R. v. Sloka, 2026 ONCJ 221

ONTARIO COURT OF JUSTICE

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

CITATION: R. v. Sloka, 2026 ONCJ 221

DATE: April 24, 2026

INFORMATION No.: 4411 998 20-0869

BETWEEN:

HIS MAJESTY THE KING

— AND —

JEFFREY SCOTT SLOKA

Before Justice C. Parry

Heard from September 13, 2021, to November 28, 2025

Reasons for Judgment released on April 24, 2026

Julia Forward and Sydney Mclean................................................ counsel for the Crown

David Humphrey, Jill Makepeace

and Christopher Lutes....................................... counsel for the accused Jeffrey Sloka

PARRY J.:

1. INTRODUCTION.. 13

A. Statement of the Case. 13

B. The Crown’s Theory of the Case. 13

C. The Crown’s Method of Proof 13

D. The Defence Response to the Crown’s Case. 15

E. A Summary of the Court’s Findings. 17

2. GOVERNING LEGAL PRINCIPLES.. 18

A. The Presumption of Innocence and The Burden and Standard of Proof 18

B. Sexual Assault 20

i. The Actus Reus (The Unlawful Act) 20

ii. The Mens Rea. 25

iii. Myths and Stereotypes. 25

C. Child Witnesses. 28

D. Evidence of Habit and Invariable Practice. 29

3. THE EVIDENCE OF DR. VERA BRIL. 31

A. Introduction. 32

B. The Crown’s Heavy Reliance on Dr. Bril’s Evidence to Prove Motive. 32

C. The Scope of Dr. Bril’s Expertise. 32

D. A Fundamental Shortcoming of the Limitations of Dr. Bril’s Expertise and Its Impact upon the Ability of the Crown to Prove Its Case. 33

E. Education and Certification Required to Become a Neurologist 34

F. What is Neurology; What Falls Within the Permissible Scope of Practice of a Neurologist; And What Falls Outside the Proper Scope of a Neurologist’s Practice. 35

G. A Standard Neurological Appointment 47

i. Taking the Patient’s History. 47

ii. The Standard Neurological Examination. 47

iii. Draping for a Standard Neurological Examination. 48

iv. Differential Diagnosis. 49

v. Consent and Documenting Consent for Patient Examinations. 50

H. Note taking. 52

I. Neurocutaneous Syndromes and Skin Examinations in a Neurological Practice. 54

i. What are Neurocutaneous Syndromes?. 54

ii. Neurofibromatosis One (NF1) 54

iii. Diagnosing NF1 – An Overview.. 55

iv. Use of Skin Examinations to Clinically Investigate the Possibility of NF1. 56

v. The Other Diagnostic Criteria Involved in a Clinical Diagnosis of NF1. 59

vi. Management of Patients with NF1. 59

vii. Other Neurocutaneous Syndromes. 59

J. Other Examinations. 60

i. Rectal Examinations. 60

ii. Pelvic Examinations. 60

iii. Breast Examinations. 60

iv. Cardiac Examinations. 61

K. The Objection to the Admissibility of Dr. Bril’s Evidence. 63

i. Introduction. 64

ii. The Timing of the Objection. 64

iii. General Principles Governing the Admission of Expert Opinion Evidence. 64

iv. Specific Incidents of Alleged Bias. 65

v. Conclusion. 68

L. A Brief Summation of the Assessment of Dr. Bril’s Evidence. 68

4. THE EVIDENCE OF DR. SLOKA.. 68

A. Introduction. 68

B. Training, and Licencing. 69

i. Undergraduate and Graduate Studies. 69

ii. Medical School 69

iii. Neurology Residency. 69

iv. Cardiology Training. 71

v. Obstetrics and Gynecology Training. 71

vi. Breast Examination Training. 72

vii. Birth Control Training. 72

viii. Bi-manual Pelvic Examination Training. 73

ix. Rectal Examination Training. 73

x. Dermatology Training. 73

xi. Licences Obtained Before Becoming a Neurologist and Their Impact on His Approach to Neurology 74

xii. Research Projects. 74

xiii. Royal College Examinations. 74

xiv. Fellowship at the University of Calgary. 75

xv. Ongoing Academic and Research Publications. 75

xvi. Teaching Activities. 75

xvii. Professional Memberships and Professional Associations. 75

C. Dr. Sloka’s Medical Practice in Kitchener 76

i. The Beginning. 76

ii. Support Staff 76

iii. Opening The Urgent Neurology Clinic. 76

iv. The Organization of the Clinic. 78

v. The Standard Neurological Examination. 82

vi. Skin Examinations. 86

vii. Breast Examinations. 96

viii. Bimanual Pelvic Examinations. 99

ix. Rectal Examinations. 101

x. Record Keeping. 101

D. Overall Assessment of Dr. Sloka’s Evidence. 104

5. THE CROSS-COUNT SIMILAR ACT EVIDENCE APPLICATION.. 104

A. Introduction. 104

B. General Principles. 107

C. The Applicable Test 108

i. Issue Identification. 108

ii. Assessment of The Probative Value of the SAE.. 108

iii. Balancing Probative Value Against Prejudicial Effect 110

D. Application of the General Principles to the facts of this Case. 110

i. Overview.. 110

ii. The Impact of Tainting. 112

iii. Specific Cross-Count Micro-Similarities Relied Upon by the Crown. 113

1. Moles 113

2. Dr. Sloka’s Use of the Term “Modest” 114

3. Body Position During Pelvic Examinations. 114

4. Naked or in a State of Undress During Skin Examinations. 114

5. Failure to Identify the Examination [“the what”] and Failure to Explain the Reason for It [“the why”] 116

6. Pressure to Participate in More Invasive Examinations. 116

7. Gown Worn Open to the Front 117

8. Distinctive Leg Strength Examination. 117

9. Buttocks Spreading. 117

10. Use of the Term “Everything is Connected” to Justify Breast Examination. 118

11. Breast “Cupping” 118

12. Squeezing of the Breasts to Find Evidence of Galactorrhea. 119

iv. Conclusion. 119

6. EVIDENCE OF THE COMPLAINANTS, GROUPED ACCORDING TO MEDICAL ISSUE.. 119

A. Seizures and Losses of Consciousness. 119

i. J.B. (Count 5) 119

1. A Summary of Ms. J.B.’s Complaint and Dr. Sloka’s Response to It 119

2. The Circumstances of Ms. J.B.’s Referral and Her Treatment History. 120

3. The Evidence of Ms. J.B. 121

4. The Evidence of Je.B. 128

5. The Evidence of Dr. Baxter 129

6. The Evidence of Dr. Giles. 130

7. The Evidence of Dr. Bril 135

8. The Evidence of Dr. Sloka. 137

9. Assessment of the Evidence and Analysis. 139

ii. J.D. (Count 33) 150

1. A Summary of Ms. J.D.’s Complaint and Dr. Sloka’s Response to It 150

2. The Circumstances of Ms. J.D.’s Referral and Her Treatment History. 151

3. The Evidence of Ms. J.D. 151

4. The Evidence of Dr. Bril 158

5. The Evidence of Dr. Sloka. 159

6. Assessment of the Evidence and Analysis. 162

iii. A.D.-E. (Count 15) 171

1. A Summary of Ms. A.D.-E.’s Complaint and Dr. Sloka’s Response to it 171

2. The Circumstances of Ms. A.D.-E.’s Referral and Her Treatment History. 171

3. The Evidence of Ms. A.D.-E. 173

4. The Evidence of K.D. 178

5. The Evidence of Dr. Bril 180

6. The Evidence of Dr. Sloka. 181

7. Assessment of the Evidence and Analysis. 183

iv. L.F. (Count 26) 188

1. A Summary of Ms. L.F.’s Complaint and Dr. Sloka’s Response to It 188

2. The Circumstances of Ms. L.F.’s Referral and A Brief Timeline of Treatment History. 189

3. The Evidence of Ms. L.F. 191

4. The Evidence of Y.W. 196

5. The Evidence of Dr. Bril 197

6. The Evidence of Dr. Sloka. 197

7. Assessment of the Evidence and Analysis. 201

v. A.F. (Count 19) 208

1. A Summary of Ms. A.F.’s Complaint and Dr. Sloka’s Response to It 208

2. The Circumstances of Ms. A.F.’s Referral and A Brief Timeline of Her Treatment History 209

3. The Evidence of Ms. A.F. 209

4. The Evidence of Dr. Bril 216

5. The Evidence of Dr. Sloka. 217

6. Assessment of the Evidence and Analysis. 221

vi. D.H. (Count 2) 228

1. A Summary of Ms. D.H.’s Complaint and Dr. Sloka’s Response to It 228

2. The Circumstances of Ms. D.H.’s Referral and Her Treatment History. 229

3. The Evidence of Ms. D.H. 229

4. The Evidence of Dr. Bril 234

5. The Evidence of Dr. Sloka. 235

6. Assessment of the Evidence and Analysis. 236

vii. T.H. (nee K.) (Count 59) 241

1. A Summary of Ms. T.H.’s Complaint and Dr. Sloka’s Response to It 242

2. The Circumstances of Ms. T.H.’s Referral 242

3. The Evidence of Ms. T.H. 242

4. The Evidence of Ty.H. 246

5. The Evidence of Dr. Bril 247

6. The Evidence of Dr. Sloka. 247

7. Assessment of the Evidence and Analysis. 249

viii. J.H. (Count 45) 257

1. A Summary of Ms. J.H.’s Complaint and Dr. Sloka’s Response to It 257

2. The Circumstances of Ms. J.H.’s Referral and Treatment Chronology. 257

3. The Evidence of Ms. J.H. 259

4. The Evidence of Dr. Bril 268

5. The Evidence of Dr. Sloka. 270

6. Assessment of the Evidence and Analysis. 274

ix. C.M. (Count 24) 281

1. A Summary of Ms. C.M.’s Complaint and Dr. Sloka’s Response to It 281

2. The Circumstances of Ms. C.M.’s Referral and Treatment History. 281

3. The Evidence of Ms. C.M. 281

4. The Evidence of Dr. Bril 286

5. The Evidence of Dr. Sloka. 287

6. Assessment of the Evidence and Analysis. 289

x. B.P. (Count 8) 295

1. A Summary of Ms. B.P.’s Complaint and Dr. Sloka’s Response to It 295

2. The Circumstances of Ms. B.P.’s Referral and Her Treatment History. 296

3. The Evidence of Ms. B.P. 296

4. The Evidence of Dr. Bril 300

5. The Evidence of Dr. Sloka. 301

6. Assessment of the Evidence and Analysis. 304

xi. A.R. (Count 21) 311

1. A Summary of Ms. A.R.’s Complaint and Dr. Sloka’s Response to It 311

2. A Preliminary Remark. 312

3. The Circumstances of Ms. A.R.’s Referral and Treatment History. 313

4. The Evidence of Ms. A.R. 313

5. The Evidence of St.M. 323

6. The Evidence of Dr. Bril 328

7. The Evidence of Dr. Sloka. 329

8. Assessment of the Evidence and Analysis. 332

xii. J.W. (Count 7) 339

1. A Summary of Ms. J.W.’s Complaint and Dr. Sloka’s Response to It 339

2. The Circumstances of Ms. J.W.’s Referral and the Chronology of Her Treatment 340

3. The Evidence of Ms. J.W. 340

4. The Evidence of Dr. Calvert 344

5. The Evidence of Dr. Bril 346

6. The Evidence of Dr. Sloka. 348

7. Assessment of the Evidence and Analysis. 353

B. Concussions. 360

i. K.L. (Count 40) 361

1. A Summary of Ms. K.L.’s Complaint and Dr. Sloka’s Response to It 361

2. The Circumstances of the Referral 361

3. The Evidence of K.L. 361

4. The Evidence of C.S.-L. 364

5. The Evidence of Dr. Bril 367

6. The Evidence of Dr. Sloka. 367

7. Assessment of the Evidence and Analysis. 369

ii. S.M. (Count 61) 377

1. A Summary of Ms. S.M.’s Complaint and Dr. Sloka’s Response to It 377

2. The Circumstances of the Referral 377

3. The Evidence of Ms. S.M. 379

4. The Evidence of Dr. Bril 383

5. The Evidence of Dr. Sloka. 384

6. Assessment of the Evidence and Analysis. 385

iii. J.P. (Count 4) 388

1. A Summary of Ms. J.P.’s Complaint and Dr. Sloka’s Response to It 388

2. The Circumstances of Ms. J.P.’s Referral and Treatment History. 388

3. The Evidence of Ms. J.P. 388

4. The Evidence of Co.M. (Ms. J.P.’s Mother) 389

5. The Evidence of Dr. Kent McKinnon. 390

6. Media Exposure, The Timing of the CPSO Complaint, and Prior Inconsistent Statements to CPSO Investigators. 391

7. The Evidence of Dr. Bril 391

8. The Evidence of Dr. Sloka. 391

9. Assessment of the Evidence and Analysis. 392

iv. C.R. (Count 58) 395

1. A Summary of Ms. C.R.’s Complaint and Dr. Sloka’s Response to It 395

2. The Circumstances of Ms. C.R.’s Referral and Treatment History. 396

3. The Evidence of Ms. C.R. 396

4. The Evidence of J.Z. 398

5. The Evidence of Dr. Bril 399

6. The Evidence of Dr. Sloka. 399

7. Assessment of the Evidence and Analysis. 400

C. Headaches. 404

i. K.A.-C. (Count 36) 404

1. A Summary of Ms. K.A.-C.’s Complaint and Dr. Sloka’s Response to It 404

2. The Circumstances of Ms. K.A.-C.’s Referral and Treatment History. 404

3. The Evidence of Ms. K.A.-C. 405

4. The Evidence of Dr. Bril 409

5. The Evidence of Dr. Sloka. 409

6. Assessment of the Evidence and Analysis. 412

ii. N.B. (Count 38) 416

1. A Summary of Ms. N.B.’s Complaint and Dr. Sloka’s Response to It 416

2. The Circumstances of Ms. N.B.’s Referral and Treatment History. 417

3. The Evidence of Ms. N.B. 417

4. The Evidence of J.A.B. 425

5. The Evidence of Dr. Bril 426

6. The Evidence of Dr. Sloka. 427

7. Assessment of the Evidence and Analysis. 430

iii. M.B. (Count 47) 442

1. A Summary of M.B.’s Complaint and Dr. Sloka’s Response to It 442

2. The Circumstances of the Referral 443

3. The Evidence of M.B. 443

4. The Evidence of Dr. Bril 445

5. The Evidence of Dr. Sloka. 446

6. Assessment of the Evidence and Analysis. 447

iv. DR. K.C. (Count 49) 451

1. A Summary of Dr. K.C.’s Complaint and Dr. Sloka’s Response to It 451

2. The Circumstances of Dr. K.C.’s Referral and Treatment History. 452

3. The Evidence of Dr. K.C. 452

4. The Evidence of Dr. Bril 455

5. The Evidence of Dr. Sloka. 455

6. Assessment of the Evidence and Analysis. 457

v. C.C. (Count 31) 463

1. A Summary of Ms. C.C.’s Complaint and Dr. Sloka’s Response to It 463

2. The Circumstances of Ms. C.C.’s Referral and Treatment History. 463

3. The Evidence of Ms. C.C. 463

4. The Evidence of S.C. 469

5. The Evidence of Dr. Bril 470

6. The Evidence of Dr. Sloka. 470

7. Assessment of the Evidence and Analysis. 473

vi. M.R.E. (Count 14) 480

1. A Summary of Ms. M.R.E.’s Complaint and Dr. Sloka’s Response to It 480

2. The Circumstances of Ms. M.R.E.’s Referrals and Treatment History. 480

3. The Evidence of Ms. M.R.E. 481

4. The Evidence of Dr. Bril 485

5. The Evidence of Dr. Sloka. 486

6. Assessment of the Evidence and Analysis. 489

vii. H.J. [H.C.] (Count 32) 496

1. A Brief Summary of Ms. H.J.’s Complaint and Dr. Sloka’s Response to It 496

2. The Circumstances of Ms. H.J.’s Referral and Treatment History. 496

3. The Evidence of Ms. H.J. 496

4. The Evidence of Dr. Bril 499

5. The Evidence of Dr. Sloka. 500

6. Assessment of the Evidence and Analysis. 501

viii. J.L. (Count 1) 504

1. A Summary of Ms. J.L.’s Complaint and Dr. Sloka’s Response to It 504

2. The Circumstances of Ms. J.L.’s Referral and Treatment History. 504

3. The Evidence of Ms. J.L. 505

4. The Evidence of Je.H. 507

5. The Evidence of Dr. Bril 509

6. The Evidence of Dr. Sloka. 509

7. Assessment of the Evidence and Analysis. 511

ix. K.R. (Count 62) 515

1. A Summary of Ms. K.R.’s Complaint and Dr. Sloka’s Response to It 515

2. The Circumstances of Ms. K.R.’s Referral and Treatment History. 516

3. The evidence of Ms. K.R. 516

4. The Evidence of Dr. Bril 521

5. The Evidence of Dr. Sloka. 521

6. Assessment of the Evidence and Analysis. 523

x. A.R.-U. (Count 25) 532

1. A Summary of Ms. A.R.-U.’s Complaint and Dr. Sloka’s Response to It 532

2. The Circumstances of Ms. A.R.-U.’s Referral and Treatment History. 532

3. The Evidence of Ms. A.R.-U. 533

4. The Evidence of Dr. Bril 542

5. The Evidence of Dr. Sloka. 543

6. Assessment of the Evidence and Analysis. 545

xi. A.S. (Count 11) 552

1. A Summary of Ms. A.S.’s Complaint and Dr. Sloka’s Response to It 552

2. The Circumstances of Ms. A.S.’s Referral and Treatment History. 552

3. The Evidence of Ms. A.S. 552

4. The Evidence of Dr. Bril 556

5. The Evidence of Dr. Sloka. 557

6. Assessment of the Evidence and Analysis. 559

xii. J.S. (Count 3) 565

1. A Summary of Ms. J.S.’s Complaint and Dr. Sloka’s Response to It 565

2. The Circumstances of Ms. J.S.’s Referral and Treatment History. 565

3. The Evidence of Ms. J.S. 565

4. The Evidence of D.S. 570

5. The Evidence of Dr. Bril 571

6. The Evidence of Dr. Sloka. 571

7. Assessment of the Evidence and Analysis. 573

D. Multiple Sclerosis. 580

i. J.C. (Count 56) 580

1. A Summary of Ms. J.C.’s Complaint and Dr. Sloka’s Response to It 580

2. The Circumstances of Ms. J.C.’s Referrals and Treatment History. 581

3. The Evidence of Ms. J.C. 582

4. The Evidence of Dr. Bril 584

5. The Evidence of Dr. Sloka. 588

6. Assessment of the Evidence and Analysis. 590

ii. M.O. (Count 30) 600

1. A Summary of Ms. M.O.’s Complaint and Dr. Sloka’s Response to It 600

2. The Circumstances of Ms. M.O.’s Referral and Treatment History. 600

3. The Evidence of Ms. M.O. 600

4. The Evidence of A.O. 605

5. The Evidence of Dr. Bril 607

6. The Evidence of Dr. Sloka. 608

7. Assessment of the Evidence and Analysis. 612

iii. P.S. (Count 17) 622

1. A Summary of Ms. P.S.’s Complaint and Dr. Sloka’s Response to It 622

2. The Circumstances of Ms. P.S.’s Referral and Treatment History. 622

3. The Evidence of Ms. P.S. 622

4. The Evidence of B.B. 627

5. The Evidence of Sherry Witmer 628

6. The Evidence of Dr. Bril 628

7. The Evidence of Dr. Sloka. 629

8. Assessment of the Evidence and Analysis. 630

iv. K.S.-B. (Count 57) 636

1. A Summary of Ms. K.S.-B.’s Complaint and Dr. Sloka’s Response to it 636

2. The Circumstances of Ms. K.S.-B.’s Referral and Treatment History. 636

3. The Evidence of Ms. K.S.-B. 638

4. The Evidence of Dr. Bril 643

5. The Evidence of Dr. Sloka. 644

6. Assessment of the Evidence and Analysis. 647

E. Fasciculations. 655

i. K.K. (Count 27) 655

1. A Summary of Ms. K.K.’s Complaint and Dr. Sloka’s response to It 655

2. The Circumstances of Ms. K.K.’s Referral and Treatment History. 655

3. The Evidence of Ms. K.K. 657

4. The Evidence of C.B. 661

5. The Evidence of Dr. Bril 661

6. The Evidence of Dr. Sloka. 662

7. Assessment of the Evidence and Analysis. 663

ii. L.M. (Count 35) 669

1. A Summary of Ms. L.M.’s Complaint and Dr. Sloka’s Response to It 669

2. The Circumstances of Ms. L.M.’s Referral and Treatment History. 669

3. The Evidence of Ms. L.M. 670

4. The Evidence of Cr.M. 673

5. The Evidence of Dr. Bril 674

6. The Evidence of Dr. Sloka. 674

7. Assessment of the Evidence and Analysis. 675

F. Cancer 681

i. F.C. (Count 53) 681

1. A Summary of Ms. F.C.’s Complaint and Dr. Sloka’s Response to It 681

2. The Circumstances of Ms. F.C.’s Referral and Treatment History. 682

3. The Evidence of Ms. F.C. 683

4. The Evidence of Dr. Bril 687

5. The Evidence of Dr. Sloka. 687

6. Assessment of the Evidence and Analysis. 691

ii. M.G. (Count 41) 699

1. A Summary of Ms. M.G.’s Complaint and Dr. Sloka’s Response to It 699

2. The Circumstances of Ms. M.G.’s Referral and Treatment History. 699

3. The Evidence of Ms. M.G. 700

4. The Evidence of Dr. Bril 704

5. The Evidence of Dr. Sloka. 706

6. Assessment of the Evidence and Analysis. 708

iii. R.P. (Count 16) 716

1. A Summary of Ms. R.P.’s Complaint and Dr. Sloka’s Response to It 716

2. The Circumstances of Ms. R.P.’s Referral and Treatment History. 716

3. The Evidence of Ms. R.P. 720

4. The Evidence of G.P. 724

5. The Evidence of Dr. Bril 725

6. The Evidence of Dr. Sloka. 728

7. Assessment of the Evidence and Analysis. 744

iv. S.T. (Count 54) 761

1. A Summary of Ms. S.T.’s Complaint and Dr. Sloka’s Response to It 761

2. The Circumstances of Ms. S.T.’s Referral and Treatment History. 762

3. The Evidence of Ms. S.T. 762

4. The Evidence of Dr. Bril 767

5. The Evidence of Dr. Sloka. 769

6. Assessment of the Evidence and Analysis. 771

G. Birth Control Consultations. 777

i. AM.E. (Count 22) 777

1. A Summary Ms. Am.E.’s Complaint and Dr. Sloka’s Response to It 777

2. The Circumstances of Ms. Am.E.’s Referral and Treatment History. 777

3. The Evidence of Ms. Am.E. 778

4. The Evidence of B.L. 781

5. The Evidence of Dr. Bril 781

6. The Evidence of Dr. Sloka. 782

7. Assessment of The Evidence and Analysis. 783

ii. J.V. (Count 18) 791

1. A Summary of Ms. J.V.’s Complaint and Dr. Sloka’s Response to It 791

2. The Circumstances of Ms. J.V.’s Referral and Treatment History. 791

3. The Evidence of Ms. J.V. 791

4. The Evidence of Dr. Bril 795

5. The Evidence of Dr. Sloka. 796

6. Assessment of the Evidence and Analysis. 797

H. Leg, Bowel and Bladder Issues. 805

i. K.L.G. (Count 48) 805

1. A Summary of Ms. K.L.G.’s Complaint and Dr. Sloka’s Response to It 805

2. The Circumstances of Ms. K.L.G.’s Referral and Treatment History. 806

3. The Evidence of Ms. K.L.G. 806

4. The Evidence of Dr. Bril 818

5. The Evidence of Dr. Sloka. 818

6. Assessment of the Evidence and Analysis. 822

ii. S.S. (Count 55) 831

1. A Summary of Ms. S.S.’s Complaint and Dr. Sloka’s Response to It 831

2. The Circumstances of Ms. S.S.’s Referral and Treatment History. 832

3. The Evidence of Ms. S.S. 832

4. The Evidence of Dr. Bril 839

5. The Evidence of Dr. Sloka. 840

6. Assessment of the Evidence and Analysis. 842

I. Pituitary Adenomas. 855

i. A.D. (Count 9) 855

1. A Summary of Ms. A.D.’s Complaint and Dr. Sloka’s Response to It 855

2. The Circumstances of Ms. A.D.’s Referral and Treatment History. 855

3. The Evidence of Ms. A.D. 856

4. The Evidence of Al.B. 861

5. The Evidence of Dr. Bril 862

6. The Evidence of Dr. Sloka. 863

7. Assessment of the Evidence and Analysis. 868

ii. A.E. (Count 12) 875

1. A Summary of Ms. A.E.’s Complaint and Dr. Sloka’s Response to It 875

2. The Circumstances of Ms. A.E.’s Referral and Treatment History. 876

3. The Evidence of Ms. A.E. 877

4. The Evidence of Dr. Bril 883

5. The Evidence of Dr. Sloka. 885

6. Assessment of the Evidence and Analysis. 895

iii. E.J. (Count 42) 903

1. A Summary of Ms. E.J.’s Complaint and Dr. Sloka’s Response to It 903

2. The Circumstances of Ms. E.J.’s Referral and Treatment History. 903

3. The Evidence of Ms. E.J. 904

4. The Evidence of R.B. 910

5. The Evidence of Dr. Bril 912

6. The Evidence of Dr. Sloka. 914

7. Assessment of the Evidence and Analysis. 916

J. Other Issues. 924

i. J.K. (Count 51) 924

1. A Summary of Ms. J.K.’s Complaint and Dr. Sloka’s Response to It 924

2. The Circumstances of Ms. J.K.’s Referral and Treatment History. 925

3. The Evidence of Ms. J.K. 925

4. The Evidence of Dr. Bril 930

5. The Evidence of Dr. Sloka. 932

6. Assessment of the Evidence and Analysis. 937

ii. I.R. (Count 44) 945

1. A Summary of Ms. I.R.’s Complaint and Dr. Sloka’s Response to It 945

2. The Circumstances of Ms. I.R.’s Referral and Treatment History. 945

3. The Evidence of Ms. I.R. 946

4. Ms. I.R.’s Evidence In-Chief 946

5. Ms. I.R.’s Evidence in Cross-Examination. 952

6. The Evidence of Dr. Bril 961

7. The Evidence of Dr. Sloka. 963

8. Assessment of the Evidence and Analysis. 969

iii. S.W. (Count 37) 977

1. A Summary of Ms. S.W.’s Complaint and Dr. Sloka’s Response to It 977

2. The Circumstances of Ms. S.W.’s Referral and Treatment History. 978

3. The Evidence of Ms. S.W. 978

4. The Evidence of Dr. Bril 984

5. The Evidence of Dr. Sloka. 984

6. Assessment of the Evidence and Analysis. 986

1. INTRODUCTION

A. Statement of the Case

1Dr. Jeffrey Scott Sloka stands charged on a 69-count Information. The time frame of the charges spans from January 1, 2009, to March 27, 2018. During that timeframe, Dr. Sloka practiced as a clinical neurologist at the Grand River Hospital’s Urgent Neurology clinic, at the GRH’s Stroke Clinic, and as a consulting neurologist at the GRH. Each count involves a different complainant, each of whom was a patient of Dr. Sloka at his Urgent Neurology Clinic. Each count alleges that Dr. Sloka committed a sexual assault during one or more purported medical examinations at the Urgent Neurology Clinic.

2Since the laying of the Information, the Crown has withdrawn or sought the dismissal of 21 counts. Some were withdrawn before the complainant ever testified; for others, the Crown invited dismissal during a complainant’s testimony; for others, the Crown invited dismissal after the complainant had finished testifying and before the defence called evidence; and for others, the Crown invited dismissal after submissions concluded. Forty‑eight counts remain. This judgment explains the verdicts on those 48 counts.

B. The Crown’s Theory of the Case

3The Crown’s theory is that Dr. Sloka used medical examinations as a ruse to gain access to his female patients’ bodies for sexual activity. According to the Crown, while patients may have consented to medical examinations, they did not consent to sexual activity. Consequently, the Crown alleges that Dr. Sloka sexually assaulted each of the 48 patients.

4The Crown is reluctant to frame its theory as consent vitiated by fraud, but for each and every patient, it alleges that Dr. Sloka knowingly used unjustified examinations to gain access to the bodies of his female patients for a non-medical (sexual) purpose. Obtaining consent under false pretenses is fraud.

C. The Crown’s Method of Proof

5I will refrain from providing an exhaustive list of the witnesses and evidence tendered by the Crown. The evidentiary record was enormous and took over 160 days to introduce. What follows is a brief overview of the main components of the Crown’s case.

6The Crown produced some witnesses and evidence to explain the origins of the Urgent Neurology Clinic, its location in the GRH, its floorplan, its equipment, and its supplies.

7The Crown also called 48 complainants to give evidence about the examinations it contends were sexual assaults. The Crown also tendered the medical records for each of these complainants, which included consultation letters Dr. Sloka wrote to document what transpired at each appointment.

8For some counts, the Crown also proffered disclosure witnesses to prove the demeanour of the complainant on the day of the impugned examination and to rebut any suggestion that the complainant’s evidence was tainted by exposure to media coverage about Dr. Sloka years later.

9Lastly, the Crown proffered the expert opinion evidence of a neurologist, Dr. Vera Bril, who provided an opinion about the neurological reasonableness of Dr. Sloka’s investigations, examinations, and treatments. Dr. Bril also provided an opinion about the appropriate way to conduct certain examinations.

10To prove each count, the Crown attempts to prove that the examinations constituted sexual activity. No complainant consented to sexual activity. Accordingly, if sexual activity occurred, it occurred without the patient’s consent and constituted sexual assault.

11To prove the counts were sexual activity, the Crown urges the court to look at the entirety of the circumstances surrounding the impugned examinations. Three factors featured prominently in the trial and in the Crown’s submissions: (1) testimony about inadequate, misleading, or non-existent consent discussions; (2) testimony that the examinations were not neurologically justified; and (3) testimony that the examinations were performed improperly.

12The Crown relies upon each complainant to prove the insufficiency of the consent discussions, to identify which examinations Dr. Sloka performed, and to describe how he performed them.

13The Crown relies upon the evidence of Dr. Bril, to prove that the examinations were not neurologically justified, were not performed in a proper manner, or both. Frequently, Dr. Bril could not dispute the medical reasonableness of Dr. Sloka’s conduct, but she held the opinion that Dr. Sloka had stepped out of his neurological lane and conducted examinations and investigations that ought to have been left to other medical professionals.

14The Crown also relies upon an expansive and complex cross-count similar fact evidence application, seeking support for each complainant from the evidence of the others.

15The Crown contends that the totality of the circumstances gives rise to the inference that Dr. Sloka possessed a sexual purpose when proposing and conducting examinations that provided access to the bodies of each of the complainants. In other words, the Crown contends that the evidence establishes that Dr. Sloka used medical examinations as a ruse to gain access to the bodies of his female patients. The Crown argues that this was Dr. Sloka’s “modus operandi.” Relatedly, the Crown contends that the totality of the circumstances reveals that Dr. Sloka engaged in sexual activity with each of the 48 remaining complainants. Although the Crown correctly contends it need not prove Dr. Sloka’s sexual purpose to prove that his examinations constituted sexual activity, Dr. Sloka’s alleged sexual purpose constitutes an organizing principle of the prosecution’s case. This organizing principle is revealed by the use of three key terms throughout the Crown’s submissions. The term “modus operandi” is used 101 times across the Crown’s submissions.¹ Additionally, in their submissions for each and every complainant, the Crown argues that Dr. Sloka used examinations as a “ruse” or a “guise” to gain access to his patients’ bodies. In total, the term “ruse” is used 73 times in the Crown’s submissions. The term “guise” is used 103 times.

16The Crown vigorously challenges the reliability and credibility of Dr. Sloka’s evidence. The Crown asks that I reject Dr. Sloka’s claims that he subjectively believed in the neurological or medical reasonableness of his examinations, that I reject his denials of certain examinations, and that I reject his denials that he performed any examinations in an improper manner.

D. The Defence Response to the Crown’s Case

17The defence argues that virtually every complainant in this trial provided unreliable evidence. Additionally, the defence argues that many provided evidence that lacked credibility. They also argue that some deliberately fabricated evidence. Additionally, the defence contends that media and CPSO (College of Physicians and Surgeons of Ontario) publications tainted the memories, perceptions, and evidence of a vast number of the complainants in this trial. Considering the alleged frailties in the evidence of each complainant, the defence contends: (1) the evidence of each complainant cannot reliably or credibly prove that Dr. Sloka failed to identify the nature of and justification for the examinations he proposed; (2) the evidence of each complainant cannot reliably or credibly prove that Dr. Sloka performed any examinations beyond the ones he admitted performing; and (3) the evidence of each complainant cannot reliably or credibly prove that Dr. Sloka performed the examinations in any manner that was inconsistent with his medical training. As a result, the defence asks that I reject any claim that Dr. Sloka failed to properly propose, identify, and justify the examinations he ultimately performed; reject any claim that he performed any examinations which he did not acknowledge performing; and reject any claim that he performed examinations in any manner that was inconsistent with his stated methods.

18The defence also argues that Dr. Bril’s evidence was replete with inconsistencies and displays of bias. Consequently, it asks that I exclude her evidence or, alternatively, afford it little or no weight.

19The defence also contends that Dr. Bril’s evidence is fundamentally flawed because it is incapable of proving that Dr. Sloka’s examinations were medically unreasonable. Dr. Bril’s opinion was confined to the narrower question of the neurological reasonableness of Dr. Sloka’s investigations, examinations, and treatments.

20Relatedly, the defence contends that Dr. Bril’s evidence proved incapable of establishing that Dr. Sloka exceeded the permissible scope of his neurological practice when he performed the examinations in question. To that end, the defence points out that Dr. Bril knew nothing of Dr. Sloka’s training and competence to perform the examinations in question. The defence also relies on CPSO guidelines which indicate that a physician’s scope of practice is determined by their education, training, and experience. Dr. Sloka’s training and experience differed from Dr. Bril’s. Relying upon his own education, training, and experience, he conducted his clinical neurology practice more broadly than Dr. Bril thought permissible. However, the defence contends that Dr. Bril’s evidence fails to establish that Dr. Sloka’s approach to the practice of neurology went beyond what would be permitted by the CPSO, his regulator. It is worth noting here that, although the court heard evidence regarding the revocation of Dr. Sloka’s licence by the CPSO, that revocation arose from a “no contest” plea to allegations that have been strenuously contested in this trial. Neither party relies upon the CPSO disciplinary decision as substantive evidence of the allegations made in this trial.

21The defence contends that, having failed to prove that Dr. Sloka’s investigations, examinations, and treatments were either medically unreasonable or exceeded the permissible scope of his practice, Dr. Bril’s evidence does not support the inference that Dr. Sloka’s examinations were sexual in nature or were motivated by a sexual purpose.

22The defence argues that, if I reject the contested aspects of the evidence of each complainant and conclude that Dr. Bril’s evidence lacks any probative force, then I cannot conclude that Dr. Sloka engaged in sexual activity or possessed a sexual purpose when examining his patients. Instead, the evidence can only prove that the patients consented to and received medical examinations.

23Dr. Sloka testified in his own defence. He was the only defence witness. He was not offered as an expert witness. He was inherently incapable of proffering an expert opinion. He did not purport to give expert evidence.

24Dr. Sloka relied upon his patient files, which were tendered by the Crown as part of the Crown’s case. Each patient file contained consultation letters authored by Dr. Sloka and addressed to the referring physician (or family physician or other specialists, as the circumstances warranted). Dr. Sloka relied upon these consultation letters to testify about which examinations he performed. He relied upon his education, training, experience, and standard practices, together with the clinical context revealed by the consultation letters and other file contents, to explain his subjectively held justification for the examinations he performed. He also relied upon the contents of his medical files, together with his training and experience, as a basis for denying that he performed other examinations. Additionally, Dr. Sloka relied upon his training and experience and standard practices to provide evidence about his methods when performing his examinations.

25The defence asks that I conclude that Dr. Sloka honestly believed that there existed a valid medical justification for his investigations, examinations, and treatments. The defence also asks the court to accept Dr. Sloka’s evidence where he denied conducting some of the examinations alleged by some complainants. The defence also asks that I conclude that Dr. Sloka performed his examinations in accordance with his training and standard methods, not as alleged by some complainants.

26Relying on the frailties in the Crown’s case and the strength of Dr. Sloka’s evidence, the defence argues that the Crown has failed to prove that Dr. Sloka used medical examinations as a ruse to gain access to the bodies of his female patients; to prove that Dr. Sloka acted with a sexual purpose; and to prove that Dr. Sloka engaged in sexual activity. Instead, the defence contends that the Crown has only succeeded in proving that Dr. Sloka conducted medical investigations, examinations, and treatments in his capacity as a clinical neurologist at the Urgent Neurology Clinic at the Grand River Hospital.

E. A Summary of the Court’s Findings

27The verdict on each count must be determined by the admissible evidence proffered in relation to that count. If warranted, the verdicts on the counts may differ. In arriving on a verdict for each count, I have considered the totality of the admissible evidence relevant to each count.

28In arriving at the verdict on each count, I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting examinations related to that count. That potential inference may in turn support the inference that Dr. Sloka performed and intended the acts alleged by each complainant, support the inference that the examinations constituted sexual activity, and rebut any exculpatory evidence offered by Dr. Sloka.

29I have considered the defence application to exclude Dr. Bril’s evidence. While I agree that it suffers from profound frailties and that Dr. Bril occasionally displayed bias, I have exercised my discretion and admitted Dr. Bril’s evidence. However, I generally afford it little weight. On the issue of the permissible scope of a neurologist’s practice, I afford it virtually no weight. Having considered Dr. Bril’s evidence in the context of the totality of the evidence, I have found it incapable of establishing that Dr. Sloka operated outside the permissible scope of his neurological practice. I have also found it incapable of proving that any examination conducted by Dr. Sloka was medically unreasonable. Similarly, it proved incapable of challenging Dr. Sloka’s claim that he believed each examination to be medically or neurologically reasonable. Dr. Bril’s evidence also proved incapable of establishing that Dr. Sloka lacked the training and experience to perform the examinations he claimed to have performed. Additionally, it proved incapable of establishing that Dr. Sloka performed examinations in a manner inconsistent with his training. Accordingly, Dr. Bril’s evidence did not support the inference that Dr. Sloka possessed a sexual motive or that any examinations acknowledged by Dr. Sloka constituted sexual activity.

30After considering the evidence of each complainant, I have concluded that, to varying degrees, each provided unreliable evidence. With many of them, their memory, perceptions, and testimony were tainted by what they saw in media or CPSO publications. Some also provided evidence that lacked credibility. Some were also deliberately dishonest with the court. After considering the evidence of each complainant in the context of the evidence as a whole, I am not satisfied that Dr. Sloka conducted any examinations that he did not admit conducting; nor am I satisfied that he conducted any examinations in a manner contrary to his training; nor am I satisfied that Dr. Sloka failed to adequately propose, identify and justify the examinations that he performed; nor am I satisfied that Dr. Sloka conducted any examinations without the express consent of any patient. Consequently, for each count, the Crown has failed to establish several important factors involved in the determination of the nature of the examinations performed by Dr. Sloka.

31Having considered the evidence of Dr. Sloka on each count, in the context of the totality of the evidence, I accept that he adequately proposed, identified, and explained each examination he acknowledged performing. Further, I accept that he subjectively believed in the medical and/or neurological justifications for his investigations, examinations, and treatments. In my view, his evidence refuted any potential inference that he possessed a sexual purpose when examining any of the 48 patients in this case. With each examination for each patient, he has satisfied me that he possessed a valid medical purpose. I also accept that he subjectively believed that it was permissible and appropriate for him to engage in each acknowledged investigation, examination, and treatment. When he denied performing certain examinations, I have accepted his denials. I have also accepted his evidence that he performed each examination in accordance with his training.

32Having looked at the totality of the admissible evidence on each count, I have concluded that on each count the Crown has failed to prove that Dr. Sloka used medical examinations as a ruse to gain access to the bodies of his female patients. The Crown has also failed to prove that Dr. Sloka engaged in sexual activity when conducting any examination on any of the 48 patients in this case. On each count, the totality of the evidence satisfies me that each patient consented to and participated in medical examinations.

33I have therefore concluded that Dr. Sloka must be acquitted on each of the 48 counts.

34What follows are the reasons for my decision.

2. GOVERNING LEGAL PRINCIPLES

A. The Presumption of Innocence and The Burden and Standard of Proof

35Every person accused of an offence comes before the court presumed to be innocent. The Crown bears the burden of proving the accused’s guilt in relation to each essential element of any offence charged. That is the burden of proof. That burden never shifts, and it remains upon the Crown until it discharges that burden by proving every essential element of the offence. Dr. Sloka faces no burden to prove his innocence. To satisfy its burden, the Crown must prove beyond a reasonable doubt each essential element of the offence. That is the standard of proof. This standard of proof applies to the essential elements of the offence, but not to the individual items of evidence adduced at trial.

36The standard of proof beyond a reasonable doubt is not applied piecemeal to individual items of evidence, rather to the final decision about guilt or innocence. Generally, preliminary findings of fact may be determined on a balance of probabilities. However, where the determination of a fact may itself have a conclusive effect with respect to guilt, the Crown must prove that fact beyond a reasonable doubt. Accordingly, to establish guilt of an offence, Crown counsel must establish the essential elements of that offence beyond a reasonable doubt. Some essential elements, such as the conduct element in sexual assault, consist of more than one component. Since each essential element must be proven beyond a reasonable doubt, it follows that its individual components must also be established with an equivalent degree of certainty. A reasonable doubt about any component of an essential element of an offence is a reasonable doubt about the essential element, the offence as a whole, and an accused’s guilt of that offence.

37The origins of reasonable doubt vary. Its origins may be in the evidence or in an absence of evidence; or in uncertainty about the inculpatory effect of evidence; or in the credibility of witnesses or the reliability of their evidence; or from uncertainty about whom to believe when competing versions of the same events are given.

38Whether the Crown has satisfied its onus of proof to the required extent in respect of a component of an essential element of an offence charged, an essential element of an offence, or the offence as a whole is to be decided on the entirety of the evidence that is relevant, material, and admissible on the issue under consideration. This includes direct and circumstantial evidence and evidence of fact as well as of opinion, subject to any limitations the law imposes on its use.

39To make the findings of fact essential to decide whether a component of an essential element, an essential element, or overall guilt has been established, a trier of fact must consider, in accordance with the legal principles governing its use, the evidence as a whole, each item or piece in the context of and together with the rest, not in isolation and not piecemeal. No single item of evidence is dispositive of any issue.

40In this case, exculpatory evidence has been proffered. I remind myself that a criminal trial is not a binary choice between the evidence proffered in favour of the prosecution and the evidence proffered in favour of the accused. In the fact-finding process, a trier of fact may accept some, none, or all of any given witnesses’ testimony. Treating a trial as a binary choice would be unfaithful to both the burden and standard of proof required in a criminal case. Fidelity to the burden of proof is maintained by approaching the evidence in the following manner. If I accept the exculpatory evidence, then I must acquit Dr. Sloka. If I do not entirely accept it but am nevertheless left in a reasonable doubt by it, I must still acquit Dr. Sloka. Even if I do not accept the exculpatory evidence and am not left in a reasonable doubt by it, I must consider whether, on the basis of the evidence I do accept, the Crown has proven Dr. Sloka guilty beyond a reasonable doubt.

41Where proof of guilt or any essential element of the offence, such as the sexual nature of a touching, depends entirely or substantially upon circumstantial evidence, an inference of guilt drawn from circumstantial evidence must be the only reasonable inference available on that evidence: R. v. Villaroman, 2016 SCC 33.

42The Crown relies upon two cases to support the proposition that proof of the sexual nature of any alleged physical contact ought not to be assessed on the Villaroman standard: R. v. Gibson, 2021 ONCA 530; and R. v. I.S., 2025 ONCA 76. In my view, the Crown’s reliance upon these two cases is misplaced. The sexual nature of the impugned physical contact was not a live issue in either of these cases. In both cases, proof of the offence turned on proof of the physical activity in question, for which direct evidence was proffered.

43In Gibson, both child complainants alleged that the accused engaged in anal intercourse with them. The alleged acts were inherently sexual and permitted no other reasonable inference about their nature. Proof of the acts came from the direct evidence of the child victims who described them. Accordingly, the court held, “Each complainant gave direct evidence which, if believed, established the essential elements of each offence charged beyond a reasonable doubt.” The court further noted that the circumstantial evidence at issue was not proffered as proof of the alleged sexual acts, but rather in support of the reliability and credibility of the complainants. The court stated that the circumstantial evidence

…was among several items of evidence offered to confirm the testimony of the complainants, whose evidence the trial judge concluded required a cautious approach. It did not have to implicate the appellant in any offence charged. Its role was to ensure the trier of fact's faith in the reliability of the complainant's account. It was not an essential element of the offence, carried no burden and was not subject to any standard of proof.

Consequently, Gibson does not stand for the proposition that the principle in Villaroman has no application to the proof of the sexual nature of the alleged conduct. As will be discussed momentarily, proof of the sexual nature of the impugned conduct requires a consideration of all the circumstances – of all available circumstantial evidence. Proof of this essential element inherently involves inferential reasoning.

44In I.S., the brief endorsement of the court does not summarize the alleged facts. However, there is no suggestion in the judgement that the sexual nature of the alleged conduct was ever a live issue. Instead, the judgement reveals that the defence theory was that the allegations were fabricated. The charges in this case included sexual interference and sexual exploitation. This case does not stand for the proposition that the proof of sexual nature of any alleged assault will never depend entirely or substantially upon circumstantial evidence.

B. Sexual Assault

45Like other offences in the Criminal Code, sexual assault consists of two elements. The first, traditionally described as the actus reus, involves conduct. The second, mens rea, requires proof of fault.

i. The Actus Reus (The Unlawful Act)

46A sexual assault is touching without valid consent that occurs in circumstances that are objectively sexual in nature. Accordingly, proof of the actus reus of sexual assault requires the Crown to establish: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330.

a) The Touching Element

47The touching element of the offence is determined objectively. “It is sufficient for the Crown to prove that the accused’s actions were voluntary”: see Ewanchuk, supra. Voluntariness means that “[t]he conduct in question must be willed”: see R. v. Brown, 2022 SCC 18. The ‘touching’ element of the offence of sexual assault is met by any direct or indirect application of force to another person, no matter the degree of strength or power applied: see R. v. R.V., 2021 SCC 10.

b) The Sexual Nature Element

48The assessment of whether any touching was of a sexual nature is an objective assessment in which all the circumstances must be considered. The question is whether, when viewed in light of all the circumstances, the sexual or carnal context of the assault is visible to a reasonable observer: see R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293. Any determination about the sexual nature of the activity therefore demands that the court draw inferences from the cumulative effect of totality of circumstances involving and surrounding the impugned activity. Each individual circumstance must be considered in the context of and together with the rest, not in isolation and not piecemeal. The importance and meaning attached to one individual circumstance may be informed and impacted by others. The assessment of the circumstances necessitates the drawing of inferences. The Crown’s suggestion to the contrary is belied by their very own similar fact evidence application: the Crown relies upon the evidence of the complainants from other counts to support a variety of inferences regarding any given count, most notably the inference of a sexual motive. Proof of the sexual nature of the impugned activity necessarily depends upon circumstantial evidence. The law demands it. Consequently, the cumulative force of the circumstantial evidence “must sustain no reasonable inference other than guilt” – no other reasonable inference than the conclusion that, when viewed in the eyes of the reasonable observer, the impugned conduct is sexual in nature.

49Circumstances relevant to an inquiry into the sexual nature of the impugned conduct include: but are not limited to: (1) the part of the body touched; (2) the nature of the conduct; (3) any words or gestures used, including threats; (4) the circumstances surrounding the application of the force; and (5) the intent of the accused: see Chase, supra.

50While the accused’s intent or motive is relevant to the analysis, it is not an element of the offence. Sexual assault is a general intent office that does not require proof of a sexual purpose or proof of sexual gratification. However, the accused’s purpose is one of many important considerations, which must be considered in the context of and together with the other surrounding circumstances. At times, the accused’s purpose may inform what other circumstances existed. Similarly, other circumstances may inform whether the accused possessed a sexual purpose. Often, findings of fact regarding the totality of all other circumstances will inexorably lead to the inference that an accused either possessed or lacked a sexual purpose. In the context of a medical appointment where a medical examination occurred, the presence or absence of a medical justification for the alleged touching will inform, but not necessarily determine, both the specific question of the accused’s purpose and the broader question of the nature of the alleged touching. As a practical matter, when the totality of all other circumstances indicates that the physical contact was objectively sexual in nature, an inference that the accused possessed a sexual purpose typically follows. The inference arises from the longstanding but rebuttable presumption in our law that people intend the natural consequences of their actions: R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746. Accordingly, one rarely finds a case in which the Crown has proven the objectively sexual nature of the activity but failed to prove the accused’s intent. On those rare occasions, the findings regarding the accused’s intent tend to be dubious.

51I want to pause here to discuss the Trachy decision: R. v. Trachy, 2019 ONCA 622. Writing for the Court, Justice Benetto confirmed that it is an error of law to treat the accused’s sexual purpose as an essential element of the offence of sexual assault. The trial judge in Trachy had acquitted the accused after concluding that he did not possess a sexual purpose when touching his music students. The appellate court concluded that the trial judge treated the accused’s sexual purpose as an essential element of the offence, which was an error of law. The appellate court then looked at the entirety of the proven circumstances and determined that the touching was objectively sexual in nature. The appellate court substituted the acquittal with a conviction. The appellate court’s assessment of the objectively sexual nature of the conduct stands as an implicit but nevertheless obvious and stinging rebuke of the trial judge’s finding of fact regarding Mr. Trachy’s lack of a sexual purpose. When I put this proposition to the Crown during oral submissions, the Crown agreed. Trachy was a Crown appeal against an acquittal. The Criminal Code does not permit Crown appeals against acquittals on questions of fact. The trial decision was overturned on a question of law, but not without an implicit rebuke of the trial judge’s finding of fact.

52I would now like to address “other circumstances surrounding the application of force” that may inform whether that application of force was sexual in nature, particularly those that may exist in a doctor-patient relationship. Appellate courts have consistently held that courts should avoid creating unnecessary barriers to the consideration of circumstances that may inform whether any physical touching is sexual in nature, particularly when the complainant has consented to some touching but not touching of a sexual nature.

53In R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] S.C.J. No. 127, at para. 8, Justice Iacobucci wrote:

The test to be applied in determining whether an accused's conduct had the requisite nature to constitute a sexual assault is therefore an objective one. As this Court indicated in Chase, all the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainant's sexual integrity. It is therefore important in individual cases that courts not create unnecessary barriers to considering all the circumstances surrounding conduct which is alleged to constitute a sexual assault. This is particularly true where the complainant has consented to some touching but not to touching of a sexual nature: in such a case, the court must have at its disposal as much relevant information as possible in order to determine whether the conduct was of a nature to which the complainant did not consent.

54While I do not propose to create an exhaustive list, I consider the following circumstances to be relevant to a determination of the sexual nature of any examination performed in this case: (1) the content of any discussions between Dr. Sloka and the patient, including any consent discussions; (2) Dr. Sloka’s instructions regarding draping; (3) the way the patient was draped; (4) whether intimate body parts were exposed; (5) whether the examinations were neurologically or medically reasonable; (6) whether a chaperone was present; (7) the patient’s perception of the examination at the time it was occurring; (8) the manner of the touching, including whether the touching was done in a neurologically or medically appropriate manner; (9) the gender of the complainants, all of which were female; and (10) whether Dr. Sloka complied with his own training and standards.

55The Crown suggests several other circumstances ought to be considered. In contrast, the defence contends that these factors are neutral, because they exist in virtually every medical examination. I disagree with the defence. I agree with the Crown that these circumstances ought to be considered to properly understand the entire context in which the alleged touching occurred. These factors include: (1) the knowledge and power imbalance between doctor and patient, and the resulting position of trust held by the doctor; (2) the vulnerability arising from the patient’s medical concerns; and (3) Dr. Sloka’s exclusive control over his neurology clinic. As noted at paragraph 9 of Litchfield, these factors are highly relevant to the issue of consent. Nevertheless, they also help provide a full understanding of the context in which the touching occurred and accordingly offer some assistance in assessing the sexual nature of the conduct. I note, for example, that a patient’s emotional state and vulnerability, when considered in conjunction with the nature of the proposed examinations, might give rise to an obligation to provide more expansive information to the patient during consent discussions. In summary, the entirety of the circumstances ought to be considered. Each individual aspect of an appointment may inform the importance of the others.

56Of course, during any assessment of whether the totality of the circumstances reveals any physical examination to be objectively sexual in nature, the court must first make findings of fact about what circumstances existed at the time of the examination. In this judgement, I have addressed each count separately, summarizing the totality of the evidence relevant to each count, making findings of fact, and arriving at an assessment of the nature of the examinations. For each count, the totality of the evidence included the evidence of the complainant who received the examinations, any supporting witnesses, all relevant exhibits, the expert opinion evidence, the cross-count similar fact evidence, and the evidence of Dr. Sloka. Findings of fact regarding the totality the circumstances depended on direct evidence, but also substantially upon inferences drawn from direct evidence.

57After considering all the relevant and admissible evidence in relation to each count, I have ultimately concluded that the Crown failed to prove that Dr. Sloka performed any examinations other than the ones he was prepared to admit; that Dr. Sloka performed any examinations for a sexual purpose; that Dr. Sloka performed any examinations in a manner contrary to his training; and that Dr. Sloka’s examination methodology was improper. In the absence of proof of these circumstances for any count, the totality of the circumstances failed to establish that any examinations were sexual in nature and failed to establish that Dr. Sloka used medical examinations as a ruse to gain access to the bodies of his female patients. Instead, for each individual count, the totality of the circumstances only established that Dr. Sloka proposed and conducted what he believed were neurologically or medically justifiable examinations; that he performed those examinations in accordance with his training; and that possessed a medical purpose when conducting any examinations, not a sexual one. To be clear, even on a civil standard of proof, I conclude that the Crown has failed on any count to establish that Dr. Sloka engaged in sexual activity when examining any complainant.

c) The Absence of Consent Element

58Proof of the absence of consent is determined subjectively, by reference to the complainant’s internal state of mind toward the touching at the time it occurred: Ewanchuk, supra. The court must determine whether the complainant consented to the sexual activity in question. “The sexual activity in question” encompasses the specific physical act(s) engaged in, the sexual nature of those acts, and the identity of the partner in those acts: see R. v. G.F., 2021 SCC 20. For example, if a person is led to believe that the act is being done for medical or therapeutic purposes, but it is sexual in nature, then there is no consent: see R. v. Dinardo, 2014 ONCA 758.

59In Dr. Sloka’s case, no complainant consented to sexual touching. If consent was granted, it was granted for the purpose of medical touching. In this case, proof of the sexual nature of the touching was therefore relevant to and determinative of the issue of consent.

60There are two aspects to consent: (1) The first aspect is termed “subjective consent” and “relates to the factual findings of the trier of fact about whether the complainant subjectively and voluntarily agreed to the sexual activity in question. If the trier of fact finds that there was no such agreement, the actus reus of sexual assault will be established”; (2) The second aspect of consent is termed “effective consent” and concerns whether any subjective consent given is “effective ‘as a matter of law’” […]. Another way of framing that question is to ask whether the subjective consent has been vitiated”: see G.F. supra.

61For purposes of ss. 271, 272 and 273 of the Criminal Code, subjective consent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question”: Criminal Code, s. 273.1(1).

62Whether the complainant subjectively consented in her mind at the relevant time is a question of fact. Evidence on this issue may include (1) the complainant’s direct evidence as to her state of mind at the time (though the trier of fact may accept or reject this evidence), and (2) other relevant evidence, including evidence of the complainant’s “words or actions, before and during the incident”: see Ewanchuk, supra.

63The question of whether subjective consent is either prevented or vitiated is a question of law: s. 273.1(1.2). The Supreme Court in G.F. made clear that “[o]nly if subjective consent exists, or if there is a reasonable doubt as to subjective consent, does a trier of fact need to go on and ask whether that consent was vitiated.”

64Subsection 265(3) of the Criminal Code sets out circumstances in which consent will be vitiated. It provides that “no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority.” Proof that Dr. Sloka used the medical examinations as a guise to gain access to the bodies of his female patients would constitute fraud. As a practical matter, if all other circumstances support the conclusion that the impugned examinations were sexual in nature, it would be difficult to escape the inference that Dr. Sloka intended the natural consequences of his actions. It would therefore be difficult to escape the conclusion that Dr. Sloka perpetrated fraud. I stress, as the Crown does, though, that sexual assault is not a specific intent offence. The Crown does not bear the burden of proving Dr. Sloka’s sexual purpose.

65However, as already stated, having considered the entirety of the circumstances, I have concluded that the examinations were medical, not sexual, in nature. I have also concluded that Dr. Sloka possessed a valid medical motive for conducting the examinations he conducted. Accordingly, I have concluded that Dr. Sloka did not fraudulently use medical examinations as a ruse to gain access to the bodies of his female patients.

ii. The Mens Rea

66The mens rea of sexual assault comprises two elements: (1) intention to touch; and (2) knowledge of, or willful blindness or recklessness as to, a lack of consent on the part of the person touched: see Ewanchuk, supra and G.F., supra.

67Because sexual assault is a crime of general intent, “the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement” of intention to touch: see Ewanchuk, supra. A

68The Crown must also prove beyond a reasonable doubt that the accused either knew the complainant was not consenting or was willfully blind or reckless as to her lack of consent.

iii. Myths and Stereotypes

69Canadian jurisprudence has come to recognize and denounce the operation of myths and stereotypes in the law of sexual assault, “based on overwhelming evidence from relevant social science literature”: see R. v. Find, 2001 SCC 32. Some myths and stereotypes concern what qualifies as consent. Other myths and stereotypes concern the behavior and motivations of complainants in sexual assault cases.

70The Supreme Court majority in R. v. Kruk, 2024 SCC 7, defined myths and stereotypes about sexual assault complainants as follows:

37Myths and stereotypes about sexual assault complainants capture widely held ideas and beliefs that are not empirically true — such as the now-discredited notions that sexual offences are usually committed by strangers to the victim or that false allegations for such crimes are more likely than for other offences. Myths, in particular, convey traditional stories and worldviews about what, in the eyes of some, constitutes “real” sexual violence and what does not. Some myths involve the wholesale discrediting of women’s truthfulness and reliability, while others conceptualize an idealized victim and her features and actions before, during, and after an assault. Historically, all such myths and stereotypes were reflected in evidentiary rules that only governed the testimony of sexual assault complainants and invariably worked to demean and diminish their status in court.

71Decisions about the credibility or reliability of witnesses that are based upon myths and stereotypes are not decisions based wholly upon the evidence tendered at trial. The resulting verdict is therefore not a true verdict, grounded in the evidence. Myth based reasoning impedes the search for the truth and undermines the fairness of the trial. Reliance on myths and stereotypes about sexual assault complainants therefore constitutes an error of law.

72However, evidence about facts that happen to align with a myth or stereotype is not necessarily inadmissible for all intents and purposes. As the majority in Kruk stated,

For example, just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial. While it is a myth that women regularly fabricate allegations of sexual assault, it is not an error to consider whether the circumstances of a particular case support the existence of a motive to fabricate (see, e.g., R. v. Esquivel-Benitez, 2020 ONCA 160, 61 C.R. (7th) 326, at paras. 9-15) — indeed, where the defence adduces evidence on this point, a trial judge is obliged to consider it to give full effect to the presumption of innocence, and a failure to do so constitutes reversible error. Furthermore, while s. 276 of the Code prohibits the use of prior sexual history to support either twin myth, it clearly does not prohibit such evidence point-blank and for all purposes. So long as it is properly screened by s. 276, such evidence may be used, for instance, to resolve inconsistencies between the complainant and the accused’s testimony as to their relationship.

73With these principles in mind, I wish to turn my mind to some myths and stereotypes that have been raised by counsel in their submissions. In doing so, I remind myself of the impermissible use of these myths and also the permissible use of evidence that happens to align with these myths.

74One common and prohibited myth is the notion that genuine sexual assault victims report the offence at their earliest opportunity; and, consequently, that delays in reporting suggest a false allegation. In R. v. D.D., 2000 SCC 43, the Supreme Court of Canada considered a delayed report of sexual abuse by a child complainant. The majority held that expert evidence from a child psychologist was unnecessary on this point, and that judges should simply instruct juries on delay as follows:

“… there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

75Importantly, the court in D.D. did not rule that consideration of delay in disclosure was never permissible or probative. Rather, the court held that while delay means nothing “standing alone,” it is “one circumstance to consider in the factual mosaic of a particular case.”

76In Kruk, supra, the majority held that the prohibition against reasoning rooted in myths and stereotypes about the timing and nature of disclosure does not prohibit use of the substance and timing of disclosure for all time and all purposes. It cited the following permissible uses:

(1) Testimonial impeachment on the basis of inconsistent statements about the same or related subject matter.

(2) Demonstration of a correspondence between the substance of the incremental content and the availability of equivalent information from contemporary or extraneous sources. [i.e. tainting]

(3) Support for the existence of a motive to fabricate.

(4) Resolution of inconsistencies between competing version of event from the complainant and accused.

77In this trial, the court’s attention has frequently been drawn to the correspondence between the substance of the complaints of witnesses and the availability of equivalent information in media and CPSO publications. In other words, the issue of delayed disclosure has been shown to have significant relevance to the issue of tainting. For example, many witnesses acknowledged that their perception of their examinations changed after reading publications of other allegations. In some instances, it has also been shown to have significant relevance to other evidence concerning a motive to fabricate. Relatedly, the Crown has in some instances relied upon the recency of a complainant’s disclosure to rebut any suggestion that their evidence, memories, or perceptions were tainted by exposure to media and CPSO publications.

78It has also been held to be a myth that all victims of sexual assault will necessarily take steps to avoid their abuser. There is inviolable rule of how people who are the victims of alleged sexual assault will behave. It is an error in law to judge a “complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault.”: see R. v. A.R.J.D., 2018 SCC 6. However, the presence or absence of avoidant behaviour may be relevant to the issue of media tainting. For example, avoidant behaviour may serve to rebut the suggestion that the complainant’s perceptions and memory were influenced by subsequent media tainting years after the fact. Conversely, when considered in tandem with the delayed timing of the complaint and the content of media publications, the absence of avoidant behaviour may be relevant to the issue of media tainting. Also, it is permissible to cross-examine a complainant who asserts they avoided contact with their alleged abuser after the fact to show that the reality was otherwise: see R. v. Davison, (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 444, leave to appeal refused, [1974] S.C.R. viii.

79Further, the mere fact that a complainant received psychiatric or therapeutic consultations does not, standing alone, tell against their credibility or reliability: see Kruk, supra, and s. 278.3(4)(b) of the Criminal Code. However, evidence concerning the witness’ capacity to accurately perceive reality and communicate those perceptions is highly relevant to the witness’ reliability. Likewise, the witness’ minimization of an accepted diagnosis is highly relevant to the witness’ credibility. In this trial, L.F. acknowledged that she had been repeatedly diagnosed with psychosis. She acknowledged experiencing the symptoms that gave rise to her diagnosis. Those symptoms included seeing an intruder in her bedroom who was not there; and believing she had suffered a miscarriage when she had never in fact been pregnant and had not suffered a miscarriage. Ms. L.F. acknowledged experiencing false perceptions of reality during the timeframe of her treatment by Dr. Sloka. She was involuntarily and repeatedly hospitalized during her time as Dr. Sloka’s patient. Her admitted symptoms around the time of her treatment by Dr. Sloka were highly relevant to her reliability as a witness. Her refusal to accept her diagnosis and her attempt to minimize her admitted symptoms harmed her credibility and reliability.

C. Child Witnesses

80The evidence of children suffers from well documented frailties. These include their level of moral responsibility and their capacity to observe; to recollect their observations; to understand questions asked about their observations and recollections; and to frame intelligent responses: see R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469.

81In each case in which an adult witness testifies about events they allege occurred in their childhood or youth, the analysis in which the trier of fact must engage is case-specific. Children do not represent an unvarying class of witness. Each person matures and develops at their own pace and in their own way. The capacities of morality, observation, recollection, cognition, and communication evolve throughout childhood and, to some degree, throughout adult life. As a matter of common sense and human experience, one can expect the capacities of a grammar school child to be less than those of a 17-year-old child. But the capacities of children of the same age may vary.

82While concerns about moral responsibility and capacities of communication diminish as children enter adulthood, those related to perception and recollection concerning events in childhood persist as the adult attempts to testify about them. Consequently, when an adult witness testifies about events that occurred in childhood, their credibility is assessed as an adult witness. However, “with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying”: see R v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 SCR 122; R. v. Pindus, 2018 ONCA 55; R. v. A.M., 2014 ONCA 769.

83In this trial, seven complainants were teenagers when they became patients of Dr. Sloka. One was 15 years old. The others were 17 years old. Having regard to the particular circumstances of each child, I am not satisfied that there existed a sufficient basis to conclude that their capacities of morality, observation, recollection, or cognition suffered from any meaningful age-related frailties. Indeed, some provided more reliable testimony about peripheral matters than witnesses who were much older. With each of these teenaged complainants, my concerns about their reliability did not concern peripheral matters, but rather aspects of their evidence that were central to their complaint. I therefore concluded that the relaxed approach to the evidence of child witnesses had little application in their specific circumstances.

D. Evidence of Habit and Invariable Practice

84In this trial, the question of whether Dr. Sloka acted in a certain way on a given occasion is a material issue. In the absence of a present memory about the specific occasions, Dr. Sloka relied upon his standard practices – his habits.

85Evidence of a person’s behavioral propensity (the person’s disposition or habit) provides circumstantial evidence that they acted in accordance with that propensity on a specific occasion. In R. v. Pilon, 2009 ONCA 248, [2009] O.J. No. 1172, Doherty J.A. explained this evidentiary principle as follows:

Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely: R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the positions of the parties: David Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2008), at pp. 25-26. Evidence of a person's disposition and his or her habit may provide circumstantial evidence that a person acted in a certain way on a given occasion: R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.), at pp. 536-37; R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 30 O.R. (3d) 161 (C.A.), at p. 176.

Logic and common-sense dictate that the probative force of the habit is derived from its degree of prevalence. The more prevalent the habit, the more probative it will be.

86An “invariable practice” is an extreme form of habit. A person has an invariable practice when they always behave the same way in the same set of circumstances. Even in the absence of a present memory, a person with an invariable practice can declare that they behaved in a certain way on a specific occasion, because they always behave in that way in those circumstances. The principle was explained by the Court of Appeal of British Columbia in Bellknap et al. v. Meakes (1989), 1989 CanLII 5268 (BC CA), 64 D.L.R. (4th) 452 (B.C.C.A.) as follows:

If a person can say of something he regularly does in his professional life that he invariably does it in a certain way, that surely is evidence and possibly convincing evidence that he did it in that way on the day in question.

The invariability of the habit in a specific situation heightens the probative value of that habit.

87However, a habit short of an invariable practice may still have probative value. As stated in R. v. Vant, 2015 ONCA 481, “In the end, whether such sufficient regularity exists depends largely on the circumstances of each case…. At bottom, there must be specific instances numerous enough to support an inference of systematic conduct: John Henry Wigmore, Wigmore on Evidence, revised by E.J. H. Chadbourn (Toronto: Little, Brown and Company, 1979), § 376, at p. 385.”

88Recent jurisprudence therefore favours a principled approach to the admissibility of evidence of habit. This jurisprudence exists in harmony with the similar act evidence rule, which governs the exceptional admissibility of evidence of bad character proffered by the Crown against the accused through evidence of bad habits. As will be discussed in a subsequent section of this judgement, evidence of bad habits creates a significant risk of prejudice, more so than evidence of benign habits. Consequently, evidence of bad habits is presumptively inadmissible, unless the proffering party can show that its probative value outweighs its prejudicial effect. In contrast, evidence of relevant and material benign habits proffered by the defence is admissible unless the Crown can establish that the prejudicial effect of the evidence substantially outweighs its probative value: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577. Under the similar act evidence rule, the Crown need not prove that the accused possessed an invariable bad habit. Rather, the Crown need only show, on a balance of probabilities, that a situation specific propensity can be inferred from previous bad acts and that the likelihood of a coincidence or other innocent explanation is implausible. Parity dictates that, when proffering evidence of benign habits, the accused should not be held to a higher standard. Rigidly requiring evidence of an invariable benign habit would mark a return to the long-eschewed pigeon-holed approach to the admissibility of evidence and a rejection of the principled approach now favoured for many decades. Moreover, it would mark an inconsistent and unjust approach towards two types of habit, providing the prosecution a lower threshold for more prejudicial bad character evidence and erecting a higher threshold for potentially exculpatory evidence of benign habits proffered by the defence. Accordingly, the law clearly supports a principled approach and only requires proof of specific instances of a purported habit sufficient to support an inference of systemic conduct, not invariable conduct.

89There is no distinct propensity rule pertaining to doctors. The laws of evidence regarding propensity, habit, and invariable practice apply equally to all persons, regardless of profession.

90In this trial, Dr. Sloka gave evidence about invariable practices. For instance, he testified that he invariably retrieved patients from the waiting room; appointments invariably began in his office, not the examination room; the gowns provided to patients were invariably the gowns that the GRH provided his clinic; the gowns provided by the GRH to his clinic were invariably the ones depicted in Exhibit 2, all of which had ties at the neck and could be worn with the opening at the back or the front; he invariably asked his patients at his clinic to wear their gowns open at the back; he never applied Holter monitors; Holter monitors were invariably fitted by another person at another location in the hospital; tables used for Tilt Table Tests did not and could not tilt the head downwards; he invariably tilted the patient’s head upwards during Tilt Table Tests.

91In this trial, Dr. Sloka also gave evidence about systemic habits. For instance, he testified that he had standard approaches to the assessment of seizure patients, loss of consciousness patients, MS patients, pituitary adenoma patients, situations involving possible cancer, headache patients, birth control patients, and concussion patients. Accordingly, he tended to propose and conduct certain examinations in certain clinical situations, in accordance with his understanding of his training. Similarly, he testified that he tended not to document negative results for examinations, but he almost always documented neurological and cardiac examinations, regardless of results. He also almost always documented vital signs. However, he also testified that he was guided by the clinical context of each patient, including the specifics of their history and presentation, as well as their level of consent. Consequently, he could not say that he always proposed and conducted a specific examination for a specific type of patient. And there were occasions where the evidence revealed exceptions to his note taking practices. Consequently, while he testified about systemic and prevalent habits in certain clinical contexts, he did not purport to have invariable practices regarding the conduct of certain examinations or his note taking.

92Nevertheless, when the evidence is examined in its totality, which includes the evidence of the complainants, the consultation letters for their appointments, and the test results in their medical charts, systemic patterns become obvious. For example, many of the patients who alleged skin examinations tended to be loss of consciousness patients whom Dr. Sloka suspected had suffered seizures. Dr. Sloka testified and I accept that he was trained to propose and conduct skin examinations on patients who had suffered possible seizures, because seizures could potentially be a symptom of neurocutaneous disease. He explicitly drew this connection in one of his consultation letters. Skin examinations also occurred with pituitary adenoma patients. Dr. Sloka testified and I accept that he was trained to periodically conduct a triad of examinations (skin, breast, and visual fields examinations) when assessing and monitoring pituitary adenoma patients. Similarly, consultation letters filed by the Crown revealed that Dr. Sloka typically documented cardiac examinations for headache patients, even when the results of the cardiac examination were normal. He testified and I accept that he was trained to conduct cardiac examinations as part of his standard assessment of headache patients. A full review of Dr. Sloka’s standard practices is provided in the section of this judgment devoted to a general assessment of Dr. Sloka’s evidence. In my view, the evidentiary record amply supports an inference of systemic conduct. To the extent that the Crown suggests that Dr. Sloka cannot rely upon his habits as circumstantial evidence to support the contention that certain examinations or events occurred or did not occur, I disagree. I will elaborate upon my findings concerning his standard practices in the section devoted to a general assessment of Dr. Sloka’s evidence and in the count-to-count assessments of the evidence.

93Given the systemic habitual patterns that emerge from the evidence at trial, I will group the count-to-count assessment of the evidence in accordance with the medical issues the patients faced. Grouped in this way, Dr. Sloka’s systemic habits become more apparent, as do his deviations from any habits, and any evidence that supports his explanations for those deviations.

3. THE EVIDENCE OF DR. VERA BRIL

Introduction

94Dr. Bril was an important witness with an impressive resume. Unfortunately, after a thorough consideration of her evidence, I have concluded that she was not an impressive witness. As a result, I am inclined to assign limited weight to her evidence generally and limited to no weight on some material issues.

The Crown’s Heavy Reliance on Dr. Bril’s Evidence to Prove Motive

95The overarching theory of the Crown’s case is that Dr. Sloka used medicine as a ruse to conceal a sexual purpose when conducting medical examinations on his female patients. In effect, the Crown contends that Dr. Sloka obtained consent by fraud, though the Crown is reluctant to characterize their theory this way. While the Crown contends that, in law, it need not prove that Dr. Sloka possessed a sexual purpose (which, of course, is a correct statement of the law), the Crown heavily relies upon Dr. Sloka’s alleged sexual purpose in their submissions regarding each and every patient, as well as in their similar act evidence submissions. When discussing Dr. Sloka’s alleged sexual purpose, the Crown employs the terms “modus operandi,” “ruse,” and “guise” repeatedly. The phrase “modus operandi” is employed 101 times throughout the Crown’s written submissions. The term “ruse” is employed 73 times. And the term guise is used 103 times. Combined, these terms are used 277 times. Although, an accused’s sexual purpose is not an essential element of the actus reus of the crime of sexual assault, Dr. Sloka’s sexual purpose is a fundamental component of the Crown’s theory of the case, without which the Crown concedes the path to a conviction becomes much narrower.

96Dr. Bril’s evidence is a fundamental means by which the Crown seeks to prove Dr. Sloka’s sexual purpose. The Crown relies upon Dr. Bril’s evidence to prove that Dr. Sloka conducted examinations and investigations that fell outside the proper scope of a neurologist’s practice. The Crown also relies upon Dr. Bril’s evidence to prove that Dr. Sloka sometimes performed examinations that were not justified by the circumstances known to Dr. Sloka at the time he conducted them. From these alleged lane departures and unwarranted examinations, the Crown asks the court to conclude that Dr. Sloka possessed a sexual purpose, not a medical one, when conducting the impugned examinations. Without exception, the Crown relies upon this chain of reasoning to support the contention that the impugned examinations were sexual in nature, not medical. The Crown thereby uses Dr. Bril’s opinion as a cornerstone of its case.

The Scope of Dr. Bril’s Expertise

97In their initial Notice of Application, the Crown sought to have Dr. Bril qualified to give evidence, including opinion evidence, in the field of neurology, including methods of neurological examination and neurofibromatosis. At the outset of the voir dire, the Crown orally modified their application, asking that Dr. Bril be qualified to provide expert opinion evidence about neurology, generally. The defence consented to this application, with the caveat that they would object if Dr. Bril strayed beyond the scope of her expertise. Ultimately, there is no controversy that the permissible scope of Dr. Bril’s opinion includes her opinion about the boundaries of the field of neurology. In other words, she was qualified to provide a description of the subject matter of neurology (“what is neurology?”), neurological diseases, and the medical investigations and treatments that might reasonably occur in furtherance of the diagnosis and treatment of neurological disorders.

98Dr. Bril had extensive education, training, and experience in the field of neurology.

99Dr. Bril obtained her medical degree at the University of Toronto in 1974. Dr. Bril completed a two-year internship before entering her neurology residency.

100After completing her internship, Dr. Bril completed a three-year residency in neurology, from 1976 to 1979. She then obtained post-graduate training in the field of electro-diagnosis of nerve and muscle diseases, from 1979-1981.

101Dr. Bril has also taught neurology courses, including general neurology to students in medical school, and more specialized topics to neurology residents. As part of her teaching, she supervised residents seeing patients. In doing so, she reviewed their patient assessments, development of differential diagnoses, and treatment plans.

102Dr. Bril has practiced in a clinical setting since 1981, including as a consultant neurologist at the Toronto General Hospital, University Health Network. Since April of 2015, Dr. Bril has been a co-director of the Elisabeth Raab Neurofibromatosis Clinic at the University Health Network. This is a multi-disciplinary clinic established to deal with adult neurofibromatosis patients in Ontario. She saw patients regularly in her neurofibromatosis clinic up until the COVID-19 pandemic, following which she continued to see a few patients personally.

103Dr. Bril has an extensive list of publications and research to her credit on a range of neurological topics. Topics include neurofibromatosis, diabetic neuropathy, neuromuscular diseases, neurophysiology, electromyography, and myasthenia gravis.

104Dr. Bril has also been a reviewer for numerous academic journals and has delivered dozens of lectures and presentations.

105Dr. Bril has specific expertise in neurofibromatosis. As mentioned, she has been co-director of the neurofibromatosis clinic at the University Health Network. In that capacity, she trained fellows and residents in neurofibromatosis and developing treatment strategies for patients.

106Dr. Bril continues to be engaged in research about neurofibromatosis. She is involved in a treatment trial of a new drug to slow the growth of tumors associated with neurofibromatosis. Additionally, she is involved in an epidemiological study of the prevalence of neurofibromatosis in Ontario. Currently, most statistics on the prevalence of neurofibromatosis are based upon data from the United Kingdom. At trial, Dr. Bril relied upon data contained in Neurofibromatosis in Clinical Practice by Rosalie Ferner, Susan Huson, and Gareth Evans, which she recognized as an authoritative text on neurofibromatosis.

A Fundamental Shortcoming of the Limitations of Dr. Bril’s Expertise and Its Impact upon the Ability of the Crown to Prove Its Case

107Dr. Bril was not qualified to provide an opinion on fields of medicine outside of neurology. Consequently, she was not qualified to opine on the medical reasonableness of any given investigation or treatment, only the neurological reasonableness of those things.

108The Crown did not adduce an expert capable of opining on the medical reasonableness of Dr. Sloka’s conduct. It was open to the Crown to adduce expert evidence from a primary care physician or other experts as the circumstances required, but they opted against doing so, despite clearly contemplating the possibility when filing their original Application Record to adduce expert evidence. Ultimately, the Crown decided to rely exclusively upon the evidence of Dr. Bril regarding the narrow question of the neurological reasonableness of Dr. Sloka’s conduct. Consequently, the Crown called no opinion evidence capable of rebutting Dr. Sloka’s evidence each time he testified to a subjective belief that his conduct was medically reasonable. His subjective belief in the medical reasonableness of conduct that was either admittedly outside the field of neurology or arguably outside the field of neurology stood unchallenged by Dr. Bril. In my view, the Crown’s failure to call opinion evidence to challenge the medical reasonableness of Dr. Sloka’s conduct fundamentally undermined their ability to circumstantially prove that Dr. Sloka possessed a sexual purpose when proposing and conducting the impugned physical examinations and when conducting various impugned medical investigations and treatments, all of which the Crown argues were done under the false guise of a medical purpose.

Education and Certification Required to Become a Neurologist

109To become a neurologist, one must first obtain a medical degree. When Dr. Bril graduated from medical school, graduates were required to complete an internship before entering their residency in neurology. At the time, medical school graduates had to complete at least a one-year internship. She completed two years. Then, she completed a three-year residency in neurology. Since then, the system changed, and graduates proceed directly to their residency. In any case, aspiring neurologists complete a multi-year training process to become neurologists, during which they complete rotations in various disciplines of medicine. Dr. Bril acknowledged that each aspiring neurologist may complete different rotations than another during their residency. As a result, knowledge, training, and proficiency in any given discipline can vary from neurologist to neurologist. Some neurologists may obtain additional training in the conduct of pelvic, skin, and cardiac examinations. Dr. Bril for example testified that she obtained no training in pelvic examinations during her residency, only limited training in medical school and her internship. Similarly, she did not profess sufficient knowledge, training, or competency to perform a breast examination. Also, she did not claim to have obtained the level of cardiology training claimed by Dr. Sloka; and she acknowledged that her skills in conducting cardiac examinations waned in the latter years of her career, given the specialized nature of her practice. When her training and education is contrasted to that of Dr. Sloka, it is clear that Dr. Sloka obtained training and competency in areas of medicine that Dr. Bril did not. Dr. Sloka testified to obtaining education and training in the conduct of pelvic, breast, and cardiac examinations that far exceeded that claimed by Dr. Bril.

110After residency, an aspiring neurologist must write a set of examinations set by the Royal College of Physicians and Surgeons of Canada. Successful completion of those examinations qualifies a person as a Fellow of the Royal College of Physicians and Surgeons of Canada.

111Fellowship in the RCPSC pertains to individual fields of medicine, such as neurology, oncology, or internal medicine. Dr. Bril described an internal medicine specialist as being like a supersized family doctor: they complete a variety of rotations that provides some proficiency in a broad range of medical disciplines, including neurology. Interestingly, Dr. Sloka testified that at Memorial University, where he trained, the residencies of neurology and internal medicine were very similar, but a neurology residency involved more neurology training than provided during an internal medicine residency. This assertion was not challenged and, in my view, has bearing on the assessment of Dr. Bril’s assertions regarding the proper scope of a neurologist’s practice, which will be discussed shortly.

112Dr. Bril testified that the role of a family doctor is different from that of a neurologist. Family doctors sit at the centre of a patient’s circle of care, overseeing and directing each patient’s care and sending the patient to specialists when required, who then provide care in collaboration with the family doctor.

What is Neurology; What Falls Within the Permissible Scope of Practice of a Neurologist; And What Falls Outside the Proper Scope of a Neurologist’s Practice

113Dr. Bril testified that neurology is an area of medicine that concerns the brain, spinal column, nerves, and the junction between the nerves and muscles.

114In her evidence, Dr. Bril identified several medical issues, together with the diagnosis, treatment, and management of those issues, which fell squarely within the field of neurology. With few exceptions, her evidence here was not controversial. For example, the diagnosis, treatment, and management of the following issues fell squarely within the field of neurology:

(1) Seizures and losses of consciousness.

(2) MS.

(3) Migraines/headaches.

(4) Neurocutaneous diseases, like neurofibromatosis (NF1 and NF2), for example.

(5) Strokes

(6) Pituitary adenomas and other cancers affecting the neurological system

(7) Concussions

115However, Dr. Bril took the position that certain examinations, investigations, and actions that were admittedly relevant to some of these undisputed neurological issues fell outside the permissible scope of neurology. For example,

(1) The monitoring of pituitary hormones in patients with pituitary adenomas.

(2) The conduct of breast examinations as part of the routine monitoring of prolactinoma patients to assess for galactorrhea (the production of breast milk arising from increased prolactin levels)

(3) The conduct of skin examinations to search for stigmata of neurocutaneous disease (including like café au lait spots and axillary and inguinal freckling).

(4) Prescribing birth control medication to a migraine patient during a consultation about appropriate birth control medication for that patient.

(5) Conducting a breast examination as an adjunct to advising a migraine patient about birth control options.

(6) Ordering non-neurological tests as an adjunct to a patient’s neurological care (vaginal swabs, pelvic ultrasounds, and abdominal ultrasounds, for example).

