Docket: 1858-CR Edward Poon Appellant - v. -, 2012 SKCA 76

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 76 Date: 20120802 Between: Docket: 1858-CR Edward Poon Appellant - and - Her Majesty the Queen Respondent Between: Docket: 1863-CR Her Majesty the Queen Appellant - and - Edward Poon Respondent Between: Docket: 1864-CR Her Majesty the Queen

Appellant - and - Edward Poon Respondent Publication Ban: An order has been made prohibiting the publication of the complainants’ names and any information that could lead to the identity of the complainants shall not be published or broadcast in any way. Coram: Jackson, Richards & Herauf JJ.A. Counsel: Aaron A. Fox, Q.C. and Brian Banilevic for Edward Poon W. Dean Sinclair for the Crown Appeal: From: Q.B. NJ 20 of 2009, J.C. of Regina Heard: November 8-9, 2011 Disposition: Appeals Dismissed Written Reasons: August 2, 2012 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Richards

The Honourable Mr. Justice Herauf Jackson J.A. I. Introduction [ 1 ] Edward Poon, a practicing physician at the time, was charged with six counts of sexually assaulting six patients during a two-month period in 2008. The charges arose as a result of alleged actions performed by him while examining the patients in his professional capacity. The nature of the allegations varied from patient to patient, but all were acts of touching, and some were of a prolonged and invasive nature. Dr. Poon was tried before Malone J. and a jury, and was convicted of sexually assaulting two of the patients. The jury acquitted Dr.

Poon of four of the charges. In relation to the two convictions, Malone J. sentenced him to two years less a day and placed him on the sex offender registry for 10 years. [ 2 ] Both Dr. Poon and the Crown have filed appeals with this Court: (

i) Dr. Poon has appealed from the two convictions; (ii) the Crown has appealed from the four acquittals; and (iii) in the event the convictions are sustained, the Crown has appealed from the sentence. [ 3 ] The complainants’ testimony may be briefly summarized in the following manner: 1. L., born 1989, consulted Dr. Poon on February 13, 2008. She went to him with a breast lump and a complaint of bacterial vaginosis. At some point, during the course of the examination, she told him about not having achieved orgasm. She testified that Dr.

Poon successively and continuously touched her clitoris, vagina and breasts in a sexual manner. She complained to the police on February 15, 2008. 2. M., born 1983, consulted Dr. Poon on February 1, 2008. She had been a patient of his for three years. Her sister worked for him. She suffered from celiac disease and an autoimmune disease which was attacking her liver. On this occasion she consulted Dr. Poon about painful intercourse. She testified that she wanted a referral to a gynaecologist, but Dr.

Poon insisted on a full physical examination during which he massaged her clitoris, breasts and vagina in a sexual manner. She complained to the police after the Leader Post published an

article regarding the complaint of L. 3. J., born 1986, consulted Dr. Poon on February 4, 2008 for an eye infection and other issues, including irritable bowel syndrome. She had seen him on at least one other occasion. This time, he gave her medication and sent her for tests, including x-rays, instructing her to return the next day after 7:30 p.m. with the x-rays, which she did, when he asked her if she had time for a physical. According to her testimony, during the course of the ensuing examination, he engaged in excessive, invasive and prolonged touching of her breasts and vagina.

She complained to the College of Physicians and Surgeons on February 12, 2008 and then to the police after the Leader Post published an

article regarding the complaint of L. 4. G., born 1990, saw Dr. Poon, her family doctor on February 7, 2008 ostensibly for an ear infection, but in reality the visit was at her mother’s behest to have her committed to a drug treatment centre. G. testified that Dr. Poon examined her breasts and during the process, he touched her breasts and nipples in an excessive, forceful and prolonged manner. G. testified that the day after the examination Dr. Poon apologized to her, saying that if he ever made her feel uncomfortable to let him know and that he was sorry. She complained to the police after the Leader Post published an

article regarding the complaint of L. 5. W., born 1986, consulted Dr. Poon on March 10, 2008. (By this time Dr. Poon had been charged in relation to the events in relation to L. and M. and was on an undertaking to keep the peace and be of good behaviour.) Dr. Poon was W.’s family doctor. She was suffering from anxiety issues, stemming in part from some significant issues within the family. Her father had committed suicide, and her mother and sister had tried to have her committed the year before. She went to Dr. Poon’s clinic with her sister and a boyfriend.

She had been telephoned to attend at the clinic because a blood test had revealed that she was suffering from anaemia. Dr. Poon told her he wanted to check her abdomen to determine if her spleen was enlarged. She testified that: (

i) he asked her to take off her top while he was still in the room and did not give her a sheet or gown; (ii) he cupped and massaged her breasts; and (iii) he “was pushing and feeling around” her breasts while massaging her back. She complained to the police after the Leader Post

article appeared. 6. X., born October 1981, saw Dr. Poon on March 18, 2008 as a result of her boyfriend’s positive test for chlamydia. He met with both X. and her boyfriend. He asked her to return the next day, which she did with her mother. He told her he needed to do a vaginal examination, which he performed. He also sought permission to perform a rectal examination. Both examinations were, according to X., prolonged, painful and invasive. During the vaginal examination, he tapped a ring that was present in X.’s clitoris. Like the others, she also complained to the police after the Leader Post published the

article regarding L.’s complaint.

In varying degrees, each complainant testified about Dr. Poon complimenting them on some aspect of their appearance. No complainant testified about any change in Dr. Poon’s demeanour during the examinations. [ 4 ] Dr. Poon testified in his own defence. He testified in relation to M. and L. as follows: (

i) he did not touch them in the manner they described except perhaps by accident; (ii) it would be medically inappropriate to touch a patient in the sexualized manner that they described; and (iii) he had their full consent for everything he did in relation to them. With some variations among the four remaining complainants, Dr. Poon testified that: (

i) he did touch the body parts mentioned, but the complainants exaggerated what he did; (ii) everything he did was medically justifiable; and (iii) he had their full consent for everything he did in relation to them. [ 5 ] The jury found Dr. Poon guilty of sexually assaulting M. and L. only, and acquitted him in relation to the four other complainants. [ 6 ] The issues raised by the defence and the Crown are wide-ranging: they cover decisions rendered by Malone J. before and during the trial and with respect to his charge to the jury. Broadly speaking, the issues concern: (

i) lack of juror impartiality; (ii) whether a defence of honest but mistaken belief should have been left with the jury; (iii) whether Malone J. usurped the role of the jury; (iv) whether Malone J. properly explained the theory of the defence; (

v) whether Malone J. properly reviewed the evidence of the complainants, Dr. Poon and the Crown’s expert witness, Dr. White; (vi) whether Malone J. properly charged the jury in relation to consent and in relation to what constitutes a sexual assault; and (vii) whether the jury should have been charged on the basis of similar fact evidence.

In relation to the sentence appeal, the Crown submits that Malone J. erred in imposing a sentence of two years less a day. [ 7 ] The evidence, issues and submissions will be outlined in detail as I proceed through the conviction appeal, the appeal from the acquittals and the sentence appeal. [ 8 ] In the result, and for the reasons that follow, I would dismiss all appeals to this Court. II. Conviction Appeal 1. Issues [ 9 ] The grounds of appeal and the submissions of the parties raise the following issues: (

a) whether the trial judge erred in his handling of the complaint regarding the lack of a juror’s impartiality; (

b) whether the trial judge erred by failing to leave the defence of honest but mistaken belief in consent with the jury; (

c) whether the trial judge erred by refusing to allow Dr. Poon to call psychiatric evidence going to the issue of his state of mind and whether he had an honest but mistaken belief as to the consent of the complainants; (

d) whether the trial judge erred by failing to charge the jury properly? I will provide the factual and legal context in relation to these issues as I consider them in turn. 2. Whether the trial judge erred in his handling of the complaint regarding the lack of a juror’s impartiality? [ 10 ] Two days into the trial, the Local Registrar's office received a telephone call from someone who was prepared to leave her telephone number only. The caller questioned the impartiality of a particular juror, because of that juror’s past experiences.

