrhoid, but no pain and no thrombosis, examination of the rectum using an anoscope might be appropriate. He also suggested that the patient in those circumstances who had already undergone sigmoidoscopy and hemorrhoid removal could simply be referred back to the doctor who had previously treated the patient. [ 127 ] I do not find Dr.

Bissonnette’s testimony that he conducted anoscopy on B.D. to investigate her complaint about hemorrhoids credible, and do not accept it. First of all, he testified that he did not have an independent recollection of treating B.D. and his testimony was based on the medical records he had available to him. He acknowledged that his records did not document the anoscopy, and then said that he had an independent recollection of having conducted one. He testified that B.D. did not have pain otherwise he would have noted that.

He nevertheless testified that he had to rule out possible causes for B.D.’s symptoms other than hemorrhoids, but could not identify any particular symptoms that she reported. When pressed in cross-examination, he became agitated and insisted that he had a responsibility to diagnose disease including the possibility of an anal tumour or polyp. [ 128 ] I recognize that, according to Dr. Covens, anoscopy might be appropriate in circumstances where a patient presents with a complaint of an external hemorrhoid. However, I reject Dr.

Bissonnette’s testimony that he conducted anoscopy on B.D. to investigate her complaint because his testimony did not make sense. B.D. had previously undergone a sigmoidoscopy and banding procedure to remove a hemorrhoid. B.D. went to see Dr. Bissonnette because she needed a referral to a surgeon to have an external hemorrhoid removed. Dr. Bissonnette did refer her to Dr. Galessiere, who subsequently performed the excision. According to Dr. Bissonnette, B.D. did not complain of pain or any other symptoms. There was nothing for Dr. Bissonnette to investigate. Instead, I find that Dr.

Bissonnette took the opportunity presented to him to insert an instrument into B.D.’s rectum under the guise of addressing her hemorrhoid complaint. I find that his conduct was sexual not medical. [ 129 ] I do not accept Dr. Bissonnette’s denial of B.D.’s allegations. Nor do I accept that he conducted a medically appropriate anoscopy at the hemorrhoid appointment. I do not accept Dr. Bissonnette’s testimony that when he had B.D. stand in front of him and bend over while she was naked he was checking for scoliosis. As I explained above, this claim is simply not believable. [ 130 ] Further, Dr.

Bissonnette’s testimony does not raise a reasonable doubt in my mind regarding B.D.’s allegations. [ 131 ] I accept B.D.’s testimony that on three occasions Dr. Bissonnette inserted an instrument in her anus. Despite some of the frailties in her testimony regarding the order of the appointments and what she heard when the instrument was being used, I am satisfied that her testimony is both credible and reliable. It is unnecessary for the Crown to prove precisely what instrument Dr. Bissonnette inserted in B.D.’s rectum.

Although there was some evidence that anoscopy might have been appropriate for the hemorrhoid appointment, on the other two occasions, the use of the anoscope or any other instrument inserted in B.D.’s rectum was not even within the range of medically appropriate examinations. [ 132 ] Although B.D.’s allegations involve anal penetration, whereas the allegations of the other complainants involve vaginal penetration, I find that similarities in the conduct of Dr. Bissonnette to which they testified support B.D.’s credibility and reliability. Like the other complainants, B.D. testified that Dr.

Bissonnette did not explain what he was doing and in fact did not say much at all during the appointments. He took advantage of the opportunity to subject B.D. to sexual acts when she saw him for medical care. [ 133 ] I am satisfied beyond a reasonable doubt that Dr. Bissonnette inserted an instrument into B.D.’s rectum on three occasions, and I find this conduct was sexual and without her consent. I am also satisfied beyond a reasonable doubt that Dr. Bissonnette held B.D.’s hips while she bent over in front of him naked. I am satisfied that Dr. Bissonnette’s conduct described by B.D. was sexual in nature.

I come to that conclusion on the basis of all of the circumstances, and in particular, based on the part of the body that was touched and the absence of a medical purpose for the conduct.

[ 134 ] I find Dr. Bissonnette guilty of sexual assault on Count 2 in the Indictment. Count 3 - R.G. [ 135 ] R.G. testified that she first met Dr. Bissonnette when she attended at Sainte-Anne’s hospital when she was pregnant and was worried because she was experiencing abdominal cramping and pain. She attended a follow-up appointment with Dr. Bissonnette. [ 136 ] The agreed facts confirmed that R.G. went to the Sainte-Anne’s hospital in 2015, where she saw Dr. Bissonnette who was the on- call doctor. She was pregnant and having abdominal pain and Dr. Bissonnette ordered a pelvic ultrasound.

Another pelvic ultrasound was ordered by a different doctor on June 11, 2015. R.G. saw Dr. Bissonnette at the hospital again on June 18, 2015 for her ultrasound results. She saw him on June 24, 2015 for her first prenatal visit. At that time a Pap smear and cervical swab were collected and the results received thereafter. [ 137 ] R.G. described attending for her appointment with Dr. Bissonnette. She testified that this was the second time she saw him; she did not recall seeing him on June 18, 2015 at the hospital. She testified that Dr.

Bissonnette asked her to undress from the waist down, and she lay down on the examination table with her feet in stirrups. He sat between her legs and rubbed lubricant all over her labia, as well as inside her vagina. As she described this, R.G. demonstrated both a U-shaped motion and a circular motion with her fingers. She testified that he rubbed the lubricant on her very slowly and this made her very uncomfortable. She also testified that he moved his fingers in and out of her vagina very slowly. She testified that it was not something she had ever experienced other than in a sexual way with a partner.

She said she felt numb and scared. She testified that she saw in her peripheral vision

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