(7) Issuing prescriptions for non-neurological issues (antibiotics for infections, for example)

116Dr. Bril also categorically stated that neurologists do not perform pelvic examinations, breast examinations, or skin examinations.² She also testified that, with the exception of investigating fecal incontinence, neurologists do not perform rectal examinations.

117Dr. Bril testified that obtaining training in other medical disciplines during a neurological residency does not sufficiently qualify a neurologist to perform examinations outside the field of neurology. Residencies for each discipline provide additional training on the discipline after the resident completes general rotations. Also, Dr. Bril took the view that skills degrade with time. If a neurologist did not, through repetition, maintain a skill, that skill would diminish. Accordingly, she testified, it was not the standard of practice to conduct examinations outside one’s field.

118Although I will address each alleged lane departure when discussing the assessment of each individual count, I will at this juncture conduct a general assessment of Dr. Bril’s evidence regarding cardiac examinations, breast examinations, skin examinations, birth control prescriptions, and skin examinations. In addition, I will address Dr. Bril’s contention that a neurologist may not, no matter the level of that neurologist’s training and competency, address non-neurological issues and partake in non-neurological examinations and investigations. In my view, Dr. Bril’s evidence regrading these examinations is undermined by the following circumstances:

(1) Taking a more rigid categorical stance on the permissible scope of neurology than is contemplated in written CPSO policy and than is apparently tolerated by referring physicians in Dr. Sloka’s medical community.

(2) Relying upon inadequate anecdotal evidence as a foundation for her opinion.

(3) Historically breaching her own rigid position on breast examinations and failing to mention this when categorically claiming that neurologists do not do breast examinations.

(4) Providing inconsistent evidence regarding skin examinations

(5) Displaying at least unconscious bias in isolated situations.

119I begin by contrasting Dr. Bril’s categorical stances about the proper scope of neurology with CPSO policy. I remind myself here that Dr. Bril was not called as representative of her governing body (the CPSO), nor was she qualified as an expert in her governing body’s policies and licencing parameters. In my view, there exists an important distinction between giving evidence about the practices of neurologists (what neurologists do) and giving evidence about the permissible practices of neurologists. Dr. Bril was qualified to give evidence about neurology, including the practices of neurologists. The probative force of her evidence stemmed from her admissible opinion about the education, training, and general practices of her fellow neurologists. She was not qualified to speak on behalf of her regulator to testify about what neurologists are permitted to do. As if speaking on behalf of all neurologists and relaying the consensus of those in her discipline, Dr. Bril stated that neurologists do not do breast examinations and do not do pelvic examinations. At times, she took the same stance regarding skin examinations (although she was inconsistent on this point). Similarly, she testified that neurologists do not do rectal examinations, except in cases of fecal incontinence. However, Dr. Bril’s rigid stance does not find clear support in CPSO policies. Instead of rigidly defining the scope of any particular medical discipline, CPSO policy takes a more flexible approach. Indeed, CPSO policy appears to contemplate a certain level of self-determination, or self-policing, in the identification of any given physician’s scope of practice. CPSO policy also recognizes that the scope of practice of any given physician is unique. At the same time, CPSO policy contemplates that a physician’s scope of practice is tethered to the elusive concept of a consensus amongst those in the physician’s discipline. The relevant CPSO policy can be found in Exhibit 214 [Select CPSO Policies in Time November 1, 2022] which contains a section entitled “Changing Scope of Practice.” That section, in turn, on page 2, contains a section entitled “Definitions/Examples,” which contains the following passage:

Scope of practice:

1. Every physician’s scope of practice is unique.

2. A physician’s scope of practice is determined by the patients the physician cares for, the procedures performed, the treatments provided, and the practice environment.

3. A physician’s ability to perform competently in his or her scope of practice is determined by the physician’s knowledge, skills, and judgment, which are developed through training and experience in that scope of practice.

4. A change in scope of practice occurs when there have been significant changes to any of the elements set out in part 2 of the definition. If a physician has changed practice such that he or she is practising outside of what would be considered the usual scope of practice for the discipline, then his or her scope of practice may have changed significantly.

Performance of innovative techniques or procedures within the context of a specialty or family medicine, while new, would not constitute a change in scope of practice. For example, a family physician who, within his or her general area of training, decides to narrow the focus of his or her practice to women's health issues; or a general surgeon who learns to perform laparoscopic cholecystectomies would not be considered to have changed their scope of practice.

Examples of changes in scope of practice include:

• a family physician who wishes to perform cosmetic surgical procedures; or

• a specialist, such as a surgeon, who wishes to practise primary care medicine.

A change in scope of practice may also occur when a physician moves to Ontario from a place where the health care system is significantly different from the health care system in Ontario.

This policy was in effect at the time Dr. Sloka practiced neurology. To the extent that Dr. Bril purported to declare which examinations a neurologist may permissibly perform, she strayed from giving a neurological opinion to providing a regulatory one.

120The Crown relies upon a portion of Dr. Bril’s evidence in which she testified that a neurologist could not simply choose to become a patient’s family doctor. She explained that neurologists are not licenced to practice family medicine and lack the training and experience to do so. When asked whether a neurologist could unilaterally decide to become a family doctor, Dr. Bril testified that neurologists cannot unilaterally make this decision without receiving approval from the CPSO to change the scope of their practice. Approval is not automatic and may require additional training before approval is granted. This position is not contentious. And I do not think it capable of proving that Dr. Sloka violated the CPSO’s scope of practice policies. Dr. Sloka never purported to change his scope of practice. He never purported to become a patient’s family physician, or endocrinologist, or gynecologist, or oncologist. Instead, he purported to conduct the impugned examinations in service of his neurological role or, sometimes, incidentally to his role as his patient’s neurologist. He purported to have the training, experience, and competence to do so. The Crown called no evidence capable of refuting Dr. Sloka’s claims regarding his training, experience, and competence. Instead, they called an expert who had no knowledge of those things. The evidence before me does not satisfy me that Dr. Sloka contravened CPSO policy when doing so. Accordingly, an inference of a sexual purpose does not arise.

121In support of her opinion about the appropriate scope of any neurologist’s practice, Dr. Bril testified that neurologists are not trained to perform breast examinations or pelvic examinations. At times, she also asserted that neurologists lack the skill to competently perform skin examinations – though again, her evidence on this subject was inconsistent. Implicitly, at least, Dr. Bril asserted that Dr. Sloka lacked the training, experience, and competence to perform breast, pelvic, and skin examinations. Similarly, she suggested that neurologists – and, by extension, Dr. Sloka – lack sufficient proficiency to obtain meaningful information from cardiac examinations. She made these generalizations without any knowledge of or concern for Dr. Sloka’s actual training, experience, or competence. Importantly, Dr. Bril testified that she possessed minimal training and experience in the conduct of breast and pelvic examinations. She also testified that her skills in conducting cardiac examinations had significantly diminished because she had not, in her specialized practice, conducted cardiac examinations for many years. Also, compared to Dr. Sloka’s training and education, she does not appear to have received as much training and education in the field of cardiology and the conduct of cardiac examinations as Dr. Sloka. Dr. Bril acknowledged that the training and experience of neurologists can vary. Dr. Bril also acknowledged that she possessed no knowledge of Dr. Sloka’s training, medical knowledge, experience, or clinical skills. Similarly, she did not profess to know whether Dr. Sloka had maintained his clinical skills. Despite the CPSO’s scope of practice policy, Dr. Bril considered Dr. Sloka’s training, experience, and competence to be essentially irrelevant. It did not matter to her that he may have previously held a general practitioner’s licence in Newfoundland, nor did it matter that he may have previously worked as an ER physician or urgent care physician (which requires a general practice licence). It did not matter to her whether he had maintained his skills, including ones she may never have acquired. She was unconcerned with his training, experience, and competence. Instead, she noted that he was only licenced in Ontario to practice neurology. Her rigid stance did not allow for a neurologist to perform a non-neurological examination even if that neurologist was perfectly competent by training and experience to perform one. When taking this normative stance, she appeared to conflate her personal opinion about the proper scope of the practice of neurology with an opinion about what the profession would tolerate:

THE COURT: I want to try and summarize that in a concise fashion. Regardless of whether he has the previous training and expertise to perform an exam that meets the standards of practice for that particular exam, as I understand it you take the position that he should nevertheless confine himself to the practical work of a neurologist.

A. Well, that’s what I think. But I was….

122In my view, there is a great distinction between opining about what ought to be and what is permitted by the medical profession. Unfortunately, Dr. Bril has left me wondering which of the two opinions she was really offering. Dr. Sloka did not need Dr. Bril’s approval to conduct his practice in the manner he conducted it; he needed the approval of his regulator. Ultimately, I am not satisfied that Dr. Bril’s evidence establishes that Dr. Sloka’s alleged excursions outside the field of neurology violated the CPSO policies which governed the scope of his practice. Also, Dr. Bril’s evidence was incapable of and unconcerned with establishing whether Dr. Sloka actually possessed the training, experience, and clinical competence to perform any of the examinations in question.

123Now I consider the community context in which Dr. Sloka practiced and the apparent tolerance of his local community for some of the lane departures disparaged by Dr. Bril. Over and over again, Dr. Bril testified that Dr. Sloka strayed from his neurological lane, not just in some of the examinations he performed but also in some of the conditions he managed, the tests he ordered, and the medications he prescribed. While I appreciate that Dr. Sloka did not report some of the allegedly unwarranted examinations, he sometimes did. He also openly reported other alleged lane departures to referring physicians. Sometimes, as in the case of the management of pituitary adenoma patients, he formed part of a circle of care with other specialists and, in doing so, contributed to a patients care in a manner that openly departed from what Dr. Bril considered his appropriate neurological lane (she thought the monitoring of pituitary hormone levels was better left to the endocrinologist, for example). Here I must keep in mind the vastly different contexts in which Dr. Bril and Dr. Sloka practiced. Dr. Bril practiced in the largest city in the country. She spent her entire clinical career working in one of the largest hospitals in the country. And, for the most part, she practiced in a very specialized clinical setting. Dr. Sloka was trained in Newfoundland. At times, he practiced alone in a very small community there and was called upon to provide a broad range of medical services. The Region of Waterloo is a relatively small region when compared to Metropolitan Toronto. The medical community in Waterloo Region is relatively small compared to Toronto. Like all neurologists, his was a referral-based business. When operating that business, he routinely and openly declared a broader approach to the practice of neurology than Dr. Bril considered tolerable. Despite this, Dr. Sloka was not a pariah. He operated a very busy neurological clinic, where the wait times grew during his tenure due to increased local demand for his services. He was not the only option for local referrals, but he was clearly a popular one. Indeed, he began to decline referrals from community-based doctors to accommodate the referrals he was receiving from several ER departments in and near the region. I infer that the local medical community did not take the same categorical stance about the proper scope of neurology as did Dr. Bril; or, at the very least, I infer that the local medical community tolerated the lane violations alleged by Dr. Bril.³ This reality stands as a counterpoint to Dr. Bril’s normative stance. And it undermines the ability of Dr. Bril’s evidence to prove that Dr. Sloka knowingly exceeded the permissible grounds of neurology and that he did so for a sexual purpose.

124I now come to the next factor that causes me concern about the reliability of Dr. Bril’s stance on the permissible scope of a neurological practice, her reliance upon inadequate anecdotal evidence as a foundation for her opinion about what neurologists do and do not do. In my view, Dr. Bril improperly relied upon anecdotal evidence when opining on the obsolescence of cardiac examinations in neurology and the prescription of birth control medications by neurologists. I will address her evidence regarding cardiac examinations first.

125Dr. Bril testified that neurologists no longer routinely listen to the heart. In-chief, she testified that, since about 2000, cardiac examinations had not been much of a priority amongst neurologists. She testified that the primary neurological purpose behind listening to the heart would be to look for evidence of stroke or a cardiac explanation for a fainting (loss of consciousness) spell. Specifically, listening to the heart could reveal sounds of structural problems that give rise to stroke risk (murmurs, for example) and arrythmia (which can affect blood flow to the brain). With the rise of echocardiograms, the need to listen to the heart had decreased. According to Dr. Bril, even when a neurologist chooses to listen to the heart, that neurologist is likely to also order an echocardiogram, because an echocardiogram is far more precise than auscultation. Given the specialized nature of her practice, Dr. Bril stopped conducting cardiac examinations after the first ten years of her practice.

126In cross-examination, Dr. Bril revealed that, before preparing to testify, she still thought neurologists routinely listened to the heart. Her opinion changed after speaking to two colleagues at the UHN, the neurologist in the stroke clinic and a neurology resident. When she asked the head of the stroke clinic whether neurologists still listened to the heart, she “received the surprising answer that they stopped in the early 2000’s because the echocardiogram came along.” Neurologists can get more information from an echocardiogram than from auscultation. She made a similar inquiry of a neurology resident (yes, a teacher was asking a student) who told her that she had “put her stethoscope away in a drawer three years ago.” Based upon the anecdotal input of one neurologist and one resident from a large hospital in the largest city in Canada, Dr. Bril changed her opinion about the prevalence of cardiac examinations in the practice of neurology across the entire profession. In my view, Dr. Bril relied upon a woefully inadequate amount of anecdotal information from a vary narrow source to effectively reverse her previous opinion about the conduct of one type of examination in the field of neurology. Her blasé reliance upon these perfunctory inquiries causes me to have serious concern about the reliability of her claims about the practices of those in her discipline. I am astonished that someone whose profession is informed by science, and the scientific method would reverse her opinion on the basis of such limited inquiries. Her investigation was the antithesis of any semblance of a rigorous poll of members of her profession or a rigorous review of texts or peer-reviewed literature about the recent use of cardiac examinations in the practice of neurology.

127Dr. Bril’s willingness to rely upon insufficient anecdotal information can also be found in her evidence about the propriety of neurologists prescribing birth control pills, which in turn informed her opinion about neurologists performing breast examinations in relation to those prescriptions. When disparaging Dr. Sloka’s decision to conduct a breast examination in furtherance of prescribing birth control medication, Dr. Bril stated: “And most neurologists would leave prescribing - all neurologists that I know of - would leave prescribing of the particular medication to prevent pregnancy to the family physician.” Here, Dr. Bril clearly conceded that at least some neurologists do in fact prescribe birth control medicine. If “most” do not, then, implicitly, some do. She interrupted this concession to add that “all neurologists I know of” would leave the task to the family doctor. The defence objects to this piece of evidence.

128To support the objection, the defence cites the majority judgment in R. v. Sekhon, 2014 SCC 15. Sekhon was charged with drug importation after border agents found 50kg of cocaine in a hidden compartment in the bed of a pickup truck he drove across the border from Washington State to British Columbia. The truck did not belong to Mr. Sekhon. Knowledge of the contents of the secret compartment was a live issue. To support the inference of Mr. Sekhon’s knowledge, the crown called a police officer as an expert witness to testify about the customs and practices of the drug trade. This evidence was relied upon by the trial judge to reject Mr. Sekhon’s claim that he drove the truck back across the border for a friend, who had consumed too much alcohol and taken a cab home from the bar the previous night. Like Dr. Bril, the police officer’s experience was impressive: he had been a police officer for 33 years and had been involved in approximately 1,000 cases involving the importation of cocaine. His qualifications as an expert witness were admitted. He valued the amount of cocaine found in the pickup truck to be worth between $1,500,000 and $1,750,000 at the wholesale level. He explained that the recruitment of a drug courier takes time and that an organization will not typically entrust a first-time courier with a large shipment. Additionally, the police officer testified that in the approximately 1000 cases in which he had been involved, he had never personally encountered a blind courier. In all the officer’s previous cases, the couriers had the requisite knowledge. The desired inference was obvious: those other couriers knew, so Mr. Sekhon knew what was in his truck.

129The majority in Sekhon concluded that the officer provided inadmissible anecdotal evidence when testifying about the state of knowledge of the couriers arrested during officer’s previous investigations. The majority concluded that, “The impugned testimony, though perhaps logically relevant, was not legally relevant because the guilt or innocence of accused persons that Sgt. Arsenault had encountered in the past is legally irrelevant to the guilt or innocence of Mr. Sekhon (see Mohan, at pp. 20-21).” In doing so, at paragraph 50, the majority quoted with approval the dissenting judgement of Newbury J.A. from the British Columbia Court of appeal, 2012 BCCA 512 at para 27:

Anecdotal evidence of this kind is just that - anecdotal. It does not speak to the particular facts before the Court but has the superficial attractiveness of seeming to show that the probabilities are very much in the Crown's favour, and of coming from the mouth of an "expert". If it can be said to be relevant to the case of a particular accused, it is also highly prejudicial. [para. 27]

130The defence contends that Dr. Bril’s evidence is akin to the Sehkon police expert’s evidence about the use of blind couriers by criminal organizations. The Crown makes scant submissions in reply. With respect to Dr. Bril’s reliance upon a conversation with her stroke department colleague when changing her opinion about cardiac examinations in neurology, the Crown contends that the defence submission “makes no sense,” adding, “When faced with new and changing practices in neurology, Dr. Bril should change her opinion. She was transparent in her testimony about the reason for the change.”

131The distinction between impermissible anecdotal evidence and admissible opinion evidence was discussed in The Law of Evidence, Eight Edition (2020), by David M. Paciocco, Lee Stuesser, and Palma Paciocco. At page 276 of that text, the authors state:

It is not appropriate for expert witnesses to base their opinions on “anecdotal evidence,” but it is permissible for them to base their expert opinions on general principles appropriate to their discipline that are grounded in whole or in part on personal observation.

132In their assessment of Sekhon, the authors of The Law of Evidence state that the expert’s evidence constituted inadmissible anecdotal evidence because, “[the] expert did not purport to draw any generalizable principles from his experience that could be used to draw an inference about what Sekhon knew. He simply purported to base his conclusions about Sekhon’s knowledge on the knowledge of other independent actors.”

133Examples of experts providing permissible “opinions on general principles appropriate to their discipline that are grounded in whole or in part on personal observation” can be found in R. v. Dominic, 2016 ABCA 114 (the general buying habits of cocaine users); and R. v. J.R., 2018 ONCA 615 (generalizations about injury and behavioural patterns of victims of self-inflicted trauma, as seen in the practice of ER medicine).

134In my view, the line that divides impermissible reliance upon anecdote and permissible generalizations based upon anecdotal evidence can sometimes be a blurry one. Arguably, Dr. Bril’s evidence can be construed as an unartfully expressed generalization about the practice of prescribing birth control in the neurological profession. Accordingly, I am prepared to admit the evidence. However, I afford it almost no weight.

135Regardless of its admissibility, Dr. Bril’s reliance upon an undefined data set (“all the neurologists I know of”) raises concern. How many neurologists are we talking about? What kind of neurology do they practice? Are they clinical neurologists or academics? Where do they practice? Whatever the size and composition of this ill-defined data set, Dr. Bril also implicitly conceded that at least some neurologists do prescribe birth control. Then she caught herself, pivoted, and stated that at least “all neurologists that I know of” do not prescribe birth control. It seems here that Dr. Bril strayed into advocacy. I afford no weight to Dr. Bril’s evidence regarding the practice of prescribing birth control pills by neurologists. This conclusion undermines the weight to be given to Dr. Bril’s evidence concerning the propriety of a neurologist performing a breast examination in furtherance of prescribing birth control.

136Dr. Bril’s reliance upon apparently insufficient anecdotal evidence can also be found in her evidence about the prevalence of neurofibromatosis amongst epilepsy patients, the manner in which neurologists conduct physical examinations for stroke patients, breast examinations in neurofibromatosis patients, and the manner in which skin examinations were conducted for neurofibromatosis patients:

So, you know you read complaint after complaint and you begin to wonder what's going on, so I did speak to a stroke colleague about the current physical exam, about physical exam manoeuvres for stroke patients and when they changed. And I spoke to – or a couple of epilepsy specialists to try to find out if someone in their experience and they have a tertiary epilepsy clinic, when they had patients with epilepsy coming how many turned out to have NF1 which you know they just didn't see. And I spoke to other colleagues in the neurofibromatosis clinic to ask about their considerations about breast exams and about how they did examinations of the skin or lesions just to see if their experience concurred with mine.

Reliance upon these anecdotal discussions is not per se improper. Experts can rely upon hearsay information to help inform their opinion. However, over-reliance upon a very limited subset of anecdotal evidence raises concern about the reliability of opinions that consequently ensue.

137Dr. Bril’s categorical pronouncements about the propriety of neurologists conducting certain examinations are also undermined by her own violation of her rigid standards. Specifically, Dr. Bril acknowledged having previously done a breast examination, despite her claim that neurologists do not do breast examinations. Now, to be clear, my concern does not lie solely with the fact that Dr. Bril violated her own categorical prohibition. My concern also arises from the unequivocal way in which she declared that prohibition.

138Tethered to her claim that neurologists do not perform breast examinations was her claim that neurologists are not trained to do them. Dr. Bril acknowledged receiving extremely limited training about breast examinations in medical school and as an intern. She received no training on them during her neurological residency. She declared that neurologists do not receive training on how to perform breast examinations.⁴ She testified that she was not qualified to perform breast examinations. She acknowledged that breast examinations were outside her expertise, and she could not describe how to properly conduct one.

139Initially, Dr. Bril left no room for the prospect of any possibility that a neurologist might perform a breast examination. When asked about the need for a chaperone when conducting a sensitive examination, Dr. Bril’s answer included the claim, “Neurologists don’t do breast exams, so – and they don’t do vaginals. So, we would not need a chaperone for those exams that we don’t do.” Subsequently, she was asked about the standard of practice regarding chaperones in a hypothetical situation where it was medically reasonable for a neurologist to be doing a breast examination. She replied, “We – we don’t do breast exams so it’s hard to say there should be a chaperone.” In saying this, she clearly implied she could not answer because she could not conceive of the situation ever arising. Dr. Bril made similar claims in cross-examination. She made these fervent assertions despite knowing that she had once done a breast examination. Her willingness to withhold a known violation of a fervently declared rule undermines the credibility and reliability of that fervent declaration. The Crown argues that Dr. Bril’s omission was harmless because she had disclosed this breast examination to investigators in preparation for trial. That submission misses the point. Until confronted in cross-examination, Dr. Bril knowingly left the court with the false impression that a breast examination by a neurologist was inconceivable. Her willingness to do so harms her credibility and reliability on the questions of what examinations neurologist do and do not do. Dr. Bril’s acknowledgement that she performed a non-neurological examination for a medical purpose also weakens any contention that departures by neurologists from their neurological lane will necessarily lead to an inference of a sexual purpose.

140Dr. Bril’s varying evidence on the appropriateness of neurologists performing skin examinations also raises concern about the reliability of the categorical stances she took regarding breast and pelvic examinations.

141Dr. Bril was originally retained by Dr. Sloka to provide an opinion to the CPSO regarding the propriety of conducting skin examinations to investigate for a suspected neurocutaneous syndrome. She provided a report for that purpose, which was entered as Exhibit 215. Dr. Bril stood by the opinions she expressed in that report, which included the following:

The clinical diagnosis requires two of six criteria. Those criteria include: six or more cafe-au-lait patches that are greater than 0.5 cm in children and 1.5 cm in adults. The age of adulthood is generally taken to be age 18. In addition to the cafe-au-lait patches, another criterion is the presence of freckling in the axillae (the armpits) or groins. There is a total of 8 criteria as shown in the attached table.

In order to determine the presence of cafe-au-lait spots, it is necessary to observe the skin, determine the size of existing spots and whether there are more unsuspected spots as 6 are required to fulfill the criterion. In addition, it is important to check the armpits (axillae) and the inguinal areas for freckling of the skin which is also a feature of NF1. It is a typical examination in the context of assessing a patient for NFl to examine the full skin surface. lt is not possible to examine the skin properly without exposing the-skin including the axillary areas and inguinal regions.

142In my view, Dr. Bril clearly conveyed in her report that skin examinations were part of neurology and that neurologists perform skin examinations of both children and adults to look for evidence of neurofibromatosis. The report also conceived of the possibility that a patient may possess previously “unsuspected spots” – that is, spots of which the patient was previously unaware – in addition to known “existing” spots. In other words, in her report, Dr. Bril conceived of the possibility that an adult may have reached adulthood without being diagnosed with neurofibromatosis and without having identified all stigmata of neurocutaneous disease. As a result, a skin examination may be warranted to investigate the possibility that an adult has neurofibromatosis. I do not know how else that report can reasonably be construed.

143Dr. Bril’s evidence at trial shifted from the position she took in the report she wrote on behalf of Dr. Sloka. It was also internally inconsistent. When speaking generally, she acknowledged that skin examinations were part of neurology. However, she contended that neurofibromatosis is typically diagnosed in childhood. If the patient was unaware of whether she possessed stigmata of neurocutaneous disease, it would not be the standard of care to look for these things; rather, the standard of practice would be to order imaging to look for growths that may explain the presenting complaint. She also discounted the possibility that a female patient might not be aware of all possible stigmata, declaring that women are aware of their bodies. Additionally, when giving evidence about some patients, Dr. Bril categorically stated that neurologists do not do skin examinations and, if ever considering one, ought to refer them to a family doctor or dermatologist. For example, when testifying about J.D., Dr. Bril testified that, “We don't do skin exams and especially – well, we just don't do them. This is in neurology clinics I'm talking about. And – and epilepsy clinics.” Later, she added, “A neurologist should not have offered her the skin exam. In those circumstances [where a neurologist suspects the possibility of neurocutaneous disease, and the patient is unaware of whether they have any stigmata of neurocutaneous disease] he might suggest she return to her family physician - … to check.” Soon thereafter, she became more categorical: “But if not, if – if she's concerned now because he's raised the possibility, he should ask her to get checked by her family physician. Neurologists don't do skin exams.” She made similar categorical declarations about skin examinations when giving evidence about other patients, for example, during her evidence about J.H. In my view, Dr. Bril’s repeated testimonial declarations that neurologists do not do skin examinations contradicts her other testimony that skin examinations are part of neurology. These declarations also patently contradict the report she previously provided to the CPSO at the behest of Dr. Sloka. I am deeply concerned that her position on this topic varied in accordance with the interests of the party that retained her. The inconsistency in her evidence causes me to conclude I cannot trust her categorical assertions about the conduct in which neurologists can appropriately engage, including her evidence about whether neurologists conduct breast, vaginal, cardiac, and skin examinations.

144Incidents of what I will characterize as isolated incidents of situational bias also undermine Dr. Bril’s evidence concerning the proper scope of neurology, including the propriety of neurologists conducting breast, pelvic, and skin examinations. I have mentioned one already: Dr. Bril’s shifting position on neurologists conducting skin examinations. The defence points to several other incidents in support of their request that I exclude the entirety of Dr. Bril’s evidence. I have decided to decline the request to exclude Dr. Bril’s evidence. I do not think the evidence supports the conclusion that she was consumed by a pervasive bias. Instead, she appears to have periodically failed to maintain objectivity despite her best intentions. I will not rely upon those lapses as support for any inferences favourable to the Crown, but I will rely upon them in my assessment of Dr. Bril’s general credibility and reliability, including during my assessment of her categorical claims about medical practices a neurologist ought to refrain from conducting, including breast examinations, pelvic examinations, rectal, and skin examinations. These alleged lapses of objectivity will be discussed during the assessment of the defence application to exclude Dr. Bril’s evidence.

145Having regard to the preceding remarks, I am not prepared to place reliance on Dr. Bril’s evidence about the scope of conduct in which a neurologist may partake. I place little to no weight on her evidence that neurologists do not conduct breast, pelvic, rectal, or skin examinations. Similarly, I place little weight on her evidence that a neurologist may not under any circumstances engage in non-neurological investigations arising from otherwise appropriate assessment and treatment of a neurological patient. Her evidence fails to prove the existence of legal or regulatory prohibitions against this conduct when done by a neurologist for a legitimate medical purpose. Her evidence also fails to prove that Dr. Sloka’s conduct was not medically reasonable.

A Standard Neurological Appointment

i. Taking the Patient’s History

146A neurological appointment begins with taking a patient’s history. In doing so, the neurologist takes the history provided by the referring doctor. Then, the neurologist obtains an oral history of the complaint from the patient and perhaps from someone accompanying the patient. A neurologist will ask a lot of detailed questions around the major complaint that are unlikely to have been explored by the referring doctor.

147Dr. Bril testified that a neurologist ought to normally take the patient’s account at face value. However, there are circumstances where the neurologist might question or doubt the patient’s account. For example, in cases involving a delusional patient, a patient who suffers from dementia, or a seizure patient who is unaware of what transpired during a loss of consciousness.

148After taking an oral history of the medical complaint, the neurologist inquires about previous medical history. For example, the neurologist may inquire about any history of diabetes or hypertension that may relate to the current complaint.

149A neurologist will also inquire about the patient’s medication history.

150Next, a neurologist inquires about any family history of relevant illnesses.

151A neurologist also takes a social history, asking questions about the patient’s occupation, smoking habits, drinking habits, and marital status, amongst other things.

152A neurologist also conducts a review of “constitutional” symptoms, including things like weight changes and fevers. Here, the neurologist is inquiring about other as yet undiagnosed illnesses. At this stage, Dr. Bril conceded it might be appropriate for a physician to inquire about seizure risk factors, including the presence of stigmata of neurocutaneous disease.

ii. The Standard Neurological Examination

153After obtaining the relevant patient history, a neurologist next conducts a physical examination, which includes a full neurological examination. It is important to ensure that the patient consents to the examination.

154The physical examination begins with an assessment of the patient’s mental status and speech, though this assessment may be conducted when obtaining the patient’s history. Then the neurologist begins the neurological examination.

155The neurological examination involves and assessment of the patient’s cranial nerves, motor and muscle systems, sensation, and gait.

156A cranial nerve assessment involves testing sensation to pain and light touch on the face. While she did not mention it during her overview of a standard neurological examination, Dr. Bril testified elsewhere that conduct of a fundoscopy was also standard. A fundoscopy involves a neurologist looking in the patient’s eyes, which permits examination of the optic nerve. She also acknowledged elsewhere that a visual fields examination might be a component of a standard neurological examination.

157In the examination of a patient’s motor and muscle systems, the neurologist looks at muscle reflexes, tone, bulk, atrophy, and for any fasciculations (twitching). Here, the neurologist isolates specific muscle groups and tests their respective power and coordination. Isolating the specific muscle groups is vital to a proper assessment of the motor system.

158Next, the neurologist assesses the patient’s sensation. Here, the neurologist uses light touch, pinprick, temperature, proprioception (or sense of position) and vibration. When testing a patient’s sensitivity to light touch, either during the cranial nerve examination or during the sensation examination, a neurologist should use a cotton whisp or a tissue, not a finger. A finger may apply too much pressure and will stimulate the wrong nerves. Dr. Bril acknowledged that it was not uncommon for neurologists to fall below the standard of practice and do sensory testing with their fingers. Dr. Sloka was one such neurologist.

159The standard neurologist examination takes about five to ten minutes.

160Dr. Bril took no issue with standard neurological examination components employed by Dr. Sloka for his standard neurological examination. However, as will be discussed later, she did take issue with the manner of the leg strength examinations described by a small number of Dr. Sloka’s patients. For his part, Dr. Sloka did not agree he conducted the leg strength examinations in the manner they described.

iii. Draping for a Standard Neurological Examination

161It is standard practice to ask patients to remove their clothing, with the exception of their underwear, and put on a hospital gown for a standard neurological examination. Dr. Bril had no expertise regarding draping practises for non-neurological examinations.

162Draping a patient in this fashion facilitates examination of motor and muscle systems, as well as sensation. It allows visual inspection of the muscles and optimizes reflex testing. It also allows the limbs to be exposed during sensory testing.

163Proper draping ensures that areas of the body that are not being examined remain covered, thereby preserving the patient’s privacy. Although there is no standard way to drape, it is essential to maintain sufficient coverage, particularly of sensitive areas of the body (including breasts, buttocks, genitalia), that are not under examination.

164A physician should explain the manner in which the patient should wear the gown and the reason for wearing it.

165A physician should always leave the room to allow the patient to disrobe and put on the gown.

166The Crown relies upon Dr. Bril’s evidence to support the contention that a neurological ought never to expose a patient’s entire torso. At one juncture in her evidence, she stated that a neurologist ought never to have a patient exposed from the waist up. However, after a careful review of the transcript of Dr. Bril’s evidence on this topic, I find it to be of little utility. I note, for example, she agreed that a patient’s entire chest could be exposed to look for chest rashes reported by the patient. Dr. Bril was also not asked to provide a breakdown of the appropriate methodology to be employed during a full-body search for stigmata of NF1. The Crown approached the topic more generally, thus limiting the utility of Dr. Bril’s answers. A more thorough discussion of this issue can be found in the segment of the judgement devoted to a general review of Dr. Sloka’s evidence, specifically in the section devoted to his skin examination methodology (“Dr. Sloka’s Methodology”).

iv. Differential Diagnosis

167A provisional diagnosis is the diagnosis that a physician believes is the most likely explanation for a patient’s symptoms. A differential diagnosis is a list of other conditions that may also explain those symptoms. Dr. Bril testified that a physician may consider conditions on the differential diagnosis, but it is very rare to explore every potential diagnosis on the differential.

168Dr. Bril took a much narrower approach to diagnosing a patient than Dr. Sloka and frequently criticized Dr. Sloka’s consideration of other potential diagnoses on the differential. As a result, she frequently criticized Dr. Sloka for unreasonably ordering tests to investigate differential diagnoses, like blood tests, for example.

169One such critique arose in Dr. Bril’s evidence regarding J.C. During her review of Dr. Sloka’s chart, Dr. Bril testified that optic neuritis was the likely diagnosis and that there was not really a large list of other differential diagnoses. She considered the conditions on the differential to be “extremely unlikely” and did not consider it reasonable to investigate them. Dr. Sloka, on the other hand, ordered blood work, which included a test for Bartonella (cat scratch disease). As it happens, Ms. J.C. tested positive for Bartonella. Upon receiving the results, Dr. Sloka sent Ms. J.C. an email to explain the results and her treatment options, which included an immediate course of antibiotics. Ms. J.C. had moved out of the province, so Dr. Sloka suggested she see a local doctor to obtain treatment. In my view, the blood testing of Ms. J.C. ordered by Dr. Sloka was not probative of the sexual nature of any examination performed on her, but it was highly probative his broad, thorough, and conscientious approach to the treatment of is patients, which some patients testified they greatly appreciated.

170Ms. J.C.’s case stands as rebuke of Dr. Bril’s narrow approach.

171Similarly, there exist examples in this trial record where other neurologists took a more expansive approach to the diagnosis of patients than did Dr. Bril. For example, in the case of K.S.-B., Dr. Bril believed MS to be the diagnosis, despite the fact that not all of the accepted clinical criteria for a diagnosis had been met. She of course, had the benefit of hindsight, while Dr. Sloka did not (the patient was diagnosed with MS much later). She criticized Dr. Sloka for ordering bloodwork to investigate for possible mimics of MS. Dr. Sloka had sent Ms. K.S.-B. to Dr. Mandalfino for a second opinion. Like Dr. Sloka, Dr. Mandalfino did not believe the criterion for MS had been satisfied. She ordered a further MRI of Ms. K.S.-B.’s brain. She also ordered bloodwork, which Dr. Bril acknowledged would be relevant to the investigation of mimics. Specifically, Dr. Mandalfino ordered bloodwork to test for lupus, Lyme disease, bone disease, B12 deficiency, and thyroid disease. Dr. Bril disagreed with this approach. Similarly, in her evidence regarding J.C., Dr. Bril critiqued an American neurologist, Dr. Vincent, for performing what she considered to be unnecessary cardiac and respiratory examinations on Ms. J.C., examinations which Dr. Sloka had also performed. Like Dr. Sloka, Dr. Vincent apparently thought more broadly than Dr. Bril. As will be discussed in the assessment of the counts involving Ms. K.S.-B. and Ms. J.C., Dr. Bril’s attempts to discount the approaches by Dr. Mandalfino and Dr. Vincent reflected poorly on her partiality, credibility, and reliability as a witness,

172Elsewhere in her evidence, Dr. Bril testified that reasonable neurologists may disagree. Unfortunately, she appeared reluctant to characterize disagreements as reasonable.

v. Consent and Documenting Consent for Patient Examinations

173Dr. Bril drew a distinction between standard neurological examinations and sensitive examinations (pelvic, breast, and skin examinations, for example).

174For a standard neurological examination, a neurologist must advise the patient of the intent to perform the examination and seek the patient’s consent. Written consent is not required. If the patient does not object, consent may be inferred. If the patient asks questions or objects, the neurologist ought to explain further. If the patient maintains their objection to the examination, the neurologist must cease the examination. If the patient consents, the neurologist must continue to seek consent with each step of the examination as it unfolds. Unlike sensitive examinations, the neurologist need not document the presence of a patient’s consent for a standard neurological examination. However, if a patient declines consent, the neurologist must document this in the consultation letter.

175Dr. Bril testified that the standard of practice for sensitive examinations is higher than the standard for neurological examinations. For these examinations, the neurologist must obtain the patient’s explicit consent. To obtain consent, the neurologist must explain the proposed examination, the reason it is being proposed, and why the examination is important. The neurologist must also document these things in the consultation letter. However, the patient’s written consent is not required. Again, if a patient declines consent, this must be documented in the consultation letter.

176Interestingly, Dr. Sloka’s medical charts reveal the performance of sensitive examinations by other physicians who did not exhaustively chart the patient’s consent in the manner mandated by Dr. Bril. For example, J.K. saw an ER doctor in Oakville who conducted a rectal examination to assess rectal tone. The ER doctor did not chart any consent discussions. There are also numerous cardiac examinations charted by other doctors for patients in this trial. While doctors may not universally expose the left breast for cardiac examinations, I think it reasonable to infer a likelihood that at least some did. I did not find documentation of any consent discussions for cardiac examinations. Similarly, Dr. Frank, a gynecologist, charted a pelvic examination for Ms. I.R. Dr. Frank did not chart any consent discussions. The Crown argues that the standard of practice in the context of a gynecological appointment differs from that of a neurological appointment. There is no evidentiary foundation for that contention.

177Indeed, the CPSO’s policy regarding consent to medical treatment are contained in Exhibit 214. Surely, the consent to medical treatment policy pertains to examinations conducted in furtherance of that treatment – indeed, the filed CPSO’s policies contain no separate document devoted to consent for medical examinations. Two policies were filed, reflecting two separate periods of time germane to this case. Policy #4-05 was in effect from 2006 to 2015. Policy #3-05 was in effect from 2015 until the CPSO revoked Dr. Sloka’s licence on April 30, 2019. The CPSO did not dictate a unique set of standards for neurologists – the standards applied to the medical profession at large. Except in certain exigent circumstances that are not germane to this case, the CPSO recommended but did not mandate the documentation of a patient’s consent.

178Policy #4-05 states [at page 91 of Exhibit 214]:

Evidence of Consent

Although the Act states that consent to treatment may be express or implied, physicians are strongly advised to obtain express consent from the patient.

Physicians should be aware that the critical element of the consent process is the information given to the patient by the physician. Signed consent forms are simply documentary confirmation that the consent process has been followed, and the patient has agreed to the proposed treatment. Physicians are advised to note in the patient’s record that consent has been obtained by noting what went into the decision‑making process. Likewise, physicians should note in the patient’s medical record if the patient has refused consent and the discussion that took place.

179Policy #3-15 states [at page 103 of Exhibit 214]:

When and What to Document

A legible, understandable, and contemporaneous note in the patient’s record regarding consent to treatment is the best evidence a physician has to demonstrate that the requirements of the HCCA have been satisfied. When a treatment is likely to be more than mildly painful, carries appreciable risk, will result in ablation of a bodily function, is a surgical procedure or an invasive investigative procedure, or will lead to significant changes in consciousness, the importance of documentation increases. As such, in these circumstances, the College requires physicians to document in the patient’s record information regarding consent to treatment.

In all other circumstances the College recommends that physicians always document in the patient’s record information regarding consent to treatment.

Physicians must use their professional judgment to determine what information to document in the patient’s record, taking into consideration the specific circumstances of the case. However, the College recommends that the following be included: the date of the dialogue; who was involved in the dialogue; the specific material risks that were communicated; any unique material risks related to the specific circumstances of the patient that were communicated; the risks of not treating the condition that were communicated; whether consent was given or refused and by whom; and the date that consent was given or refused. Physicians are also advised to document findings of incapacity and the identity of the substitute decision-maker [emphasis added].

180As can be seen, Dr. Bril purported to dictate a standard of practice not mandated by her regulatory body and not followed by several other physicians who treated clients of Dr. Sloka’s. Also, as will be discussed below, the CPSO’s policy on the contents of consultation reports does not contain any mandate regarding the documentation of consent discussions for sensitive examinations.

181Accordingly, I place little weight on her evidence on this issue.

Note taking

182Dr. Bril testified about the record keeping obligations of neurologists. In doing so, she was frequently critical of Dr. Sloka for failing to document in his consultation letters the conduct of examinations which produced negative results. She was also critical of Dr. Sloka for failing to incorporate all content from his rough notes into his consultation letters. The Crown relies upon Dr. Bril’s critiques to invite the court to draw the inference that Dr. Sloka was hiding information from the referring physician. From that inference, the Crown invites the inference that Dr. Sloka possessed a sexual purpose when concealing certain examinations. For the reasons that follow, I place little weight on Dr. Bril’s evidence regarding the note taking obligations of neurologists.

183Dr. Bril testified that neurologists are required to keep contemporaneous medical records regarding their patients, including creating and retaining consultation letters which document their patient encounters, including original visits and follow-up visits. A copy of the consultation letter must be sent back to the referring physician. The neurologist must also retain copies of the results of any tests ordered. The neurologist must also retain copies of any communication with other physicians. These general propositions find support in the CPSO policies.

184Dr. Bril also testified that the consultation letter for an initial visit must include the reason for the referral, the date the patient was seen, the relevant patient history, the neurological examination, the results of any other examinations, a summary of any tests that were done, and the results of those tests if available. The final paragraph should summarize the neurologist’s impression (including the provisional diagnosis and any relevant differential diagnoses), any plans for future tests, recommended treatments, and plans for any follow-up appointments.

185Dr. Bril testified that a neurologist may also make rough notes during a patient encounter, to be used as a memory aid when dictating or writing the consultation letter. While neurologists are not obliged to make rough notes, the neurologist must incorporate all the information from the rough notes in the consultation letter, no matter how trivial any notation may be. According to Dr. Bril, a neurologist has discretion about what to jot down, but once pen is put to paper, the notation must be incorporated in the consultation letter. Dr. Bril brooked no deviation from this iron-clad principle. This draconian approach is unreasonably absurd and would mandate the communication of distracting and irrelevant information to the referring physician. Dr. Bril’s stance also finds no support in the CPSO regulations concerning note taking. The policies, which can be found in Exhibit 214, say nothing about the inclusion of all information from rough notes in consultation letters. Indeed, the policies say nothing at all about rough notes. Succinctly put, the policies suggest that the physician consider including relevant information. It is obvious from the language of the policies that they contemplate physicians using their discretion. While Dr. Bril may have had other ideas, Dr. Sloka was bound by and entitled to rely upon CPSO policy, not Dr. Bril’s opinion. I assign no weight to Dr. Bril’s opinion that a neurologist should transfer every scrap of information in the rough notes into the consultation letter.

186As for examination results, Dr. Bril took the position that all positive and negative findings must be documented. As a result, Dr. Bril frequently critiqued Dr. Sloka for failing to document the negative results of various examinations, including skin examinations and breast examinations.

187As with Dr. Bril’s position on the documentation of consent discussions, her position about the documentation of examination results in consultation letters was more onerous than the written CPSO policy guidelines that governed Dr. Sloka’s practice at the material times in this case.

188Exhibit 214 contained CPSO policy guidelines with respect to record keeping. Dr. Sloka was governed by one set of guidelines at the outset of his practice and a revised set of guidelines commencing in 2012. Policy #5-05 applied from the outset of Dr. Sloka’s practice until 2012. Police #4-12 applied from 2012 until the end of Dr. Sloka’s practice on April 30, 2019. The policies recommended that physicians apply the SOAP format in consultation letters – subjective, objective, assessment, and plan. Physical examinations are documented under the category of objective data.

189The relevant portion of Policy #5-05 (which was in effect until 2012 and can be found at p. 46 of Exhibit 214) suggested that physicians “should consider” documenting the following objective data: relevant vital signs; physician examinations appropriate to the presenting complaint; positive physical findings; and significant negative physical findings as they relate to the problem.

190The relevant portion of Policy #4-12 (in effect from 2012 to the end of Dr. Sloka’s practice and can be found at p. 72 of Exhibit 214) suggested that physicians “should consider” documenting “the measurable elements of the patient encounter and any relevant physical findings from the patient exam or tests previously conducted are documented in this section.” Similar to the previous policy, the revised policy suggested that physicians consider including the following objective data:

(1) physical examination appropriate to the presenting complaint;

(2) positive physical findings;

(3) significant negative physical findings as they relate to the problem;

(4) relevant vital signs; and

(5) review of consultation reports, if available.

191None of the policies operative throughout the duration of Dr. Sloka’s clinical practice required the documentation of all negative findings. CPSO policy clearly envisioned physicians using their discretion when communicating what they considered to be relevant and important information. Dr. Bril’s more draconian opinion regarding note taking practices was not supported by the policies of her regulator. During his time as a neurologist, Dr. Sloka was bound by CPSO policy, not by Dr. Bril’s opinion. I place no weight on Dr. Bril’s assertion that Dr. Sloka was obliged to report all negative findings of all examinations. CPSO policy allowed Dr. Sloka to use his discretion. It was “suggested” that he “consider” reporting “significant” negative physical findings. Dr. Sloka testified that he “tended” not to report negative findings; although, on occasion, he did do so. The evidence never established that Dr. Sloka failed to report what he considered to be a “significant” negative finding. Neither the evidence of Dr. Bril nor the evidence of Dr. Sloka established that Dr. Sloka violated CPSO policy in his note taking practices.

Neurocutaneous Syndromes and Skin Examinations in a Neurological Practice

i. What are Neurocutaneous Syndromes?

192Neurocutaneous syndromes are syndromes that affect both the skin and the nervous system. There are different types of neurocutaneous syndromes, some of which were discussed in this trial. All of them may have skin manifestations. One particular syndrome assumed a prominent place in this trial, neurofibromatosis one (NF1).

ii. Neurofibromatosis One (NF1)

193NF1 is more common than other neurocutaneous diseases. When discussing the frequency of NF1 in the general population, Dr. Bril relied upon the text Neurofibromatosis in Clinical Practice by Rosalie Ferner, Susan Huson, and Gareth Evans. She agreed that the rate of incidence of NF1 in Ontario was likely somewhere between one in 3,000 or 4,000 births. However, Dr. Bril testified that she was not certain that the circumstances of the British data used in the Ferner text would necessarily be the same in Ontario. However, this was the only data available at the time. Dr. Bril was involved an epidemiological study for the Ontario population, that study was still a work in progress when she testified. Based upon the estimated rate of incidence from the Ferner text, Dr. Bril estimated that approximately 3,500 people in Ontario have NF1. Dr. Bril also agreed with the contents of the report she wrote for the CPSO when initially retained by Dr. Sloka. In that report, she wrote that “NF1 is very common.” Also, “One-half of people with NF1 do not have a family history and the disorder is thought to happen due to a spontaneous gene mutation.”

194NF1 can have a variety of physical symptoms, including skin markings (café au lait patches), bony abnormalities, eye abnormalities, and tumors (neurofibromas).

195The symptoms of NF1 can vary from mild to serious. Indeed, it is possible to possess the genetic mutation for NF1 and not possess any physical symptoms. In severe cases, NF1 can cause large tumors, called plexiform neurofibromas, which can put pressure on the brain or other vital organs and lead to an early death.

iii. Diagnosing NF1 – An Overview

196Genetic testing for NF1 did not become widely available through the Hospital for Sick Children until after Dr. Bril wrote her initial report to the CPSO on behalf of Dr. Sloka in June of 2016 [Exhibit 215]. Indeed, genetic testing is not required to arrive at a clinical diagnosis.

197NF1 may be clinically diagnosed based on a set of diagnostic criteria established in 1988 by the National Institutes of Health. A physician can diagnose a patient with NF1 when the patient possesses at least two of the following eight criteria:

(1) A first degree relative with NF1.

(2) Six or more café au lait patches of sufficient size (greater than 0.5 cm in children and greater than 1.5 cm. in adults).

(3) Axillary or groin freckling.

(4) Two or more neurofibromas of any type or one plexiform neurofibroma.

(5) Two or more Lisch nodules [hamartomas (nodules) of the iris].

(6) Optic pathway glioma.

(7) Bony dysplasia of the sphenoid wing.

(8) Or thinning of the long bone cortex with or without pseudoarthrosis of the long bones.

198Dr. Bril agreed that a reliable diagnosis of NF1 can be made by a skilled examiner using these eight criteria. The absence of skin findings (either 6 café au lait spots or freckling in the groin/axillary regions) does not preclude a diagnosis. The presence of one skin finding does not, standing alone, confirm a diagnosis either. At least two criteria must be met, which may or may not include skin findings.

199While the presence of stigmata of neurocutaneous disease are of assistance in diagnosing NF1, they do not themselves raise a health concern. The health risk from NF1 usually arises from neurofibromas, particularly plexiform neurofibromas. Nevertheless, the presence of NF1 skin manifestations may be relied upon to arrive at a clinical diagnosis. Neurofibromas inside the body can be detected using MRIs.

iv. Use of Skin Examinations to Clinically Investigate the Possibility of NF1

200I would now like to spend some time discussing Dr. Bril’s evidence regarding skin examinations in search of the skin manifestations of NF1: café au lait spots and freckling in the axillary and inguinal regions.

201Dr. Bril gave what I consider to be inconsistent and uncompelling evidence regarding the utility of skin examinations as part of the clinical assessment of patients where NF1 is suspected.

202Dr. Bril testified that NF1 is diagnosed in childhood in 99 percent of cases, through the discovery of skin manifestations of the disease. She did not say where this statistic came from, though the Ferner text indicated that café au lait spots develop at birth or in early infancy and in 99% of cases before the age of three. That statistic, though, was not about the age of diagnosis, but rather the age at which café au lait patches develop and can be observed. In any event, given her view about the age of diagnosis, Dr. Bril testified that pediatricians more often deal with NF1 patients. The number of café au lait spots can increase during childhood, but not during adulthood. In giving this evidence, Dr. Bril suggested that it would seldom ever be necessary for a clinical neurological to assess an adult patient for NF1.

203However, at the time she wrote her initial report to the CPSO on June 13, 2016, (Exhibit 215) she clearly implied the search for stigmata of NF1 in adult patients was an accepted and worthwhile endeavour. In doing so, she noted that 50% of patients have no family history, and that the disease is thought to arise from spontaneous gene mutation, thereby implying that half the sufferers would not have a family history to alert them to the possibility that they have the disease. In the context of her discussion of skin examinations, she drew a distinction between the clinical evaluation of children and adults (the café au lait spots need to be larger in adults than children, at least the size of a quarter), unmistakenly implying that skin examinations are performed on adults. Then, she went on to imply that at least some adults will not be aware of some stigmata, by drawing a distinction between existing spots and unsuspected spots:

In order to determine the presence of cafe-au-lait spots, it is necessary to observe the skin, determine the size of existing spots and whether there are more unsuspected spots as 6 are required to fulfill the criterion. In addition, it is important to check the armpits (axillae) and the inguinal areas for freckling of the skin which is also a feature of NF1

Read in its entirety, Dr. Bril’s letter unquestionably implies that neurologists do conduct skin examinations on adults, in part because adults may have “unsuspected” spots. Notably absent was any assertion that there is little or no need to clinically examine adults for NF1, or any assertion that a skin examination was not necessary because patients are aware of the markings on their bodies. Instead, Dr. Bril concluded her letter by stating that, “It [a skin examination] is a typical examination in the context of assessing a patient for NF1 to examine the full skin surface.” She thereby confirmed that clinical examination, including a full body skin examination, was a neurologically reasonable way to investigate the possibility of NF1.

204It is hard to reconcile the position she took in her letter on June 13, 2016, with the position she took at trial about patients’ awareness of the skin markings on their body. At trial, Dr. Bril repeatedly stated neurologist did not need to examine a woman’s body for café au lait marks because women know what markings they possess. At times, she made it clear that this assessment was based upon stereotypical assumptions about women. Additionally, she testified that her assessment was informed by her experience in her specialized neurofibromatosis clinic, which generally treated patients (both men and women) who were already well aware of their neurofibromatosis diagnosis.

205Dr. Bril also testified at one juncture, when explaining her reason for opining that a skin examination was not warranted for A.F., that a majority of the population has at least one maybe two café au lait spots, thereby diminishing the importance of a patient describing a few patches when providing their patient history. She relied upon the Ferner text for this proposition, stating:

[I]n the book, café au lait spots are found at least one and maybe two in the majority of the population. That will come from the … [Ferner] book if you look into that so that having a café au lait spot or two should not bring the possibility of NF1 into your mind. It is not neurologically reasonable to do a skin exam in this patient.

Dr. Bril repeated this claim a second time during cross-examination concerning Ms. A.F. Defence counsel later produced an excerpt from the Ferner text which proved Dr. Bril wrong. The Ferner text indicated that café au lait spots are found in only ten percent of the population. Dr. Bril was forced to acknowledge her earlier error, which she had twice made with disconcerting confidence.

206At trial, Dr. Bril also agreed at one point that if an adult patient attended a neurology clinic with a mass or cutaneous growth that had not been diagnosed in childhood, a neurologist might consider the possibility of neurofibromatosis. In this scenario, it would be appropriate to assess whether patient satisfies two of the eight clinical criteria.

207When asked whether it would be appropriate to examine the skin of a patient who was unaware of whether they possessed skin manifestations of NF1, like inguinal or axillary freckling, Dr. Bril testified, “In the NF clinic [her clinic, that is] we might check. We check. But not a neurologist… [someone like Dr. Sloka].” She did not explain why a neurologist in her clinic could check for skin manifestations of the disease, but a community based neurological like Dr. Sloka could not.

208Elsewhere in her evidence, Dr. Bril conceded if a patient reported one birthmark (café au lait spot), it would be appropriate for the neurologist to inquire about the possibility of others and, if the patient expressed uncertainty, it might be reasonable for the neurologist to do a skin examination, even in a circumstance where neurofibromatosis could not be reasonably suspected (not on the differential). In such a circumstance, any positive finding from a skin examination would be an “incidental finding” and not an explanation of the patient’s symptoms. She made that concession during a discussion of E.J., a case in which Dr. Bril contended that neurofibromatosis was not a reasonable consideration.

209In yet other areas of her evidence, Dr. Bril conceded that patient uncertainty about the presence of additional stigmata of neurocutaneous disease might warrant consideration of a skin examination, but in those circumstances the neurologist ought to refer the patient to their family doctor or a dermatologist. She took the position that the neurologist should not do the skin examination. See, for example, Dr. Bril’s evidence on J.D. and J.H.

210Dr. Bril testified that she considered the likelihood of neurofibromatosis arising in a seizure patient to be vanishingly rare. In coming to the opposite conclusion, Dr. Sloka relied upon the statistics relied upon by Dr. Bril and contained in the Ferner text. In doing so, he selected discrete ratios from a range of possible ratios provided in the text: for NF1 patients, he used a ration of about 1 in 3000 people (the lower end of the range in the Ferner text); for those suffering from both seizures and NF1, he used a ratio of 12 percent. Starting from the premise that a patient with apparent seizures was in fact experiencing seizures, he used these two accepted statistics to conclude that about one out of 125 seizure patients will also have NF1, adding that he was prepared to accept a more cautious estimate of 1 in 250, thus arriving at a range spanning from 1:125 to 1:250. Dr. Bril conceded the Ferner text as being authoritative. She did not dispute the underlying numbers relied upon by Dr. Sloka. Rather than do the math, though, she spoke to some neurologist colleagues who specialized in epilepsy. Those colleagues told her that NF1 was an extremely rare explanation for seizures, arising in less than 1 in 100 cases. Leaving aside Dr. Bril’s questionable reliance upon anecdotal input from an undefined number of epilepsy neurologists, she actually arrived at a similar rate of incidence to that arrived at by Dr. Sloka. However, she characterized that similar rate of incidence differently than Dr. Sloka. Dr. Bril considered a ration of 1:100 to be vanishingly rare, while Dr. Sloka testified that he did not consider a ratio somewhere between 1:125 and 1:250 to be vanishingly rare. For him that rate of occurrence was worth considering. He also testified that in his practice he had about ten patients with NF1, a little over half of whom he had diagnosed. He also had five patients who came close to satisfying but did not fully satisfy the diagnostic criteria for NF1. The Crown did not challenge Dr. Sloka’s evidence about the patients in his practice with NF1. Therefore, they did not challenge the clinical experience that informed his subjective belief that a ratio in the range of 1:125 to 1:250 was not vanishingly rare. In my view, his subjective characterization of the probability ratio was not unreasonable, and Dr. Bril’s evidence failed to prove otherwise. She simply looked at a similar probability ratio and attached less significance to it. Reasonable people can disagree. I keep in mind too that Dr. Bril conceded the appropriateness of asking about stigmata of neurocutaneous disease when screening for seizure risk factors during the patient history. If asking about the stigmata is appropriate, it follows that searching for stigmata may also be appropriate if the answers to the screening question provided a basis for doing so. At times, but not consistently, Dr. Bril conceded that searching for stigmata might be appropriate if the patient provided a sufficient basis for doing so. That concession, sometimes given, tends to undermine her dismissal of the advisability of searching for NF1 in seizure patients. Ultimately, I do not consider Dr. Bril’s evidence on this subject to constitute a compelling rebuttal of Dr. Sloka’s purported rationale behind screening for NF1 in seizure patients. Consequently, this evidence does not compellingly support the inference that Dr. Sloka’s skin examinations were motivated by a sexual purpose.

211In summary, I conclude that Dr. Bril gave inconsistent and uncompelling evidence regarding screening for NF1during the assessment of seizure patients.

v. The Other Diagnostic Criteria Involved in a Clinical Diagnosis of NF1

212I turn now to the some of other diagnostic criteria for NF1, which do not play a predominant role in Dr. Bril’s evidence but do arise in Dr. Sloka’s evidence and the Crown’s critique of it.

213As noted, about half of NF1 patients have no family history of the disease. The other half have a first degree relative with NF1.

214The fifth criterion involves two or more Lisch nodules. These are malformations on the iris (the coloured part of the eye). Lisch nodules can be confirmed on examination by an ophthalmologist. The Crown suggests that the evidence establishes that Lisch nodules can be seen by the naked eye and thus by a neurologist. That was not the evidence. An excerpt from Ferner’s text, tendered during cross-examination of Dr. Sloka, indicated that these nodules can be observed by an ophthalmologist using a “slit lamp examination.” Dr. Bril never suggested these nodules were observable with the naked eye.

215The sixth criterion, optic pathway glioma, is a tumor on the optic nerve. This is usually diagnosed by an MRI and may interfere with a patient’s vision.

216The seventh criterion, a bony dysplasia of the sphenoid wing, is a malformation of a bone of the skull. This can be seen in an x-ray or CT scan.

217The eighth criterion, thinning of the long bone cortex, plus or minus pseudoarthrytis, is an abnormal bend in one of the long bones that is not a joint.

218As mentioned, only two of the eight criteria need to be met to arrive a clinical diagnosis.

vi. Management of Patients with NF1

219In most patients, neurofibromas are benign. However, over a patient’s lifetime, there is a 10 percent chance that a neurofibroma may become malignant. For that reason, the clinical symptoms of a patient with a neurofibroma need to be monitored. For example, if a patient reports that a neurofibroma has become painful or tender, that could suggest a malignant change.

220It is standard to order an MRI of a patient who presents with seizures associated with a previously diagnosed neurocutaneous disease. Results of the MRI may reveal physical symptoms of the disease on the brain, which may require further investigation. However, the disease is not reversable. A neurologist treats the seizures.

vii. Other Neurocutaneous Syndromes

221Other neurocutaneous diseases include NF2, schwannomatosis, Sturge-Weber syndrome, and tuberous sclerosis. Compared to NF1, these diseases are rare.

222Dr. Sloka did not purport to screen every neurology patient for these other neurocutaneous diseases. He did however testify that one patient bore a red birthmark on her nose which made him think of tuberous sclerosis. Consequently, Dr. Bril’s evidence about that disease bears mentioning.

223Tuberous sclerosis is a rare neurocutaneous disease that can give rise to small red nodules or lumps on the face, a skin patch on the lower back with the texture of an orange peel, and brain changes. It is also associated with seizures. Tuberous sclerosis is ultimately diagnosed using an MRI to detect the presence of brain lesions.

Other Examinations

i. Rectal Examinations

224Dr. Bril testified that neurologists do not perform rectal examinations, except to investigate a complaint of fecal incontinence. I have already discussed my skepticism of Dr. Bril’s categorical statement about various examinations, including rectal examinations.

225Dr. Bril also testified that neurologists have general medical training in performing rectal examinations, and as a result, are competent to perform them. When questioned in cross-examination [regarding Dr. Sloka’s assessments of S.S. and K.L.G.] about the medical reasonableness of conducting a rectal examination to palpate nerves that pass through the pelvis and into the legs, Dr. Bril conceded that a rectal examination may have been medically reasonable, even if not neurologically reasonable.

ii. Pelvic Examinations

226As already noted, Dr. Bril testified that neurologists do not perform pelvic examinations. I have already expressed my skepticism of this categorical claim.

227It bears repeating that Dr. Bril possessed very little training regarding pelvic examinations, whereas Dr. Sloka testified about more extensive training. Dr. Bril had only conducted two pelvic examinations during the entirety of her medical training. She was unaware of even basic concepts regarding pelvic examinations. When questioned about bi-manual pelvic examinations (placing two gloved fingers inside the vaginal canal while palpating the abdomen with the other hand), Dr. Bril stated: “I don’t know – if bimanual is simultaneous vaginal and rectal.” In the case of I.R., whom Dr. Sloka ultimately referred to a gynecologist and sent along a vaginal swab, Dr. Bril acknowledged that she did not know whether it was medically reasonable for Dr. Sloka to take a medical swab – this question was beyond her expertise to answer.

iii. Breast Examinations

228As already noted, Dr. Bril testified that neurologists do not perform breast examinations. I have already expressed my skepticism of this categorical claim and need not repeat it here.

iv. Cardiac Examinations

229Dr. Bril testified that neurologists have largely hung up their stethoscopes in favour of echocardiograms and other methods of cardiac testing. I have already expressed my reservations about the reliability of this evidence. However, Dr. Bril provided other evidence regarding cardiac examinations in a neurological practice that bears mentioning.

230Dr. Bril acknowledged that circumstances arise in which it might be reasonable for a neurologist to listen to the heart. Those situations include those in which a neurologist is considering the possibility of a stroke, certain types of fainting spells, suspected seizures, and some types of headaches.

231Despite her evidence regarding the demise of the stethoscope in clinical neurology, Dr. Bril nevertheless conceded that it was reasonable for him to conduct cardiac examinations on a number of patients.

232Concerningly, though, there were several occasions in which Dr. Bril provided contradictory evidence regarding the reasonableness of cardiac examinations for some of Dr. Sloka’s patients. Even more concerning was the confidence with which she provided completely contradictory positions. She gave contradictory positions for the following seven patients: Ms. E.J., Ms. B.P., Ms. A.F., Ms. C.M., Ms. J.C., Ms. T.H., and Ms. A.D.-E. That amounts to roughly one sixth of the counts still before the court. To borrow a phrase from Dr. Bril, that is not a vanishingly small ratio. That is a significant ratio that raises significant concern about Dr. Bril’s reliability as an expert.

233Of equal concern is the fact that she provided contradictory positions in response to the same evidentiary foundation. Two possible explanations arise from this reality: reasonable physicians can disagree about the appropriate investigations when faced with the same clinical presentation; and Dr. Bril failed to appreciate relevant clinical factors when first providing her opinion. Both explanations appear to arise from Dr. Bril’s evidence.

234For example, in the case of Ms. E.J., Dr. Bril testified in-chief that a cardiac examination was not neurologically reasonable. When defence counsel pointed to the visual and speech changes and numbness charted by Dr. Sloka in his consultation letter, Dr. Bril agreed that these were stroke-like symptoms which would justify a cardiac examination. Dr. Bril relied upon that same consultation letter when confidently discounting the reasonableness of a cardiac examination in-chief. The stroke symptoms were not new information. They were overlooked.

235Similar oversight is revealed in Dr. Bril’s evidence regarding Ms. B.P. In-chief, Dr. Bril stated that a cardiac examination was not reasonable, “because you’re not going to hear anything that’s going to influence your thoughts [on the diagnosis].” In cross-examination, using the same consultation letter relied upon by Dr. Bril, defence counsel identified evidence suggesting the possibility of cardiac syncope. Dr. Bril conceded that a cardiac examination was “fair and I think it was indicated in this patient.” Dr. Bril had simply overlooked available evidence when previously and confidently providing a contradictory opinion.

236In the case of Ms. A.F., Dr. Bril testified in-chief that a cardiac examination was reasonable, because of an apparent unexplained loss of consciousness a few years before the appointment. In cross-examination, she stated the opposite, with utter confidence. Dr. Bril was caught off guard when the contradiction was brought to her attention. After a pause, she stated, “So, I think this is debatable obviously because now I don’t think so.” Dr. Bril went from condoning a cardiac examination, to castigating it, to agreeing that its propriety was debatable. This variability supports the proposition that reasonable neurologists can disagree about the appropriateness of some diagnostic investigations – that there is some art in the practice of medicine. Dr. Bril agreed to this general proposition when it was put to her by defence counsel.

237Dr. Bril ought to have kept that general proposition in mind when testifying about Ms. C.M. In-chief, Dr. Bril testified that a cardiac examination was not reasonable. She maintained that all neurologists [echoing her categorical claims about pelvic, breast, and rectal examinations] would conclude that cardiac syncope was too remote a possibility to warrant a cardiac examination. In trial preparation, she took a contradictory position. When meeting with the Crown before the trial, she opined that Dr. Sloka’s decision to conduct a cardiac examination was “iffy but okay.” She testified this opinion was reasonable at the time she professed it, but she had changed her mind. She no longer viewed Ms. C.M.’s event as a possible syncopal spell. This is a situation where the evidence had not changed, nor had Dr. Bril’s awareness of it. Instead, her response to the evidence changed. Dr. Bril believed herself to be reasonable when advancing contradictory opinions, even when one opinion included the belief that no neurologist would reasonably conclude otherwise. That raises concerns about her reliability as a witness.

238Dr. Bril’s contradictory evidence regarding Ms. T.H. also arose from the same foundational evidence. In-chief, Dr. Bril testified that a cardiac examination was not neurologically reasonable, “because you are not going to hear anything that’s going to help you determine what happened.” In cross-examination, Dr. Bril agreed that the nature of Ms. T.H.’s blackout was not clearly identified in her patient history. Consequently, she agreed that a cardiac examination was not unreasonable. The evidence had not changed, but Dr. Bril’s interpretation of it had.

239Dr. Bril also gave contradictory evidence concerning Ms. A.D.-E. In-chief, she testified that there was no reason to listen to Ms. A.D.-E.’s heart. In cross, she acknowledged that Dr. Sloka had documented in his consultation letter that Ms. A.D.-E. reported facial tingling and difficulty speaking. Dr. Bril agreed that these were stroke-like symptoms that rendered Dr. Sloka’s decision to conduct a cardiac examination “cautious” but reasonable. Dr. Bril was faced with the same evidence but arrived at conflicting conclusions. Once again, she raised concerns about her reliability as a witness.

240Dr. Bril’s evidence about J.C. raises an additional concern, bias. I agree with the defence that Dr. Bril revealed both confirmation bias and professional credibility bias when testifying about Ms. J.C. I will explain.

241In-chief, Dr. Bril testified that the cardiac examination performed by Dr. Sloka at Ms. J.C.’s first appointment was unreasonable. Dr. Bril – having the benefit of Ms. J.C.’s entire chart, not just the information available to Dr. Sloka at Ms. J.C.’s first appointment – confidently asserted that Ms. J.C. had MS. She did so despite the fact that – at the time of the appointment -- Ms. J.C. had yet to meet the clinical criteria for MS, known as the McDonald criteria – dissemination in space and time. Having arrived at this premature conclusion, Dr. Bril disparaged Dr. Sloka’s decision to conduct a cardiac examination, explaining, “because heart disease isn’t going to cause MS.”

242Confirmation bias occurs when an expert is attracted to a conclusion and searches for evidence that will support that conclusion or interprets evidence in a manner that supports that pre-existing conclusion. It appears to me that Dr. Bril reasoned backwards from a conclusion that was not clinically warranted at the first appointment and would not be confirmed until much later and then assessed Dr. Sloka’s decisions at the first appointment through the lens of that conclusion.

243Dr. Bril’s professional credibility bias is revealed by her response to a different neurologist’s approach to the assessment of Ms. J.C. In cross-examination defence counsel took Dr. Bril to a consultation report from a neurologist named Dr. Vincent. Dr. Sloka had referred Ms. J.C. to Dr. Vincent when Ms. J.C. moved to the United States for university. Dr. Vincent praised Dr. Sloka’s workup. He also performed the same cardiac and respiratory examinations reported by Dr. Sloka. As is discussed more thoroughly in the segment devoted to Ms. J.C., Dr. Bril attempted to distinguish Dr. Vincent’s approach from Dr. Sloka’s. She suggested, without foundation and without any input from Dr. Vincent, that the American experience was somehow different from the Canadian one – that somehow, the field of neurology respected political borders. She suggested, again without foundation, that Dr. Vincent may have different documentation and billing requirements: that he may have to document an examination in order to justify billing another. Her evidence was somewhat incoherent, but it appeared to imply that Dr. Vincent may have either fraudulently performed an unnecessary examination in order to bill for another necessary one or, alternatively, fraudulently reported performing an examination which he never performed in order to bill for one he did perform. The evidence was and is shocking. I conclude that Dr. Bril was prepared, without foundation, to speculate about matters beyond the scope of her expertise to preserve the integrity of her own opinion. This is a textbook example of professional credibility bias. Similar professional credibility bias can be seen in Dr. Bril’s response to Dr. Mandalfino approaching Ms. K.S.-B.’s assessment in the same way as Dr. Sloka did, though not in the context of a cardiac examination.

244To sum up, Dr. Bril’s evidence regarding cardiac examinations raised concerns about her placing undue reliance upon anecdotal evidence of two colleagues from her own hospital, her proclivity for providing contradictory opinions, her general reliability as a witness, her occasional unwillingness to recognize as reasonable the differing views of other neurologists (unless that neurologist is her), and bias in some situations. Dr. Bril’s evidence regarding cardiac examinations contributes to my decision to approach her evidence with caution and assign it little to no weight.

The Objection to the Admissibility of Dr. Bril’s Evidence

i. Introduction

245In their closing submissions, counsel for Dr. Sloka have asked the court to exclude Dr. Bril’s evidence on the basis that she displayed bias on several occasions during the course of her evidence.

246On a number of occasions in their submissions, counsel for Dr. Sloka contend that Dr. Bril offered opinions outside the scope of her expertise. Counsel relies upon some of these occasions in support of their contention that Dr. Bril demonstrated bias.

ii. The Timing of the Objection

247The Crown quite fairly contends that any application to exclude Dr. Bril’s evidence ought to have been made much sooner and, at the very least, before the close of the Crown’s case. I agree. Be that as it may, the court bears an ongoing obligation to ensure that the outcome of the trial is determined by only relevant, material, and admissible evidence. In some circumstances, it may become necessary to re-evaluate an earlier ruling on admissibility, in fulfillment of the trial judge’s ongoing gate-keeping function [see: R. v. R.V., 2018 ONCA 537]. Exclusion will be warranted when, in the exercise of that ongoing gatekeeper function, a trial judge may conclude that the probative value of the evidence no longer outweighs its prejudicial effect. This principle applies to all evidence, including expert evidence. Consequently, a trial judge’s gatekeeper function does not expire the moment an expert is qualified by the court. The court retains a residual discretion to exclude expert evidence even after admitting it, if the court later determines that the prejudicial effect of the expert evidence exceeds its probative value [see: Bruff-Murphy v. Gunawardena, 2017 ONCA 502; Parliament v. Conley, 2021 ONCA 261; R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 176 O.A.C. 226; R. v. White, 2011 SCC 13].

iii. General Principles Governing the Admission of Expert Opinion Evidence

248Opinion evidence is presumptively inadmissible at trial. However, this exclusionary rule is subject to exceptions. Upon satisfaction of certain conditions, expert opinion evidence may be admitted as an exception to the exclusionary rule against opinion evidence. The admissibility of expert opinion evidence is determined through a two-step process. [See: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23].

249At the first step, the proponent of the opinion evidence must establish the threshold requirements of admissibility: relevance, necessity, absence of an exclusionary rule, and a qualified expert

250The proposed expert has a duty to provide an objective and unbiased opinion. To that end, the opinion must be impartial (reflecting an objective assessment of the questions in issue), independent (uninfluenced by the source of the retainer or the outcome of the litigation), and unbiased (not unfairly favouring one party’s position over that of another). [See: White Burgess Langille Innman v. Abbott and Haliburton, supra].

251A proposed expert who is biased or lacks impartiality or independence is not a properly qualified expert.

252Generally speaking, an expert’s explicit recognition of the need to remain impartial, independent, and unbiased will suffice to establish this precondition of admissibility. The threshold is not onerous [See: White Burgess Langille Innman v. Abbott and Haliburton, supra]. However, as the evidence unfolds, a different picture may emerge.

253Counsel for Dr. Sloka now contends that a review of the evidence reveals that Dr. Bril demonstrated bias and a lack of impartiality and independence. Put another way, the defence contends that Dr. Bril was able to “talk the talk” at the point she was qualified as a witness, but she showed during her evidence that she was not able to “walk the walk.” The defence further contends that evidence of Dr. Bril’s bias ought to alter the court’s conclusion during the second step of the admissibility analysis: the weighing of the probative value of her evidence against its prejudicial effect.

iv. Specific Incidents of Alleged Bias

254The defence does not itemize each and every alleged incident of bias in their bias submissions, but a review of their count-to-count submissions reveals nine allegations, some of which have already been touched upon. As will be seen in my count-to-count assessment of the evidence, I find these allegations to have considerable merit. In my view, Dr. Bril occasionally and unconsciously displayed bias. I will explain my conclusions more thoroughly during the count-to-count assessment of the evidence. For now, I will attempt to summarize them briefly here:

1. J.V.

The defence contends that Dr. Bril betrayed bias when providing evidence beyond the scope of her expertise and assuming and advocacy role in the process. She acknowledged that the medical reasonableness of a breast examination was beyond the scope of her expertise but nevertheless attempted to argue that a breast examination was not medically warranted. Defence counsel cautioned her: “Sorry, doctor, you understand that the Crown’s are here arguing the case.” The court interrupted and instructed Dr. Bril to refrain from giving evidence outside the scope of her expertise. The defence submits that Dr. Bril’s gratuitous argument shows evidence of bias.

2. Am.E.

In Ms. Am.E.’s case, Dr. Bril effectively contended that no neurologist she knows would perform a breast examination. Defence counsel properly points out that Dr. Bril gave this evidence despite knowing that she herself had performed a breast examination in the past, and despite the absence of an evidentiary foundation for her categorical claim. Accordingly, the defence asks the court to distrust Dr. Bril’s evidence on this point. The defence contends that her non-disclosure provides evidence of bias.

3. R.P.

The defence position regarding Dr. Bril’s evidence on Ms. R.P. echoed the position they stated in relation to Ms. Am.E. Additionally, they argue that Dr. Bril maintained her categorical position even in the context of a hypothetical neurologist who does have training and expertise in performing breast examinations. Dr. Bril’s foundational reason for declaring that neurologists do not do breast examinations was that they lack training and experience. The hypothetical assumed training and experience, yet Dr. Bril still maintained that a properly qualified neurologist ought to still refrain from conducting breast examinations. The defence argues that, by adhering to a position when its preconditions had vanished, Dr. Bril revealed bias.

4. J.C.

The example of Ms. J.C. has already been discussed thoroughly above. To summarize, the defence contends that, without foundation, Dr. Bril distinguished and discredited the position of a fellow neurologist who apparently agreed with Dr. Sloka’s approach and disagreed with hers. In doing so, she revealed professional credibility bias. She also revealed confirmation bias by reasoning back from an unsubstantiated diagnosis to critique the approach of both Dr. Sloka and Dr. Vincent.

5. K.S.-B.

Similar to Ms. J.C., Dr. Bril concluded that an MS diagnosis was effectively the only possible diagnosis, despite the fact that, by her own criteria, an MS diagnosis could not be confirmed. She thereby critiqued Dr. Sloka’s investigation of other possible diagnoses. Dr. Sloka had sought a second opinion form Dr. Mandalfino, who likewise agreed that the criteria for MS had not been established. Like Dr. Sloka, Dr. Mandalfino ordered tests to investigate other possible diagnoses. Confronted with this fact, Dr. Bril maintained that Dr. Mandalfino did “not really” hold out the possibility that Ms. K.S.-B. had something other than MS. She presumed to know that Dr. Mandalfino was thinking something other than what she explicitly stated. In reality, Ms. K.S.-B.’s diagnosis was not confirmed by any doctor until long after the appointment of concern. As she did with Dr. Mandalfino, Dr. Bril asserted in her testimony that Dr. Sloka knew Ms. K.S.-B. had multiple sclerosis despite him having a note stating otherwise. The defence contends that Dr. Bril revealed bias by assuming an established diagnosis and then seeking to discredit any conclusions to the contrary. The defence also contends that Dr. Bril revealed professional credibility bias by distorting the plain meaning of Dr. Mandalfino’s consultation letter to mitigate the conflict between Dr. Mandalfino’s approach and her own. They submit that her willingness to manipulate the evidence in order to advance her agenda fundamentally conflicts with her duty to provide an unbiased and impartial opinion.

6. A.E.

Despite agreeing that she was not qualified to comment on whether there was any medical justification for breast and skin examinations conducted on that date in the context of a pituitary disorder, Dr. Bril provided a gratuitous opinion anyway. More specifically, Dr. Bril testified that she could not comment on whether it would be medically reasonable to test for galactorrhea in a patient with a prolactinoma. Yet, she gratuitously remarked “but I would be amazed if that were true.” This, the defence contends, is another example of Dr. Bril’s willingness to impugn Dr. Sloka on matters about which she was not qualified, which further demonstrates her bias.

7. A.D.

The defence contends that Dr. Bril betrayed bias by insisting that Ms. A.D. did not have a pituitary adenoma, despite the fact that radiologists who conducted six MRIs over a two-year period concluded that she did have one. The defence argues that “It is alarming that Dr. Bril would maintain the position that the adenoma could have been an artifact in the face of repeated, consistent results to the contrary. She appeared to be bending over backwards to manipulate the results to undermine Dr. Sloka’s course of treatment.”

8. C.M.

The defence contends that Dr. Bril’s position on the propriety of the cardiac examination on Ms. C.M. reveals bias. Dr. Bril initially testified that a cardiac examination was not warranted on the basis that she did not believe there was a possibility that this event was due to a cardiac syncope, describing that possibility as “highly remote.” However, as discussed earlier in these reasons, Dr. Bril provided a contradictory opinion during a trial preparation meeting with the Crown.

Dr. Bril recanted this earlier opinion. The defence contends that in doing so she revealed professional credibility bias. Instead of acknowledging that reasonable neurologists might come to opposition conclusions about the propriety of a cardiac examination for Ms. C.M., she disavowed her initial opinion in favour of her trial testimony.

Dr. Bril also acknowledged that her change of heart was influenced by her newly formed conclusion that neurologists do not listen to the heart anymore. The defence contends that this anecdotally influenced opinion coloured much of Dr. Bril’s evidence regarding cardiac examinations in this case.

9. A.F.

The defence contends that Dr. Bril’ once again revealed professional credibility bias when giving evidence about the propriety of a cardiac examination for Ms. A.F. In-chief, she testified that the examination was reasonable. In cross-examination, she took the opposite position, having forgotten what she said in chief. Confronted with the contradiction, Dr. Bril attempted to maintain the position she took in cross-examination, denigrating her previous opinion in the process. She proved reluctant to acknowledge from her own embarrassing example that reasonable neurologists might disagree about whether it was appropriate to perform a cardiac examination on Ms. A.F.

255I would add to this list Dr. Bril’s contradictory evidence regarding skin examinations. When retained by the defence, she unmistakenly implied that it was neurologically reasonable for a clinical neurologist who suspects a neurocutaneous disease to conduct skin examinations on adults to search for unsuspected stigmata of neurocutaneous disease. She gave contradictory evidence at trial, by which time she was in the employ of the Crown.

v. Conclusion

256Despite the valiant submissions by the Crown, I am satisfied that the above listed complaints of bias have considerable merit. However, I am not satisfied that Dr. Bril was consciously or pervasively biased. Her lapses were situational and unconscious. This is a judge alone trial. Where situational lapses have occurred, it is open to the court to assign little or no weight to the evidence arising out of those lapses. It is also open to the court to conclude that less weight should be assigned to Dr. Bril’s evidence on all contested issues as a result of the lapses discussed above. Despite the isolated and unconscious displays of bias, I am still of the view that, as a broad proposition, the probative value of Dr. Bril’s evidence outweighs its prejudicial effect. I am content to admit her evidence but afford limited weight to Dr. Bril’s evidence on material issues and no weight to evidence arising from the apparent situational bias.

A Brief Summation of the Assessment of Dr. Bril’s Evidence

257Dr. Bril’s evidence suffered from a number of shortcomings and frailties. Dr. Bril was unable to opine on the medical reasonableness of Dr. Sloka’s conduct, only its neurological reasonableness. She was therefore unable to rebut any assertions by Dr. Sloka that he possessed a subjective belief in the medical reasonableness of his conduct. Also, for the numerous reasons outlined above, I am unable to place much weight on Dr. Bril’s categorical assertions that neurologists do not conduct certain medical examinations and investigations, including pelvic, rectal, breast cardiac, and skin examinations. In the absence of compelling evidence that Dr. Sloka’s conduct was not medically reasonable and not professionally permissible, the Crown’s ability to prove that Dr. Sloka possessed a sexual purpose suffers. Additionally, Dr. Bril also frequently provided contradictory evidence, which negatively impacted my assessment of her reliability. Dr. Bril’s response to some of those inconsistencies raised concerns about her ability to remain impartial. Her willingness to rely upon a paltry sample size of anecdotal evidence when making sweeping generalizations raises concerns about the reliability of some of her other sweeping generalizations. And her insistence upon the adherence to standards that exceed that of her regulator, raises concerns that her opinion does not speak to the generally accepted standards of those in her discipline but instead to her own personal opinion. Finally, the numerous incidents of alleged bias undermine Dr. Bril’s general reliability and cause me to assign virtually no weight to specific areas of her evidence.

258While I am prepared to admit Dr. Bril’s evidence, I am not prepared to assign it the weight which the Crown invites me to assign.

4. THE EVIDENCE OF DR. SLOKA

A. Introduction

259Dr. Sloka testified in his own defence. His evidence covered a broad range of topics, which included the following: his educational background, his medical training, the process by which he obtained his licences to practice general medicine and neurology, his participation in continuing professional development, the nature of his medical practice at Grand River Hospital, the types of examinations performed during the course of his neurological practice, his record keeping, and his responses to each of the 48 complaints against him.