Malone J. directed the Local Registrar to telephone the caller to try to obtain further information. The Local Registrar did so. [ 11 ] According to the Local Registrar, the caller indicated that the unnamed juror: (

i) had been subjected to sexual abuse as a child; (ii) had been twice the victim of a serious sexual assault as an adult; and (iii) was presently in an abusive relationship. The caller would not give the juror’s name, but she reluctantly gave her own surname, which is the same as that of one of the jurors. The Local Registrar provided Malone J. with a written memorandum describing what had transpired during the call.

[12] After receiving the Local Registrar’s written memorandum, Malone J. advised the lawyers about what had transpired and askedthem for submissions. Defence counsel requested that Malone J. conduct an inquiry, beginning with the juror whose surname was thesame as the caller’s and, if need be, make further inquiries of the caller herself. [13] After adjourning the matter overnight, Malone J. gave thoughtful reasons why he was not prepared to conduct any further inquiriesof either the caller or the juror (see: Transcript, pp. 633-36). Malone J. began his reasons by recounting these factors: (

i) he had alreadyasked, during jury selection, whether any of the prospective jurors had been a victim of sexual assault and, if so, whether he or she couldnonetheless act impartially; (ii) the jurors had sworn an oath saying that they would deliver a true verdict; and (iii) during his openinginstructions he had explained a series of fundamental principles, including the presumption of innocence and the Crown’s obligation toprove its case beyond a reasonable doubt.

He then concluded his reasons with the following: This is not a situation where there are allegations of misconduct by a juror during a trial or during deliberations. The situation hereis that a person has advised the Local Registrar that because of a past history a juror may not be impartial. However, just because aperson has been selected to act as a juror it doesn’t give the court or anyone else the licence to ask personal and intimate questions, nomatter how diplomatically they are phrased, about their past life.

I refer to the safeguards in place to ensure that a juror acts impartially,and I’m not prepared to, in effect, ignore these safeguards on the basis of unsubstantiated allegations.

I must assume that the juror inquestion does not hold a bias with respect to the accused or the Crown, that the juror will be true to the oath taken, and the juror willfollow the instructions I have referred to when the jurors retire to consider their verdicts.... [Transcript, p. 635; emphasis added.] Malone J. then imposed a publication ban with respect to any information that would identify either the caller or the affected juror, andsealed the envelope containing the Local Registrar’s memorandum and notes of the call. With that, the trial resumed. [14] On appeal, Dr.

Poon asks this Court to quash his client’s convictions on the basis of a miscarriage of justice (see: s. 686(1)(a)(iii) ofthe Criminal Code), arising from an apprehension of bias on the part of the juror bearing the same surname as the caller. This ground ofappeal starts with the submission that Malone J., having been apprised of information about the juror, was required to make inquiries ofher. In support of this proposition, Dr. Poon relies upon R. v. Tsoumas (1973), (ON CA), 11 C.C.C. (2d) 344 (Ont.C.A.); R. v. Andrews (1984), (BC CA), 13 C.C.C. (3d) 207 (B.C.C.A.); R v.

Budai, 2001 BCCA 349, 154 C.C.C. (3d)289 at para. 40, leave to appeal to SCC refused, [2002] 1 S.C.R. vii; R. v. Blackwell, [1995] 2 Crim. App. R. 625; and R. v. Hertrich(1982), (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.), leave to appeal to SCC refused, [1982] 2 S.C.R. x. [15] While these decisions are clearly authoritative, they do not apply to this case. In each of them, the juror in question acted in anallegedly improper way vis-à-vis the accused or the Crown. For example, in Andrews the juror smiled at the accused and gave theimpression that she was acquainted with him.

In Tsoumas, two witnesses observed defence counsel speaking to a juror in the hallway. In Budai, it was “improper and continuous” eye contact between one of the accused and a female juror—again giving the impression of arelationship between the two. In Hertrich, the issue was juror tampering. Nothing similar exists in this case. [16] The within appeal presents a different sort of dilemma regarding the extent to which the criminal justice system need concern itselfwith the private life of a sworn juror.

In resolving that dilemma, the trial judge mentioned the key factors that set this case apart from theauthorities cited by the defence. First, jurors are expected to bring their entire life’s experiences to the task of judging (see: R. v. Pan,2001 SCC 42, [2001] 2 S.C.R. 344 at para. 61). Second, all jurors, including a juror who has been the victim of a crime, are presumed bythe process and their oaths to judge impartially (R. v. Williams, (SCC), [1998] 1 SCR 1128 at para. 13, R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458 at paras. 21-22) and R. v.

K.(A.) (1999), (ON CA), 176 D.L.R. (4th) 665 (Ont.C.A.) at para. 52, leave to appeal to SCC refused, [2000] 1 S.C.R. v. Third, the Canadian justice system is sensitive to the privacyinterests of prospective jurors (see: Williams, at paras. 51-53). In furtherance of that end, the Canadian system does not permit the pre-questioning of jurors (see: Williams at para. 13; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 26). If Dr.

Poon had been awareof the allegations against the juror before she had taken her oath, he would not have been permitted to question her about them or tosuccessfully challenge her for cause on the basis of them. If the judge had questioned the juror during the trial, he would have broughtabout a result that could not have been effected prior to trial. [17] Reviewing Malone J.’s decision against these factors, I conclude that he assessed the matter appropriately and reached a correctdecision. For these reasons, this ground of appeal is dismissed. 3.

Whether the trial judge erred by failing to leave the defence of honest but mistaken belief in consent with the jury? [18] At this point, it is necessary to review the evidence more closely in relation to L. and M., the two complainants with respect towhom the jury convicted Dr. Poon.

[ 19 ] The complaints of L. and M. were of a different magnitude than the other four complainants, in that they described simultaneous or successive touching of breast, clitoris and vagina in a continuous sexual manner, which in the case of M. brought her to the point of arousal. The other four did not testify that Dr. Poon stimulated or touched the clitoris. [20] Malone J. summarized the testimony of L. and M. in this manner: [L] is 21 years of age and attended upon the accused because of a concern with a lump in her breast .

She was asked by the accused whether she had been sexually active and whether she had had an orgasm before. She said she had never had an orgasm, and the accused said something to the effect that this was odd and that something should be done about it. She told the accused she wanted a breast exam. However, he told her it was necessary to give her a full physical. During the examination she said the accused touched and rubbed her nipples and told her to relax. She said she found it odd, but rationalized it, was not comfortable and thought it would be done soon. She said the rubbing of the nipples was continuous.

She said he would stop and start at different areas of the breast. She said he touched her nipples many times, more than 20, and continued to touch her breast when doing the pelvic examination. He said he wanted to check her heart and did so by laying his head on her breast. She said, during the pelvic examination the accused touched her clitoris. She said she had had numerous pelvic examinations, but had never been touched on the clitoris before. She said the accused said her clitoris was too small and he was touching it to make it larger.

He said it was not normal, and this was why she could not have an orgasm . She said he was using his fingers back and forth, back and forth, but could not say for how long . She said she tried to block it out, didn’t want to make him mad as he was aggressive already. She said he did not wear a glove when his fingers were inside her vagina, and that his fingers ran in and out in a sexual manner . She finally left the clinic, called the sexual assault line, and the next day reported the matter to the police.

In cross-examination, she was pressed as to whether the accused wore gloves or not and indicated throughout she did not see him with gloves, but when he switched hands, breasts to vagina, he was not wearing a glove at that time. She said she did not tell him to stop ever. She tried to say something to get out of there, but couldn’t. [Charge to Jury, p. 1533, line 9 to p. 1534, line 22; emphasis added] . . . [M] is 26 years old and a music teacher, and had seen the accused on numerous occasions in the past. She saw him because she was having pain and discomfort during sexual intercourse .

She agreed to a physical examination and was told to lie down on the bed with the bottoms of her feet together. She said the accused did not explain or ask permission or describe to her what he was going to do. She said the accused inserted one finger in her vagina, moved it in a circular motion, at the same time his thumb touched her labia and then her clitoris, which he rubbed continuously while his finger was in her vagina. She said the thumb on the clitoris was moved back and forth and around and around like he was pleasuring her or stimulating her.

She said the finger and rubbing never stopped, and that the examination and rubbing lasted a minimum of 30 minutes. She said she felt like a piece of meat, a piece of flesh, that this was wrong, that he was a doctor, she just wanted to just finish and get out of there. She said she felt shame, she could have had an orgasm, but felt guilty and sinful about it . She said the accused wore a glove on his hand during examination. She reported the matter to the police after she heard that the accused had other charges laid against him, and that was at the end of April.

In cross-examination she said the accused used a lubricant on the glove and was patient with her, and waited a couple of minutes for her to relax before he began. He told her to take deep breaths. She indicated that at all times the accused was calm, polite and kind. [Charge to Jury p. 1537, line 16 to p. 1538, line 19; emphasis added] [21] With respect to his review of Dr. Poon’s testimony, Malone J. began by commenting on how Dr. Poon’s approach to examining the intimate parts of his female patients differed from that of the Crown’s expert, Dr. White: Dr.

Poon’s evidence : He began his testimony by describing his rather interesting background, including his education at high school, university level, and his professional at-work history after becoming qualified as a family physician. He and his wife became the owners of six walk-in clinics including the Golden Mile Clinic. He said the Golden Mile Clinic had only one receptionist and usually one doctor worked there at a time. The clinic did not have a nurse and it did not have a chaperone because of the inconsistent patient load, and he didn’t want to hire another receptionist.

He gave details of his, to say the least, hectic work schedule. He was shown pictures of the examination rooms at the Golden Mile Clinic which showed a sign with respect to attendants and chaperones opposite the examining table. He later testified that the signs were present in February and March, 2008. I would observe, however, at this time, that the pictures were not shown to any of the complainants. He gave details of how he conducts breast examinations and bi-manual examinations, which in my opinion didn’t differ significantly from the evidence of Dr. White except in the following areas: Dr.

Poon said he does a visual examination of the breast to look for dimpling and discolouring. He said he gives breast examinations to ladies in their twenties because of his failure in the past to do one on a patient who was later diagnosed with breast cancer. He does not have an attendance [ sic ] in the examining room unless the patient requests one, and he says he wears a glove on only one hand when doing pelvic examinations. He agreed with Dr. White’s testimony as to how long breast and pelvic examinations should last.

He confirmed he did not touch the clitoris during a pelvic examination, but did say it was possible, but unlikely. When asked about hand holding, hugging, kissing patients’ hands, complimentary remarks, he felt that this was within the boundaries of an examination and not an invasion of the patient and certainly not sexual. He lost his driver’s licence in January of 2008 because of too many speeding tickets, but eventually got a restricted licence to allow him to go from home to work and then back again.

He indicated he had severe health problems in 2008, including being overweight, high blood pressure, high cholesterol count, angina and diabetes. He said he did not receive psychiatric counselling in February of 2008. When asked again about the hugs, et cetera, he indicated that he did it to assure patients that they would be okay and to make them comfortable. He said he did not want to appear just as a man in a white coat, but as a friend, too. He said there was no sexual purpose in such activity.

He said he felt he had the consent of all the complainants to perform the exams that he did. After being arrested he did not changehis practice as he felt he had done nothing wrong. Finally, he indicated he is now receiving psychiatric treatment that began after thecharges were laid. He said he hadn’t practised medicine since the charges were laid and no longer owns any of the clinics.

He said if anyof the complainants were upset at the time of the examination he was not aware of it, and in the future would try to do better, and finally,indicated again that he didn’t think he had done anything wrong. [Charge to Jury, p. 1529, line 12 to p. 1531, line 24; emphasis added] [22] After reviewing M.’s evidence, Malone J. then reviewed Dr. Poon’s evidence in relation to M. in this manner: Dr.

Poon said he did not touch her clitoris during examination, but this might have happened, but did not intend to do so, and anytouching of the clitoris would have been brief and disputed the complainant’s version of events. [Charge to Jury, p. 1538, lines 20-24] Then, later in relation to L., Malone J. reviewed Dr. Poon’s evidence as follows: Dr. Poon’s testimony: He denied putting his head on her chest or breast and fingering her vagina while touching her breast. He saidhe had no recollection of the exam, but would have worn one glove.

He denied rubbing the clitoris to make it larger as such procedurewill not make the clitoris larger. [Charge to Jury, p. 1534, lines 23 to p. 1535, line 2] [23] On the morning of counsels’ addresses to the jury, Dr. Poon’s counsel submitted to Malone J. that the defence of honest butmistaken belief in consent should be left with the jury. (An earlier application had been made and denied.) After hearing argument onthis second occasion, Malone J. ruled as follows: . . . In my view, there is no evidentiary base for this type of argument to be put to the jury.

Again, I come back to my originalstatements that throughout the accused has determined—has testified that the events referred to by the complainants simply did nothappen. And I don’t know how you can have an honest, but mistaken belief in something that didn’t happen. Now, there’s reference to the actus reus in one of the cases and I’m not quite sure which one it was, but again here the accused’sevidence was, there was no actus reus. That is, he denied any of these things occurring.

Now, it’s quite correct that all of thecomplainants consented to the initial treatment that they were going to receive from the accused, but in my view this cannot go so far asto say that they consented to their very allegations that form the substantial complaint of sexual assault. I’m sorry, I wish I’d had more time to put this out in a more literate fashion, but I don’t, and accordingly, Mr. Fox, I’m denying theapplication. [Transcript, p. 1507, line 20 to p. 1508, line 15; emphasis added] [24] On appeal, Dr.

Poon’s counsel submits that evidence, as to honest belief, can come from any of the evidence before the Court.Once the evidentiary foundation is present, counsel submits that a trial judge is obligated to put the defence to the jury (see: Pappajohnv. The Queen, (SCC), [1980] 2 S.C.R. 120 and R. v. Ewanchuk, (SCC), [1999]1 S.C.R. 330). [25] The evidentiary foundation that is said to support the claim of honest belief is based on Dr.

Poon’s repeated assertions to the effectthat he honestly believed the complainants consented to being touched: (Transcript, p. 1165, lines 13-14; p. 1186, line 13 to p. 1187, line5; and p. 1236, line 21 to p. 1239, line 1). [26] For its part, the Crown makes two arguments. First, the Crown asserts that Malone J. did in fact leave the defence of honest butmistaken belief to the jury, but did so in error.

Crown counsel makes this argument because Malone J. stated twice that “the Crown mustprove beyond a reasonable doubt…that the accused knew the complainant did not consent to the force applied” (see: Transcript, pp. 1522and 1549) and defined what those words mean in the following way: Did the accused know that a complainant did not consent to the force that the accused applied? The Crown must prove beyond areasonable doubt that the accused was aware that the complainant did not consent to the physical contact that the accused applied.

Toprove that the accused was aware of the complainant’s lack of consent, the Crown must prove one of the following: (1) that the accusedactually knew the complainant did not consent; (2) that the accused knew there was a risk that the complainant did not consent, and thatthe accused proceeded in the face of that risk; (3) the accused was aware of indications that the complainant did not consent, butdeliberately chose to ignore them because the accused did not want to know the truth. Any one of these is sufficient to establish theaccused’s awareness of a complainant’s lack of consent.

You do not have to agree on the same one. If each of you is satisfied about anyone of them beyond a reasonable doubt, the Crown will have provided the essential element of knowledge. [Trial Transcript, p. 1524,lines 1-20; emphasis added]. Second, the Crown asserts that the defence of honest belief should not have been left with the jury in relation to L. and M. because of Dr.Poon’s denial of the very actions leading to the allegations of sexual assault. [27] I do not find Crown counsel’s first argument persuasive. Malone J. twice ruled that he was not leaving the defence with the jury.

It is, of course, theoretically possible for a judge to leave a defence with a jury even when he or she has expressly recognized it would bean error to do so, but nothing in this charge leads me to conclude that Malone J. accidentally left the defence of honest but mistaken

belief with the jury. [28] Malone J.’s instruction would simply not be sufficient to leave the defence of honest belief with the jury. The instruction does notfollow the standard forms for such a charge. For example, the Canadian Judicial Council’s model charge provides specific guidelines asto how to explain the defence of an honest but mistaken belief to a jury (see: http://www.cjc-ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_modeljuryinstruction_en.asp ). [29] As a review of the model charge indicates, a trial judge must outline the position of the accused as to honest belief and explainwhat that means.