260This segment of the decision will be devoted to summarizing Dr. Sloka’s evidence on all matters except his response to each of the 48 complaints.

B. Training, and Licencing

i. Undergraduate and Graduate Studies

261Dr. Sloka completed an undergraduate degree in Engineering at the University of Waterloo in 1992. He then obtained a PhD in engineering from the same university. He specialized in PET imaging, a type of medical imaging that monitors metabolic activity in the body for things like cancer, for example. Expertise in this area of research required mastery of a variety of subjects, including computer programming and numerical methods, human physiology, and medical physics. Beyond this specific focus, Dr. Sloka’s studies involved other types of medical imaging focused upon looking for difficulties within the human body.

262Following his graduate studies, Dr. Sloka entered the field of medical imaging as a computer programmer for a company called Mitra Imaging. He eventually became the Chief of Clinical Research and Development for the company.

ii. Medical School

263After taking additional undergraduate courses to meet admission requirements, Dr. Sloka applied for and was accepted into medical school at Memorial University in Newfoundland in 1999. He graduated from the Faculty of Medicine in 2003. Dr. Sloka testified that Memorial followed a classical style of medical education which involved two years of course work followed by two years of almost exclusively clinical work. The clinical work involved core rotations and elective rotations. Rotations were four weeks long. His core rotations included family medicine, psychiatry, surgery, obstetrics and gynecology, and internal medicine. One of his elective rotations involved a four-week rotation in Ecuador.

264In clinical rotations, the medical students were the first line of contact for the patient. With each patient, he would take the patient’s history, do a physical examination, and report back to the attending physician to obtain input, and learn how to order tests. Medical students were granted a great deal of independence, except that they were not permitted to prescribe medications or order tests themselves.

iii. Neurology Residency

265Dr. Sloka had considered entering family medicine but ultimately decided to enter the neurology program. He thought that neurology would provide him with broader training and a wider range of medical skills.

266He entered a neurology residency in 2003 at Memorial University. He completed the program in 2008. After his residency, he completed an eighteen-month long fellowship, which was not necessary but is fairly common. The first year of his program consisted of a general internship. His first year included rotations in several specialties, including psychiatry, women’s health, surgery, and internal medicine.

267During his first year, he obtained an educational licence to practice medicine, which allowed him to see patients and order tests.

268After first year, he obtained a provisional licence, which provided him further latitude to engage in medical practice.

269In his second year in residency, Dr. Sloka completed numerous rotations, including internal medicine, endocrinology (the study and treatment of glands), hematology, infectious diseases, rheumatology (which includes the treatment of inflammatory and autoimmune diseases like lupus and arthritis), and cardiology. Cardiology occupied a significant portion of the second year of his residency. Dr. Sloka also participated in a four-week internal medicine rotation in Goose Bay, Labrador. This was a remote and underserviced area. He provided an array of services to patients who lacked specialty care. He found the experience rewarding.

270The remaining three years of his residency focused almost exclusively on the practice of neurology. However, he had one elective each year outside of neurology. He did rotations in related fields like pediatric neurology and EMG and EEG testing.

271Dr. Sloka’s provisional licence also allowed him to do locums, where he would temporarily take over the practice of physicians who wanted to take time off work. Dr. Sloka complete locums for a family physician in an urgent care clinic on Belle Island, a remote island off the shore of Newfoundland. During those locums, he was the lone doctor on the island. He described the clinic as a “cottage hospital”, a large clinic the size of a barn. Being the sole doctor, he had to practice a broad range of medicine.

272During his residency, Dr. Sloka also worked emergency room shifts about two to four days each month, which again allowed him to hone a broad range of skills.

273Dr. Sloka also decided to obtain an extra surgical rotation, so that he could obtain his full general licence to practice medicine. To obtain that extra rotation, he opted to participate in obstetrics/gynecology. In the course of that rotation, he worked in uro-gynecological clinics, which are gynecological clinics that specialize in treating women with bladder difficulties and voiding problems. He also worked in a fetal medicine clinic, which treated pregnant women with complicated medical problems, including neurological problems.

274Dr. Sloka also decided to obtain additional training in cardiology by doing extra clinics with a cardiologist, believing it would assist in treating neurology patients who had suffered a loss of consciousness.

275During his evidence, Dr. Sloka expanded upon the training he received on a variety of subjects which are germane to the charges before the court, including the following: cardiology, obstetrics and gynecology, breast examinations, birth control, bi-manual pelvic examinations, rectal examinations, and dermatology. His evidence on this training stood unchallenged. I will now summarize his evidence regarding each of these subjects.

iv. Cardiology Training

276Dr. Sloka obtained a stethoscope in his first year of medical school. He was trained to listen to the heart, lungs, and abdomen, amongst other things. He used the stethoscope daily in his internal medicine, family practice, and women’s health rotations, as well as when seeing patients in the ER. During internal medicine rotations, Dr. Sloka conducted cardiac examinations daily. He also used the stethoscope to examine patients in his neurology rotations. Dr. Sloka had done so many cardiac examinations before establishing his neurology practice, he had difficulty estimating the number, but it was in the hundreds. He described cardiac examinations as “ubiquitous in my training as it’s an essential part of an assessment.”

v. Obstetrics and Gynecology Training

277Dr. Sloka did three rotations in obstetrics and gynecology during his medical training. The first rotation occurred when he was in medical school, the second during his first year in residency, and the third during the third year of his residency. This third rotation allowed him to obtain his general licence. He completed the same number of rotations in his neurology residency as he would have been required to complete in a family practice residency, which is only two years long, not five.

278Dr. Sloka’s rotations included a mixture of clinic work and ward work.

279During his rotations, Dr. Sloka learned about birth control use and its interactions with other medical problems.

280He also learned to conduct various types of examinations, including pelvic examinations (both bi-manual vaginal examinations and pap smears), breast examinations, stethoscope examinations (as part of general assessments of patients), and standard ante-natal examinations, which include cardiac and respiratory examinations.

281During his internal medicine rotations, he would also perform gynecological examinations.

282Dr. Sloka explained that internal medicine is like the “pediatrics of adult” where physicians deal with a wide range of complex medical problems that are not limited to a single part of the body (recall that Dr. Bril called internal medicine supersized family medicine). He also explained that the rotations in neurology are very similar to the rotations in internal medicine but have a greater focus on neurology at the later stages of the residency. Another distinction between the two residencies is that internal medicine specialists are required to take an intensive care rotation. Dr. Sloka did not do an intensive care rotation, but he was frequently in the intensive care unit doing neurological work. Dr. Sloka testified that internal medicine physicians are generalists who address a full range of medical issues in adults. Internal medicine contained subspecialties, which included cardiology, respirology, endocrinology, and rheumatology, amongst other things. These are all disciplines Dr. Sloka studied in his neurology residency. Dr. Sloka testified that there was a division of opinion among neurologists about whether neurology ought to be classified as a branch of internal medicine or as a distinct discipline. Implicitly, at least, his belief about this division of opinion informed Dr. Sloka’s belief about the appropriate scope of his neurology practice. When asked how he would classify himself, Dr. Sloka stated:

I just tried to learn everything that I could. Just to simplify it. I – I took advantage of all the rotations that I had so that I could think broadly and – and help people the best I could.

vi. Breast Examination Training

283Dr. Sloka received training in the conduct of breast examinations during his second year in medical school, as part of the women’s health portion of his clinical skills course. Breast examinations were learned in a clinical workshop using a standardized patient – a volunteer.

284Dr. Sloka also gained experience conducting breast examinations during his obstetrics and gynecology and internal medicine rotations during his residency. Additionally, he occasionally conducted breast examinations during neurology rotations.

285Regrading breast examinations on the neurology ward, Dr. Sloka provided some examples. Dr. Sloka testified that when a patient presented with a syndrome that suggested the possibility of cancer with an unknown origin, a breast examination was performed. Cancer of an unknown origin can spread to the brain, causing neurological symptoms. Also, paraneoplastic syndrome, which is an immune system reaction to the presence of cancer, can give rise to neurological symptoms. In these scenarios, Dr. Sloka was trained to perform a full body examination, including a breast examination, to determine the location of the cancer.

286Dr. Sloka testified that, by the time of starting his neurology practice, he would have performed somewhere between 50 and 100 breast examinations, too many to easily quantify.

vii. Birth Control Training

287Dr. Sloka first learned about birth control medication during classroom work in medical school and residency.

288Dr. Sloka testified that the topic of birth control arose during most rotations in medical school and residency. He provided several examples of rotations in residency where he received training on the subject of birth control: family practice, internal medicine, women’s health, and neurological rotations. Whether a patient is on birth control is a salient factor in the assessment and treatment of a medical patient. Amongst other things, a doctor must consider medication interactions and complications involving birth control.

289More specifically, Dr. Sloka testified that birth control is a relevant consideration in the practice of neurology. He understood seizure medications, especially older ones, to have well-known interactions with some birth control medication. He was trained to understand those interactions, to have discussions with patients about birth control, and to understand how it may have various health implications, like bone health, for example. According to Dr. Sloka’s training, birth control was a fundamental component of treating a patient population in the practice of neurology.

viii. Bi-manual Pelvic Examination Training

290Dr. Sloka received training in conducting pelvic examinations during his obstetrics and gynecology rotations. Again, he participated in the same rotations in which Newfoundland family physicians must train. He also received some training, albeit less frequently, during his internal medicine and emergency medicine rotations. On rare occasions, he conducted pelvic examinations in his neurology rotations. In his neurology rotations, he completed pelvic examinations as part of the clinical examination of possible paraneoplastic syndromes (which are, as mentioned, immune syndromes acquired in response to the presence of cancer). By the time he commenced his neurology practice in Kitchener, he had conducted somewhere around fifty to a hundred pelvic examinations.

ix. Rectal Examination Training

291Dr. Sloka received rectal examination training during classroom lectures in urology. Additionally, he received training in rectal examinations during several rotations throughout his training, including surgery, emergency medicine, neurosurgery, internal medicine, and neurology rotations. During neurology rotations, rectal examinations were typically relevant to the evaluation of spinal cord issues. He estimated that he had performed about fifty rectal examinations before opening his practice in Kitchener.

x. Dermatology Training

292Dr. Sloka first learned about dermatological examinations in clinical rotations during medical school, including rotations in family practice, pediatrics, and sometimes in internal medicine. In the context of internal medicine, dermatological examinations were performed to search for skin manifestations of cancer and autoimmune diseases. Dr. Sloka also noted that, the way he was trained, cardiac and respiratory examinations also have a skin observation component. Dr. Sloka did not believe he performed skin examinations during medical school, but he observed attending physicians perform them as part of his training.

293Dr. Sloka also received dermatology training during his neurology residency, specifically during haematology, endocrinology, infectious disease, rheumatology, and neurology rotations. Amongst these rotations, he believed he performed about 12 full body skin examinations. He specifically remembered examining two neurology patients. One involved the investigation of a possible paraneoplastic syndrome, and the other involved a possible cancer.

xi. Licences Obtained Before Becoming a Neurologist and Their Impact on His Approach to Neurology

294As noted, Dr. Sloka obtained his provisional licence after his first year of residency. He had been doing emergency room work under this provisional licence, but he wanted to also do work in an urgent care clinic on Belle Island. He could not work in urgent care without a general licence. Accordingly, he took a third rotation in obstetrics and gynecology to qualify him to obtain a general licence.

295With a general licence, he was able to do locums in the urgent care clinic on Belle Island. The clinic was a “cottage hospital” in which he learned to provide a wide ambit of services to patients without the benefit of on-hand specialty services that are available in large urban centres. Accordingly, he provided a broad range of medical assistance to patients in the clinic. This experience influenced his approach to the practice of neurology in Kitchener, which lacked access to clinic-based internal medicine specialists and lacked sufficient family doctors and psychiatrists. Indeed, early in his Kitchener neurology practice, he surveyed his patient charts and concluded that thirty percent of his patients did not have a family doctor.

296Dr. Sloka knew several doctors who obtained dual training in their residencies, for example in neurology and internal medicine. Having worked in rural areas, he considered it important to receive a broad-based training, whereby he would be able to provide medical care when he did not have the benefit of on-hand specialty services. By obtaining a wide set of skills, he felt he could enhance his ability to service his patients. He recognized that he could not “fill all the gaps” but he could fill in the gaps as best he could.

xii. Research Projects

297Dr. Sloka was involved in several research projects throughout medical school and residency. Most of the research was self-driven: he would identify projects and then take the necessary steps to implement them. Several of the projects were in the field of neurology. One of them involved research into the prevalence of MS in Newfoundland. In furtherance of this project, he reviewed the medical files of nine out of the ten practicing neurologists in Newfoundland. In his review, he learned a lot about how the neurologists practiced, the variability of their practices, and the types of problems they came across.

xiii. Royal College Examinations

298Following his residence, Dr. Sloka sat for the Royal College of Physicians and Surgeons examinations to qualify to become a neurologist. The examinations included a one-day written examination and a one-day practical examination.

299Dr. Sloka testified that, to become qualified as a neurologist, the RCPSC required that he be able to perform pelvic, breast, and skin examinations, and to treat related conditions. His evidence on this issue went virtually unchallenged in cross-examination. The Crown called no evidence to contest it. These were factual assertions, not opinions. The uncontested evidence before the court is that the RCPSC required Dr. Sloka to know how to do these examinations as a condition of his certification as a neurologist. This factual evidence stands in opposition to Dr. Bril’s opinion that these examinations are not part of neurology. It provided Dr. Sloka an uncontradicted basis for concluding that he could properly conduct pelvic, breast, and skin examinations as part of his neurological practice. Having regard to my rejection of Dr. Giles’ evidence, who testified that she confronted him and told him that he should not be conducting skin examinations on his patients and given the concerns I have expressed about Dr. Bril’s categorical claims about the scope of neurology, Dr. Sloka’s evidence about RCPSC requirements assumes some importance. This evidence undermines the Crown’s contention that the conduct of breast, pelvic, or skin examinations, per se, lead to the inference of a sexual purpose.

xiv. Fellowship at the University of Calgary

300After completing his residency at Memorial University, he received an invitation to undertake a neurology fellowship at the University of Calgary, which took about eighteen months to complete. Researchers had read his published work on MS and extended him the fellowship invitation. His fellowship involved further specialization in neuroimmunology, including the study and treatment of MS. He conducted his own research, focussing on MS and vitamin D. He also assisted others with their research. He published five papers during his fellowship.

xv. Ongoing Academic and Research Publications

301Dr. Sloka continued to publish peer-reviewed papers when practicing as a neurologist in Kitchner. He published papers relating to cancer diagnosis, breast cancer, colorectal cancer, lung cancer, endocrinology and neurology, pediatric diabetes, and MS. As can be seen by these publications, Dr. Sloka enhanced and maintained a proficiency in medical topics beyond the scope of Dr. Bril’s narrow definition of neurology. Dr. Sloka’s broad spectrum of publications was consistent with his stated interest in maintaining a broad skill set to enhance his ability to serve his neurology patients.

xvi. Teaching Activities

302Dr. Sloka began teaching during his fellowship. He continued teaching upon moving to Kitchener to open his practice. He taught courses which focussed on MS, clinical skills, and neuroanatomy.

303In Kitchener, Dr. Sloka assisted the medical school by teaching sessions in clinical neurology. He also provided lectures to family practice residents. Additionally, he provided yearly neurology lectures at the School of Optometry. Two family practice residents attended his office once a week to receive training from Dr. Sloka. Dr. Sloka discussed patient issues with them and taught neurological examination to them.

304Dr. Sloka received awards for his teaching in both Kitchener and Calgary. He was the only fellow at the University of Calgary to receive an award for his teaching.

xvii. Professional Memberships and Professional Associations

305In October of 2009, after passing the RCPSC examinations, Dr. Sloka became a member of the RCPSC. As a member of the RCPSC, he was obligated to complete continuing medical education. Dr. Sloka also registered as a neurologist with the CPSO.

306Dr. Sloka was also a member of the Canadian Medical Association, the American Academy of Neurology, the American Academy of Internal Medicine, and the Canadian Congress of Neurological Sciences.

C. Dr. Sloka’s Medical Practice in Kitchener

i. The Beginning

307Dr. Sloka began his practice at the Grand River Hospital November 23, 2009. Dr. Jamie Steckly and Dr. Dan Mendonca practiced there at the time, too. Dr. Mendonca was the chief of neurology. Dr. Mendonca left about a year after Dr. Sloka arrived. After Dr. Mendonca departed, Dr. Sloka took over as director of the neurology and stroke programs. Dr. Sloka practiced in the Secondary Stroke Prevention Clinic every Thursday, where he would see between eight and ten patients daily.

308Also, the three neurologists took turns taking on-call duties. Accordingly, every three weeks, from Monday to Friday, Dr. Sloka was on call at the hospital for neurology consultations. While on call, Dr. Sloka provided same day neurological consultation for patients admitted to the hospital. He would follow the care of some of these patients for the duration of their admission. He also provided urgent advice to physicians at other hospitals by telephone. The interpretation of EMG reports was a frequent on call duty. He would interpret about 80 EMG reports in a week.

309When he first opened his practice, he and Dr. Mendonca shared some patients. Meanwhile, the GRH hospital advertised his name to family doctors and other clinics, to promote the growth of his practice.

310Dr. Sloka also obtained hospital privileges at St. Mary’s Hospital and Freeport Hospital, two other hospitals in the City of Kitchener. Additionally, He also had privileges at Cambridge Memorial hospital and Guelph General.

ii. Support Staff

311The GRH neurology clinic had two secretaries, Laurie Hennessy and Leanne Traplin. Ms. Traplin worked for Dr. Steckley. Ms. Hennessy became Dr. Sloka’s medical secretary.

312Ms. Hennessy ran his office. She took phone calls from patients, booked appointments, sent his dictated consultation letters out to the referring doctors, did the billing, ordered office supplies, and maintained the medical files.

iii. Opening The Urgent Neurology Clinic

313At the time he arrived in Kitchener, Dr. Sloka had just completed an MS fellowship and had considered opening an MS clinic. However, Dr. Mandalfino already operated a practice that focussed on treating MS patients. He had broached the idea of working with Dr. Mandalfino, but she did not want to run her practice in affiliation with the hospital. So, he abandoned that idea. Instead, Dr. Sloka decided to create an urgent neurology clinic and continue to operate out of the GRH. He came up with the idea before Dr. Mendonca’s departure. He approached Dr. Mendonca and Dr. Steckley with his proposal. The clinic subsequently opened in early 2010.

314Dr. Sloka started the Urgent Neurology Clinic in conjunction with the chief of the emergency department, Dr. Waldbilly.

315Dr. Sloka envisioned the Urgent Neurology Clinic as having certain goals and benefits. He wanted to facilitate the care of patients with urgent neurological needs to reduce the workload for neurologists on call. Dr. Sloka believed that an Urgent Neurology Clinic would reduce the need to admit some ER patients into the hospital. He saw some critically urgent patients immediately and other urgent patients soon after their discharge from the ER. He aimed to provide rapid consultations and to keep his wait times to a maximum of two weeks, a goal which he eventually struggled to maintain as the rate of referrals increased. His wait times generally were around 3-4 weeks for “routine” urgent referrals.

316Initially, Dr. Sloka also obtained referrals from ER doctors at St. Mary’s Hospital and the GRH. At the same time, he received referrals from community doctors (family doctors, specialists, urgent care clinics, and university clinics).

317Eventually, he spoke with Dr. Schafer from Cambridge Memorial Hospital and Dr. Gaiardo from Guelph General Hospital and offered to accept urgent neurology patients from those locations, too.

318Dr. Sloka testified that, eventually, somewhere between 70-85% of patients came from ER departments, but the proportion varied over time. As the number of ER referrals increased, Dr. Sloka began to decline some community-based referrals, so that he could continue to emphasize accepting patients from hospital emergency rooms.

319Dr. Sloka saw a variety of patients, including new onset epilepsy patients, visual loss patients, urgent headache patients, chronic headache patients, new onset MS patients, and stroke patients (who would be sent to the stroke clinic). Non-urgent neurology patients would more likely be seen by community-based neurologists.

320Dr. Sloka testified about the demographics of his patients. His patients tended to be younger, given the nature of the types of ailments he treated. Many of the ailments tended to have a higher female to male ratio. For example, females are three times more likely to present with headache complaints. And females are 3.5-4 times more prevalent amongst MS patients. Loss of consciousness episodes are also more common with female patients. In addition to some conditions occurring more commonly in female patients, some occur exclusively with female patients. Epilepsy, however, occurs evenly amongst male and female patients.

321Dr. Sloka testified that the types of cases he treated impacted his approach to his practice and the skill sets he maintained. In particular, Dr. Sloka testified that the referrals coming from ER departments required him to practice and think broadly, particularly given the scarcity of some specialty medical services in the Waterloo Region. Dr. Sloka also testified that the region suffered from a shortage of family doctors. Dr. Sloka’s approach is summed up in the following passage from his testimony:

Q. So, the types of cases that were being referred to you out of this largely emerg[ency] based referral network, did that impact on the skill set that you required to respond to the needs of the referred patients?

A. Sure. So, I had to think more broadly in terms of how to deal with some of these conditions especially in an urgent way. So, take loss of consciousness for example. If someone's referred for a suspected seizure there are other causes of loss of consciousness and I would have to, because it's an urgent sort of situation often, just consider other possible diagnoses urgently and deal with it urgently.

Q. Okay. Were there any – you had talked about your experience in Newfoundland and being in underserviced areas.

A. Yes.

Q. Were there any medical resource issues in the community here that had an impact on the way you practiced?

A. Yes. So, like I mentioned earlier the internal medicine type service just wasn't really available in the community up until I think – I think that service started maybe 2017. So, there weren't – there weren't very many of these – these specialists around and these are specialists that deal with broader issues of adult medicine. Psychiatry. You – you just basically couldn't – well, you could but you had to wait a year to get a psychiatrist to help your patient. So, often you'd just help the patients as best you could given the training that we had. So, radiology there were issues with radiology specifically for neuroradiology while I was there. There was a review of the services and one had to be very careful with the radiology reports that you received.

iv. The Organization of the Clinic

a) Timeslots for Initial Consultations and Follow-ups

322Every new patient received an initial consultation. Until early 2017, those consultations were booked for one hour. Follow-up appointments were booked for 30 minutes. In 2017, in response to increased wait times arising from high demand, Dr. Sloka reduced the duration of initial consultations to 45 minutes and follow-up appointments to 15 minutes.

b) Clinic Hours

323The clinic typically took patients between 8:00 a.m. and 4:30 or 5:00 p.m. If an urgent matter arose on a fully booked day, Dr. Sloka would book the matter at the end of the day. He saw between 8-16 patients per day. Generally speaking, he saw five new patients on any given day. From 2009 to 2019, Dr. Sloka saw about 13,000 different patients.

c) The Procedure at Initial Appointments

324Before meeting the patient, Dr. Sloka sometimes reviewed information provided by the referring physician, but he did not want to be unduly influenced by the content of those materials. He was taught during his clinical training to conduct an independent assessment of his patients.

325When patients attended for their appointments, Dr. Sloka retrieved them from the waiting room and brought them into his office. Patients were welcome to bring a friend, family member, or support person into the appointment, if desired. Sometimes these people offered valuable historical information about the patient.

326Once in the office, Dr. Sloka spoke to his patient and sometimes their support person(s) to obtain their relevant history. After obtaining the patient’s relevant history, Dr. Sloka would recommend relevant physical examinations. With rare exception, Dr. Sloka performed a physical examination on patients at their first appointments. However, if a patient declined an examination or showed up too late for him to conduct one, he would not perform one.

327Dr. Sloka identified and explained the reasons for the proposed examinations while still in his office. He then sought the patient’s consent for the examinations.

328Dr. Sloka almost always conducted a neurological examination at the first appointment of his patients. The patient’s medical history might also influence him to recommend other examinations. He commonly recommended cardiac examinations.

329If consent was obtained, he asked the patient to come with him into the examination room.

d) The Standard Hospital Gown

330The nature of the proposed examinations and the degree of the patient’s consent would dictate whether Dr. Sloka asked his patients to put on a gown.

331Dr. Sloka testified that the gowns depicted in Exhibit 2 were the standard gowns provided by the hospital to his neurological clinic. This was the only style of gown provided by the hospital. He did not use towels or paper rolls for draping at the Urgent Neurology Clinic.

332Tammy Tebutt, the district stroke manager, who managed the stroke and neurology clinics, testified that she provided the Urgent Neurology Clinic with supplies, including the hospital gowns used by the clinic. The Crown presented Ms. Tebutt with the photographs of the clinic gowns taken by identification officers and contained in Exhibit 2. The following exchange then occurred:

Q. I’ll go finally to 11. We have some pictures here of items of linen gowns and such on the left-hand side.

We have circled in the – from the linen closet picture in November on the left what in the closet are several items. Those are standard hospital gowns with the ties that you can either tie on the front or the back?

A. Correct.

333Similarly, Nancy Halstead, a nurse from the stroke unit, testified about the gowns used in the Urgent Neurology Clinic. Like Ms. Tebbutt, Ms. Halstead testified that the hospital provided “standard gowns” for patients. Neither suggested that there were multiple types of standard gowns. I interpret the term “standard” to mean a consistent norm – the same thing can be expected every time. Ms. Tebbutt did not suggest there was a distinction between the two gowns depicted in Exhibit 2. They were both the standard gowns provided by the hospital.

334Interestingly, N.P. (a complainant who testified in relation to one of the counts that the Crown ultimately decided to withdraw after the close of the case) was cross-examined about the gowns depicted in Exhibit 2. Ms. N.P. had testified that she wrapped her gown like a housecoat and tied it at the side. She took one look at the gowns depicted in Exhibit 2 and agreed that they were gowns that tied at the neck, not at the side. After looking at Exhibit 2, she ultimately acknowledged she had misremembered the type of gown she wore.

335E.J. testified that she wore a gown which criss-crossed [a description I took to be similar to Ms. N.P.’s description]. Defence counsel presented her with the gowns depicted in Exhibit 2. Once again, she clearly recognized the gowns depicted were not what she had remembered. She agreed it was possible that the gown she wore was like the ones depicted in Exhibit 2.

336Ms. A.R. testified that she wore a gown which tied at the side. However, she too was cross-examined about the gowns depicted in Exhibit 2. She too acknowledged that the gowns depicted did not match what she had described. She clearly recognized and accepted the defence suggestion that the gowns depicted tied at the top, which could only result in the gown being worn open to the front or the back, depending on the wearer’s choice. As will be discussed during the assessment of her evidence, I have rejected her claim that she wore some other kind of gown than the standard gowns depicted in Exhibit 2.

337I have carefully examined the photographs of the gowns depicted in Exhibit 2. I have concluded that the structure of the two gowns depicted is identical. With one gown, the strings visibly extend from the collar of the neck. With the other gown, two strings are visible, on of which clearly extends from the collar of the neck. However, the neck collar folds under the gown before the string can be seen extending from the other side of the neck. Given the inherent symmetry of the gown, the string that must necessarily extend from that side of the neck is obviously the string that can be seen protruding from beneath the fold of the gown further down the body of the gown. The Crown suggests that this strand of string could be a string meant for fastening at the mid-way point down the back. With respect, that suggestion is patently untenable.

338Numerous other patients described wearing gowns like the gowns depicted in Exhibit 2 and described by Dr. Sloka.

339Collectively, the evidence of Ms. Tebbutt, Nancy Halstead, Exhibit 2, and an overwhelming majority of the patients in this case, clearly support Dr. Sloka’s contention that all GRH gowns had a single tie at the neck – despite the Crown’s contention to the contrary.

340If a gown were required for the examination, Dr. Sloka would typically retrieve it from the linen closet in the examination room and provide it to the patient. Numerous patients recalled him doing this. On some occasions, like the first appointment of the day, his secretary had already placed a gown on the examination table.

341The type of examinations contemplated dictated what clothes patients needed to remove. Dr. Sloka would inform patients about the clothing they needed to remove and how they should wear the gown (tied and opened at the back). He then departed the examination room to allow patients to get changed in his absence. Once changed, patients opened the door to signal their readiness for the commencement the examination.

e) The Presence of Third Parties for Examinations

342If the patient brought a third party into the office for the consultation, Dr. Sloka would not on his own suggest that the person accompany the patient into the examination room. However, if the patient asked that the third party be present for the examination, Dr. Sloka obliged. Otherwise, Dr. Sloka advised the third party that they were welcome to either remain in the office or return to the waiting room.

343Nancy Halstead gave evidence that she sometimes acted as a chaperone for patients who did not want to be alone for their examinations. Between 2015 and 2019, he asked her about once per month. Dr. Sloka usually gave her advanced warning on the day of the examination. When he asked, she would ask him for an explanation of the clinical purpose of the examination. When Ms. Halstead encountered the patient, she confirmed the patient’s understanding of the purpose of the examination and the patient’s consent to that examination. She witnessed numerous skin examinations. She also witnessed one breast examination and one pelvic examination.

344Many complainants in this trial did not attend their initial consultation with a third person, but many did. The vast majority did not have a person accompany them into the examination room, but some did. The Crown suggests that six complainants claimed that Dr. Sloka prevented them from bringing a third person into the examination room: K.A.-C., K.L.G., S.T., J.P., J.B., and J.W. I disagree with the Crown’s characterization of this evidence. As will be discussed with the assessment of each individual count, I was unable to find any reliable claim that Dr. Sloka prevented patients from bringing a third party into the examination room.

v. The Standard Neurological Examination

345Dr. Sloka did not believe that all neurologists followed chapter and verse a single standard neurological examination. However, Dr. Sloka with the exception of some minor adjustments over time, utilized a standard set of physical tests and performed then in a standard sequence.

346Patients did not necessarily wear a gown for their neurological examination. The need for a gown depended upon the presenting complaint and the other examinations that Dr. Sloka planned to conduct. Sometimes, patients wore their street clothes for a neurological examination. Sometimes, they wore a gown but only removed clothing from the upper half of their body. Sometimes, they wore a gown and removed all clothing but their underwear.

a) Head

347The first phase of the neurological examination concerned nerves associated with the head. Dr. Sloka began by having the patient sit on the edge of the examination table. He shut off the lights and examined both eyes with an ophthalmoscope, checking for the constriction of pupils and examining the inner eye (including the optic nerve, for example). Dr. Sloka would then shine the ophthalmoscope into the patient’s mouth and ask them to say “ah” while observing the movement of the uvula. Then, Dr. Sloka would turn the lights back on.

348Next, Dr. Sloka examined the patient’s cranial nerves. He did so by testing the patient’s sensation to light touch on the forehead, cheek, and jaw, bilaterally, to determine if the patient felt normal and consistent sensation on both sides of the face.

349Dr. Sloka then examined the patient’s eye movements, to ensure the eyes moved in unison.

350Dr. Sloka then tested the functioning of the facial nerve by having the patient raise their eyebrows, close their eyes tightly, and show their teeth.

351Dr. Sloka also tested a patient’s hearing by rustling his fingers near their ears.

352Next, Dr. Sloka assessed the power in the patient’s shoulder muscles by pressing down on the patient’s shoulders while the patient attempted to shrug. He followed up by testing the patient’s neck muscles by placing one hand on the patient’s shoulder and one hand on their jaw, then asking the patient to turn their head against the opposing force of his hand.

353Finally, Dr. Sloka would test the patient’s visual fields, by moving his hand to the patient’s peripheral view and assessing for any blind spots in their peripheral vision.

b) Hands and Arms

354Dr. Sloka began the assessment of his patient’s hands and arms by having them close their eyes and hold out their arms with their palms turned upwards for 10-15 seconds. He watched to see if their hands moved, which would signal pronator drift.

355Next, Dr. Sloka tested the patient’s sensation to light touch on various locations on their arms, right up to their shoulder, to test the sensitivity of five different nerves in the arm. At each location, he tested one arm and then the other.

356After testing for sensation, Dr. Sloka tested a set of nerves that sense pain and temperature, by using his tuning fork or reflex hammer to test their ability to feel the cold metal of the instrument. He would also strike the tuning fork against the heel of his hand to make it vibrate and then place it on the nail beds of each thumb to see if the patient could feel the vibrations.

357Next Dr. Sloka tested for power, strength, and muscle tone in the muscle groups of the arms. With each muscle group, he applied force and asked the patient to oppose the force.

358While assessing the patient’s hands and arms, Dr. Sloka observed their surface for any signs of muscle twitching or muscle atrophy/wasting (tone). He was also able to incidentally observe the patient’s skin.

c) Lower Body

359Dr. Sloka’s examination of the legs was similar to his examination of the hands and arms. He tested for sensation not light touch, pain and temperature, and power and strength. He also looked for any twitching or muscle atrophy (tone). When testing for sensation, he tested from the toes to above the knee.

360Dr. Sloka’s method for testing strength in the leg muscles changed after the first year or two of his practice. During the first year or two, he asked the patient to lay down on the examination table, hold their thigh perpendicular to the table and bend their leg at the knee, so that their shins were parallel to the table. He then asked the patient to press their knee towards their chest and against the opposing force of his hand. He denied, though, that he ever stood at the foot of the examination table and asked patients to press down with their legs or feet. Dr. Sloka found that his early method proved too sensitive and detected too many minor differences between legs. Consequently, by the second year of his practice, he changed his method and asked patients to sit for the leg strength examination. Using this method, he asked the patient to bend their foot upwards against the opposing force from his hand. Next, he would grab the patient’s ankle and have them extend their leg against the opposing force of his hand. Then, he would have the patient attempt to retract their extended leg, pulling it to its original position, again against the opposing force of his hand. Next, he would ask the patient to raise their knee off the examination table against the opposing force of his hand.

361When examining the muscle tone of the patient’s leg, he had the patient lay back on the examination table.

d) Reflexes

362With the patient sitting upright on the examination table, Dr. Sloka next tested for reflexes using a reflex hammer. He used the hammer to strike various tendons and assess the reaction of the associated muscle. He tested reflexes above the wrist, behind the elbow, below the patella, and at the Achilles tendon. He also tested the Babinski reflex by drawing the metal portion of the hammer along the bottom of the foot to see whether the toes curled up or down.

e) Gait

363Dr. Sloka tested a patient’s gait by asking the patient to get up from the examination table and walk up and down the room. Sometimes, he also asked them to walk heal-to-toe, which would allow him to assess multiple functions.

f) The Cardiac Examination

364Dr. Sloka testified that he was trained to conduct cardiac examinations as part of a standard investigation of various patient presentations, including the following: headaches, seizures, losses of consciousness, dizziness, stroke-like symptoms, and concussions. He believed his approach was supported by medical literature and guidelines. He also testified that he conducted cardiac examinations before prescribing medications with cardiac contraindications. He learned about the contraindications of medications from their product monographs.

365Based upon the extensiveness of his training, Dr. Sloka believed himself to be proficient at conducting cardiac examinations. He testified that three of his patients had cardiac surgery after he discovered cardiac issues while performing cardiac examinations.

366As with all examinations, he obtained consent in his office. To facilitate an effective cardiac examination, Dr. Sloka asked his patients to remove all clothing from their upper body before putting on a gown, with the gown opened at the back. If they consented, he would perform a full cardiac examination. If they did not consent, he would explore alternatives, which I will discuss in due course.

367If the appointment also involved a neurological examination, Dr. Sloka always did the neurological examination first. He was trained to conduct the examinations that involve the least exposure first. A cardiac examination involves more exposure than a neurological examination.

368The examination begins with the patient sitting upright on the examination table with their legs stretched out along the length of the table. In his office, the patient’s legs point towards the hallway door. Dr. Sloka would stand to the patient’s right (the wall is to the patient’s left) and begin by using a stethoscope to listen at the upper right portion of the patient’s back. He was trained to listen there because some heart murmurs radiate to that location.

369Next, Dr. Sloka conducts a “modified” respiratory examination, listening to lung fields on both sides of the torso while asking the patient to breath in and out. He listens at six to eight locations. Listening to a patient’s respiratory function can provide information about the heart’s ability to pump blood to the lungs. If the heart is not pumping properly, blood can pool in the lungs, which can be heard on auscultation. In accordance with the manufacturers instructions, he places the stethoscope directly against the skin of the patient to optimize auscultation. While listening, Dr. Sloka would take the opportunity to passively observe the exposed skin for any abnormalities.

370Next, Dr. Sloka asks his patient to lay on their back, so that he can listen to five areas on the patient’s chest that enable auscultation of five areas of concern. A diagram of the recommended areas of auscultation was entered and marked as Exhibit 139. Dr. Sloka listened to these areas in a sequence, beginning at the top of the patient’s chest, area one on the diagram. Then he would listen to area two.

371Dr. Sloka would then ask the patient if they could lower the left side of their gown so that he could listen to the other locations, which were further down. Each of the remaining areas corresponds to a different heart valve. Auscultating at these locations allowed Dr. Sloka to listen for any abnormalities in blood flow as the blood passed through the valves. He typically listened to area four, then area five. While still listening to area five, he would ask the patient to sit upright, which enhanced his ability to hear a murmur from this location. Lastly, he would listen to area three, which allowed him to listen for abnormalities between the two halves of the heart. He listened to area three in most but not all patients. He listened to each area for five to ten seconds.

372Dr. Sloka testified that, during a cardiac examination, he may come into contact with the breast of a female patient. In women with larger breasts, he may need to displace the breast tissue to enable placement of the stethoscope at area five. Before doing so, he would seek the patient’s consent. Once granted, he would use the back of his hand to displace the breast tissue. Dr. Sloka also acknowledged that a portion of the hand holding the bell of the stethoscope might, on occasion, make incidental and accidental contact with a patient’s chest or breast tissue. He denied cupping or groping any patient’s breasts during any cardiac examination.

g) Modified Cardiac Examinations

373Some patients declined to expose their left breast for a cardiac examination but nevertheless agreed that Dr. Sloka could listen to their heart. In those circumstances, Dr. Sloka proposed two alternatives. He called one option a “limited cardiac examination” and the other option a “minimal cardiac examination.”

374The limited cardiac examination entailed Dr. Sloka snaking the stethoscope down the patient’s top to the various auscultation locations. He would then hold the bell of the stethoscope from the outside of patient’s clothing at each auscultation area, with the exception of area five. He could not auscultate at area five using this method.

375The minimal cardiac examination involved placing the bell of the stethoscope on top of the patient’s clothing. This method was not ideal. The diaphragm of the stethoscope could not form a proper seal against the skin. Also, the clothing itself would create noise. Using this method, he would not expect to hear anything less than the sound of a very loud murmur. Consequently, he only listened at one location at the centre of the chest.

h) Respiratory Examination

376As mentioned, a partial respiratory examination constituted a component of every cardiac examination.

377On occasion, Dr. Sloka also conducted a complete respiratory examination on some patients. He would conduct one if investigating complaints regarding shortness of breath, chest pain, or a cough.

378Dr. Sloka would begin the respiratory examination by listening to the lungs through the back, as described in the segment concerning his cardiac examinations.

379Next, Dr. Sloka would listen to the apices of each lung by placing the stethoscope at the top of the patient’s chest on both sides and asking the patient to breath in and out. He would then move the stethoscope down each side of the patient’s chest, listening to four different points on each side along the way. To facilitate this, he would obtain the patient’s consent to move the relevant portion of their gown. He would not fully expose the chest, because he listened to one side at a time. The opposing side would remain covered.

vi. Skin Examinations

a) The Rationale for Skin Examinations

380Dr. Sloka understood the skin and nervous system to derive from the same source during embryonic development – the neuroectoderm. Consequently, some genetic disorders can affect both the skin and the nervous system. Like Dr. Bril, he referred to these diseases as neurocutaneous diseases. These genetic disorders therefore produce a high rate of neurological conditions like seizures, headaches, and vision loss. Some syndromes produce tumors which can arise in the brain or nerves.

381If a patient’s history suggested to Dr. Sloka the possibility of a neurocutaneous disease, he would propose conducting a skin examination to look for evidence of that disease.

382The Crown argues that Dr. Sloka did not have an invariable practice “with respect to investigating neurocutaneous syndromes” and therefore cannot rely upon an “invariable practice” to justify any skin examination conducted in this case. In my view, the Crown mischaracterizes his evidence and employs a false logic. I will begin with an assessment of the Crown’s logic.

383Put succinctly, the Crown argues that, because Dr. Sloka could not identify every situation in which he might screen for neurocutaneous disease or conduct a skin examination, he could not look at the circumstances of any patient in this case and justify the skin examination alleged by the patient. At common law, a witness with no recollection of an event may rely upon an invariable practice to prove that, on a given occasion, they conducted themselves in accordance with that invariable practice, thereby proving that an event occurred. Dr. Sloka did not purport to do that in this trial. He did not rely upon an invariable practice to prove that skin examinations occurred. Instead, in the absence of a memory, he conceded the patient’s allegation of the event (the skin examination) and relied upon the documented clinical context (patient history, presenting complaint, and his documented impressions) and his training, education, and experience to infer a rationale. At times, he also relied upon his training, education, and experience to explain why he would not be motivated to propose a skin examination in a specific documented clinical context. He was entitled to do so. As Justice Doherty stated in R. v. Pilon, 2009 ONCA 248 at paragraph 33:

Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely: R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the positions of the parties: David Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2008), at pp. 25-26. Evidence of a person's disposition and his or her habit may provide circumstantial evidence that a person acted in a certain way on a given occasion: R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.), at pp. 536-37; R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 30 O.R. (3d) 161 (C.A.), at p. 176.

384On the evidence at trial, a pattern emerges: Dr. Sloka frequently conducted skin examinations on patients who had apparently suffered seizures. Moreover, Dr. Sloka’s consultation letters disclose that screening questions regarding stigmata of neurocutaneous disease arise in cases where the possibility of a seizure was under consideration. In Ms. L.F.’s case, when writing a consultation letter to Ms. L.F.’s family doctor, Dr. Sloka explicitly drew a connection between a proposed (but deferred) skin examination and Ms. L.F.’s possible seizures. The fact he was willing to explicitly declare a belief in the validity of this connection to Ms. L.F.’s family doctor provides powerful circumstantial evidence of the sincerity of Dr. Sloka’s contemporaneous belief about the association between seizures and NF1. A family doctor is an educated audience, who (according to Dr. Bril) is trained to conduct skin examinations to search for stigmata of neurocutaneous disease. I find it highly unlikely that Dr. Sloka would express this rationale to Ms. L.F.’s family doctor if he did not believe it to be true.

385Dr. Sloka also explained his rationale for conducting skin examinations to Nancy Halstead and Amanda Plozzer when enlisting their assistance as chaperones for skin examinations. These were nurses from the neighbouring stroke unit at the hospital. Ms. Halstead testified that Dr. Sloka enlisted her assistance on a monthly basis. Both of them testified that they would confirm the patient’s understanding of the rationale behind the examination and confirm the patient’s consent before the commencement of the examination. To be clear, neither of these nurses provided evidence about a specific count before the court. Nevertheless, they provide highly probative circumstantial evidence on the question of Dr. Sloka’s sincere belief that skin examinations could properly occur in the context of his neurological practice and his sincere belief in the rationales he provided to them. I find it highly unlikely that Dr. Sloka would knowingly provide fraudulent rationales to medically trained nurses and conduct skin examinations in their presence if he believed that his rationales were false and that he should not be conducting skin examinations in his neurological practice.

386The Crown relies upon a passage from Dr. Sloka’s evidence in-chief, in which he was asked to name a series of symptoms that might cause him to investigate the possibility of neurocutaneous disease: seizures, headaches, numbness, soreness, tingling, weakness, spinal cord syndromes, leg symptoms, bowel or bladder changes, changes in sexual function or loss of vision. However, he did not suggest each one of these symptoms, standing alone, would cause him to propose a skin examination. He never, for example, stated that skin examinations formed part of his standard assessment of headache patients. Indeed, the evidence at this trial establishes that skin examinations were not part of his standard assessment of headache patients. Consequently, I disagree with the Crown that he walked back his position in cross-examination. In cross-examination, the Crown asked Dr. Sloka to list the “situations” in which he would “screen” for “neurocutaneous disease.” “Neurocutaneous disease” is a term which encompasses several diseases, not just NF1. Dr. Sloka struggled to provide a list of all “situations” in which he might “screen” for neurocutaneous disease. That is not surprising. The question was worded too broadly. It was akin to asking a surgeon to identify all “situations” in which he might choose to operate. And it did not undermine Dr. Sloka’s consistent position that he considered proposing skin examinations for all possible seizure patients. It also did not undermine Dr. Sloka’s consistent position that the proposal of examinations depended upon the specific clinical context. This explains his evidence regarding the impact of a patient’s response to questions about stigmata of neurocutaneous disease. Viewed as a whole, Dr. Sloka’s evidence stands for the proposition that Dr. Sloka would recommend a skin examination if a patient, in response to screening questions about stigmata, informed him of sufficient stigmata or was uncertain about whether sufficient stigmata existed. The record reveals that this screening question was posed to suspected seizure patients. The Crown’s effort at parsing the record to suggest inconsistency was not convincing. Dr. Sloka consistently maintained that he asked screening questions about stigmata of neurocutaneous disease “at least [in situations] with loss of consciousness and potential for seizures.” He consistently maintained that the answers to those questions influenced whether he proposed a skin examination. In counts involving allegations of skin examinations, Dr. Sloka looked at the patient’s medical chart, discerned that the documented clinical presentation involved episodes that raised the possibility of a loss of consciousness or seizure, and inferred from the documented circumstances the rationale for the alleged skin examination – a rationale that was derived from his standard approach to suspected seizure patients. Dr. Sloka’s evidence was, in my view, logical and compelling.

387Dr. Sloka believed NF1 (neurofibromatosis one) to be the most common type of neurocutaneous disease and one of the most common types of genetic disorders. It occurs at a rate of between one in 2,500 and one in 3,000 in the population. That ratio estimate comes from the text Neurofibromatosis in Clinical Practice by Rosalie Ferner, Susan Huson, and Gareth Evans, which Dr. Sloka considered to be the authoritative text on neurofibromatosis, just as Dr. Bril did. The text also indicated a bare minimum ratio of one in 4,000 to one in 5,000. Dr. Sloka observed that NF1 is more common than Huntington’s disease, muscular dystrophy, cystic fibrosis, and Tay-Sachs disease combined. In half the cases, it is inherited. The other half arise spontaneously through genetic mutation. There are no asymptomatic carriers. The NF1 mutation inhibits the body’s ability to supress cell division, which results in cell overgrowth – tumors.

388In his practice, Dr. Sloka treated approximately ten patients with NF1, half of which he diagnosed. Another four or five patients came close to possessing the clinical criteria for NF1 but fell just short. These claims stood unchallenged.

389Dr. Sloka also had four or five other patients with a different neurocutaneous disease, tuberous sclerosis. This claim stood unchallenged.

390To his understanding, clinical diagnoses of NF1 could be made by several types of physicians, including pediatricians, family physicians, dermatologists, and neurologists.

391Dr. Sloka testified that during his time in practice, he was aware that other clinics were doing screening for NF1, including neurology clinics such as epilepsy clinics. He specifically remembered a world-famous clinic in Cleveland as one example. This claim stood unchallenged.

392In Dr. Sloka’s experience, a patient could learn of their NF1 diagnosis in many ways. For example, some may be alerted by their family history. Some may discover a lump which prompts a biopsy and physical examination. Some may suffer from neurological symptoms and obtain a clinical assessment of their symptoms including a full examination. Sometimes a physician will notice café au lait spots and refer the patient to a neurologist for assessment.

393Dr. Sloka learned that patients with NF1 had a higher incidence of seizures than those in the general population. NF1 patients may also experience a loss of vision when a tumor compromises the optic nerve. Others may suffer bowel, bladder, or sexual dysfunction when a tumor compromises the relevant segment of the spinal cord. Dr. Sloka also understood that NF1 patients have a significantly increased risk of developing cancer, including a five-fold risk of developing breast cancer. Patients with NF1 ought to be screened earlier and more often for cancer.

394Just as Dr. Bril had testified, Dr. Sloka testified that the diagnostic clinical criteria for NF1 are set out on in the Ferner text. That text cited as its authority the National Institutes of Health Consensus Development Conference Statement by the American Medical Association in 1988. Dr. Sloka understood that the seventh and eighth criteria listed by Ferner were considered a single criterion by the Conference. Satisfaction of any two of the criteria will result in an NF1 diagnosis. The criteria can be found in an excerpt from the Ferner text, which is marked as Exhibit 219.

395Dr. Bril had testified that an MRI was a sufficient means by which to arrive at an NF1 diagnosis. Dr. Sloka disagreed. He noted that an MRI is not part of the diagnostic clinical criteria listed by Ferner. Additionally, he considered an MRI impracticable. A head MRI would not suffice, because neurofibromas can arise anywhere in the body. He testified that the Waterloo Region lacked the resources to deploy an MRI to screen every seizure patient from head to toe for NF1.

396Dr. Sloka also preferred a clinical evaluation over genetic testing. Genetic testing did not begin to become more widely available until after 2015. It was also less accurate than a clinical assessment. The authoritative Ferner text indicated that genetic testing was considered 95 percent accurate Dr. Sloka pointed to excerpts of the authoritative Ferner text to support his position that a full clinical evaluation was considered preferrable to genetic testing – see Exhibit 219. According to the authors, at page 74 of the text,

Although molecular genetic testing is now available for NF1 and NF2, for neither condition is mutation detection 100% and the presence of genetic mosaicism in sporadic cases complicates the situation further. Prior to any molecular testing full clinical evaluation, with radiological and histological review if indicated is essential.

At page 118 of the text, the authors also indicated that, until recent improvements in genetic testing, there had been little use of genetic testing in clinical practice. The authors also noted, “In the majority of cases the diagnosis of NF1 is straightforward and the NIH diagnostic criteria have stood the test of time.” Dr. Sloka testified that the observations in the Ferner text were consistent with his understanding during the time of his practice. When he practiced, he considered the clinical criteria identified in the Ferner text to be the “gold standard” for the clinical evaluation of suspected NF1 patients.

397When conducting a skin examination for NF1, Dr. Sloka searched for café au lait spots, freckling in the axillary and inguinal regions, and visible signs of any neurofibromas. Sometimes the contours of neurofibromas can appear as lumps beneath the skin. While conducting the skin examination, Dr. Sloka would also keep an eye out for skin findings relevant to other neurocutaneous diseases.

398The Crown challenged Dr. Sloka’s clinical evaluation of possible NF1 patients both during cross-examination and in their submissions, with a view to establishing that Dr. Sloka was actually unconcerned with investigating the possibility of NF1 and instead was really only interested in sexually exploiting his patients. To that end, the Crown suggested that Dr. Sloka purported to rule out NF1 using a skin examination even though the absence of skin findings may not necessarily preclude a clinical diagnosis. The Crown also suggested that Dr. Sloka displayed a lack of interest in the other clinical criteria because he did not document inquiries about them, such as inquiries about any family history of NF1. The Crown also suggested that Dr. Sloka had a weak understanding of the Lisch nodule criterion. Similarly, the Crown suggested that Dr. Sloka displayed a weak understanding of the diagnostic criteria “thinning of the long bone cortex.” In my view, Dr. Sloka answered all these challenges during cross-examination and the Crown’s submissions on these points lack merit.

399Dr. Sloka understood that a skin examination could not rule out a diagnosis of NF1. Only two of the eight criteria are required for a diagnosis, neither of which might be a skin finding. He denied telling patients that a skin examination could rule out NF1. However, he also understood that skin findings were the most commonly appearing NF1 criteria. Accordingly, the absence of any skin findings diminished the likelihood of him identifying other criteria. He also understood from the medical literature that a skin examination could be considered when investigating NF1 as an explanation for a patient’s seizures:

But if – if they don’t have the skin findings, then it does go a long way to reduce the chance that NF1 would be a contributing factor to their presentation and seizures let’s say. At least that’s how I understand it. And I think that’s why it’s suggested in the literature that a skin examination can be considered, again that’s my understanding.

The Crown called no evidence to prove his understanding of the literature was incorrect. Indeed, Dr. Bril’s letter of June 13, 2016, sent to the CPSO on his behalf, support’s Dr. Sloka’s stated belief that a skin examination is part of the proper clinical assessment of any suspected NF1 – see Exhibit 215.

400The Crown suggested to Dr. Sloka that he did not ask his patients about the existence of NF1 in their family history – which he could expect in half of all NF1 patients. They based this suggestion on his failure to document the absence of any family history in the history portion of his consulting letters. However, Dr. Sloka testified in-chief that he asked his patients, “does anything run in the family” when taking the history of his patients. The Crown did not challenge this assertion in cross-examination. He testified that if a patient disclosed a family history of NF1, he would document it.

401The Crown argues that Dr. Sloka had a poor understanding of Lisch nodules. I disagree. Dr. Sloka testified in cross-examination that Lisch nodules are usually observed during a slit lamp examination. He explained that a slit lamp is a machine used by an ophthalmologist to examine the patient’s eye. The Crown subsequently suggested that Lisch nodules could be seen with the naked eye and that, accordingly, he could have examined for Lisch nodules at his clinic. However, Dr. Sloka stated, “I don’t think I can tell Lisch nodules just by looking at the eye.” In the absence of any evidence, the Crown argues that they can. Dr. Bril gave no evidence on the topic. In an effort to prove that Lisch nodules can be seen with the naked eye, the Crown presented to Dr. Sloka an excerpt from the Ferner text (Exhibit C) which explained how the nodules were first visualized in 1937 by an Austrian ophthalmologist named – wait for it – Karl Lisch. The excerpt indicated that, “Lisch nodules do not cause symptoms, but are pathognomic [sic] of NF1 and slit-lamp examination confirms their presence in virtually all adults with the disease (Fig. 1.21).” The excerpt also contained figure 1.21, which purported to be an image of an iris with Lisch nodules present. The Crown suggested, without evidence, that the image proved that Lisch nodules are visible with the naked eye. However, the quoted passage connotes that the image seen figure 1.21 is in fact the product of a slit lamp examination. Rather than undermine the reliability of Dr. Sloka’s understanding of Lisch nodules, the Crown inadvertently buttressed it.

402The Crown also argues that Dr. Sloka possessed a poor understanding of the diagnostic criteria “thinning of the long bone cortex.” Dr. Sloka testified that this criterion applied to the thinning of the material on the outside of the bones in the leg. Dr. Bril gave similar evidence. When describing the long bone cortex, she mentioned the tibia, the bone extending from the knee to the ankle. She did not mention any other bone. Without any evidentiary basis, the Crown suggested to Dr. Sloka that the bones in the arm could also be considered long bones. In response, Dr. Sloka stated, “I’m not sure I know the exact definition for that.” The Crown argues that this answer betrays a poor understanding of the criterion. I disagree. The Crown made a factual suggestion without proffering any factual foundation for that suggestion. The suggestion also differed from the description provided by their own expert. Dr. Sloka’s puzzlement is not surprising. It does not reveal a poor understanding of the criterion in question.

403In addition to investigating the possibility of NF1, Dr. Sloka conducted skin examinations to look for skin manifestations of other conditions. For example, Dr. Sloka believed that some autoimmune diseases were on the differential diagnosis for MS and optic neuritis. His belief was based upon his training and his understanding of the medical literature. Evidence for that belief can be found in the bloodwork he ordered for Ms. J.C. and Ms. K.S.-B. Given the feedback he received from other neurologists who also treated these two patients (Dr. Vincent and Dr. Mandalfino, respectively), Dr. Sloka possessed a basis for concluding his belief was reasonable. Dr. Vincent praised Dr. Sloka’s workup for Ms. J.C. Dr. Mandalfino ordered similar bloodwork for the purpose of investigating the possibility of MS mimics. Dr. Sloka also testified that these autoimmune diseases could become manifest in the skin. Dr. Sloka cited lupus as one autoimmune disease that can result in skin lesions. Consequently, in addition to ordering bloodwork, he would propose a skin examination to look for evidence of these autoimmune diseases.

404Dr. Sloka testified that, according to his training and the medical literature, skin examinations could be considered to investigate the possibility of paraneoplastic syndrome (an immune reaction to the presence of cancer in the body) or cancer.

405Dr. Sloka also testified that, according to his medical training and medical literature, skin examinations could be conducted in conjunction with other examinations (breast and visual field examinations) as part the assessment and monitoring of patients with pituitary adenomas. Patients with pituitary adenomas can acquire skin markings from abnormal pituitary hormone production.

b) Dr. Sloka’s Methodology

406Dr. Sloka purported to employ a standardized methodology for conducting full-body skin examinations.

407If Dr. Sloka believed the patient’s history warranted a skin examination, he would propose the skin examination to his patient.

408For example, in the case of suspected seizures, Dr. Sloka asked a routine set of screening questions that inquired into common seizure risk factors, when obtaining the patient’s relevant medical history. Several of his initial consultation letters in this trial document his inquiry into common seizure risk factors. One of the questions concerned the presence of stigmata of neurocutaneous disease, which Dr. Sloka considered a seizure risk factor. If the patient identified the presence of a sufficient number of stigmata or was unsure about the presence of a sufficient number of stigmata, Dr. Sloka would propose a skin examination. As will be seen in the count-to-count assessment of the evidence, there were numerous occasions in which Dr. Sloka stated, “no stigmata of neurocutaneous disease,” but nevertheless acknowledged he performed one. I have considered his evidence on this point on each count and accept his explanation that, when employing such a phrase, he meant to connote that there were no stigmata that the patient knew of. On numerous occasions throughout the trial, I noticed that both Dr. Bril and Dr. Sloka possessed poor communication skills, used malapropisms, conveyed information unclearly, and spoke idiosyncratically. I found myself repeatedly attempting to translate their diction into more concise and intelligible language.

409When obtaining the patient’s consent to a skin examination, Dr. Sloka would explain what he was looking for and why. He would also explain that he needed to examine the entire surface of the skin.

410After obtaining the patient’s consent to whatever examinations were proposed, Dr. Sloka would take the patient into the examination room. For skin examinations, he instructed his patients to remove all their clothing and underwear and to put on a gown, with the opening at the back. Some patients preferred to keep their underwear on.

411Dr. Sloka asked patients to stand under the overhead light in the middle of the examination room. The window provided some ambient light. At all times, his backed faced the window as he faced the patient. As needed, he would direct the patient to rotate, to take advantage of the ambient light from the window.

412Dr. Sloka began by examining the head while the patient faced the window. Sometimes, he looked in patient’s hair. Otherwise, he began by examining their forehead, their face, their ears, the underside of their chin, and their neck.

413Afterwards, Dr. Sloka asked the patient to rotate, so that he could examine their back. He asked the patient to untie their gown to reveal their back, while he held the gown closed at the waist and lifted it sufficiently to allow slack for the upper portion of the gown to spread open. He then looked for skin markings on the neck, shoulders and back. If hair obscured his view, he asked the patient to move their hair.

414Dr. Sloka next examined the patient’s arms. To do so, he had the patient remove one arm, while holding the gown in place with the other arm. He then had the patient hold the exposed arm to permit examination. He would then have the patient hold the gown in place with that arm while the other arm was removed for inspection.

415Once both arms had been inspected, Dr. Sloka would ask the patient to lower the gown and hold it at their waist to permit inspection of the front of their torso. When asked to explain the location in which the patients held the gown, Dr. Sloka suggested that the waistline of each patient varied, but that the gown was held below the belly button. Despite the Crown’s contentions to the contrary, Dr. Sloka specifically denied having the patient hold the gown at their pubis:

I would say that they would – I would ask them to hold it to their waist wherever their waist would be, and I would scan from where the bellybutton is down to the – the gown wherever that is. It wouldn't – it wouldn't be at the pubic line. It would be somewhere above it.

416When examining female patients with larger breasts, Dr. Sloka would seek permission to displace the breast to examine the skin concealed beneath it. With permission, he would lift the breast tissue with the base of his thumb and look underneath.

417After examining the torso, Dr. Sloka would direct the patient to put their arms back in their sleeves. He would then examine their lower extremities.

418Dr. Sloka would look at one leg at a time, by having the patient extend one leg forward and move the gown to allow for inspection of the extended leg from the groin crease to the toes. As necessary, Dr. Sloka asked the patient to rotate the leg, so that he could see around the full circumference of the leg. To examine the lower part of the leg, Dr. Sloka would kneel on one knee.

419Dr. Sloka testified that he would examine the buttocks after examining the first leg and before examining the second. According to Dr. Sloka, he only examined the intergluteal cleft (the area between the buttocks) if there was particular cause for concern. If an examination was required, he would ask the patient to spread their buttocks.

420After examining the second leg, Dr. Sloka would seek permission to examine the inguinal area for inguinal freckling. To that end, he would ask the patient to move the gown aside. Some patients moved the gown entirely aside. Others moved the gown to one side and then the other. He estimated that an examination of the inguinal area might take five seconds, because it is a small area.

421Dr. Sloka testified that he rarely touched a patient’s skin during a skin examination. He might do so if he noticed a lump. If he touched a patient’s skin, he would seek permission first.

422For the most part, skin examinations were visual ones. To permit inspection, Dr. Sloka positioned his face about a foot or two from the patient’s skin. Dr. Sloka testified that he did not wear reading glasses for vision during his practice but had begun wearing them by the time of trial. He could not be certain when his near sight began to deteriorate and the degree, if any, this impacted his proximity during a skin examination.

423The Crown contends that Dr. Sloka’s testimonial description of his skin examination method differed from the description he provided in his October 28, 2015, letter to the CPSO. I see no meaningful difference. While it is true that Dr. Sloka wrote, “I only inspect small areas of the skin surface at any given time, using the gown to cover up the areas not being examined” and “I can only examine a small local area at a time and therefore uncovering local regions is the only approach that makes sense,” Dr. Sloka also provided an elaboration which is essentially consistent with his trial testimony:

For the skin exam portion of the examination, I ask the patient to stand (with their gown on) beneath the ceiling light. I will examine the skin on their face/ears/neck, turn them around and examine the skin on their back. After this I ask the patient to face me again so that I can examine each arm separately. I then ask the patient to lower the gown so that I can examine the skin on the front of their trunk. For women, this means briefly exposing their breast and abdominal areas. In those circumstances my usual practice is to ask the patient again if it is OK for me to examine the skin on and around their breast/chest area. If necessary, because of a patient’s particular body habitus, I may need to displace the breast tissue using the pad of my thumb. When I do this, I categorically do not “cup” the breast. In my experience, using the pad of my thumb seems the easiest and least intrusive way to look underneath or beside the breast tissue for telltale neurofibroma markings. After this I examine the front of the trunk which includes the abdominal and lateral torso area. Obviously, if a skin marking is found I will look at it more closely.

In my review of Dr. Sloka’s trial testimony, I conclude that he purported to systematically expose discretion portions of his patient’s body while other portions remained draped. Implicitly, he conducted the examination in this fashion to respect the privacy of his patient during an inherently intrusive examination. His trial testimony mirrored the description he provided to the CPSO.

424The Crown contends that Dr. Sloka’s own stated method of conducting skin examinations ran afoul of the methodology condoned by Dr. Bril. I disagree for several reasons. First, the Crown never asked Dr. Bril to review and provide an opinion about the propriety of the methodology Dr. Sloka’s standard NF1 skin examination, as described in his October 28, 2015, letter to the CPSO. Indeed, the Crown did not ask Dr. Bril to provide a step-by-step description of the proper methodology involved in a full-body skin examination conducted in search of stigmata for neurofibromatosis. Instead, the Crown approached the issue less directly, in more general terms.

425The excerpt of Dr. Bril’s evidence upon which the Crown relies can be found in the transcript form September 28, 2022, on pages 74 to 75. At one juncture in this passage, Dr. Bril stated that it was never appropriate for a patient to stand completely naked for a skin examination. In answer to a follow-up question, she also stated that it was never appropriate to have a patient naked from the waist up or from the waist down. However, a review of this passage of evidence reveals that the Crown never asked Dr. Bril to provide a breakdown of the appropriate methodology to be employed during a full-body search for stigmata of NF1. Instead, the Crown explored the area of skin examinations more generally. In giving her answers, she appeared to initially address more targeted searches for specific issues identified by the patient. When asked about skin examinations involving the entire body, Dr. Bril opined that the neurologist should look at exposed segments, to preserve patient privacy elsewhere on the body. In that regard, she stated that a neurologist could look at the entire exposed back, so long as the front remained draped. The Crown then asked about examination of the chest. Dr. Bril agreed that the entire chest could be exposed to facilitate its inspection, as long as the abdomen was covered. Here, again, her answer was couched on the premise that the patient had identified a specific issue (like a rash) covering the entire chest. It was clear that she was not addressing her mind here to any searches for stigmata of NF1. Also, the Crown never asked about the exposure of the entire front of the torso in furtherance of an examination of that entire area for café au lait spots or axillary freckling. To properly understand the nature of Dr. Bril’s evidence and its limited utility as a critique of Dr. Sloka’s NF1 skin examinations, reproduction of the full passage is necessary:

MS. FORWARD: Q. As a neurologist, is there ever a reason to have a patient completely naked?

A. No.

Q. As a neurologist, is there ever a reason to have a patient naked from the waist up?

A. No.

Q. What about from the waist down?

A. No.

Q. In some circumstances, I understand a neurologist may perform a skin exam?

A. Yes, infrequent, but yes.

Q. And we’ll talk about that – skin exams in more detail later, but while we’re talking about draping, as a neurologist, what’s the standard – standard practice with respect to draping when examining the skin?

A. We would tend to examine only areas where the patient has raised an issue for us that we felt we needed to look at. So, if for example you started a patient on the medication and they say they got a skin rash from it, we would ask, "Where is the rash?" and they would tell you and then you would ask if you could look at it and you would drape the other areas that you don’t need to see that the patient hasn’t complained of a skin rash, for example. So, you would look – you would do a directed exam areas that the patient has noted to be abnormal and you would drape other areas that you don’t need to see.

Q. Hypothetically, if there were a need to examine all of the skin surface, what would be the standard practice for draping in that circumstance?

A. You would drape – you would look at sections at a time and drape off the rest of the body.

Q. And how big would those sections be?

A. You could look at the entire back for example down to the level of the waist as long as the front is covered. It depends on the area. You still have to maintain modesty.

Q. What about the front – the front chest area?

A. The front chest area again, unless they complain that they have a rash covering their chest, it should not be examined routinely. If they said they have a rash all over their chest, you may then have to look at the full chest in which you would cover the abdomen, the lower body and then if you’re looking at the – the lower part, you would cover the upper part, if there was a complaint in the area.

Dr. Bril also testified that there is no standard way to drape a patient. In saying this, Dr. Bril implied variability in the methods employed by neurologists to ensure the protection of a patient’s privacy and dignity. Viewed in its entirety, I do not read the above quoted passage as an indictment of the methodology employed by Dr. Sloka during his NF1 skin examinations.

vii. Breast Examinations

a) The Rationale for Breast Examinations

426Dr. Sloka would propose breast examinations for several reasons:

(1) If a patient reported a breast lump;

(2) As part of the assessment and monitoring of a pituitary adenoma;

(3) As part of the investigation of a possible cancer of unknown origin; and

(4) When prescribing contraceptive medication.

427Dr. Sloka testified that, if a patient reported a breast lump, Dr. Sloka would provide the patient with some options: he could perform a breast examination, he could refer the patient back to their family doctor, he could order a test at the breast centre, or he could refer them to a surgeon.

428Dr. Sloka testified that prolactinomas (pituitary adenomas that affect the part of the pituitary gland responsible for prolactin production) can cause an increase in prolactin production which in turn can cause galactorrhea (lactation). According to his training and understanding of the medical literature, breast examinations (in conjunction with skin and visual fields examinations) could form part of the assessment and periodic monitoring of a pituitary adenoma.

429Dr. Sloka testified that the product monographs of certain breast control medications recommend yearly breast examinations. According to his training and understanding of the medical literature, some birth control medication increases the risk of breast cancer and can also cause existing tumors to grow. If the patient had not received a recent breast examination, Dr. Sloka would propose one, because he would want to ensure the patient is tumor free before prescribing the medication. The Crown did not challenge Dr. Sloka’s evidence about the recommendations in the product monographs of birth control medication.

430I find it highly compelling that Dr. Sloka was prepared on some occasions to report in some consultation letters that he had done a breast examination. The mere fact that he was prepared to disclose the performance of a breast examination to a trained family physician provides compelling circumstantial evidence of the sincerity of Dr. Sloka’s purported belief that breast examinations could legitimately be conducted in the context of his neurological practice. I find it highly unlikely that he would ever disclose the conduct of a breast examination to another physician if he had conducted it on the basis of a fraudulent rationale (a ruse, to use the Crown’s term).

431Dr. Sloka also enlisted Ms. Halstead and Ms. Plozzer (nurses from the stroke unit) as chaperones for some breast examinations. In doing so, he provided them with his rationale for conducting the breast examinations. In turn, they confirmed the patient’s understanding of the rationale and the patient’s consent to the breast examinations. As I mentioned when discussing Dr. Sloka’s rationale for conducting skin examinations, Dr. Sloka’s willingness to disclose his rationale for some breast examinations to medically trained nurses constitutes compelling circumstantial evidence of the sincerity of Dr. Sloka’s belief that he could legitimately perform breast examinations in the context of his medical practice. Additionally, his proven occasional reliance upon nursing chaperones (proven by the Crown, no less) is evidence of a habit that tends to undermine the evidence of complainants who suggested that Dr. Sloka discouraged the presence of chaperones.

432To avoid repetition, I will refrain from delving further into Dr. Sloka’s rationales for conducting breast examinations in this section of the judgement. Instead, I will address his rationales as they arise in counts where Dr. Sloka acknowledged conducting a breast examination and provided a justification for doing so. For now, it is sufficient for me to say that I found Dr. Sloka’s stated rationales to be cogent and compelling.

433As already discussed, Dr. Sloka testified that he had sufficient training, experience, and competence in the performance of breast examinations. His evidence on this subject essentially stood unchallenged. I accept that Dr. Sloka possessed sufficient training and experience to believe he could competently perform breast examinations on patients when he believed the examinations to be clinically warranted.

b) Dr. Sloka’s Methodology

434Dr. Sloka would propose a breast examination after obtaining a patient’s history and concluding one was warranted. When proposing the examination, he would explain the rationale behind it. As with all examinations, he proposed the breast examination while still in his office with the patient. If the patient consented, they would then move into the examination room, where Dr. Sloka would ask the patient to remove all clothing from the waist up and put on a gown, with the opening at the back. Dr. Sloka would leave the room and re-enter once the patient had put on their gown.

435The patient would sit on the edge of the examination table at the outset of the examination. Dr. Sloka would then ask the patient to lower the gown to their waist, to allow Dr. Sloka to examine the architecture of the breasts. To do this, Dr. Sloka would situate himself about four feet from the patient. Dr. Sloka explained that tumors can distort or shorten ligaments in the breast, which can alter the shape of a breast (dimpling) or cause nipples to become inverted. He would not expect symmetry in the distortion of both breasts, so he would look for asymmetry between the breasts. Dr. Sloka testified that the skin could also show peau d’orange (a texture resembling that of an orange peel), which could signify the presence of cancer beneath the skin. Dr. Sloka would also ask the patient to place their fists in front of their waist and squeeze their pectoral muscles, which would alter the presentation of the ligaments. For the same reason, he asked the patient to place their hands above their head. This component of the examination lasted about 15-20 seconds, following which Dr. Sloka asked them to put their gown back on.

436Dr. Sloka would then ask the patient to lay down on the examination table. He would then ask the patient to expose one breast, leaving the other one draped. He would also ask the patient to place the associated arm above and behind their head. Once this was done, he would begin palpating the breast. To palpate, Dr. Sloka used his middle and ring fingers, pressing in a circular motion in search of any lumps or abnormalities. He palpated in a zig-zag pattern across the breast. Dr. Sloka also usually looked for nipple discharge (galactorrhea) by placing the back of each hand on either side of the surface of the nipple (his palms would face away from the patient) and pressing his hands both against the breast and towards each other (the pinky fingers would press towards each other) – he provided a demonstration of this in court. Next, Dr. Sloka would palpate the lymph nodes in the armpit for evidence of cancer (swelling). When palpating the armpit, he held the patient’s arm in place with his free hand, in case of a ticklish reaction.

437After examining one side, the patient draped themself again. Dr. Sloka the repeated the process on the other side.

438An entire breast examination took about five minutes to perform.

439The Crown called no evidence to challenge the propriety of the method purportedly employed by Dr. Sloka.

viii. Bimanual Pelvic Examinations

a) The Rationale for Bimanual Pelvic Examinations

440Dr. Sloka testified that he performed bimanual pelvic examinations when looking for evidence of suspected cancer. He also performed pelvic examinations to rule out pelvic explanations (non-neurological explanations) for changes in bladder or bowel functioning. He considered the search for non-neurological explanations to be within the scope of his function as a neurologist. The presence or absence of non-neurological explanations impacted conclusions about neurological explanations. Dr. Sloka testified that his medical training and medical literature indicated that pelvic examinations could be performed in these situations.

441Dr. Sloka distinguished bi-manual pelvic examinations from pap tests. Pap tests involve obtaining a sample of cells from the cervix to text for cervical cancer. Dr. Sloka did not believe that cervical cancer coincided much if at all with neurology.

442If Dr. Sloka did not find any obvious signs of cancer during a physical examination, he might not order further imaging or testing of the patient. Instead, he might continue to monitor the patient’s presentation over time, to assess the evolution of the presentation that raised suspicions of cancer. Dr. Sloka testified that the clinical situation would dictate his approach.

443When questioned about the efficacy of a bi-manual physical examination, Dr. Sloka acknowledged that it might not detect all masses present. Masses would need to be of a sufficient size to be noticed during palpation. However, he maintained that a bi-manual physical examination still had utility as a screening tool and that he was trained to utilize this tool when suspecting the presence of cancer.

444The sincerity of Dr. Sloka’s belief that pelvic examinations could legitimately occur in the context of his neurological practice is supported by the evidence of Nancy Halstead and Amanda Plozzer. Both testified about being enlisted as chaperones for pelvic examinations. Both testified that Dr. Sloka provided a rationale for the pelvic examinations. Both confirmed patient consent with the rationales provided by Dr. Sloka. Again, neither gave evidence that pertained to any examination alleged in this trial. Nevertheless, their evidence has significant probative value. These were trained nurses. I find it highly unlikely that Dr. Sloka would provide bogus justifications to trained nurses. I also find it highly unlikely that Dr. Sloka would enlist the services of nurses as chaperones for these examinations if he believed it to be improper for a neurologist to be conducting them. Consequently, these two nurses provide compelling circumstantial evidence that Dr. Sloka honestly believed that pelvic examinations could legitimately be conducted in the context of his neurological practice and that, on the occasions when they acted as chaperones, he honestly believed in the legitimacy of his rationale.

445To avoid repetition, I will save additional discussion of Dr. Sloka’s rationales for the pelvic examinations conducted in this case until addressing the complaints in which pelvic examinations are alleged. Having said that, I will say here that I found Dr. Sloka’s rationales to be cogent and compelling.

b) Dr. Sloka’s Methodology

446After obtaining the patient’s history, Dr. Sloka would propose the examination and explain its procedure and rationale. He testified that he would sometimes use visual aids, like textbooks or material from the internet, to help explain the proposed procedure. He would tell the patient that he would be placing his fingers inside the pelvis to see if abnormalities can be detected. If the patient consented, they would proceed to the examination room.

447In the examination room, Dr. Sloka asked the patient to remove all clothing from the waist down and to put on a gown. As with all examinations, he departed to room to provide the patient privacy to change.

448To perform the examination, Dr. Sloka had the patient lay back on the table and place their legs in a frog position: feet drawn towards the buttocks, soles of the feet together, and knees raised and spread apart. Dr. Sloka provided extra draping to enable draping of the patient from the waist down.

449Dr. Sloka also wore gloves for the examination.

450Dr. Sloka began by visually inspecting the vulva for abnormalities, such as skin issues or abnormal discharge.

451Before the internal inspection, Dr. Sloka would lubricate the two fingers used for interior palpation. He would tell the patient that they might feel a little cold and uncomfortable. He also asked the patient to alert him to any pain. If they felt pain, he would stop the examination. After explaining these things, Dr. Sloka would then place the lubricated fingers of his right hand inside the vaginal canal. He would place his left hand on the surface of the abdomen, mirroring the position of the fingers in the vaginal canal. Progressively, Dr. Sloka would palpate towards the cervix. The two hands worked in concert in search of any pain, masses, or a tilted uterus.

452Next, Dr. Sloka would palpate on each side of the vaginal vault, to examine the ovaries and fallopian tubes for the presence of any masses or sources of pain.

453The entire pelvic examination would take about 20-30 seconds, the internal palpation lasting about 15-20 seconds.

ix. Rectal Examinations

a) The Rationale for Rectal Examinations

454Dr. Sloka testified that he would conduct rectal examinations to investigate changes in bowel or bladder function, or when he had a concern about a spinal cord issue involving nerves that pass through the pelvis. He understood from his medical training and medical literature, that rectal examinations were warranted for these purposes. A rectal examination permitted an assessment of the muscle tone of the anus, which is enervated by nerves that pass through the pelvis. It would also allow him to search for the presence of any masses.

b) Dr. Sloka’s Methodology

455As with all examinations, Dr. Sloka proposed, explained, and obtained consent for the examinations after taking the patient’s history and while still in his office. If the patient consented, he brought the patient into the examination room. Attire and draping for the rectal examination was the same as for the pelvic examination.

456Dr. Sloka asked his patients to lay on their left side and face the wall adjacent to the examination table. He also asked patients to bring their knees to their chest. Dr. Sloka provided thorough descriptions of the process, because they had their backs to him and could not see the examination unfolding.

457Dr. Sloka would warn the patient that his finger might feel cold. Then, he would place a lubricated and gloved finger at the opening of the anus for a couple of seconds. Then, he would insert his finger into the patient’s anus, where he would observe the tone and feel around for any obvious masses. The examination would last between five and ten seconds.

x. Record Keeping

a) Paper, not Electronic Records

458Dr. Sloka kept paper charts. If he received electronic records from other sources, he printed them and placed them in his chart.

459Dr. Sloka dictated his consultation letters on his computer but then printed them to be added to his patient’s chart.

460Dr. Sloka also sometimes wrote handwritten rough notes, which sometimes aided his dictation. He also sometimes drew illustrations or diagrams for patients to help explain concepts to them. Occasionally, these illustrations can be found in Dr. Sloka’s patient charts.

b) Consultation Letters

461Dr. Sloka testified that he dictated each consultation letter immediately after his patient departed their appointment, except on rare occasions when he experienced problems with his dictation software. Even then, he dictated as soon as possible.

462Dr. Sloka dictated his reports into a Microsoft Word template, using a dictation software called Dragon Naturally Speaking. He had pre-set verbal commands that would produce standard blocks of text. For example, if he uttered “normal exam” the program would produce a standard summary of a normal neurological examination. In his experience, the dictation software was accurate about 80 to 90 percent of the time.

463Consultation letters were addressed to the referring physician. If the referring physician was not the family doctor (an ER doctor, for example) Dr. Sloka also addressed the letter to the family physician, if any.

464Dr. Sloka understood that communication with the family physician was important to the patient’s overall medical care. Medicine is a collective enterprise. The family physician is at the hub of the patient’s circle of care. Effective communication amongst those in the circle of care is an important part of patient care.

465Initial consultation letters followed a format.

466Generally, Dr. Sloka began by documenting basic biographical information in the first paragraph.

467In the next paragraph, he outlined a description of the presenting problem or complaint. If there was more than one problem, Dr. Sloka used separate paragraphs to describe each problem.

468In the next paragraph, Dr. Sloka would document the patient’s medical history – some of this information would come from the patient intake form, which is filled out by the patient in the waiting room.

469Next, Dr. Sloka would summarize a “review of systems.” In his review of systems, Dr. Sloka would ask a long list of questions about each part of the body. He did not tend to record negative answers, unless something stood out.

470Next, Dr. Sloka would document the examinations performed, which would include a record of the neurological examination routinely conducted at the patient’s first visit.

471Dr. Sloka also typically documented vital signs (blood pressure and heart rate) if he measured them.

472Similarly, Dr. Sloka would record the results of any cardiac examination, even if the results were negative.

473Dr. Sloka also recorded the positive results of any other examinations.

474As for other examinations, Dr. Sloka tended not to report ones with negative results. He aimed to focus on positive findings, because negative findings would not direct him or the referring physician in the investigation of the patient’s issue.

475After documenting relevant examinations, Dr. Sloka summarized his impressions. Here, he would summarize the appointment and provide his medical opinion. He would also document anything that he wanted the referring physician or family doctor to do. Additionally, he would summarize the tests ordered and future plans.

476Dr. Sloka testified that he may not outline all possible diagnoses and may not outline all of his thoughts if still at the stage of ordering tests and deliberating the patient’s medical issues. However, if specific findings were made, he considered it important to share them with the family physician.

477After dictating the report, Dr. Sloka printed it and gave it to his secretary. Ms. Hennessy would then be responsible for disseminating the report and placing a copy in the patient file.

c) Handwritten Notes

478Dr. Sloka tended to take handwritten notes during appointments, typically when jotting down aspects of his patient’s history. His patient files also reveal that he sometimes drew drawings and diagrams to help explain concepts to his patients. Dr. Sloka testified that he did not include everything from his handwritten notes in his consultation letters, because he considered some notes ultimately irrelevant.

479On occasion, Dr. Sloka documented his patient’s consent for intimate examinations. He did not maintain this practice with any consistency. He developed his own acronyms, which he acknowledged would not likely be understood by other doctors. To document a skin examination, he wrote COSE (consent obtained for skin examination). To document a breast examination, he wrote COBE (consent obtained for breast examination). To document a pelvic examination, he wrote COPE (consent obtained for pelvic examination. Throughout their submissions, the Crown contends that Dr. Sloka used idiosyncratic acronyms to conceal the nature of the examinations conducted. I do not follow the Crown’s logic, for several reasons. First, if he was intent on concealing the examinations, documenting them in any fashion undermined that intention – as this trial proves. Second, on several occasions in this trial, Dr. Sloka proved willing to reveal the conduct of allegedly improper examinations. He revealed some examinations (and the proposal of some) in his consultation letters. He revealed a pelvic examination to a gynecologist (Dr. Frank) when making a gynecological referral. And he conducted a pelvic examination with a patient’s husband in the room. Third, on other occasions (as discussed by Amanda Plozzer and Nancy Halstead) he invited nurses to act as a chaperone for these sensitive examinations. Dr. Sloka used Ms. Halstead on a monthly basis. These nurses were Crown witnesses whose evidence was no doubt welcomed by the defence. They had medical training. Their enlistment risked independent documentation. If Dr. Sloka’s motives were improper, their enlistment risked exposure. In my view, the evidence of Ms. Halstead and Ms. Plozzer assist in rebutting any contention that Dr. Sloka knowingly attempted to conceal improper breast, pelvic, and skin examinations from those who might know better and who might expose him. Indeed, their enlistment helps prove that Dr. Sloka had nothing to hide when performing breast, pelvic, and skin examinations in the context of his neurological practice.

480On occasion, Dr. Sloka also documented that he sought feedback from the patient: FAFG (feedback asked, feedback given). He testified that it was his general approach to seek feedback from a patient when they wore a gown for an examination. He would ask them something to the effect of “is it okay the way we looked at you here today.” These inquires were not limited to sensitive examinations like breast, skin, and pelvic examinations. The Crown’s contention to the contrary is not supported by a full and fair reading of the evidence.