A judge, charging on honest belief, must impress upon the jury that the Crown must prove beyond a reasonable doubtthat the accused did not have an honest belief that the complainant consented. This principle is not present in the charge underconsideration. Malone J.’s instruction tracks word for word this model charge except the part dealing with the defence of honest belief. [30] The Crown’s submission that Malone J. did in fact leave honest belief with the jury does not persuade me, but the Crown’s secondargument, which supports the decision of Malone J. not to leave the defence with the jury, is persuasive.

L. and M., for their part, andDr. Poon, for his part, testified about qualitatively different acts. According to Dr. Poon, the examinations did not happen in the mannerdescribed by the complainants. If the acts described by the complainants did not happen, Dr. Poon need not have been concerned abouttheir consent. True, he testified about his honest belief in consent, but in so doing he was testifying not to what they said happened, butas Malone J. said, his point of reference was what he said had happened, which bore little relationship to the complainants’ testimony onthe crucial points in issue.

If he did not touch them in the manner L. and M. described, there is no basis for the contention that he had anhonest but mistaken belief in their consent. [31] This case falls squarely within the parameters described in R. v. Davis, (SCC), [1999] 3 S.C.R. 759 at para. 85where Lamer C.J. stated there is no possibility of an honest but mistaken belief in consent when it is not possible to “splice together theevidence to create a third version of events in which the accused honestly but mistakenly believed the complainant consented.” See, aswell, both the majority and minority judgments in R. v.

Despins, 2007 SKCA 119, [2008] 3 W.W.R. 218 where the Court overturned anacquittal because the trial judge in that case had left the defence of honest belief with the jury in circumstances where the accused had norecollection of the circumstances preceding intercourse. When an accused states that the act in question did not take place, there can beno factual foundation upon which an accused relies for the honest belief, which means there is no air of reality to the defence. See: R. v.Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 at paras. 47-49; R. v. Ewanchuk, supra at para. 56; and R. v.

Mayuran, 2012 SCC 31 at paras.21-22. [32] In

summary, this is not a case of “consent or no consent,” it is a case of whether the acts in question took place at all. To leave thedefence of honest belief in consent with the jury in such circumstances would mean that an accused could take the stand and say “nosexual act took place but, if it did, I honestly believed the complainant was consenting.” No evidentiary foundation for an honest butmistaken belief in consent exists in the instant case. This ground of appeal fails. 4. Whether the trial judge erred by refusing to allow Dr.

Poon to call psychiatric evidence going to the issue of his state of mindand whether he had an honest but mistaken belief as to the consent of the complainants? [33] This ground of appeal fails for the same reason as the previous ground. Since Dr. Poon testified that the acts of sexual assault didnot take place, there would be no basis to allow him to call psychiatric evidence to explain why he believed he had the consent to commitwhat he said had not happened. 5.

Whether the trial judge erred in failing to charge the jury properly? 5.1 Introduction and Standard of Review [34] Whereas the previous grounds of appeal address legal decisions made by Malone J. in advance of the charge, Dr. Poon also raisesthe following grounds of appeal in relation to the jury charge itself: (

a) the trial judge erred in his review of the complainants’ testimony by failing to review the portions of their testimony which raisedquestions about whether they had exaggerated or misconstrued what had taken place; (

b) the trial judge erred by directing the jury that they should find the complainants did not consent and Dr. Poon would have knownthey were not consenting; (

c) the trial judge erred in his review of Dr. White’s evidence by not canvassing both the examination and the cross-examination;

(

d) the trial judge erred by failing to review Dr. Poon’s evidence with the jury; (

e) the trial judge erred by failing to outline the theory of the defence; (

f) the trial judge erred by allowing the complainants to refer to previous medical examinations and to compare them to thoseconducted by Dr. Poon when the medical information in relation to those previous procedures was not available to him; and (

g) the trial judge erred by advising the jury that Dr. Poon was now receiving treatment for a bipolar condition and was no longerworking as a physician. [35] After Malone J. had completed charging the jury, counsel for Dr. Poon raised 13 objections to the charge, including the grounds ofappeal referred to in the preceding paragraph (Transcript, pp. 1554-65). Some re-charging took place, which will be explained later inthese reasons.

Crown counsel at trial did not object to any aspect of the charge. 5.2 Whether Malone J. erred in his review of the complainants’ testimony by failing to review the portions of theirtestimony which raised questions about whether they had exaggerated or misconstrued what had taken place? [36] The defence rightly submits that a trial judge must review with the jury the defence theory and the evidence in support of thattheory. Failure to do so is an error. See: R v. Azoulay, (SCC), [1952] 2 S.C.R. 495 and R. v.

Colpitts, (SCC), [1965] S.C.R. 739 at p. 752. [37] Malone J. did advise the jury that the complainants could be misconstruing what had actually happened (see Transcript, p. 1548),but he did not review some matters that his counsel believed would have pointed to a conclusion of exaggeration. In relation to L., thosematters are: (

a) It was L who had requested an STD test and thus the Appellant's questions about her sexual history were completely appropriate; (

b) The cross-examination was not just as to whether or not the Appellant had worn a glove, but also confirmed that she had adifficult time estimating the times; that, for whatever reason, she did not want to acknowledge what she had said to the police, which wasthat it was her that had asked for the STD test, and that she acknowledged that she had said she did not have orgasms, which came outduring the discussion about her STD tests; (

c) She was challenged as to whether or not she had diminished feeling on her right side and while she denied she did at the time ofthe examination, she appeared evasive about whether she may have had a problem with this in the past; (

d) She acknowledged that she did have pain when a certain part of her clitoris was touched; (

e) These conditions were outlined on the chart that the Appellant prepared; and (

f) She told her friend, who the Appellant knew was waiting for her in the waiting room, that she wasn't sure but probably everythingwas fine in relation to the examination she had just had [footnotes omitted].[1] [38] Quite simply, the case in relation to L. was not about the rather minor issues raised here—about which there was littledisagreement. The critical issue was whether the jury was satisfied beyond a reasonable doubt as to whether the sexual actions describedby L. had occurred.

All else was essentially irrelevant or fell within the aperture of discretion allowed to a trial judge to review theevidence as he or she deems fit. [39] Malone J. was fully aware of the difficulty of charging a jury where all of what has been alleged to have taken place wouldconstitute sexual assaults, if the actions had not been performed by a physician. Thus, in his charge to the jury, Malone J. explained theline between what constituted a sexual assault and what did not by reviewing the evidence that pertained to what would be a sexualassault even if it were performed by a physician.

When he reviewed the complainants’ testimony, for example, he advised the jury thathe planned to restrict his review of the evidence “to the allegations of sexual assault themselves:” ... [I]t is my intention to, as much as possible, restrict my review of the evidence only so far as it relates to the allegations of sexualassault themselves. [Charge to the Jury, p. 1532, lines 13-16] If Malone J. had not made the decision to focus on what would be a sexual assault, whether committed by a physician or not, the chargewould have been extremely long and might have confused the jury.

His decision to do so, however, had implications for the amount ofdetail contained in the charge to the jury. [40] While it was true that L. had requested testing for bacterial vaginosis, she did so only after Dr. Poon had insisted on performing a

vaginal examination. Dr. Poon insisted that he could not do a breast exam without also performing a vaginal examination and, during the course of this discussion, he asked her if she had ever had an orgasm. If Malone J. had reviewed L.’s hesitancy with respect to testifying about this matter, he would also have had to review how Dr. Poon came to be examining for this and how it was relevant to the simultaneous or successive touching of the breasts and the clitoris. As to the pain in her clitoris, L. testified that this happened only after Dr.

Poon had been rubbing her clitoris in the repetitive manner described by her. Further, if he had charged on these matters, Malone J. would have had to confront a problem that had been considerably downplayed, and that is the problem in relation to the fact that Dr. Poon prepared two charts for L. [41] As mentioned, L. was the first of the complainants to complain to the police. She did so within two days of seeing Dr. Poon. When he was arrested, he was unable to produce her chart. Then a detailed chart was presented to the police, two days later. Four days later, Dr.

Poon produced an earlier chart, which contained considerably less information. All of this was the subject of an admission at trial (see: Exhibit D-23 and Transcript, p. 1480). [42] Dr. Poon’s first chart did not mention a complaint of diminished sensation or pain in the clitoris. This does not mean that L. did not mention these matters during the course of Dr. Poon’s examination of her, but referring to the issue would have raised again Dr.

Poon’s actions in providing two charts: one before questioning by the police and one after. [43] As to the final matter in the list of six above, L. did tell a friend she “wasn't sure, but probably everything was fine,” but she also told her friend other things that led L. to call the Kids Help Phone, the Sexual Assault Line, and ultimately, to provide a blood sample to the police. If Malone J. had charged on any of these matters, the context would have been at least as prejudicial to Dr. Poon as their absence. [44] In relation to M.’s evidence, Dr.

Poon’s counsel argued that the following matters should have been reviewed by Malone J. in his charge to the jury: (

a) That M was the sister of the Appellant's long-time bookkeeper; (

b) She had repeatedly asked him to examine her because of a problem with painful intercourse and he had put her off until he indicated he would have time to do an examination; (

c) M on the one hand said she did not consent to the extent of the exam, but on the other hand, was the one who was specifically asking for the examination and I understood that there would be a physical examination of her pelvic area as a result of her complaint about painful intercourse; and (

d) M underwent an extensive physical examination, including a breast exam, of which she had no complaint; and (

e) The Appellant did not say that he did not touch her clitoris. He simply stated that he did not intend to do so but because of his physical stature and the fact that he stands on the side of his patients, it is possible the clitoris was touched while he was carrying out what was admittedly an extensive examination of her. While Dr. White agreed that this should not happen, the very medical journals that he relied upon illustrated that it could happen. [2] [45] It was clear on the evidence that M. had consulted Dr.

Poon because of painful intercourse and she had consented to a pelvic examination for that purpose. It is also clear that the medical journals upon which both Dr. White and Dr. Poon relied contained diagrams where a physician’s thumb is shown resting in the clitoral area. These matters were not in issue. The issue was whether the Crown had proven beyond a reasonable doubt that Dr. Poon had touched M. in the sexual way that she described. In assessing M.’s credibility, it was simply not necessary to repeat her testimony regarding the above matters.

She did not complain during the examination, but when she testified she explained why: she was shaking and nervous and he was the doctor. After the incident was over and she had left Dr. Poon’s office, she complained to the College. More importantly, as with L., Dr. Poon could not argue that M. consented to acts that he said did not happen. [46] In relation to M., there is another matter about which Dr. Poon complained on appeal. According to the evidence, M. felt ashamed and embarrassed that she approached orgasm. When Dr.

Poon’s counsel addressed the jury, he referred to her testimony on this point to explain why M. complained to the police and persisted with her complaint to trial. The judge mentioned her shame while he was describing her testimony, and he described counsel’s reason for her complaint later in his charge when he said this: Now, during his submission to you, Mr. Fox made the suggestion that [M] may have had some sort of grudge against the accused for having brought her almost to an orgasm, and that is why she testified as she did.

I have no recollection of whether she was asked questions of this nature in cross-examination. I don’t think she was, but in any event Mr. Fox’s comment must be considered by you when you’re in deliberations. (Transcript, p. 1539, lines 2-10) At the request of Dr. Poon’s counsel, the jury was recharged on this point:

First of all, with [M], I think I used the term that “she possibly had a grudge.” Upon reflection and being advised by counsel, I think that’s probably incorrect of me to use that term. It was more correct to say that maybe she felt guilty, and that’s why she testified in the manner that she did. (Transcript, p. 1565, lines 14-19) [47] In this Court, counsel for Dr. Poon submitted that this was not sufficient to convey the theory of the defence that M. exaggerated the allegations because of her own guilt.

Having reviewed the jury charge in its entirety, Malone J. had no obligation to do no more than he did on this point. It would be difficult for the jury to accept that M. was prepared to admit at a preliminary inquiry and at trial that she had been aroused by Dr. Poon’s touching, but that she was prepared to exaggerate the touching that brought her to that state as a means of compensating for her admission of arousal. 5.3 Whether the trial judge erred by directing the jury that they should find that the complainants did not consent and Dr.

Poon would have known they were not consenting? [48] In his instructions to the jury, Malone J. said the following: Did the complainants consent to the force that the accused applied? In his argument, Mr. Fox suggested that each individual consented to what the accused said he did to them, and that’s the phrase, that’s the fact, but what we are concerned with is did the complainants consent to what he said he didn’t do to them, but they say he did.

Let me review some of the individual comments you have heard in this regard: [here the judge spoke about each complainant, indicating the evidence that would show a lack of consent to the activity in question—I have quoted the parts dealing with L. and M. only] L.: She said she felt it was wrong, inappropriate, and time to get out of there, but didn’t know what to do, tried to block it out, didn’t want to make him mad as he was aggressive already; … M:. She said she felt like a piece of meat, a piece of flesh, that this was wrong.

She just wanted to get out of there; … Again, ladies and gentlemen, if you refer to these matters, again I think you’ll have no trouble finding beyond a reasonable doubt that none of the complainants consented to the accused’s activities . [Charge of the Jury, p. 1550, line 8 to p.1551, line 11; emphasis added] [49] Dr. Poon’s counsel submits that by charging the jury in this manner, Malone J. usurped the function of the jury and told them how to decide a crucial element in the case. He asserts that Malone J. made the same error that resulted in a new trial in R v.

Gunning , 2005 SCC 27 , [2005] 1 SCR 627. [50] While a new trial was ordered in Gunning , the Supreme Court of Canada held that a trial judge charging a jury can offer an opinion on a question of fact, and can even do so strongly, but it must be made clear to the jury that “the opinion is given as advice and not direction” (para. 27). The difficulty arose in Gunning because the trial judge directed the jury as a matter of law that it should find that an element of an offence had been proven and his equivocal re-charge did not overcome the error.

Further, the effect of directing the jury in this manner in Gunning removed all other decision-making from the jury and led irrevocably to at least a decision of guilty of manslaughter. (See, also, Mayuran at paras. 36-37 .) [51] In the case at bar, Malone J.’s language was much more nuanced than that used in Gunning . Malone J. in the instant case gave a general instruction indicating that the jurors were the judges of the facts. He reiterated those words at several points in his charge.

He left the matter of consent for them to decide, albeit with his comment that they should have no trouble finding no consent, if the events had transpired as described by the complainants. In my view, the wording that he used, read in the context of the whole of the charge, offered advice, and not direction, which Gunning clearly permits. [52] Even if Malone J.’s remarks were directive, which I do not accept, I would not order a new trial in any event. As soon as Dr. Poon testified and denied the acts giving rise to the claim of sexual assault, the case in relation to M. and L. was not about consent.

It was about whether the acts took place at all. On that basis, the charge on consent played a minor role in the importance of the whole of the charge. 5.4 Whether the trial judge erred in his review of Dr. White’s evidence by not canvassing both the examination and the cross- examination?

[53] The Crown called Dr. White to comment on various hypothetical situations put to him in relation to each of the complainants for the purpose of eliciting from him an opinion that some of the procedures were inappropriate or uncalled for. In examination-in-chief, it was made clear that some of Dr. Poon’s practices were inappropriate, but in cross-examination some of this became more attenuated. In his charge to the jury, the judge referred more to Dr. White’s evidence given in examination than in cross-examination. [54] Dr. Poon submits in this Court that Malone J. should have reviewed the following matters with the jury: (

i) there is no Saskatchewan guideline requiring the presence of an attendant; (ii) Dr. White acknowledged in cross-examination that the clitoris would be touched if the patient complained of pain in the clitoris; (iii) because L. was concerned about painful intercourse, it was appropriate to canvass issues of sexual history including orgasms; (iv) if a patient wants to be tested for a sexually transmitted disease, a doctor would want to know if the patient is involved in more than one relationship, if they are having unprotected sex and whether they are experiencing any pain or discharge; (

v) if a patient indicates there is a certain part of her clitoris that hurts, the issue should be pursued; (vi) a physician should begin an examination by touching the person's hands, checking skin color, nail beds and joints; (vii) if a patient wants a lump on her breast examined, a breast examination would be called for; (viii) if a patient complains that she had diminished sensation, that would justify a pelvic examination; (ix) Malone J. stated that Dr. White did not instruct patients regarding how to conduct a breast examination at home, which left the impression that Dr.