D. Overall Assessment of Dr. Sloka’s Evidence

481Generally speaking, I found Dr. Sloka to be a thoughtful and careful witness. He was faced with the difficult task of justifying examinations he could not remember. His charting was not perfect, but it provided him a reliable understanding of the context in which each alleged examination occurred. Using his patient charts and his purported training (the truth of which was never really challenged) he provided cogent explanations for the alleged examinations as well as any other course of conduct documented in his patient files.

482Unlike Dr. Bril, Dr. Sloka was not given the benefit of any advance notice about upcoming topics in cross-examination. He was not told which area of neurology or which patient might be discussed the next day. This was obviously a tactical decision made by the Crown. Despite this relative disadvantage, Dr. Sloka performed admirably when challenged in cross-examination, several years removed from active practice. He made concessions when appropriate and strived to be fair and frank in giving evidence.

483It is clear that Dr. Sloka envisioned a broader scope for the practice of clinical neurology than did Dr. Bril. It is equally clear that Dr. Sloka was trained differently that Dr. Bril and had training in areas that Dr. Bril did not. The evidence provides me no basis for concluding that Dr. Sloka violated CPSO policies by practicing as broadly as he did. And Dr. Bril’s uncompelling evidence fails to provide a basis for me to infer a sexual purpose from Dr. Sloka’s broad approach to the practice of clinical neurology.

484As will be discussed in the assessment of each complaint, having considered all of the evidence, I accept Dr. Sloka’s denial that he conducted examinations in a manner that ran contrary to his training. I accept his evidence that he believed in the medical propriety of his conduct. My acceptance of Dr. Sloka’s evidence regarding which examinations he proposed and performed, the manner in which he performed them, and the animating medical purpose behind each of them, strongly supports the conclusion that the examinations in question were medical, not sexual, in nature.

5. THE CROSS-COUNT SIMILAR ACT EVIDENCE APPLICATION

A. Introduction

485The Crown seeks to adduce the evidence of most complainants⁵ to support the evidence of the other complainants on every material issue in this trial. In doing so, the Crown seeks to rely upon Dr. Sloka’s alleged conduct towards each complainant (all of whom were patients at his Urgent Neurology Clinic) and infer a behavioural pattern (a propensity) from this collective conduct. From that situation-specific behavioural pattern, the Crown asks the court to infer that Dr. Sloka acted in conformance with his propensity when interacting with each individual patient.

486The Crown has produced a lengthy and complex written application: its factum is 241 pages long; accompanying charts, detailing an array of discrete and granular cross-count similarities is 36 pages long. There are two apparent aspects to the Crown’s application. First, the Crown asks the court to infer from an accumulation of similarities that Dr. Sloka possessed a modus operandi – a fraudulent scheme animated by an overarching sexual purpose – in which he used medical examinations as a ruse to gain access to the bodies of his female patients for a sexual purpose. This alleged modus operandi provides incidental support for all other material issues. Second, the Crown appears to ask the court to conclude that individual granular similarities shared by sub-sets of Dr. Sloka’s patients provide direct support for other material issues.⁶

487In addition to relying upon the evidence of the complainants, Crown’s modus operandi theory necessarily relies heavily upon the evidence of Dr. Bril. With each patient, Dr. Bril testified that there did not exist a neurological justification for some examinations performed by Dr. Sloka. In respect of some patients, Dr. Bril also testified that Dr. Sloka strayed beyond his neurological lane, by pursuing medical investigations, conducting examinations, and ordering tests that ought to have been done by other physicians from other disciplines. Additionally, Dr. Bril testified that some of the alleged examinations were performed in an improper manner. From the combined effect of the evidence of Dr. Bril and the complainants, the Crown argues that the court can infer that Dr. Sloka possessed a propensity to pursue a sexual purpose in his neurological practice by using neurologically unjustified examinations as a ruse to gain access to the bodies of his female patients.

488Despite the frailties of the evidence of Dr. Bril and the complainants, the Crown has satisfied me that there exists a sufficient basis in the evidence at large to support the potential inference that Dr. Sloka possessed the alleged overarching and situation specific modus operandi. The admission of cross-count similar fact evidence to prove that Dr. Sloka acted in conformance with a modus operandi when examining each individual patient finds support in the admissions made by Dr. Sloka. For the purposes of this application, Dr. Sloka acknowledged or did not dispute conducting full skin examinations on 14 patients[7]; he acknowledged proposing but not conducting a skin examination for another patient[8]; he acknowledged that he may have conducted limited skin examinations on five other patients[9]; he acknowledged or did not dispute conducting pelvic examinations on 5 patients[10]; he acknowledged or did not dispute conducting breast examinations on 8 patients[11]; and he acknowledged or did not dispute that he either performed or offered rectal examinations for two patients.[12] Dr. Bril opined that Dr. Sloka did not have a valid neurological justification to conduct any of these examinations. While I have not ultimately done so, it is open to a trier of fact to infer that Dr. Sloka conducted these neurologically unjustified examinations for a sexual purpose. It is thus open to a trier of fact to infer that Dr. Sloka had a situation specific propensity to use medical examinations in his Urgent Neurology Clinic as a ruse to conduct examinations on female patients for a sexual purpose. It is thus open to a trier of fact to infer a modus operandi: the fraudulent use of medical examinations to achieve a sexual motive.

489It is important to note that this application has been decided on the basis of the trial evidence proffered by the Crown. There was some confusion about procedure and evidence applicable to the voir dire, though. At the outset of the trial, all parties agreed to defer submissions on the voir dire until the close of the defence case. Initially, at least, all parties also proceeded on the basis that evidence called by the defence at trial could be used on the Similar Act Evidence (SAE) voir dire. Each party relied upon Dr. Sloka’s evidence for their own purposes. In oral submissions, when the questioned about the use to which Dr. Sloka’s exculpatory evidence could be put on the voir dire, the Crown sought to change course. While the Crown had sought to use some of Dr. Sloka’s trial evidence to its advantage in the SAE application, it did not appear to appreciate that the defence may do the same. After some reflection, the Crown abandoned any reliance upon the trial evidence of Dr. Sloka and asked that the application be decided solely upon the evidenced adduced by the Crown. The defence took time to consider the Crown’s position and ultimately agreed that Dr. Sloka’s evidence would not be used for the SAE application. However, the defence did agree that Dr. Sloka’s admissions regarding the conduct of various examinations was admissible for the purposes of the voir dire. As a result of Dr. Sloka’s admissions, some factual issues became immaterial. Accordingly, on consent of all parties, the voir dire was conducted as a blended voir dire, in which the entirety of the Crown’s case at trial applied to the voir dire, but the defence evidence at trial did not apply to the voir dire.

490While the Crown’s case did include Dr. Sloka’s exculpatory letter to the CPSO [Exhibit 5] regarding his justification for doing skin examinations in cases of suspected epilepsy, that letter was not subject to cross-examination. Moreover, it did not provide a justification for skin examinations conducted in other contexts. Consequently, I have afforded it little weight on this SAE application. Consequently, at the threshold stage of this voir dire there does not exist any sufficiently compelling innocent explanation for the many allegedly unreasonable examinations admittedly conducted by Dr. Sloka.

491At this threshold stage, in the absence of any compelling innocent exculpatory explanation for the examinations acknowledged by Dr. Sloka, I am satisfied that the on a balance of probabilities evidence on the voir dire is capable of establishing the alleged situation specific modus operandi. This modus operandi is indirectly probative of every other material issue in this case, including the actus reus, mens rea, and the rebuttal of defences, such as accident.

492However, I have concluded that the alleged cross-count granular similarities, either individually or collectively, do little if anything to augment the probative force of the alleged modus operandi. Likewise, I conclude that the Crown has failed to establish that any of the granular similarities are sufficiently probative of any other specific material issues.

B. General Principles

493Section 581 of the Criminal Code directs that each count in an indictment shall in general apply to a single transaction. Section 591 of the Criminal Code permits joinder of multiple counts on the same indictment, but each alleged office must be contained in a separate count. Each count is treated as a separate indictment.

494Evidence proffered as proof of any individual count must be relevant, material, and admissible in relation to that count. The probative value of that evidence must also outweigh any prejudicial effect.

495Evidence of a fact is relevant if, as a matter of human experience and logic, the existence of that fact makes the existence or non-existence of another fact more probable than it would be without the proffered evidence: see R. v. Watson, 1996 CanLII 4008 (ON CA), [1996] O.J. No. 2695 (C.A.).

496Evidence of a fact is only material if the fact it tends to prove is a fact that is actually in issue. Undisputed facts are not material.

497Subject to any exclusionary rules, evidence of an offence that is relevant and material may be admitted unless the trial judge concludes its prejudicial effect exceeds its probative value.

498One exclusionary rule concerns evidence of the accused’s bad character (evidence of the accused’s bad propensity). Evidence of the accused’s bad character is presumptively inadmissible. Evidence of misconduct (also known as discreditable conduct) other than that alleged in an individual count (in other words, extraneous misconduct) is inherently evidence of the accused’s bad character. Its only possible relevance to an offence charged lies in its ability to prove the accused acted in conformity with a pre-existing propensity. Consequently, evidence of misconduct concerning one count on an indictment is presumptively inadmissible as proof of misconduct on another count: see R. v. Handy, 2002 SCC 46.

499Evidence of discreditable conduct is distinct from evidence of habit. A habit, being the tendency of a person to engage repeatedly in a particular kind of conduct, may or may not reflect adversely on one’s character. Evidence concerning habits that do not reflect adversely on the accused’s character are not barred by the exclusionary rule governing bad character evidence.

500Evidence of an accused’s bad character is presumptively inadmissible because its probative value is generally thought to be outweighed by its prejudicial effect. Bad character evidence invites the inference that, because of a given trait, feature, or prior bad act, the accused is the kind of person more likely to have committed the offence charged. While evidence of bad character may be logically probative of guilt, courts have recognized that its probative value may be more illusory than real when evaluated objectively.

501Two concerns – two forms of prejudice – arise from the use of bad character evidence. First, a concern arises that an accused person will be convicted because of who they are and what they did on other occasions, not because of what they did in relation to the offence charged. This kind of reasoning is said to create a moral prejudice: a conviction based upon a moral judgement of the accused, irrespective of the ability of other evidence to prove the accused’s guilt. Second, a concern arises that the trier of fact will be distracted by the evidence concerning extraneous misconduct, lose focus on the other evidence, and expend too much time and resources on this one species of circumstantial evidence. This distraction is called reasoning prejudice.

502This exclusionary rule is subject to exception. Historically, one exception has been referred to as the Similar Fact Evidence (or Similar Act Evidence) Rule. When the extraneous misconduct is sufficiently similar to the conduct charged and occurs in sufficiently similar circumstances, two inferences may arise: that the accused possessed a propensity to behave in a certain way in those circumstances and that the accused acted in conformity with that propensity on a specific occasion. In those circumstances, the probative value of similar act evidence may outweigh its prejudicial effect; the probative value may be so compelling that it would be an affront to common sense to suggest that the similarities between the extraneous acts and the offence charged could be explained by coincidence or innocent explanation: see Handy, supra.

C. The Applicable Test

503The admission of similar act evidence of other misconduct is governed by a multi-step process: (1) issue identification; (2) assessment of probative value; (3) assessment of prejudicial effect; and (4) balancing of the probative value against the prejudicial effect: see Handy, supra.

i. Issue Identification

504Like all evidence, it must be relevant to a material issue. Accordingly, it is important for the Crown to identify the purpose for which the evidence has been tendered.

505If SAE evidence is proffered to prove a fact that is not in issue, that is not material, then the SAE evidence will not be admissible to prove that particular fact. The evidence must be proffered to prove a live issue, not one about which no dispute exists: see Handy, supra.

506Proof of a general disposition is a prohibited purpose: see Handy, supra.

ii. Assessment of The Probative Value of the SAE

507The probative value of the similar fact evidence can be ascertained by examining:

(1) the strength of the evidence that the similar acts actually occurred;

(2) “the extent to which the proposed evidence supports the inferences sought to be made” including (i) the connection between the accused and similar act event, and (ii) the “connectedness” between the similar fact evidence and the issues in question; and

(3) the extent to which the matters it tends to prove are at issue in the proceedings [the materiality of the evidence]: see Handy, supra.

508When proof of the similar act depends upon the testimony of witnesses, the trial judge may consider the credibility and reliability of the witnesses when ascertaining the strength of the evidence. At a minimum, the similar act evidence must be reasonably capable of belief: see Handy, supra.

509A principal factor in the assessment of the probative value of SAE is its “connectedness” to the issues in question. The trial judge must evaluate the degree of similarity of the alleged SAE and the conduct charged to determine whether the objective improbability of coincidence has been established. The requisite degree of similarity turns on the issues at trial, the purpose for which the SAE is tendered, and the other evidence: see Handy, supra. Relevant factors for consideration include but are not limited to:

(1) the proximity in time of the similar acts;

(2) the extent to which the similar acts are similar in detail to the charged counts;

(3) the number of similar acts;

(4) the circumstances surrounding or relating to the similar acts;

(5) any distinctive features unifying the incidents;

(6) intervening events; and

(7) any other factor tending to support or rebut the underlying unity of the similar acts: see Handy, supra.

510A mere general propensity will have little probative value. However, as the similarity of the alleged events becomes more specific and as they arise in more specifically similar situations, their similarity gains probative value. At a certain point, coincidence or innocent explanation become implausible explanations for the similarities, which allows the court to infer that the accused possessed situation specific propensity and that the accused acted in accordance with that propensity on the specific occasion for which he stands charged: see Handy, supra.

511Where evidence depends for its probative value on the suggestion that it is unlikely that two or more persons would be making similar false allegations, collusion or tainting undermines entirely the probative value of the evidence, precisely because it tends to negate the improbability of coincidence: see R. v. Lo, 2020 ONCA 662. Collusion or tainting “can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their description of the impugned events”: see R. v. C.B., 2003 CanLII 32894 (ON CA), [2003] OJ No 11 (C.A.).

512Inadvertent tainting may arise from exposure to publicity about the case: see R. v. Dorsey, 2012 ONCA 185. Inadvertent tainting can also occur when witnesses discuss the events among themselves with the result that one witness’s evidence is inadvertently altered: see R. v. C.G., 2021 ONCA 809. The mere opportunity for inadvertent tainting will not necessarily give rise to an air of reality of tainting. A close examination of the circumstances is required: see C.G., supra, and Dorsey, supra. If the circumstances give rise to an air of reality to the conclusion that a witness’s evidence has been tainted, then the Crown bears the burden on a balance of probabilities of rebutting that possibility. Even if the Crown satisfies its burden, and the trial judge admits the SAE, the trier of fact ought to still assess the potential impact of any tainting when deciding what effect to give the SAE during the ultimate weighing of the trial evidence: R. v. Shearing, 2002 SCC 58, [2002] S.C.J. No. 59.

513Tainting may be rebutted by confirmatory evidence. Confirmatory evidence is evidence that is capable of confirming or supporting certain aspects of a witness’s credibility or reliability: R. v. Primmer, 2021 ONCA 564. The evidence may come solely from the complainant or may come from other sources: see R. v. Norris, 2020 ONCA 847. Prior consistent statements are one species of confirmatory evidence. Prior consistent statements made before the opportunity for tainting arose may rebut the suggestion that the complainant’s evidence has been tainted by another source: See R. v. C.D., 2023 ONCA 790.

iii. Balancing Probative Value Against Prejudicial Effect

514When balancing the probative value of SAE against its prejudicial effect, the trial judge must remember that the SAE is presumptively inadmissible. The Crown bears the burden on a balance of probabilities of dislodging that presumption.

515The exercise is not quantitative; it is qualitative. The trial judge should ask whether the similar fact evidence has been demonstrated to be sufficiently probative to justify running the risks of prejudice presented by the evidence.

516In a judge alone trial, the risk of prejudice is substantially reduced: see R. v. T.B., 2009 ONCA 177.

D. Application of the General Principles to the facts of this Case

i. Overview

517The Crown has produced extensive written submissions in which it alleges an array of micro-similarities (or granular similarities) between various subsets of patients. The Crown relies upon these micro-similarities to prove discrete issues. The Crown also contends that the circumstances as whole reveal an overarching modus operandi in which Dr. Sloka achieved a pervasive sexual purpose by using ostensible medical examinations as a ruse for gaining access to the bodies of his female patients.

518The assessment of this application is best begun with the recognition that Dr. Sloka has admitted, both for the purposes of the application and in the trial, that he conducted many of the examinations alleged by many of the patients, albeit in a manner consistent with his training. While the evidence of each complainant suffered from frailties, Dr. Sloka acknowledged or did not dispute conducting full skin examinations on 14 patients; he acknowledged proposing but not conducting a skin examination for another patient; he acknowledged limited skin examinations on five other patients; he acknowledged or did not dispute conducting pelvic examinations on 5 patients; he acknowledged or did not dispute conducting breast examinations on 8 patients; and he acknowledged or did not dispute that he either performed or offered rectal examinations for two patients. All these examinations occurred in the context of Dr. Sloka’s assessment and treatment of these female patients in his Urgent Neurology clinic between 2009 and 2018. All these examinations involve intimate areas of the bodies of Dr. Sloka’s patients. Therefore, for a significant proportion of the counts, there exists evidence which establishes that Dr. Sloka performed certain specific examinations on female patients in a specific clinical context. Importantly, for these counts, Dr. Sloka’s admissions remove some – but not all – of the concerns about tainting. While tainting concerns may still exist concerning the alleged manner in which the examinations were conducted, Dr. Sloka’s admissions remove concern that tainting gave rise to allegations that these specific types of examinations occurred in these admitted instances.

519When considered in conjunction with Dr. Bril’s evidence, Dr. Sloka’s admissions provide support for an inference of a sexual motive. While I have ultimately assigned little weight to Dr. Bril’s evidence generally, and no weight to her categorical assertions about the permissible scope of a clinical neurological practice, at the threshold stage of this voir dire, I conclude that her evidence meets the low threshold of being reasonably capable of belief. Importantly, a reasonable observer would consider these areas of the body examined during these admitted examinations as areas of potential sexual interest during sexual activity. Accordingly, there is a basis upon which a trier of fact could conclude that Dr. Sloka exceeded the permissible scope of a clinical neurological practice, and a basis upon which a tier of fact could infer that Dr. Sloka possessed a sexual motive when conducting the examinations he admitted conducting.

520The possible inference of a sexual motive from the admitted examinations permits the inference that Dr. Sloka acted in accordance with that situation specific motive when conducting other examinations alleged by other complainants while they were patients in Dr. Sloka’s Urgent Neurology Clinic. The inference of a persistent fraudulent motive can thus potentially prove various disputed acts.

521As already noted, as a result of Dr. Sloka’s formal admissions, there is no concern that the allegations regarding the performance of the admitted examinations are the product of media tainting. While there may still be a concern that some evidence about the manner of the examinations has been the product of tainting, that possibility can be addressed on a count-by-count basis. I appreciate that many patients alleged examinations that Dr. Sloka did not admit conducting. Additionally, I appreciate that tainting is a significant concern for many of these patients. However, the possible inference of a pervasive sexual motive provides a means by which a trier of fact could have any concerns about tainting assuaged. If I were presiding over a jury trial, my concerns about the frailties of the evidence (both of the complainants and Dr. Bril) and about the pervasive impact of media tainting might have led to a different conclusion. But this is a judge-alone trial. Accordingly, I am prepared to allow the allegations of each complainant – all 48 of them – to support the possible inference of a fraudulent sexual motive in relation to the others.

522The possible inference of a sexual motive in relation to each complainant is incidentally probative of the acts alleged, the sexual nature of those acts, Dr. Sloka’s intent when committing any acts, and the rebuttal of any defences. Succinctly put, the possible inference of a sexual purpose is incidentally probative of every other material issue in this case.

523For a variety of reasons, the Crown’s reliance upon discrete cross-count micro-similarities did not enhance the probative value already obtained through the combined force of Dr. Sloka’s admissions and Dr. Bril’s opinion. Additionally, the micro-similarities did not provide sufficient probative value in relation to any other material issue. Given my decision to grant the cross-count similar fact application, I will attempt to be brief when explaining why the various micro-similarities fail to provide additional meaningful support for the inference of a modus operandi of any other material issues. I will also discuss these cross-count similarities during the count-to-count assessment of the evidence.

ii. The Impact of Tainting

524In this trial, witnesses repeatedly testified that, long after the impugned examinations occurred and long after their memories of what transpired had obviously faded, their perception of their treatment was altered by what they read or saw in media or CPSO publications. Thus, the evidence repeatedly went beyond establishing a mere opportunity for media tainting. Repeatedly, the contents of the publications resonated with their frail and patently flawed memories, producing a profound shift in attitude towards Dr. Sloka. Similarly, numerous witnesses testified that they actively shared information when trying to remember what happened at the appointments at Dr. Sloka’s office or what was said during post-appointment discussions about the appointments. Repeatedly, the evidence disclosed that complainants and anti-tainting witnesses engaged in discussions for the purpose of reconstructing their memories. Their evidence revealed that memory is the product of a reconstructive process, not an immutable entity. In my view, the evidence repeatedly established more than a mere opportunity for inadvertent tainting.

525However, Dr. Sloka’s admissions have alleviated many of my tainting concerns, enough to allow me to allow cross-count use of the evidence in support of the inference of a modus operandi. Given my decision to grant the SAE application, I do not intend to engage in a count-by-count discussion of tainting concerns in this section of the judgment. Rather, when the issue arises in the count-to-count assessment of the evidence, I will address it, both in relation to its impact on the probative value of any alleged micro-similarities and in relation to the weight to be given to each witness’s trial evidence. However, I will also address it in a broader fashion in the following discussion of the discrete cross-count similarity subgroupings (the micro-similarities) and whether these micro-similarities provide any additional probative value in support of the inference of a modus operandi or in support of any other material issue.

iii. Specific Cross-Count Micro-Similarities Relied Upon by the Crown

Moles

526A number of complainants testified that Dr. Sloka expressed an interest in searching for moles. All but eight first provided this information after widespread publication in media and CPSO publications regarding mole searches. For all but eight, the Crown cannot rebut the substantial likelihood of tainting.

527The Crown relies upon the constituency of eight patients[13] who, before widespread media coverage regarding mole searches began on April 30, 2019, alleged that Dr. Sloka told them he wanted to search for moles. For several reasons, I see little probative value in this sub-group, either in support of the modus operandi or any other material issue.

528Dr. Sloka admitted to conducting or offering to conduct skin examinations on five of the eight patients in this sub-group.[14] Dr. Sloka’s consultation letters also revealed that he was in the habit of asking screening questions of patients, which included questions regarding stigmata of neurocutaneous disease. Dr. Bril agreed with the propriety of these screening questions. It is hardly surprising, then, that Dr. Sloka would ask about skin abnormalities in advance of proposing or conducting skin examinations. Additionally, Dr. Sloka’s written response to Ms. J.W.’s CPSO complaint [Exhibit 5] mentioned that he would inquire about “moles” when screening for neurocutaneous disease. He deployed scare quotes around the word, which in my view obviously denoted a use of the term in a non-literal sense. For the purposes of the application, Dr. Sloka admitted that he may have used this term early in his practice, but qualified it, in an attempt to explain the types of abnormalities in which he had interest.

529Further, many complainants in this case used the terms moles, birthmarks, and irregularities almost interchangeably, which is not surprising. In my view, as a matter of human experience, lay people are not apt to place much importance on the distinctions between moles, birthmarks, and other skin irregularities. It is not surprising that witnesses would not be able to clearly remember the language Dr. Sloka used when attempting to explain the irregularities that were of interest to him. Ms. I.R. did not actually recall Dr. Sloka’s specific words; she assumed he would be looking for moles. Ms. J.D. provided inconsistent evidence on the type of irregularities mentioned by Dr. Sloka, apparently using the terms freckles, birthmarks, moles, and skin abnormalities interchangeably. Ms. A.F. also did not appear to distinguish the difference between birthmarks and moles – despite being aware from her own education of the connection between skin irregularities and neurological conditions. The apparent conflation between birthmarks, moles, freckles, and other skin irregularities seemed to be a common occurrence in this trial. Ms. F.C.’s use of the term moles came in response to a leading question from the Crown, who asked if Dr. Sloka inquired about “freckles, birthmarks, or moles.” Here the Crown seemed to use the terms interchangeably. Ms. F.C.’s response to this leading question had no probative value. Ms. A.D.-E. admittedly had moles which she acknowledged might have been observed and mentioned incidentally during a cardiac/respiratory examination. Ms. J.D. researched skin examinations before giving her statement to the police and purportedly came across an article which suggested the possible diagnostic significance of moles found on the head. Thus, although, not exposed to media or CPSO publications about moles before giving her police statement, she was independently tainted by her own research. Ms. D.H.’s evidence about the discussion of moles and rashes was too vague to have any probative value. She framed the search of her skin as a search for intravenous needle marks, not as a search for moles and rashes. While she alleged that the topic of moles and rashes came up (the terms were apparently used interchangeably), she was unable to provide a definitive context in which the topic arose.

530For all the reasons just provided, I do not find the “moles” sub-grouping to have any meaningful probative value in relation to the modus operandi or any other material issue.

Dr. Sloka’s Use of the Term “Modest”

531In my view, Dr. Sloka’s admitted and documented use of the term “modest” to describe some patients who declined examinations or expressed reluctance at being examined has no probative value. For one, the term was seldom used. Second, when it was used, its use was appropriate to the situation. The use of this term is about as probative as Dr. Sloka using the term “hello” to greet people.

Body Position During Pelvic Examinations

532Obviously, if Dr. Sloka performed pelvic examinations without a valid medical purpose, an inference of a sexual purpose may logically arise. However, I see no additional probative value in any commonality between the body positions of the patients who received pelvic examinations. All patients in this grouping described laying on their backs with their knees up, their legs apart, and their feet planted on the examination table. One complainant aptly described it as the birthing position. Without stirrups, this is objectively the most efficacious way to examine the pelvic region. In my view, any reasonable person would expect a pelvic examination to be done in this way. The similar description of body positioning during pelvic examinations offers no probative value in relation to the modus operandi or any other material issue.

Naked or in a State of Undress During Skin Examinations

533The Crown includes 21 complainants in a subgrouping of patients who allege that they were either naked or in a state of undress for skin examinations. In my view, this grouping is overly broad. It includes a spectrum of examinations spanning from incidental or passive observations of discrete locations in the context of other examinations to skin examinations involving completely nude patients. “A state of undress” includes any movement of the gown, no matter how minimal, to enable visualization of the skin. Four patients in this subgrouping[15] alleged that Dr. Sloka took care to incrementally examine their skin, in a manner roughly consistent with his admitted method, thereby suggesting that Dr. Sloka took pains to preserve their privacy. These patients thereby suggested that Dr. Sloka possessed a salutary habit contrary to the discreditable conduct alleged by others. Three other patients[16] acknowledged that observations of their skin occurred in relatively innocuous contexts, involving minor exposure or incidental observation: Ms. R.P. showed Dr. Sloka a birthmark on her clavicle; Ms. J.V. agreed that Dr. Sloka may have first observed and discussed the moles on her back when applying a stethoscope to her back during a cardiac or respiratory examination; Ms. A.D.-E. described the incidental observation of moles during examinations the description of which contained echoes of cardiac and respiratory examinations – examinations that Dr. Sloka conceded occurred – and bore no resemblance to a skin examination. While the defence conceded that the evidence of two of the fourteen remaining patients was not tainted, the defence has submitted that the twelve other remaining patients in this 21-patient subgrouping were tainted by media or CPSO publications.[17] For the reasons discussed below and subsequently in the count-to-count assessment of the evidence, I agree.

534In my view, the tainting effect of media and CPSO publications negates the ability of those twelve members of this similar fact sub-group to prove the manner in which a skin examination was conducted in any given instance. While naked skin examinations were not explicitly reported in media or CPSO publications until April 30, 2019, an abundance of publications preceding that date drew an obvious connection between allegations of nudity and skin examinations. On august 17, 2019, the CPSO published the original Notice of Hearing concerning the allegations of two patients. That document contained an allegation that Dr. Sloka examined one patient without any clothing or draping. On September 19, 2017, the CPSO published Dr. Sloka’s professional undertaking, which included an agreement that he would cease conducting skin examinations. On April 18, 2018, the CPSO published another Notice of Hearing in which it reported that a third patient alleged that Dr. Sloka exposed that patient by moving her draping/gown. On October 30, 2018, the CPSO published another Notice of Hearing in which it reported the allegations of a fourth patient, who alleged an examination without any adequate clothing, gown, or draping. In July of 2018, the media began reporting about the CPSO proceedings and the various allegations made against Dr. Sloka. Media reports recounted allegations that Dr. Sloka told patients to completely undress for examinations and that Dr. Sloka was instructed to refrain from performing skin examinations. Anyone reading the widespread coverage of the CPSO proceedings could do the math. As will be discussed in the count-to-count assessment of the evidence of these twelve members of this 21-complainant subgrouping, the Crown failed to rebut the substantial likelihood of tainting. The evidence from the four members of the 21-member subgroup about the piecemeal examination of their skin (a salutary habit consistent with Dr. Sloka’s admitted practice, as discussed above) lends further credence to notion that the memories of twelve members of the 21-member subgroup were tainted by exposure to publications about Dr. Sloka. Finally, I note that even the most scrupulously performed skin examination inherently involves the systemic disclosure of the patient’s entire body. The inherent sense of disclosure involved in a properly conducted skin examination lends itself to a sense of exposure. This sense of exposure, combined with the erosion of memories due to the passage of time, renders patients vulnerable to the tainting effect of media and CPSO publications. I will discuss in more detail the tainting effect of media and CPSO publications concerning draping and body exposure during the count-to-count assessment of the evidence.

535In summary, for the reasons discussed, the inference of a modus operandi was not enhanced by the 21-member sub-group of patients who alleged that they were either naked or in a state of undress for skin examinations. Additionally, for the reasons discussed in the count-to-count assessment of the evidence, membership in this purported subgroup did not provide sufficient probative value in relation to any other material issue.

Failure to Identify the Examination [“the what”] and Failure to Explain the Reason for It [“the why”]

536The Crown includes 15 complainants in a subcategory of patients who alleged that Dr. Sloka did not identify the nature of the examination before they entered into the examination room. The Crown also includes 16 complainants in a subcategory of patients who alleged that Dr. Sloka did not explain the reason for their examinations. Many patients in the first category are found in the second, and vice versa. As will be discussed more thoroughly in the count-to-count assessment of the evidence, a complete review of the evidence reveals that most of the patients identified by the Crown did not belong in either category. Regarding “the what” category, I have concluded that the following patients were improperly included in it: Ms. J.B., Ms. F.C., Ms. J.V., Ms. C.C., Ms. H.J. [C.], Ms. A.S., Ms. L.F., Ms. C.M., Ms. S.M., Ms. K.K.[18], Ms. L.M., Ms. S.S., Ms. M.O., Ms. K.S.-B., and Ms. M.G. Regarding “the why” category, I have concluded that the following patients were improperly included in it: Ms. F.C., Ms. A.S., Ms. L.F., Ms. C.M., Ms. S.M., Ms. L.M., Ms. S.S., Ms. M.O., Ms. N.B., Ms. S.T., M.B.[19], Ms. K.L.[20], Ms. R.P., Ms. J.K., Ms. S.W., and Ms. P.S.

Pressure to Participate in More Invasive Examinations

537The Crown includes five patients in a cross-count similar fact subcategory in which the patients purportedly alleged that Dr. Sloka pressured them for more invasive examinations. As will be discussed in the count-to-count assessment of the evidence, I have concluded that the Crown has overreached here. There is no merit to the creation of the grouping of these five patients into this ostensible cluster.

Gown Worn Open to the Front

538The crown includes a total of eleven patients in a subcategory of patients who wore their gown open to the front. In my view, this cross-count micro-similarity is easily attributable to coincidental error. The standard GRH hospital gown provided to Dr. Sloka’s clinic can be worn in one of two ways: open to the front or open to the back. For the reasons provided elsewhere in this judgement, I am fully satisfied that this standard gown was invariably provided to patients who required draping and wore a gown. If 48 patients randomly guessed how they wore that style of gown, the law of probabilities dictates that about half, 24, would guess that they wore their gown open to the front. The Crown places eleven patients (under ¼ of the total) into this constituency. Of these eleven patients, only seven alleged that Dr. Sloka specifically instructed them to wear the gown in this fashion. Further, Dr. Sloka’s consultation letters reveal that all these patients received a cardiac examination, which would entail the exposure of their left breast, providing an innocent explanation for why a patient might inaccurately remember wearing their gown open at the front. The small sample size and other circumstances suggest coincidental error, not a situation specific propensity.

Distinctive Leg Strength Examination

539The Crown places four patients into a subcategory who alleged that they received leg strength examinations while they lay down and Dr. Sloka stood at the foot of the bed. While superficially similar, their description of the mechanics of the examination varied, as did their description of their attire. Additionally, this subset of patients constituted 1/12^th^ of the complainants in this case, all of whom received neurological examinations – and therefore received leg-strength examinations. This small sample size and the variations within it suggest coincidental error, not a situation specific propensity.

Buttocks Spreading

540The Crown places three patients[21] into a subcategory of patients who allege that their buttocks were spread during skin examinations. The small size of this constituency renders it of limited probative value. Variations and frailties in the evidence lessen the probative value further. Regarding one of them, Ms. J.S., I concluded the following:

Given the purported existence of her motivation to complain, the absence of breast touching and buttocks touching from her complaint suggests those two things did not occur. Her purported memory of these things was either false or dishonest.

Regarding Ms. J.H., I concluded that she staged a video of her disclosure to her friend for the purpose of dishonestly buttressing her evidence. I also had a concern about media tainting. Additionally, she did not allege that Dr. Sloka spread her buttocks but instead alleged that she spread them for Dr. Sloka’s benefit. The third patient, Ms. A.D., agreed that she gained weight by the time of her examination, which may have necessitated the need to part her buttocks to visualize her skin. She also agreed that Dr. Sloka may have used her gown to avoid directly touching her buttocks when parting her skin. This small subset of patients did virtually nothing to augment any inference of a sexual motive and provided virtually no probative value regarding any other material issue.

Use of the Term “Everything is Connected” to Justify Breast Examination

541The Crown also alleged that three patients belonged to a small sub-grouping of patients who alleged that Dr. Sloka told them that “everything is connected” when justifying a breast examination. However, only one patient in this grouping, Ms. Am.E., actually alleged a breast examination. One, Ms. M.G., described feeling something (she did not watch) that resembled the description of the sensations one might feel during a respiratory examination. The other two, Ms. Am.E. and Ms. H.J. (C.), acknowledged in cross-examination that Dr. Sloka might have provided a more detailed justification for their physical examinations. Additionally, I hardly find it surprising that a physician might from time to time tell patients that everything in the body is connected. This small sample size can be attributed to coincidence, not a situation specific propensity conducted in service of an overarching modus operandi.

Breast “Cupping”

542The Crown places nine complainants in a subcategory of patients who allege that complainant “cupped” their breasts – three more are mentioned but not relied upon in the SAE application. In my view, this subcategory provides no additional probative value in relation to the modus operandi, nor any other material issue.

543Widespread reporting of breast cupping, commencing on April 30, 2019, gives rise to the substantial likelihood that all but three of the complainants[22] in this subgrouping have been tainted by published reports of complaints about breast cupping. Of the three members of this subgrouping who came forward before April 30, 2019, none of them use a form of the verb cup to describe the breast touching they alleged. Further, allegations of breast touching were already widely available in the media, giving rise to the substantial likelihood that the evidence of these three was also tainted by widespread publications of complaints about breast touching. The issue of tainting will be discussed in more detail during the count-to-count assessment of the evidence of these nine complainants.

544The Crown’s conditions of membership in this subcategory are so expansive as to deprive the category of probative value. Most of the nine complainants in this subcategory did not use any form of the verb cup to describe the touching they alleged. “Cupping” was the Crown’s favoured term, not a term used by all members of the subgrouping. As will be discussed in the count-to-count assessment of the evidence, the allegations of members of this subgrouping were too diverse to be meaningfully clustered into a single grouping. For brevity’s sake, I will simply point out here that the complainants ranged from the bizarre (Ms. A.R.’s description of rotating her breasts as if opening a jar) to a description of a proper breast examination (Ms. Am.E.).

Squeezing of the Breasts to Find Evidence of Galactorrhea

545The Crown includes two complainants in a subgrouping of patients who alleged that Dr. Sloka applied pressure to their breasts to discern if they were lactating. Dr. Sloka admitted that he performed this procedure as part of his standard approach to the assessment of possible pituitary adenomas. The fact that he did this was not material. As noted, I agree that Dr. Sloka’s admission in combination with Dr. Bril’s evidence permits the inference of a possible sexual purpose. However, I see no additional probative value in relation to any other material issue.

iv. Conclusion

546To sum up, considered individually and collectively, I did not find that the micro-similarities highlighted by the Crown enhanced the potential inference of a sexual motive that was already made available from combined effect of Dr. Sloka’s admissions and Dr. Bril’s opinion. Further, for the reasons provided and that will be provided during the count-by-count assessment of the evidence, I also conclude that the micro-similarities failed to provide sufficient probative value in relation to any other material issue.

547Nevertheless, I have concluded that sufficient probative value arises from the fact that Dr. Sloka admitted to performing various examinations that Dr. Bril opined he ought not to have performed. The collective force of Dr. Sloka’s admissions and Dr. Bril’s opinion allows me to conclude that there exists sufficient evidence to support the potential inference of a situation specific modus operandi. While, ultimately, I do not assign much if any weight to Dr. Bril’s evidence, the law only requires that I conclude at this preliminary stage that Dr. Bril’s evidence was reasonably capable of belief. Her evidence meets that low bar. Accordingly, the Crown has satisfied me on a balance of probabilities that the evidence of each complainant may be used to support the inference that Dr. Sloka had a situation-specific motive to fraudulently use medical examinations on female patients in his Urgent Neurology Clinic for the purpose of gaining access to their bodies for a sexual purpose. That inference of a situation-specific propensity – a modus operandi – can support the inference that Dr. Sloka possessed a fraudulent sexual purpose during the examination of any one of the forty-eight complainants in this case. This modus operandi provides circumstantial evidence in relation to every other material issue in this case.

6. EVIDENCE OF THE COMPLAINANTS, GROUPED ACCORDING TO MEDICAL ISSUE

A. Seizures and Losses of Consciousness

i. J.B. (Count 5)

A Summary of Ms. J.B.’s Complaint and Dr. Sloka’s Response to It

548Ms. J.B. was referred to Dr. Sloka for an assessment of a possible seizure. She alleged that Dr. Sloka removed her gown and conducted a skin examination while she was completely naked.

549Dr. Sloka agreed that, as part of his investigation into a possible seizure, he performed a skin examination on Ms. J.B. However, he denied that he removed Ms. J.B.’s gown and examined her skin while she was completely naked. She always remained gowned, while Dr. Sloka examined sequentially exposed segments of Ms. J.B.’s skin.

550Dr. Sloka alleged that Ms. J.B. fabricated her allegation, because she disputed Dr. Sloka’s seizure diagnosis and because she desperately needed to have her licence reinstated.

The Circumstances of Ms. J.B.’s Referral and Her Treatment History

551Ms. J.B. was taken to the GRH ER department on April 5, 2010, after losing consciousness while at work. According to the history provided to the ER physician, she became light-headed before losing consciousness and falling. The fall was unwitnessed. She remained unconscious for about 10-20 minutes. She hit her head in the fall. A co-worker found her. She could not remember before or after the event. She reported a history of seizure disorder, for which she had been medicated until reaching the age of twelve. Until the incident that brought her to the ER, she had not suffered seizures since she was 12 years old. The ER doctor referred Ms. J.B. to Dr. Sloka for an assessment. Ms. J.B. was 23 years old at the time.

552Ms. J.B. attended for her first appointment with Dr. Sloka on May 4, 2010. In his consultation letter, he documented his diagnosis: she had suffered a seizure. Accordingly, he immediately sent a letter to the MTO, thereby causing the suspension of her licence. Dr. Sloka also ordered follow-up testing, included an MRI, EEG, and possibly a sleep-deprived EEG. He planned to see Ms. J.B. in follow up.

553After meeting Dr. Sloka, Ms. J.B. went to her family doctor, Dr. Baxter, and sought another neurologist. According to notes in Dr. Baxter’s file, Ms. J.B. alleged that Dr. Sloka conducted a skin examination while she was completely naked and touched her genital area with his bare hand.

554On May 21, 2010, Dr. Baxter sent a referral letter to Dr. Mendonca, another male neurologist at same the clinic as Dr. Sloka. Dr. Baxter noted that Ms. J.B. was “not comfortable with his physical exam and assessment of the event as a seizure.” Dr. Mendonca refused the referral and suggested a referral to a female neurologist.

555Dr. Baxter then sent a virtually identical referral letter to Dr. Giles on May 28, 2010.

556Dr. Giles saw Ms. J.B. on June 9, 2010. Ms. J.B. provided a starkly different history than that provided to the ER physician and Dr. Sloka. Dr. Giles concluded that Ms. J.B. struck her head, then fell, striking it again in the process. She did not diagnose a seizure. Nevertheless, Dr. Giles agreed that Ms. J.B. required an MRI and EEG. Additionally, she ordered cardiac testing (echocardiogram, Holter monitor, and EKG). She informed the MTO that, although Ms. J.B. suffered a loss of consciousness, the underlying cause was unclear. Dr. Giles instructed Ms. J.B. to refrain from driving “while this is sorted out.”

557Ms. J.B. saw Dr. Giles in follow-up on July 13, 2010. Cardiac testing showed normal results. The results of the MRI and EEG were pending. Assuming normal results, Dr. Giles planned to return Ms. J.B. back to Dr. Baxter’s care.

558On August 20, 2010, Dr. Giles responded to a request from Dr. Baxter, who had asked Dr. Giles to provide a “letter of appeal” of Ms. J.B.’s MTO driving suspension. Dr. Giles informed Dr. Baxter that Ms. J.B. would need to make an appointment with Dr. Giles, who would not be free until after Labour Day. Additionally, Dr. Giles informed Dr. Baxter that Ms. J.B. would need to pay a fee for the letter of appeal.

559On September 7, 2010, Ms. J.B. left a message with Dr. Sloka’s office regarding the MTO letter of appeal. Dr. Sloka’s secretary contacted Ms. J.B. on September 8, 2010. The secretary noted that Ms. J.B. had reported that Dr. Giles charged a $310.75 for the letter of appeal. The secretary also noted that Ms. J.B. was told to book an appointment with Dr. Giles to obtain a letter. The secretary also noted the explanation for her response to Ms. J.B.: “Pt was discharge from practice because she felt uncomfortable with Scott’s exam.”

560On September 9, 2010, Dr. Sloka wrote to Dr. Baxter, advising Dr. Baxter that Ms. J.B. had called his office seeking an appointment for the purpose of obtaining a license reinstatement letter. Having noted that Ms. J.B. had been “uncomfortable with my level of care,” Dr. Sloka closed his letter by stating, “I believe it has been suggested to her that she could seek your help for the MTO letter. If you feel that a neurologist’s opinion is required and that I can be of help, please feel free to contact me as I may appreciate your guidance in this instance.”

The Evidence of Ms. J.B.

561Ms. J.B. was 34 years old when she testified. Eleven years had passed since she had been Dr. Sloka’s patient.

562Ms. J.B.’s evidence at trial about the reason for her referral differed from what she told the attending ER physician and later what she told Dr. Sloka at her first appointment with Dr. Sloka.

563Ms. J.B. testified that at the time of her episode, she worked in a group home for adults with developmental disabilities. One morning, she was in the laundry room in the basement of the group home. At first, she testified that, “and during doing laundry I guess I blacked out. So, that’s what led me to Grand River Hospital that day.” Subsequently, the Crown stated, “You mentioned that you had blacked out, and I think you said that you thought you had hit your head.” Ms. J.B. had not said anything about hitting her head up to that point. Soon thereafter, Ms. J.B. testified about how the group home had obtained new washers and dryers. She testified that due to the placement of these new machines, she had previously struck her head while doing laundry. She testified that “once the cobwebs and the shock” of the episode faded, she thought it over. She reviewed pictures from a workplace investigation into her incident, which showed a trail of wet laundry strewn between a washer and a dryer. She testified “that kind of sealed the case for me….” She concluded that she probably hit her head on a laundry machine. Having said that, Ms. J.B. had no memory of hitting her head.

564When at the ER, Ms. J.B. did not attribute her loss of consciousness to a bump on the head. ER records indicate that Ms. J.B. provided the following information to the ER physician/staff:

(1) She was lightheaded in the morning and fell.

(2) Her fall was not witnessed.

(3) Her loss of consciousness lasted 10-20 minutes.

(4) She could not remember before or after the event.

(5) She hit her head on the ground.

(6) She had a history of seizure disorder, was medicated until age 12, and had no seizures since.

565At no point in the medical history provided to the ER did Ms. J.B. suggest that she bumped her head on the dryer before falling to the ground. Ms. J.B. agreed that she likely told the hospital staff that she had suffered seizure episodes in the past.

566Ms. J.B. did not remember anyone at the ER telling her to refrain from driving. She continued to drive until she saw Dr. Sloka.

567Ms. J.B. attended Dr. Sloka’s office on May 4, 2010. Both Ms. J.B. and her mother were in Dr. Sloka’s office when he elicited her relevant medical history. Ms. J.B. provided the details she had learned about her recent episode. Her mother provided most of the details about her childhood medical history. Ms. J.B. conceded that she saw Dr. Sloka’s consultation letter from that appointment. She reviewed the history portion of that letter when under cross-examination.

568In his consultation letter, Dr. Sloka documented the following information provided by Ms. J.B. about the episode:

She remembers looking at her watch and the time was 7:50 a.m., and that is the last thing she remembers. She woke up in the hospital on a spinal board. Her coworkers told her that she walked upstairs on her own and she was quite confused and disoriented. She did not bite her tongue and there was no loss of bladder or bowel continence. She did hit this right side of her head and the back of her head. She was quite drained afterwards, and she had sore muscles, especially in her neck. She denies any focal weakness, and there was no numbness, tingling, or pins and needles. She denies any excessive tiredness, and in fact she may have had a little bit better sleep. She was studying for exams at the time, however, and she had 3 or 4 exams the following week. She was quite sleep deprived prior to that weekend. She may have drank 3 or 4 beers 2 days prior to this event as well.

569Having reviewed the documented history, Ms. J.B. took issue with only one thing: she purportedly remembered talking to a coworker in the home before getting in the ambulance. Of importance here, Ms. J.B. reported to Dr. Sloka a memory blackout that preceded her loss of consciousness and continued until she awoke in the hospital. In addition, she reported confusion and disorientation after the episode, as well as feeling drained and having stiff muscles. Also, she reported a relevant seizure risk factor: sleep deprivation.

570As had been reported by Ms. J.B. at the hospital, Dr. Sloka documented being told about a childhood history of seizures. Either Ms. J.B. or her mother, or both, reported this history to Dr. Sloka.

571Nothing in the history that Ms. J.B. provided to Dr. Sloka attributed her loss of consciousness to a blow to the head.

572In summary, Ms. J.B.’s testimonial characterization of the cause and nature of her episode differed significantly from what she and her mother told Dr. Sloka. At trial, she attributed her episode to a bump on the head. She stayed away from any discussion about a seizure history. She did not report or remember some key factors she reported to Dr. Sloka, and which were relied upon by Dr. Sloka to conclude that she had suffered a seizure. She also provided testimony inconsistent with what she had reported to Dr. Sloka. Notably, in her interview with Dr. Sloka, she reported a memory blackout that persisted well beyond her loss of consciousness; she reported post episode confusion and disorientation; she reported stiff muscles in the aftermath of the episode; and she reported a relevant history of seizures and recent sleep deprivation. At trial, she testified to a memory of some events in the immediate aftermath of her episode, and she avoided discussion of the seizure symptoms she reported to Dr. Sloka.

573Of interest, Dr. Sloka’s file for Ms. J.B. included some childhood medical records. The same records were in Dr. Giles’ medical file. Her medical records reveal a complex medical history, including a history of migraines, sleep disturbances, frequent episodes of inattentiveness at school (described in a manner that suggests she was gapping-out: “a part of my brain just doesn’t work sometimes”), hearing voices, chronic fatigue, joint pain, suspicion of bipolar affective disorder, suspicion of ADHD, and report by her mother of “a history of ‘epilepsy’ wherein she described episodic angry outbursts as seizures.”

574As will be discussed in due course, Ms. J.B.’s testimonial characterization of the cause and nature of her episode aligned with what she told Dr. Giles when seeking a second opinion. But first, I will address Ms. J.B.’s evidence about the remainder of her appointment with Dr. Sloka.

575Ms. J.B. had a tenuous recollection of what followed the discussion of her medical history. She tentatively recalled Dr. Sloka asking about birthmarks. After having her memory refreshed from her police statement, she testified that Dr. Sloka said that he was looking for unusual birthmarks and explained that these birthmarks can be correlated to epilepsy. She told him that she had a birthmark on her buttocks. She was not certain whether he asked if she had birthmarks anywhere else on her body. When asked by the Crown about the location of her birthmark, Ms. J.B. was uncertain, stating that she thought it was on her lower left buttocks. She also testified that she would need to remove her pants to reveal it. Also, because the birthmark was low down on her buttocks, she might have to lift some underwear up to reveal it.

576According to Ms. J.B., the discussion of her birthmark led to a discussion of a physical examination. She testified that he asked her mother to leave the room and asked her to go to the adjoining examination room and put on a gown. According to Ms. J.B., he did not explain much really about the type of examination he intended to perform. He might have used the words physical exam or inspection. She claimed that he did not provide a detailed description of what to expect. He was allegedly vague. Nevertheless, she was given to understand that the examination related to her birthmark.

577Ms. J.B. believed that, once in the examination room, Dr. Sloka handed her the gown, but she was unsure. She also purportedly sought clarification about the clothing she should remove. In response, Dr. Sloka told her to remove all her clothing, including her underwear.

578Ms. J.B. changed in privacy.

579Ms. J.B. possessed a muddled memory about the sequence of her examinations.

580Ms. J.B. testified that when Dr. Sloka entered the room, he instructed her to stand in the middle of the room. Presumably, she was about to describe the alleged skin examination, but the Crown then asked her about any examinations that may have occurred while she was still wearing a gown. At this juncture, she testified that Dr. Sloka tested her reflexes while she was fully clothed (before she even put on her gown), but she could not remember whether this occurred in the office or the examination room (after she had gotten re-robed following the skin examination). She remembered him using a reflex hammer at some point.

581Ms. J.B. then described examinations that occurred while she was wearing a gown. She testified that she thought he examined her neck and face and a little bit of her arms while she was gowned. She described this as a visual examination of her skin.

582The Crown mentioned strength tests. Ms. J.B. testified that the notion of strength tests sparked a memory. It sounded familiar somehow, but she could not place that happening while she had the gown on. She thought that it perhaps happened when she was fully clothed, but she was uncertain. As the Crown inquired about other elements of Dr. Sloka’s standard neurological examination, Ms. J.B. was largely unable to remember but unable to discount that these steps were taken. The notion that Dr. Sloka tested her sensation sounded familiar, but she could not remember one way or the other. She also had some memory of Dr. Sloka testing the strength of her arm by pushing down on it.

583Ms. J.B. also could not remember whether Dr. Sloka conducted a cardiac examination but agreed he may have done so. She added, “There are tons of things during that appointment for ten years ago that I have no memory of.”

584Turning to the skin examination, Ms. J.B. testified that at some point her gown came off. After the gown fell, she was naked. She was facing away from the window at the time, and Dr. Sloka stood behind her. She testified that her next memory was of Dr. Sloka telling her to stretch her arms out and bend over. She allegedly bent her torso to a 45-degree angle, while her feet were spread shoulder-width apart.

585Ms. J.B. testified that she remembered thinking that Dr. Sloka was employing a light-source to examine her, because she purportedly remembered seeing her shadow on the wall. She could not be certain whether this was an actual memory of a product of her fear and emotional reaction to the examination.

586Ms. J.B. testified that her mind was racing, and her heart was pounding. She wondered about the whereabouts of her mother.

587Ms. J.B. said that she did not know when it happened, but at some point, Dr. Sloka knelt behind her. She could feel his breath on the back of her thighs – pretty high up, pretty close to her buttocks. He purportedly touched and prodded her as he visually examined her legs. She looked down and could see him behind her legs. He also prodded her arms in the same fashion. Then Ms. J.B. testified that she could mostly remember him touching her calves. She did not really remember it happening on her thighs, but she claimed, “I know that it did.” She also purportedly remembered a mental “alert/alarm” going off in her mind, in which she thought, “that’s getting higher.”

588Ms. J.B. also remembered standing upright at some point, while Dr. Sloka examined her front. He visually examined her front but did not touch her. She testified that Dr. Sloka positioned himself inches away from her body. She could feel his breath around her chest.

589In Ms. J.B.’s next memory, Dr. Sloka told her to get dressed. Ms. J.B. then changed in privacy while Dr. Sloka waited in his office.

590Ms. J.B. testified that, when she re-entered Dr. Sloka’s office, she took him by surprise. He was standing at an open drawer. He quickly closed the draw when she entered the room. He purportedly said something to indicate that he was not expecting her so quickly.

591According to Ms. J.B., she opened the office door to call her mother back inside.

592When her mother joined them, Dr. Sloka discussed his findings. He told her that he thought she had epilepsy and that he would have to write to the MTO to suspend her licence. Internally, Ms. J.B. was “freaking out.”

593Ms. J.B. could not remember if Dr. Sloka also booked follow-up tests or if those tests were booked by the hospital.

594She also testified that she obtained a follow-up appointment but never attended that appointment.

595According to Ms. J.B., after leaving the appointment, when she and her mother got into their van, she immediately told her mother what had transpired. Her mother purportedly stated, “I don’t like that at all.” Her mother also suggested talking to Dr. Baxter about it.

596Ms. J.B. subsequently booked an appointment with Dr. Baxter.

597Ms. J.B. also purportedly spoke to her then boyfriend, now husband, Je.B. She testified that she spoke to Mr. Je.B. on the evening of the day of her appointment. She did not recall what details she imparted, other that her claim that Dr. Sloka closed a drawer and seemed flustered when she re-entered the office. She remembered Mr. Je.B. stating, “I bet he was hiding a camera or something.” Ms. J.B. added that, “Like, the whole situation seemed so sketchy.”

598Ms. J.B. met with Dr. Baxter on May 20, 2010.

599The Crown asked Ms. J.B., “… other than speaking with her about your experience with Dr. Sloka, was there any other reason that you were going to see her?” Ms. J.B. replied, “I don’t think so.” She added that, due to what allegedly transpired, she went to see Dr. Baxter to obtain a referral to a new specialist.

600Ms. J.B. could not remember the details of what she reported to Dr. Baxter about Dr. Sloka’s examination, despite having read Dr. Baxter’s patient file in advance of testifying. To refresh Ms. J.B.’s memory, Crown counsel presented Ms. J.B. with the entirety of Dr. Baxter’s entry for the visit on May 20, 2011. That entry read as follows:

S: f/u re Dr. Sloka – feels uncomfortable returning to him. Felt his p/e was inappropriate – was completely naked and he was touching genital area without gloves. She feels that he is going to treat her for epilepsy regardless of test results. She is certain was not seizure as remembers everything. Feels this is a big deal over nothing sig. Afraid it will take years to get license back. MRI June 3. EEG not booked yet. Has f/u appt with him on Aug 4. Advised will attempt referral to Dr. Mendonca but he may refuse referral.

Renewal dian 35. No problems. Advised due for cpe.

O: BP: 120/70. Pt very upset re inability to drive – says will not be able to go to school in fall. Tearful in office.

A: r/o seizure ds

P: dsd option of f/u with Dr. slotka [sic] (likely quickest) – ensure parent present throughout interview so has 2nd set of ears. [emphasis in original]

601Presented with Dr. Baxter’s May 20th entry, Ms. J.B. stated, “It’s like jarring, because I don’t remember. I don’t remember my genitals being touched and I don’t remember saying that.” She added that she had no explanation for Dr. Baxter documenting a complaint about genital touching. On the other hand, Ms. J.B. remembered being very concerned that she might not be able to drive for a significant period of time. Ms. J.B. acknowledged that part of her discussion with Dr. Baxter involved seeking a second opinion regarding her seizure diagnosis. She felt that Dr. Sloka had inaccurately concluded that she had suffered a seizure.

602Ms. J.B. did not remember Dr. Baxter mentioning a possible referral to Dr. Mendonca, nor did she remember Dr. Mendonca refusing the referral. Ultimately, Ms. J.B. obtained a referral to Dr. Giles.

603Ms. J.B. attended her first appointment with Dr. Giles on June 9, 2010. Her mother accompanied her to this appointment.

604Ms. J.B. testified that she told Dr. Giles about Dr. Sloka’s examination. She provided vague details about the extent of her disclosure to Dr. Giles. In-chief, she testified that she told Dr. Giles “…about the, like, physical examination…” She did not elaborate, except when testifying about Dr. Giles’ response. She testified that Dr. Giles told her that, although unusual, there are “anomaly birthmarks” that may be relevant. Dr. Giles told her that she referred her patients to a dermatologist to investigate these birthmarks. In cross-examination, she confirmed that she told Dr. Giles “…about whatever elements of Dr. Sloka’s physical examination that concerned her.” She went on to agree that Dr. Sloka had proposed a skin examination to investigate whether she had a condition that might be related to her seizures. Ms. J.B. never suggested that she complained to Dr. Giles about any genital touching.

605Ms. J.B. also testified that she and Dr. Giles discussed the prospect of Ms. J.B. making a report to the CPSO. According to Ms. J.B., and contrary to Dr. Giles’s testimony on this subject, Dr. Giles told her, “Please don’t follow-up or report this to anyone.” Dr. Giles allegedly told her that Dr. Sloka was a newer and unseasoned neurologist. She characterized Dr. Sloka’s examination as a “misunderstanding,” stating that Dr. Sloka did not realize that a neurologist should outsource birthmark searches to a dermatologist. Dr. Giles left Ms. J.B. with the impression that she would take Dr. Sloka under her wing – mentor him. Dr. Giles told her that she would speak to Dr. Sloka herself and that “it won’t happen again.”

606Ms. J.B. testified that, because of what Dr. Giles told her, she did not lodge a complaint about Dr. Sloka’s skin examination with the CPSO. From what Dr. Giles told her, she did not expect that Dr. Giles would be lodging a report to the CPSO, either. Indeed, Dr. Giles had actively discouraged making a report to the CPSO.

607Ms. J.B. also confirmed that she told Dr. Giles about Dr. Sloka’s diagnosis, his treatment plan, and the revocation of her licence. She also provided Dr. Giles with an account of her medical history.

608In the medical history recorded in Dr. Giles’ consultation letter, there is no mention by Ms. J.B. of a childhood seizure history. There is no mention of Ms. J.B. becoming dizzy before passing out. There is no mention of confusion and disorientation in the aftermath of the episode. Additionally, there is no mention of a memory blackout until laying on a spinal board in the hospital. Instead, the medical history provided by Ms. J.B. implies that she suffered a head injury:

On April 5, 2010, [J.B.] was racing downstairs in her building to do laundry. She was moving quickly, as she had to run an errand. The next thing she remembers she was lying on the laundry room floor with two bumps on her head. She had no recollection of reaching the bottom of the stairs, and truly does not know what happened to her. Of note however the machines had been changed a couple of weeks prior, and the height of the machines had changed. Twice in the past week she had stood up and struck her head hard against the new machine.

She did have daily global headache for a week following the episode. She had vague dizziness for a few hours, but this did not persist. She had no cognitive difficulty.

[J.B.] reports that she did have a concussion once as a child, and she felt with her headache and vague dizziness much as she had with the previous concussion.

609As noted, Ms. J.B. had wanted a second opinion regarding whether she had suffered a seizure. She got one. While Ms. J.B. was uncertain about the chronology, she agreed that Dr. Giles ultimately came to a different diagnosis and gave her a green light to drive. In the interim, Dr. Giles ordered follow-up tests and saw Ms. J.B. in follow-up on July 13, 2010.

610At some point before September 13, 2010, Ms. J.B. had received notification from the MTO that her licence has been suspended. Ms. J.B. testified that, to obtain her licence back, she needed a letter from Dr. Giles. However, Dr. Giles’ office had informed her that a letter would cost about $400. Defence counsel suggested the cost was actually $310.75, as Dr. Sloka’s secretary had documented when Ms. J.B. called Dr. Sloka’s office seeking a letter. Ms. J.B. appeared to agree.

611Ms. J.B. testified that she could not afford the fee for Dr. Giles’ letter and her school tuition. The cost of a letter caused her to lose a school term.

612Ms. J.B. had forgotten about it, but she agreed that she contacted Dr. Sloka’s office to request that Dr. Sloka provide her a letter to advocate for the return of her licence. She agreed that she left a message with his office but denied that Dr. Sloka’s secretary called her back the next day. Thus, she denied the exchange in which Dr. Sloka’s secretary purportedly declined to provide a letter.

613Eventually, Ms. J.B. obtained an MTO letter from Dr. Giles.

614Years passed.

615Then, on September 24, 2019, a friend informed Ms. J.B. about the allegations against Dr. Sloka reported in the news. She contacted the police the very next day. She subsequently provided a police statement on October 5, 2019.

The Evidence of Je.B.

616When Ms. J.B. was Dr. Sloka’s patient, Je.B. was Ms. J.B.’s boyfriend. She was essentially living with him at the time. She since became his husband.

617Je.B. testified that Ms. J.B. discussed her appointment with Dr. Sloka on the same day as the appointment.

618According to Je.B., Ms. J.B. told him that she had to wear a gown for an examination. When she was in the examination room, he asked her to remove her gown completely. At his request, she removed her gown. She also reported that she was bent over a desk while Dr. Sloka inspected her. His face was so close to her genitals that she could feel his breath on her. Je.B. did not think Ms. J.B. alleged that Dr. Sloka touched her genitals. After the examination, when she returned from getting dressed, he was fumbling and looked nervous. He was at his desk. After hearing Ms. J.B.’s account of her examination, Je.B. voiced the concern that Dr. Sloka might have a recording device in his desk.

619Je.B. testified that he and Ms. J.B. discussed reporting Dr. Sloka. He also remembered that Ms. J.B. had informed him that she had spoken to the next neurologist about her allegations. However, he had little recollection about the circumstances of Ms. J.B.’s decision against lodging a complaint.

620Je.B. also confirmed that Ms. J.B. did not believe she had suffered a seizure. According to Ms. J.B., “… she had thought she just hit her head the day it happened.” Ms. J.B. also agreed that Ms. J.B. wanted her driver’s license back.

621After Ms. J.B. and Je.B. learned about the allegations against Dr. Sloka in September of 2019, they again talked about Ms. J.B. coming forward with a complaint.

622Eventually, the police contacted Je.B., and he provided a statement over the phone.

The Evidence of Dr. Baxter

623Dr. Baxter had been Ms. J.B.’s family doctor. She retired in 2021.

624Dr. Baxter had little memory of the events relevant to Ms. J.B.’s complaint.

625In December of 2019, the police contacted Dr. Baxter to request her records for Ms. J.B. By that point in time, she had seen media coverage of the CPSO and criminal proceedings against Dr. Sloka. This news was of interest to her. Despite her awareness of the investigations into Dr. Sloka’s conduct, Dr. Baxter testified that she had no memory of any of her own patients complaining about Dr. Sloka. Astonishingly, she did not remember documenting any complaint by Ms. J.B. at Ms. J.B.’s May 20, 2010, appointment.

626According to Dr. Baxter, when she reviewed Ms. J.B.’s file at the request of police, she came across her notes from her May 20, 2010, appointment with Ms. J.B. The complete record of that appointment has already been reproduced in the summary of Ms. J.B.’s evidence. According to Dr. Baxter, she was quite surprised to see that Ms. J.B. had made a complaint about being completely naked and about Dr. Sloka touching her genital area without gloves. Before reading this note, the Dr. Baxter purportedly had only remembered that Ms. J.B. was upset about losing her licence.

627Nevertheless, Dr. Baxter testified that she made her notes as Ms. J.B. spoke. Although she did not know whether she recorded verbatim the information provided by Ms. J.B., Dr. Baxter testified that she documented in real time what Ms. J.B. told her.

628Initially, Dr. Baxter attempted to refer Ms. J.B. to Dr. Mendonca for a second opinion. Dr. Mendonca wrote directly onto the referral when declining it and suggesting that Dr. Baxter refer Ms. J.B. to a female neurologist instead. He faxed his response back to Dr. Baxter. That referral letter, together with Dr. Mendonca’s response ended up in Dr. Sloka’s file.

629After Dr. Mendonca declined the referral, Dr. Baxter sent the same referral letter to Dr. Giles. Her referral letter to Dr. Giles was absent from her file, but it was present in Dr. Giles’ file. Dr. Baxter confirmed that she had provided the referral letter contained in Dr. Giles’s file. Dr. Giles accepted the referral.

630Dr. Baxter had no memory of calling Dr. Giles to facilitate a referral.

631In her referral letter, Dr. Baxter wrote:

Please see this patient regarding: possible seizure ds. Pt was taken to ER after fainting and hitting head. Was referred from ER and seen by Dr. Sloka 2 days later. She was not comfortable with his physical exam and assessment of the event as a seizure. Her mother has seen you in the past and her sister is seeing you in the future so the family was wondering if you would see this patient. I have included consult notes from pediatricians who were involved in her care. There does not appear to have been a clear diagnosis of seizure disorder as a child. She is obviously concerned about her inability to drive given that she needs to work and attend U of W in the fall. An MRI and EEG have been ordered.

The Evidence of Dr. Giles

632Dr. Giles testified that she received a phone call from Dr. Baxter at the time of Ms. J.B.’s referral. Dr. Giles made no notes of this discussion. Nevertheless, she provided a detailed account of their conversation. She understood that Ms. J.B. had been referred to Dr. Sloka for an assessment of a loss of consciousness. According to Dr. Giles, Dr. Baxter told her that Ms. J.B. complained that she had been disrobed while Dr. Sloka examined the skin all over her body. Dr. Baxter told Dr. Giles that Ms. J.B. would be more comfortable with a female neurologist and wanted a second opinion on Dr. Sloka’s seizure diagnosis. They did not discuss taking any action in response to Ms. J.B.’s complaint about her examination.

633Ms. J.B. attended her first appointment with Dr. Giles on June 9, 2010. Ms. J.B. attended with her mother.

634Dr. Giles’ consultation letter from this date constitutes her only written record of what transpired at that appointment.

635When meeting with Ms. J.B., Dr. Giles took Ms. J.B.’s history. Ms. J.B.’s description of her loss of consciousness has already been documented in the summary of Ms. J.B.’s evidence.

636In addition to the incident history, Dr. Giles questioned Ms. J.B. and her mother about seizure risk factors. She documented that discussion as follows:

I questioned [J.B.] and her mother carefully. She has had no episodes suggestive of seizures, and she has no risk factors for seizures. Her health is good, and she is currently only on oral contraceptive. She did have some problems with sleep disturbance, joint pain, and occasional rage episodes. She had a couple of episodes of eye blinking as a young child, but these were never labeled as seizures. She only had a couple. She is a smoker, and we discussed that. She drinks alcohol moderately. There is no family history of neurologic disease.

637Absent from this history is any discussion by Ms. J.B. or her mother about a history of childhood seizures.

638Prior to testifying, Dr. Giles had not seen Dr. Sloka’s consultation letter regarding Ms. J.B., nor Ms. J.B.’s ER records. Consequently, Dr. Giles did not know what history Ms. J.B. had provided to either the ER doctor or Dr. Sloka. However, Dr. Giles was alive to the risk that patients who seek a second opinion sometimes tailor their history to achieve a different opinion. Dr. Giles agreed that the ER record documented that Ms. J.B. had reported a loss of consciousness that lasted between 10 and 20 minutes and a prior history of seizures. Dr. Giles also agreed that this information would be relevant to her assessment of Ms. J.B. Similarly, Dr. Giles agreed that Ms. J.B. provided Dr. Sloka with a very different history than the one Ms. J.B. provided to her. In speaking to Dr. Giles, Ms. J.B. painted a picture of herself running down the stairs and bumping her head. In speaking to Dr. Sloka, Ms. J.B. did not mention running down the stairs; she informed Dr. Sloka that she last remembered looking at her watch before blacking out and waking up in the hospital on a spinal board. She also told Dr. Sloka that co-workers told her that after regaining consciousness, she walked upstairs on her own and was quite confused and disoriented. Dr. Giles agreed that this information would be important to her assessment.

639Having regard to the content of Dr. Sloka’s consultation letter, Dr. Giles stated, “I don’t doubt the conclusion that he reached. He didn’t have the investigations [the results of the tests ordered]. I had a different story than he had. I never once questioned his diagnosis….”

640In addition to providing Dr. Giles with her medical history, Ms. J.B. also allegedly discussed her complaint about Dr. Sloka’s examination. However, Dr. Giles’s did not document this complaint in her consultation letter or anywhere else. Dr. Giles testified that she did not document Ms. J.B.’s complaint because Ms. J.B. had made her complaint in trust and because she did not consider it part of Ms. J.B.’s medical record or part of the consultation process. Additionally, she testified that she did not at that time think that Ms. J.B.’s complaint amounted to a sexual abuse complaint. When pressed upon the absence of any record of that complaint in her file, Dr. Giles became evasive. Rather than addressing her failure to document the complaint, she pivoted to her claim that she contacted the CMPA and CPSO to seek guidance.

641According to Dr. Giles, Ms. J.B. informed her that she did not want to see Dr. Sloka again because she had been completely disrobed when Dr. Sloka performed a skin examination on her. The examination made her feel very uncomfortable. Ms. J.B. also said that Dr. Sloka claimed to be looking for markings on skin that might correlate to seizures or neurological conditions. Dr. Giles concluded that Dr. Sloka was examining the possibility of a neurocutaneous disorder in his assessment of a possible seizure.

642However, she denied telling Ms. J.B. that in some cases, it was medically appropriate to have a skin examination, but that she would refer patients to a dermatologist. When told that this was Ms. J.B.’s claim, Dr. Giles shifted, stating that she did not remember telling her this. She added that their different recollections of the conversation were a “very tiny detour,” maintaining that she remembered the overall structure of her conversation with Ms. J.B. and other “various people along the way.” She then suggested that Ms. J.B.’s memory may be flawed. When it was pointed out that Ms. J.B. could otherwise not know that Dr. Giles referred her own skin examinations to a dermatologist, Dr. Giles shifted her position again. She allowed for the possibility that she conveyed this information in a later discussion with Ms. J.B., after she had spoken to Dr. Sloka about Ms. J.B.’s complaint.

643According to Dr. Giles, she told Ms. J.B. that she would seek guidance about how to respond to Ms. J.B.’s complaint. Dr. Giles denied actively discouraging Ms. J.B. from lodging a complaint against Dr. Sloka. She denied telling Ms. J.B. that she would handle the situation. She also denied telling Ms. J.B. that the examination was a “one-off” and a “little mistake.” She also denied telling her that she would coach Dr. Sloka so that it would not happen again. When presented with Ms. J.B.’s testimony about the content of their conversation, Dr. Giles testified, “That was not our conversation.” She went on to add, “No neurologist with my training would speak like that to a patient in a situation like that. It would not happen.”

644Dr. Giles testified that, following Ms. J.B.’s first appointment, she contacted the CMPA to seek guidance the same day.

645According to an agreed statement of fat (Exhibit 166), the CMPA created a record of Dr. Giles’s call. The CMPA labelled the call as “A neurologist has concerns regarding a colleague’s examination of a young woman.” Dr. Giles asserted privilege over the content of her discussions with the CMPA.

646Dr. Giles also claimed that she called the CPSO a day or two later. She explained her mindset at the time she made the call. Dr. Giles knew of the existence of a mandatory reporting requirement for any patient accusations of sexual abuse by a physician. However, she testified that she thought Dr. Sloka had merely made an error in judgement in conducting the skin examination. She was concerned about the possibility that Dr. Sloka had engaged in sexual abuse but did not think what Dr. Sloka constituted “true” sexual abuse. She purportedly did not realize that a naked skin examination would qualify as sexual abuse. She was not thinking that Dr. Sloka was sexually assaulting women. However, she wanted guidance. She did not know what to do. She had never been in this situation before. On her evidence, she spoke to a man on the phone, who was from the complaints/disciplinary/physicians services department.

647Dr. Giles testified that she did not call anonymously. She provided the man at the CPSO with her name. She also provided Dr. Sloka’s name, but not Ms. J.B.’s. She told the man about her concern that Dr. Sloka conducted a skin examination on a patient who had been disrobed, in the absence of a chaperone, that she was very upset, and wanted a second opinion. She told the man that she was seeking advice about what to do. Notably, she did not seek clarification from the man on the phone about what behaviour might qualify as sexual abuse and thereby trigger mandatory reporting requirements.

648According to Dr. Giles, the man on the phone asked her if it was the standard of care to conduct a skin examination. He also asked about Dr. Sloka’s reason for conducting one. She purportedly replied by saying that there are associations between skin disorders and seizures. Skin examinations were relevant to those inquires. However, she purportedly said it was not the standard of care to conduct skin examinations in her practice. She told him that she referred skin examinations to dermatologists.

649On Dr. Giles’s account, the man did not advise her to lodge a formal complaint against Dr. Sloka. Dr. Giles testified that the man told her that, because they had not received a complaint, it was not directly a CPSO issue. The man on the phone at the CPSO purportedly asked her how well she knew Dr. Sloka. She replied that she did not know him very well. Nevertheless, the man told her to call Dr. Sloka and discuss the issue with him and make it clear that his examination was not the standard of care, and he should stop. Dr. Giles purportedly agreed to follow these instructions.

650Dr. Giles did not document her alleged call to the CPSO, despite agreeing that this was an important conversation in which she was trying to discharge her professional duties and ensure the CPSO was satisfied that she was meeting her obligations.

651According to an agreed statement of fact (exhibit 204), if a physician in 2010 was seeking practice management advice, they would be directed to the Physician Advisory Team. If a physician were seeking to report another physician, they would be directed to the Public Advisory Team. Advisors from these teams would decide whether the call warranted further action. If a physician called and made a report that the Advisor determined was sexual in a nature, the Advisor would forward the call to Pam Greenberg, who was the Intake Coordinator for sexual abuse calls. Advisors at the CPSO documented incoming calls. The documentation was stored in a searchable database, using the name of the person who made the call or the name of the physician they reported. The CPSO had no record of Dr. Giles placing a call in 2010. The CPSO also had no record of any telephone calls made in 2010 pertaining to Dr. Sloka.

652Dr. Giles testified that she called Dr. Sloka’s office about a day or two after speaking to the man at the CPSO. She testified that she received Dr. Sloka’s personal phone number from his secretary. On her evidence, she called Dr. Sloka in the evening about a day later. She made no notes of this purported conversation.

653According to Dr. Giles, she told Dr. Sloka that she received a call from a family doctor expressing concern about an inappropriate examination. The patient confirmed that she had been completely disrobed and without a chaperone as Dr. Sloka conducted a skin examination. On Dr. Giles’s evidence, Dr. Sloka confirmed that he had seen Ms. J.B., that he had conducted a skin examination to look for evidence of neurocutaneous disease, and that she was disrobed for the examination. He claimed that during his residency in Newfoundland, a skin examination was a normal component of an examination of patients with suspected epilepsy. Dr. Giles did not ask Dr. Sloka to explain how he performed the skin examination and Dr. Sloka did not share his method with her.

654Dr. Giles testified that she told Dr. Sloka that his skin examination of Ms. J.B. was not part of the standard examination of a patient with epilepsy or suspected seizure. She told him that she could not comment on what was done in Newfoundland but, in Ontario, and in the Waterloo region, this was entirely unacceptable and inappropriate. She also purportedly told Dr. Sloka that he should never undress anyone without informed consent and must always use proper draping for examinations involving the skin or body. She also purportedly told Dr. Sloka that he must always have a third-party present when examining a young woman and exposing areas like the breast or stomach. According to her, she also informed him that she referred any necessary skin examinations to a dermatologist. Last, Dr. Giles claimed to have issued a dire warning to Dr. Sloka. She purportedly told him that if he continued to conduct examinations like the one Ms. J.B. complained about, he would almost certainly have a CPSO complaint lodged against him; he could lose his licence; he could even end up in jail.

655According to Dr. Giles, Dr. Sloka thanked her. He told her that he had no idea that his examination was inappropriate. He had been following protocols learned in Newfoundland. He promised never to do it again. Dr. Giles purportedly replied, “I’m glad you heard me. Scott, just don’t do it again.”

656In cross-examination, in a follow up to Dr. Giles’s claim that she never once questioned Dr. Sloka’s diagnosis, the defence suggested to Dr. Giles that she informed Dr. Sloka that she concurred with Dr. Sloka’s diagnosis. Dr. Giles denied this. She denied even discussing his diagnosis.

657Dr. Giles claimed that her dire warning to Dr. Sloka put a chill on their relationship. According to her, they had almost no contact after she issued that warning. However, she also agreed that she remained friendly with him and invited him to social events. In an email on November 25, 2010, she invited Dr. Sloka and his wife to dinner as a welcome to the local community of neurologists. She offered to pay for their meal.

658Contrary to the evidence of Ms. J.B., Dr. Giles testified that she phoned Ms. J.B. after speaking to the CPSO and Dr. Sloka, to provide an update. She made no notes of this phone call. According to Dr. Giles, she informed Ms. J.B. that she had contacted the CPSO, who instructed her to reach out to Dr. Sloka. She informed Ms. J.B. that she had spoken to Dr. Sloka as instructed and informed him that the skin examination was not commonly done, and he should not do it again. Dr. Giles purportedly informed Ms. J.B. that she had the option of reporting Dr. Sloka to the CPSO. Dr. Giles testified that Ms. J.B. was mistaken about not receiving this update.

659Dr. Giles learned about the CPSO investigation of Dr. Sloka in the College’s trade publication. She remembered Patient A alleging that Dr. Sloka asked her to “completely undress and/or required her to be examined without any clothing, gown, or draping and/or with inadequate draping.” She also heard that Dr. Sloka was under practice restrictions. The investigation was a topic of conversation in the local neurological community.

660In cross-examination, it was suggested to Dr. Giles that she ought to have alerted CPSO investigators to Ms. J.B.’s complaint from 2010. Dr. Giles resisted that suggestion, claiming that she had contacted the CPSO and did what they had asked her to do. From her perspective, it was the College’s job to reach out to her, and they did not.

661When Dr. Giles learned of the subsequent police investigation into Dr. Sloka, she did not step forward with information about Ms. J.B. Initially, she testified that she understood that police would want people with relevant information to come forward. When her failure to step forward was raised in cross-examination, she shifted her position, stating, “I would argue that I didn’t know that they were looking for people to come forward. I’m a neurologist. I’m hiding in plain sight.” When it was pointed out that nobody knew about her purported conversation with Dr. Sloka, she stated that the police “…must know that neurologists speak to each other. You know to my knowledge they did not approach a single neurologist in this Region, not one except for me.” When asked how she would know, she confirmed that she had spoken to two other neurologists, Dr. Steckley and Dr. Mandalfino, about whether the police had contacted them.

662Dr. Giles also acknowledged that she never attempted to inform Ms. J.B. about the investigations into Dr. Sloka, despite remembering her name and the issue she had raised in 2010. Dr. Giles explained her failure to do so by stating that Ms. J.B. was not her patient at the time.

663Dr. Giles denied knowledge of repeated police attempts to contact her. Ultimately, though, the police showed up to her office to pick up a copy of Ms. J.B.’s medical records. She purportedly did not expect them. Because the records were more than six years old, they were not kept on site. The defence suggested to Dr. Giles that she must have inferred by then that Ms. J.B. was a complainant in the criminal investigation of Dr. Sloka, knowing that the police had come to get Ms. J.B.’s file. Dr. Giles deflected, stating,

I don’t remember looking at her file at that time and I have a lot of files. I send three or four files a week off to lawyers and I am not reading them, I am not paying attention to a lot of them, and I don’t remember paying attention to this request or the fact that it was J.B.

664However, she agreed that the police had never been to her office to pick up medical records and that the ongoing criminal prosecution had created a buzz in her small neurological community. Accordingly, Dr. Giles ultimately acknowledged that she would have known that the police must be investigating Ms. J.B. as a possible victim.

The Evidence of Dr. Bril

665Dr. Bril agreed that a neurological examination was appropriate.

666Dr. Bril also agreed that the history provided by Ms. J.B. and her mother indicated the occurrence of a seizure. That conclusion was supported by her post-ictal state (she was confused and disoriented afterwards, quite drained and she had sore muscles) and her reported prior history of seizures. Based upon Ms. J.B.’s history, Dr. Bril concluded, “…there was no other diagnosis.” In the circumstances, it was appropriate to contact the MTO to report this conclusion.

667Given the history provided by Ms. J.B., Dr. Bril did not believe a cardiac examination was appropriate. However, she hedged. She testified that it was reasonable to check Ms. J.B.’s heartrate and blood pressure. Then, in explaining why a cardiac examination was not appropriate, she stated that you would not hear anything during a cardiac examination that would reveal a cause of Ms. J.B.’s seizures or blackout. Then she added that, if you were concerned about the heart, you could order an echocardiogram. Here she appeared to concede that an echocardiogram might be reasonable, and thus than an inquiry into the functioning of the heart might be reasonable. The Crown has not relied upon Dr. Bril’s opinion regarding Dr. Sloka’s cardiac examination in their submissions, so I do not intend to delve further into the matter here.

668Given Ms. J.B.’s description of her episode, Dr. Bril agreed that it would have been appropriate for Dr. Sloka to ask Ms. J.B. about concerning rashes or marks on skin, as part of a systems review. According to the consultation letter, Ms. J.B. told Dr. Sloka she had a birth mark on left lower buttocks. When told this information, it would have been appropriate for Dr. Sloka to ask about the presence of any more skin abnormalities. It would be appropriate to convey to Ms. J.B. that the presence of six or more birthmarks might indicate a disorder that can be associated with seizures.

669Dr. Bril’s evidence on the reasonableness of a skin examination seemed to contain some variation. At first, she bluntly declared that it was not reasonable for Dr. Sloka to consider any neurocutaneous syndrome. To her knowledge, Ms. J.B. had not mentioned any relevant skin lesions, nor mentioned a family history of them. She also considered neurofibromatosis to be a rare disorder. The Crown then presented Dr. Bril with a hypothetical, which was based upon the evidence given by Ms. J.B., who testified about a birth mark on her lower left buttocks. In response to that hypothetical, Br. Bril also agreed that it could be neurologically reasonable for Dr. Sloka to inspect Ms. J.B.’s birthmark if he thought it might be a café-au-lait spot. However, she testified that this point was debatable, because Ms. J.B. had not reported multiple birthmarks and because she considered neurofibromatosis to be an extremely rare condition. Elsewhere in her evidence, though, Dr. Bril conceded that if a patient expressed uncertainty about the presence of additional stigmata of neurocutaneous disease, it might be reasonable to conduct a skin examination.

670Dr. Bril testified that the way Dr. Sloka allegedly conducted the skin examination was not appropriate. Dr. Bril opined that Ms. J.B. ought to have been properly draped for any examination of her skin, not naked. If only examining the single birthmark, Ms. J.B. ought to have been lying face down on the examination table or standing with the front of her torso covered by her gown. A targeted examination of a single birthmark did not require the removal of Ms. J.B.’s underwear. Also, she testified that Dr. Sloka ought to have asked Ms. J.B. whether she wanted to have someone else present for the examination. Having said that, she conceded that, at the time of Ms. J.B.’s examination, a chaperone was not mandated by the CPSO.