Poon’s contrary practice was medically unacceptable, when Dr. White's actual testimony was that while there is some controversy about the benefit of self-breast exams, Dr. White still instructed patients how to do it; (

x) if a patient presents with painful intercourse and made a request for a referral to a gynaecologist, then as a frontline doctor you would not just refer them to a gynaecologist but would do an examination yourself first; (xi) the role of a doctor, when a request is made for a referral to a gynaecologist, is not simply to make the referral but to conduct a history and carry out a physical examination; (xii) Dr.

White was not sure as to whether one possible diagnosis for painful intercourse is that a patient is too sma1l; (xiii) one cause of painful intercourse is that the vagina can go into spasms as a result of the introduction of something, calling for testing by a physician by the insertion of two fingers into the vagina; (xiv) if patient complains of painful intercourse, the doctor should try to localize the symptom to determine if it is near the outside occurring at the start of intercourse or is it felt when the partner pushes deeper; (xv) Dr.

White had never heard of a gynaecologist giving a person dilators to expand the vagina even though this is something M. had raised; (xvi) Dr.

White was not familiar with the practice of performing stretching exercises even though M. specifically mentioned that she and her husband had been given stretching exercises to do; (xvii) one text demonstrated a bi-manual examination, with the thumb in the general area of the clitoris; (xviii) incidental contact with the clitoris based upon the physical makeup of the examiner could occur; (xix) a patient who comes in with a complaint of painful sexual intercourse would have something more than a standard bi-manual examination; (xx) during a bi-manual examination, the fingers are inserted along the bottom wall and then the doctor tries to locate the cervix; the doctor does not actually do a circular motion of the vagina but if a doctor is trying to detect if a particular spot is painful the doctor would do the full circumference of the vagina; and (xxi) Dr.

White agreed it would be a very good thing if a patient described her examining physician throughout the examination as calm, polite and kind, which is how M. described Dr. Poon. [55] Simply put, the case in relation to L. and M. was not about what was acceptable practice. As soon as Dr. Poon testified, and agreed with Dr. White on all material points, the latter’s evidence became essentially irrelevant—in relation to L. and M.

Nothing in the above list could be taken as raising a reasonable doubt about prolonged and successive touching of female genitalia, including stimulation of the clitoris. [56] If the jury had convicted Dr. Poon on all counts, Malone J.’s limited review of Dr. White’s testimony might constitute a ground for appellate intervention. In this case, however, the jury convicted the accused of the only two counts of sexual assault containing the element of clitoral stimulation and where Dr. Poon’s primary line of defence was the events had not taken place. Thus, if the jury did not accept Dr.

Poon’s testimony or was not left in doubt by it or by the whole of the evidence and they accepted L.’s and M.’s description of sexual stimulation, Dr. White’s examination-in-chief and cross-examination was of little consequence. 5.5 Whether the trial judge erred by failing to review Dr. Poon’s evidence with the jury? [57] This question is a variation of the question in relation to Dr. White. Like Dr. White, Dr. Poon testified at length about appropriate practice when a physician examines female genitalia and about his own practice.

He also had reasons as to why he did not have an attendant present and why he thought he should examine the breasts and vaginas of L. and M. His fundamental testimony in relation to L. and M., however, was that he did not touch them in the manner and to the degree they described. In such circumstances, Malone J.’s brief description of his denial was sufficient. 5.6 Whether the trial judge erred by allowing L. to refer to previous medical examinations and comparing them to those conducted by Dr.

Poon when the medical information in relation to those previous procedures was not available to him? [58] When Malone J. reviewed the evidence of L., he stated “she said she had had numerous pelvic examinations, but had never been touched on the clitoris before” (see: Charge to Jury, p. 1534). In fact, Dr. Poon’s counsel argues that Malone J. erred both in that L. had never had a “full physical before” (Trial Transcript, p. 50) and in not cautioning the jury as to the use that could be made of such a comparison—even if it were true.

[59] Clearly, it would have been preferable for Malone J. not to have made the factual error and to have charged the jury about the limited use that could be made of the comparison, but in the context of the whole of this charge and the conviction in relation to L., it must be considered an error that, standing on its own, would not justify appellate intervention. Again, I come back to Dr. White’s testimony to the effect that one does not perform a physical in the manner described by L. and Dr. Poon agreed with him. 5.7 Whether the trial judge erred by advising the jury that Dr.

Poon was now receiving treatment for a bipolar condition and was no longer working as a physician? [60] Dr. Poon testified about his current mental health problems as a basis for laying the foundation for calling Dr. Messer to support his testimony that he could be mistaken in his belief in relation to whether the complainants consented to being touched. [61] Malone J. instructed the jury on the point in this manner: He said he felt he had the consent of all the complainants to perform the exams that he did. After being arrested he did not change his practice as he felt he had done nothing wrong.

Finally, he indicated he is now receiving psychiatric treatment that began after the charges were laid. He said he hadn’t practised medicine since the charges were laid and no longer owns any of the clinics . He said if any of the complainants were upset at the time of the examination he was not aware of it, and in the future would try to do better, and finally, indicated again that he didn’t think he had done anything wrong. (Charge to Jury, p. 1531; emphasis added) [62] Dr.

Poon’s counsel submits that Malone J. “left the clear impression with the jury that there was something wrong with the Appellant at the time the offences occurred” which was prejudicial to his client. On this point, I agree with Crown counsel that Malone J. cannot be faulted for referring to Dr. Poon’s own testimony. His remarks can also be interpreted as offering some excuse or justification for his actions. There is no error here. 5.8 Conclusion in relation to the Conviction Appeal [63] In

summary, I have found no error justifying appellate intervention in relation to the convictions pertaining to L. and M. The jury was fairly and adequately charged. The conviction appeal is dismissed. 6. Crown Appeal from Acquittals 6.1 Grounds of Appeal and Issues [64] From the Crown’s notice of appeal, factum and counsel’s submissions, I have concluded that the Crown’s appeal should be analyzed according to the following issues: (

a) whether the trial judge erred by failing to permit the jury to consider relevant similar fact evidence; (

b) whether the trial judge erred by failing to instruct the jury properly with respect to consent; (

c) whether the trial judge erred by failing to instruct the jury with respect to the proper definition of sexual assault? [65] I will consider each of these issues in turn. 6.2 Whether the trial judge erred by failing to permit the jury to consider relevant similar fact evidence? [66] Following completion of the Crown’s case, the Crown applied to Malone J. to have the jury consider the evidence of each of the complainants in relation to each charge. [67] At trial, Crown counsel filed a brief with Malone J. citing a number of authorities. As she was beginning her argument, this

exchange took place: THE COURT: The difficulty I have, Ms. Guiboche, is all the cases were Judge alone. None of them were jury. MS. GUIBOCHE: Okay, but I don’t think that – I mean, similar fact is often put – similar fact charges are often put to juries. THE COURT: Well, it weighs heavily in the determination, whether it’s Judge alone or a jury, but go ahead. (Transcript, June 18, 2010,p. 108). Later, in the course of argument, Malone J. again expressed his concern about charging the jury with respect to similar fact evidence: THE COURT: I’m just suggesting, Ms.

Guiboche, that it’s a different test for a jury and for a judge alone. I’m not saying you shrinkfrom – not having similar fact because it’s a jury. I’m just suggesting it’s a different test. (Transcript, June 18, 2010, p. 120). [68] Malone J. questioned Crown counsel about the need for similar fact evidence: MS. GUIBOCHE: Now, in our facts we have six complainants who testified in relation to the conduct of Dr. Poon in the context of adoctor/patient relationship.

The complainants who testified, in our respectful view, were all credible, reliable, and forthcoming withevidence of their respective experiences with Dr. Poon. This was not a case where the Crown was undertaking the K.G.B. process,attempting to admit an out-of-court statement because complainants were reluctant – THE COURT: I agree with your comment that they were credible and so on, but does that not take away from your argument if each oneof them is individually very credible? MS. GUIBOCHE: In what respect? THE COURT: So why would there be a need for corroboration? MS.