The Evidence of Dr. Sloka

671Dr. Sloka had no independent memory of Ms. J.B. He relied upon his consultation letter and handwritten notes for the truth of their contents. He relied upon the rest of Ms. J.B.’s medical file for context.

672I have already summarized the history Ms. J.B., and her mother provided to Dr. Sloka and the ER doctor. I will not repeat it here.

673Based upon the history provided to him, Dr. Sloka thought Ms. J.B. had suffered a seizure. He testified that often people who have suffered a seizure will wake up and normalize. However, their memory function does not restore until later. This phenomenon explained how Ms. J.B. was unable to remember events that occurred after she regained consciousness until lying on the spinal board in the hospital. Ms. J.B.’s childhood seizure history and post-episode disorientation and muscle soreness also suggested a seizure.

674Based upon her reported history, Dr. Sloka testified that it was his standard practice to inquire about skin markings. He did not record any declared skin markings in his consultation report, but he agreed he ought to have done so if Ms. J.B. reported a birthmark on her buttocks in response to his screening questions.

675Dr. Sloka testified that he proposed neurological, cardiac, and skin examinations.

676Dr. Sloka denied asking Ms. J.B.’s mother to leave for the examination. On his evidence, if Ms. J.B. wanted her mother present, he would have acceded to her request.

677On Dr. Sloka’s evidence, all examinations were conducted in the examination room. He denied conducting reflex tests in his office. He explained that the chairs in his office were too low to the ground to allow the patient’s legs to swing freely above the ground. Testing reflexes of a patient in an office chair was not possible.

678Dr. Sloka testified that it was his standard practice to conduct the examinations in the following order: neurological, then cardiac, then skin examination.

679Dr. Sloka provided a justification for his cardiac examination. Ms. J.B. reported an unwitnessed loss of consciousness. Dr. Sloka would not rule out the possibility of a cardiac explanation for this event. In his view, ignoring that possibility would be serious. Further, it was Dr. Sloka’s understanding from the medical literature that a cardiac examination was indicated in cases involving a suspected seizure. His justification for the cardiac examination was not challenged in cross-examination.

680While Dr. Sloka did not remember Ms. J.B.’s skin examination, he recorded “COSE” [consent obtained for skin examination] in his rough notes and remembered speaking to Dr. Giles about the skin examination. Thus, Dr. Sloka believed he performed a skin examination.

681Dr. Sloka provided a justification for the skin examination. He testified that, from his understanding of the medical literature, a skin examination may be done as part an assessment of someone who has suffered a suspected seizure. The skin examination involves a search for evidence of neurocutaneous disease. Dr. Sloka testified that he would have told Ms. J.B. that if she had a birthmark (as apparently reported by her) and there were others, she might meet the criteria for a neurocutaneous syndrome that predisposes her to having seizures.

682On Dr. Sloka’s evidence, all examinations were performed in accordance with his standard methods. Dr. Sloka denied untying Ms. J.B.’s gown thereby causing Ms. J.B. to stand naked for her skin examination. He also denied that he asked Ms. J.B. to bend over during the skin examination. Dr. Sloka denied any touching during the skin examination other than the touching involved in rotating Ms. J.B.’s hands or feet, to rotate an arm or leg, to enable visualization of the skin; or possibly the palpation of anything that looked like a lump or neurofibroma. As for Ms. J.B.’s allegation that Dr. Sloka lightly touched her extremities with his fingers, Dr. Sloka took the position that this touching would have occurred during a gowned neurological examination, not during the skin examination. Dr. Sloka also denied placing his face within a couple inches of Ms. J.B.’s skin, as she alleged. Dr. Sloka also testified that his standard skin examination takes only a couple of minutes. He denied that he examined Ms. J.B.’s skin for 10 minutes, as she alleged.

683At the culmination of Ms. J.B.’s appointment, Dr. Sloka concluded that Ms. J.B. had suffered a seizure. He informed her of this conclusion and that he would be sending a letter to the MTO to have her licence suspended.

684Dr. Sloka remembered having a discussion with Dr. Giles about Ms. J.B. in June of 2010. He did not profess to remember the conversation verbatim. Finer details of the conversation were lost to his memory. However, he purported to remember salient features of the conversation. According to Dr. Sloka, this conversation occurred in person at a meeting for neurologists hosted by a pharmaceutical company. It did not occur over the phone, as alleged by Dr. Giles. He testified that Dr. Giles told him that she had seen a former patient of his who was surprised that he conducted a skin examination. Dr. Giles told him that she does not normally screen for neurocutaneous diseases. If she suspected one, she would refer the patient to a dermatologist or family doctor for a skin examination. According to Dr. Sloka, he told Dr. Giles that he conducted a skin examination because Ms. J.B. presented with seizures. He offered skin examinations to seizure patients to investigate whether neurocutaneous diseases were the underlying cause. According to Dr. Sloka, he and Dr. Giles discussed other topics too, like practice management, work/life balance, and sharing patients.

685Based upon what Dr. Giles had told him in their conversation, Dr. Sloka believed that Ms. J.B. had expressed discomfort at the fact that Dr. Sloka performed a skin examination, not with Dr. Sloka’s methods. Nevertheless, he agreed that it concerned him that Ms. J.B. had expressed discomfort. He paid attention to what Dr. Giles had to say. He denied that Dr. Giles ever told him that his skin examination did not follow the standard of care or was inappropriate. He denied that Dr. Giles ever told him that Ms. J.B. complained of being naked during the skin examination. He denied that she ever told him that he could lose his licence or go to jail. On his evidence, there was no “dire warning.”

686On September 7, 2010, Ms. J.B. contacted Dr. Sloka’s office and left a message. His secretary documented this call in Ms. J.B.’s patient file. On September 8, his secretary returned that call and documented it. Ms. J.B. had contacted Dr. Sloka’s office to ask that Dr. Sloka provided a letter to the MTO in support of the reinstatement of her driver’s licence. His secretary had documented that Ms. J.B. had been discharged from Dr. Sloka’s practice “due to she felt uncomfortable w/ Scott’s exam.”

687On September 9, 2010, Dr. Sloka sent a letter to Dr. Baxter’s office. He informed Dr. Baxter that Ms. J.B. had contacted him to seek an MTO letter, that he understood that she had been uncomfortable with his level of care, and that she had sought a second opinion from Dr. Giles. Dr. Sloka subsequently noted that he had since spoken to Dr. Giles about Ms. J.B., and that Dr. Giles agreed with both the diagnosis and treatment plan. Dr. Sloka also told Dr. Baxter that he thought Ms. J.B.’s request was “unusual” in the circumstances. He went on to state that he believed that it had been suggested that Ms. J.B. might obtain an MTO letter from Dr. Baxter instead. However, he closed his letter by stating his willingness to help if Dr. Baxter felt a neurologist’s opinion was required.

Assessment of the Evidence and Analysis

688Ms. J.B. was not a credible witness. I have concluded that she fabricated an allegation against Dr. Sloka for the purpose of obtaining a second opinion and the reinstatement of her driver’s licence. I will now explain how I arrived at this conclusion.

689When Ms. J.B. met with Dr. Sloka, she provided information about her episode and medical history that led Dr. Sloka to conclude she had suffered a seizure. The information she provided to Dr. Sloka echoed what she told the ER physician. Dr. Bril agreed that this conclusion was the only diagnosis available, based upon the information available. Dr. Giles also agreed that, based on the information presented to Dr. Sloka, she did not doubt his conclusion.

690Ms. J.B. disagreed with Dr. Sloka’s conclusion. She knew that Dr. Sloka’s conclusion would lead to a loss of her licence. She needed her driver’s licence to keep her job and go to school. She agreed that her licence was important to her at the time.

691Ms. J.B. went to Dr. Baxter to obtain a referral to a new neurologist. I have concluded that, during this appointment, she lied to Dr. Baxter to facilitate that referral. Let me explain.

692At that appointment, Dr. Baxter recorded Ms. J.B.’s history as Ms. J.B. provided it, and she recorded the events of the appointment as they occurred – utilizing the SOAP method (Subjective, Objective, Assessment, Plan). Dr. Baxter wrote these notes in the ordinary course of her practice for the purpose of fulfilling her professional obligations towards her patient. She relied upon these notes. Although they did not purport to be a verbatim account of the history provided by Ms. J.B., I accept that Dr. Baxter documented the substance of what Ms. J.B. reported. I therefore have no hesitation in concluding that Ms. J.B. reported to Dr. Baxter that she “was completely naked and he was touching her genital area without gloves.” The only reasonable interpretation of this notation is that Ms. J.B. claimed that Dr. Sloka touched her genital area with his hands. Ms. J.B. testified that she did not remember making this allegation and that Dr. Sloka did not touch her genital area. I infer that when she came forward nine years after this appointment with Dr. Baxter, she had forgotten this aspect of her complaint. I find it exceedingly implausible that Ms. J.B. would have forgotten gloveless genital touching if it in fact occurred. In my view, the only plausible explanation for this prior inconsistent complaint is that Ms. J.B. lied when making it and forgot about the lie when she came forward to the police years later. I keep in mind here that Ms. J.B. did not repeat the lie once she secured her appointment with Dr. Giles. She also did not make this allegation to her husband. Her motive to lie is laid bare in Dr. Baxter’s notes from the visit: “she is certain was not seizure as remembers everything;” “feels this is a big deal over nothing sig.;” “Pt very upset re inability to drive – says will not be able to go to school in fall. Tearful in office.”

693Ms. J.B.’s motive to lie and resulting dishonesty is also revealed by her alteration of her medical history following Dr. Sloka’s seizure diagnosis. At the ER, she reported that she became lightheaded in the morning and then fell; she lost consciousness for 10-20 minutes. She could not remember before or after the event. She also reported a childhood seizure disorder. She provided a similar history to Dr. Sloka. She reported looking at her watch at 7:50 a.m. while doing laundry in the basement, then next remembering waking up on a spinal board in the hospital; she reported that he co-workers saw her get up and walk up the stairs; her co-workers told her she was confused and disoriented in the aftermath of the episode; she also reported feeling drained and having sore muscles in the aftermath of the episode; additionally, she reported a childhood seizure history. Dr. Bril, Dr. Sloka, and Dr. Giles all agreed that the history reported to Dr. Sloka supported a seizure diagnosis. It is obvious that Ms. J.B. understood this by the time she sought another referral from Dr. Baxter. In explaining to Dr. Baxter why she was certain she did not suffer a seizure, she told Dr. Baxter that she remembers “everything,” contradicting what she had previously reported to both Dr. Sloka and the ER doctor. When she saw Dr. Giles, she omitted mentioning any childhood seizure history; she omitted mentioning that she last remembered looking at her watch before passing out; she omitted claiming a memory blackout until waking up in the hospital; she added a claim that she remembered waking up in the laundry room; she suggested that her loss of consciousness was the result of banging her head off the new laundry machines as she raced down the stairs; and she suggested that her post incident symptoms resembled past post-concussion symptoms. In short, Ms. J.B. provided a dramatically altered history, obviously designed to defeat the seizure diagnosis and to provide an alternative explanation for her loss of consciousness – a blow to the head. Dr. Giles agreed that Ms. J.B. provided her with a vastly different story than the one she provided to Dr. Sloka. In doing so, I conclude that Ms. J.B. lied to Dr. Giles. At the time of her assessment, Dr. Giles was unaware of what Ms. J.B. had told Dr. Sloka and the ER physician. Accordingly, Ms. J.B.’s lie led Dr. Giles to arrive at a different assessment than the one reached by Dr. Sloka.

694Ms. J.B.’s lie about genital touching fatally undermines her claim about a naked skin examination. The same motive to fabricate existed when Ms. J.B. first made the claim to Dr. Baxter. It is important to remember here that Dr. Sloka concedes that he conducted a skin examination. Only his method is in dispute. It is also important to remember that Dr. Sloka’s method involves the exposure of the entirety of a patient’s skin, albeit in a piecemeal fashion, rather than all at once. Conceptually, there is not a great distinction between a piecemeal exposure of the entire body and an all-at-once exposure, particularly when that piecemeal exposure briefly involves exposure of the front of the torso. In both cases, a patient can correctly claim that her doctor saw every inch of her exposed body. While some patients similarly alleged that Dr. Sloka examined their skin while they were completely naked, some alleged that Dr. Sloka examined their skin in a piecemeal fashion. Also, for the reasons articulated in respect of each alleged naked skin examination, I have rejected those similar claims. Also, Ms. J.B. was the only complainant to allege that she bent at a 45-degree angle for her skin examination. The similarity of any other skin examination complaints to Ms. J.B.’s lacks sufficient probative value to support Ms. J.B.’s complaint. Given Ms. J.B. obvious lie about genital touching and given her abiding motive to fabricate, it is entirely plausible that Ms. J.B. embellished her description of her skin examination.

695I also find reason to distrust Ms. J.B.’s allegation of a naked skin examination in the inconsistencies between her various descriptions of that examination. For example, she provided contrasting accounts of how she bent over during her examination. Je.B. testified that Ms. J.B. told him that Dr. Sloka had her bend over a desk during the skin examination. At trial, Ms. J.B. testified that she bent over at a 45-degree angle but denied bending over any furniture. Ms. J.B. also provided contrasting accounts about the removal of her gown. Je.B. and Dr. Giles testified that Ms. J.B. told them that Dr. Sloka told Ms. J.B. to disrobe and that she complied. However, Ms. J.B. testified that, as she stood in the middle of the examination room, Dr. Sloka approached her from behind, moved her hair from the back of her neck, untied her gown, and let it fall to the floor.

696Ms. J.B. also proved herself to be an unreliable historian regarding the other examinations performed by Dr. Sloka. She agreed that there were “tons of things” she could not remember about her appointment and examination. She also did not remember the cardiac examination documented by Dr. Sloka. Moreover, she alleged that she was in street clothes for reflex and strength tests, which is implausible, given Dr. Sloka’s evidence about the unsuitability of the office chairs for reflex tests and given that she ultimately entered the examination room and wore a gown for her examinations.

697I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations on any given patient. However, having considered Dr. Sloka’s evidence in the context of the entirety of the evidence, I conclude that he has refuted any inference of a sexual purpose when examining Ms. J.B. I will discuss my assessment of his evidence momentarily.

698The Crown also relies upon three more granular cross-count similarities between the evidence of some patients and Ms. J.B. to support her evidence on other material issues. First, they argue that Ms. J.B. was one of twenty-one patients who were naked or in a state of undress when Dr. Sloka closely examined their skin. Second, they argue that Ms. J.B. belonged to a group of fifteen patients who claimed they entered the examination room without being told about the nature of the examination Dr. Sloka planned to conduct. Third, they argue that Ms. J.B. belonged to a group of patients to whom Dr. Sloka expressed an interest in searching for moles or other abnormalities (including 8 patients who, before any exposure to media coverage, disclosed that Dr. Sloka told them that he wanted to examine them for moles; nine patients who, subsequent to media exposure, alleged that Dr. Sloka expressed an interest in searching for moles; and two patients who alleged that Dr. Sloka said he wanted to look for “quarter-sized” marks.)

699In my view, these cross-count similarities are incapable of resuscitating the fatally flawed evidence of Ms. J.B. The evidence of fabrication is too compelling for any similar fact evidence to breath life into her lifeless credibility. Nevertheless, I will deal with each category in turn.

700I begin with the purported similar fact category involving skin examinations. In my view, the Crown draws the boundaries of this category too broadly for it to have sufficient probative value. Not all of the 21 patients in this constituency allege a full standing skin examination akin to the kind alleged by Ms. J.B. and acknowledged by Dr. Sloka. Only thirteen patients would appear to fall into this category. Of those thirteen, only seven alleged that they were entirely naked: Ms. J.B., Ms. J.S., Ms. E.J., Ms. I.R., Ms. J.H., Ms. J.W., and Ms. J.D. Of those seven, only Ms. J.B. and Ms. J.W. were not tainted by exposure to CPSO or media publications. In their submissions regarding Ms. J.W., the Crown relied upon only five of these seven patients. Of those five, all but Ms. J.W. were tainted by media and/or CPSO publications about skin examinations. Of the remaining members of the group of thirteen, some alleged at least partial coverage of their bodies and some alleged that Dr. Sloka exposed their skin in a piecemeal fashion, consistent with his stated practice. More importantly, though, Dr. Sloka conceded that he performed a skin examination to search for evidence of neurocutaneous disease in Ms. J.B.’s case. The existence of a skin examination was not a material issue, only the way one was conducted. Given the prevalence of tainting amongst the majority of patients who alleged a naked skin examination and given the compelling evidence that points to fabrication by Ms. J.B., I conclude that this category of similar fact evidence lacks sufficient probative value to support the evidence of Ms. J.B.

701As for the second category of cross-count similar fact evidence (failure to articulate the nature of and reason for the examination), Ms. J.B. does not belong in it. Ms. J.B. testified that Dr. Sloka drew a correlation between the existence of birthmarks, seizures, and epilepsy. She told him about a birthmark on her buttocks. On her evidence, she understood that the proposed physical examination was related to her birthmark. She had a sparse memory of the wording of Dr. Sloka’s examination proposal, but she acknowledged that he might have used the words physical exam or inspection. The only reasonable inference available is that she understood that Dr. Sloka would be looking at her skin.

702The third category of similar fact evidence relied upon by the Crown involves the alleged similarity to the evidence of Ms. M.O. The Crown contends that both women testified that Dr. Sloka told them that he wanted to look for “quarter-sized” marks. Ms. J.B. never used that term. She used the term “birthmarks.” Conversely, Ms. M.O. never used the term “birthmarks.” Additionally, Dr. Sloka conceded that he inquired about the presence of birthmarks, and more generally about possible stigmata of neurocutaneous disease, just as he conceded conducting a skin examination to search for stigmata of neurocutaneous disease. The search for stigmata was not a material issue. This granular cross-count similarity does not provide additional support for Ms. J.B.’s evidence.

703Je.B.’s testimony also fails to assuage my concerns that Ms. J.B. fabricated her evidence, for several reasons. First, his evidence of her out-of-court declarations regarding her appointment is not admissible for its truth. Second, he acknowledged multiple conversations with Ms. J.B. about her appointment with Dr. Sloka. He testified that they likely discussed reporting Dr. Sloka in the days following the appointment, particularly after she saw Dr. Giles. They also discussed their respective recollections after learning from the media about allegations made by other patients against Dr. Sloka. There exists a real potential of the cross-contamination of their memories, rendering his purported recollection about their-same day conversation unreliable. Also, it becomes difficult to assess what was shared when. There is a substantial likelihood that this anti-tainting witness has been tainted. Third, Je.B. contradicts Ms. J.B. on a key component of her evidence. On his account, she told him that she removed her gown at Dr. Sloka’s request. Ms. J.B. testified that it was Dr. Sloka removed her gown from her body.

704I reject Ms. J.B.’s claim of a naked skin examination.

705I would now like to turn to the evidence of Dr. Baxter and Dr. Giles. I will begin with Dr. Baxter.

706I trust Dr. Baxter’s notes more than I do her testimony. As noted, her notes contribute to my conclusion that Ms. J.B. lied about Dr. Sloka in order to obtain a second opinion. More needs to be said, though. Dr. Baxter was an intelligent and articulate witness. I refuse to believe that she did not appreciate the import of recording that Ms. J.B. complained of being examined while completely naked and being touched by Dr. Sloka in the genital area while he was not wearing gloves. The accusation she recorded in her notes was a bombshell. I conclude she would have known this. Yet, she made no complaint to the CPSO. She also did urge Ms. J.B. to make one. Indeed, she suggested that Ms. J.B.’s most expedient course of action would be to return to Dr. Sloka, albeit with a parent present, so she could have a “second set of ears”. Concerningly, Dr. Baxter testified that she did not remember Ms. J.B. making her bombshell accusations, not when Dr. Sloka’s case gained notoriety in the media, and not at trial. I disbelieve her. I find it exceedingly implausible that she would forget the allegation that she recorded in Ms. J.B.’s chart. In my view, there are two likely explanations for Dr. Baxter’s inadequate response to Ms. J.B.’s complaint, neither of which assist the Crown. Either she did not believe Ms. J.B., or she chose to protect Dr. Sloka. Perhaps tellingly, when discussing the option of returning to Dr. Sloka, she suggested Ms. J.B. ensure a parent was present throughout the interview – not to prevent further inappropriate conduct or discomfort, but to ensure she “has [a] 2nd set [of] ears.” That recommendation suggests she did not take Ms. J.B.’s accusation seriously. Her professed lack of memory about the accusation suggests she more recently came to regret her earlier response.

707Dr. Giles’ evidence is important to the Crown’s case, for at least two reasons, both of which stem from her purported conversation with Dr. Sloka after her initial appointment with Ms. J.B. First, she allegedly gave Dr. Sloka a dire warning, telling him that future skin examinations – particularly naked skin examinations – could lead to the loss of his licence, criminal prosecution, and jail. Second, she essentially alleged that Dr. Sloka admitted to performing a naked skin examination and to failing to realize that these examinations fell below the standard of practice in Ontario. If these features of her evidence are accepted, then it would be open for the court to infer Dr. Sloka possessed a nefarious intent for any future skin examinations. Moreover, Dr. Sloka’s purported admission could revive the otherwise uncredible evidence of Ms. J.B.

708While admittedly important, Dr. Giles evidence causes me grave concern. After considering the totality of the evidence, I have concluded that Dr. Giles provided dishonest testimony about her response to Ms. J.B.’s complaint. I disbelieve her evidence about her call to the CPSO and about her discussion with Dr. Sloka. I come to these conclusions for several reasons, which I will discuss in more detail momentarily.

709But first, despite rejecting many aspects of Dr. Giles’s evidence, I do accept Dr. Giles’s testimony that she sought advice from the CMPA in response to Ms. J.B.’s complaint of a naked skin examination. Unlike Dr. Giles, who made no documentation of Ms. J.B.’s complaint or her responses to it, the CMPA documented that Dr. Giles called them to seek advice. However, I do not know what she reported to the CMPA, nor do I know the advice she received, because Dr. Giles claimed privilege over those discussions.

710While I accept that Dr. Giles called the CMPA to get advice, I reject her testimony that she subsequently contacted the CPSO. She claimed that she called the CPSO within a day or two of getting advice from the CMPA. She acknowledged that a call of this nature was important, made for the purpose of discharging her professional duties in accordance with the expectations of her regulatory body. Despite this, she took no notes of the alleged phone call. Dr. Giles testified that she did not view this phone call to be part of Ms. J.B.’s care and therefore took no notes. That explanation was not convincing. According to Dr. Giles, she was concerned that Dr. Sloka might have engaged in sexual abuse of Ms. J.B., but she wanted guidance from the CPSO. The agreed statement of facts filed at trial confirms that the CPSO documented all calls of this nature in their records management system. If, as Dr. Giles claimed, she provided her name and Dr. Sloka’s name to the man at the CPSO who answered her call, that call would have been uploaded into the records management system. The existence of the call could be confirmed by searching for Dr. Giles’ name or Dr. Sloka’s. The CPSO had no record of any such call, despite Dr. Giles purportedly having concerns about possible patient sexual abuse and despite her purported claim that Dr. Sloka’s naked skin examination fell outside of the standard of practice. I simply cannot accept that the discussion claimed by Dr. Giles would not be documented. I conclude no such call was ever made. Dr. Giles lied about making this call.

711Dr. Giles’s false claim of a call to the CPSO was one component of a broader dishonest effort to portray herself as responding ethically and professionally to Ms. J.B.’s complaint – an effort that only arose once it became apparent to Dr. Giles many years later that Ms. J.B. had come forward to the police and that charges had been laid.

712There are other reasons to disbelieve Dr. Giles’s evidence about her call to the CPSO. For example, I find it highly implausible that once she had laid bare her concerns about Dr. Sloka, that the man on the phone would advise against reporting Dr. Sloka and instead tell her to talk to Dr. Sloka. I also find it implausible that the man on the phone would not refer her to Pam Greenberg, the intake coordinator for sexual abuse calls.

713Dr. Giles’ evidence regarding her response to Ms. J.B.’s complaint was also roundly contradicted by Ms. J.B. According to Dr. Giles, she told Ms. J.B. that she would seek advice and get back to her. According to Dr. Giles, after contacting the CMPA, the CPSO, then Dr. Sloka, she reported back to Ms. J.B. to report the steps taken. In this alleged phone call, she also purportedly told Ms. J.B. that she could still contact the CPSO if she still harboured concerns or discomfort. In contrast, Ms. J.B. testified that Dr. Giles actively discouraged her from making a report. According to Ms. J.B., Dr. Giles told her that she would handle the situation, that she would talk to Dr. Sloka and coach him so that something like that would not happen again. She denied that Dr. Giles reported back to her about speaking to the CPSO and to Dr. Sloka. She denied that Dr. Giles told her that, if she remained concerned, she could lodge a complaint with the CPSO. The conflicting accounts of Dr. Giles and Ms. J.B. cannot be reconciled. The marked contradiction between their accounts cannot be written off as a simple miscommunication.

714On the question of Dr. Giles’s response to Ms. J.B.’s allegations, the Crown asks that I prefer the evidence of Dr. Giles over the evidence of Ms. J.B. I cannot do that. Ms. J.B.’s account is supported by the fact that the CPSO has no record of Dr. Giles ever placing a call about Dr. Sloka. Additionally, while Ms. J.B. had a motive to fabricate allegations against Dr. Sloka, she had no motive to fabricate Dr. Giles’ response to her allegation. Dr. Giles, on the other hand, possessed a clear motive to portray herself as having responded to Ms. J.B.’s complaint in a manner consistent with her professional obligations. And while Ms. J.B. acknowledged some details of material events were lost to her memory, she professed a clear memory that Dr. Giles told her not to report Dr. Sloka. Meanwhile, Dr. Giles, who took no contemporaneous notes regarding Ms. J.B.’s allegations or the actions she took in response to those allegations, overstated the precision of her memory. Her unjustified confidence in the precision of her memory was illustrated when questioned about her discussions with Ms. J.B. about the skin examination. According to Ms. J.B., Dr. Giles told her that in some cases a skin examination was medically appropriate, but that she referred those examinations to a dermatologist. Ms. J.B. had no way of knowing that Ms. J.B. referred those examinations to a dermatologist unless Dr. Giles told her so. Yet Dr. Giles initially denied doing so. When pressed, Dr. Giles waivered and became evasive, offering the weak deflection, “That is a very tiny detour. The overall structure… I remember.” I have no hesitation in rejecting Dr. Giles’s evidence about her interactions with Ms. J.B. in response to Ms. J.B.’s complaint.

715I find Dr. Giles’s evidence regarding her purported telephone call to Dr. Sloka equally suspect. Once again, she took not notes of this alleged telephone call in which she purportedly issued a dire warning to Dr. Sloka. On her evidence, the warning provided conveyed belief that Dr. Sloka’s examination constituted professional and criminal misconduct, which could lead to the loss of his licence and incarceration. That purported belief does not square with the fact that Dr. Giles told Ms. J.B. to refrain from reporting Dr. Sloka, nor is it consistent with Dr. Giles’s own failure to contact the CPSO. In my view, her evidence about this conversation was self-serving and designed to establish that she conformed with the directions of her regulatory body, directions that were never given, because she never sought them. In this manner, when questioned by the police and when testifying in court, she sought to absolve herself for nine years of inaction.

716Dr. Giles’s claim about her dire warning to Dr. Sloka was also undermined by evidence of her subsequent interactions with Dr. Sloka. At one point in her evidence, she claimed that the dire warning put a chill on their relationship and that she had almost no contact with Dr. Sloka afterwards. However, she then agreed that she remained friendly towards him, inviting him to social events. In an email to Dr. Sloka in November of 2010, she invited Dr. Sloka and his wife to a dinner as a welcome to the community of neurologists. She offered to pay for Dr. Sloka’s dinner, so that Dr. Sloka would feel comfortable attending an event sponsored by a pharmaceutical company. Dr. Sloka accepted the invitation. The offer and acceptance undermined Dr. Giles’ claim that any preceding conversation had put a chill on their relationship, thereby undermining Dr. Giles’s claim that the preceding conversation contained a “dire warning.”

717For all the foregoing reasons, I reject Dr. Giles claim that she issued a dire warning to Dr. Sloka, and I reject her claim that Dr. Sloka acknowledged performing a naked skin examination on Ms. J.B. Instead, I accept Dr. Sloka’s account of the circumstances and content of their discussion, which I will address in more detail when discussing Dr. Sloka’s evidence. One more point should be addressed now, though.

718Dr. Giles’s evidence regarding the merit of Dr. Sloka’s clinical impression and treatment plan supported Dr. Sloka’s account of their discussion. At trial, she conceded that, based on the evidence known to Dr. Sloka at the time of his assessment of Ms. J.B., Dr. Sloka’s assessment and plan was correct. However, she was presented with a different clinical picture, including a markedly different patient history. On Dr. Sloka’s evidence, Dr. Giles told him that she agreed with his assessment and plan. In my view, it is entirely plausible that each doctor compared and discussed their respective impressions of their common patient. It is entirely plausible that, just as she did in court, Dr. Giles commented favourably upon Dr. Sloka’s approach.

719I would now like to discuss Dr. Bril’s evidence.

720Dr. Bril’s evidence offered limited assistance to the Crown and to some degree assisted Dr. Sloka.

721Dr. Bril agreed that the evidence available to Dr. Sloka supported his conclusion that Ms. J.B. had suffered a seizure. Indeed, she thought that the only available conclusion. Consequently, Dr. Sloka was obliged to contact the MTO to trigger the suspension of Ms. J.B.’s licence.

722Dr. Bril also testified that, given Ms. J.B.’s history, it was reasonable for Dr. Sloka to inquire about skin abnormalities when obtaining Ms. J.B.’s history. If Ms. J.B. reported a birthmark on her buttocks, it would be reasonable for Dr. Sloka to inquire if she had any more. It would also be reasonable to inform Ms. J.B. that the presence of six or more large birthmarks might indicate the existence of a disorder associated with seizures.

723Dr. Bril also agreed that it would be neurologically reasonable, albeit debatable, for Dr. Sloka to inspect the birthmark on Ms. J.B.’s buttocks, if Dr. Sloka thought Ms. J.B.’s description suggested it was a café au lait spot. She also testified elsewhere in her evidence that if a patient was uncertain about the presence of additional birthmarks, it might be reasonable to consider a skin examination – even though she also took the position that neurofibromatosis was vanishingly rare. Confusingly, while she agreed it might be reasonable for Dr. Sloka to inspect a single birthmark, she maintained that a more comprehensive skin examination ought to be conducted by a dermatologist or family doctor. Her evidence here seems somewhat incongruous: it is acceptable to look at one cheek, but a different doctor should look at the other. Moreover, as I have said elsewhere, Dr. Bril possessed no knowledge of Dr. Sloka’s training and experience and thus lacked any foundation to opine on the appropriate scope of Dr. Sloka’s practice.

724I turn now to Dr. Sloka’s evidence.

725In my view, Dr. Sloka provided cogent and compelling evidence which established that he subjectively believed in the neurological reasonableness of a skin examination. He provided uncontradicted evidence that he possessed the training and experience necessary to perform a skin examination. Given my rejection of Ms. J.B.’s evidence regarding the manner of the skin examination and I conclude that Dr. Sloka has refuted any suggestion that he possessed a sexual purpose when examining Ms. J.B.

726Based upon the history provided in the referral from the GRH ER and based upon the history Ms. J.B. provided to him, Dr. Sloka considered a seizure as a possible diagnosis. Dr. Bril agreed that the history presented to Dr. Sloka suggested a seizure.

727Dr. Sloka testified that, where a patient’s history indicated the likelihood of a seizure, it was his standard practice to inquire about various seizure risk factors, including the presence of stigmata of neurocutaneous disease. Dr. Bril agreed with the reasonableness of this approach. While Dr. Sloka did not make note of any inquiry about skin abnormalities in his consultation letter, Ms. J.B. confirms that such an inquiry was made. His failure to document her reported birthmark is therefore of little moment.

728Dr. Sloka charted a neurological and cardiac examination in his consultation letter. Those examinations are not contentious. Part of Dr. Sloka’s standard neurological examination involved the light touching of her arms and legs with his fingertips. I accept Dr. Sloka’s evidence that examination for sensation occurred during the neurological examination and not during or following the skin examination. Similarly, I accept Dr. Sloka’s evidence that all examinations occurred in the examination room, that testing for reflexes was not practicable while the patient sat in a chair, and that he therefore did not conduct the neurological examination in the office.

729While he did not chart a skin examination, Dr. Sloka explained that he did not tend to note negative findings for skin examinations in his consultation letters. He did, however, chart a skin examination in his rough notes by charting COSE (consent obtained for skin examination). I see nothing nefarious about his use of an acronym to record the existence of a skin examination. If he were trying to hide the existence of a skin examination, he would have been better served by charting nothing at all. As it stands, Dr. Sloka’s charting of this examination has allowed confirmation that it occurred.

730Dr. Sloka denied instructing Ms. J.B.’s mother to leave the office for the physical examination. Given my rejection of the core of Ms. J.B.’s complaint, I have no reason to disbelieve him.

731Dr. Sloka testified that he believed that there existed a statistically significant incidence of neurocutaneous disease in seizure patients. He relied upon data contained in the Ferner text which Dr. Bril considered to be an authoritative text. He provided a logical and rational basis for his conclusion. He therefore provided a compelling basis for the court to accept his subjective belief that a skin examination was diagnostically probative. I note here that Dr. Bril agreed that a skin examination could be neurologically reasonable in patients reporting one or more possible stigmata of neurocutaneous disease and uncertainty about the presence of more. I also note that Dr. Giles confirmed that she sometimes considered skin examinations neurologically warranted to investigate the presence of neurocutaneous disease, but that she referred her patients to a dermatologist for these examinations. Dr. Giles did not testify as an expert, but her evidence establishes that at least one other neurologist in Dr. Sloka’s local neurological community considered skin examinations to be diagnostically relevant when neurocutaneous disease is suspected.

732Given Ms. J.B.’s fatally flawed credibility and given the insufficient probative force of any similar fact evidence, I have no reason to reject Dr. Sloka’s evidence that he employed his standard methodology when performing the skin examination.

733I also accept Dr. Sloka’s evidence that he possessed the training and experience necessary to conduct a skin examination. His evidence on this point stood unchallenged. Given this training and experience, he had every reason to believe that he was operating within his permissible scope of practice.

734I turn now to Dr. Sloka’s evidence about his discussion with Dr. Giles. According to Dr. Sloka, this conversation did not occur during a telephone call, but at an event hosted by a pharmaceutical company. Amongst other things, he and Dr. Giles discussed their mutual patient. He recalled that Dr. Giles mentioned that Ms. J.B. was surprised that he conducted a skin examination and had expressed discomfort. He denied being informed that Ms. J.B. had complained of a naked skin examination. Instead, he testified that Dr. Giles told him that she did not normally do her own skin examinations, choosing instead to refer them to a dermatologist or family doctor. Given my concerns about Dr. Giles’s credibility, I have no reason to reject Dr. Sloka’s account of this conversation. I appreciate that Dr. Sloka possessed an incomplete memory of this conversation. That is hardly surprising, given that it occurred thirteen years before he testified. However, it is entirely conceivable that he would remember the broad brushstrokes of their conversation, particularly because he was new to the region at the time, he had only just begun his practice as a clinical neurologist, and Dr. Giles had relayed Ms. J.B.’s concern about the fact that Dr. Sloka had conducted a skin examination.

735The Crown contends that Dr. Sloka betrayed a consciousness of guilt when writing a letter to Dr. Baxter in the aftermath of Ms. J.B.’s attempt to obtain his help in getting her license reinstated (written on September 9, 2010). In that letter, Dr. Sloka told Dr. Baxter that he thought Ms. J.B.’s decision to seek his help was “unusual” given that she was previously “uncomfortable” with his “level of care.” The Crown argues that Dr. Sloka was being “deliberately vague” to conceal the fact that he conducted a naked examination of Ms. J.B.’s body, and to “contain the fallout” from that accusation. I do not follow the logic of this submission. Both Dr. Sloka and Dr. Giles confirmed that Dr. Sloka admitted to conducting a skin examination when they spoke. Additionally, Dr. Baxter herself used similar language when referring Ms. J.B. to Dr. Mendonca and Dr. Giles: “she was not comfortable with his physical exam and assessment of the event as a seizure.” Moreover, Dr. Sloka’s choice of language is consistent with his evidence: he believed she was uncomfortable with the skin examination.

736The Crown also argues that, in his letter to Dr. Baxter, Dr. Sloka betrayed his consciousness of guilty by falsely telling Dr. Baxter that Dr. Giles agreed with his diagnosis and treatment plan. This submission is not persuasive. Dr. Sloka had to have known that Dr. Giles would write a consultation letter following her assessment of Ms. J.B., in which she provided her own medical opinion. As previously noted, Dr. Giles testified that she never doubted the correctness of Dr. Sloka’s assessment, based upon the information available to him at the time. Moreover, in June of 2010, Dr. Giles had yet to definitively rule out a seizure. It is entirely conceivable that two colleagues discussing a mutual patient at a social event might casually comment upon their assessments of this patient. Given what Dr. Giles said at trial, it is entirely conceivable that Dr. Giles conveyed to Dr. Sloka precisely what she conveyed to the court: she did not doubt his assessment. Her acceptance of his assessment and her arrival at a different diagnosis were not mutually exclusive outcomes. Her diagnosis and Dr. Sloka’s were based upon different foundational facts.

737The Crown contends that Dr. Sloka’s charting of Ms. J.B.’s seizure risk factors did not conform with his stated standard practice. In doing so, the Crown implies an insincere investigation into the possibility of neurocutaneous disease, and thus an insincere justification for his skin examination. Dr. Sloka normally charted responses to six screening questions relevant to seizures in consultation letters. One of those screening questions concerns stigmata of neurocutaneous disease. All six screening questions can be seen in the consultation letters for J.W. and B.P. He documented some or most of these factors in consultation letters for D.H., J.D., A.D.-E., J.H., and L.F. For Ms. J.B., Dr. Sloka charted responses concerning five screening questions (significant head injury, family history, febrile seizures, meningitis, and encephalitis). While he did not document answers relevant to stigmata of neurocutaneous disease, Ms. J.B. confirmed that he made this relevant inquiry, when testifying that they discussed the birthmark on her buttocks. I see no basis to doubt the sincerity of Dr. Sloka’s stated interest in exploring possible indicia of neurocutaneous disease in Ms. J.B.’s case. The evidence of Ms. J.B. and other seizure patients suggests that Dr. Sloka consistently looked for a possible link between seizures and neurocutaneous disease.

738The Crown also argues that Dr. Sloka’s failure to chart Ms. J.B.’s birthmark betrayed an intention to conceal the existence of a skin examination from Dr. Baxter. Indisputably, the evidence establishes that Ms. J.B. did not have a neurocutaneous disease, nor did she possess a diagnostically sufficient number of birthmarks. Dr. Sloka explained that he did not tend to record the results of negative skin examinations. However, he did document consent for a skin examination in his rough notes. I am not prepared to infer from these circumstances that Dr. Sloka was actively attempting to hide the skin examination. I coming to this conclusion, I would observe that there have been occasions in the treatment of some of the forty-eight patients in this case where Dr. Sloka reported examinations which the Crown now alleges constituted sexual assaults. If, as the Crown argues, he was hiding sexual assaults to avoid detection by his peers, he did so inconsistently. Consequently, I am not prepared to infer that Dr. Sloka’s failure to report a diagnostic dead-end supports the conclusion that he possessed a sexual motive in performing the skin examination.

739The Crown also challenges Dr. Sloka’s testimony that he did not inform Ms. J.B. that she had epilepsy. I am not sure I understand the Crown’s point. Dr. Sloka expressly wrote in his consultation letter that he believed Ms. J.B. had suffered a seizure. He did not provide a diagnosis of epilepsy in his consultation letter. The only mention of an epilepsy diagnosis came from Ms. J.B. when she informed Dr. Sloka of a history of epilepsy in her childhood. Given what Dr. Sloka wrote in his consultation letter, and given my overall distrust of Ms. J.B.’s evidence, I have no reason to believe Dr. Sloka told Ms. J.B. that she suffered from epilepsy. I accept that he told her that she had suffered a seizure.

740Having considered the entirety of the evidence, I accept that Dr. Sloka possessed what he believed to be a valid neurological basis for conducting a skin examination; I accept that he performed the skin examination in accordance with his training and standard method; and I accept that he explained the rationale for this skin examination in advance and obtained Ms. J.B.’s permission to conduct it. I reject Ms. J.B.’s contention that she stood naked for the skin examination. Instead, I accept that Dr. Sloka’s standard method involved a piecemeal exposure of Ms. J.B.’s skin. I also reject the contention that Dr. Sloka possessed a sexual motive when conducting the skin examination. I further accept that Dr. Sloka possessed the training and experience necessary to perform the skin examination. Given his valid medical motive and conformance with his standard methodology, I conclude that the Crown has failed to prove that the skin examination constituted sexual activity. The evidence is only capable of establishing that Dr. Sloka performed a medical examination in accordance with his training and experience, and with his patient’s consent. Dr. Sloka will therefore be acquitted of this count.

ii. J.D. (Count 33)

A Summary of Ms. J.D.’s Complaint and Dr. Sloka’s Response to It

741Ms. J.D. was a seizure patient. She alleged that Dr. Sloka performed a skin examination at two of her appointments. Additionally, she alleged that she stood naked for her skin examinations. In one examination, Dr. Sloka allegedly touched her breasts. In another, Dr. Sloka allegedly touched her buttocks.

742Dr. Sloka testified that he performed neurological, cardiac, and skin examinations at Ms. J.D.’s first appointment. According to Dr. Sloka, he also conducted neurological and cardiac examinations at her third appointment but did not conduct another skin examination. Thus, Dr. Sloka admitted to only one skin examination. Dr. Sloka denied that Ms. J.D. stood naked for any skin examination. He also denied touching her breasts and buttocks during any skin examination.

The Circumstances of Ms. J.D.’s Referral and Her Treatment History

743On January 5, 2015, Ms. J.D. suffered her first seizure, which resulted in a trip to the Cambridge Memorial Hospital ER.

744On January 12, 2015, Ms. J.D.’s family doctor, Dr. Jason Bandey, referred her to Dr. Sloka. According to Ms. J.D., the ER doctor told her that it would take six months to obtain a referral to Dr. Sloka. She sought an expedited referral from her family doctor, because she believed the seizure would result in the loss of her driver’s licence. At the time of her referral, her family doctor took her off her Zoloft prescription, as a precautionary measure, in the event this mood medication triggered her seizure.

745On January 13, 2015, the ER faxed to Dr. Sloka Ms. J.D.’s ER records, which included EEG, bloodwork, and CT scan results.

746On February 20, 2015, Ms. J.D. attended her first appointment with Dr. Sloka. She was 19 years old at the time. She went on to see Dr. Sloka in follow-up on May 5, 2015, and July 6, 2015.

747On February 17, 2016, Ms. J.D. attended the Stratford General Hospital ER after being involved in a motor vehicle accident. Suspecting a seizure as being the cause of the accident, the ER doctor referred Ms. J.D. back to Dr. Sloka.

748On April 12, 2016, Ms. J.D. saw Dr. Sloka again.

749On July 7, 2016, Ms. J.D. saw Dr. Sloka in follow-up. Following this visit, Dr. Sloka indicated that he did not need to see Ms. J.D. in follow-up again (“We will leave follow-up open”). This turned out to be Ms. J.D.’s last appointment with Dr. Sloka.

750A year later, Ms. J.D. attempted to obtain information from Dr. Sloka’s office to use in her student loan application. When performing a google search of Dr. Sloka to obtain his contact information, she came across news coverage of allegations against Dr. Sloka. Soon afterwards, she read CPSO publications detailing allegations against Dr. Sloka. She subsequently lodged her own complaint.

The Evidence of Ms. J.D.

751Ms. J.D. was 26 years old when she testified.

752As already noted, Ms. J.D. suffered her first seizure about six weeks before her first appointment with Dr. Sloka. She was a 19-year-old student at […] College at the time of her seizure. She did not remember anything about her seizure episode. Her knowledge of the episode came from information provided by her roommate. It was a grand mal seizure. She lost consciousness and suffered muscle convulsions. She also bit her tongue. By the time she saw Dr. Sloka she was feeling “a little bit more back to [her] normal self,” but she still suffered from memory issues around the time of her visit with Dr. Sloka.

753After learning about the allegations against Dr. Sloka in July of 2018, Ms. J.D. “went psycho”, “went nuts,” and stopped taking Keppra (her seizure medication). In the latter half of 2020, she suffered four grand mal seizures. These seizures damaged Ms. J.D.’s memory. She was unable to retrieve memories of some events that occurred before the seizures, including the events about which she testified. Sometimes some memories would come flooding back to her. By the time of her testimony, she had resumed use of seizure medication and had been seizure free for seven months. She described her brain as being in the process of healing. She testified that she was unable to know the content of her pre-seizure memories. To learn what she had forgotten, she stated, “I just ask someone else.” Ms. J.D. also testified that, by the time of trial, her mental health was “not under control by any means because obviously this case has affected it.”

754While Ms. J.D.’s records indicate that she attended five appointments with Dr. Sloka, she could only remember attending two.

755With the assistance of her medical records, Ms. J.D. agreed that her first appointment with Dr. Sloka was on February 20, 2015. Her mother, father and sister accompanied her. Their attendance was memorable because her parents were not getting along at the time. All of them came into Dr. Sloka’s office for the initial consultation.

756When asked in-chief if she had a conversation with Dr. Sloka in his office, Ms. J.D. testified, “I can’t recall.” When asked in-chief what happened after she entered the office, Ms. J.D. testified that Dr. Sloka asked if she had any birthmarks or moles. She then testified, “I can’t 100 percent remember my answers, so I don’t remember but because I said I don’t remember, and I didn’t know he had to do an examination anyways.” She then stated that Dr. Sloka told her that he was going to do an examination to look for skin abnormalities. She stated that Dr. Sloka informed her that was looking for moles and birthmarks because they can lead to seizure activity.

757In cross-examination, Ms. J.D.’s evidence on what transpired in the office evolved. She agreed that there was a discussion of her medical history. She stated that she did most of the talking, but her parents also chimed in with details. She described Dr. Sloka as being attentive and alert. He was taking notes and asking questions. With prompts from defence counsel, Ms. J.D. agreed that they discussed various things recorded in the history portion of Dr. Sloka’s consultation letter.

758In cross-examination, Ms. J.D. also agreed that Dr. Sloka told her that he would like to do a neurological examination to look for any connection between her brain and her seizures. He also suggested performing a cardiac examination to see if her heart played a role in her seizures. He also explained that he wanted to conduct a skin examination to screen for conditions that might be a cause of seizures. Abnormalities in skin might provide evidence of a cause of a seizure. Due to the request for a skin examination, Ms. J.D. knew she would have to put on a gown. Initially, she stated that she was surprised that she would have to remove her bra and underwear. Almost immediately, though, she agreed that Dr. Sloka told her that he would need to look at all her skin, stating, “Yeah, he did, but like I did not expect him to touch my breasts or my butt…. Like he can look… not supposed to touch it.” To sum up, Ms. J.D. agreed that in the presence of her family Dr. Sloka proposed and explained the need for neurological, cardiac, and skin examinations. Regarding the skin examination, Dr. Sloka conveyed in the presence of her family that he would need to look at all her skin.

759Ms. J.D. testified that she consented to the proposed examinations, because Dr. Sloka was a professional and she was his patient. She was not overly stressed about exposing her body. There was a reason behind it.

760After providing her consent to the examinations, Ms. J.D. went into the examination room to change into a gown. Dr. Sloka allowed her to get changed in private. Then he came into the examination room.

761There was a great disparity between Ms. J.D.’s in-chief description of her examination and the description she provided in cross-examination.

762According to her evidence in-chief, the examination began with a skin examination that occurred while she stood in the middle of the room. When asked if she remembered any examination occurring on the examination table, she indicated that she was not sure. After refreshing her memory from her police statement, she then remembered that Dr. Sloka conducted an examination on her while she was on the examination table. Before summarizing that portion of the examination, I will summarize her in-chief account of the skin examination.

763Ms. J.D. testified that she was sitting on the examination table when Dr. Sloka re-entered the room. At his direction and in his presence, she took her gown off to allow him to search for skin abnormalities. She put the gown on the examination table. She believed that she may have stood in the middle of the room. She stood relaxed. He looked at her front first, looking at her legs, feet, arms, and stomach. He did not examine her vagina. She also testified that Dr. Sloka touched all over her body, except her genitalia. He used his index finger and thumb. To demonstrate, she made a tapping motion with her index finger. Then she made a squeezing motion with her index finger and thumb. She testified that she thought he was checking muscle tone. When asked to explain why she thought Dr. Sloka was testing for muscle tone, she said that her stepfather, referring to his own experience with a neurologist, told her that Dr. Sloka was probably checking for muscle tone. According to Ms. J.D., when Dr. Sloka got to her breasts, he only used his index finger. She wanted to say that he used more than his index finger, but she was not sure. She explained her belief about the use of more than one finger as follows: “I’m sorry I’m being blunt, but there’s more to grab and considering how I found out [an allusion to her review of CPSO allegations] yeah, it wasn’t great.” She thereby implied that her review of other allegations influenced her perception of her own examination. When describing the contact with her breasts, Ms. J.D. alleged that Dr. Sloka touched her whole breast, including nipples and areolas. She testified that the contact with her breast was in some way different that the touching elsewhere but struggled to explain how so. She ruled out the term “fondling” as a description.

764According to Ms. J.D., Dr. Sloka examined her back after examining her front. In describing the contact with her buttocks, she testified that Dr. Sloka used the same motion as that used to touch her breasts. She added that Dr. Sloka did not use his palms, only his fingertips.

765Ms. J.D. testified that during the skin examination, Dr. Sloka was pretty close, stating, “I don’t know millimetres but he’s pretty close.” The Crown then suggested he was two to three inches away. Ms. J.D. confirmed this estimate and added, “I will say that more attention was focused on the breasts and the buttocks area.”

766The skin examination took a few minutes. Initially, Ms. J.D. stated that, at the conclusion of the skin examination, Dr. Sloka told her to put on her gown and then departed the room to allow her to get changed before rejoining him in the office.

767After having her memory refreshed from her police statement, Ms. J.D. then testified that, after the skin examination, Dr. Sloka told her to put on her gown and get on the examination table. She recalled laying down on the examination table placing one hand on her abdomen and tapping the tips of his fingers with his other hand. She also remembered Dr. Sloka testing her reflexes while she sat upright on the table. This was the extent of what Ms. J.D. could remember about being examined while on Dr. Sloka’s examination table.

768When Dr. Sloka finished examining her, he went back to his office. She then got dressed and rejoined him and her family in the office.

769Ms. J.D.’s testimony in cross-examination about her examination differed substantially from her evidence in chief.

770In cross-examination, she agreed that Dr. Sloka began with a neurological examination. She sat on the bed and wore her gown for the neurological examination. With prompting, she remembered most parts of Dr. Sloka’s standard neurological examination. She remembered Dr. Sloka touching different parts of her face with his fingers. She also remembered him looking at her neck. Also, she recalled him looking into her eyes with ophthalmoscope. She also remembered him checking her eye movements and peripheral vision. Additionally, she recalled him looking into her mouth and asking her to say AHHH. In addition, she recalled him testing her sensation on arms and legs, comparing her sensation on both sides. She also remembered being asked to push on something with her foot and with her hands. She remembered similar strength test with her knees. She also recalled him using his index finger and thumb, almost clamping on parts of body to check muscle tone. She also recalled him testing reflexes with a hammer on her knee and elbow. Lastly, she recalled him running something on the bottom of her feet. She has very ticklish feet. The tool looked like a playdough toy.

771When prompted by defence counsel, Ms. J.D. remembered that a cardiac examination occurred next. Dr. Sloka used a stethoscope for the exam. She sat on the examination table at the outset. He listened to her back first. He asked her to breath in and out. He next asked her to lay down on the table. He listened to the right side of her chest with his stethoscope. He moved the stethoscope to various places on her chest. As he engaged in his procedures, he explained everything. He never did anything without explaining it. At one point, he asked her to lower the gown on the left side before placing the stethoscope near her left breast. She believed he told her that lowering the gown would enable him to hear better.

772While Ms. J.D. had testified in-chief that Dr. Sloka placed one hand on her stomach and tapped with the other, she agreed in cross-examination that this may not have occurred. She noted that her family doctor had performed this test before, and she thought this test was normal. She agreed it was possible that she may have thought Dr. Sloka did this test because it is a common one.

773In cross-examination, Ms. J.D. agreed that the skin examination followed the cardiac examination. As she stated in-chief, Dr. Sloka explained what he planned to do before commencing the skin examination: he was looking for skin abnormalities. He then asked her if he could look at her skin. She agreed. He next asked her to remove her gown.

774Contrary to what she said in-chief, Ms. J.D. testified that Dr. Sloka went back into his office – where Ms. J.D.’s family sat – to allow her to remove her gown in his absence. According to Ms. J.D., Dr. Sloka then opened the door and returned to find her naked and waiting for her skin examination. Defence counsel then remined Ms. J.D. about her statement to the police. In her police statement, she informed the police that she understood that Dr. Sloka had provided her a gown so that, when he opened the door, her whole family would not see her standing naked from their position in the office. Defence counsel then suggested that Dr. Sloka never left the examination room to allow her to remove her entire robe. In reply, Ms. J.D. stated, “Okay, then maybe he was in the room then.”

775Nevertheless, Ms. J.D. insisted that she removed her entire robe. She rejected the suggestion that Dr. Sloka only exposed small segments of her body at a time. She went on to add that she folded her gown and placed it on the table. The claim about folding the gown was new. Defence counsel asked, “You folded it?” Ms. J.D. replied, “I threw it on the table.” When defence counsel probed her memory further, Ms. J.D. asked for a break.

776In describing the skin examination during cross-examination, Ms. J.D. agreed that Dr. Sloka conducted a thorough top to bottom examination, in which he visually examined her skin. She could not remember whether Dr. Sloka spoke as he examined her. She clarified her evidence about Dr. Sloka’s proximity. She stated that if he saw something, he leaned towards her to take a closer look. It was on these occasions that he got closest to her – her evidence about a distance of two to three inches referred to these occasions and was only an estimate. Ms. J.D. did not have an independent memory of Dr. Sloka’s proximity. In any event, he did not remain in close proximity for the entire examination.

777In cross-examination, Ms. J.D. did not allege any muscle tone testing during the skin examination. Instead, she had alleged that Dr. Sloka tested for muscle tone during the neurological examination. As noted, she testified that her stepfather had told her that Dr. Sloka was probably checking for muscle tone. In cross-examination, Ms. J.D. testified that the touching was pretty light. With the exception of her breasts and buttocks, he used just his index finger. Ms. J.D. agreed that she had some freckles on her body. Some of those freckles are raised. She understood Dr. Sloka to be touching her raised freckles, feeling their texture and the degree to which they are raised.

778Defence counsel then turned to Ms. J.D.’s evidence about the touching of her buttocks. Defence counsel asked her if she had raised freckles on her buttocks. Her answer was confusing. It appears that she indicated that she was currently aware of freckles on her buttocks but may not have been previously:

Q. Okay. And do you know if you have markings in those areas?

A. No. Well, I do now but –

Q. Right. It’s not the kind of thing that you exactly take a look at?

A. Yeah, I don’t sit there and examine my butt in the mirror so –

Q. Okay.

A. I don’t know. I don’t remember.

779Regardless, it was Ms. J.D.’s impression that when Dr. Sloka touched her buttocks, he was feeling these skin abnormalities.

780When asked in cross-examination to articulate the difference between the buttocks/breast touching and the touching elsewhere, Ms. J.D. stressed that her memory was “not the greatest.” She could not articulate how the touching differed. While she could not articulate how the mechanics differed, she again re-affirmed that the contact was not aggressive and did not constitute fondling, grabbing, or groping. She also confirmed that the pressure applied was like the pressure applied elsewhere.

781Defence counsel then drew Ms. J.D.’s attention to the description of her breast examination. In-chief, she had said that Dr. Sloka touched her nipples and areolas. Ms. J.D. replied, “That was the second [breast] exam I was referring to because I was nervous.” She then agreed that she had no memory of Dr. Sloka touching her nipples or areolas during her first skin examination. Despite the absence of a memory, she stated, “I’m sure there was but I can’t remember.” Defence counsel suggested that such contact would be memorable. In reply, Ms. J.D. stated that epilepsy horribly affects her memory – making it clear that her memory of her skin examination had been impacted by her epilepsy.

782Defence counsel then sought to confirm Ms. J.D.’s sudden claim that Dr. Sloka touched her nipples at the second skin examination. When asked about this, Ms. J.D. stated, “No, he didn’t. He didn’t touch my breasts at all [during] the second one…,” thereby contradicting what she had said a moment before.

783Ms. J.D. testified that she knew that Dr. Sloka did not touch her breasts at all during her second skin examination because she remembered her father taking her to that appointment. Defence counsel pointed out that her father was present at her first appointment. In response, Ms. J.D. stated, “I don’t know if he thought my dad was intimidating or not. He’s not at all but my breasts were not touched when my dad took me to the appointment where I had the second exam done.”

784I now take a more in depth look at Ms. J.D.’s evidence regarding an alleged second skin examination.

785Ms. J.D. could not remember when the second alleged skin examination occurred in the chronology of her treatment. However, she testified that the examination occurred after she had obtained nipple piercings. In cross-examination, she testified that she was terrified that Dr. Sloka was going to make a comment about her nipple piercings. Ms. J.D. agreed that she only wore a gown on two occasions at Dr. Sloka’s office. Dr. Sloka had documented examinations for Ms. J.D.’s third appointment, which occurred on July 6, 2015. Ms. J.D. also agreed that part of this appointment included a discussion about the effectiveness of her Keppra medication and whether she could resume driving. While initially reluctant to do so, Ms. J.D. agreed that Dr. Sloka may have conducted neurological and cardiac examinations on that date – but she had no memory one way or the other. She insisted, though, that in addition to any neurological and cardiac examination, Dr. Sloka also performed a skin examination. Although a cardiac examination would involve the exposure of one breast, Ms. J.D. tied her apprehension about the exposure of her nipple piercings to a skin examination, not a cardiac examination.

786As noted, Ms. J.D. also tied her memory of the second skin examination to the attendance of her father. However, in her police statement she indicated that her mother, not her father, took her to appointments with Dr. Sloka.

787Ms. J.D. testified that the second skin examination was a repeat of the first examination. She said it followed the same basic procedure and sequence and involved the same touching. After the Crown refreshed Ms. J.D.’s memory using her police statement, Ms. J.D. testified that the second skin examination differed from the first because Dr. Sloka did not touch her breasts, only her buttocks. She also testified that she wondered why he would be doing another examination, noting that people do not develop new birth marks. However, he was a doctor. She testified that, if a doctor asks you to do something, you do it. Ms. J.D. also testified that Dr. Sloka provided the same justification for the examination: he was looking for moles, birthmarks, and abnormalities.

788Prior to learning about other allegations against Dr. Sloka, Ms. J.D. believed the exams Dr. Sloka performed were medically reasonable. He provided thorough explanations for the examinations he proposed. She never questioned those explanations. She believed that any examination of her skin was medical in nature.

789In July of 2018, Ms. J.D. needed to get information from Dr. Sloka’s office to use in support of her student loan applications. She performed a google search on Dr. Sloka’s to obtain the phone number for his office. When she performed her google search, she saw a CTV headline regarding allegations against Dr. Sloka. She did not initially read the content of the article. She brushed off the sexual assault allegation, because she assumed sexual assault referred to rape. She had not been raped. Although she did not initially act upon seeing the news, she said the story ate at her.

790At some point in the next couple of weeks Ms. J.D. purportedly conducted internet research on skin examinations. She claimed to have read that “birthmarks and moles can lead to seizure activity, but they have to be located on your head.” She concluded that Dr. Sloka had stretched the truth a little bit.

791About two weeks after first reading about the allegations against Dr. Sloka, she searched the internet again. During this search, she explored the CPSO website and came across a Notice of Hearing, which outlined allegations by two patients. She agreed that a Notice of Hearing contained at tab 1 in CPSO Media Brief (Exhibit 7) looked familiar. Appendix A of that Notice of Hearing referred to the complaints of two patients. Patient A alleged that Dr. Sloka asked her to disrobe completely, examined her while she was completely naked, and made inappropriate comments. Patient B alleged that Dr. Sloka examined her while she was completely naked and touched her body, including her breasts, while he examined her.

792Upon reading the CPSO report, Ms. J.D.’s opinion of Dr. Sloka and her examinations changed completely.

793She did more research and learned about a third complainant, Patient C, who alleged that Dr. Sloka touched her breasts and/or moved her gown to expose her breasts.

794Ms. J.D. subsequently spoke to her stepfather, who suffered from ALS and had his own neurologist. Her stepfather told her that he never removed his gown, and he was never touched inappropriately. Ms. J.D. grew angrier and began to “spin out of control.”

795Thereafter, Ms. J.D. contacted the police. She then provided her police statement on August 16, 2018.

796After providing her police statement, Ms. J.D. saw additional media coverage. From that media coverage, she learned that 72 patients had lodged complaints against Dr. Sloka.

797As already noted, upon learning of the allegations against Dr. Sloka, Ms. J.D. quit taking her seizure medications, which she recognized had been effective and lifesaving. She suffered four seizures in the latter six months of 2020. One of those seizures resulted in her being placed upon life support. Ms. J.D. testified that she “went psycho” in the wake of reading the allegations against Dr. Sloka. Her mental health declined so dramatically that she was also placed in a psychiatric ward. While hospitalized, she resumed taking seizure medications. According to her, her brain was still healing by the time she was called to testify.

The Evidence of Dr. Bril

798Dr. Bril took conflicting positions on the appropriateness of a cardiac examination.

799In her evidence regarding Ms. J.D., she testified that a cardiac examination was not justified at either of the appointments in which Dr. Sloka reported examinations. She agreed that cardiac arrhythmia may deprive the brain of oxygen and cause fainting and convulsions, known as syncopal convulsions. However, the one eyewitness to Ms. J.D.’s episode described the event as lasting about a half a minute (thirty seconds). Based upon this second-hand description, Dr. Bril ruled out the possibility that Ms. J.D. suffered cardiac syncope.

800However, in witness preparation meeting before the trial, Dr. Bril opined that when a neurologist suspects a patient has suffered a stroke or seizure, a cardiac examination is required. She also noted that a cardiac examination was required in the case of some headaches. Dr. Bril stood by that opinion at trial when speaking generally. At a subsequent trial preparation meeting, Dr. Bril indicated that it was not unreasonable to conduct a cardiac examination “to listen to the heart for headache and seizure.”

801Dr. Bril’s evidence about the propriety of a skin examination rested on her belief that neurologists in neurology clinics “just don’t do them.” She agreed that a skin examination might be appropriate where a patient was uncertain about whether they had any stigmata of neurocutaneous disease, but she testified that, in that circumstance, Dr. Sloka should ask the patient’s family doctor to conduct a skin examination. Dr. Bril stated flatly, “Neurologists don’t do skin exams.” The basis for that categorical assertion was not articulated. Dr. Bril also opined that the possibility of neurofibromatosis was “so remote.”

The Evidence of Dr. Sloka

802Dr. Sloka had vague memories of Ms. J.D. He remembered that his office was filled with family members when he discussed her history. He also vaguely remembered discussing her CT scan and EEG. For the most part, though, the details of her treatment were lost to his memory.

803Dr. Sloka relied upon the contents of his consultation letters for the truth of their contents. He also relied upon the remainder of Ms. J.D.’s medical file for necessary context.

804Ms. J.D. was referred to Dr. Sloka twice.

805Initially, Ms. J.D. came by referral from her family doctor after Ms. J.D. suffered her first seizure. The first appointment occurred on February 20, 2015.

806According to the history provided by Ms. J.D. at her first appointment, she suffered her first seizure on January 4, 2015. Her roommate witnessed the seizure. It occurred in her sleep at around 11 a.m. Her roommate said that she shook for about half a minute (thirty seconds) and bit her tongue but did not lose control of her bladder. Ms. J.D. reported that she went to bed at around midnight on the evening before the seizure but had not been sleeping well in the period leading up to the incident.

807Based upon the history provided, Dr. Sloka recommended and performed neurological and cardiac examinations. He documented these examinations in his consultation letter. He could also not rule out the possibility of a skin examination, which I will discuss in a moment.

808Dr. Sloka began Ms. J.D.’s examination with a neurological examination in accordance with his standard protocol. He disputed Ms. J.D.’s claim that he tested for muscle tone by using his thumb and index finger to lightly clamp down on parts of her body. This did not form part of his standard protocol.

809Neither party directly questioned Dr. Sloka about his justification for performing a cardiac examination on Ms. J.D. While the Crown noted Dr. Bril’s position in the summary of her evidence, they did not rely upon her position during their submissions on Dr. Sloka’s evidence. To the extent the issue was discussed at all, it was raised when asking Dr. Sloka about the letter he wrote to the CPSO in response to the complaint of J.W. In that letter, Dr. Sloka stated that he usually performs a cardiac examination on any patient who has lost consciousness. The Crown never asked Dr. Sloka to specifically address his justification for Ms. J.D.’s cardiac examination, nor did defence counsel.

810Dr. Sloka testified that he conducted his cardiac examination in accordance with his standard protocol. He denied that Ms. J.D.’s legs would have dangled from the side of the examination table, as she described. He would have her stretch her legs along the length of the table in accordance with his standard method. Dr. Sloka also testified that his standard cardiac examination had a respiratory component. He would have listened to both sides of Ms. J.D.’s chest cavity for the purposes of comparison. He documented some “mild sharp intermittent left chest wall pain” in his consultation letter. He testified that this may have been identified during the respiratory examination. He also agreed that he may have tapped on the chest wall as part of any investigation of this pain.

811I turn now to Dr. Sloka’s evidence regarding the possibility of a skin examination and the way one would have been conducted.

812Dr. Sloka had received Ms. J.D.’s ER records in advance of the appointment. Her CT scan showed a mild asymmetry of the ventricles. Dr. Sloka explained that ventricles are fluid filled spaces in the brain that produce spinal fluid. He believed an asymmetry may arise from excess fluid or insufficient brain matter on one side of the brain. He also believed that the buildup of fluid could be caused by a blockage, which in turn could be caused by an intracranial neurofibroma or some other mass, like cancer. He did not consider a neurofibroma to be high on the list of priorities, though, but it remained a consideration. Dr. Sloka disagreed with Dr. Bril’s assessment that the CT radiologist had ruled out any brain abnormality. Dr. Sloka testified that a CT scan, being an imperfect tool, could not definitively rule out a small neurofibroma or other duct-blocking mass. He pointed out that the radiologist noted the slight asymmetry and had suggested an MRI if Dr. Sloka thought one was “clinically warranted.” To Dr. Sloka, the radiologist betrayed a recognition that MRIs were more precise than CT scans and that an MRI might provide better information, if that information was deemed necessary. Importantly, Dr. Sloka stated the following in the impression section of Ms. J.D.’s consultation letter: “The CT head suggested ventricular asymmetry, and I am hoping that there is no underlying structural explanation for this.” Dr. Sloka thereby betrayed a contemporaneous concern about the possibility of a blockage being responsible for Ms. J.D.’s asymmetrical ventricles. However, in cross-examination he testified that he was not certain whether, at the time, he included a neurofibroma in “structural explanation” category. Nevertheless, Dr. Sloka testified that, given Ms. J.D.’s asymmetric ventricles, he would consider examining the skin to look for evidence of neurocutaneous disease.

813In taking Ms. J.D.’s history, Dr. Sloka inquired about standard seizure risk factors, including prior head injuries, family history, febrile seizures, encephalitis, meningitis, and stigmata of neurocutaneous disease. He documented a prior concussion and a cousin who had seizures. He also recorded “no stigmata of neurocutaneous disease.” He could not ascertain from this notation whether Ms. J.D. had definitively declared the absence of café au lait spots and freckling (inguinal and axial) or whether Ms. J.D. expressed uncertainty. It is worth mentioning here that Ms. J.D. gave a puzzling answer in her testimony which suggested uncertainty in the past. In any event, Dr. Sloka testified that if his patient had stated that she was unaware of whether she had any stigmata, he might recommend a skin examination. If a patient definitively declared their absence, he would not. Dr. Sloka testified that the language he employed allowed for both possibilities. He was unable to ascertain whether Ms. J.D. expressed any uncertainty about stigmata of neurocutaneous disease.

814Dr. Sloka testified that the discovery of any indication of neurocutaneous disease would impact his decisions on Ms. J.D.’s treatment. If he believed Ms. J.D. had suffered a seizure and had NF1, he would treat the first seizure, rather than await another one. He would also monitor the patient more closely for future complications of neurofibromas, conduct earlier cancer screening and recommend genetic counselling.

815Ultimately, Dr. Sloka did not document the performance of a skin examination, nor did he document any skin findings. Consequently, Dr. Sloka could not remember whether he performed a skin examination, and he conceded the possibility.

816Dr. Sloka denied that Ms. J.D. would ever stand naked for a skin examination. He insisted that he followed a standard protocol for skin examinations which involved the piecemeal exposure of segments of the patient’s skin while the rest of the patient remained covered with the gown.

817Dr. Sloka agreed that he may have palpated (touched) raised freckles on Ms. J.D.’s body to feel for the presence of any neurofibroma beneath the skin. However, he denied touching the entirety of Ms. J.D.’s breasts, as she had described. He testified that if he touched Ms. J.D.’s breast, it would have been for the purpose of displacing each breast tissue to look at the skin beneath it. Dr. Sloka agreed that while he sometimes asked a patient to part her buttocks to allow visualization of the skin, this only occurred in larger patients and would not involve him touching the buttocks.

818Assuming a skin examination to have occurred, Dr. Sloka concluded that the results were negative, because he did not document any positive findings.

819At the conclusion of Ms. J.D.’s first appointment, Dr. Sloka concluded that Ms. J.D. had suffered a single isolated nocturnal seizure. He noted that she was back to her usual self but still describing “memory consolidation difficulties.” He ordered an MRI of her brain and an EEG. Implicitly, at least, Dr. Sloka indicated that he had ordered the MRI to look for any structural explanation for Ms. J.D.’s ventricular asymmetry. As noted, he expressed hope in the Impression section of his consultation letter that he would not find one. Dr. Sloka also discussed seizure safety with her. He asked that she see him in follow-up in four months.

820Dr. Sloka saw Ms. J.D. in follow-up on May 4, 2015. Neither party asked him about this appointment. Ms. J.D. had not suffered any further seizures. Dr. Sloka did not document any physical examination. He noted her MRI was “reassuring” and her EEG showed “generalized discharges.” He decided to prescribe Ms. J.D. Keppra to manage her seizures. He decided to see her in follow-up in two months.

821Dr. Sloka saw Dr. Sloka again in follow-up on July 6, 2015. She remained seizure free and was tolerating Keppra well, but with some side effects in the first week. Given the passage of time since her original seizure, Dr. Sloka thought it appropriate to advocate to MTO for the return of Ms. J.D.’s licence. Dr. Sloka also documented that Ms. J.D.’s “examinations were normal.” Dr. Sloka believed that he conducted neurological and cardiac examinations for the purposes of writing his letter to the MTO. According to Dr. Sloka, these were the only relevant examinations. A skin examination was not necessary. However, he had no independent memory of the nature of the examinations performed. Dr. Sloka wrote a letter to the MTO on July 6, 2015, and included an “Epilepsy ad Seizures” form. Dr. Sloka stroked out the entire section related to syncope. That section included questions about ECG and Holter monitor testing of the heart. In another section of the MTO sought information about imaging, including MRIs and CT scans. Dr. Sloka reported the tests as being normal. Dr. Sloka explained that by the time he filled out this form, Ms. J.D. had obtained her MRI and received normal results. It is clear from Dr. Sloka’s evidence that the MRI had put to rest any concern about the possibility of any structural abnormality suggested by the CT scan.

822As far as I can tell, nothing turns on Dr. Sloka’s evidence regarding any of Ms. J.D.’s subsequent appointments; so, I will not summarize them here.

Assessment of the Evidence and Analysis

823Ms. J.D. was a singularly unreliable witness. She had admitted difficulties with her memory both at the time of the alleged offences and at the time of her testimony. She presented as a fragile and suggestible person; one whose impression of Dr. Sloka and the examinations he performed changed completely after reading allegations that ultimately mirrored her own. Her evidence regarding the nature of her examinations changed significantly between her evidence in-chief and her evidence in cross-examination. She also contradicted herself on significant material issues. I will now attempt to elaborate upon my concerns.

824Ms. J.D. acknowledged that her first seizure caused issues with her memory. That seizure happened weeks before her initial appointment with Dr. Sloka. Dr. Sloka documented in his consultation letter for her first appointment that she continued to describe “memory consolidation difficulties”. Later, she suffered four major seizures in the latter half of 2020, which still impaired her memory during her time on the witness stand.

825Ms. J.D.’s allegations must be assessed with this admitted memory impairment in mind.

826The evidence of tainting takes on added significance when considered in light of Ms. J.D.’s memory impairment. Before reading CPSO allegations that ultimately mirrored her own allegations, she had no concerns about the examinations performed by Dr. Sloka. Once she read about patients complaining about being examined while naked and patients complaining about breast and buttock touching, her perception changed completely. She ceased taking what she knew was life-saving medication. As she put it, “I went psycho. If I’m going to be, like 100 percent honest with you, I went nuts.” She described herself as a “mental basket case” and acknowledged that reading about Dr. Sloka played a role in her being placed in a psychiatric ward. As it happens, the core features of Ms. J.D.’s allegations mirror precisely the core features of the allegations she read in the CPSO publication. In my view, it is highly likely that Ms. J.D.’s memory has been tainted by what she read in the CPSO Notice of Hearing.

827Evidence of Ms. J.D.’s suggestibility is also found elsewhere.

828In-chief, Ms. J.D. could not remember any discussions in Dr. Sloka’s office. She only remembered Dr. Sloka proposing an examination to look for skin abnormalities. She then described an examination that began with Dr. Sloka examining her skin while she stood naked. She alleged buttocks touching and breast touching during the skin examination. The breast touching allegedly including the touching of her nipples and areolas. Then she said her examination ended and Dr. Sloka left the room. The Crown had to refresh her memory with her police statement to elicit her allegation that Dr. Sloka subsequently palpated her abdomen as she lay on the examination table, then tested her reflexes as she sat on the edge of the table.

829In cross-examination, her evidence changed dramatically as defence counsel made suggestion after suggestion. She remembered detailed discussions about her medical history. She remembered detailed justifications being provided for neurological, cardiac, and skin examinations. She remembered a neurological examination preceding a cardiac examination which, in turn, preceded a skin examination. In response to one suggestion after another, she was able to remember the vast majority of the components of both the neurological and cardiac examinations. By the end of cross-examination, Ms. J.D.’s evidence regarding the structure, and order of her examinations had evolved significantly, as did her evidence about what Dr. Sloka had communicated in advance about their purpose. Having watched the evolution of her evidence, I cannot be certain what elements are the products of suggestion and what elements are memories of actual experiences.

830Ms. J.D. provided a clue about her suggestibility when speaking about Dr. Sloka’s alleged testing for muscle tone. When asked to explain why she thought Dr. Sloka was testing for muscle tone, she testified that her stepfather, referring to his own experience with a neurologist, told her that Dr. Sloka was probably checking for muscle tone. This conversation occurred before she ever provided a statement. Worryingly, her evidence on the timing of this muscle tone testing changed between her evidence in-chief and her evidence in cross-examination. In-chief, it allegedly occurred during the skin examination. In cross-examination, it allegedly occurred during the neurological examination, as Dr. Sloka tested for sensation. This significant change occurred in conjunction with defence suggestions about the content and sequence of Ms. J.D.’s examinations.

831Similarly, although Ms. J.D. was prepared to allege that Dr. Sloka palpated her abdomen, she admitted in cross-examination that her family doctor had performed this kind of examination before and that Dr. Sloka may not have done so.

832Ms. J.D. also provided staggeringly inconsistent evidence on a core feature of her allegations. In-chief, she testified that during her first skin examination (at the first appointment), Dr. Sloka touched all her breasts, including her nipples and areolas. In cross-examination, she corrected herself and asserted that the touching of her nipples and areolas occurred during the alleged second skin examination, explaining that she was nervous when testifying in-chief. She added that she could not remember if Dr. Sloka touched her nipples and areolas at her first appointment, but despite the absence of a memory, stated that she was sure he did. She went on to explain that epilepsy “affects my memory horribly.” A moment later, Ms. J.D. denied the possibility that Dr. Sloka touched her breasts at all during the second skin examination. In the trial transcript, that denial occurs just one page after Ms. J.D. claimed that the nipple touching occurred during that second skin examination. The turnabout was head spinning. She reinforced her denial, claiming that she knew breast touching did not occur at the second alleged skin examination because her father took her to that appointment. Her father, of course, also attended at her first appointment, when the first skin examination occurred. In her statement to the police, though, Ms. J.D. alleged that her mother took her to the relevant appointments, not her father.

833Ms. J.D. also contradicted herself on the process of gowning. In-chief, she testified that Dr. Sloka left the examination room to allow her to remove her street clothes and put on a gown. He returned once she was gowned. He then asked her to disrobe for the skin examination. She understood that Dr. Sloka provided her a gown so that she would not be fully exposed to her entire family when Dr. Sloka opened the door and returned from the office. In cross-examination, she alleged that Dr. Sloka departed the room after the neurological and cardiac examinations, so that she could remove her gown and become naked in private. He then opened the door from his office, the room in which her entire family was crammed. On her evidence, the purpose of the gown had been defeated. Moreover, it is entirely implausible that Dr. Sloka would leave the room to allow Ms. J.D. to get naked in privacy, only to re-enter the room to see her in a state of nudity.

834Ms. J.D. also provided conflicting accounts about her removal of the gown. On one account, she folded it and placed it on the examination table. In the other, she took it off and threw it on the table.

835I think it important to keep in mind as well that Ms. J.D. ultimately admitted that Dr. Sloka proposed and fully explained the nature of the skin examination to her in front of her entire family. On her evidence, Dr. Sloka told everyone present that he needed to look at all her skin. On her evidence, she consented in the presence of her entire family. If the proposal was a ruse intended to obtain permission for an unjustified and improperly performed examination, it was a ruse presented to four people. On Ms. J.D.’s evidence, Dr. Sloka had to depend on the gullibility of an entire family, not just a single vulnerable patient. That scenario seems implausible to me. It seems more plausible that Dr. Sloka presented the plan to a room full of people because he believed in its appropriateness. It also seems more plausible that, knowing the whole family had been told about what would be taking place, Dr. Sloka performed it in an appropriate manner. Ms. J.D.’s contemporaneous belief in the appropriateness of Dr. Sloka’s conduct is at least as consistent as not with Dr. Sloka conducting the examination appropriately.

836Ms. J.D.’s general reliability issues and the other concerns I have discussed thus far cause me to be concerned about the reliability of her claim about a second skin examination.

837It bears repeating here that Ms. J.D. provided diametrically contradictory evidence about the existence of breast touching at the alleged second skin examination.

838Ms. J.D. also had trouble remembering when the second alleged skin examination occurred during her tenure as Dr. Sloka’s patient. She also provided few contextual details to anchor the alleged examination.

839The two anchors she did provide were problematic.

840One anchor was her alleged trepidation at exposing her alleged nipples. In considering this anchor, it is important to remember that Dr. Sloka acknowledged conducting neurological and cardiac examinations at Ms. J.D.’s third appointment. A cardiac examination would involve Ms. J.D. being gowned. It would also involve Ms. J.D. exposing her left breast. Ms. J.D. testified that she was only gowned twice. She was gowned at her first examination. Logic dictates that her evidence had isolated the third appointment as the only possible examination in which her skin examination occurred – unless she was gowned and examined a third time, which no one has alleged. Ms. J.D. based her belief in the existence of a second skin examination on her memory of being terrified at Dr. Sloka seeing her nipple piercings. The use of this anchor is problematic, though, because Dr. Sloka’s cardiac examination would involve the exposure of one breast, and thus one of her nipple piercings. Ms. J.D. had no memory of this cardiac examination.

841Ms. J.D.’s use of her father as an anchor to ground her belief in a second skin examination is also problematic. She told the police that it was her mother, not her father, who took her to her appointments.

842Given Ms. J.D.’s memory frailties and given the significant tainting concerns present in her case, I think it entirely plausible that Ms. J.D. erroneously conflated the exposure inherent in a cardiac examination with a skin examination.

843I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting examinations on any given patient. However, having considered Dr. Sloka’s evidence regarding Ms. J.D., I have concluded that he has refuted any possible inference of a sexual purpose. I will more thoroughly assess his evidence momentarily.

844The Crown also relies upon four granular categories of cross-count similar fact evidence in support of Ms. J.D.’s evidence on other material issues. First, the Crown suggests that she belongs to a constituency of patients to whom Dr. Sloka expressed an interest in examining their skin for moles, before any such allegation was available to the public. The second and third categories of similar fact evidence are very similar. In the second, the Crown alleges that Ms. J.D. belongs to a group of four patients who allege that Dr. Sloka conducted a naked skin examination. In third category of alleged similar fact evidence, the Crown alleges that Ms. J.D. belongs to a constituency of patients who allege their skin was examined while they were “naked or in a state of undress.” Finally, the Crown argues that Ms. J.D. belongs to a group of three patients who allege that Dr. Sloka touched their buttocks. In my view, these four categories of cross-count similar fact evidence provide insufficient probative value on any remaining material issue. I will deal with each category in turn.

845In my view, there is no probative value in any alleged similarity between the evidence of Ms. J.D. and those patients who allege that Dr. Sloka expressed an interest in looking for moles. First, I note that Ms. J.D. testified that she researched skin examinations in her two-week period of denial before making her statement to the police. She purportedly came across an article which stated that moles were only significant if found on the head. Ms. J.D. was thus purported to be independently exposed to the topic of moles before ever providing a police statement. Second, Ms. J.D. provided varying and inconsistent accounts of what Dr. Sloka purported to be looking for. She variously attributed to Dr. Sloka an expressed interest in looking for “freckles and birthmarks,” “freckles and skin abnormalities,” “birthmarks and freckles and moles,” “birthmarks and moles,” and “moles and raised, like freckles, like melanoma. I don’t know.” Third, Dr. Sloka acknowledged that, early in his practice, he may have used the term “moles” but then clarified his meaning in other ways, to ensure that the patient knew he was not looking for “common moles.” Ms. J.D. did not see Dr. Sloka early in his practice, but Dr. Sloka’s evidence raises another point, which I think is a matter of common sense and human experience. I think it fair to say that most people are unfamiliar with the nature of stigmata of neurocutaneous disease. Café au lait spots and inguinal and axillary freckling may be frequent topics of discussion within the field of neurology, but not in everyday life. It is far from surprising that lay people might oversimply their language and resort to the term “moles”, just as Dr. Sloka conceded he may have done early in his practice. In my view, it is entirely plausible that a small number of patients have coincidentally but incorrectly remembered Dr. Sloka using the term moles when inquiring about stigmata of neurocutaneous disease. With that in mind, Ms. J.D.’s varying descriptions of Dr. Sloka’s object of interest are entirely understandable. At the same time, it is clear from Dr. Sloka’s consultation letter that he inquired in some fashion about stigmata of neurocutaneous disease. His interest in stigmata is not a material fact, only the wording he used. Given what I have said about Ms. J.D.’s evidence on the wording used, I do not think this category of cross-count similar fact evidence has sufficient probative value to warrant its admission in support of Ms. J.D.’s evidence on any material issue.

846I will now address the Crown’s reliance upon the cross-count similar fact evidence of patients who alleged they were either naked (the second category) and those who alleged they were “naked or in a state of undress”. The evidence establishes that before providing any statement, Ms. J.D. read publications about patients being examined while completely naked. She also read about breast touching. Her perception of and her reaction to her examinations changed drastically after she read these publications. There is ample basis for concluding that Ms. J.D.’s memory and perceptions of her examinations by Dr. Sloka were tainted by reading allegations made by other patients. Many other patients in these two cross-count similar fact categories were similarly tainted. Moreover, Dr. Sloka concedes the likelihood of a skin examination and the sequential exposure of segments of Ms. J.D.’s skin. He thereby removed the existence of a skin examination as a material issue. For all of these reasons, I conclude that these categories of cross-count similar fact evidence lack sufficient probative on any material issue.

847I now turn to a submission that arises in the cross-count similar fact submissions, but which is not listed within the similar fact section of the Crown’s submissions specific to Ms. J.D. When listing purportedly confirmatory evidence, the Crown contends that Ms. J.D.’s evidence is supported by the fact that two other patients (A.D. and J.H.) also alleged buttocks touching. In my view, the evidence of these witnesses is not “confirmatory.” First, I would note that there are only three members in this purported constituency – three out of forty-eight. I cannot conclude that any similarity between allegations is anything more than the product of coincidence. Furthermore, there is insufficient similarity between the evidence of the other two witnesses and Ms. J.D.’s evidence to offer support for Ms. J.D.’s evidence. Ms. J.H. and Ms. A.D. alleged that Dr. Sloka spread their buttocks to get a look at otherwise concealed skin. Ms. J.D. alleged that Dr. Sloka may have been touching raised freckles. She did not allege that Dr. Sloka spread her buttocks. Regarding Ms. J.H., I concluded that she staged a video of her disclosure to her friend for the purpose of dishonestly buttressing her evidence. I also had a concern about media tainting. Additionally, she did not allege that Dr. Sloka spread her buttocks but instead alleged that she spread them for Dr. Sloka’s benefit. The third patient, Ms. A.D., agreed that she gained weight by the time of her examination, which may have necessitated the need to part her buttocks to visualize her skin. She also agreed that Dr. Sloka may have used her gown to avoid directly touching her buttocks when parting her skin. Given the dissimilarities between the evidence of these three witnesses, given their respective frailties, and given the rarity any allegation of buttocks touching, I do not find the evidence of these other witnesses to be supportive of Ms. J.D.’s.

848Having considered Ms. J.D.’s evidence in the context of the entirety of the evidence, I am unable to accept that Dr. Sloka conducted the first skin examination in the manner she described. However, given Dr. Sloka’s concession of the likelihood of a skin examination, and given the existence of some similarities between Ms. J.D.’s description and Dr. Sloka’s standard protocol, I am prepared to accept that Dr. Sloka performed a skin examination during Ms. J.D.’s first appointment. On the other hand, I reject Ms. J.D.’s claim of a second skin examination.

849I come now to a discussion of Dr. Bril’s evidence.

850In their submissions regarding the credibility and reliability of Dr. Sloka’s evidence, the Crown does not challenge the reasonableness of Dr. Sloka’s cardiac examinations, despite earlier summarizing Dr. Bril’s disagreement with Dr. Sloka’s decision to conduct them. Nevertheless, I think it appropriate to address Dr. Bril’s evidence on this topic. As noted in my summary of her evidence, Dr. Bril provided potentially conflicting evidence on the reasonableness of cardiac examination when discussing the assessment of patients with possible seizures. Standing alone, that contrast is problematic. It becomes more problematic when one considers that Dr. Bril took such a staunch position on the basis of Dr. Sloka’s summary of Ms. J.D.’s account of the summary provided by her roommate. Dr. Sloka’s double-hearsay account summarized the episode as involving about 30 seconds of shaking and a bitten tongue. Dr. Bril’s willingness to rule out syncopal convulsions on the basis of this terse third hand description is concerning. Without hesitation, she concluded that the shaking was too severe to be considered syncopal convulsions. In her rush to judgement, I fear she betrayed some partiality. For the reasons outlined in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on Dr. Bril’s opinions about the reasonableness of any cardiac examination at issue in this trial. I also note here that the ER doctor in Ms. J.D.’s case performed a cardiac examination when assessing Ms. J.D. after her first seizure. Dr. Sloka’s belief in the reasonableness of a cardiac examination was therefore contemporaneously supported by another physician, whose report he read before proposing examinations upon Ms. J.D.

851I will now discuss Dr. Bril’s evidence regarding the reasonableness of any skin examination. For the reasons outlined in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on Dr. Bril’s evidence concerning the propriety of skin examinations as a means of investigating the possible connection between neurocutaneous disease and a patient’s seizures. Her evidence has proven to be incapable of refuting the reasonableness of Dr. Sloka’s subjective belief that there exists a clinically significant occurrence of NF1 in seizure patients. Additionally, even as Dr. Bril disputed the reasonableness of Dr. Sloka performing any skin examination, she conceded that if Ms. J.D. had expressed uncertainty about the existence of any stigmata of neurocutaneous disease, it would have been appropriate for Dr. Sloka to ask her family physician to perform a skin examination. However, as discussed in the general assessment of Dr. Bril’s evidence, I place no weight any claim by her that neurologists do not or ought not to perform skin examinations. Lastly, Dr. Bril was unaware of Dr. Sloka’s training and experience. She had no way of knowing whether Dr. Sloka was as qualified or more qualified to perform a skin examination than Ms. J.D.’s family doctor. Dr. Sloka provided unchallenged evidence that he possessed the training and experience necessary to perform skin examinations as part of an assessment of patients for neurocutaneous diseases. Given Dr. Bril’s acknowledgement that a skin examination could be neurologically reasonable, I place no weight on her opinion about the reasonableness of a neurological examination in Ms. J.D.’s case.

852I turn now to an assessment of Dr. Sloka’s evidence. Dr. Sloka provided a clear and cogent explanation of his approach to his assessment and treatment of Ms. J.D. He conceded the likelihood of a skin examination at Ms. J.D.’s first appointment. He provided a logical explanation for his medical rationale. In my view, the Crown’s critiques of his evidence lack merit. I will now attempt to address each critique.

853The Crown contends that Dr. Sloka became increasingly uncertain about whether he conducted a skin examination at Ms. J.D.’s first appointment. It is true that, in-chief, he stated at one point that he recommended neurological, cardiac, and skin examinations. However, he had already made clear that he remembered very little about Ms. J.D. and he acknowledged having no independent memory of the details of any appointment, including any examinations performed. His consultation letter and rough notes were silent on the question of a skin examination, so he could not rely upon them to confirm the existence of a skin examination, even though he considered one warranted in Ms. J.D.’s case. After a consideration of the totality of his examination in-chief, it is obvious that he had no memory of performing a skin examination, but, in the face of Ms. J.D.’s allegation, inferred he performed one. In cross-examination, he confirmed that he did not remember any of Dr. Ms. J.D.’s examinations. When asked to explain his in-chief claim that he proposed a skin examination, Dr. Sloka testified that the proposal “… would have been standard based on what she presented with.” Accordingly, Dr. Sloka provided a basis for his belief in the proposal and performance of a skin examination, despite the absence of any independent recollection. I saw no evidence of Dr. Sloka becoming progressively uncertain about conducting this examination and I saw no contradiction between his in-chief evidence and his evidence in cross-examination.

854The Crown also suggests that Dr. Sloka’s justification for a skin examination “evolved significantly” and did not make sense. The Crown points out that Dr. Sloka documented that Ms. J.D. reported “no stigmata of neurocutaneous disease” when Dr. Sloka took her history. They argue the absence of stigmata eliminated Dr. Sloka’s justification for the examination. However, Dr. Sloka explained that he used this phrase both when a patient definitively declared their absence and when a patient was unaware of their presence. This explanation seems logical. His word choice is consistent with his tendency for using malapropisms and to communicate unclearly. I note for example that Dr. Sloka tended to refer to examinations with negative results as being “reassuring.” I cannot remember an occasion where he simply said the results were negative. Similarly, rather than say a patient declined consent, he would indicate a patient “deferred” examination. He typically did not mean that the patient told him, “Next time.” He meant the patient said, “No.” Also, it must be kept in mind that Dr. Sloka dictated his consultation letters at the conclusion of the appointments – after any examination had been conducted. Any uncertainty that Ms. J.D. or any other patient may have expressed regarding stigmata would be resolved by the time Dr. Sloka composed his consultation letter at the conclusion of the appointment. If any examination produced a negative finding, a patient’s prior uncertainty would lose all significance.

855The Crown also challenges the logic of Dr. Sloka’s reliance on Ms. J.D.’s CT scan to justify a skin examination. The Crown points out that the radiologist noted that Ms. J.D.’s asymmetrical ventricles were “likely normal for this patient.” However, Dr. Sloka pointed out that the radiologist also indicated that Dr. Sloka might seek “correlation with a brain MRI as clinically warranted.” Dr. Sloka testified that CT scans are not as precise as MRIs and did not provide a definitive answer. In Dr. Sloka’s view, the radiologist’s suggestion of an MRI “as clinically warranted” implicitly recognized this. Also, the content of his consulting letter documents a contemporaneous concern that there were no masses (form cancer or neurofibromas) blocking the drainage of the ventricles: “The CT head suggested ventricular asymmetry, and I am hoping that there is no underlying structural explanation for this.”

856In challenging Dr. Sloka’s reliance on the CT scan, the Crown also points to the entries made by Dr. Sloka in the form he sent to the MTO regarding Ms. J.D.’s licence re-instatement. In that form, he indicated that the imaging (CT scan, MRI) results were not abnormal. The Crown suggests that by filling out the form in this manner, Dr. Sloka betrayed a belief that Ms. J.D.’s CT scan was normal and thereby contradicted his trial testimony. In making this submission, the Crown fails to recognize that, by the time Dr. Sloka filled out the MTO form, he had obtained the MRI results, which ruled out any structural abnormality in Ms. J.D.’s brain. The MRI confirmed that Ms. J.D.’s CT scan results were normal – or “reassuring.” He did not have the benefit of MRI results at Ms. J.D.’s first appointment, which is when he recommended and performed the skin examination. Dr. Sloka’s entry on the MTO form was entirely consistent with his trial evidence and with his understanding of the imaging results at the time he filled out the form.

857The Crown also suggests that Dr. Sloka’s reliance upon imaging results was undermined by his acknowledgement that MRI findings are not part of the diagnostic criteria for NF1, and by his acknowledgement that he was cautious about the risk of incidental findings based on brain imaging when monitoring patients already diagnosed with NF1. I see no merit in this submission. First, the Crown never raised this critique in cross-examination. Second, Dr. Sloka explained the relevance of imaging to the investigation of neurocutaneous disease. It informed his decision to conduct a skin examination. Dr. Sloka never suggested that he would rely upon MRI results as an independent diagnostic criterion for neurocutaneous disease.

858I see no basis for the Crown’s contention that Dr. Sloka invented a reason to conduct a skin examination. Even after he completed Ms. J.D.’s examinations, he documented a continuing concern about a structural explanation for Ms. J.D.’s ventricular asymmetry. That documentation puts a lie to the notion that the CT scan did not cause Dr. Sloka any concern at the time.

859I now wish to address the Crown’s critique of Dr. Sloka’s denial of a second skin examination. The Crown argues that Dr. Sloka had no logical basis for denying a skin examination at this appointment. The Crown further argues that, by documenting that her “examinations remained normal today,” Dr. Sloka conceded a repletion of all previous examinations. This submission ignores Dr. Sloka’s evidence that he had no reason to conduct a second skin examination. Even in the absence of any documentation, he had a basis for concluding he conducted the first skin examination, and he had a basis for concluding he did not conduct a second. He also had a basis for concluding that the results of Ms. J.D.’s skin examination were negative, given his evidence that he did not typically report negative skin findings.

860The Crown also argues that Dr. Sloka was not in a position to deny touching Ms. J.D.’s breasts, given his alleged concession that he might palpate a patient’s breasts for neurofibromas. As noted elsewhere in these reasons, Dr. Sloka never admitted that he palpated women’s breasts for neurofibromas. He could not remember an occasion where he ever did this but could not rule out the possibility entirely. Additionally, while Dr. Sloka conceded the possibility that he might have palpated stigmata on Ms. J.D.’s skin to feel for the presence of neurofibromas beneath the skin, he did not agree that he would have touched Ms. J.D. in the manner she described. In my view, Dr. Sloka’s denial was not undermined by any other aspect of his evidence at this trial.

861The Crown points to certain aspects of Dr. Sloka’s evidence which they argue confirm Ms. J.D.’s evidence. However, the points of confirmation do not deal with the material issues of whether Ms. J.D. stood naked for her skin examination or whether a second skin examination occurred at all. The following things were not material issues: the fact that Dr. Sloka expressed an interest in Ms. J.D.’s skin at the first appointment; the fact that he asked her to remove her underwear and bra for the skin examination; the fact that he looked at the buttocks of patients during skin examinations; the fact that Ms. J.D. attended with her family at the first appointment; the fact that neurocutaneous disease can result in freckling in the armpits and groin; and the fact that Dr. Sloka sometimes moves a patient’s breasts to expose skin beneath them. Additionally, Dr. Sloka’s documentation on July 6, 2015, that “her examinations remained normal today” could not provide confirmation than any of the examinations included a skin examination. None of these supposed confirmatory aspects of Dr. Sloka’s evidence are capable of logically proving that Ms. J.D. stood naked for the first skin examination. And none of these ostensible pieces of confirmation are capable of logically proving the existence of a second skin examination.

862Having considered Dr. Sloka’s evidence in context of the entirety of the applicable evidence, I have found no sufficient basis for rejecting it. I accept that Dr. Sloka considered it advisable to conduct a skin examination for the purpose of finding evidence of any neurocutaneous disease that might explain Ms. J.D.’s seizure. I accept his evidence that he possessed the training and experience necessary to perform a skin examination. I accept his denial that he ever asked Ms. J.D. to stand naked for a skin examination. I also accept his assertion that he would have performed the skin examination in accordance with his training and standard protocol. Additionally, I accept his implicit denial of any improper purpose. I see no basis for concluding that any sexual activity occurred. Instead, I see a basis for concluding that Dr. Sloka proposed and conducted medical examinations for a valid medical purpose. I conclude that Ms. J.D. consented to the proposed examinations and that Dr. Sloka thereafter performed these medical examinations in accordance with his training. Given my rejection of Ms. J.D.’s evidence on the material issues and given my acceptance of Dr. Sloka’s evidence, Dr. Sloka must be acquitted on this count.

iii. A.D.-E. (Count 15)

A Summary of Ms. A.D.-E.’s Complaint and Dr. Sloka’s Response to it

863Ms. A.D.-E. alleged that Dr. Sloka exposed both her breasts and looked at them for less than a minute during an examination. Ms. A.D.-E. testified that Dr. Sloka told her that he wanted to examine her for irregular mole patterns. She did not allege that Dr. Sloka performed a complete head-to-toe skin examination. She also did not allege that she stood for her examination. Additionally, she did not allege any touching during the alleged examination for irregular mole patterns.

864Dr. Sloka testified that he conducted neurological and cardiac examinations as part of an assessment of Ms. A.D.-E.’s headaches. He conducted the cardiac examination as part of his standard approach to headache patients and because Ms. A.D.-E.’s headaches were associated with possible stroke-like symptoms. Dr. Sloka denied searching for irregular mole patterns and denied conducting any skin examination.

The Circumstances of Ms. A.D.-E.’s Referral and Her Treatment History

865Ms. A.D.-E. was more than 35 weeks pregnant at the time of her referral and under the care of Dr. Andrew Stewart, an obstetrician and gynecologist. She was 22 years old.

866Dr. Stewart made the referral on December 22, 2010. In his referral letter, Dr. Stewart noted that Ms. A.D.-E. had previously been under the care of another neurologist, Dr. Mendoza, for her epilepsy and migraines. Leading up to the referral, Ms. A.D.-E. had suffered a sudden-onset of “aura-like” headaches. While the handwriting in the referral is difficult to read, it appears that the headaches were associated with parasthesia (tingling). Dr. Sloka’s consultation letter documented the relevant headache symptoms as 5/10 in severity, throbbing behind her right eye, loss of vision in her left eye, and, in one episode, tingling on the right side of her mouth and right face. She also had difficulty finding appropriate words (dysphasic). In their evidence, Dr. Bril and Dr. Sloka referred to some of Ms. A.D.-E.’s symptoms as being stroke-like.

867Ms. A.D.-E.’s first appointment with Dr. Sloka occurred on December 28, 2010. A consultation and examination occurred at this appointment.

868She stopped by Dr. Sloka’s office again on January 3, 2011, to pick up a prescription.

869Ms. A.D.-E. received another referral to see Dr. Sloka on June 19, 2013. She obtained this referral from her family doctor, Dr. Chun Yu. The purpose of the referral was not clearly outlined in the referral letter, but Dr. Sloka’s consultation letter referred to it as an assessment of her headaches and seizures.

870Pursuant to Dr. Yu’s referral, Dr. Sloka saw Ms. A.D.-E. on June 19, 2013. Dr. Sloka saw her in follow-up on September 20, 2013. He saw her again in follow-up on March 10, 2014. On that date, he wrote a letter to the MTO to advocate for the return of Ms. A.D.-E.’s licence. On June 24, 2014, Dr. Sloka faxed a new prescription for Ms. A.D.-E., which increased her dose of Keppra (a drug used to treat her seizures and migraines). On November 19, 2014, Dr. Yu faxed Dr. Sloka to seek advice on the appropriate lab tests to conduct to monitor Ms. A.D.-E.’s Keppra levels. Dr. Sloka provided a response that day. Dr. Sloka saw Ms. A.D.-E. in follow-up on December 18, 2015. Ms. A.D.-E. had suffered a seizure in the preceding November, which resulted in another suspension of her licence. Dr. Sloka saw her again in follow-up on March 11, 2016. He also wrote a letter to the MTO on that date to explain her seizure from the preceding November and to inquire about the return of her licence. Dr. Sloka wrote another letter to the MTO on May 9, 2016, this time “to advocate for licence reinstatement.” Ms. A.D.-E. had no further scheduled follow-up appointments in this referral period.

871At some point before December 13, 2017, Ms. A.D.-E. had sought another referral to Dr. Sloka, to assist with providing a letter to the MTO about her licence. On December 13, 2017, Ms. A.D.-E. received an email from Dr. Yu’s office advising her that Dr. Sloka was under restriction and to get more information from the CPSO website. The email advised that Dr. Yu would provide a referral to a different neurologist, if Ms. A.D.-E. wished.

872On December 14, 2017, Ms. A.D.-E. wrote to Corinne Bellon, an investigator at the CPSO, to advise that, “After recently being advised by my family physician of a complaint lodged against Dr. Scott Sloka, I would like to have it known that something similar happened to me as well.” She said she would like to file a complaint and stated two reasons for the complaint: (1) “made me feel uncomfortable in my appointment”; and (2) “Asked me if he could remove the gown which exposed my breasts.”

873On January 5, 2018, Ms. A.D.-E. wrote an email Ms. Bellon to advise that she had contacted Dr. Sloka’s office to ask that he provide another letter to the MTO regarding her driver’s licence. She reported that she had been advised that she would need another referral to his office.

874On January 8, 2018, Ms. A.D.-E. wrote to Ms. Bellon again and stated, “I think until I have this whole driver’s licence thing sorted out, I might have to push off this interview, just so I don’t burn any bridges.” She added that her family doctor was working on filling out the appropriate forms but needed to contact Dr. Sloka to obtain help in answering some of the questions that needed to be answered.

875An appointment was booked with Dr. Sloka’s office for February 7, 2018, but that appointment was cancelled.

The Evidence of Ms. A.D.-E.

876Ms. A.D.-E.’s memory about the circumstances of her referral was flawed. Ms. A.D.-E. testified that she was first diagnosed with epilepsy in 2003 or 2004, when she was 14 or 15 years old. She testified that her epilepsy was first managed by her family doctor, who was Dr. Robinson back then. She said that a paediatrician subsequently managed her epilepsy. Here, her evidence became confusing. The Crown asked Ms. A.D.-E. if she was ever treated by a doctor named Dr. Stewart. Ms. A.D.-E.’s medical records reveal that Dr. Stewart was her obstetrician, not her pediatrician. Although Ms. A.D.-E. had reviewed her medical records in preparation for trial, she testified that Dr. Stewart was her pediatrician.

877According to Ms. A.D.-E., when she became too old to be under the care of Dr. Stewart, she obtained a referral to Dr. Sloka. She testified that the referral occurred in 2009, before she ever became pregnant. Again, despite the benefit of medical records, Ms. A.D.-E. testified that she attended at least two appointments with Dr. Sloka before the appointment of concern. She testified that her mother came with her to the first appointment, that it lasted 25-30 minutes, that he took her history, but that he did not examine her at this appointment. Indeed, she testified that she never proceeded from Dr. Sloka’s office into the examination room. Ms. A.D.-E. provided considerable detail about this first appointment, leaving the impression that she vividly remembered it, despite saying that she did not remember too much from this appointment. Ms. A.D.-E. testified that her mother also came with her to her second appointment, which occurred about a year after the first. She remembered less about this appointment. She said the second appointment was just a follow-up, to make sure there were no changes, adding that there was no examination at the second appointment. Ms. A.D.-E. could not remember when her third appointment occurred. The Crown then drew Ms. A.D.-E.’s attention to the appointment on December 28, 2010. Ms. A.D.-E. testified that she was about eight months pregnant at the time of this appointment. She testified that this was her third or fourth appointment. Additionally, she identified December 28th as being the appointment of concern. At that juncture, court closed early for the day. It was the lunch hour.

878Ms. A.D.-E.’s first-day testimony about her treatment history was demonstrably incorrect. In cross-examination, it became apparent that she had provided a similar erroneous account of her treatment history in her statement to the police.

879Upon resuming her testimony the next day, Ms. A.D.-E. confirmed that she reviewed Exhibit 53 that morning, which she had not previously done. Exhibit 53 contained supplementary medical records from the chart of Dr. Sloka. Those records included the referral from Dr. Stewart (her obstetrician, not pediatrician), made on December 22, 2010. Having reviewed those records, Ms. A.D.-E. testified that she now remembered that the appointment of concern (December 28th) was her first appointment with Dr. Sloka. She also remembered that Dr. Stewart was her obstetrician and that he had made the referral to Dr. Sloka, not her pediatrician. Indeed, she also remembered that she had previously been under the care of a different neurologist, Dr. Mendonca. When pressed about the reason for the change in her memory, Ms. A.D.-E. testified that she did not remember seeing Dr. Sloka before she was pregnant. In giving this evidence, Ms. A.D.-E. contradicted the evidence she gave the day before. Ultimately, Ms. A.D.-E. was unable to point to any document that caused her memory to change, stating only that her new memory of events made sense to her. She also testified that the earlier appointments she had testified about (the first involving a detailed description of Dr. Sloka’s office) may have been appointments with a different physician.

880I turn now to Ms. A.D.-E.’s evidence about December 28, 2010.

881Ms. A.D.-E. went alone to this appointment.

882Ms. A.D.-E. testified that Dr. Sloka came to the waiting room to retrieve her and bring her back to his office.

883Upon meeting him, she observed him to be a quiet, slender man. He seemed nerdy. He was also a really nice guy. She had no negative gut reaction. She found him easy to understand. He broke things down to make it easier for her to understand. He talked quietly and slowly. And he didn’t use too much doctor jargon. She agreed that he explained things well.

884According to Ms. A.D.-E., she and Dr. Sloka spoke for about twenty minutes in his office. During that time, she answered questions about her seizure history, her headache history, and her medications.

885Dr. Sloka then told her that he wanted to perform an examination. According to Ms. A.D.-E., he did not really explain to her much about the type of examination he wanted to perform. He allegedly said she needed to go into other room, remove all clothes but her underwear, and put a gown on. He also said he wanted to look for irregular mole patterns. When asked if he explained the significance of irregular mole patterns, she testified, “… I don’t know whether it was himself or there was a study being done with irregular mole patterns in epilepsy.” According to Ms. A.D.-E., Dr. Sloka did not ask her whether she had any moles on her body. This claim stood in opposition to Dr. Sloka’s consultation letter, where he documented that Ms. A.D.-E. “denies any stigmata of neurocutaneous disease.” She said that his failure to ask her whether she had any moles was bizarre and a “red flag” for her. She also testified that he did not ask whether she would consent to the examination. Her evidence here appeared to be directly at odds with her testimony that Dr. Sloka as a really nice guy who took time to break things down and make it easier for her to understand them. In any event, she testified that Dr. Sloka was a doctor, so she did what he asked her to do.

886In cross-examination, Ms. A.D.-E. steadfastly denied that Dr. Sloka explained to her that he wanted to conduct an examination to discern whether there was any connection between her brain and her headaches. She also denied that Dr. Sloka proposed neurological and cardiac examinations. Nevertheless, as will be discussed shortly, she conceded in cross-examination the possibility that he performed both.

887Ms. A.D.-E. testified that Dr. Sloka entered the examination room with her and procured a gown from a drawer in the examination table. She claimed to have a visual memory of Dr. Sloka doing this. When showed photographs of Dr. Sloka’s examination table from Exhibit 2, Ms. A.D.-E. agreed that her memory could be wrong. Nevertheless, she still had a visual image in her mind of Dr. Sloka walking to the examination table and obtaining a gown from underneath or beside it. As can be seen from Exhibit 2, the examination room had a closet in which gowns and sheets were stored. The examination table did not have drawers.

888Ms. A.D.-E. testified that Dr. Sloka left the room to give her privacy to change. He knocked before re-entering. She testified that when he re-entered the room, she was standing with her back to the examination table. She called this a clear memory and denied the possibility that she was sitting on the examination table when Dr. Sloka re-entered to room. Defence counsel took Ms. A.D.-E. to her police statement. In it, Ms. A.D.-E. told the police that she was seated on the examination table when Dr. Sloka re-entered the room. In response, Ms. A.D.-E. testified that she could not remember which version was true.

889According to Ms. A.D.-E., Dr. Sloka asked her to sit on the examination table – which could not have occurred if she was already seated. She did not remember saying anything else before he began to test her reflexes. She next remembered him testing her hand/arm strength by asking her to resist as he pressed down on her outstretched hands. Up to this point in time, her gown remained on. Initially, she testified that these were the only examinations conducted while her gown remained on. She professed certainty, “because it wasn’t a very long process.” In her police statement, though, Ms. A.D.-E. professed uncertainty, stating “I can’t remember if he did anything else.” Ms. A.D.-E. agreed that her testimony on this point contradicted her police statement. Nevertheless, despite what she told the police, Ms. A.D.-E. ruled out the possibility that Dr. Sloka performed other tests before lowering her gown. That certainty did not last, though.

890Defence counsel took Ms. A.D.-E. through each step of Dr. Sloka’s standard neurological examination and with each one asked Ms. A.D.-E. whether Dr. Sloka may have performed that step. While Ms. A.D.-E. did not have any memory of them (other than the reflex test and hand strength test she described, plus the Babinksi test, which she remembered when prompted), she did not dispute that each element of Dr. Sloka’s standard neurological examination occurred.

891According to Ms. A.D.-E., after the brief neurological tests, Dr. Sloka then said he was going to lower her gown. She purportedly did not respond to this declaration. He then lowered her gown, so that it was resting on her belly. He was able to lower the gown because she had not tied it up. On her evidence, he used both of his hands to move the garment down. Ms. A.D.-E.’s arms remained in the arm holes of the gown, even after it had been lowered.

892Ms. A.D.-E. testified that Dr. Sloka stepped back and “just kind of looked for less than a minute; looked at the front of me and then after that he asked me to shift so he could take a look at my back as well.” According to her, he stepped back a foot and a half, possibly two feet. He was silent. He looked at her for less than a minute before asking her to turn. Once she shifted, she had her back to the window. She initially stated that, he did not touch her at any point in this phase of her examination. The Crown then attempted to refresh her memory with her police statement. Ms. A.D.-E. agreed that she told the police that Dr. Sloka touched her back, but her memory was not refreshed by her statement.

893Defence counsel took Ms. A.D.-E. through Dr. Sloka’s standard cardiac and respiratory examinations. While she could not remember them, she did not dispute that they may have occurred. In making these concessions, she agreed that Dr. Sloka may have placed a stethoscope at various locations on her chest and back. She also agreed it was possible that the touching she felt on her back was the contact from Dr. Sloka’s stethoscope. Importantly, she agreed that Dr. Sloka conducted the examination of her chest and back in silence – consistent with the silence necessary while using a stethoscope to perform cardiac and respiratory examinations.

894In cross-examination, Ms. A.D.-E. reaffirmed her position that Dr. Sloka did not ask her to lower the gown but instead told her what he was about to do: “I’m lowering your gown.” However, in her police statement, she stated that Dr. Sloka asked her if he could lower her gown. Confronted with this inconsistency, Ms. A.D.-E. testified that Dr. Sloka did indeed ask her to lower the gown but stated that she never gave him a reply – he simply lowered it.

895In cross-examination, Ms. A.D.-E. initially maintained that Dr. Sloka lowered her gown all the way to the top of her stomach, in one motion. Later, she described the motion differently: she stated that Dr. Sloka first lowered her gown to her shoulders and afterwards lowered it to her stomach. She once again disputed the contention that Dr. Sloka asked for permission to lower her gown. Confronted with her prior inconsistent police statement, Ms. A.D.-E. admitted that she told the police that Dr. Sloka had asked for permission to expose her breasts.

896Ms. A.D.-E. agreed that Dr. Sloka never proposed or conducted a head-to-toe skin examination. He only looked at her back and part of her chest. Moreover, he said nothing about moles or birthmarks during her examination. She also remained seated during the entirety of her examination.

897Ms. A.D.-E. testified that, once Dr. Sloka finished examining her back, he told her that the examination was done. Consequently, she pulled up her gown. Dr. Sloka did not say anything to her about any findings. Ms. A.D.-E. testified that she had two or three moles on her back, but Dr. Sloka did not mention these moles. After announcing that he was done, Dr. Sloka left the examination room, leaving Ms. A.D.-E. to get dressed in privacy.

898Once dressed, Ms. A.D.-E. went back into Dr. Sloka’s office. On her evidence, there was no follow-up discussion in Dr. Sloka’s office. Initially, she also testified that she did not believe Dr. Sloka ordered more tests. After having her memory refreshed from her police statement, Ms. A.D.-E. stated that she believed Dr. Sloka ordered bloodwork. Ms. A.D.-E. testified that the bloodwork involved testing her valproic acid levels. She did not recall Dr. Sloka giving her any feedback and she did not remember him expressing the opinion that the change in her migraines was related to the later stages of her pregnancy. Ms. A.D.-E.’s version of the post-examination meeting in Dr. Sloka’s office stood in contrast to the detailed post-examination discussion documented in Dr. Sloka’s consultation letter.

899Ms. A.D.-E. testified that she did not immediately book a follow-up appointment. A follow-up appointment was arranged after the birth of her son. Her family doctor arranged the follow-up appointment.

900According to Ms. A.D.-E., after the appointment, she called her mother while walking to her car. She told her mother that she felt uncomfortable when her breasts were exposed during the exam. Her mother assured her that Dr. Sloka knew what he was doing. Ms. A.D.-E. also spoke to her sister about the appointment. Her sister provided similar input.

901Ultimately, Ms. A.D.-E. had confidence in Dr. Sloka. She saw Dr. Sloka on eight subsequent occasions over the years, five of which she attended alone. In two of the subsequent visits, Dr. Sloka asked her to take part in physical exams, but she declined. She explained that she was not confident or comfortable with her body after her first pregnancy and during her second pregnancy. She agreed that Dr. Sloka respected her decision and did not pressure her to take part in the examinations.

902She last saw Dr. Sloka in May of 2016. As a result of that visit, Dr. Sloka wrote a letter to the MTO to support the return of her licence. He also prescribed her medication.

903Ms. A.D.-E. testified about cancelling a subsequent visit which had been scheduled for February 12, 2018. She suggested that she had cancelled this visit upon learning about the CPSO investigation into Dr. Sloka. After defence counsel took Ms. A.D.-E. through the chronology of her medical records and the timing of her CPSO complaint, Ms. A.D.-E. agreed that her suggestion was untrue.

904In December of 2017, Ms. A.D.-E. was once again seeking to have her licence re-instated. She needed a letter from Dr. Sloka. However, Dr. Sloka’s office would not grant her an appointment, because it had been over a year since her last visit. His staff indicated that they needed another referral. Accordingly, on December 13, 2017, Ms. A.D.-E. contacted her family doctor, Dr. Yu to obtain a referral. Dr. Yu responded via e-mail. In that email, she informed Ms. A.D.-E. of the CPSO investigation the practice restrictions placed on Dr. Sloka. She also provided a link to the CPSO website regarding Dr. Sloka. Ms. A.D.-E. reviewed the Notice of Hearing on the CPSO website and learned that three women had made complaints against Dr. Sloka. She read that these women felt uncomfortable during physical examinations conducted by Dr. Sloka. They reported that the examinations involved inadequate draping and that their breasts were exposed.

905After reading the allegations on the CPSO website, Ms. A.D.-E. concluded that Dr. Sloka ought not to have exposed her breasts during her examination.

906Ms. A.D.-E. decided that she wanted to make a complaint to the CPSO. On December 14, 2017, she sent an email to the CPSO in which she stated, “After recently being advised by my family physician, of a complaint lodged against Dr. Scott Sloka, I would like to have it known that something similar happened to me as well.” She stated two reasons for her complaint: “(1) Made me feel uncomfortable in my appointment; and (2) Asked me if he could remove the gown which exposed my breasts.”

907Despite contacting the CPSO, Ms. A.D.-E. continued to seek a referral to Dr. Sloka. She contacted Dr. Yu’s office on January 4, 2018, to confirm she wanted a referral to Dr. Sloka. She explained that was concerned about burning bridges with Dr. Sloka before obtaining a letter from him to advocate for the return of her licence. She stated that she was desperate to get her licence back and thought it necessary to book an appointment with Dr. Sloka for that purpose. Accordingly, she wrote the CPSO investigator twice to delay providing a statement to the CPSO. The CPSO investigation of Dr. Sloka ultimately concluded before Ms. A.D.-E. was ever able to provide a statement.

908Ms. A.D.-E.’s correspondence with Investigator Bellon indicates that Ms. A.D.-E. also sought to separately obtain an MTO letter from Dr. Yu, but that Dr. Yu needed critical information from Dr. Sloka.

909Ms. A.D.-E. obtained an appointment with Dr. Sloka’s office for February 7, 2018, but that appointment was cancelled. Ms. A.D.-E.’s evidence does not reveal whether she was able to get an MTO letter from Dr. Yu without the need for attending the appointment with Dr. Sloka on February 7th.

910Around that point in time, the CPSO had concluded its investigation. Accordingly, the CPSO referred Ms. A.D.-E.’s complaint to the police. Detective Gilker then contacted Ms. A.D.-E. on February 12, 2018.

911In addition to reading about Dr. Sloka on the CPSO website, Ms. A.D.-E. testified that she learned more about the case against Dr. Sloka by listening to news on the radio. While she claimed that she did not follow the case or read any media articles about Dr. Sloka, she testified that she believed that there were about 73 complainants in the case. She learned this number from listening to the radio.

The Evidence of K.D.

912Ms. K.D. is Ms. A.D.-E.’s mother.

913The Thanksgiving long weekend separated the conclusion of Ms A.D.-E.’s evidence and the commencement of Ms. K.D.’s.

914Ms. K.D. testified that Ms. A.D.-E. phoned her about her appointment with Dr. Sloka immediately after it occurred. Ms. A.D.-E. was pregnant with her first child when this phone call occurred. She believed Ms. A.D.-E. called from her car, adding that she believed Ms. A.D.-E. was still in the parking lot.

915Ms. K.D. could only vaguely remember her discussion with Ms. A.D.-E. According to Ms. K.D., Ms. A.D.-E. reported that Dr. Sloka had her undress from the waist up and put on a gown. He then had her remove her robe while she was sitting there, to examine mole pattern formation on her back. She was naked from the waste up.

916Ms. K.D. purportedly asked if a nurse was present. Ms. A.D.-E. said no. Ms. K.D. testified that she assumed it would be common practice for a nurse to be present for examinations involving the removal of clothes. She believed Ms. A.D.-E. was attempting to gauge her reaction. She did not remember Ms. A.D.-E. asking her any questions. The phone call only lasted a minute or two.

917Ms. K.D. testified that, within a day or two of the phone call, they spoke in person about the appointment.

918Soon after Ms. K.D. had recounted her phone conversation with Ms. A.D.-E., the Crown asked her if she had driven Ms. A.D.-E. to any appointments. Ms. K.D. responded as follows:

I had driven her to what I thought was her first appointment with Dr. Sloka, but in hindsight, it was not her first appointment with Dr. Sloka. It was her first appointment with another neurologist. I am in the process – we sold our house, and I’m packing, and I’ve come across calendars, and I found a calendar for October 2008, and it said neurologist appointment A., which is obviously not with Dr. Sloka. That would’ve been the first one that I took her to and mistaken. But it didn’t have the neurologist’s name on my calendar entry. And October 21, 2008, to be exact. It said A., neurologist.

919Ms. K.D. explained that she went through her old calendars to see if she could jog her memory about when Ms. A.D.-E. had gone to see her neurologist. She testified that she had reviewed these calendars “probably early last week.” In her evidence in-chief, she denied discussing the calendars with anyone.

920In cross-examination, Ms. K.D. also testified that Ms. A.D.-E. was with her during the Thanksgiving weekend and that they discussed the subject matter of her testimony in court. Ms. K.D. acknowledged that she discussed the calendars with Ms. A.D.-E. during the Thanksgiving weekend. According to Ms. K.D., Ms. A.D.-E. told her that she was not remembering certain things, dates, and appointments, and that she did not remember having any neurologist before Dr. Sloka. Ms. K.D. agreed that she had been cautioned against discussing evidence with Ms. A.D.-E. She engaged in a discussion despite this caution.

921In cross-examination, Ms. K.D. agreed that, before ever providing her statement to the CPSO, she probably had a conversation with Ms. A.D.-E. about their alleged post-examination conversations. She then effectively admitted to discussing the topic with Ms. A.D.-E. before giving her statement. The discussion with Ms. A.D.-E. helped her to refresh her memory about their earlier conversations. Ms. K.D. agreed that, after her daughter learned about the CPSO investigation into Dr. Sloka, she and her daughter had multiple conversations about what happened in her daughter’s appointment with Dr. Sloka.

922Ms. K.D.’s testimonial description of her telephone conversation with Ms. A.D.-E. differed from the description she provided in her CPSO statement. In her CPSO statement, she said that Ms. A.D.-E. claimed that Dr. Sloka asked her to take down her robe so that he could look at mole formations or patterns on her back. Ms. K.D. agreed that she never told the CPSO that Ms. A.D.-E. was naked from the waste up. On any version, Ms. K.D. never claimed that Ms. A.D.-E. reported that Dr. Sloka looked at her breasts or that he stepped back to observe them.

923Ms. K.D. admitted seeing media coverage of the investigation into Dr. Sloka. After learning of the criminal charges, she shared Facebook posts about Dr. Sloka from CTV News. Ms. K.D. agreed she probably did the same with subsequent media reporting about additional charges. Ms. K.D. admitted that she was interested in the allegations of other patients but claimed she read no details about those allegations in the media. She denied reading that other patients had alleged that Dr. Sloka had asked them to remove clothing or that he touched their breasts. She effectively claimed to have read the headlines but not the content of the articles she came across and reposted.

The Evidence of Dr. Bril

924Dr. Bril’s evidence was premised upon the assumption that Dr. Sloka performed a skin examination. She testified that this examination was not justified. She went on to note several reasons for the examination being inappropriate, including the lack of a chaperone, the absence of a neurological reason to expose Ms. A.D.-E.’s breasts, the absence of any reported skin lesions, the unlikelihood of neurocutaneous disease being a relevant consideration, and the insufficiency of Ms. A.D.-E.’s draping during the examination. Dr. Bril’s evidence on the appropriateness of a skin examination was not controversial. Dr. Sloka denied performing one. Also, Ms. A.D.-E. denied receiving a full head-to-toe skin examination. What she described bore little resemblance to what both Dr. Bril and Dr. Sloka considered a comprehensive skin examination. Indeed, her description faintly echoed components of cardiac and respiratory examinations.

925Dr. Bril gave conflicting evidence on the appropriateness of a cardiac examination.

926In her evidence in-chief, she testified that she did not think there was any reason to listen to Ms. A.D.-E.’s heart. In cross-examination, Dr. Bril acknowledged that Ms. A.D.-E. presented with stroke-like symptoms, namely facial tingling and difficulty speaking. She agreed that a cardiac examination in these circumstances was reasonable, albeit on the cautious side. She agreed that reasonable neurologists could form different opinions on the necessity of a cardiac examination.

927Dr. Bril also agreed that it was reasonable, when conducting a review of systems when taking Ms. A.D.-E.’s history, for Dr. Sloka to ask whether she had any birthmarks or concerning markings on her skin. In his consultation letter, Dr. Sloka reported that Ms. A.D.-E. her denied any stigmata. In the circumstances, Dr. Bril agreed that it would be reasonable for Dr. Sloka to refrain from conducting a skin examination.

The Evidence of Dr. Sloka

928Dr. Sloka remembered Ms. A.D.-E. in a general sense. She had numerous appointments over the course of several years. However, Dr. Sloka had no specific memories of any given appointment. He relied upon the contents of his consultation letters for the truth of the contents and the rest of Ms. A.D.-E.’s medical file for necessary context.

929Given Ms. A.D.-E.’s allegations, Dr. Sloka’s evidence focussed mostly on her first appointment. While counsel did ask him about other appointments, those appointments do not form the subject matter of any charges and did not meaningfully feature in the written submissions of either party. Consequently, I will keep my focus largely on Ms. A.D.-E.’s first appointment.

930As with every patient, Dr. Sloka testified he began the consultation in his office, where he discussed the reason for Ms. A.D.-E.’s referral and obtained her history.

931Dr. Sloka recounted what he considered the salient features of Ms. A.D.-E.’s history and presentation. Ms. A.D.-E. had been referred to Dr. Sloka by her obstetrician. She was 22 years old at the time and 36 ½ weeks pregnant. She had suffered baseline migraine headaches since she was an adolescent. She had also been diagnosed with epilepsy seven years previously. In the preceding two weeks, her headaches changed. She began to experience throbbing behind her right eye and a loss of vision in her left eye. She also experienced tingling in mouth and face and had some difficulties with her speech.

932Dr. Sloka testified that his usual screening questions include questions about the patient’s skin. He recorded Ms. A.D.-E.’s response in the paragraph of Ms. A.D.-E.’s history that addressed her seizure history and risk factors. He documented, “She denies any stigmata of neurocutaneous disease.”

933Ms. A.D.-E. took valproic acid to manage her epilepsy. Dr. Sloka noted that this medication creates a significant risk of birth defects when given to pregnant women.

934Dr. Sloka testified that he recommended neurologist, cardiac, and respiratory examinations.

935Dr. Sloka testified that he would sometimes consider a skin examination in an epilepsy patient, but Ms. A.D.-E. was pregnant. Pregnant women often have a lot of skin changes. For example, he stated that pregnant women can get various rashes and changes in pigmentation due to changes in their hormones. He cited the “lina nigra” [a dark line of pigmentation between the belly button and pelvis] as an example of a pigmentation change. Dr. Sloka understood that pregnancy related skin changes can obscure or mimic pre-existing markings such as café au lait spots and freckling. He disagreed with the Crown’s suggestion that such changes would not likely be confused with a stigmata of neurocutaneous disease. Accordingly, he did not think a skin examination would have been appropriate for Ms. A.D.-E. He denied recommending a skin examination and denied telling Ms. A.D.-E. that he wanted to look for irregular mole patterns connected to her pregnancy.

936According to Dr. Sloka, the cardiac examination was justified because Ms. A.D.-E. had experienced a change in her headaches during her pregnancy. He went on to say that, in pregnancy, women can experience a hyper-coagulable state, where they tend to clot more and bleed more at the same time. A cardiac examination was relevant for that reason. Also, he testified that cardiac examinations formed part of his standard approach to headache patients.

937While Dr. Sloka had no specific recollection of the respiratory examination, he believed that he completed full respiratory examination as opposed to the limited one he normally performs in conjunction with his cardiac examination. He believed that a more thorough respiratory examination was likely because shortness of breath is very common in pregnancy. He also made a point of explicitly documenting a respiratory examination in his consultation letter, which was not his habit when documenting cardiac examinations. Despite this documentation, Dr. Sloka could not be certain that he conducted full respiratory examination.

938Dr. Sloka denied obtaining a gown from beneath the examination table. There were no drawers beneath the examination table in his examination room. His gowns were stored in the linen closet inside the examination room, just as depicted in Exhibit 2. However, occasionally, a gown might be folded at the foot of the bed, if his secretary had prepared the bed for the first patient of the day the previous evening.

939On Dr. Sloka’s evidence, he conducted the neurological examination before conducting the cardiac and respiratory examinations.

940Dr. Sloka denied lowering Ms. A.D.-E.’s gown and resting it on her stomach, thereby exposing both her breasts. Dr. Sloka also maintained that, in accordance with his usual practice, he asked Ms. A.D.-E. if it was okay if she lowered her gown. He denied unilaterally lowering the gown without her permission.

941According to Dr. Sloka, he conducted his cardiac examination in accordance with his standard practice, with the caveat that he did not know whether the respiratory component may have been more thorough on account of Ms. A.D.-E.’s pregnancy. Ms. A.D.-E.’s gown was lowered to facilitate the cardiac examination. During the cardiac examination, her left breast would be exposed, as he placed the stethoscope on various locations on her chest. In addition, there would have been partial exposure of Ms. A.D.-E.’s right breast during a full respiratory examination. He denied having Ms. A.D.-E. lower her gown for the stated purpose of examining her skin for moles. He conceded though that he would make incidental (plain view) observations of her skin when performing the cardiac and respiratory examinations. If he had noticed any lesions/birthmarks, he may have passed comment. However, he also agreed that he may not have passed any comment about the moles Ms. A.D.-E.’s back if they were not concerning to him.

942The results of Ms. A.D.-E.’s examinations were normal.

943Following the examination, Dr. Sloka met with Ms. A.D.-E. in his office for a discussion. He had come to the conclusion that Ms. A.D.-E.’s baseline migraines had changed during her pregnancy. He believed it was not uncommon in pregnancy for a patient’s baseline migraines to change in conjunction with hormonal changes. If Ms. A.D.-E. was not pregnant, Dr. Sloka might have ordered an MRI. As it was, he decided to watch and wait instead. As for Ms. A.D.-E.’s seizure disorder [epilepsy], Dr. Sloka noted that during pregnancy, the concentration of the medication in a patient’s blood is lower than outside of pregnancy. He testified that neurologists will sometimes increase patient’s dosage to prevent a breakthrough seizure. Her family doctor had checked her blood levels of valproic acid and found them to be low. He proposed increasing Ms. A.D.-E.’s valproic acid dosage until the birth of her child, then decreasing it afterwards. He also discussed with her alternatives to valproic acid that would carry a lower risk of birth defects in the event Ms. A.D.-E. became pregnant again.

944Two weeks later, on January 3, 2011, Ms. A.D.-E. came to Dr. Sloka’s office to pick up her new valproic acid prescription. He documented a brief conversation with her about the plan to adjust her prescription after the birth of her child.

Assessment of the Evidence and Analysis

945Ms. A.D.-E. proved to be an unreliable witness, whose unwarranted confidence in her memory was rivaled by its inaccuracy. She provided conflicting accounts on material issues and made factual assertions that were demonstrably false. Concerningly, the evidence reveals that she and her mother colluded in defiance of the witness exclusion order. From all of these frailties emerges a vague description of an examination that echoes cardiac and respiratory examinations and bears almost no resemblance to a skin examination. Ms. A.D.-E. had no concern about her poorly remembered examination until she was directed to the CPSO website, which published allegations that resemble the one she ultimately made. This leads me to conclude that her memory and perception of her own examination was tainted by what she read on the CPSO website. I’ll now discuss the frailties of Ms. A.D.-E.’s testimony in more detail.

946Ms. A.D.-E. provided a detailed, confident, and demonstrably false narrative about her first two or three appointments with Dr. Sloka. She did so despite having the benefit of her medical file when preparing for trial, showing that she was not only unreliable but also careless. Any thoughtful review of Exhibit 51 (her main Medical Records Brief) would have dispelled the notion that she saw Dr. Sloka two or three times before becoming pregnant. Only a break and a review of Exhibit 53 (the supplementary Medica Records Brief) brought Ms. A.D.-E.’s memory back to reality. She then testified the earlier pre-pregnancy appointments must have been with another doctor.

947The evidence of Ms. A.D.-E. and her mother was separated by the Thanksgiving weekend. When her mother testified, she acknowledged that she and Ms. A.D.-E. spoke about her evidence and in particular her poor memory of dates – that is, her poor memory of the chronology of her appointments with Dr. Sloka. Her mother claimed that, coincidentally, she had come across old calendars which had documented neurological appointments for Ms. A.D.-E. that pre-dated Ms. A.D.-E.’s time with Dr. Sloka. She reviewed the calendars with Ms. A.D.-E. I disbelieve her mother’s claim that she came across these calendars by happenstance. Instead, I conclude that in their discussion about the chronology of her treatment by Dr. Sloka, they looked in the old calendars. I am deeply concerned that Ms. A.D.-E. decided to defy the witness exclusion order and discuss her evidence with her mother.

948In addition to the evidence of Ms. A.D.-E. colluding with her mother, there was evidence that suggests the likelihood that Ms. A.D.-E. tainted her mother’s evidence about Ms. A.D.-E.’s initial disclosure. After Ms. A.D.-E. had read allegations against Dr. Sloka in a CPSO publication, her perception of her examination by Dr. Sloka had fundamentally changed. In the aftermath, she spoke to her mother about Dr. Sloka. Her mother agreed that their conversations included discussion of their post-appointment discussion. Her mother also agreed that their conversations on this topic helped refresh her memory about their prior conversation. Ms. A.D.-E. and her mother spoke on multiple occasions – and they spoke before Ms. A.D.-E., and her mother provided their respective police statements. The Crown had called K.D. to rebut the inference that Ms. A.D.-E.’s memory had been tainted by what she read in the CPSO publication and what she later read in the media. Instead of accomplishing that goal, the Crown has satisfied me that their anti-tainting witness was tainted by the very witness she was meant to support. I therefore place no weight upon the evidence of K.D. and Ms. A.D.-E. about their post-examination conversation.

949The spectre of tainting looms large over Ms. A.D.-E.’s evidence, particularly because her memory of her examination was so poor and particularly because what she was able to remember contains echoes of a legitimate cardiac and respiratory examination.

950Ms. A.D.-E.’s memory of her examination was obviously poor. While Ms. A.D.-E. did not remember receiving them, she was prepared to acknowledge that Dr. Sloka may have performed his standard neurological, cardiac, and respiratory examinations. Indeed, she remembered Dr. Sloka testing her reflexes and doing strength tests on her arms. She also told police that she could not remember if there were other elements to Dr. Sloka’s examination. Having had her memory refreshed from her prior statement, she also remembered that Dr. Sloka touched her back. She agreed that she was turned sideways on the bed when he touched her back. She also agreed that it may have been Dr. Sloka’s stethoscope that was making contact with her back. She also alleged that Dr. Sloka remained silent when allegedly looking at her chest. Dr. Sloka’s standard cardiac and respiratory examinations involve a patient turning sideways; they involve the placement of the stethoscope on a patient’s back; they involve Dr. Sloka listening in silence; and they involve the full exposure of the left breast and the partial exposure of the right breast. In my view, Ms. A.D.-E.’s vague and incomplete recollections seem awfully reminiscent of a valid cardiac and respiratory examination.

951Ms. A.D.-E. also had a flawed and inconsistent memory about her gown. Her memory that Dr. Sloka procured it from a drawer within the examination table was demonstrably false. She also contradicted her police statement when giving evidence on whether Dr. Sloka asked her to lower the gown. In addition, she changed her evidence on how the gown was lowered, from alleging it was lowered in one motion down to her stomach to alleging that he lowered it in two stages.

952Ms. A.D.-E.’s incomplete and flawed memory about her examinations causes me to be highly skeptical of her denial that Dr. Sloka proposed and explained each examination while still in his office.

953The Crown repeatedly suggests in their submissions that Dr. Sloka performed a skin examination on Ms. A.D.-E.; however, Ms. A.D.-E. did not describe anything remotely close to a standard skin examination. On her account, Dr. Sloka did not perform a head-to-toe examination. And on her account, she did not stand for the examination. Although she remembered Dr. Sloka mentioning moles in relation to her seizures, it is entirely conceivable that this occurred as Dr. Sloka inquired about seizure risk factors. His consultation letter confirms his inquiries included questions about stigmata of neurocutaneous disease. Dr. Sloka conceded that early in his practice, he may have used the term “moles” when attempting to describe café au lait spots. Given Ms. A.D.-E.’s actual description of her examination and given compelling evidence that Dr. Sloka inquired about stigmata of neurocutaneous disease when taking Ms. A.D.-E.’s history, I am not satisfied that Dr. Sloka performed a skin examination.

954On the evidence before me, it is obvious that Ms. A.D.-E. harboured no concern about her examination by Dr. Sloka until she read allegations on the CPSO web site. What did she glean from these allegations? She learned that other women complained about inappropriate breast exposure. What do Dr. Sloka’s standard cardiac and respiratory examination entail? Breast exposure. What happened after Ms. A.D.-E. read about the other patients’ allegations? She concluded that her breasts should not have been exposed. In my view, there exists a substantial likelihood that Ms. A.D.-E.’s perception about her poorly remembered examination was tainted by what she read on the CPSO website.

955Ms. A.D.-E. also proved herself untrustworthy by suggesting that she cancelled her final appointment with Dr. Sloka upon learning about the CPSO allegations. After defence counsel took her through the chronology of her medical records, she agreed this was not true.

956While I have admitted cross-count similar fact evidence to support an inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations, including cardiac examinations, I am satisfied that Dr. Sloka has compellingly refuted this potential inference. I will assess Dr. Sloka’s evidence in more detail momentarily. First, though, I will address the Crown’s reliance upon more granular similar facts in support of Ms. A.D.-E.’s evidence.

957The Crown argues that Ms. A.D.-E.’s evidence is supported by two categories of similar fact evidence. First, the Crown contends that Ms. A.D.-E. belongs to a constituency of patients who alleged, before any media publications on this subject, that Dr. Sloka “wanted to or did examine them reportedly looking for moles.” Second, the Crown argues that Ms. A.D.-E. belonged to a constituency of patients who alleged that they were “naked or in a state of undress when Dr. Sloka closely examined their skin. In my view, neither category of similar fact evidence is sufficiently probative to offer support to Ms. A.D.-E.’s evidence. I will deal with each in turn.

958As already noted, Ms. A.D.-E.’s evidence regarding Dr. Sloka’s discussion of “moles” is consistent with Dr. Sloka having raised the topic when questioning her about seizure risk factors – particularly, because Dr. Sloka documented making this inquiry in his consultation letter. Furthermore, Ms. A.D.-E.’s description of her examination contains echoes of cardiac and respiratory examinations. Moreover, it bears next to no resemblance to Dr. Sloka’s standard skin examination. In my view, it is entirely conceivable that Ms. A.D.-E. remembered Dr. Sloka asking about her skin when conducting his standard review of systems. It is also entirely conceivable that she erroneously connected this screening inquiry to her breast exposure. In coming to this conclusion, I keep in mind that she did not allege that Dr. Sloka examined all of her skin, that she did not allege a close inspection of her skin, that she did not think it odd that Dr. Sloka’s search for moles was limited to her breasts and back; and that the examination she described contained echoes of cardiac and respiratory examinations – two examinations documented by Dr. Sloka in his consulting letter.

959Turning to the second category of similar fact evidence relied upon the Crown, I reiterate that Ms. A.D.-E.’s allegation bore no resemblance to a standard skin examination. It also bore no resemblance to the skin examinations alleged by other patients. Moreover, Ms. A.D.-E. did not allege a close examination of her skin. In my view, this alleged category of similar fact evidence lacks sufficient probative value and offers insufficient support for Ms. A.D.-E.’s evidence.

960Given Ms. A.D.-E.’s frailties as a witness, I am unable to accept as accurate her description of the examination conducted by Dr. Sloka. Similarly, I am unable to accept her allegation that Dr. Sloka failed to propose and obtain her consent to the examinations performed. In my view, after reading allegations against Dr. Sloka on the CPSO website, Ms. A.D.-E. has misremembered the exposure inherent in cardiac and respiratory examinations and erroneously concluded that something more sinister occurred.

961The evidence of Dr. Bril offers no help to the Crown. To begin with, her opinion regarding the neurological reasonableness of a skin examination was not in dispute. Dr. Sloka has agreed that a skin examination was not warranted in Ms. A.D.-E.’s circumstances. Secondly, she provided inconsistent evidence on the appropriateness of a cardiac examination but eventually conceded that Dr. Sloka’s decision to conduct one was reasonable. Third, she agreed that it was reasonable for Dr. Sloka to inquire about abnormal skin markings when taking Ms. A.D.-E.’s history.

962I turn now to the evidence of Dr. Sloka.

963In my view, Dr. Sloka provided compelling and reasoned explanations for his approach to his assessment of Ms. A.D.-E.

964He testified that, due to Ms. A.D.-E.’s history of epilepsy, he asked standard screening questions relevant to her seizure risk. Amongst the questions was an inquiry into the presence of stigmata of neurocutaneous disease. She denied any stigmata. He documented this in his consultation letter.

965Dr. Sloka denied conducting a skin examination. He provided a valid basis for that denial. He testified that he did not recommend a skin examination because Ms. A.D.-E. was pregnant. Pregnant women experience skin changes, which can include rashes and discolorations that can obscure or mimic the café au lait spots and freckling that would be the subject of any skin examination. His evidence on this point stood unchallenged. The Crown argued that this evidence ought to be given no weight because Dr. Sloka never indicated that he had a standard practice with pregnant women. I disagree. He testified that skin changes in pregnancy make it sub-optimal to conduct an examination for neurocutaneous disease. He was obviously speaking of pregnant women in general, not just Ms. A.D.-E. The Crown also contends that Dr. Sloka’s rational make no sense. They argue, in the absence of evidence on the point, that pregnancy skin markings are easily distinguishable from stigmata of neurocutaneous disease. They also argue that Dr. Sloka would not know whether any pregnancy related markings might be confused with stigmata of neurocutaneous disease until he examined her skin. Additionally, the Crown argues that Dr. Sloka presumed the existence of pregnancy related markings without first looking. I do not follow the Crown’s argument here. Dr. Sloka’s evidence about the similarity of some pregnancy related skin markings to stigmata of neurocutaneous disease stood unchallenged. Given that pregnant women often have these markings, he would not conduct skin examinations on pregnant patients, because he would not be able to distinguish pregnancy related markings from stigmata of neurocutaneous disease.

966The Crown also contrasted Dr. Sloka’s approach to Ms. A.D.-E. with his evidence regarding M.O. The Crown contends that in Ms. M.O.’s case, “Dr. Sloka was prepared to look at a patient’s skin to determine if they had any markings and, if he found something he didn’t recognize, would research the findings after the fact.” The Crown’s submission ignores the fact that Ms. M.O. was not pregnant. She also had a different presenting medical issue (optic neuritis). Most importantly, the Crown never cross-examined Dr. Sloka on the allegedly different approach taken with these two patients.

967Importantly, Dr. Sloka’s denial of a skin examination finds more support than it does opposition from the evidence of Ms. A.D.-E. While I have said this more than once already, I cannot stress enough that Ms. A.D.-E. never suggested that Dr. Sloka performed anything remotely resembling his standard skin examination.

968Given Dr. Sloka’s stated reason for opting against a skin examination and given the absence of any allegation that resembles Dr. Sloka’s standard skin examination, I am prepared to accept Dr. Sloka’s denial of a skin examination.

969The Crown also suggests Dr. Sloka’s evidence regarding the respiratory examination “demonstrates his willingness to speculate.” This submission is based upon Dr. Sloka’s uncertainty about whether he conducted a full respiratory examination or just a limited respiratory examination as an adjunct to his cardiac examination. I do not share the Crown’s view here. Dr. Sloka documented that, “Cardiac and respiratory examinations were normal today.” A plain reading of that sentence offered a basis for Dr. Sloka to conclude that he conducted a full respiratory examination. Nevertheless, Dr. Sloka fairly conceded that, because he could not remember the appointment, he could not discern whether he had documented the respiratory adjunct to his cardiac examination or a full respiratory examination. In doing so, Dr. Sloka proved himself a careful witness, not a speculative one. Whether full or partial, at least some form of respiratory examination was documented. The existence of one found support in the evidence of Ms. A.D.-E., who testified that she turned sideways on the examination table, that she felt something touch her back, and that the sensation she felt may have come from Dr. Sloka’s stethoscope.

970The Crown also argues that Dr. Sloka engaged in speculation when denying that he told Ms. A.D.-E. that he would be taking down her gown. They argue that Dr. Sloka’s evidence did not amount to evidence of a standard practice. I disagree. Dr. Sloka clearly testified to a standard approach when providing evidence about his standard cardiac examination. That standard approach involved seeking permission from the patient to lower her gown. Dr. Sloka’s denial of Ms. A.D.-E.’s allegation was based upon his standard practice.

971In my view, nothing elicited in cross-examination undermined the evidence of Dr. Sloka. He documented neurological, cardiac, and respiratory examinations in his consultation letter. He provided compelling rationale for the conduct of neurological and cardiac examinations. His rationales found no opposition in the evidence of Dr. Bril. Additionally, Ms. A.D.-E.’s own evidence contained echoes of the examinations claimed by Dr. Sloka.

972Having considered all the evidence and having rejected the evidence of Ms. A.D.-E. on the material issues, I accept that Dr. Sloka performed the neurological, cardiac, and respiratory examinations he documented in his consultation letter. While I am unable to discern whether the respiratory examination was a complete respiratory examination or simply an adjunct to Dr. Sloka’s standard cardiac examination, nothing turns on this. I accept that Dr. Sloka conducted his examinations in accordance with his standard practice. I accept that Ms. A.D.-E. consented to these examinations. I conclude these examinations were medically motivated and that no improper motive existed. I also conclude that the Crown has failed to prove that Dr. Sloka performed these examinations in anything other that a proper manner. Accordingly, the Crown has failed to prove that Dr. Sloka engaged in sexual activity. The evidence is only capable of proving that Dr. Sloka performed a proper medical examination. Dr. Sloka will be acquitted on this count.

iv. L.F. (Count 26)

1) A Summary of Ms. L.F.’s Complaint and Dr. Sloka’s Response to It

973Ms. L.F. alleged that Dr. Sloka exposed and touched her left breast during an examination at her first appointment. Additionally, she alleged that Dr. Sloka sought to expose and touch her right breast, but she declined his request. She also alleged that Dr. Sloka asked her to disrobe and “give me a spin,” which she declined. On her account, Dr. Sloka never sought to examine her again over the course of four subsequent appointments.

974According to Dr. Sloka, he was asked to assess a patient with a history of hallucinations, erratic behaviour, irrational outbursts, zoning out, and headaches, and to provide an opinion about whether she suffered from behavioural issues, stress issues, seizures, or psychosis. In his consultation letter for her first appointment, he documented performing a neurological examination and a “minimal” cardiac examination, in which he placed the stethoscope over her clothing. He also documented a discussion about the possibility of neurocutaneous disease contributing to her spells and, consequently, the prospect of conducting a skin examination. They mutually agreed to defer the examination due to her modesty.

975Contrary to Ms. L.F.’s denial of subsequent examinations, Dr. Sloka also testified that at Ms. L.F.’s fourth appointment, about a year and a half after her first appointment, he conducted a neurological, cardiac, respiratory, breast and skin examinations. Between his consultation letter and rough notes, he documented the performance of all these examinations. He conducted these examinations because Ms. L.F.’s symptoms had evolved. Amongst other developments, her prolactin levels were elevated and she reported lactation [galactorrhea] from both breasts.

2) The Circumstances of Ms. L.F.’s Referral and A Brief Timeline of Treatment History

976Dr. Chritine Dowdell, Ms. L.F.’s family doctor, referred her to Dr. Sloka on December 22, 2011. In the referral letter, Dr. Dowdell provided the following information under the heading “Reason for Consult and Relevant History:”

Possible seizures. Parents describe hallucinations, erratic behaviour, irrational outbursts with cursing and yelling for several hours at a stretch, possibly worse before periods.

Patient has excellent eye contact and coherent. Finishing a five-year double degree program at UW, continuing to perform well.

Is fixated on her appearance, spends 2 hours getting her make up just right to cover her “horribly scarred” face, which looks fine to me.

No absence or tonic/clonic seizures

Is this behavioural, stress, seizure, psychosis???

977Before making the referral to Dr. Sloka, Dr. Dowdell had sent Ms. L.F. for an EEG. In a report dated July 15, 2011, Dr. Steckley wrote that Ms. L.F.’s EEG revealed abnormal results. He went on to write that, “This finding raises the possibility that partial seizures may be the cause for the patient’s episodes of confusion. Imaging on the brain is recommended, if not already obtained.” Ms. L.F. agreed that Dr. Dowdell ordered this EEG and that she was generally aware of the results before seeing Dr. Sloka.

978Ms. L.F. was 21 years old when she obtained the referral to Dr. Sloka.

979Ms. L.F. attended for her first appointment with Dr. Sloka on December 30, 2011. In his consultation letter, he documented a neurological and “minimal” cardiac examination. He also documented a discussion about the neurocutaneous disease and deferral of a skin examination. He planned to see her in follow up after the completion of tests, including a sleep deprived EEG, an MRI, and some bloodwork.

980Dr. Sloka saw Ms. L.F. in follow up on February 12, 2012, July 25, 2012, March 6, 2013, and May 17, 2013.

981Around the time of her treatment by Dr. Sloka, Ms. L.F. was experiencing significant psychiatric issues. In April of 2011, Ms. L.F. attended the GRH ER, after an episode in which she was crying and confused. Her parents had reported strange behaviour for six weeks preceding the ER admission, including a belief that a man was in her bedroom intent on injecting her with a needle. She had complained of this man several times over the previous year and a half. She also reported believing that she had a miscarriage when she was seventeen but realized that she had never been pregnant. In May of 2011, Ms. L.F. met with a psychiatrist who diagnosed Ms. L.F. with “psychosis not otherwise specified.” In June of 2011, Ms. L.F. met with a psychiatrist at the Early Psychosis Intervention Program where she discussed her psychiatric history. At trial, Ms. L.F. acknowledged that she had been diagnosed with psychosis. She also acknowledged that she had made disclosures about the man in her bedroom and about her non-existent miscarriage. She also acknowledged having a concern about the acne on her face at the time. However, Ms. L.F. disagreed with the diagnosis provided by her treating psychiatrists, just as she disagreed with her parents’ characterization of her issues. While she acknowledged that she experienced perceptions and beliefs that were not based in reality, she attributed these false perceptions and beliefs to “confusion” brought on by stress and sleep deprivation. She resisted the notion that her false beliefs and perceptions constituted hallucinations or psychosis. At one point in cross-examination she explained, “I was like confused during my last few years in university so whether it was psychosis or not, I don’t know, but I think again it’s like context of stress.”

982Nevertheless, Ms. L.F. appeared to agree that Dr. Dowdell had asked Dr. Sloka for an opinion about whether her reputed symptoms were “behavioural, stress, seizure, [or] psychosis???” However, she also testified that she had been experiencing headaches in that time-period and believed Dr. Dowdell had sought Dr. Sloka’s help with her headaches. Dr. Dowdell did not mention headaches in her referral letter, though. Although, Ms. L.F.’s history of headaches was mentioned in the documents Dr. Dowdell sent along with the referral letter. Ms. L.F. also mentioned her headaches to Dr. Sloka when providing him her medical history at her first appointment.

983From November 18 to November 21, 2011, just five weeks before Ms. L.F.’s first appointment with Dr. Sloka, Ms. L.F. was hospitalized. The discharge summary indicated that she was hospitalized pursuant to a Form 1. Ms. L.F. could not be sure about the circumstances of her admission, but believed her parents had recommended it, and agreed that it may have been an involuntary admission. She noted that she was hospitalized a few times during that period, including occasions after November 21, 2011. Sometimes the admissions were involuntary and sometimes they were not. She testified that the hospitalization in November was “… basically for the issues that were mentioned before, just generally like not feeling well, headaches, stress, lack of sleep, confusion.”

984At her third appointment with Dr. Sloka (on July 25, 2012), Ms. L.F. confirmed that she had reported to Dr. Sloka a hospitalization and “…stated that she was over-fixating on the previous home invasion. She is followed by Dr. Heintzman and she appreciates his help. She is on risperidone.”

3) The Evidence of Ms. L.F.

985Ms. L.F. was 31 years old when she testified.

986In her testimony, Ms. L.F. alleged that Dr. Sloka only examined her once and that this examination occurred at her first appointment. Looked at broadly, her evidence alleged that Dr. Sloka inappropriately touched her left breast, attempted to do the same with her right breast, attempted to get her to disrobe, and asked her to “give me a spin” while naked. On her evidence, she rebuffed his efforts to touch her right breast and to undress and give him a spin. Also, on her evidence, he never tried to examine her again. Implicitly, she suggested that she drew a line, and he never tried to cross it again.

987Ms. L.F.’s evidence about the chronology of her examinations must be viewed considering her evolving understanding of the duration and comprehensiveness of Dr. Sloka’s assessment and treatment of her.

988Ms. L.F. first contacted the CPSO on July 11, 2018, almost seven years after her first appointment with Dr. Sloka. When she provided her statement to CPSO investigators, she had not reviewed Dr. Sloka’s medical file. Before reviewing her medical records, she believed that she had only attended for two or three appointments with Dr. Sloka. In her statement to CPSO investigators, she expressed uncertainty about when her examination occurred, stating, “I think it was the first appointment with him, I’m not sure on that, but I think it was the first appointment with him.”

989In cross-examination, Ms. L.F. insisted that her only examination occurred at her first visit to Dr. Sloka’s office. Nothing remained of the uncertainty she had expressed to CPSO investigators about the timing of the examination of concern. She explained that she had not read her medical file when she spoke to CPSO investigators. And she testified that the contents of Dr. Sloka’s medical file helped confirm her memory that the examination of concern – the only examination, on her account – occurred at the first visit. This contention is perplexing, because Dr. Sloka’s medical file discloses that she was examined at her first and fourth appointments. For the first appointment, Dr. Sloka documented in his consultation letter only a neurological examination and minimal cardiac examination, in addition to documenting the deferral of a skin examination. In the consultation letter for the fourth appointment, he documented neurological, cardiac, and respiratory examinations. She did not elaborate how these records, which were at odds with her purported memory, helped solidify her conviction that the examination of concern happened at the first visit.

990In her testimony in-chief, after having reviewed her medical records in preparation for trial, Ms. L.F. still provided inaccurate evidence about the number of appointments she had with Dr. Sloka. She testified that she thought she attended three or four appointments. In fact, she attended five appointments. When questioned about her faulty recollection about the chronology of her treatment, she agreed that, due to the passage of time, she had difficulty remember the chronology of her care. She also agreed that, apart from the alleged sexual misconduct, the other details of her appointments might not be clear in her mind. Nevertheless, despite the uncertainty she expressed to CPSO investigators, Ms. L.F. insisted at trial that the “examination of concern” occurred at the first appointment and that Dr. Sloka did not examine her at any subsequent appointment.

991I turn now to her evidence about the first appointment. I will summarize Ms. L.F.’s in-chief evidence about her first appointment separately from any noteworthy evidence elicited in cross examination. I begin with her evidence in-chief.

992Ms. L.F. remembered sitting in a waiting room before going into Dr. Sloka’s office.

993Once in Dr. Sloka’s office, there was a discussion. She had difficulty remembering the details of their conversation, due to the passage of time. She thought Dr. Sloka may have shown her the results of her EEG on a computer screen. She thought he said that her results were normal [they were not]. She remembered him asking her questions about her symptoms, but she could not remember specifics. For example, she was not sure whether they discussed her skin while in Dr. Sloka’s office. Ultimately, he told her that he wanted to perform examinations to investigate the cause of her symptoms. He did not provide more specifics. To that end, he asked her to go into the examination room and put on a gown. She agreed.

994Ms. L.F. provided a description of the examination room. In providing that description, she adopted the accuracy of the diagram she drew for CPSO investigators. That diagram was entered as an exhibit (Exhibit 77). According to Ms. L.F., the examination table was situated away from the wall opposite the doorway from his office, which enabled Dr. Sloka to stand between the examination table and this opposing wall. As will be seen, this purported memory featured prominently in her memory of her examination.

995Dr. Sloka asked her to remove her clothing and put on a gown. He then left the examination room to give her privacy to change. Ms. L.F. was not sure whether he asked her to remove her underwear. Regardless, she kept it on. She wore her gown with the opening at the back. Once she had changed and sat on the examination table, Dr. Sloka returned to the examination room.

996Ms. L.F. testified that Dr. Sloka began the examination by performing strength tests on her arms and legs as she sat on the side of the examination table. Following these strength tests, he asked her to lay down. He did not explain the reason.

997Ms. L.F. lay down on the examination table as requested. Her feet pointed to the hallway, her head to the window. The door to the office was off to her right.

998According to Ms. L.F., Dr. Sloka came around to her left side, positioning himself in the small space between her and the adjacent wall. He then asked to move her gown. Once she agreed, he moved the left side of her gown to expose her left breast. Her left arm remained in the sleeve, though.

999Ms. L.F. testified that Dr. Sloka then began touching her left breast, using the fingers of his left hand. This examination differed from past breast examinations, because Dr. Sloka was only palpating one breast, he took longer than her doctor had taken, and he palpated the same areas more than once. Dr. Sloka had not told her that he planned on touching her breast. She felt that the examination of her left breast was more comprehensive than was medically necessary. At the end of it, Dr. Sloka told her that her breast was normal for her age. He then asked to expose her right breast. She declined this request. He said, “That’s okay” and repeatedly called her “modest.”

1000Dr. Sloka then moved around from the left side of the examination table and positioned himself on the right side, between the examination table and the door to his office.

1001According to Ms. L.F., Dr. Sloka then asked her to stand up. She complied. He then asked her to walk back and forth across the room. She complied, attempting to hold the back of her gown closed in the process. As she paced the room, Dr. Sloka asked her to remove her gown and give him a spin, so that he could look at her skin. Ms. L.F. purportedly did not think that was necessary and asked him to explain his request. He then told her that he was looking for rashes and moles and stuff like that. He told her that sometimes rashes could indicate a neurological condition. As soon as she declined, the entire examination ended.

1002In cross-examination, Ms. L.F. agreed that Dr. Sloka took time to carefully tease out her pertinent medical history when initially speaking to her in his office. She agreed that his inquiries were thorough and detailed and may have taken up to 30 minutes.

1003Ms. L.F. agreed that, when proposing an examination, Dr. Sloka said that he wanted to do some neurological examinations to see if something in her brain was connected to her symptoms. Defence counsel also suggested that Dr. Sloka proposed performing a cardiac examination and explained that he wanted her to get into a gown so that he could more effectively listen to her heart. Ms. L.F. agreed that this was possible, but she could not remember. Defence counsel also suggested that Dr. Sloka proposed a skin examination to look for birth marks that might be related to seizures. Defence counsel also suggested that Dr. Sloka explained that birthmarks on the body might provide evidence of similar marks on the brain that can cause seizures. In addition, defence counsel suggested that, when exploring the possibility of the presence of stigmata of neurocutaneous disease, Dr. Sloka asked Ms. L.F. if she had any café au lait spots (coffee marks) or freckling in the armpits and groin. Ms. L.F. did not recall this discussion but agreed it may have occurred. She added, though, that she does not have birthmarks and would have advised him so if he had asked. While she did not remember any discussion about birthmarks while still in the office, she did recall Dr. Sloka telling her in the examination room that rashes can cause neurological symptoms. Defence counsel also suggested to Ms. L.F. that, when Dr. Sloka asked her to put on a gown, she told him that she would prefer to remain in her street clothes. Ms. L.F. did not recall this discussion. Consequently, she did not remember him calling her modest whilst they were still in his office. According to Ms. L.F.’s recollection, she acceded to Dr. Sloka’s request for her to put on a gown. Ms. L.F. disagreed with the suggestion that Dr. Sloka deferred full cardiac and skin examinations because Ms. L.F. did not wish to get into a gown. Similarly, she disagreed with the suggestion that Dr. Sloka only performed a minimal cardiac examination placing the stethoscope over her clothes when listening to her heart.

1004In cross-examination, defence counsel suggested that Dr. Sloka began her examination by conducting his complete standard neurological examination. To that end, defence counsel took Ms. L.F. step by step through each component. Ms. L.F. could not remember but agreed it was possible that Dr. Sloka performed each component of his standard neurological examination. However, she could only actually remember the arm and leg strength tests, which she agreed occurred at the outset of her examination.

1005Defence counsel also suggested that, after the full neurological examination, Dr. Sloka performed a minimal cardiac examination by placing a stethoscope over top of Ms. L.F.’s clothing. Ms. L.F. could not remember Dr. Sloka using a stethoscope, but she agreed he might have done so.

1006I would now like to delve more deeply into the cross-examination regarding the mechanics of the alleged breast examination. Ms. L.F. purported to have a clear visual memory of Dr. Sloka standing at her left side between the bed and the wall as he examined her breast. As defence counsel explored the issue, Ms. L.F. suggested the possibility that Dr. Sloka had moved the bed from the wall. She also suggested the possibility that the bed was askew, and not parallel to the wall. She had never raised these possibilities with CPSO investigators during her interview, nor during her examination in-chief. She drew a diagram for investigators, showing the bed removed from the wall and parallel to it. Additionally, when describing the bed’s position to CPSO investigators, Ms. L.F. was far from certain that it was removed from the wall at all. Her conclusion that Dr. Sloka stood to her left between the bed and the wall appeared to instead be the product of supposition. She told investigators, “He must have been on my left side…” because it was her left breast that was exposed. She did not have a visual memory at that juncture.

1007Subsequently, Ms. L.F. testified that, at a subsequent visit, she looked into the examination room from her vantage point in the office and observed the examination bed against the opposite wall. She testified that she found it weird to see the bed against the wall. This was a new claim, one not previously mentioned during her CPSO interview or her examination in-chief. Defence counsel challenged this new claim by asking her why she bothered to look into the examination room at a subsequent visit. Initially, she responded, “Because of the weird things that happened before.” However, that claim did not hold. When pressed, she ultimately stated, “I don’t know. I just looked in there. Like I - and I remember thinking that it was closer to the wall than it was before.” Ultimately, she conceded she had no particular reason to look into the examination room and take stock of the position of the examination table at a subsequent visit. I find it extraordinarily implausible that Ms. L.F. would remember such a trivial observation, made for admittedly no discernable purpose, nearly a decade later. I conclude that Ms. L.F. contrived this new claim to buttress her evidence that she possessed a clear visual memory about Dr. Sloka standing to her left between the bed and the wall during the alleged breast touching at her first appointment. This conclusion is supported by the evidence of C.M., who also attended Dr. Sloka’s office on December 30th and testified that the examination bed was against the wall – its usual position, according to Dr. Sloka.

1008I turn now to the post-examination discussion. Ms. L.F. agreed that Dr. Sloka spoke with her in his office following the physical examination. She agreed that Dr. Sloka ordered another EEG and planned to see her in follow-up after the EEG. He also ordered bloodwork.

1009After canvassing the events at the first appointment, defence counsel took Ms. L.F. to all four follow-up appointments.

1010Ms. L.F. agreed with the accuracy of Dr. Sloka’s consulting letters for the second and third appointments. At the second appointment, they discussed her headaches, which were occurring three to four times a month, the prescription medication she used to treat the headaches, and Dr. Sloka’s opinion that use of a preventative medication was not yet necessary. They also discussed her zoning-out episodes. In that context, she had told him that she had become a vegetarian the previous summer. Dr. Sloka wondered whether she may have suffered a resulting vitamin B 12 deficiency. Her blood work was still pending. At the third appointment, they discussed her zoning-out episodes. Her bloodwork had been normal. Dr. Sloka decided to order a repeat EEG and a Holter monitor. He also ordered some hormonal bloodwork. He planned to see her in follow up once her tests were completed. She also spoke to Dr. Sloka about her recent hospitalization and her “over-fixation” on the non-existent home invasion. She was under the supervision of a psychiatrist and taking risperidone (an anti-psychotic drug).

1011When taken to the contents of Dr. Sloka’s fourth consultation letter, Ms. L.F.’s memory faltered some. While she could not recall the entirety of the history that she purportedly provided to Dr. Sloka at this appointment, she did not dispute its accuracy. I will highlight some of the salient portions of Ms. L.F.’s history.

1012According to the history portion of Dr. Sloka’s consultation letter, she missed her EEG and Holter monitor appointments. She came to see him again because she was having difficulty with several issues. She was having difficulty keeping a solid job and was let go frequently. She reported feeling that her parents may be interfering with her employment, possibly communicating with her employers. She thought that each time she got hired for a job she was just being set up to be fired. She was worried about raising the issue with her parents, lest they conclude she suffers from paranoia. Here she mentioned previous hospitalizations, some of which were involuntary. Physically, she described episodic shortness of breath and occasional (rare) heart palpitations. She also reported an occasional change in her voice (it is sometimes deeper) and feeling tired and fatigued. She described blurry vision, associated with headaches, which settled down since graduation. Her bowel and bladder were normal. And she had no complaints about her joints or skin. However, the bloodwork showed that she had a slightly elevated prolactin level. She also reported galactorrhea from both breasts.

1013With this medical history in mind, defence counsel suggested to Ms. L.F. that Dr. Sloka proposed neurological, cardiac, respiratory, breast, and skin examinations. Ms. L.F. did not recall whether Dr. Sloka proposed neurological and cardiac examinations. She specifically denied that Dr. Sloka proposed breast and skin examinations. Consequently, she denied that Dr. Sloka provided two justifications for a skin examination: to look for birthmarks/freckling which are indicators of neurocutaneous disease; and to look for skin changes related to her increased prolactin level, which could be the result of an issue with her pituitary gland. Additionally, Ms. L.F. denied participating in any of these examinations. She denied even wearing a medical gown at this appointment.

1014Having confirmed Ms. L.F.’s denial of neurological, cardiac, respiratory, breast, and skin examinations, defence counsel took Ms. L.F. to Dr. Sloka’s rough notes from the appointment, found at tab 23 of her medical file. She agreed that the history documented in the rough notes corresponded to the contents of the consultation letter. On the right side of the page, Dr. Sloka documented: VF N; COBE no d/c noted; COSE; and FAFG. Defence counsel suggested that “VF N” denoted that her visual fields were normal; that “COBE” denoted that consent had been obtained for a breast examination (and no discharge noted); that “COSE” denoted that consent had been obtained for a skin examination; and that “FAFG” denoted that Dr. Sloka had sought her feedback about the examinations and that she had provided it (feedback asked feedback given). Despite these notations, Ms. L.F. continued to insist that Dr. Sloka did not perform any examinations that day.