GUIBOCHE: I’ll address that as I go through. … I mean, I haven’t seen any case law that supports the proposition that because thecomplainants are credible, therefore similar fact evidence shouldn’t be allowed. (Transcript, June 18, 2010 at p. 116-17). [69] At the conclusion of argument, Malone J. ruled as follows: THE COURT: Ms. Guiboche and Mr. Fox, I’ve given this some considerable thought since we first met some time ago, so I think I’lljust deal with the matter now. Ms. Guiboche, I’m not prepared to allow similar fact evidence in this particular case. I have a reference toa quote from a B.C. case, R. v.

Titmus, (2004), 27 Criminal Reports, 6th, at 77. And the Judge in that case, it’s a British Columbia Courtof Appeal, in that case it said: “In any case it is for the judge to determine whether the probative value of the similar fact evidenceoutweighs its prejudicial value. If the Crown can prove its case using other evidence the probative value will not outweigh theprejudicial effect. The danger in admitting similar fact evidence in a jury trial is that the jury may feel that the accused is a bad personwho deserves to be punished for his bad acts. This is referred to as moral prejudice” – [3] – which Ms.

Guiboche referred to in her judgment, in her argument – “The jury may also become confused by the number of incidentsand distracted from their task of deciding each count separately. This is referred to as reasoning prejudice.” R. v. Shearing [2002] (sic) 2002 SCC 58 , 3 S.C.R. 33: “If the probative value of the evidence outweighs these potential prejudices, the similar facts may be admissible.”[4] In my view, the prejudicial value far outweighs the probative value. Another consideration I’ve touched upon earlier is the danger of confusing the jury. Mr. Fox is quite correct.

As a matter of law I have tocharge them that they must deal with each count separately, and just because they might reach a decision on one count it does notnecessarily follow that they must reach the same decision on the next count. I have draft charges for where similar fact evidence is putbefore the jury. In looking at them I’m not satisfied in my own mind that even with the most tactful language I could use that there isn’t adanger of simply confusing the jury at the end of the day. For these reasons I am denying the motion.

Thank you very much. (Transcript,June 18, 2010 at pp. 127-28). [70] On appeal, the Crown makes the following submissions based on the exchanges between trial Crown counsel and Malone J. andbased on his reasons for rejecting the Crown’s application: (

i) no deference is owed to Malone J.’s decision because he “did not explainhow he assessed the probative value of the evidence, did not explain how he assessed the prejudicial effect and did not explain how hebalanced one against the other” and he did not consider “the issue in accordance with the methodology enunciated in R. v.

Handy [2002SCC 56, [2002] 2 S.C.R. 908]”; (ii) there is no different legal test governing the admissibility of similar fact evidence in jury trials thanin non-jury trials; (iii) the drafting of a charge would not be a complicated matter—the facts in this case were, in the opinion of counsel,virtually indistinguishable from the facts of R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333; and (iv) it was an error tosuggest that the similar fact evidence might not be necessary because the complainants appeared to be credible.

In his submissions,Crown counsel pointed out that the Court was not concerned with extrinsic similar fact evidence, which might be said to lengthen thetrial or distract the jury. The evidence was in and the jury had listened to all of it. [71] It is trite law that, in the criminal context, the standard of review for questions of law is correctness and that the admissibility of

evidence is usually a question of law, and therefore evaluated against that standard. Where the admission of evidence demands anevaluation of probative and prejudicial strength, however, the standard of review is a considerably deferential one. [72] In R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717, McLachlin J. (as she then was), writing for herself and four others(Lamer and Sopinka JJ. dissenting) noted at pp. 733-34: A third feature of this Court's treatment of the similar fact rule since Boardman [Director of Public Prosecutions v.

Boardman,[1975] A.C. 421] is the tendency to accord a high degree of respect to the decision of the trial judge, who is charged with the delicateprocess of balancing the probative value of the evidence against its prejudicial effect.

In Morris [ (SCC), [1983] 2 S.C.R.190], the Court affirmed that the task of determining whether the evidence possesses sufficient probative value is that of the trial judge.Similarly, in Guay [ (SCC), [1979] 1 S.C.R. 18], Robertson [ (SCC), [1987] 1 S.C.R. 918], Morin [ (SCC), [1988] 2 S.C.R. 345], and D. (L.E.) [ (SCC), [1989] 2 S.C.R. 111] this Court affirmed the decision ofthe trial judge with respect to similar fact evidence.

This deference to the trial judge may in part be seen as a function of the broader,more discretionary nature of the modern rule at the stage where the probative value of the evidence must be weighed against itsprejudicial effect. As a consequence of the rejection of the category approach, the admissibility of similar fact evidence since Boardmanis a matter which effectively involves a certain amount of discretion. As pointed out in Morris, the weight to be given to evidence is aquestion for the trier of fact.

Generally, where the law accords a large degree of discretion to a trial judge, courts of appeal are reluctantto interfere with the exercise of that discretion in the absence of demonstrated error of law or jurisdiction. . . . Where a trial judge has properly addressed these concerns and, after weighing the evidence and its potential prejudice, arrived at aconclusion as to its admissibility, appellate courts will not lightly intervene. [Emphasis added.] This statement, regarding the deferential standard of review, has been followed in subsequent decisions of the Supreme Court, includingR. v.

Arp, (SCC), [1998] 3 S.C.R. 339 at para. 42, R. v. Handy, supra at para. 153 and R. v. Shearing, 2002 SCC 58,[2002] 3 S.C.R. 33 at para. 73. [73] A restrained approach is clearly warranted in this case for two additional reasons. First, the within appeal is from acquittal notconviction. B.(C.R.), Arp, Handy and Shearing were all appeals from conviction. An appeal by the Crown from an acquittal under s.676(1)(

a) of the Criminal Code cannot succeed on an abstract or purely hypothetical possibility that the accused would have beenconvicted but for the error of law. It is the duty of the Crown, in order to obtain a new trial, to satisfy the appellate court that the trialjudge’s error might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. Tojustify intervention, an appellate court must be satisfied that the verdict would not necessarily have been the same had the errors notoccurred.

The onus on the Crown is a heavy one and the Crown must satisfy the Court with a reasonable degree of certainty. See: R. v.Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595 at para. 2; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609 at paras. 14-16. An appellatecourt will give a great deal of healthy respect for and deference to a jury verdict of acquittal. See: R. v. Evans, (SCC),[1993] 2 S.C.R. 629 at p. 646.

In short, acquittals are not to be overturned easily. [74] The second reason that restraint is owed in reviewing the trial judge’s reasons is that Crown counsel now asserts that the trial judgeshould have admitted the similar fact evidence for an additional purpose than that submitted at trial. [75] The similar fact evidence was proffered at trial for these purposes: (i) “to rebut the defence of mistake or accident”; and (ii) “tocorroborate the evidence of the complainants as to the actus reus of the offences of assault” (see: Transcript, June 18, 2010, p. 109).

Inthis Court, Crown counsel submitted that the evidence was relevant for these purposes: (

i) to rebut Dr. Poon’s claims that he accidentallytouched some of the complainants; (ii) to prove that the complainants did not misperceive the facts as Dr. Poon claimed they had; and(iii) to prove that Dr. Poon imported a sexual component into his professional relationships with the complainants (see: Crown factumfrom acquittal, para. 91). Arguably the first two are the same, but the third is clearly not.

In this Court, it is only fair that the question ofadmissibility be considered in relation to the purposes for which Crown counsel at trial proffered the similar fact evidence. [76] All of this to say that I can give little credence to Crown counsel’s submission that no deference is owed to the trial judge’s reasonsfor denying the similar fact application. True, the trial judge did not spell out the framework in complete detail, but his brief reasonsreflect the key factors that must impinge on the mind of a judge, who will shortly charge a jury: (

i) the trial judge’s need to balanceprobative value of the evidence in relation to the issue in question and the prejudicial effect on trial fairness; (ii) the problem of moralprejudice; (iii) the difficulties associated with reasoning prejudice; (iv) the relative importance of the evidence to the Crown’s case; and(

v) the danger of confusing the jury—which is a variant on the reasoning prejudice factor. Further, all of the factors pertaining to theprobative value of the evidence and its prejudicial effect were fully canvassed by counsel in their submissions to the trial judge. In short,the trial judge had all of the relevant considerations concerning the admission of the evidence squarely before him and he made hisassessment of the fundamental issue—the balance of probative value and prejudice—in light of those considerations.