1015Ms. L.F. attended for fifth and final appointment on May 17, 2013. Ms. L.F. confirmed that prior to this appointment she wore a Holter monitor. The results of the monitor were normal. She also confirmed that she was outfitted with the Holter monitor in the imaging department of GRH. A nurse or technician applied the leads of the monitor. Dr. Sloka had no involvement in outfitting her with the device.

1016According to Ms. L.F., in the fall of 2017, she told her boyfriend, Y.W., about her experience with Dr. Sloka. Mr. Y.W. was her boyfriend when she made the disclosure to him. This disclosure purportedly occurred long before Ms. L.F. read or saw any news about Dr. Sloka. During her testimony, she did not get into the specifics of the disclosure.

1017Ms. L.F. read news about Dr. Sloka on July 11, 2018, on her CTV mobile app. She read about Dr. Sloka touching other patients’ breasts and asking patients to undress, allegations that mirror ones she ultimately made. She also read about him saying inappropriate things to patients.

1018In cross-examination, Ms. L.F. agreed that, in addition to reporting that Dr. Sloka asked patients to get naked, the article reported that some patients were examined while naked or not properly draped during examinations. She also read that the CPSO had imposed restrictions on Dr. Sloka’s practice, which included prohibiting Dr. Sloka from performing skin examinations. It struck her that these patients’ complaints were being taken very seriously by the CPSO. The news article confirmed her professed long-standing concern that what she experienced should not have occurred. She felt emboldened to tell CPSO about her own experience.

1019On the same day she read the CTV article, Ms. L.F. went on the CPSO website to obtain an email address for the CPSO. She denied searching for or reviewing the allegations against Dr. Sloka that were published on the CPSO website. Once in possession of the CPSO email address, Ms. L.F. sent an email the CPSO to lodge a complaint against Dr. Sloka.

4) The Evidence of Y.W.

1020Mr. Y.W. was 32 years old when he testified. He dated Ms. L.F. from 2016 until 2020.

1021Mr. Y.W. testified that in the fall of 2017, Ms. L.F. disclosed to him that a neurologist examined both of her breasts during an appointment. His evidence thus contradicted Ms. L.F.’s claim that Dr. Sloka only examined one of her breasts but remained consistent with Dr. Sloka’s claim that he examined both of her breasts at the fourth appointment.

1022Mr. Y.W. also testified that Ms. L.F. told him that the neurologist asked her to remove her gown and spin around on the spot, so that he could examine her for skin conditions or rashes. In-chief, Mr. Y.W. testified that Ms. L.F. disclosed that she declined to participate in the proposed skin examination. However, he backtracked during cross-examination. In cross-examination, Mr. Y.W. testified that Ms. L.F. disclosed that she questioned the skin examination in some fashion. In response, the neurologist explained that he was looking for a skin condition related to a neurological condition. Lastly, Mr. Y.W. conceded that he did not know whether Ms. L.F. agreed to participate in any skin examination, or whether she declined it.

5) The Evidence of Dr. Bril

1023Dr. Bril agreed that Ms. L.F.’s history and presentation at the first appointment gave rise to the possibility of seizures. Her reported symptoms included “zoning out” and her EEG results were abnormal. However, Dr. Bril maintained that there was an insufficient correlation between NF1 and seizures. Consequently, she opined that Dr. Sloka lacked a proper neurological basis for proposing or conducting a skin examination.

1024Dr. Bril also provided an opinion about Ms. L.F.’s fourth appointment. She agreed that Ms. L.F.’s elevated prolactin levels and galactorrhea revealed the possibility of a pituitary adenoma. She inferred that Dr. Sloka ordered an MRI of Ms. L.F.’s pituitary gland and conducted a visual fields examination to investigate a possible pituitary adenoma. She took no issue with these investigations. However, Dr. Bril testified that it was not neurologically reasonable to conduct a breast or skin examinations as part of any assessment of a pituitary adenoma. In her opinion, the monitoring of hormonal levels fell within the domain of a family doctor or endocrinologist. However, Dr. Bril was unable to say whether it was medically unreasonable to perform breast and skin examinations to investigate and monitor the progress of any possible pituitary adenoma.

6) The Evidence of Dr. Sloka

1025Dr. Sloka remembered very little about Ms. L.F. Her remembered her hallucination about waking up to find a man standing in her bedroom. He also remembered that she was modest during her early appointments.

1026Dr. Sloka relied upon his consultation letters for the truth of their contents. He also relied upon the other documents in Ms. L.F.’s chart for context.

1027According to a handwritten note on the faxed referral from Dr. Dowdell, Dr. Sloka spoke on the telephone with Dr. Dowdell on the date of the referral, which was December 22, 2011.

1028Ms. L.F.’s symptoms occurred in the context of psychiatric difficulties. The referral letter asked Dr. Sloka to assess, “Is this behavioural, stress, seizure, psychosis???”

1029By the time of the referral, Ms. L.F. had been to the ER, undergone some tests, and obtained a psychiatric consultation report. Dr. Dowdell sent records of these assessments and investigations to Dr. Sloka.

1030Ms. L.F. had obtained two EEGs before seeing Dr. Sloka. Dr. Steckley performed these EEGs. These EEGs did not reveal overt seizure activity but were nevertheless abnormal and did not rule out seizures. After the second EEG, Dr. Steckley wrote, “This awake EEG demonstrates a mild right hemispheric dysrhythmia. If there is ongoing clinical concern about recurrent seizures, follow up with a sleep deprived EEG [sic] may yield further information, and is recommended.” Before seeing Dr. Sloka, Ms. L.F. had not obtained a sleep deprived EEG.

1031When Dr. Sloka met Ms. L.F. at her first appointment, he spoke with Ms. L.F. in his office and obtained a thorough patient history. In taking this history, he attempted to ascertain whether Ms. L.F. was experiencing seizures.

1032Ms. L.F. informed Dr. Sloka that she had difficulty concentrating and experienced “zoning out” spells. Based upon the information provided, he did not think her spells were clinically consistent with seizures.

1033Dr. Sloka also questioned Ms. L.F. about her psychiatric issues. She informed him that in the preceding summer she woke to find someone in her room. She told the police about this. However, there was no evidence of an intruder, and she could not explain how the intruder exited her room or the house. Nevertheless, she felt strongly that an intruder had been present.

1034The records sent to Dr. Sloka included a psychiatric assessment that concluded Ms. L.F. had suffered episodes of “stress induced psychosis now resolved.” Dr. Sloka understood there to be a link between psychosis and temporal lobe epilepsy.

1035After obtaining Ms. L.F.’s history, Dr. Sloka recommended a neurological and cardiac examination. He also discussed the possibility of a skin examination, which was part of his standard assessment of patients with potential seizures. When taking her medical history, Dr. Sloka noted that Ms. L.F. “denies any stigmata of neurocutaneous disease.” This notation might suggest that the proposal of a skin examination was unnecessary. However, he testified that he interpreted this notation as indicating that Ms. L.F. was not aware of any birthmarks on her body. In any event, Dr. Sloka also documented in his consultation letter that, “Although we discussed the possibility of Neurocutaneous Disease that could contribute to the possibility of spells, we both decided to defer any skin examination given her modesty.”

1036Dr. Sloka’s consultation letter documented a complete neurological examination and a minimal auscultation of Ms. L.F.’s heart. Dr. Sloka testified that a “minimal” cardiac examination involved the placement of the stethoscope over top of the patient’s clothing. Based upon his recording of a minimal cardiac examination and two references to Ms. L.F. being modest, Dr. Sloka believed that Ms. L.F. wore her street clothes for her examinations. However, he could not rule out that she wore a gown. He had no memory one way or the other.

1037At the conclusion of the first appointment, Dr. Sloka ordered a sleep deprived EEG to further investigate the possibility that Ms. L.F. had been experiencing seizures. He also ordered bloodwork to rule out cognitive issues. A previously ordered brain MRI was pending.

1038Dr. Sloka saw Ms. L.F. in follow-up on February 24, 2012. Ms. L.F. reported little change in her condition. She continued to have zoning-out spells and concentration difficulties. She also experienced headaches around three to four times per month. She also reported that her symptoms became “enhanced” the previous summer after she became a vegetarian. Dr. Sloka ordered bloodwork to investigate “possible secondary causes” of her symptoms. Given her recent change to a vegetarian diet, the bloodwork included a vitamin B12 assessment.

1039On July 25, 2012, Dr. Sloka saw Ms. L.F. in follow-up. Her zoning out spells continued. She also reported that she had been hospitalized and that “she was over-fixating on the previous home invasion.” She was under the care of a psychiatrist and taking risperidone. Ms. L.F.’s bloodwork was normal, as was her sleep deprived EEG. Dr. Sloka ordered another sleep deprived EEG, “just to be careful.” He also ordered a Holter monitor to assess her hearth rhythms. Additionally, he ordered hormonal bloodwork, “to assure that her cortisol and TSH are normal.”

1040Ms. L.F. missed the scheduled Holter monitor appointment. She also missed her sleep deprived EEG appointment. Additionally, she cancelled her August 31, 2012, follow-up appointment. She also failed to show up for her rescheduled February 13, 2013, follow-up appointment.

1041Ms. L.F.’s fourth appointment occurred on March 6, 2013. In his consultation letter, Dr. Sloka observed that Ms. L.F. missed her sleep deprived EEG, Holter monitor, and follow-up appointments. He noted that “… she came to see us again because she is having some difficulties with several issues.” According to the history noted in Dr. Sloka’s consultation letter, she informed Dr. Sloka that she was having trouble holding down a job. She felt her parents might be interfering with her jobs and possibly communicating with her employers. She worried that any confrontation with her parents might lead them to conclude she is paranoid. She had been admitted to the hospital, apparently formed against her wishes. Ms. L.F. also described episodic shortness of breath. She also suffered infrequent palpitations. Additionally, she described an occasional change in her voice. She felt tired and fatigued more often. Ms. L.F. also described suffering from blurred vision. Her headaches, however, had settled after she graduated from university. Her bowel and bladder were normal. She voiced no concern about her skin. However, Ms. L.F. described bilateral galactorrhea, which was clear or white, not yellow (no evidence of infection). She had been taking the antipsychotic, Risperdal, which seemed to enhance her discharge; however, she ceased taking Risperdal several months previously and continued to experience discharge. Previously ordered bloodwork also revealed slightly elevated prolactin levels.

1042According to Dr. Sloka, he proposed and performed neurological, cardiac, respiratory, breast, and skin examinations. His consultation letter only documented neurological, cardiac, and respiratory examinations. However, his rough notes documented the trilogy of examinations Dr. Sloka typically performed for the assessment and monitoring of patients with prolactinomas: visual fields, breast, and skin examinations. In his consultation letter, Dr. Sloka noted normal results for the neurological, respiratory, and cardiac examinations. In his rough notes, he noted normal results for the visual fields and breast examinations (there was no discharge). He did not note any results for the skin examination.

1043I want to pause here to speak about Dr. Sloka’s rough notes. There are only two pages of rough notes, both of which are undated. However, the content of each page indisputably reveals the appointment during which they were written. The first page of handwritten notes (tab 20 of Exhibit 75) contains information that corresponds with the first appointment. The second page (tab 22 of Exhibit 75) contains information that indisputably corresponds with the history provided at the fourth appointment and recorded in the consultation letter. For example, on this page, Dr. Sloka makes note of her nasal spray, her septoplasty, her shortness of breath, and her decreased headache frequency since graduation. It is here that Dr. Sloka documented the triad of pituitary examinations: “VF N”; “COBE no d/c noted”; and “COSE.” It is beyond rational dispute that Dr. Sloka made contemporaneous notes of visual fields, breast, and skin examinations for this fourth appointment. It is therefore beyond rational dispute that he conducted these examinations at this appointment, despite Ms. L.F.’s denials.

1044Dr. Sloka provided evidence regarding his justifications for the skin examination. There were three. First, he testified that skin examinations were part of his standard approach to patients with possible seizures, which is consistent with what he recorded in his first consultation letter. Second, two symptoms, the deepening of Ms. L.F.’s voice and galactorrhea, both suggested the possibility of a pituitary tumor. Pituitary tumors become manifest on the skin through the presence of dark patches, stretch marks, skin tags, doughy skin, or course skin. Third, Ms. L.F. presented with two symptoms that were consistent with lupus: seizures and psychosis. Lupus patients can have skin abnormalities that would be revealed during a skin examination. The Crown did not subject these justifications to any scrutiny during their cross-examination of Dr. Sloka about Ms. L.F..

1045Dr. Sloka also provided evidence regarding his justification for a breast examination. Again, he testified that Ms. L.F.’s symptoms were consistent with the possibility of a pituitary adenoma. According to his training, breast examinations were one of the triad of examinations conducted to assess and monitor pituitary adenomas. Additionally, even though he considered it unlikely that she would have cancer in both breasts, he nevertheless thought the possibility of breast cancer should be considered. He testified that if he had found anything concerning during the breast examination, he might have expedited testing or ordered different testing, like an ultrasound. Defence counsel asked Dr. Sloka why he did not wait for the results of the pituitary MRI, which he ordered at the conclusion of this appointment, to assess whether Ms. L.F. had a tumor. Dr. Sloka testified that Ms. L.F. had come to his office with several concerns. He believed he conducted the examinations to address those concerns. Also, Dr. Sloka testified that he would have expedited the pituitary MRI had he found anything concerning during the breast examination. The breast examination was conducted to assess for the presence of galactorrhea and any possible causes of it. He found nothing that would prompt him to expedite an MRI.

1046Dr. Sloka denied deviating from his normal examination protocols for any of the examinations. Specifically, he denied asking Ms. L.F. to remove all her clothes and give him a spin. Moreover, Dr. Sloka testified that he conducted breast examinations from the right side of the patient, not the left. According to his clinical skills training in medical school, physicians examine the patient from the right side. The orientation of the examination bed in his examination room complied with that training.

1047Dr. Sloka disputed Dr. Bril’s assertion that breast and skin examinations went beyond the scope of any neurological assessment and monitoring of a potential pituitary adenoma. He testified that he had been trained in the investigation and management of pituitary adenomas. That training included the triad of visual fields, breast, and skin examinations. It also included the monitoring of hormone levels. His evidence about his training stood unchallenged.

1048At the conclusion of the fourth appointment, Dr. Sloka ordered a repetition of Ms. L.F.’s bloodwork, a pituitary MRI, a Holter monitor, and a sleep deprived EEG.

1049Ms. L.F.’s fifth appointment occurred on May 17, 2013. By this appointment, she had still not completed her MRI (the appointment had been moved several times) and she did not attend for her sleep deprived EEG. She also did not do the follow-up bloodwork. She did, however, wear the Holter monitor – her results were normal. Ms. L.F. reported obtaining a new job. She also reported that her family doctor was helping her with her asthma. Dr. Sloka noted that her MRI was scheduled for March 31. He planned to see her after she completed her MRI and bloodwork.

1050Ms. L.F. did not attend for her follow-up appointment on June 14, 2013. A note in the patient data sheet indicates she left a message to cancel the appointment 12 minutes before the commencement of the appointment.

1051Nothing in the patient file or in Ms. L.F.’s evidence explains why she stopped treatment with Dr. Sloka.

7) Assessment of the Evidence and Analysis

1052Ms. L.F. was an extremely unreliable witness upon whose evidence I simply cannot rely.

1053To begin with, Ms. L.F.’s evidence must be considered in light of the tainting effect of her exposure to media coverage about Dr. Sloka. It also must be viewed in light of the profound mental illness she endured for years.

1054Ms. L.F. was repeatedly diagnosed with psychosis. She acknowledged these diagnoses but disagreed with them. At the same time, however, she acknowledged experiencing many of the hallucinations, delusions, and other symptoms that formed the basis of the diagnoses. She was either in denial about the nature of her illness or deliberately attempting to downplay the diagnoses. She either lacked self-awareness or sincerity, or both. In my view, her psychiatric state during her treatment by Dr. Sloka is highly relevant to the reliability of her ability to accurately perceive and remember events. Her minimization of her illness is highly relevant to her credibility.

1055Many years after her time under Dr. Sloka’s care ended, Ms. L.F., with all her frailties, was exposed to media coverage about Dr. Sloka. After reading allegations that Dr. Sloka touched other patients’ breasts and had them undress, she called the CPSO the same day. Her allegations mirrored what she read in the media. They bore no resemblance, though, to Dr. Sloka’s standard breast or skin examinations. Ms. L.F. testified that the news story changed her view about the propriety of her examination. In my view, there is a substantial likelihood that her perception about the manner and timing of her examinations has been tainted by her review of media coverage. Ms. L.F.’s narrative involves a claim that Dr. Sloka twice attempted to gain more exposure to her body than she was prepared to admit. She denied a request to touch her right breast and rebuffed a request that she stripped naked. Implicitly, she alleges that she drew a line in the sand that Dr. Sloka never again attempted to cross. That narrative does not align with Dr. Sloka’s contemporaneously written consultation letters and rough notes, which document a respect for Ms. L.F.’s boundaries at the first appointment and a comprehensive examination 17 months later, at the fourth appointment, which was scheduled at her request after a long hiatus. Conversely, Ms. L.F.’s allegations mirror and cognitively resonate with the news reports: an alleged serial predator did the same thing to her as he did to other women, and he did it at her very first appointment, the first chance he got.

1056The Crown relies upon the evidence of Y.W. to rebut the suggestion of tainting. In my view, Mr. Y.W.’s evidence is incapable of rebutting the allegation of tainting. True, Mr. Y.W. describes a conversation with Ms. L.F. that took place before Ms. L.F. read any news coverage about Dr. Sloka. However, the conversation also took place after Ms. L.F. had completed all her appointments with Dr. Sloka. According to Mr. Y.W., Dr. Ms. L.F. disclosed that Sloka examined both of Ms. L.F.’s breasts. This version of the disclosure is consistent with Dr. Sloka’s evidence that he examined both of Ms. L.F.’s breasts at the fourth appointment. It is inconsistent with Ms. L.F.’s claim that Dr. Sloka only touched one of her breasts. Further, Mr. Y.W.’s evidence regarding Ms. L.F.’s disclosure about an attempted skin examination is too sparse and inconsistent to offer any assistance to the Crown, particularly given Dr. Sloka’s admission of a complete skin examination at the fourth appointment. His inconsistent version of the disclosure may well be consistent with Dr. Sloka’s evidence.

1057Ms. L.F. gave inconsistent evidence about the chronology of her treatment and the timing of the appointment of concern. While she testified that she was certain that Dr. Sloka examined her breast at her first appointment, she professed uncertainty to CPSO investigators. Before a review of her medical records, she incorrectly believed she only attended two or three appointments with Dr. Sloka. After a review of her medical records, she incorrectly believed she attended three or four appointments. She agreed that given the passage of time it was difficult to remember the chronology of her treatment. Despite this concession, she adamantly denied that Dr. Sloka examined her at her fourth appointment, even though Dr. Sloka contemporaneously documented six examinations for this appointment and specifically made reference to three of them in the consultation letter sent to her family doctor that day. On her evidence, Dr. Sloka falsely admitted to successfully completing more intrusive examinations upon her than she had ever alleged. However, he accurately documented her patient history, the very history relied upon by Dr. Sloka to conduct the examinations he documented. Similarly, Ms. L.F. effectively alleged that Dr. Sloka falsified the minimal cardiac examination and deferred skin examination his first consultation letter, but accurately documented the history relied upon by Dr. Sloka to propose the cardiac and skin examinations. I find it exceedingly implausible that Dr. Sloka fabricated a denial of a less successful attempt to examine her at the first appointment only to subsequently fabricate a more intrusive examination a year and a half later. I find it far more likely that the perceptions of Ms. L.F., a woman with a history of paranoia and delusional thinking, have been tainted by exposure to media coverage of the allegations against Dr. Sloka.

1058Ms. L.F.’s evidence about the mechanics of her breast examination was also unreliable. Her narrative depended upon a purportedly clear memory of Dr. Sloka standing to her left while touching her left breast. Likewise, she professed a clear visual memory of the bed being removed from the wall for that purpose. The vast majority of the patients in this trial testified that the bed abutted the wall opposite the entrance. Photographs taken by the police during the investigation depict the bed against this wall. C.M., who also attended Dr. Sloka’s on December 30th, testified that the bed was situated against the wall. And Dr. Sloka testified that, with the exception of pelvic and Dix-Hallpike examinations, he kept the bed against the wall. Moreover, despite a purportedly clear memory, Ms. L.F. expressed uncertainty when speaking to CPSO investigators about the bed’s positioning. Also, Ms. L.F. appears to have contrived at trial, for the first time, a memory of subsequently seeing the bed against the wall, to buttress her testimonial claim of a clear memory about the bed being removed from the wall for her examination.

1059Ms. L.F.’s allegations also seem implausible upon closer inspection. On the one hand, Dr. Sloka exposed her left breast and began to touch it without asking. On the other hand, he then sought permission to expose her right breast. Acceding to her refusal to expose her right breast, he then promptly asked her to expose her entire body and give him a spin. I find that allegation implausible.

1060The Crown suggests that Dr. Sloka’s evidence confirms Ms. L.F.’s allegation that Dr. Sloka asked her to remove her gown and “give him a spin.” Specifically, the Crown points to Dr. Sloka’s evidence that he would have patients rotate to allow an examination of both the front and back of their bodies. This submission is misguided. There is almost no similarity between Dr. Sloka’s description of his skin examinations and Ms. L.F.’s allegation. Dr. Sloka testified about systematically examining the back of the patient’s body in a piecemeal fashion before asking the patient to rotate, so that he could systematically examine the front of their body in a piecemeal fashion. He remained in the same position so that he could take advantage of the light coming through the window of the examination room. The patients completed a half rotation of their bodies to permit a sunlit examination of each side of their body. Dr. Sloka did not admit to asking patients to “give me a spin.”

1061I turn now to the evidence of Dr. Bril. In my view, Dr. Bril’s evidence offers limited assistance to the Crown.

1062As noted in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little weight on Dr. Bril’s evidence concerning the propriety of conducting skin examinations as a means of investigating the possibility of neurocutaneous disease.

1063Furthermore, Dr. Sloka contemporaneously expressed his belief in the relevance of skin examinations to the investigation of seizures in the consultation letter he wrote to Ms. L.F.’s family physician. He was not speaking to a layperson. He was speaking to a fellow physician, the type of physician that Dr. Bril testified was qualified to conduct that kind of investigation. This fact underscores the sincerity of Dr. Sloka’s belief. And it rebuts the Crown submission that Dr. Sloka was targeting unsophisticated patients with fraudulent ruses. Dr. Bril testified that she was trained in medical school about the conduct of skin examinations in search of diseases. She also testified that skin examinations were best left for a patient’s family doctor or dermatologist. I infer, then, that Dr. Sloka expected the family doctor to appreciate the possibility of a connection between seizures, neurocutaneous diseases, and skin abnormalities. In other words, I infer that Dr. Sloka expected the family doctor to understand that neurocutaneous disease might explain Ms. L.F.’s possible seizures. That inference logically flows from the statement, “Although we discussed the possibility of neurocutaneous disease that could contribute to the possibility of spells, we both decided to defer any skin examination given her modesty.” To be clear, I do not rely upon that statement for its consistency with Dr. Sloka’s evidence at trial. Instead, I rely upon the circumstances in which that statement was made. I reject the possibility that Dr. Sloka would have mentioned the connection between neurocutaneous disease, skin examinations, and seizures to a medically trained professional, if he was dishonestly relying upon that connection as a ruse to gain access to Ms. L.F.’s body. Moreover, relying upon the same authoritative text as Dr. Bril, Dr. Sloka provided a basis for rationally believing that the incidence of neurocutaneous disease amongst epilepsy patients was common enough to warrant investigation. The Crown invites me to conclude from the alleged neurological unreasonableness of the skin examination that Dr. Sloka had a sexual purpose. From that sexual purpose, the Crown asks that I conclude that an attempt to conduct a skin examination was an attempt to engage in sexual activity. Given Dr. Sloka’s sworn evidence about the sincerity of his belief, given the cogency of his belief regarding the statistical incidence of neurocutaneous disease amongst epilepsy patients, and given his contemporaneous declaration of that belief in the consultation letter, I am unable to conclude that Dr. Bril’s evidence provides a sufficient basis to infer an improper purpose.

1064Dr. Bril’s evidence regarding the examinations purportedly conducted by Dr. Sloka at the fourth appointment also offers the Crown little assistance, for several reasons. First, The Crown contends that I need not resolve the issue of whether Dr. Sloka performed the examinations he documented for this appointment. In other words, the Crown does not rely upon these examinations in their theory of liability. Secondly, Dr. Bril acknowledged that there existed a sufficient basis for Dr. Sloka to suspect the presence of a pituitary adenoma. Consequently, she acknowledged that a pituitary MRI and visual fields examination were reasonable investigations. On the other hand, she testified that skin examinations and breast examinations ought to have been left to other physicians. As noted, I place little to no weight on Dr. Bril’s evidence regarding the propriety of neurologists conducting skin examinations. Further, Dr. Bril was not qualified and was unable to provide an opinion about whether these examinations were medically reasonable. She also possessed no knowledge of Dr. Sloka’s training and experience. Again, the Crown relied upon Dr. Bril’s evidence about the neurological unreasonableness of these two examinations to support the inference that Dr. Sloka possessed an improper purpose. However, Dr. Bril’s evidence was incapable of undermining Dr. Sloka’s claim that he was trained to perform a triad of examinations (visual fields, skin, and breast examinations) as part of the investigation and management of pituitary adenomas. It was also incapable of undermining Dr. Sloka’s purported belief in the medical reasonableness of this approach.

1065I turn now to an assessment of Dr. Sloka’s evidence. Keeping in mind my conclusions about the reliability of Ms. L.F.’s evidence and the limited utility of Dr. Bril’s evidence, I have little reason to reject Dr. Sloka’s evidence. Moreover, Dr. Sloka provided cogent evidence, grounded in Ms. L.F.’s medical records, and supported by his uncontradicted evidence regarding his medical training.

1066At Ms. L.F.’s first appointment, Dr. Sloka recommended neurological, cardiac, and skin examinations. As noted, he provided a logical and compelling basis to support his belief that there existed a statistically significant incidence of neurocutaneous disease amongst epilepsy patients. He unabashedly expressed that belief in the consultation letter he wrote to Ms. L.F.’s family doctor. I accept that he sincerely held this belief and that he discussed this belief with Ms. L.F., just as he reported in his consultation letter. Furthermore, I accept that Ms. L.F. declined the offer of a skin examination. I also accept that Dr. Sloka proposed but Ms. L.F. declined a complete cardiac examination. I find it highly implausible that Dr. Sloka would contemporaneously report only a minimal cardiac examination, if he indeed performed a full cardiac examination. Also, Ms. L.F.’s “modesty” regarding a skin examination was consistent with the modesty associated with the refusal of the breast exposure associated with a complete breast examination. That same modestly makes it extremely improbable that Ms. L.F. permitted Dr. Sloka to expose and touch her breast at this appointment. If the left breast became exposed, a complete cardiac examination would have been possible. There was no complete cardiac examination. It follows that there was no breast exposure. I accept Dr. Sloka’s denial of any breast touching. I accept the claims made in his consultation letter.

1067The Crown argues that in the absence of any memory of the examinations performed the first appointment, Dr. Sloka had no basis for denying a breast examination. Here, the Crown reverses the burden of proof. Moreover, as discussed in the preceding paragraph, the contents of his consultation letter provided a basis for his conclusion that Ms. L.F.’s breast was not exposed. Dr. Sloka specifically relied upon the report of a “minimal cardiac examination” to ground his denial. Furthermore, the Crown never suggested that anything in Ms. L.F.’s history or presentation leading up to Ms. L.F.’s first appointment would have motivated Dr. Sloka to propose a breast examination.

1068The Crown argues that it made no sense for Dr. Sloka to propose a skin examination at the first appointment, because Dr. Sloka had documented that Ms. L.F. had denied any stigmata of neurocutaneous disease. However, Dr. Sloka explained that when he documented a patient’s denial of any stigmata, he was documenting only their state of awareness. He did not necessarily consider a patient’s state of awareness as definitive. This is readily apparent from the fact that he documented an interest in looking for stigmata despite documenting Ms. L.F.’s ostensible denial.

1069The Crown also argues that Dr. Sloka gave inconsistent evidence regarding whether Ms. L.F. was gowned at her first appointment. Having reviewed the evidence in-chief and in cross-examination, I see no inconsistency. He had no memory one way or the other, but he had a basis for believing Ms. L.F. was in her street clothes: he noted twice that she was modest, that she declined a full cardiac examination, and that she declined a skin examination. He noted that these examinations would be discussed in the office before the patient ever entered the examination room. From this, he inferred that she likely declined to wear a gown at all. However, he consistently maintained he had no memory one way or the other.

1070I turn now to the fourth appointment. I accept that Dr. Sloka performed neurological, respiratory, cardiac, visual fields, breast, and skin examinations at Ms. L.F.’s fourth appointment. Between his consultation letter and rough notes, Dr. Sloka contemporaneously documented all six of these examinations. Dr. Sloka’s concern about the possibility of a pituitary adenoma was supported by the evidence of Dr. Bril. His evidence regarding his training in relation to the investigation and treatment of pituitary adenomas, prolactinomas in particular, stood unchallenged. Similarly, his belief in the medical reasonableness of the triad of examinations (visual fields, breast, and skin examinations) stood unchallenged. Moreover, his decision to order repeat bloodwork and a pituitary MRI support the conclusion that he sincerely believed in the reasonableness of investigating and managing any possible pituitary adenoma.

1071Dr. Sloka provided evidence that he conducted all examinations in accordance with his standard protocols. Implicitly, at least, he denied any deviation from his standard protocols. Given Ms. L.F.’s denial of any examinations at the fourth appointment, I have no reason to disbelieve him.

1072Regarding the skin examination, Dr. Sloka testified that he examined the skin of his patients in a piecemeal fashion, in accordance with his training. By his own admission, the examination involved the brief exposure of the front of the torso while the patient held the gown at their waist.

1073The Crown contends that Dr. Sloka’s skin examination methodology involved greater exposure than that condoned by Dr. Bril. Accordingly, the Crown argues that Dr. Sloka’s methodology supports the conclusion that he possessed a sexual purpose. However, for the reasons discussed in the segment of this judgement devoted to a general assessment of Dr. Sloka’s evidence, I conclude that the Crown overstates Dr. Bril’s evidence. Dr. Bril was never directly asked to comment on Dr. Sloka’s stated methodology, a methodology which was first introduced by the Crown when filing Dr. Sloka’s October 28, 2015, letter to the CPSO (Exhibit 3). After a careful review of Dr. Bril’s evidence, I do not believe that it stands as a repudiation of Dr. Sloka’s skin examination methodology. This aspect of Dr. Bril’s evidence therefore does not support an inference of a sexual purpose.

1074Likewise, for the reasons discussed in the section of this judgment devoted to a general assessment of Dr. Bril’s evidence, her evidence does not provide a sufficient basis for me to reject the sincerity of Dr. Sloka’s claim that his skin examination was motivated by the desire to locate any stigmata of neurocutaneous disease about which the patient may be unaware.

1075I would now like to address the Crown’s reliance upon cross-count similar fact evidence to support the evidence of Ms. L.F. I have admitted the evidence of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive physical examinations upon his female patients. However, having carefully considered Dr. Sloka’s evidence against the entirety of the evidence, I have concluded that Dr. Sloka has refuted any possible inference of a sexual purpose when conducting examinations at Ms. L.F.’s first and fourth appointments. As discussed above, Dr. Sloka provided a cogent explanation regarding his medical justifications, his medical training, and his standard methods.

1076I would now like to address the Crown’s reliance upon five specific cross-count similarities in support of Ms. L.F.’s evidence. In my view, these cross-count similarities offer insufficient probative value in support of any other material issues.

1077First, the Crown alleges that Ms. L.F. belongs to a constituency of patients who describe being pressured by Dr. Sloka for additional and more invasive physical examinations. Nothing in Ms. L.F.’s evidence suggests any attempt to pressure her. On Ms. L.F.’s evidence, he sought permission to touch her right breast, she declined, and he accepted her refusal. He then asked her to remove her clothes, but she refused, and he accepted her refusal. On its face, her evidence does not allege that she perceived herself to be under any pressure from Dr. Sloka.

1078Second, the Crown alleges that Ms. L.F. belongs to a constituency of patients who alleged that Dr. Sloka expressed an interest in looking for moles. In my view the term “moles” is a red herring. Dr. Sloka’s desire to perform a skin examination was not a material issue. By his own admission, Dr. Sloka expressed an interest in looking for stigmata of neurocutaneous disease at the first appointment. He also expressed an interest in looking for those stigmata at the fourth appointment, in addition to any skin manifestations of pituitary adenomas or lupus. Ms. L.F. was clearly uncertain about the words used by Dr. Sloka when he proposed a skin examination. She testified that he wanted to look for “…like rashes and moles and stuff like that.” The term moles is a very generic term, one prone to be used imprecisely by laypeople in common parlance. Its uses by various witnesses in this trial is hardly surprising in the context of discussions about skin examinations. The use of this term adds nothing to probative value of the cross-count similarity of skin examinations.

1079Third and fourth, the Crown alleges that Ms. L.F. belongs to a constituency of patients that allege that Dr. Sloka did not identify the nature of examinations he intended to perform (the what) or explain their justification (the why). I disagree. Despite being an unreliable witness with a spotty memory, Ms. L.F. agreed in cross-examination that Dr. Sloka proposed a neurological examination to see whether something in her brain connected to her symptoms. She also agreed that he may have proposed a cardiac examination.

1080Fifth, the Crown alleges that Ms. L.F. belongs to a constituency of patients whom Dr. Sloka called modest. Dr. Sloka, of course, agreed that he twice employed this term in his first consultation letter. He also did not dispute he may have told her the same thing. His use of the term was not a material issue. Also, I fail to see how the use of this term during his interactions with multiple patients is probative of any material issue, including the sexual nature of any examination, or Dr. Sloka’s sexual purpose.

1081Regarding the first appointment, having considered the entirety of the evidence, I accept that Dr. Sloka possessed what he subjectively believed were valid medical motives for proposing neurological, cardiac, and skin examinations.

1082Regarding the first appointment, I reject Ms. L.F.’s evidence regarding the examination of her left breast and the attempt to examine her right breast. I additionally reject her description of Dr. Sloka’s skin examination proposal. Instead, I accept Dr. Sloka’s evidence that he proposed and explained the justification for neurological, cardiac, and skin examinations in his office, in accordance with his standard approach. I accept that Dr. Sloka conducted a neurological examination in accordance with his standard protocols. I also accept Dr. Sloka’s evidence that Ms. L.F. declined a full cardiac examination but permitted a minimal cardiac examination overtop of whatever clothing she was wearing (gown or street clothes, likely street clothes). I also accept Dr. Sloka’s evidence that she declined a skin examination – or to use his medical jargon, “deferred” it. I have no reason to conclude that Dr. Sloka performed the neurological and minimal cardiac examination in anything other than a medically appropriate fashion.

1083Regarding the fourth appointment, I accept that Dr. Sloka proposed and explained the justification for neurological, respiratory, cardiac, visual fields, breast, and skin examinations. I accept that Dr. Sloka sincerely believed in the medical justification for each of these examinations. I further accept that Dr. Sloka conducted these examinations in accordance with his training. Additionally, I accept that Dr. Sloka endeavoured to respect the sexual integrity of his patient. I reject the suggestion that Dr. Sloka possessed a sexual purpose or conducted the examinations in a sexualized manner. In my view, there is no basis for rejecting Dr. Sloka’s contention that he conducted the examinations in what he believed to be a medically appropriate manner and for a medically appropriate purpose. While the Crown does not rely upon the examinations at the fourth appointment as proof that Dr. Sloka engaged in sexual activity, I nevertheless reject the notion that the examinations conducted at the fourth appointment constituted sexual activity.

1084The evidence fails to establish that Dr. Sloka engaged in sexual activity in relation to Ms. L.F. Instead, the evidence is only capable of establishing that Dr. Sloka conducted what he believed were valid medical examinations, for valid medical purposes, and for which he had obtained Ms. L.F.’s expressed consent.

1085Dr. Sloka will be acquitted on this count.

v. A.F. (Count 19)

1) A Summary of Ms. A.F.’s Complaint and Dr. Sloka’s Response to It

1086Ms. A.F. alleged that Dr. Sloka sexually assaulted her at two separate appointments. She had been seeing Dr. Sloka for the assessment and treatment of her memory issues and zoning out episodes (described by her family doctor as brief episodes of non-responsiveness). She alleged that the first sexual assault occurred at her first appointment. She was unsure about the timing of second sexual assault. At the first appointment, she alleged that she was asked to undress completely. She denied being provided a gown. She claimed that she was either completely naked or only provided with a small covering the size of a face cloth. In addition, she alleged that while she lay face-up on the examination table, Dr. Sloka moved her breasts around with his fingertips, as if playing a “shell game” with her breasts. He then instructed her to flip over, so he could examine her back. At a subsequent appointment, Dr. Sloka allegedly repeated a similar examination, only this time she remained clothed from the waist down.

1087Dr. Sloka testified that, at Ms. A.F.’s first appointment, he conducted neurological, cardiac, and respiratory examinations. He also charted “a very limited skin examination to rule out neurocutaneous disease,” but found no evidence of any. The respiratory examination was either a comprehensive one or simply an adjunct to the cardiac examination. He denied touching or manipulating Ms. A.F.’s breasts. He also denied that she was naked or draped with a covering the size of a facecloth. She was gowned. At Ms. A.F.’s seventh appointment, which occurred four years after the first appointment and after examinations were expressly deferred during intervening appointments, Dr. Sloka conducted a “minimal” cardiac examination. A minimal cardiac examination involves the placement of the stethoscope overtop of the patient’s clothing when listening to the heart. He denied that she was naked from the waist up. Dr. Sloka also denied touching Ms. A.F.’s breasts at this or any other appointment.

2) The Circumstances of Ms. A.F.’s Referral and A Brief Timeline of Her Treatment History

1088Ms. A.F. had a poor memory of her treatment history, consistent with her general memory issues, which will be discussed in more detail below. She believed she was referred to Dr. Sloka only once, but she was actually referred twice. The referral periods were about three years apart.

1089Ms. A.F. attended two appointments in the first referral period. These appointments occurred on June 17 and October 3, 2011. Her family doctor (Dr. Baxter, who practiced out of the Wilfred Laurier Health Services Department), referred Ms. A.F. to Dr. Sloka on May 25, 2011. Ms. A.F. was 19 years old at the time. Dr. Baxter identified the reason for the referral as follows: “Memory Problems. Feels that this has been a problem for at least 5 yrs. Past hx concussion x2. Has brief episodes of nonresponsiveness. Loses central vision at those times. Last < 1 min. NO problems with h/a or any other neuro deficits. Has completed 1st yr Kinesiology at WLU. MRI. EEG pending.”

1090Nearly three years elapsed before Ms. A.F. obtained a second referral to Dr. Sloka. On July 30, 2014, a doctor from the same university clinic (Dr. Heather Larton) made the referral. Ms. A.F. was 22 years-old at the time. She saw Dr. Sloka six times in that referral period, which transpired over a period of twelve months (an average of an appointment every two months, with the largest gap being about five months). When taken through her referral history in cross-examination, Ms. A.F. allowed for the possibility of gaps between appointments while she awaited test results, perhaps a gap as long as a year, which may have consequently required a new referral. She still did not remember a three-year gap between two distinct referral periods. She also failed to appreciate or remember that the second referral occurred because she was, as Dr. Larton put it, “…requesting a reassessment as she thinks this memory loss is recently worsening.”

3) The Evidence of Ms. A.F.

1091Ms. A.F. was 29 years old when she testified.

1092Ms. A.F.’s evidence cannot properly be assessed without a full appreciation of her admitted memory issues and her exposure to media coverage about Dr. Sloka.

1093Ms. A.F. learned from the news on July 11, 2018, that two women had lodged complains about Dr. Sloka. On that date, various media outlets produced stories about the allegations of these two patients against Dr. Sloka. Her last appointment with Dr. Sloka occurred nearly three years previously. Until then, she did not consider her examinations to have been sexual in nature. She became aware of the “me too” movement which had begun a year previously in 2017 but took no action as that movement gained momentum. She testified, though, that after being exposed to media coverage about Dr. Sloka, the media coverage made long suppressed feelings feel validated.

1094The first article she read came from CTV News. CTV news published the story on July 11, 2018. The story included allegations of “patients being told to completely undress for an exam, patients being inadequately draped during an exam and inappropriate touching of the breast.” The article also indicated that the college had prohibited Dr. Sloka from conducting any further skin examinations. Nakedness, breast touching, and skin examinations constituted the core elements of Ms. A.F.’s complaint, a complaint which she initiated on the very same day she read this article.

1095As noted, Ms. A.F.’s memory issues motivated both referrals to Dr. Sloka. Those memory issues persisted at the time of trial. Ms. A.F. struggled with memory retention, forgetfulness, and focussing. She had trouble remembering what she had just said in a conversation and would sometimes “space out.” She testified that she struggled with remembering declarative memories, events which she could describe, like family gatherings, outings with friends, and school trips. As will be discussed in the forthcoming summary of her allegations, she failed to remember significant aspects of the alleged events and misremembered others.

1096At Dr. Sloka’s suggestion, Ms. A.F. took part in a neurocognitive assessment. In preparation for trial, Ms. A.F. noticed that this assessment was missing from Dr. Sloka’s file. Ms. A.F. wanted the police to see this assessment because she believed it showed that she scored above average in most areas, except for facial recognition. Accordingly, she obtained the report [Exhibit 74 at trial] and provided it to the police. She reviewed the report before testifying. In chief, she testified that some of her memory problems were attributed to ADHD issues and others were more memory related. She summed up her issues as forgetting insignificant things easily. She had developed coping mechanisms to compensate for her issues. Crown counsel did not take her through the report or delve more deeply into her memory issues. In cross-examination, defence counsel delved further into her issues and the contents of the neurocognitive assessment. Ms. A.F.’s cognitive abilities were in the higher range. However, the assessment indicated that she had issues with memory, mental stamina, and attention regulation. Her visual and verbal memory were lower than expected, given her level of cognitive functioning. Both her immediate and long-term memory were implicated. Attention and memory issues inhibited the formation of new memories and their subsequent retrieval. “Especially, deficits were noted in her ability to consolidate and retrieve nonverbal information over time.” After a review of the contents of the neurocognitive assessment during cross-examination, Ms. A.F. agreed with the accuracy of the description of her memory issues. She testified that the report helped her develop coping mechanisms above and beyond ones she had already acquired before commissioning the report.

1097Despite the findings in the neurocognitive assessment, she remained confident about her memories. She testified that, when she describes something, one can “take it to the bank.” Either she remembers something, or she does not. She does not misremember. Accordingly, she remained confident about the allegations she made during her testimony. Ms. A.F.’s inability to properly remember the findings in the neurocognitive assessment and her misremembering of other significant facts suggests strongly that her level of confidence was unwarranted.

1098However, it should also be noted that, despite her attention and memory difficulties, Ms. A.F. obtained a BASc in neuroscience, a master’s in science [neuroscience], and an MBA. At the time of trial, she was a product manager in a tech company. Clearly, the coping mechanisms she adopted proved successful.

1099Nevertheless, in my view, Ms. A.F.’s narration of her time under Dr. Sloka’s care must be viewed through the dual lenses of her exposure to the tainting effect of media coverage and her acknowledged difficulties with the formation and retrieval of memories.

1100I turn now to Ms. A.F.’s evidence about her interactions with Dr. Sloka. I begin with her first appointment.

1101Ms. A.F. had a flawed memory of the layout of Dr. Sloka’s clinic. She believed the office was down the hall from the waiting room. She also believed that the Dr. Sloka’s desk and his examination table were all situated in one large room. When asked in-chief if there was anything separating the desk and examination table, she allowed that there may have been a curtain that provided privacy. Subsequently, still in-chief, she drew a diagram of the office [Exhibit 73], showing the desk and examination table occupying one large room, with no curtain or divider. The diagram also depicted the head of the examination table pointing in the opposite direction than the table depicted in the photographs of Dr. Sloka’s examination room [Exhibit 2]. When questioned in cross-examination about her description of the office layout, her evidence changed: “I don’t know exactly what was between those two [the desk and examination table], if there was a curtain or if it was just an open space [or] if there was a partial wall.” She then agreed that she had no memory of a partial wall or a curtain.

1102Ms. A.F.’s inaccurate testimonial memory of the layout of Dr. Sloka’s office contradicted the memory she recounted to the police. In her statement to the police, she more accurately said that the office was situated in a room that was “attached” to the examination room: they consisted of “two rooms that are kind of attached.” Confronted with this inconsistency, Ms. A.F. disagreed that her testimonial memory differed from her memory at the time of her police statement. Despite the clear wording of her police statement, she testified that she had been referring to “some kind of divider” when speaking to the police. She refused to acknowledge the obvious inconsistency.

1103Subsequently in cross-examination, defence counsel presented photographs of Dr. Sloka’s office and examination room [from Exhibit 2]. When asked if the photographs caused her to reassess the accuracy of her testimony, she remained defiant and provided an inaccurate gloss of her previous evidence:

No. I think that the fact that there is a wall there – as I mentioned earlier, I was not sure if something was there but I knew the two rooms were adjoined and the only other disparity is that bed is flipped the other way, which again I had mentioned that I was fairly certain that my head was to that direction but it wasn’t impossible that it was flipped the other way.

1104In her examination in-chief, Ms. A.F. provided a very cursory description of the initial consultation in Dr. Sloka’s office. She testified he appeared very knowledgeable and odd. She recalled him saying that he wanted to do a thorough examination of her skin to look for moles that might in turn be indicative of something affecting her thoughts. She agreed to the examination. She had no problem with it. In cross-examination she agreed that Dr. Sloka obtained her medical history before proposing any examinations. She did not specifically recall doing memory/cognitive tests during this initial consultation but agreed that some testing occurred. She confirmed that there was some discussion about a proposed examination, but she could not remember everything that was said. She agreed that it was possible that Dr. Sloka said he wanted to see if there existed a connection between her physical condition and her symptoms. It was also possible that he said he wanted to do basic neurological tests. She could not discount the possibility he also asked to listen to her heart – she could not remember. The only thing she could remember with any certainty was the proposal of a skin examination, which she had no problem with. As for the rationale behind the skin examination, she agreed to the possibility that Dr. Sloka said that markings on skin may be evidence of some neurological conditions – that sounded familiar. She had a general awareness of that link from her own education. Ms. A.F. had several birthmarks and moles on her body. Without distinguishing between birthmarks and moles, she stated, “… I have a couple on my back, I have a couple at the top of my stomach, I have one at the very top of my pelvic area and I think that’s it.” She was not sure if Dr. Sloka specifically mentioned moles, or she just assumed an interest in moles. She could only remember that he was looking for “something” on her skin.

1105Ms. A.F. testified that, after their discussion, Dr. Sloka asked her to remove all her clothing for the examination. She did not remember any discussion about any draping or gown. Dr. Sloka either gave her nothing or a very very small towel or paper – she was not sure which. Dr. Sloka then departed the room to allow her to remove her clothing in privacy.

1106At some juncture, Dr. Sloka returned. Ms. A.F. testified that she felt extremely exposed and uncomfortable. However, she did not know whether she was sitting on the examination able or laying down when Dr. Sloka re-entered the room.

1107In cross-examination, Ms. A.F. agreed that her level of exposure was a very significant detail. Being naked or almost naked as a doctor enters the room would be extremely memorable. However, she had no memory of whether she possessed any covering at all. Defence counsel subsequently asked whether she had memories of trying to cover herself. After a noticeable pause, Ms. A.F. dramatically expressed an epiphany, stating,

Oh, I remember having to decide which part is more – like if – yea, so, I might’ve had a towel, like a very small towel because I vaguely, now that you’re talking about it. It does feel familiar to be questioning which part of me was more important because there was not enough to cover my breasts and pelvic area.

1108Defence counsel then pressed her about this sudden epiphany, “So – so tell me about the towel.” Ms. A.F. then retreated: “I can’t say for certain that that happened, but it feels familiar that thought process.” She went on to repeat that, towel or no towel, she felt very exposed.

1109Ms. A.F.’s evidence regarding her hypothetical towel/paper evolved over time. In her statement to the police, she repeatedly stated that she may have been given a papery sheet that was only capable of covering the bottom half of her body. During her examination in-chief, as already noted, she described it as a “very very” small towel or paper. She ultimately testified that she described this hypothetical draping as a “towel,” because she envisioned it as being no more than the size of a facecloth – assuming it even existed, which she did not know. I am still baffled that such an obviously intelligent woman would ever purport to describe the size of a hypothetical object which she conceded she could not remember and may not even have existed. Be that as it may, she committed to describing this hypothetical draping as being the size of a facecloth. She then absurdly disagreed that this description differed from what she told the police.

1110Defence counsel also explored Ms. A.F.’s inability to remember whether she was sitting or laying down as Dr. Sloka re-entered the office. She agreed that, if she was naked or barely covered, she would have been very uncomfortable upon Dr. Sloka’s re-entry. That discomfort would be memorable. Yet, she had no memory of whether she was sitting or laying down as he re-entered. However, Ms. A.F. maintained that the appointment at large was memorable, even if she did not possess a play-by-play memory of it.

1111In Ms. A.F.’s narrative, the examination began and ended with the skin examination. Ms. A.F. laid down on the examination table for the skin examination, face up. She described Dr. Sloka picking up limbs and body parts so that he could see every inch of her body. She believed he examined her arms first, then her chest. She described him moving her breasts around to look in “every nook and cranny.” He moved one breast at a time. She demonstrated, placing the fingertips of both hands on one notional breast and moving her hands in various directions as if playing a shell game. She had thought her head was closest to the hallway door and her feet closest to the window, which would have placed Dr. Sloka on her left side. After a review of the photographs in Exhibit 2, she conceded she may have been wrong about her body positioning. Despite her alleged state of nakedness, Ms. A.F. alleged that Dr. Sloka asked if she wanted him to look at (visually inspect) her genital area, which was already exposed, according to her evidence. Ms. A.F. allegedly declined. Dr. Sloka next inspected her legs.

1112Ms. A.F. also testified that she “believed” she turned over onto her stomach to allow the inspection of the backside of her body. When pressed in cross-examination, she testified that she did not have a strong memory of being face down on the examination table. It is clear from her evidence that she inferred that she had flipped over because, “I did not leave thinking it was odd after that appointment that he only looked at the front of me….”

1113According to Ms. A.F.’s evidence, she never stood in the middle of the room for the skin examination.

1114Ms. A.F. also denied the suggestion that Dr. Sloka only performed a “limited skin examination” to inspect only the markings on her body that she had identified for Dr. Sloka.

1115As noted, according to Ms. A.F.’s evidence in-chief, the examination began and ended with the skin examination.

1116In cross-examination, Ms. A.F. could not remember but could not dispute that her skin examination followed a neurological and cardiac examination.

1117Defence counsel took Ms. A.F. through the various steps of Dr. Sloka’s standard neurological examination. Apart from testing her reflexes and some kind of sensation testing, Ms. A.F. could not remember but could not discount the possibility that Dr. Sloka performed the components of his standard neurological examination. Regarding the reflex tests, she stated that “It sounds vaguely familiar that he might have tested reflexes, and it would make sense.” Regarding the sensation testing, Ms. A.F. initially agreed that Dr. Sloka ran a metal object along the bottom of her feet (the Babinsky reflex test). When asked to elaborate, she testified that she believed that Dr. Sloka was testing for sensation, using different sized objects along her skin to determine what contact she could sense. She then denied remembering Dr. Sloka running a metal object along the bottom of her feet but agreed it could have occurred. On her evidence, any neurological examination occurred while she was naked or only shielded by a small draping the size of a facecloth.

1118Ms. A.F. also agreed in cross-examination that Dr. Sloka could have conducted a cardiac examination, where he listened to her heart and lungs with a stethoscope. Again, on her evidence, any cardiac examination occurred while she was naked or only shielded by a small draping the size of a facecloth.

1119Despite taking the position that her level of exposure (nakedness or near nakedness) was extremely alarming and uncomfortable, Ms. A.F. maintained that she did not perceive anything to be medically wrong with her examination. She was not concerned about the prospect of undergoing further examinations at any future appointments.

1120After the skin examination, Dr. Sloka departed to allow her to change in privacy.

1121After Ms. A.F. got dressed, she and Dr. Sloka spoke at Dr. Sloka’s desk. In-chief, Ms. A.F. offered few details about the post-examination discussion. She testified that Dr. Sloka told her that he did not find anything during her examination. Apart from that, she he believed Dr. Sloka ordered an MRI. She could not remember if a follow up appointment was discussed.

1122In cross-examination, Ms. A.F. agreed that Dr. Sloka was more concerned with her long-term memory. She agreed that Dr. Baxter may have already ordered he MRI and that she still needed to participate in the MRI. She agreed that Dr. Sloka wanted to rule out seizures and that he talked about discerning between seizures and attention issues. She agreed that Dr. Sloka told her she had to refrain from driving, which did not bother her because she did not have a car. She agreed that they discussed her vegetarian diet and vitamin B12 deficiency. She did not recall but did not dispute a bloodwork requisition.

1123Ms. A.F. agreed that she attended a follow-up appointment, which occurred after her MRI and EEG. Dr. Sloka’s records reveal that this appointment occurred on October 3, 2011. In cross examination, she agreed that she provided some additional medical history at this appointment. She did not remember but agreed that Dr. Sloka may have ordered more bloodwork. She also agreed that a follow up appointment in March of 2012 had been organized.

1124On November 15, 2011, Dr. Sloka sent her a letter to advise her of he results of her bloodwork. Defence counsel showed her this letter in cross-examination. She did not remember it but did not doubt she received it. The letter mentioned that the bloodwork indicated that her iron level was low. Dr. Sloka suggested a supplement and included a prescription, along with another bloodwork requisition to be completed before the follow up appointment in March.

1125Ms. A.F. did not attend her follow up appointment in March. She could not remember the reason.

1126Ms. A.F. testified that Dr. Sloka examined her on a second occasion. She could not remember the appointment on which this examination occurred, but it did not occur at her final appointment. She did not recall the reason for this visit. She also did not initially recall what if any reason Dr. Sloka provided for the examination. After the Crown refreshed her memory from her police statement, she agreed that Dr. Sloka told her that he wanted to make sure that nothing new had come up. She could not remember what he was looking for. For this examination, Dr. Sloka only asked that she remove the top half of her clothing, which she thought odd, but she did not question him. He did not provide her anything to cover her torso. Dr. Sloka gave her privacy to remove all clothing from the waist up. According to Ms. A.F., Dr. Sloka examined her skin exactly as he did in the first examination, but only on the top half of her body. In-chief, Ms. A.F. claimed that she felt very confused but did not feel confident enough to ask questions. She felt vulnerable and uncomfortable. In cross-examination, she testified that the examination was very professional. She did not feel like she was being groped. When Dr. Sloka finished the examination, he told her to get dressed. They then sat at his desk. She thought Dr. Sloka may have ordered another test.

1127Ms. A.F. believed there was another occasion where she was asked whether she wanted to receive physical examination. This was the “last” time the topic of a physical examination arose. She testified that Dr. Sloka’s use of the word “want” made her question the validity of the request. She thought this request was made at an appointment in which they reviewed MRI results.

1128In cross-examination, defence counsel took Ms. A.F. through the consultation letters of all six appointments in the second referral period.

1129Dr. Sloka charted deferrals of examinations at Ms. A.F.’s request on the first three appointments of this referral period (September 10, 2014, November 21, 2014, and December 19, 2014). Ms. A.F. did not remember but agreed she may have deferred suggested examinations at each of these appointments.

1130At the fifth appointment of this referral period, on July 9, 2015, Dr. Sloka charted the prescription of a new medication, Concerta, to address her memory difficulties. Ms. A.F. remembered being prescribed this medication. However, she did not remember any discussion about the cardiac side effects of Concerta. Dr. Sloka charted that a “minimal cardiac examination was normal today.” He also charted that Ms. A.F. “… did not feel that an EKG was necessary given the lack of cardiac symptoms.” Ms. A.F. did not remember ever having a cardiac examination, whether over top of the clothing or otherwise. Ms. A.F. also did not remember an EKG being suggested, nor did she remember declining one.

4) The Evidence of Dr. Bril

1131Dr. Bril testified that it was not neurologically reasonable for Dr. Sloka to propose or conduct a skin examination, because neurocutaneous disease does not give rise to seizures or memory issues. However, she also participated in a study of Ontario patients in which 13% of NF1 patients were found to have seizures. Regardless, Dr. Bril considered NF1 to be an unlikely explanation for Ms. A.F.’s presentation.

1132Given Dr. Sloka’s denial of other aspects of Ms. A.F.’s allegations, Dr. Bril’s opinion was of limited assistance. She opined that the alleged breast touching was inappropriate and that an offer of a vaginal examination was inappropriate. She also opined that it was inappropriate to require Ms. A.F. to become entirely naked or naked from the waist up. These opinions were not contentious. Dr. Sloka denied examining Ms. A.F. while she was naked, naked from the waist up, or naked with only a facecloth sized draping. He also denied touching or manipulating Ms. A.F.’s breasts in any fashion. He also denied proposing a vaginal examination. Ms. A.F. did not allege that Dr. Sloka proposed a vaginal examination. Rather, she alleged that he proposed a visual inspection, which is odd, because on her evidence her pelvic region was in plain view.

1133Dr. Bril also testified that Dr. Sloka ought to have conducted a neurological examination at the first appointment of the second referral period, because he had not seen her for three years. According to his consultation letter, he discussed an examination with Ms. A.F. and planned, at her request, to conduct it at the next appointment – unmistakenly implying that she deferred one at this appointment. In any event, the decision to delay an examination does not align with the Crown theory that Dr. Sloka systematically looked for opportunities to exploit the bodies of his female patients.

1134Dr. Bril’s evidence regarding the propriety of Dr. Sloka’s cardiac examinations of Ms. A.F. bears mentioning.

1135In her evidence in-chief regarding Ms. A.F.’s very first appointment, she opined that a cardiac examination was reasonable. She came to this conclusion because Ms. A.F. recounted an unexplained fall when skating. She testified that the fall could possibly have arisen from a cardiac arrhythmia, resulting in reduced blood flow. A neurologist would want to know if her heart rate was regular. Accordingly, she testified that it would be reasonable to conduct a cardiac examination.

1136In cross-examination, Dr. Bril provided a contradictory opinion, declaring that a cardiac examination was NOT neurologically reasonable. Confronted with the contradiction, she stated that she could not remember the opinion she provided in-chief. After a read-out of bench notes from her evidence in-chief, Dr. Bril testified,

SO, I think this is debatable obviously because now I don’t think so. Then, I thought it might be. This is an episode [the unexplained fall] that was three years before this current appointment. It hadn’t repeated. She doesn’t have any cardiac symptoms, so, in this instance, I really don’t think a cardiac exam on this day was indicated.

1137Ultimately, somewhat flustered, and apparently embarrassed, Dr. Bril settled on the question of the cardiac examination’s reasonableness as being “debatable.”

5) The Evidence of Dr. Sloka

1138Dr. Sloka had a general memory of Ms. A.F. because her condition was somewhat rare. However, he did not remember specific details about his interactions with Ms. A.F. or her treatment. He relied upon the contents of his consultation letters, notes, and charting for the truth of their contents. He relied upon other documents in Ms. A.F.’s file for context.

1139Dr. Sloka saw Ms. A.F. over two referral periods.

1140Initially, Dr. Baxter referred Ms. A.F. to Dr. Sloka for an assessment of her memory issues, which had persisted for five years.

1141At Ms. A.F.’s first appointment on June 17, 2011, he interviewed Ms. A.F. and obtained her medical history. She described staring spells or disconnects that occurred several times a day. These lasted a few seconds each. Dr. Sloka suspected that these spells might be seizures, but he did not know whether she could be roused from these spells or not. Ms. A.F. also described an incident where she fell without explanation while on skates. He wrote that the absence of an explanation made this fall “very unusual and suspicious.” The fall also resulted in a head injury. Ms. A.F. also informed him of a more recent head injury suffered while snowboarding, which also resulted in a vertebral fracture. She refractured that vertebra in a subsequent fall. Additionally, Ms. A.F. told Dr. Sloka that she had suffered longstanding memory issues, which were so severe that she could not remember significant events in her life. To cope with her poor memory, she wrote everything down.

1142Based upon Ms. A.F.’s history and presentation, Dr. Sloka proposed neurological, cardiac/respiratory, and skin examinations. He proposed a cardiac examination for two reasons. First, he considered the possibility that her unexplained fall three years previously could have been a syncopal event with an underlying cardiac cause. Second, he suspected her spells could be seizures, and his standard approach to the assessment of seizure patients involved a cardiac examination. Dr. Sloka proposed a skin examination because he suspected that her spells could be seizures. He wanted to look for evidence of neurocutaneous disease that might explain her spells. Contrary to Dr. Bril’s opinion, he considered the incidence of neurocutaneous disease in seizure patients to be statistically significant.

1143Dr. Sloka testified that to facilitate the proposed examinations, he would have asked Ms. A.F. to remove all clothing from the waist up and wear a gown, opened to the back. He could not be certain whether he would have asked her to remove clothing from the waist down. As will be discussed further below, he did not remember the location of Ms. A.F.’s birthmarks and, accordingly, could no remember whether removal of clothing from the lower body was required to examine them. In any case, Dr. Sloka denied asking Ms. A.F. to remove her underwear, because, as will be discussed in a moment, he maintained that he only conducted a “very limited” skin examination. Dr. Sloka denied the accusation that he failed to provide Ms. A.F. a gown, or that he only provided her a small sheet or towel. He insisted that Ms. A.F. was gowned, in accordance with his standard practice.

1144Before the physical examination, Dr. Sloka performed a Mini-Mental Status Examination, which involved a cursory assessment of Ms. A.F.’s brain functioning. Ms. A.F. scored a perfect 30/30.

1145Dr. Sloka then conducted his standard neurological examination, which produced normal results.

1146In his consultation letter, Dr. Sloka noted that Ms. A.F.’s cardiac and respiratory examinations were normal. Based on this notation, he was unable to confirm whether he performed a complete respiratory examination or simply the respiratory component of his standard cardiac examination. In any event, the results were normal. Dr. Sloka confirmed that Ms. A.F.’s left breast would be exposed during the cardiac examination. However, he denied performing a breast examination or manipulating Ms. A.F.’s in the manner she described.

1147Dr. Sloka also wrote, “With her consent we did a very limited skin examination to rule out neurocutaneous disease but there was no evidence for this. We explained this carefully to her and she understood the reason for this.” Based on this notation in his consultation letter, Dr. Sloka concluded that he did not complete a comprehensive full-body skin examination. Instead, he inferred that Ms. A.F.’s consent was limited to an examination of areas with known birthmarks. In other words, his notation documented both the boundaries of her consent, and the areas searched. Based on how he documented her consent, the very limited skin examination, and how he “carefully explained” the subject, Dr. Sloka inferred that Ms. A.F. asked a lot of questions. He inferred that he made these detailed notes as a result. Dr. Sloka also testified that when obtaining Ms. A.F.’s history, his standard screening questions would have included asking her about skin abnormalities. Ms. A.F. had testified about moles/birthmarks. He inferred she must have told him about these. Having said all that, Dr. Sloka agreed in-chief and in cross-examination that it was not his standard practice to chart negative skin examination findings. In cross-examination, Dr. Sloka denied that he was looking for moles. He testified that he knows what the term moles means in medical parlance, but he also testified that he did not think his patients necessarily shared the same understanding. Dr. Sloka did not chart the specific areas searched during this “very limited skin examination.” However, he denied asking Ms. A.F. to remove all her clothing and lay naked for a skin examination. This skin examination was limited to Ms. A.F. showing him specific markings. Dr. Sloka similarly denied asking to look at Ms. A.F.’s vaginal area. Again, he insisted that the examination was limited to areas shown to him by Ms. A.F. However, he agreed that, when asking screening questions about stigmata of neurocutaneous disease, he may have asked her about freckling in the armpits and groin, which can be stigmata of neurocutaneous disease.

1148Dr. Sloka agreed that it was a poor choice of words to write in his consultation letter that the limited skin examination was conducted “to rule out” neurocutaneous disease. Repeatedly during the trial, he testified that he knew that the absence of stigmata of neurocutaneous disease could not “rule out” the disease, but the presence of stigmata could provide evidence of it.

1149Dr. Sloka denied that Ms. A.F. lay on the table for the purpose of facilitating his limited skin examination. He denied that he ever performed skin examinations with patients laying on the table.

1150Dr. Sloka testified that following the examination, they sat down and discussed the possibilities. In the Impression portion of his consultation letter, Dr. Sloka opined that Ms. A.F. may have difficulties with remembering long-term events, which may be a memory consolidation issue. He ordered some bloodwork, “to look for general causes of memory disruption, and specifically she tells me she does not generally eat red meat so vitamin B12 could be a factor here.” He also wrote that Ms. A.F.’s zoning out episodes “could likely be seizures.” Her family doctor had already ordered an MRI and EEG. She still needed to complete those tests. If her EEG results were normal, he planned to order a sleep deprived EEG. He instructed her not to drive. Consistent with Ms. A.F.’s testimony, Dr. Sloka wrote, “she hardly drives so she was not very disappointed with this.” He planned to see her in follow-up in two months.

1151Dr. Sloka met Ms. A.F. in follow-up on October 3, 2011. Her MRI and EEG results were normal. Dr. Sloka delved further into Ms. A.F.’s history and in his consultation letter he documented new information provided to him. Amongst the topics, Dr. Sloka documented discussions about her diet. Ms. A.F. became a vegetarian in grade 10. Dr. Sloka wrote that he was unsure whether a nutritional deficiency may be involved. He ordered more bloodwork “to ascertain her general metabolic state….” He planned to see her again in March of 2012.

1152Before the arrival of Ms. A.F.’s follow-up appointment, Dr. Sloka obtained the results of Ms. A.F.’s bloodwork, which revealed that her iron level was low. He wrote a letter to her to inform her of this. He included a prescription for iron supplements. He expressed hope that the iron would help with her energy and concentration. He also included a bloodwork requisition form, so that her iron level could be assessed in the lead-up to her appointment in March.

1153Ms. A.F. did not attend her next scheduled appointment in March of 2012.

1154Dr. Sloka had no further involvement with Ms. A.F. until her second referral period.

1155Dr. Sloka received a second referral for Ms. A.F. on July 30, 2014. The referral again came from the WLU medical centre, albeit from a different doctor. Again, the reason for the referral was “memory loss.” According to the referral letter, Ms. A.F.’s memory loss had been worsening recently.

1156Dr. Sloka met with Ms. A.F. on September 10, 2014. He obtained an updated history. As already noted, the consultation letter from that date implied that Ms. A.F. chose to defer an examination. Dr. Sloka testified that an examination may have been deferred because discussing her issues was more important. Based on the contents of his reporting letter, Ms. A.F.’s difficulties seemed more cognitive than physical. That said, Dr. Sloka had no specific memory of the reason for his failure to conduct any examination. He could only rely upon what he wrote. He wrote, “we will see her in followup at that time to examine her at her request…,” which strongly implies that Ms. A.F. deferred the examination. Dr. Sloka ordered an MRI to look for signs of “demyelination” [evidence of MS]. He also ordered some bloodwork.

1157Dr. Sloka saw Ms. A.F. in follow-up on November 21, 2014. The radiologist had reported that her MRI had indicated that “demyelination and sequella of prior trauma are possibilities.” The radiologist suggest Dr. Sloka consider a “contrast enhanced MRI.” Ms. A.F.’s iron level was also low. Dr. Sloka suggested an iron supplement. He also ordered an “MRI with contrast.” The consultation letter once again confirmed that Dr. Sloka raised the topic of a physical examination. Dr. Sloka wrote that “we have deferred examination and will examine her in followup at her request,” again implying that she had declined an examination at this appointment.

1158On December 19, 2014, Dr. Sloka met Ms. A.F. in follow-up. The MRI produced negative results. Dr. Sloka also documented the performance of the Montreal Cognitive Assessment (MoCA). Ms. A.F. scored 25/30, a score below what Dr. Sloka expected, given Ms. A.F.’s educational achievements. Once again, Dr. Sloka documented that Ms. A.F. deferred examination. This time he was more explicit: “She deferred examination today, but I am going to repeat the MRI next summer and I will see her in followup at that time and repeat the memory test and examine her at her request.”

1159Dr. Sloka next saw Ms. A.F. on May 20, 2015. In his consultation letter, Dr. Sloka noted that she booked this appointment too early, before she had completed her MRI. He noted that it appeared that she had forgotten about the MRI that had been booked in July, commenting, “this again seems unusual for a graduate student.” He planned to see her in two months after the completion of the MRI.

1160On July 9, 2015, Dr. Sloka met Ms. A.F. in follow-up. In his consultation letter, he documented Ms. A.F.’s increasing concern about her long-term memory deficits and attention difficulties. He documented her research on ADHD and her belief that “some aspects” of her symptoms seemed to fit this diagnosis. Dr. Sloka prescribed Concerta and ordered a sleep deprived EEG to assess her brain functioning. Dr. Sloka also documented a “minimal cardiac examination,” which was normal. He also documented Ms. A.F.’s decision to decline an EKG, “given the lack of cardiac symptoms” discerned by Dr. Sloka. Dr. Sloka testified that the “minimal cardiac examination” involved the auscultation of Ms. A.F.’s heart overtop of her clothing. As a result, he inferred that Ms. A.F. likely remained in her street clothes. Examination proposals occurred in the office prior to entering the examination room. However, he could not discount the possibility that she put on a gown in anticipation of a complete cardiac examination and then subsequently limited her consent to a minimal cardiac examination. He had no memory one way or the other. Dr. Sloka planned to see Ms. A.F. in follow-up after her sleep deprived EEG. At this appointment, Dr. Sloka also documented that they discussed her participation in “an evaluation for learning disability.”

1161Dr. Sloka provided a justification for conducting the limited cardiac examination on July 9, 2015. He explained that he was intending on prescribing Concerta to her. Concerta is an ADHD drug. According to Dr. Sloka, the product monograph for Concerta indicates that it has cardiac contraindications. He testified that the CADDRA (a Canadian ADHD organization) published guidelines recommending both a cardiac examination and an EKG [electrocardiogram] before prescribing Concerta. His evidence on this justification was not meaningfully challenged in cross-examination.

1162Dr. Sloka saw Ms. A.F. in follow-up on September 3, 2015. In his consultation letter, he documented that the Concerta medication had improved her concentration. He also discussed increasing her dose. Ms. A.F. advised him that she had obtained funding for a neuropsychiatric evaluation to further investigate her memory difficulties. Dr. Sloka wrote that he planned to see Ms. A.F. in two months time.

1163Ms. A.F. did not return for follow-up. Dr. Sloka’s chart indicates that Ms. A.F. canceled next appointment. She never returned.

1164Dr. Sloka denied conducting any examinations other than the examinations documented on June 17, 2011, and July 9, 2015.

6) Assessment of the Evidence and Analysis

1165Ms. A.F. was an unreliable witness.

1166In my view, Ms. A.F.’s exposure to media coverage about Dr. Sloka and her admitted and demonstrated memory issues raise significant concerns about her reliability. Additionally, her evidence sometimes raised credibility concerns.

1167For several reasons, I think there is ample basis to conclude that Ms. A.F.’s perception and memory have been tainted by media exposure. Regardless of her memory and attention issues, Ms. A.F. is an obviously intelligent person. Despite this, she testified that she accepted that a breast manipulation resembling a shell game constituted a legitimate search for birthmarks. It felt professional. Consequently, she did not realize the inappropriateness of her examination until reading about Dr. Sloka in 2018, seven years after the first examination of concern. In contrast, she also alleged that she had harboured but supressed concerns about the validity of Dr. Sloka’s conduct. In my view, these are contradictory positions which cannot be reconciled. I keep in mind here that Ms. A.F. admittedly had significant trouble with forming and retaining long term memories. For years she conducted herself in a manner consistent with believing that nothing untoward had occurred. The 2017 supposedly began to stir repressed concerns but she took no action. Then, in July of 2018, she read about inappropriate breast touching, nakedness, insufficient draping, and breast touching. These four elements all surfaced in the complaint she initiated the very same day she read about Dr. Sloka in the media. These circumstances lead me to conclude that Ms. A.F.’s memory and perceptions have been tainted by her exposure to news coverage of Dr. Sloka. Her resulting complaint was sparse and frequently problematic, which I will now discuss.

1168I do not share the Crown’s view that Ms. A.F.’s memory or reliability issues were confined to peripheral matters. On the contrary, many of her memory failings concerned facts found at the core of her complaint.

1169I begin with Ms. A.F.’s description of the layout of Dr. Sloka’s office. The layout is integral to any narrative about what occurred. On Ms. A.F.’s evidence, at least initially, Dr. Sloka’s desk and examination table were all part of one open-concept room. She had no memory of anything separating the two areas. Consent discussions and examinations therefore necessarily occurred in the same room. Disrobing necessarily occurred in the same room, too, which meant that, if Dr. Sloka departed to allow her to disrobe in privacy, he must have stepped out into the hospital hallway – which is nonsense. She also appeared willing to insert a memory of a curtain or partial wall, despite admittedly having no current recollection of those things. More troublingly, she refused to admit that she provided a patently different description of the layout to the police, one which, ironically, more accurately resembled the true layout of Dr. Sloka’s office. Thus, in addition to impugning her reliability, she impugned her credibility.

1170Ms. A.F.’s evidence regarding her draping, or lack thereof, causes me significant concern, for several reasons. First, I am concerned about her inability to remember whether she was naked or provided with a small towel. Given her evidence about her state of discomfort, I find it highly unlikely that she would not remember if she was sitting or laying down as Dr. Sloka re-entered the room. Additionally, she acknowledged the possibility that she participated in neurological, respiratory, and cardiac examinations before any alleged skin examination, but could not remember whether these things occurred, despite the admittedly memorable and inherent discomfort that would arise from enduring those examinations while naked. Dr. Sloka charted these examinations. I accept that they occurred. I find it highly unlikely that she was naked, given her inability to remember these examinations. Ms. A.F.’s ever-shrinking description of a towel that may or may not have existed also causes concern. Her refusal to acknowledge inconsistencies in her description of the size of this possibly non-existent towel harms her credibility. Her sudden and obviously contrived epiphany about having to choose between covering her torso and her pelvic region also impairs her credibility. The fact that she would speak extensively about the dimensions of a draping that she admittedly could not recall even existed raises more than reliability concerns.

1171Importantly, Ms. A.F.’s narrative involves a description of an examination that began and ended with a skin examination. As noted, her description of the skin examination touches all the salient features of the news article she read. It does not, however, disclose a neurological, cardiac, and respiratory examination. It does not reveal a full appreciation of the diagnostic goals of the appointment and the relevant examinations conducted to achieve those goals, even though Dr. Sloka contemporaneously charted those examinations and, with respect to the skin examination, charted the fact that he carefully discussed it with her. Given the contemporaneity of the charting and given the overall investigative approach revealed in Dr. Sloka’s chart, I find it highly unlikely that Dr. Sloka fabricated the neurological, cardiac, and respiratory examinations. He clearly did not fabricate the follow-up testing he ordered. Consequently, despite her obvious intelligence and related education, Ms. A.F. failed to appreciate and remember the full scope of her examinations and their purpose. Instead, her memory and perceptions mirrored precisely what she read in the media. I come to the inescapable conclusion that her perceptions and memory have been tainted.

1172Given Ms. A.F.’s reliability and credibility concerns, I reject her evidence about her first examination.

1173Ms. A.F.’s description of her second examination was sparse and devoid of sufficient context. Keeping in mind that she did not remember that she saw Dr. Sloka’ over two referral periods, not one, she did not know in which referral period this examination occurred. She connected it to a discussion of MRIs, but she reviewed multiple MRIs with Dr. Sloka. She was unable to provide any other context or situate this examination in the timeline of her care. When describing the examination, she simply provided a simplistic gloss. Effectively, she said it was the same as the first, but for the fact that she did not remove her clothing from the waist down. Interestingly, the degree to which she disrobed is consistent with what would be necessary for a complete cardiac examination. To my mind, it is entirely conceivable that she prepared for a complete cardiac examination but only ultimately consented to a minimal one. In any event, given her overall reliability and credibility concerns, coupled with the sparseness of her evidence regarding this alleged examination, I reject her evidence about it.

1174The Crown relies upon similar act evidence to support Ms. A.F.’s credibility. As noted in the section of this judgement devoted to the similar act evidence application, I have admitted cross-count similar act evidence on the question of Dr. Sloka’s sexual purpose (motive) which is in turn relevant to the sexual nature of any activity, and incidentally relevant to whether any alleged activity occurred or occurred in the manner in which Ms. A.F. described it. As will be discussed in a moment, Dr. Sloka has provided an explanation for the examinations he proposed and conducted. I accept that he sincerely believed in the medical propriety of the examinations proposed and conducted. I further accept that he performed them in accordance with his training. He has therefore rebutted the inference made available by the cross-count similar act evidence.

1175The Crown also relies upon three discrete cross-count similarities, which I will now address.

1176First, the Crown alleges that Ms. A.F. belongs to a constituency of patients who alleged that Dr. Sloka informed them that he wished to search for moles. There are two problems with this submission. First, Ms. A.F. was not sure whether Dr. Sloka used that term, or she just assumed he did. Common sense and human experience dictate that many people do not draw much of a distinction between moles and some other skin markings, like birthmarks. Judging from her evidence, Ms. A.F. appears to be one of those people. Second, issue identification is a problem. What does the use of this term prove? Dr. Sloka acknowledged a limited examination of her skin in search of markings relevant to neurocutaneous disease. Ms. A.F. agreed that Dr. Sloka informed her that the search was relevant to an investigation of her issues. Assuming any similarity, I do not think it proves anything of material importance.

1177Second, the Crown alleges that Ms. A.F. belongs to a constituency of patients who disclosed before April 30, 2019 [the date of the CPSO ruling and resulting media publication about it] that Dr. Sloka performed a skin examination while they were naked. The Crown argues that, prior to April 30, 2019, the media did not directly tie skin examinations to nudity. Accordingly, the Crown argues that Ms. A.F.’s evidence was not tainted by media coverage of Dr. Sloka. I agree with the defence that the divide between allegations made before and after April 30, 2019, is a speciously drawn divide. Ms. A.F. read about patients being asked to undress completely [being asked to get naked], she read about inadequate draping, she read about inappropriate breast touching, and she read that Dr. Sloka was banned from conducting further skin examinations. Any reasonable person reading the CTV article read by Ms. A.F. could connect the dots and conclude that patients had complained of naked skin examinations. As it happens, Ms. A.F. alleged a skin examination that occurred while she was naked or inappropriately draped and which included breast touching. Her narrative incorporated every element of the allegations she read. As already discussed, the evidence compellingly indicates that Ms. A.F.’s memory and perceptions have been tainted by media exposure. The Crown has not rebutted the substantial likelihood of tainting. This cross-count similarity lacks probative value.

1178The third alleged similarity is a close cousin to the second. The Crown argues that Ms. A.F. belongs to a constituency of patients who allege that they were “naked or in a state of undress” during examinations. I repeat here that the Crown has failed to rebut the substantial likelihood of tainting.

1179I turn now to Dr. Bril’s evidence.

1180Given Dr. Bril’s flip flopping, I place no reliance upon her opinion regarding the cardiac examinations.

1181I also place little reliance upon Dr. Bril’s evidence concerning the reasonableness of a skin examination. While Dr. Bril testified that patients with neurocutaneous disease very, very infrequently have seizures, this evidence is undermined by her evidence in cross-examination, where she conceded that in a clinical study she conducted, 13% of the NF1 patients in that study also had seizures. I do not consider 13% to be very rare – neither did Dr. Sloka. Similarly, I do not think it unreasonable for Dr. Sloka to have considered as statistically significant an incidence of somewhere between 1:125 and 1:250 of neurofibromatosis in epilepsy patients. He derived these statistics from the Ferner book, which Dr. Bril considered authoritative. For her part, Dr. Bril relied upon anecdotal input from colleagues and arrived at a similar number, something less than 1:100. Reasonable people can disagree about whether that rate of occurrence warrants further exploration.

1182Dr. Bril criticized Dr. Sloka’s failure to conduct a neurological examination at the outset of the second referral period. The records reveal that Ms. A.F. repeatedly deferred examination. Throughout Dr. Bril’s evidence, she stressed that patient consent is a fundamental precondition to examination. That notion was absent from her critique. Equally important, Dr. Sloka’s failure to conduct a physical examination is hardly consistent with the Crown theory that Dr. Sloka persistently looked for opportunities to gain access to his female patient’s bodies.

1183I now come to an assessment of Dr. Sloka’s evidence. In my view, Dr. Sloka provided a cogent explanation of his approach to Ms. A.F.’s care, which was not meaningfully undermined in cross-examination or by any other evidence, including the cross-count similar act evidence.

1184Dr. Sloka’s explanation for the examinations conducted at the first appointment was logical and rational. He articulated a reasoned basis for conducting the cardiac and limited skin examinations. I accepted that he honestly believed in a statistically significant incidence of neurocutaneous disease in seizure patients. I accept that he believed a skin examination would provide meaningful evidence about the presence or absence of stigmata of neurocutaneous disease that had the potential to suggest the presence of neurocutaneous disease. He therefore has rebutted the probative force of the cross-count similar act evidence. His willingness to report this limited skin examination in his consultation letter supports the sincerity of his belief. Given what he contemporaneously charted, I accept that he only conducted a limited skin examination, in accordance with the limited consent provided by Ms. A.F. He did so for what he believed to be a valid medical purpose.

1185I further accept Dr. Sloka’s evidence regarding his motivation for conducting a limited cardiac examination on July 9, 2015. He therefore has rebutted the probative force of the cross-count similar act evidence. Dr. Sloka relied upon both the product monograph and CADDRA guidelines as a justification for a cardiac examination. His evidence regarding his justification was not meaningfully challenged. According to Dr. Sloka, the CADDRA guidelines also recommended an EKG. Coincidentally, Dr. Sloka charted the recommendation of an EKG and Ms. A.F.’s refusal to participate in one. In my view, the evidence compellingly supports Dr. Sloka’s contention of a valid medical motive for conducting a cardiac examination on July 9th. Given Dr. Sloka’s charted and uncontradicted acquiescence to repeated examination deferrals by Ms. A.F., I think it highly implausible that he performed any examination other than the minimal cardiac examination charted on July 9th. I accept Dr. Sloka’s denial of a skin examination involving the exposure of Ms. A.F.’s torso and the touching of her breasts.

1186I accept that Dr. Sloka conducted the examinations which he documented. I accept that he did so for a what he believed to be a valid medical purpose, and that he did so in accordance with his standard protocols. I come to these conclusions, having considered the cross-count similar act evidence, Ms. A.F.’s evidence (which I have rejected), and Dr. Bril’s evidence (which carries little probative force, as I have already discussed). I have also come to these conclusions despite the Crown’s criticisms of Dr. Sloka’s evidence, which I will now discuss.