[77] In his actual ruling on similar fact evidence, Malone J. does not repeat his comment to the effect that the complainants were credible enough such that no more corroborative evidence would be required. In any event, I do not take his reasons as demonstrating a flawed understanding of the law pertaining to similar fact evidence.

Rather, I take his comment as confirmation of the point made by Binnie J. in Handy (at para. 83 ) that a Court is to consider all factors in the assessment process, including “whether the Crown can prove its point with less prejudicial evidence.” [78] Nor do I take it that Malone J. thought there is one “test” for the use of similar fact evidence when one sits as a judge alone and another when one sits with a jury or that something is added to the “test.” It is well known that the case law establishes only one “test” for the admission of evidence.

Malone J. was referring to the concern, well-recognized in the similar fact case law, that in weighing probative and prejudicial value, whether the trier of fact is a jury is often a factor that is taken into account. Specifically, the prejudicial value of similar fact evidence, as it concerns reasoning prejudice, tends to be somewhat of a lesser concern in trials by judge alone. (See: R. v. T.B ., 2009 ONCA 177 , 243 C.C.C. (3d) 158 and the authorities cited at paras. 28-31 and R. v.

T.L.M. , 2011 NLCA 24 , 271 C.C.C. (3d) 148 at para. 58 (dissenting judgment by Hoegg J.A.), reversed (dissenting judgment affirmed) by 2012 SCC 6 .) It stands to reason that trial judges are more qualified than a jury to address prejudicial uses of evidence but are not immune to that prejudice. Malone J. was right to be alive to the reality that he was not the trier of fact, though he may have overstated the matter. I do not, however, take him to have introduced a superadded component to the Handy test when similar fact evidence is tendered in jury trials.

In any event, the comments to which the Crown objects were in the course of argument. They do not form part of the trial judge’s actual decision. [79] That is not to say that there are no cases where trial judges have admitted highly analogous similar fact evidence involving allegations of sexual assault of patients by doctors. See: Litchfield , supra , R. v. Stewart , 2004 BCCA 56 , 183 C.C.C. (3d) 421 and R. v. Buna , 2009 BCCA 536 , 249 C.C.C. (3d) 156. Only Litchfield , however, was a jury trial.

Nor is it to say that an appropriate charge could not have been drafted if Malone J. had decided to admit the evidence or that another judge in another case could not permit the use of similar fact evidence in a similar case. [80] Nonetheless, as Binnie J. reiterated in Handy (at para. 56 ): “it is one thing to talk about so general a test as balancing probative value against prejudice, and a different and much more difficult thing to apply the test in a practical way.” In what Binnie J. described as a non-exhaustive list of criteria when considering whether the similar acts are connected to the charge, the trial judge should consider the “extent to which the other acts are similar in detail to the charged conduct” (at para. 82, emphasis added).

Later he stated that “the search for similarities is a question of degree” and “[n]ot every dissimilarity is fatal, but … substantial dissimilarities may dilute probative strength and, by compounding the confusion and distraction, aggravate the prejudice” (at para. 127). [81] In this case, and dealing first with reasoning prejudice, it was open to the trial judge to conclude that the proposed similar fact evidence was not as probative as the Crown suggests. The essence of the context of Dr. Poon’s alleged offending behaviour was admitted by him when he testified.

He admitted he saw all of these patients in a short-time frame. They were all young women. It was his manner to make personal comments. He saw each of them without an attendant present. He touched the body parts that they said he touched. The only aspect of the complainants’ testimony that was not admitted was whether he touched them in a prolonged, aggressive and inappropriate manner—which he vehemently denied. So that then brings us to the trial judge’s task of describing the similarities and dissimilarities in relation to the complainants’ visits to Dr.

Poon and the acts themselves in order to permit the jury to determine whether there was a pattern of similar behaviour. [82] The Crown seeks to persuade the Court that the factual substance of each of the complaints was the same, but there were differences. The differences are important because the alleged assaults took place in the context of medical examinations where some degree of intimate physical contact was necessarily part of the relevant procedures conducted by Dr. Poon.

That contact amounted to sexual assault only if it crossed the not always entirely clear line between appropriate and inappropriate examination techniques. [83] The differences include the following: L. and X. had not previously consulted Dr. Poon, but M., J., G. and W. had been his patients for varying amounts of time. Nothing untoward had occurred when they saw Dr. Poon on the other occasions. W. and X. saw Dr. Poon after he had been charged with the offence against L. Dr. Poon saw some of the complainants with a packed waiting room. Indeed, with some of the patients, Dr.

Poon knew they had someone waiting for them. Others he saw at the end of the day, with no one in the waiting room. G. was only 17 when she was examined, but X. was a sexually active 26 year old. With J., who had been experiencing some anxiety in her personal life, he saw her in his office after the physical examination was over and recommended a self-help book. [84] As to the acts of touching, only two of the complainants testified to the stimulation of the clitoris and one of those two testified that the touching took her to the point of arousal. In both of those cases, the complainants told Dr.

Poon about some form of sexual dysfunction, i.e ., painful intercourse for one complainant and an inability to achieve orgasm in the other. The examinations of J. and X. also involved a vaginal examination, but only with J. was it alleged that he simultaneously and successively touched breasts and vagina. He did not touch the breasts of X. at all. X., however, did speak about an aggressive anal exam—following an admission on her part of frequent unprotected anal sex and a concern about a sexually transmitted disease.

For the remaining two, the complaint was about an aggressive breast examination and the rubbing of the nipples. In short, the complainants’ testimony varied substantially in the details

and surrounding circumstances. [85] With respect to reasoning prejudice, the trial judge was clearly concerned about how to craft appropriately a jury charge that would not lead to a wrongful conviction—and rightly so. If the similar fact evidence had been permitted, the jury would have been asked to consider it in relation to the pivotal fact of whether the acts in question had occurred.

In such circumstances, Malone J. made no error in being concerned that the admission of the evidence, and the complex charge that would have had to accompany its admission, could have had a prejudicial effect on the fairness of the trial by tending to distract the jurors from their primary focus of whether the Crown had proven its case beyond a reasonable doubt in relation to each count. [86] The scope of appellate intervention in a case such as this is limited.

Of all the reported decisions cited to this Court in only one did an appellate court set aside an acquittal and order a new trial because the trial judge did not instruct a jury that it may deduce a pattern of behaviour from the similar acts described by other complainants, and that is Litchfield. [5] In Litchfield , however, I note that the Supreme Court of Canada was careful to say that the evidence of one complainant “ should have been admitted” relating to the other complainants (see: p. 357). The Supreme Court was no more directive than that.

The Supreme Court did not mandate that similar fact evidence must be permitted in any particular case. Further, Litchfield does not mention the level of deference owed to a trial judge with respect to these sorts of matters, but since Litchfield , the Supreme Court of Canada has consistently endorsed and underlined the notion of deference (see: Arp , Shearing and Handy ). [87] In

summary and to paraphrase Binnie J. in Shearing at para. 73 , the decision not to permit the use of similar fact evidence in this case should rest where it was allocated: with the trial judge. I am not prepared to interfere with the trial judge’s balancing of the probative value of the proposed similar fact evidence and its prejudicial effect and, therefore, would not give effect to this ground of appeal. 6.3 Whether the trial judge erred by failing to instruct the jury properly with respect to consent? [88] The grounds of appeal, relating to consent, in the Crown’s amended notice of appeal are: 1.

That the learned trial judge erred by failing to instruct the jury about the legal effect of an abuse of the Respondent's position of authority on the issue of consent. 2. That the learned trial judge erred by failing to properly instruct the jury about the legal meaning of consent. 3. That in relation to the sexual assault charge involving [G], the learned trial judge erred by failing to instruct the jury in accordance with s. 265(3)(

c) of the Criminal Code that consent is vitiated by fraud and err

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