1187The Crown alleges that Dr. Sloka deviated from his standard of practice in four ways. Four deviations are alleged. As a result, the Crown argues that Dr. Sloka cannot rely upon his standard practices. I disagree.

1188First, the Crown argues that Dr. Sloka failed to document his standard screening questions about stigmata of neurocutaneous disease in the history portion of the June 17, 2011, consultation letter (for the first appointment). It is true that Dr. Sloka failed to document his screening questions, but that is of no moment, because Dr. Sloka charted a careful discussion about the relevance of a skin examination to neurocutaneous disease, concluding, “and she understood the reason for this.” Meanwhile, Ms. A.F. testified that she did in fact have birthmarks or moles on her body (drawing no distinction between the two when giving this evidence). Only one inference follows: there was a discussion of skin markings and their relationship to neurocutaneous disease.

1189The Crown also argues that Dr. Sloka deviated from his standard practice in two other related ways: he documented Ms. A.F.’s consent to a skin examination, and he documented a negative finding for that skin examination. The evidence reveals an obvious explanation. Dr. Sloka charted the limitations of Ms. A.F.’s consent. When questioned in cross-examination, he testified that it was standard practice to document occasions when a patient provided only limited consent; for example, when a patient only consented to a minimal cardiac examination. For that same reason, he also charted a limited skin examination. The charting of the skin examination and its results was inextricably tied to the topic of Ms. A.F.’s limited consent, a thing which Dr. Sloka habitually charted.

1190The last deviation from standard practice relied upon by the Crown is Dr. Sloka’s failure to conduct a neurological examination at the first appointment of the second referral period. As already noted, the wording of Dr. Sloka’s consultation letter strongly supports the conclusion that Ms. A.F. deferred that examination, just as she did at the next two appointments.

1191The Crown also argues that Dr. Sloka repeatedly speculated. They provide six examples. I disagree. Dr. Sloka readily admitted virtually no memory of his dealings with Ms. A.F. He relied upon the content of his consultation letters for the truth of their contents. From these consultation letters, he drew inferences which were informed by his education, training, and experience. I saw no speculation. I will now address each alleged incident of speculation.

1192The Crown suggests Dr. Sloka gave inconsistent evidence on whether he conducted a complete respiratory examination or simply one as an adjunct to a cardiac examination. Dr. Sloka made it clear he did not know, though he charted them separately, suggesting a complete respiratory examination. Nevertheless, he did not know. He simply noted that the history revealed no history of respiratory symptoms (other than allergies) and thus no reason for a comprehensive respiratory examination. I saw no speculation or inconsistency.

1193The Crown argues that, in the absence of any documentation, Dr. Sloka speculated when testifying that Ms. A.F. told him about birthmarks. I disagree. Dr. Sloka inferred that she told him about birthmarks. By the time he testified, Ms. A.F. had already testified to having some. He inferred that he conducted a limited skin examination to look at birthmarks, because, otherwise, there would be no reason to do the documented examination.

1194The Crown also contends that Dr. Sloka speculated when testifying about the words used when inquiring about stigmata of neurocutaneous disease. Dr. Sloka testified that he probably asked Ms. A.F. if she had any birthmarks, brown patches, or white patches. The Crown noted that Dr. Sloka testified that he changed his wording over time and that early in his practice he may have used the term moles when attempting to explain what he was looking for. This is a trifling point. Dr. Sloka did not profess to know the precise wording used. He repeatedly provided evidence about the type of markings about which he was concerned. The relevant types of markings were not a material issue in this trial. Dr. Bril testified about the types of markings relevant to neurocutaneous disease. Dr. Sloka never purported to use an unvarying script. It is obvious that he tried to provide patients with the gist of his interest in layman’s terms. He never suggested otherwise, nor did any patient in this trial.

1195The Crown also argues that Dr. Sloka speculated when testifying that he did not “think” that he proposed a full skin examination to look for neurocutaneous disease. However, Dr. Sloka testified that he came to this conclusion based upon the wording of his consultation report, which documented only a limited skin examination. He never professed to possess an actual memory of what he proposed. In my view, Dr. Sloka drew an inference from the available admissible evidence. He did not speculate. Also, he did not fully discount the possibility that he proposed a full skin examination but only obtained limited consent.

1196The Crown submits that Dr. Sloka speculated when testifying that he prescribed iron supplements because Ms. A.F.’ was “probably anemic.” Lab results for this visit can be found in exhibit 71A. Ms. A.F. had low iron. These lab results were faxed from Dr. Sloka’s to Dr. Baxter’s office on May 27, 2011, two days after the initial referral. Dr. Sloka thus had these results before Ms. A.F.’s first appointment.

1197Lastly, the Crown argues that Dr. Sloka guessed when testifying that Ms. A.F. must have asked a lot of questions about her skin examination. I disagree. Dr. Sloka did not guess. He drew a logical inference. He had charted, “With her consent we did a very limited skin examination to rule out evidence of neurocutaneous disease but there was no evidence for this. We explained this carefully to her and she understood the reason for this.” Dr. Sloka testified that “based on how I recorded this, she asked lots of questions about the reasoning for this [the skin examination] and I was very careful and how I gained consent explaining lots of things to her. So, it must have just rolled into how I described the consent.” Dr. Sloka’s inference was completely logical and well grounded.

1198The Crown also argues that Dr. Sloka’s sexual motive is betrayed by the fact that he informed Ms. A.F.’s family doctor that he conducted the skin examination to “…rule out neurocutaneous disease….” According to the Crown argument, Dr. Sloka overstated the utility of a skin examination to hide his true sexual intent. Respectfully, that is an enormous stretch. Dr. Sloka’s audience was a medical professional. According to Dr. Bril, doctors are trained in medical school to do skin examinations in search of manifestations of various diseases. According to Dr. Bril, a family doctor is at the hub of a patient’s circle of care. Other doctors and specialists report findings to the family doctor for the purpose of enabling the family doctor to further guide the patient’s care. And according to Dr. Bril, family doctors are better suited to conduct skin examinations than neurologists. Collectively, this evidence strongly supports the inference that Dr. Sloka had every reason to believe he was speaking to an educated audience who would understand the skin manifestations of neurocutaneous disease. Dr. Sloka admittedly used a poor choice of words in his consultation letter. Like Dr. Bril, he was prone to malapropisms and occasional lapses in clarity during his testimony. They were both poor communicators. It is a stretch to say that Dr. Sloka’s poor word choice proves an intent to hide the sexual nature of his examination.

1199The Crown also contends that Dr. Sloka demonstrated a “particular interest” in Ms. A.F. by sending her a letter between appointments to advise her that her test results showed that her iron level was low. This letter was not sent to Ms. A.F.’s family doctor, which the Crown argues is suspicious. As noted earlier, Dr. Sloka’s had previously sent bloodwork to Dr. Baxter which indicated Ms. A.F.’s iron was low. Ms. A.F. then did more bloodwork at Dr. Sloka’s direction. He prescribed iron, sent her a requisition for more bloodwork, and planned to address Ms. A.F.’s iron levels at the next appointment. That is what he documented in the letter to Ms. A.F. Dr. Sloka testified that he would have documented his discussions about Ms. A.F.’s iron levels in his next consultation letter. Unfortunately, Ms. A.F. never showed up for the follow-up consultation; so, no consultation letter was ever written. I do not see Dr. Sloka showing a “particular interest.” I see Dr. Sloka doing his job.

1200In sum, I see no merit in the critiques levied by the Crown against the evidence of Dr. Sloka.

1201I accept Dr. Sloka’s assertion that he examined Ms. A.F. for what he believed to be medically valid purposes. I accept that he conducted the examinations in accordance with his training. Where he documented limited consent and correspondingly limited examinations, I accept he did so.

1202I reject Ms. A.F.’s description of her examinations.

1203I have no reason to believe that Dr. Sloka performed any examinations for anything other than a medically valid purpose and in a medically appropriate manner. Having considered the entirety of the evidence, I see no basis for concluding that the examinations constituted sexual activity. Having considered the entirety of the evidence, I conclude that the Ms. A.F.’s examinations were medial not sexual in nature. I also conclude that Ms. A.F. consented to what she believed to be medical examinations. I have no basis to conclude that she did not consent to the examinations documented by Dr. Sloka.

1204Dr. Sloka must be acquitted on this count.

vi. D.H. (Count 2)

1) A Summary of Ms. D.H.’s Complaint and Dr. Sloka’s Response to It

1205Ms. D.H. alleged that Dr. Sloka directed her to strip naked and to allow him to search her body for signs of illicit intravenous drug use. During the search, Dr. Sloka allegedly looked between her toes then pulled apart the folds of her labia to look for needle marks. All this allegedly occurred after an ER doctor referred Ms. D.H. to Dr. Sloka to assess whether Ms. D.H. suffered a seizure or took too many Ativan pills to manage her stress.

1206Dr. Sloka denied any kind of search for needle marks. He testified that he only performed a neurological examination. He also maintained that Ms. D.H. was properly gowned for her examination.

2) The Circumstances of Ms. D.H.’s Referral and Her Treatment History

1207Ms. D.H. attended the Grand River Hospital ER on December 14, 2009. She was 36 years old at the time. The ER doctor noted the following in her relevant history: stress and possible sleep deprivation; 3-minute seizure. The doctor ordered blood work, a head CT scan, and an EEG. The results were unremarkable. The doctor wrote to the MTO to suspend Ms. D.H.’s licence and referred Ms. D.H. to Dr. Sloka.

1208Ms. D.H.’s fist appointment with Dr. Sloka occurred on January 5, 2010.

1209Ms. D.H. saw Dr. Sloka five years later, on June 4, 2015, for an assessment of an apparent migraine.

3) The Evidence of Ms. D.H.

1210Ms. D.H. was 48 years old when she testified.

1211Ms. D.H. was a memorably bad witness. I fear that any summary of her evidence will fail to adequately capture her rambling and impressionistic manner of speaking, her tendency to advocate rather than answer questions responsively, her declared inability to distinguish between emotional states and actual memories, her declared inability to distinguish between actual memories and assumptions, and her declared inability to distinguish between actual memories of the events in question and memories from entirely different events. At the risk of making Ms. D.H. appear far more clear, decisive, and concise that she actually was, I will nevertheless attempt to summarize her allegations.

1212In December of 2009, Ms. D.H. was going through a difficult time in her life. Her marriage was unravelling. Her husband was going to move out of the house. Their children were four and eight years old at the time. She was not handling the breakup well. She had been trying to change her husband’s mind. She described it as emotional and challenging time in her life. She had seen her family doctor several times to seek support. Her family doctor prescribed to her Ativan pills to treat her anxiety.

1213On December 14, 2009, she and her husband told the children that he was moving out. It was devastating. She took some Ativan. She believed she took too much. She remembered getting out of the shower and blacking out. She fell and hit her head. She was taken to the emergency room.

1214The ER doctor sent a letter to Ministry of Transportation to suspend her licence. This devastated her further. She needed her licence more than ever now that she was becoming a single mother.

1215To her recollection, her family doctor referred her to Dr. Sloka. However, in cross-examination she was prepared to accept the contention that the ER doctor made the referral.

1216Ms. D.H. did not remember the date of the first appointment, but with the assistance of Dr. Sloka’s consultation letter, agreed that her appointment occurred on January 5, 2010. This is the appointment in which she alleged the sexual assault occurred.

1217Ms. D.H. had trouble remembering some of the finer details of her appointment, including the intake process. For example, she did not remember dealing with Dr. Sloka’s secretary, filling out a patient information sheet, or waiting in the waiting room.

1218She believed that Dr. Sloka’s clinic had an office and an examination room, though she could not remember if the two rooms were connected by a door. Ms. D.H. believed that she entered the examination room first. When the Crown showed Ms. D.H. a photograph from Exhibit 2 which depicted the examination room, Ms. D.H. recognized it as the room she entered at the outset of the appointment.

1219While Ms. D.H. initially testified in-chief that the consultation began in Dr. Sloka’s examination room, she expressed some uncertainty before the end of her examination in chief.

1220In cross-examination, defence counsel took Ms. D.H. to her CPSO statement to explore previous assertions that the appointment began in the examination room. In her CPSO, Ms. D.H. told investigators with certainty that her consultation began in Dr. Sloka’s examination room. She also told investigators that there was no discussion with Dr. Sloka before her entry into the examination room. According to her statement, she and Dr. Sloka went straight into the examination room and then she immediately had to undress. She went on to tell investigators that she did not know what was happening or why. After a review of this portion of her CPSO statement, Ms. D.H. testified that a lot of memories had since come back. She also testified that she was having trouble distinguishing between memories and assumptions. She added that the more she talks and thinks about her appointments, the more she has different memories.

1221Throughout a prolonged series of questions, defence counsel repeatedly attempted to get Ms. D.H. to acknowledge that the consultation began in Dr. Sloka’s office, where Dr. Sloka took her history and proposed examinations. Contrary to what she told CPSO investigators and her testimony in-chief, Ms. D.H. repeatedly took the position that she could not remember the room in which the consultation began. She purportedly remembered the discussions, not their locale. In the process, Ms. D.H.’s answers were rambling, confusing, at times unresponsive, and at times argumentative. She appeared to recognize the improbability that her consultation began in the examination room. She appeared to recognize that her account to the CPSO of a near immediate disrobing in the examination room made little sense. In an apparent attempt to explain the evolution of her evidence, she spoke of herself as having an auditory memory. She could hear events in her head, but other details escaped her. Also, she could not retain information by reading it. She also blamed her poor memory on the passage of time, the relative unimportance of the appointment when compared to her life circumstances at the time, and her unfailing trust in Dr. Sloka at the time. Ultimately, she argued that she could not remember certain things because “that’s not how my memory works.” While Ms. D.H. maintained that some things that she told the CPSO investigators were no longer facts she felt confident in asserting – because they were based upon assumptions – she nevertheless ultimately agreed that she had provided CPSO investigators with her best recollection at the time of giving her statement.

1222Wherever the appointment began, Ms. D.H. acknowledged, both in-chief and in cross-examination, that she explained her personal circumstances and history in detail with Dr. Sloka. She agreed that all the history recorded in Dr. Sloka’s consultation letter was accurate. The details of her history included a summary of her marital breakdown and her resulting stress, loss of sleep, and loss of appetite. The history also mentioned her being on an Ativan prescription and her consumption of 10 mg of Ativan on the day her husband told her that he was moving out. Ms. D.H. also testified that Dr. Sloka asked whether she was using street drugs. She denied using street drugs and denied being an IV drug user. She remembered Dr. Sloka being very kind. She also remembered feeling listened to and heard. Ms. D.H. also testified Dr. Sloka told her that he needed to conduct an examination to ensure that she had not experienced a seizure. He allegedly spoke of a mole or a rash that he had to look for, though she could not remember if he mentioned this before the examination or during it. She also testified that Dr. Sloka told her that he needed to check her body for needle marks to rule out drug abuse. However, she was unclear about whether this comment was made before the commencement of the examination or during it. These recollections stand in contrast to Ms. D.H.’s CPSO statement, in which she alleged that the appointment began in the examination room and that she had to promptly undress upon entering: “Yeah. There was no discussion or anything before – … I – we basically went into the exam room. I had to undress, and I think that’s – one of the things that I remember about it was that. I didn’t know what was happening or why or what was going to happen.”

1223In her evidence in-chief, Ms. D.H. testified that her first memory of the examination involved her laying naked on the examination table as Dr. Sloka examined between her toes for needle marks. She testified that she could not believe she was being checked for needle marks. There was a window directly in front of her. She had lost what she called a “crazy” amount of weight. She remembered being embarrassed about her c-section scar. Ms. D.H. testified that Dr. Sloka was using his fingers to look between her toes, while standing near the end of the bed and explaining that he had to rule out drug abuse. Ms. D.H. had never used intravenous drugs before. She did not think Dr. Sloka ever asked her if she had ever used them. After searching her toes for a few seconds, Dr. Sloka allegedly told her that there were other places that people can hide needle marks when injecting drugs. He then examined her vaginal area.

1224For the vaginal examination, Ms. D.H. raised her legs as if she was having a PAP smear. She described Dr. Sloka as apologetic and shy. She allegedly felt awkward. And she wondered where veins might be located in that area. Ms. D.H. described Dr. Sloka using his fingers from both hands to stretch her labia and search the area closely. He did not digitally penetrate her. The examination of her labia took at least a minute.

1225After the vaginal examination, Dr. Sloka did a visual examination of the rest of her naked body as she lay on the examination bed. He did not look at any part of her back/dorsal side. She described this phase as moving fairly quickly. However, she also stated that Dr. Sloka examined her arms, legs, and torso closely.

1226Regarding the search for needle marks, Ms. D.H. testified that she had am memory of either a magnifying glass or a light attached to Dr. Sloka’s head. However, she added that she could not be sure if Dr. Sloka actually used a magnifying glass or if she just felt like she was under one.

1227Ms. D.H. denied being offended by Dr. Sloka’s alleged search for evidence of intravenous drug use. She stated that she was very grateful that here was a man helping her deal with her problem. She assumed Dr. Sloka was fulfilling an MTO requirement. She testified that the search was upsetting and embarrassing, but it was not offensive. While she felt ashamed that her life had come to this point, she testified that she was feeling grateful. It did not strike her as odd that Dr. Sloka was looking for needle marks in her labia.

1228According to Ms. D.H., at some juncture, Dr. Sloka mentioned a mole or a rash that he was looking for. She could not remember the timing or context in which Dr. Sloka mentioned this. She stated, “

Dr. Sloka and I discussed that he needed to do an examination to determine that I had not had a seizure before he could assist me with getting my licence back. Dr. Sloka explained to me that he had to do a – do an exam to determine that. We had some discussions about a mole or a rash that he was looking for. I tried very hard to recall more details about that.

I remember the discussion about that there was some kind of a mole or I believe it was a mole. It may have been a rash that he was looking for just that it could cause certain types of something. I don’t remember if it was a seizure of cancer or – there’s something in my mind about that. I don’t have further detailed recollection of that.”

1229Having heard her evidence on this point, I come to the conclusion that she was unable to situate the discussion about whatever skin abnormality Dr. Sloka may have been discussing. I cannot discern whether she was alleging that Dr. Sloka proposed a search for skin abnormalities, had simply asked about skin abnormalities during his review of systems, or had raised them in some other context. Her evidence was simply too vague.

1230Ms. D.H. had little understanding of how she came to be naked on the examination table. She knew that knew she started the appointment out with clothes on, but she was not sure what was said before she got naked. She assumed Dr. Sloka told her to get undressed, believing she would not have done so without instruction. However, Ms. D.H. stated that she was not sure what she was assuming as opposed to what she was remembering.

1231The Crown took Ms. D.H. to her CPSO statement, wherein she told investigators that Dr. Sloka told her to get undressed. Ms. D.H. then purportedly remembered Dr. Sloka telling her to get undressed. Her CPSO statement also mentioned Dr. Sloka providing her with a paper sheet. Ms. D.H. testified that she recalled a paper sheet then added that she was not certain about the type of draping he provided, due to the passage of time. She then added,

However, I don’t feel confident to testify that absolutely this was definitively what happened with the sheet. I can tell you how I recall it. I just am – cannot tell you that what I’m recalling is not because that makes – is what makes the most sense to me so that it makes the most sense to me that I had a sheet to cover up. Or hat makes the most sense to me that – that I would be wearing a gown.

She thus appeared to be telling the court that she could not be certain about the instructions given and draping provided, because she could not distinguish between actual memories and her own assessment of what made sense.

1232Defence counsel also took Ms. D.H. to her CPSO statement to explore Ms. D.H.’s evidence about her draping. She told the CPSO that Dr. Sloka provided a small square paper sheet, which was folded on the examination table, ready for her use when she entered the examination room. She added that she was sure the paper was much bigger than she remembered it and that she probably felt like it was a very small sheet that did not adequately cover her because she was feeling so vulnerable at the time. Presented with her CPSO statement, Ms. D.H. stated,

Today my memory is that – today my recollection is that there was a piece of paper that was folded up on the exam table. However, my – as I’ve been trying to say is that is something that I can’t – do not feel confident saying that that wasn’t an assumption or that I’m not thinking of a different doctor’s appointment.

Ultimately, Ms. D.H. was unsure about whether she ever had any type of covering, whether it was a paper sheet, or whether it was a gown. However, she expressed total certainty that she was completely naked when Dr. Sloka examined her.

1233Defence counsel also suggested to Ms. D.H. that Dr. Sloka began the examination by conducting every step of his standard neurological examination. Except for a vague memory of reflex tests possibly being performed at some point, Ms. D.H. was unable to either confirm or deny the suggestion.

1234Ms. D.H. testified that once the examination ended, Dr. Sloka told her to get dressed. He then went back to his office.

1235In the office, Dr. Sloka showed her the results of her CT scan. He also told her that he agreed with her doctor that her episode was likely the result of her excess consumption of Ativan. He told her he would write a letter to the MTO to advise the MTO of his conclusion. He was being very kind. Ms. D.H. remembered feeling grateful and thankful that Dr. Sloka was solving her problem for her. She also remembered feeling embarrassed about her situation.

1236Ms. D.H. did not speak with anyone about her appointment until after she read an article in the newspaper about the investigation of Dr. Sloka. Before that, she had not given her examination much thought. So much was going on in her life at the time of the examination that it was not even a blip on her radar at the time.

1237By the time she testified, Ms. D.H. did not remember the details of the article she read. After refreshing her memory with her CPSO statement, she then remembered that the article mentioned breast fondling and issues of patients not being draped. Nothing she read in the media mentioned vaginal examinations to search for needle marks. Based on her recollection, the allegations in the media caused her to revisit the propriety of her own examination. And it didn’t feel quite right to her. She thought, “Someone tell me that this was medically necessary, then I’m okay with that.” She remembered feeling strange, uncomfortable, and awful after reading the news.

1238After reading the article, Ms. D.H. contacted her aunt, who is a nurse. She wanted her aunt’s opinion before contacting the CPSO. Her aunt raised concerns about the examination.

1239When Ms. D.H. contacted the CPSO, she was told that the CPSO had made a referral to the police.

1240Ms. D.H. also read other media coverage from when Dr. Sloka was arrested and criminally charged.

1241By the time she testified, she had not been exposed to media coverage of Dr. Sloka for a year.

1242In cross-examination, Ms. D.H. confirmed that she contacted the CPSO in July of 2018. She then participated in an interview with CPSO investigators on August 2, 2018. By the time of her interview, Ms. D.H. had taken time to reflect upon her memories of Dr. Sloka. However, during the interview, the investigators asked her questions that she did not anticipate. Ms. D.H. listened to and read her statement in preparation for trial. After reviewing her statement, she realized that there were details in her statement that she no longer felt comfortable asserting as factual.

1243Defence counsel took Ms. D.H. to a second neurological consultation by Dr. Sloka, which occurred on June 4, 2015. That assessment occurred when she was an inpatient at GRH. Dr. Sloka reported that he conducted a full neurological examination on that date. Ms. D.H. testified that she did not remember Dr. Sloka’s consultation, stating that she saw a lot of doctors on that date. She did not have any negative or memorable reaction to seeing Dr. Sloka on that date. At that point in time, she still believed that there was nothing inappropriate about her first visit with Dr. Sloka.

4) The Evidence of Dr. Bril

1244Dr. Bril’s evidence was regarding Ms. D.H. was not controversial. The examinations described by Ms. D.H. were patently inappropriate. Dr. Sloka agreed.

1245Nevertheless, Dr. Bril’s evidence provides some additional information.

1246Like Dr. Sloka, Dr. Bril agreed that Ms. D.H.’s presentation suggested that she suffered from an overdose of Ativan. She took note of Dr. Sloka’s observation that she had no history of seizures, no family history of seizures, a normal CT scan at the hospital, normal bloodwork, and her mental status improved quickly. Also, her husband had confirmed her consumption of a large dose of Ativan. She noted that Dr. Sloka concluded that there were no indications of a seizure. She agreed with that assessment. In her opinion, it was clear early on in Ms. D.H.’s presentation that she had suffered an Ativan overdose. Accordingly, she agreed that it was not neurologically necessary to examine Ms. D.H.’s heart, blood pressure, pulse, breasts, or skin. She also agreed that it was not neurologically reasonable to examine her for needle marks. Only a neurological examination was indicated. In short, she agreed with the approach later claimed by Dr. Sloka in his evidence.

5) The Evidence of Dr. Sloka

1247Dr. Sloka had no independent memory of Ms. D.H. He relied upon his consultation letters for the truth of their contents. He relied upon the rest of Ms. D.H.’s medical file for context.

1248Dr. Sloka denied taking Ms. D.H. directly into his examination room at the outset of her appointment. All appointments began with a consultation in his office.

1249On Dr. Sloka’s evidence, he obtained Ms. D.H.’s history in his office before proposing a neurological examination.

1250Based upon Ms. D.H.’s history and the results of the tests ordered by the ER, Dr. Sloka believed that Ms. D.H. had likely suffered from an Ativan overdose. Accordingly, he believed he only conducted a neurological examination, which is the only examination documented in his consultation letter. In cross-examination, Dr. Sloka observed that 10 mg of Ativan in one day is a lot of medication. Dr. Sloka also noted in cross-examination that the possibility of a seizure did not make sense based upon Ms. D.H.’s history. When taking the history, he asked standard screening questions about whether she or her family had a history of seizures. There was none. Dr. Sloka also noted that Ativan is used to treat seizures, making the prospect of a seizure even less likely.

1251While he recommended a neurological examination, he did not believe her neurological system was implicated in her loss of consciousness. Accordingly, he thought it likely that she wore her street clothes for her neurological examination.

1252Dr. Sloka denied providing Ms. D.H. with a square paper draping for use during her examination. He testified that his office only provided standard-issue gowns for draping – the type depicted in Exhibit 2.

1253Additionally, Dr. Sloka denied requiring Ms. D.H. to remove all her clothing; he denied examining her while she was naked; he denied conducting a skin examination; he denied conducting a cardiac examination; he denied conducting a search for needle marks; he emphatically denied touching or searching Ms. D.H.’s labia; and he denied telling her that he wanted to search her skin for moles or rashes. He also denied using a magnifying glass during his examination, stating that he did not have one.

1254While Dr. Sloka agreed that he likely asked about any history of problems with Ms. D.H.’s joints or skin when taking Ms. D.H.’s history, he maintained his denial of a skin examination. Throughout his examination in-chief and cross-examination, he maintained his position that he had concluded from Ms. D.H.’s history and presentation that she had likely suffered from an overdose.

1255Given Dr. Sloka’s conclusion about the cause of her loss of consciousness, Dr. Sloka was prepared to write to the MTO to recommend that Ms. D.H. receive her licence back.

1256Dr. Sloka saw Ms. D.H. early in his practice. He testified that his letter to the MTO might have been his first. In addition, Dr. Sloka testified that, early in his practice, he sought the advice of his colleague, Dr. Mendonca about the information he ought to provide to the MTO when writing letters of this kind. Dr. Sloka had no prior training on writing these letters.

1257According to Dr. Sloka, Dr. Mendonca advised him to characterize the examinations as including a “general examination.” Dr. Mendonca purportedly told him that the MTO would need this assurance. Accordingly, Dr. Sloka told the MTO that Ms. D.H.’s “neurological and general examinations are normal.” Despite writing this, Dr. Sloka denied conducting a general examination. He made no claim of a general examination in his consultation letter for the January 5th appointment.

6) Assessment of the Evidence and Analysis

1258Ms. D.H.’s evidence was incoherent, disjointed, impressionistic, sometimes argumentative, and inconsistent, characteristics which were much more pronounced during cross-examination.

1259Ms. D.H. also admittedly had trouble distinguishing between actual memories, normative assumptions, and emotional states. She repeatedly acknowledged her repeated difficulty with discerning reality. I do not intend to cite each one. Two examples will suffice here. She told the CPSO that she was unsure of whether the square paper sheet was as small as she remembers it, or if this memory was the result of feeling vulnerable. Similarly, she was unsure if Dr. Sloka wore a magnifying glass on his head or if she just felt like she was under one.

1260Ms. D.H.’s poor memory about her draping is particularly troubling. A central component of her allegation is her claim that she ended up naked on the examination table. Yet, she expressed tremendous difficulty recalling the process by which she became naked. She provided CPSO investigators a description of a small square paper draping, which she herself recognized as implausible. And she proved incapable of explaining how the draping fit into her narrative about becoming naked. I think it highly implausible that she could remember being naked without remembering how that came to be.

1261In giving her CPSO statement, Ms. D.H. informed investigators that the appointment began in the examination room, that there was no discussion preceding Dr. Sloka’s request that she get undressed, and that Dr. Sloka did not explain what was happening, what would happen, or why. By the conclusion of Ms. D.H.’s testimony, she had acknowledged a thorough discussion of her history, which included very trying personal circumstances and the excessive consumption of Ativan on they day she lost consciousness. She described Dr. Sloka as kind. She testified that she felt like Dr. Sloka had listened to her. She felt heard. She also understood that Dr. Sloka wanted to conduct an examination to rule out a seizure. Her testimonial description of her interaction with Dr. Sloka therefore stood in stark contradiction to her CPSO description.

1262Despite, acknowledging that she provided a detailed medical history to Dr. Sloka, Ms. D.H. seemed reluctant to acknowledge that Dr. Sloka took this history in his office. I infer that Ms. D.H. wanted to avoid further contradicting the account she gave to the CPSO, which precluded the possibility of an in-office consultation before entering the examination room.

1263Ms. D.H.’s description of the search for needle marks seems implausible on multiple fronts. There is no suggestion in her medical records of any concern that she used illicit street drugs. She maintained that she did not use them. She also testified that she told Dr. Sloka that she did not use them. Meanwhile, she candidly admitted the overconsumption of prescription Ativan on a very trying day in her life. On Ms. D.H.’s account, Dr. Sloka insisted on a search for signs of intravenous street drug usage despite Ms. D.H.’s denial. This search involved an extremely invasive search of the folds of Ms. D.H.’s labia. Ms. D.H. denied being upset that Dr. Sloka ignored her denial of street drug usage and pressed on with this intrusive search during an extremely emotionally taxing time in her life. I reject as implausible Ms. D.H.’s claim that she would not be offended by Dr. Sloka’s blatant distrust of her and the intrusive examination that followed. Her professed credulity seems entirely implausible, given the nature of the examination conducted and given her original account of Dr. Sloka’s rush to perform it. It seems even more implausible considering Ms. D.H.’s concession that she had no memory of Dr. Sloka checking her arms for needle marks. I recognize that I must consider the dynamics of the doctor patient relationship and Ms. D.H.’s personal circumstances when assessing the credibility and reliability of her evidence about her state of mind at the time of the examination. Having considered the entirety of the circumstances, I simply cannot accept her claim that she was not offended by the alleged search for needle marks. Similarly, I simply cannot accept her claim that she considered the alleged search to be a medically legitimate investigation. It is far more likely that the examination she described never actually occurred.

1264Ms. D.H.’s evidence also discloses that, in July of 2018, she read news of the allegations against Dr. Sloka before ever making any complaint about him. While she could not be certain about which specific news article she read, she testified that she saw the article on her Facebook feed and that it was published by either The Record of CTV. Ms. D.H. agreed that she definitely could have read a CTV news article published on July 11, 2018. That article refers to allegations of patients being told to completely undress for examinations and being inadequately draped for examinations. The article also states that Dr. Sloka “was told not to perform skin examinations.” Ms. D.H. did not think Dr. Sloka had done anything improper until she read news of allegations against him. After reading the article, her perception changed. In my view, there exists a substantial likelihood that Ms. D.H.’s memories and perception have been tainted by her exposure to news about Dr. Sloka.

1265I have allowed the admission cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when performing intimate examinations on patients. However, Ms. D.H.’s evidence is completely unreliable and devoid of credibility. Moreover, as will be discussed momentarily, Dr. Sloka provided compelling evidence that rebuts any potential inference of a sexual purpose. The Crown also relies upon three categories of more granular similarity between the evidence of other complainants and that of Ms. D.H. I will address those alleged similarities next.

1266The Crown relies upon three categories of similar fact evidence to buttress the evidence of Ms. D.H. First, the Crown alleges that Ms. D.H. belongs to a group of patients who allege that Dr. Sloka searched their skin for moles. Second the Crown alleges that Ms. D.H. belongs to a constituency of patients who allege that Dr. Sloka performed a skin examination while they were completely naked. Third, the Crown alleges that Ms. D.H. belongs to a group of patients who closely examined their skin. In my view, the purported similar fact evidence lacks sufficient probative value. I will deal with each in turn.

1267Ms. D.H.’s evidence about any discussion of moles or rashes was too vague to enable any comparison with other patients. She did not go so far as to allege that Dr. Sloka purported to search her skin for moles or rashes. Here, I keep in mind that Dr. Sloka’s standard review of systems involves questions about skin abnormalities. Her vague memory of a mention of moles or rashes is consistent with the possibility that Dr. Sloka inquired about her skin during his review of systems. Also, before Ms. D.H. came forward with her complaint, the media had reported that Dr. Sloka was prohibited from conducting any skin examinations. There thus exists the potential that her memory has been tainted by media exposure. Additionally, Ms. D.H. never went so far as to allege that Dr. Sloka announced that he was searching her skin for moles and rashes. Instead, she testified that Dr. Sloka framed the physical examination as a search for needle marks. While the topic of moles and rashes came up, she was unable to provide a definitive context in which the topic arose. Lastly, the examination she ultimately alleged bore no resemblance to the standard skin examination conducted by Dr. Sloka in search of stigmata of neurocutaneous disease. It was also unlike any examination described by any other patient in this case. In the circumstances, I do not find this category of similar fact evidence to be sufficiently probative.

1268The second category of similar fact evidence involves patients who allege that Dr. Sloka performed skin examinations on them while they were completely naked. Again, the examination described by Ms. D.H. was unlike any alleged by any other patient. On her evidence, this examination primarily entailed a search for needle marks while she lay prone on the examination table. He did not allegedly scan the entire surface of her skin. He allegedly searched between her toes and between the folds of skin in her labia. Additionally, the news reviewed by Ms. D.H. included allegations of nudity, improper draping, and a ban on skin examinations. In my view, the Crown has not rebutted the substantial likelihood that Ms. D.H.’s memory and perceptions have been tainted by her review of news publications about Dr. Sloka.

1269The third category of similar fact evidence overlaps the second category, but is stated more broadly, so as to include a larger group of patients: all patients who allege that Dr. Sloka closely examined their skin. Again, the examination Ms. D.H. described bears no resemblance to the allegation of any other patient. And, again, Ms. D.H. conceded the likely exposure to news articles that mentioned that Dr. Sloka had been prohibited from conducting skin examinations. Media publications had clearly implied that the propriety of Dr. Sloka’s skin examinations was under investigation. The Crown has failed to rebut what I consider to be a substantial likelihood of tainting.

1270I turn now to the evidence of Dr. Bril. As noted, Dr. Bril’s evidence is not controversial. The examination Ms. D.H. alleged was patently inappropriate, if it occurred.

1271Dr. Bril’s evidence provides additional probative value, though. Her evidence supports Dr. Sloka’s contention that, early on, he considered it likely that Ms. D.H. had suffered from an Ativan overdose. Like Dr. Sloka, Dr. Bril did not think any examinations beyond a neurological examination were warranted, because Ms. D.H.’s history and presentation clearly pointed to an Ativan overdose.

1272The Crown challenges the credibility and reliability of Dr. Sloka’s evidence regarding Ms. D.H..

1273The Crown argues that Dr. Sloka’s approach to Ms. D.H. constituted a complete departure from his standard approach to patients who have suffered from a loss of consciousness, dizziness, or a potential seizure. As a result, the Crown asks that I infer that Dr. Sloka performed a cardiac examination and a skin examination in accordance with his standard approach. I find the Crown’s submissions unpersuasive for several reasons.

1274First, although Dr. Sloka’s standard approach to loss of consciousness patients includes a cardiac examination, Dr. Sloka testified that he did not perform a cardiac examination because he suspected an Ativan overdose to be the likely explanation for Ms. D.H.’s loss of consciousness. The Crown did not cross-examine Dr. Sloka on this point at all.

1275Second, Ms. D.H. never alleged that Dr. Sloka performed a cardiac examination. Indeed, she never mentioned the use of a stethoscope. Her silence on this point supports Dr. Sloka’s contention that he did not consider cardiac issues as a plausible explanation for her loss of consciousness, given her specific history.

1276Third, the Crown draws a misplaced comparison between Ms. D.H.’s case and Ms. C.M.’s case in an effort to suggest that Dr. Sloka performed a cardiac examination. The Crown argues that both patients had taken excessive amounts of their medication, but Dr. Sloka only claimed to have conducted a cardiac examination for one of them. Again, this submission ignores the fact that Ms. D.H. never alleged a cardiac examination. Additionally, the Crown never cross-examined Dr. Sloka on his allegedly contradictory approaches towards the two patients. Also, Ms. C.M. presented with a different medical issue arising from the use of a different medication. Ms. C.M. had been taking carbamazepine. Dr. Sloka testified that he was concerned about possible carbamazepine toxicity, which can harm the heart. Dr. Sloka also testified that one of Ms. C.M.’s episodes appeared to him to be consistent with a syncopal event. In his view, the combination of those circumstances warranted a cardiac examination. In short, Ms. C.M.’s clinical situation was entirely different from Ms. D.H.’s. Had the Crown cross-examined Dr. Sloka on the alleged contrast in his approaches to these two patients, I think I can anticipate his likely response.

1277Fourth, Dr. Sloka provided a cogent explanation for his belief that Ms. D.H. had not suffered a seizure. All the available information pointed to a likely overdose.

1278Fifth, while the Crown argues that Ms. D.H.’s evidence about her attire suggests Dr. Sloka conducted cardiac and skin examinations, it does not. Contrary to the Crown’s submission, Ms. D.H. did not claim that she was gowned for her examination. At its highest, her evidence points to the use of an implausibly small piece of square paper or nothing at all. Ms. D.H. had no memory of wearing a gown and no memory of removing it to facilitate either examination. Also, Ms. D.H.’s examination bears no resemblance to Dr. Sloka’s standard skin examination or to the skin examinations alleged by other patients. Lastly, Ms. D.H. never came close to suggesting she received a cardiac examination.

1279Sixth, the Crown argues that Dr. Sloka’s claim that Ms. D.H. likely wore street clothes was entirely without foundation. I disagree. Dr. Sloka provided cogent explanations for his belief. Dr. Sloka testified that Ms. D.H.’s history and presentation did not implicate the nervous system – there were no localized neurological symptoms that required closer inspection in a neurological examination. Additionally, he provided unchallenged testimony that he did not think an examination of Ms. D.H.’s heart was necessary. Also, he provided a logical basis for discounting a seizure as a likely possibility. Based upon the totality of the circumstances as disclosed in Dr. Sloka’s consultation letter and Ms. D.H.’s medical file, Dr. Sloka had a basis for believing that Ms. D.H. likely remained in her street clothes.

1280Seventh, while Dr. Sloka referred in his MTO letter to a “general examination,” he provided an innocent explanation for his use of the term. This explanation stood unchallenged.

1281Eighth, the Crown’s contention that Dr. Sloka strayed from his general philosophy of “thinking broadly” and avoiding a rush to judgement is unfounded and unfair. It is unfair because the Crown never suggested to Dr. Sloka that his approach to Ms. D.H. strayed from his general philosophy. Moreover, while Dr. Sloka testified about thinking about medical problems broadly and about generally avoiding a rush to judgement, he also testified about being guided by the clinical context of each given case. It is unfounded, because Dr. Sloka provided a detailed explanation for why he considered overdose to be the likely explanation for Ms. D.H.’s loss of consciousness. This conclusion pointed away from the need to conduct additional examinations. Dr. Sloka’s contemporaneously written consultation letter chronicles Dr. Sloka’s thought process. The opening line of his impression implies that he believed his conclusion to be obvious and never in doubt: “It sounds like this young lady had taken too much Ativan.” He did not need to see Ms. D.H. in follow up. He did not order additional tests. As Dr. Bril conceded, it would become clear early in the appointment that Ms. D.H. had suffered from an overdose. Accordingly, Dr. Bril agreed with the approach that Dr. Sloka claimed to have taken in Ms. D.H.’s case.

1282Nineth, I did not see the evasiveness that the Crown alleges Dr. Sloka displayed. He consistently maintained his position that Ms. D.H.’s history and presentation pointed to a likely overdose. Dr. Sloka’s concession that he asked screening questions about epilepsy risk factors did not undermine this position; indeed, it supported it. The absence of those risk factors was noted by Dr. Sloka in his consultation letter. He relied upon their absence to support his conclusion that epilepsy was not a plausible consideration, just as he relied upon his knowledge that Ativan suppresses seizures. All available evidence pointed away from seizures.

1283Finally, I disagree with the Crown’s contention that Dr. Sloka attempted to hide interest in Ms. D.H.’s skin by failing to record any answers Ms. D.H. provided to screening questions about her skin. Importantly, the Crown did not make this suggestion to Dr. Sloka in cross-examination. Second, Ms. D.H. did not disclose the existence of any skin abnormalities about which Dr. Sloka might make note. The absence of a notation is equally consistent with the absence of any abnormalities.

1284In my view, the Crown’s exhaustive critiques of Dr. Sloka’s evidence lacked merit.

1285Ms. D.H.’s case appeared to be a simple one. Dr. Sloka provided a logical and well-founded explanation for his approach, based upon the contents of his consultation letters and the entirety of Ms. D.H.’s medical file. I accept Dr. Sloka’s evidence, including his denial of cardiac and skin examinations, his denial of a search for needle marks, his denial of any contact with Ms. D.H.’s labia, and his denial that Ms. D.H. was naked for any portion her examination. I also accept his denial of the suggestion that he provided Ms. D.H. with a small square sheet of paper with which to cover herself.

1286Given the frailties in Ms. D.H.’s evidence, I am unable to conclude that Ms. D.H. received anything other than a standard neurological examination to which she consented. I reject her contention that Dr. Sloka examined her while she was naked, her contention that Dr. Sloka searched for needle marks between her toes and in her labia, and her contention that Dr. Sloka examined her skin. While I cannot be certain about whether Ms. D.H. wore gown or street clothes for her neurological examination, I have no basis for concluding that Dr. Sloka conducted anything other than the standard components of his standard neurological examination. Whether Ms. D.H. was gowned or not, I am satisfied that Ms. D.H. received a medical examination, to which she consented. Having rejected Ms. D.H.’s evidence, I have no basis for concluding that Dr. Sloka engaged in any sexual activity.

1287Dr. Sloka will be acquitted of this count.

vii. T.H. (nee K.) (Count 59)

1) A Summary of Ms. T.H.’s Complaint and Dr. Sloka’s Response to It

1288Ms. T.H. alleged that Dr. Sloka conducted a breast examination when investigating the cause of her loss of consciousness. She also alleged that Dr. Sloka examined a mole between her breasts. She did not recall but did not dispute the possibility that Dr. Sloka may also have looked at a birthmark on her hip. She did not allege, though, that Dr. Sloka conducted a complete skin examination. Ms. T.H. also did not remember or claim that Dr. Sloka performed a cardiac examination.

1289Dr. Sloka testified that he conducted neurological and cardiac examinations to investigate the cause of Ms. T.H.’s loss of consciousness. On his account, any contact with Ms. T.H.’s breast occurred accidentally and incidentally to his cardiac examination. Dr. Sloka agreed that he looked at a birthmark on Ms. T.H.’s hip and that he documented doing so in his consultation letter. He also agreed that he may have observed the mole between Ms. T.H.’s breasts when performing the cardiac examination, but he did not remember doing so.

2) The Circumstances of Ms. T.H.’s Referral

1290On August 30, 2015, Ms. T.H. attended the Guelph General Hospital ER. She had suffered a loss of consciousness accompanied by shaking. She was 24 years old at the time.

1291The ER physician ordered an EEG and head CT scan. The doctor also referred Ms. T.H. to Dr. Sloka.

1292The CT scan was conducted while Ms. T.H. was at the ER. Ms. T.H. subsequently attended for the EEG at the Grand River Hospital on September 28, 2015. The results were normal.

1293Ms. T.H. attended for her first appointment with Dr. Sloka on October 14, 2015. Dr. Sloka ordered more tests at the conclusion of this appointment. He also scheduled a follow-up appointment.

1294Dr. Sloka saw Ms. T.H. in follow-up on November 30, 2015. At the conclusion of this appointment, Dr. Sloka concluded his involvement in Ms. T.H.’s care.

3) The Evidence of Ms. T.H.

1295Ms. T.H. was 31 when she testified.

1296She pointed to only one appointment of concern, which was her first appointment with Dr. Sloka on October 14, 2015.

1297An ER doctor referred her to Dr. Sloka’s clinic. She went to the ER after passing out at a busker festival. Witnesses described her as convulsing on the ground. She had no prior history of seizures.

1298She went to the appointment with her boyfriend, who later became her husband (Ty.H.). He sat in the waiting room throughout the appointment. She met with Dr. Sloka in his office. He inquired about what had transpired at the busker festival. He also inquired about her family history. She had no family history of seizures. He also asked if she had any moles or concerning freckles. He told her that they could be linked to potential causes for seizures, such as epilepsy. Defence counsel suggested to her that Dr. Sloka’s question involved asking about the presence of unusual rashes, birthmarks, or abnormalities. She agreed this was possible. She advised him of a mole between her breasts. She was not sure if she also informed him about a mole on the back of her head, a birthmark on her hip, or freckles on her body – she had no memory of these things. However, she agreed that Dr. Sloka made reference in his consultation letter to the birthmark on her hip. She noticed this reference when reviewing her medical file in preparation for trial. She conceded that she may have told him about this birthmark, even though she did not remember doing so.

1299She recalled Dr. Sloka telling her that he wanted to do an examination. She specifically remembered that wanted to check her reflexes. She could not remember if he informed her of other aspects of the proposed examination. He also wanted to look at the mole on her chest between her breasts. While she recalled that he told her at some point that he wanted to do a breast examination, she could not remember if he told her this in the office. Before being advised of his intentions, she did not know a breast examination would be necessary. She agreed it was possible that Dr. Sloka told her that he wanted to perform a neurological examination to see if her nervous system revealed evidence of a seizure. She also agreed it was possible that Dr. Sloka told her that he wanted to listen to her heart. Additionally, she agreed it was possible that Dr. Sloka asked her to describe the birthmark on her hip. While she may not have been able to recall all the details of the proposed examinations, it was clear to her that the purpose of the examinations was to determine whether her loss of consciousness was caused by a seizure or something else. Ms. T.H. also remembered that Dr. Sloka told her that the examination would involve her putting on a gown. She did not question the propriety of the examination, because he was a doctor.

1300Ms. T.H. and Dr. Sloka went into the examination room. He handed her a gown and asked her to get undressed to her comfort level. He gave her privacy to change. She removed all her clothing except her underwear. Then she put on the gown.

1301She recalled the gown being made of paper. It had a hole in the top for her head. It went down to her knees and had openings at the sides. What she described resembled a paper poncho. While she believed the gown to be a paper disposable gown, she agreed it was possible she wore a gown like the ones depicted in exhibit 2.

1302Once changed, she got on the examination table. Soon after Dr. Sloka came back into the room.

1303In cross-examination, Ms. T.H. acknowledged that her memory of some aspects of the visit, including her examinations, were imperfect. Some details had become lost from her memory. Likewise, her memory of the sequence of the examinations was imperfect. The sequence of the examinations she reported at trial differed from the sequence she described to the police. She initially testified that Dr. Sloka conducted the breast examination first, then examined the mole between her breasts, then checked her reflexes. She was confident about the correctness of this stated sequence. However, she told the police that Dr. Sloka examined the mole between her breasts before conducting the breast examination. Ms. T.H. subsequently agreed to the possibility that Dr. Sloka may have examined the mole during a cardiac examination – though she had no specific memory of a cardiac examination. She also agreed that neurological tests may have occurred earlier, rather than at the end of her examination.

1304In Ms. T.H.’s memory, Dr. Sloka performed the breast examination beneath her gown. She was laying down for this examination. He slipped his hand through the opening at the side of the paper poncho and pressed his fingertips in a circular manner against each breast, one at a time. It felt like other breast examinations she had received. She did not recall him communicating any findings from this breast examination. In cross-examination, she agreed that she could not recall exactly how Dr. Sloka navigated beneath the gown to get to the area of her left breast. She did not have a clear recollection of the mechanics of this breast examination; however, she maintained the contact with her breast was not simply incidental contact occurring during the course of a cardiac examination. Despite defence counsel’s suggestion to the contrary, she rejected the implication that what she remembered as a breast examination was in fact a cardiac examination.

1305According to Ms. T.H., Dr. Sloka asked at some point to see the mole between her breasts. She moved the side of the gown over to expose the mole. She agreed that her breasts may not have been fully exposed as Dr. Sloka looked at the mole. She did not question the appropriateness of showing her mole. He had explained why he needed to see it. She did not recall him communicating any findings from his examination of the mole. In cross-examination, she agreed that it is possible that she pointed out the mole to him while he was conducting a stethoscope (cardiac) examination, and her chest was already exposed.

1306In cross-examination, defence counsel also suggested that Dr. Sloka performed each component of his standard neurological examination, in the standard order. While she had little to no memory of Dr. Sloka performing these various steps, she conceded that it was possible he may have done so. Similarly, while lacking a current recollection, she conceded it was possible that Dr. Sloka used a stethoscope to listen to her back and chest. She conceded that her chest may have been exposed to facilitate Dr. Sloka employing the stethoscope. She conceded that her mole was positioned near the 4th area of auscultation in a standard cardiac examination and would therefore have been exposed during a cardiac examination.

1307Afterwards, Dr. Sloka told her that the examination was over. He left the room to allow her to get dressed. She got dressed and joined him in his office.

1308In the office, they had a further discussion. Ms. T.H. agreed it was possible that Dr. Sloka reported to her that everything was normal. They also talked about next steps. She also agreed it was possible that he told her that neither the birthmark on her hip nor the mole on her chest were symptoms of a neurological disorder. She agreed that he discussed two possible causes of her loss of consciousness: a seizure or fainting episode. Dr. Sloka told her that her episode was likely a simple fainting spell caused by a combination of heat, dehydration, and being on her menstrual cycle. She remembered him telling her that her light-headedness suggested that she had suffered a fainting spell, as did the hot weather and her ability to quickly reorient herself upon awakening. He also told her that he wanted to do more testing to rule out the possibility of a seizure. He ordered an MRI and a Holter monitor, and he asked to see her in follow up once she completed her testing.

1309At the conclusion of the appointment, Ms. T.H. met with her boyfriend in the waiting room. She reviewed with him what had transpired during the appointment, including the alleged breast examination. Her boyfriend questioned the necessity of the breast examination. She agreed it seemed odd and could not explain to him why a breast examination would be a necessary part of a neurological consultation. However, she trusted that a valid reason existed for the examination. In cross-examination, she acknowledged that details of their discussion had faded from her memory. It was hard to be precise about the contents of their discussion. Also, the discussions between them following their discovery of media coverage about Dr. Sloka made it harder for her to be precise about what she and her husband spoke about on the actual day of the appointment. Still, she believed she mentioned a breast examination to her boyfriend on the day of the examination, but she could not recall the wording used. Her recollection was tentative, to the point of telling the court that she “probably” told her boyfriend that Dr. Sloka performed a breast examination.

1310Around the time of the examination, Ms. T.H. also spoke to a friend who was studying neuroscience. She asked her friend about the purpose of a breast examination during a neurological consultation and about the connection between moles and neurological conditions. At the conclusion of that conversation, she and her friend trusted that Dr. Sloka knew best.

1311Ms. T.H. testified that, at her second visit, Dr. Sloka reviewed the results of her tests with her. He told her that in his opinion, she had fainted and not suffered a seizure. Consequently, he supported the return of her license, which had been suspended on the advice of the ER doctor.

1312Ms. T.H. once erroneously believed she attended a total of three appointments with Dr. Sloka. She agreed in cross-examination that she realized her error when reviewing her medical records in preparation for testifying.

1313Ms. T.H. testified that she and her husband did not discuss her examination with each other in the years that passed between her examination and her discovery of the allegations against Dr. Sloka in the news.

1314Ms. T.H. became aware of the investigation into Dr. Sloka about three to four months before her police interview. She gave her police interview on October 16, 2019. She read at least one news article before her police interview. She recalled reading that 4 women had complained of inappropriate conduct. One of the women mentioned a breast examination. She initially decided against coming forward, because she had not felt violated by the examinations in which she participated. She felt that Dr. Sloka had conducted himself in a professional and proper manner.

1315Nevertheless, Ms. T.H. discussed the media article with her husband. The two of them discussed what they remembered from her appointment with Dr. Sloka. They compared and contrasted her experience to the details in the news article. This was the first time the two of them had discussed the appointment since the day of the appointment.

1316Ms. T.H.’s feelings about coming forward changed after reading another article, which was part of a wave of media that came out three to four months after she read the first article. This article came out around the time of Dr. Sloka’s arrest on September 24, 2019. The article reported that the number of complainants had risen to above 30. The sheer number of the complainants caused her to revisit her opinion of her own examination. In the article, police encouraged other victims to come forward. This plea for information played a role in her coming forward. She and her boyfriend talked about it and afterwards she decided to contact the police.

1317Ms. T.H. testified that while she and her husband spoke about her allegations before she gave her police statement, they ceased doing so thereafter. She also testified that she did not reveal to her husband the questions the police had posed to her. She knew that the police wanted to interview her husband about any disclosures she had made to him in the past. She denied discussing her trial evidence with her husband.

4) The Evidence of Ty.H.

1318Ty.H. testified the day after Ms. T.H. testified.

1319Ty.H. testified and confirmed that Ms. T.H. spoke to him about the examinations after the appointment. According to him, she reported that Dr. Sloka explained that he wanted to look at abnormalities on her body. She further told him that Dr. Sloka looked at a growth/mole on the back of her head, a birthmark on her hip, and a mole/growth between her breasts. In other words, he testified that she claimed that Dr. Sloka examined more skin abnormalities than she claimed when testifying. She told him that Dr. Sloka explained that he was looking for abnormalities that could be attributable to the cause of her seizures: “moles or birthmarks or lesions, I suppose.” He also testified that Ms. T.H. told him that Dr. Sloka examined her breasts. She described it as a breast examination where he massaged or pressed in different areas on her breasts. She said she had to untie and release her robe for the examination. She also provided him a demonstration. Neither of them understood the connection between a breast examination and seizures. However, he testified that she considered the examination to be relatively normal. She did not have any concern, neither did he.

1320In cross-examination, Ty.H. agreed that he did not tell the police that Ms. T.H. had told him that Dr. Sloka looked at the birthmark on her hip. He admitted that Ms. T.H. told him about this detail about a week before she testified, after she reviewed her medical records when preparing to testify. She made this revelation well after both had been cautioned to refrain from discussing their evidence.

1321Ty.H. purported to be present for the conversation between Ms. T.H. and their friend, the neuroscience student. According to him, the friend thought the breast examination was outside the realm of the issue at hand. Ty.H. testified that this conversation confirmed their own concern about the breast examination.

1322Ty.H. also testified that he read a media article about Dr. Sloka before discussing the issue with his wife. He also testified that he and his wife compared and contrasted her experience with the experience of other patients reported in the news.

1323Like his wife, Ty.H. erroneously believed that Ms. T.H. had attended three appointments with Dr. Sloka. However, he denied that their coincidental error was the product of any discussions about the case.

5) The Evidence of Dr. Bril

1324Dr. Bril testified that it would not be neurologically reasonable to conduct a breast examination or full skin examination on Ms. T.H. Her opinion regarding these examinations was not controversial. Dr. Sloka testified that he had no reason to conduct a breast examination, and he denied performing one. He also denied performing a complete skin examination given her presentation and maintained that he only looked at a single birthmark on Ms. T.H.’s hip. Dr. Bril conceded that it was reasonable for Dr. Sloka to look at this birthmark if Ms. T.H. reported it to him in response to his seizure-risk screening questions. Dr. Bril also agreed that it would be reasonable for Dr. Sloka to incidentally observe any mole on Ms. T.H.’s chest during a cardiac examination but not document it if it raised no concerns.

1325Dr. Bril also testified that Dr. Sloka’s course of action in considering whether Ms. T.H. had a seizure versus a syncopal convulsion was neurologically reasonable.

1326Dr. Bril gave contradictory evidence regarding the propriety of conducting a cardiac examination on Ms. T.H. In-chief, Dr. Bril testified that a cardiac examination was not medically reasonable because “you’re not going to hear anything that’s going to help you determine what happened.” In cross-examination, she testified that, because it was unclear what kind of blackout Ms. T.H. had suffered, a cardiac examination was “not totally unreasonable.”

6) The Evidence of Dr. Sloka

1327Dr. Sloka had essentially no independent memory of Ms. T.H. He relied upon his consultation letters for the truth of their contents and the rest of Ms. T.H.’s medical file for context.

1328According to Dr. Sloka, Ms. T.H.’s history and presentation suggested that Ms. T.H. had suffered a syncopal (fainting) episode with convulsions, though he could not entirely rule out the possibility of a seizure. She reoriented immediately, which may not occur with a seizure. She was not sore or tired afterwards, which can happen with seizures.

1329Ms. T.H. attended the ER. The ER doctor ordered a CT scan, EEG, and bloodwork, the results of which were normal, apart from high creatinine levels. These results did not support a seizure hypothesis.

1330When taking Ms. T.H.’s history, Dr. Sloka asked questions about Ms. T.H.’s seizure risk and documented her answers. Dr. Sloka documented that she had no family history of seizures, no febrile seizure, and no meningitis encephalitis. He also documented that Ms. T.H. reported having one birthmark on her hip, which indicated to him that he asked questions about stigmata of neurocutaneous disease, which is a risk factor he considered in seizure patients. Although he did not purport to quote this screening question verbatim, he testified that he would usually ask a patient something like, “Do you have any birth marks, brown patches, white patches, groups or clusters of freckles in armpits or groin.” When asking about freckles, he would specify, “concerning freckles.”

1331According to Dr. Sloka, based upon Ms. T.H.’s history and presentation, he proposed the measurement of Ms. T.H.’s blood pressure and pulse, and neurological and cardiac examinations. He did not believe he proposed a skin examination. He based this belief on the fact that he reported, “she showed me the birthmark on her left hip and that is all we looked for [emphasis added].” Dr. Sloka interpreted this passage as a denial of a complete skin examination.

1332Dr. Sloka also denied conducting a breast examination. In essence, he testified that a breast examination was irrelevant to Ms. T.H.’s history and presentation and to the investigation of a possible syncopal convulsion or seizure. Dr. Sloka maintained that the only contact with Ms. T.H.’s breast would have occurred incidentally during Ms. T.H.’s cardiac examination.

1333Dr. Sloka had no specific memory of examining a mole between Ms. T.H.’s breasts. Based on the location described by Ms. T.H., Dr. Sloka conceded the possibility that he may have seen it, or she may have shown it to him, while he was conducting her cardiac examination. However, he added that a mole would not typically concern him, and he would not document it in the absence of a concern. His consultation letter made no mention of any mole.

1334Dr. Sloka explained his justification for the cardiac examination. He testified that Ms. T.H.’s episode had elements of both a syncope (fainting) and seizure. A cardiac examination formed part of his standard assessment of possible seizures. Also, a cardiac examination would help rule out a possible cardiac cause of Ms. T.H.’s loss of consciousness. Cardiac examinations were part of his standard assessment of losses of consciousness.

1335Dr. Sloka testified that he performed his neurological and cardiac examinations in accordance with his standard practices.

1336To facilitate the cardiac examination, Dr. Sloka testified that he would have asked Ms. T.H. to remove her top and bra and put on a gown. He could not remember whether she removed her pants. He symptoms did not involve her legs, though, and he saw no necessity for the removal of her pants.

1337As noted, Dr. Sloka documented an examination of Ms. T.H.’s red birth mark on her hip. Sitting in the witness box, Dr. Sloka was not sure what Ms. T.H. might have meant when describing her birthmark as red. Dr. Sloka considered café au lait spots to be brown. However, he could not be sure what she may have been describing. Different patients describe café au lait spots differently.

1338Based on his consultation letter, Dr. Sloka believed Ms. T.H. showed him her birthmark. As noted, he specially documented that “this was all we looked for,” which indicated to him that he did not perform a complete skin examination. Given the absence of any additional documentation about the birthmark or skin examination, Dr. Sloka inferred that the birth mark raised no concerns about neurofibromatosis; and he just “moved on.”

1339At the conclusion of Ms. T.H.’s examinations, Dr. Sloka concluded that a syncopal convulsion was the most likely explanation of Ms. T.H.’s episode. In coming to this conclusion, he cited the following factors: “the light-headedness, orientation, and the fact that it was a hot day and she was on her menstrual cycle.” However, Dr. Sloka also noted that Ms. T.H. lost consciousness and shook. He had not entirely ruled out the possibility of a seizure. Accordingly, he ordered a brain MRI to investigate the possibility of a seizure. He also ordered a Holter monitor.

1340Dr. Sloka saw Ms. T.H. in follow up on November 30, 2015. She had not experienced another episode. She had not received her Holter monitor results yet, but her other tests were normal. In the circumstances, Dr. Sloka made no arrangements to see her again in follow up. He had satisfied himself that Ms. T.H. had suffered a syncopal episode.

7) Assessment of the Evidence and Analysis

1341Ms. T.H. lacked reliability and credibility.

1342Ms. T.H. acknowledged that her memory of some aspects of the visit, including her examinations, was imperfect. By her own admission, she had gone years without discussing the incident with anyone. I infer that in those intervening years she gave no thought to her treatment by Dr. Sloka. The passage of time compromised her memory. She had forgotten some details. Also, she was unable to consistently remember the sequence of her examinations. The sequence of the examinations she reported at trial differed from the sequence she described to the police.

1343Importantly, Ms. T.H. had no memory of Dr. Sloka performing a cardiac examination upon her. In my view, her inability to remember the cardiac examination harmed the reliability of her claim of a breast examination. Let me explain. Dr. Sloka charted a cardiac examination when authoring his contemporaneously written consultation letter. He also charted the measurement of her blood pressure and pulse. Dr. Sloka did not only chart these examinations, but he also testified about a valid medical basis for performing them. While Dr. Bril initially questioned the reasonableness of a cardiac examination, she conceded its reasonableness during her cross-examination. I am therefore satisfied that Dr. Sloka in fact conducted a cardiac examination and that he conducted it in accordance with his standard method. In its totality, the evidence overwhelmingly supports the conclusion that Dr. Sloka performed a cardiac examination. Consequently, I conclude that Ms. T.H. exposed her left breast for the purpose of that cardiac examination and Dr. Sloka placed the stethoscope at several locations immediately adjacent to her left breast. The performance of this cardiac examination gave rise to a very real risk of incidental contact with Ms. T.H.’s left breast. I find it entirely implausible that Ms. T.H. would remember a breast examination and remember showing Dr. Sloka the mole between her breasts but fail to remember the performance of her cardiac examination. Instead, I conclude that Ms. T.H. has mistakenly remembered Dr. Sloka’s cardiac examination as a breast examination. This is a mistake made more likely because of the impact of media tainting, which I will discuss in due course.

1344In my view, the existence of a breast examination also becomes more implausible when one considers Ms. T.H. vague and, at times, demonstrably inaccurate evidence about the breast examination.

1345One demonstrably inaccurate aspect of Ms. T.H.’s description of her breast examination is her demonstrably inaccurate description of her gown. Ms. T.H. recalled wearing a paper poncho, which had a hole for her head and openings at each side. Collectively, the evidence given by Dr. Sloka, Tammy Tebbutt, and Nancy Halstead, coupled with the photographic evidence contained in Exhibit 2, satisfies me that (1) the hospital supplied Dr. Sloka’s with cloth gowns, not paper ponchos; (2) that the cloth gowns tied at the neck and the back (if you wore the gown with the opening at the back); and (3) that the gowns did not have slats at the side, but instead opened at the back or, if worn backwards, opened at the front. When shown photographs from Exhibit 2 which depicted the standard-issue cloth gowns used in the neurology clinic, Ms. T.H. agreed that she may have worn a fabric gown that tied at the back – and that her memory of a paper poncho may have been inaccurate. I therefore conclude that Ms. T.H.’s evidence about her paper poncho was demonstrably wrong. This erroneous memory is important, because it plays an integral role in her description of the allegedly improper examination. Ms. T.H. testified that Dr. Sloka reached through the openings in the sides of her poncho to conduct the breast examination beneath the gown. On her evidence, her breasts were not exposed as Dr. Sloka palpated her breasts. However, Dr. Sloka could not have reached through side slits in Ms. T.H.’s gown while she wore a standard-issue gown from Dr. Sloka’s clinic. There were no slide slits. Confronted with this reality, Ms. T.H. admitted that she was trying to figure out the mechanics of how the gown worked but did not have a clear memory of whether the sides were closed or open. The fundamental mechanics of Ms. T.H.’s allegation were therefore thrown into doubt.

1346In addition to her objectively incorrect evidence about the gown, I find the vagueness of Ms. T.H.’s evidence about the breast examination concerning. She could not remember whether Dr. Sloka proposed a breast examination before entering the examination room. She also could not remember its stated purpose. Further, she could not remember much about Dr. Sloka’s mechanics. Also, she could not remember the position of her own arms. She also did not have a clear memory about the areas of her breast with which Dr. Sloka made contact, including whether Dr. Sloka touched her nipples. In her testimony, she described Dr. Sloka as feeling her breasts in a circular motion, but this detail was absent from her police statement. Ms. T.H. also could not remember Dr. Sloka sharing any findings from this alleged breast examination.

1347Given Ms. T.H.’s extremely poor memory, the contact and exposure inherent in the cardiac examination, and the substantial likelihood of media tainting (which I will discuss next), I find it highly likely that Ms. T.H. has misremembered her cardiac examination and erroneously remembered it as a breast examination.

1348I turn now to the issue of media tainting.

1349As noted, Ms. T.H. went years without discussing her treatment by Dr. Sloka and without giving it any thought. She did not give her treatment any thought, because she had never considered her treatment inappropriate. All that began to change after Ms. T.H. read about Dr. Sloka in the news. She first read about Dr. Sloka in the summer of 2019, about three months before providing her police statement on October 16, 2019. The news came from either CTV or The Record. The news story mentioned complaints by four patients. Three of these patients complained about inappropriate breast touching. The other mentioned a search for moles and reflex tests, amongst other things. After reading about these complaints, she connected them to her own poorly remembered experience. She considered the least intrusive and least overtly sexual allegation as being most closely connected to her own experience. Breast touching, a mole examination, and reflex testing ultimately formed the core of Ms. T.H.’s complaint against Dr. Sloka.

1350Despite what Ms. T.H. read in the news, she did not come forward at that time because she did not yet feel violated. At least that is what she later told the police and what she initially stated in her evidence. Her attempt to resile from that position during cross-examination lacked all credibility given what she previously told the police.

1351A few months after reading the first news reports, Ms. T.H. saw another wave of media shortly before she contacted the police. The number of complainants had risen dramatically, rising to something in the thirties. The large volume of complaints caused her to revisit the appropriateness of her own examination, which she had previously not questioned. It took about two more weeks for Ms. T.H. to decide that her treatment had been medically inappropriate and to make the decision to contact the police.

1352Collectively, the circumstances strongly suggest that Ms. T.H.’s perception of her poorly remembered examinations was tainted by her reading news of the allegations against Dr. Sloka.

1353Ms. T.H. agreed that even once she did come forward, she did not feel the need to participate in the prosecution for her own sake, “but if it will help somebody else then, yes.” I infer that Ms. T.H. was motivated by a desire to corroborate the complaints of other patients. This motivation undermines Ms. T.H.’s reliability as a witness.

1354I now come to the evidence of Ms. T.H.’s collusion with her husband. Ms. T.H. denied discussing her evidence with her husband after providing her statement to the police. Unfortunately, the evidence establishes that this claim was not true. The proof to the contrary begins with Ms. T.H.’s evidence regarding the examination of her skin. Ms. T.H. did not remember Dr. Sloka examining the birthmark on her hip. She only remembered Dr. Sloka looking at a mole between her breasts. However, she testified that during trial preparation the week before testifying, she reviewed Dr. Sloka’s consultation letter for the October 14, 2015, appointment, and noticed Dr. Sloka’s mention of an examination of the birthmark on her hip. Ty.H. testified the next day. According to him, Ms. T.H. mentioned the examination of the birthmark on her hip when speaking to him in the aftermath of their examination. However, he did not make this claim when providing his police statement. He admitted in cross-examination that Ms. T.H. had told him about the birthmark examination the week before he testified, after she saw her consultation letter when preparing to testify. Ty.H. thereby proved that Ms. T.H. provided dishonest testimony when she denied discussing her evidence with her husband between giving her police statement and giving her testimony. To add insult to injury, this discussion occurred in defiance of the police caution to refrain from discussing their evidence. With this lie, Ms. T.H. proved herself untrustworthy and showed that discussions with her husband could alter their evidence.

1355Further evidence of collusion comes from Ms. T.H. and Ty.H. making the same mistake about the number of appointments Ms. T.H. had with Dr. Sloka. Both mistakenly thought that she attended three appointments. I infer that their joint mistake is not the product of pure coincidence but instead the product of their discussions with one another.

1356It is also clear from the evidence that Ms. T.H. and her husband discussed their respective memories in the aftermath of their exposure to media coverage of Dr. Sloka. In doing so, they shared their respective memories of their post-examination discussions. By comparing notes in this fashion, they irreparably harmed Ty.H.’s utility as an anti-tainting witness. In my view, the anti-tainting witness has been tainted.

1357Ty.H. undermines Ms. T.H.’s evidence in one other way. According to him, Ms. T.H. raised immediate concerns about the propriety of her examination in its aftermath. On his evidence, they both viewed the examination as improper. Additionally, he testified that, when Ms. T.H. discussed the examination with her friend in neuroscience, she too thought the breast examination was out of bounds. In giving this evidence, Ty.H. undermined a central tenet of Ms. T.H.’s narrative: that she thought nothing improper had happened until she saw news about Dr. Sloka in 2019.

1358The Crown concedes that the court may be left with a reasonable doubt about the veracity of Ms. T.H.’s evidence but argues that similar fact evidence ought to remove any doubt.

1359I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when performing sensitive examinations like breast and cardiac examinations. However, having considered Dr. Sloka’s cogent and compelling evidence against the totality of the evidence, I am satisfied that he has refuted any possible inference of a sexual motive. I will discuss his evidence momentarily.

1360The Crown also relies upon two discrete categories of cross-count similar fact evidence to support the evidence of Ms. T.H. on other material issues. First, they argue that Ms. T.H. belongs to a constituency of patients who alleged that Dr. Sloka wanted to examine them for moles. Second, they argue that Ms. T.H. belongs to a constituency of patients who alleged that Dr. Sloka failed to explain his justification for his examination. For reasons which I will now explain, these alleged cross-count similarities lack sufficient probative value.

1361In my view, Ms. T.H. does not belong in any constituency that alleges that Dr. Sloka expressed a desire to search for moles. Ms. T.H. could not clearly recall what Dr. Sloka said. In-chief, she testified that he asked her if she had “any moles or concerning freckles or something like that because he said that was linked to potential causes for seizure concerns like epilepsy.” In cross-examination, she conceded that she was not certain of the specific wording used by Dr. Sloka. She agreed that Dr. Sloka may not have mentioned moles at all, but she remembered him asking generally about markings on her skin. Dr. Sloka testified that questions regarding markings on the skin would arise when taking the patient’s history and doing a review of systems. Given Ms. T.H.’s poor memory, I am not prepared to find that Dr. Sloka told her that he wanted to search for moles. In any event, I also think a significant risk of media tainting exists that eliminates the probative value of this similar fact constituency. Before Ms. T.H. came forward with her complaint, she reviewed news stories about Dr. Sloka. A news story from one of her two preferred news outlets, which was released around the time she read about Dr. Sloka, and which contained other details Ms. T.H. admittedly read, specifically mentioned a complaint that Dr. Sloka purported to search a for moles. There is a substantial likelihood of tainting which the Crown has failed to rebut.

1362Ms. T.H. also does not belong to a constituency of patients who allege that Dr. Sloka failed to explain the justification her examinations. For starters, she had a very poor memory about what may or may not have been said. Also, Ms. T.H. testified that, whatever Dr. Sloka said to her, she understood that Dr. Sloka wanted to conduct the physical examinations for the purpose of investigating whether her loss of consciousness was the result of a seizure. She also agreed that Dr. Sloka may have told her that he wanted to assess her nervous system to look for evidence that she had a seizure. Similarly, she agreed that he may have told her that he wanted to listen to her heart to see whether that might provide an explanation for her loss of consciousness. The evidence does not establish that Ms. T.H. belongs in a constituency of patients who were not told about the reason for their examinations.

1363Having regard to Ms. T.H.’s poor memory, her demonstrably erroneous evidence regarding her gown, her failure to remember her cardiac examination, her collusion with her husband, her blatant lie about her collusion, and the substantial likelihood of tainting, I reject Ms. T.H.’s evidence where it conflicts with that of Dr. Sloka. And specifically, I reject her evidence about the nature of the examinations performed by Dr. Sloka. I also reject Ms. T.H.’s and her husband’s evidence about the nature of their post examination discussions, given their obvious collusion and cross-tainting.

1364Dr. Bril’s evidence offers no assistance to the Crown. For one, Dr. Sloka testified that breast and complete skin examinations did not occur. Instead, he claimed that he performed neurological and cardiac examinations, in addition to measuring Ms. T.H.’s blood pressure and pulse. He also acknowledged looking at specific skin markings shown to him by Ms. T.H., but, as I will now discuss, Dr. Bril took no issue with him doing so.

1365Dr. Bril agreed that it would be reasonable for Dr. Sloka to look at the red birthmark on Ms. T.H.’s hip, if she reported it to him during his standard seizure-risk screening questions. Additionally, Dr. Bril agreed that, if Dr. Sloka noticed a mole between Ms. T.H.’s breasts during a cardiac examination, he would not need to record doing so if the mole raised no concerns.

1366Dr. Bril provided contradictory evidence on the appropriateness of a cardiac examination. In her evidence in-chief, she testified that the examination was not neurologically reasonable because, “you’re not going to hear anything that’s going to help you determine what happened.” In cross-examination, she testified, “I think here it’s not clear what kind of blackout she had although a syncopal episode does sound more probable than a seizure,” then added, “and therefore I do think a cardiac examination is not totally unreasonable. The blood pressure lying down and standing was, and heart rate, were the most reasonable.” Dr. Bril’s reversal not only hurt her own credibility and reliability, but it ultimately provided some support the approach taken by Dr. Sloka.

1367I turn now to the evidence of Dr. Sloka.

1368Dr. Sloka testified in a straightforward, fair, and logical fashion about his assessment of Ms. T.H. In my view Dr. Sloka provided a logical medical justification for his documented approach to her assessment. Ultimately, Dr. Bril could not take issue with Dr. Sloka’s documented approach.

1369Dr. Sloka also professed a logical basis for believing he did not perform the breast examination alleged by Ms. T.H. A breast examination was simply not relevant to Ms. T.H.’s history or presentation. Instead, Ms. T.H.’s history and presentation raised legitimate concerns about the possibility of a syncopal episode or seizure. Dr. Bril conceded as much.

1370The Crown makes numerous critiques of Dr. Sloka’s evidence. In my view, they lacked merit.

1371The Crown argues that Dr. Sloka’s evidence was inconsistent and rife with speculation. I do not see it the same way. I will attempt to deal with each of the Crown’s critiques in turn.

1372The Crown argues that, “significantly,” Dr. Sloka could not tell the court his medical criteria to determine when it was appropriate to screen for neurocutaneous syndrome. I do not think this submission is a fair one. Dr. Sloka provided evidence that he would screen for neurocutaneous diseases in patients with a loss of consciousness and potential seizures. He provided detailed evidence regarding his belief in the statistical incidence of neurocutaneous disease in patients with epilepsy. Additionally, the Crown overlooks Dr. Sloka’s evidence during his examination in-chief, in which he testified about other circumstances in which he would consider screening for neurocutaneous disease: patients with symptoms relating to the spinal cord, loss of vision, or multiple birth marks. The Crown ignores that evidence and instead points to Dr. Sloka’s response to a much broader and opened ended inquiry, which was made of Dr. Sloka on-the-spot, years after he ceased practicing:

Q. And the more specific question about birthmarks, brown patches, white patches, clusters of freckles, when are you asking about that?

A. In situations when I was screening for Neurocutaneous Disease.

Q. And what would be those situations?

A. I don't know how general that is. It's at least with loss of consciousness and potential for seizures. I don't know if it was in other situations or not. It might have been.

Q. What other situations can you think of? And take your time reflect on it. What other situations would there be where you think you might be asking that?

A. I'm not certain. I don't know how consistent I was with specific situations.

Q. And when you say "situations", by "situations"....

A. Clinical presentations.

1373Dr. Sloka’s inability to list every clinical situation in which he might consider screening for neurocutaneous disease does not detract from his evidence that he would screen for it in cases involving a loss of consciousness or a possible seizure. Throughout the trial, Dr. Sloka consistently maintained that he considered proposing skin examinations as part of his standard approach to possible seizure patients. Whether he performed the examination turned on the clinical situation, including the patient’s response to screen questions and the patient’s consent. Dr. Sloka’s evidence does not, as the Crown argues, disclose that he used arbitrary and non-medical criteria. That submission mischaracterizes Dr. Sloka’s evidence.

1374The Crown argues that Dr. Sloka showed a willingness to guess when asked about the language used when screening for stigmata of neurocutaneous disease, when asked about how Ms. T.H. showed him her birthmark, and when asked about how the topic of Ms. T.H.’s mole might have arisen. I disagree. Dr. Sloka fairly conceded he did not know the precise wording he used when asking about stigmata of neurocutaneous disease. In answer to the Crown’s question, he simply provided the gist of the inquiry he would make. I expect nothing more from a long-ago conversation. I would be highly suspicious of any claim of a verbatim recollection. Similarly, Dr. Sloka had no memory of how Ms. T.H.’s birthmark was revealed. In his consultation letter, he recorded, “she showed me her birthmark on her left hip.” From that, Dr. Sloka inferred that Ms. T.H. “probably” moved her gown aside to show him, but he consistently maintained that he had no memory. As for Ms. T.H.’s mole, given its location, Dr. Sloka posited that he may have noticed it and mentioned it during the cardiac examination. Ms. T.H. conceded in her evidence that it would have been exposed by the exposure of her left breast for a cardiac examination (although, she admitted she did not remember a cardiac examination occurring). Again, he did not pretend to remember this. He had no memory. He simply drew an inference from the information available to him. He had a basis for drawing this inference.

1375The Crown contends that Dr. Sloka provided inconsistent evidence on Ms. T.H.’s attire for the examination. In-chief, Dr. Sloka testified that at the very least, Ms. T.H. would have removed her top and bra and worn a gown. He was not sure whether she removed her pants. In cross-examination, the Crown posed an unclear compound question. Dr. Sloka noted the multitude of questions contained within the question. He went on to state that the neurological examination would not require the removal of her pants. In addition, he stated he did not know if the removal of Ms. T.H.’s pants was necessary to facilitate an examination of her birthmark. He simply did not remember. In answer to a clarifying question from the court, Dr. Sloka confirmed that he did not know whether Ms. T.H. removed her pants. Taken as a whole, his answers in cross-examination were consistent with his evidence in-chief. This evidence is also consistent with his oft repeated assertion that, in the absence of neurological symptoms in the lower extremities, there would be no reason for the patient to remove her pants.

1376The Crown further asks the court to reject Dr. Sloka’s denial that he asked Ms. T.H. about moles, because Dr. Sloka could not be certain when he stopped using that term. I disagree. While Dr. Sloka conceded the possibility that he may have used that term early in his practice, he testified that he subsequently began to more clearly describe the skin markings of interest. Ms. T.H. saw Dr. Sloka in 2015, six years after he opened his practice. In any event, Dr. Sloka testified that even if he used imprecise terminology early in his practice, he employed textbooks, descriptions, and photographs to clarify his meaning. Dr. Sloka had a sound basis for denying the use of the term “moles” in 2015 – especially having heard Ms. T.H.’s vague evidence on the topic.

1377The Crown also argues that Dr. Sloka’s decision to look at Ms. T.H.’s red birthmark defies common sense, because café au lait spots are brown, not red. Moreover, six café au lait spots are required for a neurofibromatosis diagnosis. This submission ignores Dr. Bril’s concession that an inspection of the birthmark could be reasonable: “Since he asked her about them, she reported it, it’s medically reasonable to look at it.” Dr. Sloka also testified that if Ms. T.H. described the birthmark as red, he would not be sure whether she was describing a café au lait spot, because, in his experience, patients described café au lait spots differently. I do not see any merit in this submission by the Crown.

1378The Crown also challenges Dr. Sloka’s denial of a breast examination on the basis that he had no standard practice of reporting them. In the absence of a memory of Ms. T.H., the Crown argues that the denial was a guess. This submission appears to reverse the burden of proof. Moreover, it ignores the fact that Dr. Sloka had a basis for concluding that a breast examination was an irrelevant and unnecessary examination for a patient with Ms. T.H.’s medical history and presentation. In giving his evidence, he obviously and implicitly denied any sexual motive and simultaneously denied any medical justification for a breast examination. In doing so, he provided a sound basis for his denial.

1379The Crown further contends that Dr. Sloka’s testimony concerning neurofibromas provided support for Ms. T.H.’s contention that he performed breast examination. To that end, the Crown points to Dr. Sloka’s alleged concession that he might palpate a patient’s breasts in search of neurofibromas. This submission mischaracterizes Dr. Sloka’s evidence. Dr. Sloka testified that he could not remember ever palpating a patient's breasts in search of neurofibromas, but he conceded the possibility that he might have done so at some point in the past – with the proviso that, if it occurred, it occurred rarely. Moreover, the Crown never suggested to Dr. Sloka that he palpated Ms. T.H.’s breasts in search of neurofibromas; the Crown only suggested that Dr. Sloka performed a breast examination.

1380Having considered the Crown’s critiques of Dr. Sloka’s evidence, I conclude that they lack merit.

1381Dr. Sloka provided a cogent explanation of the approach he took to Ms. T.H.’s assessment, an approach that he documented in his contemporaneously authored consultation letter. Despite the Crown’s submissions to the contrary, Dr. Sloka’s evidence did not reveal any significant frailties. Even in the absence of an independent memory of Ms. T.H., Dr. Sloka had a sound basis for contending that he did not perform a breast examination. I accept Dr. Sloka’s evidence.

1382Having rejected Ms. T.H.’s evidence and having accepted Dr. Sloka’s evidence, I can only conclude that Dr. Sloka conducted neurological and cardiac examinations in accordance with his standard methods, along with measurements of Ms. T.H.’s blood pressure and pulse. I reject the contention that Dr. Sloka performed a breast examination. Similarly, I reject the contention that Dr. Sloka exposed any more of Ms. T.H.’s chest than was necessary to conduct his standard cardiac examination. I am satisfied that Dr. Sloka proposed neurological and cardiac examinations and received Ms. T.H.’s consent to perform these examinations. I find no basis for concluding that Dr. Sloka possessed anything other than a medical motive to conduct the examinations. Ms. T.H. consented to and received medical examinations. I have no basis for concluding that Dr. Sloka engaged in sexual activity to which Ms. T.H. did not consent.

1383Dr. Sloka will be acquitted on this count.

viii. J.H. (Count 45)

1) A Summary of Ms. J.H.’s Complaint and Dr. Sloka’s Response to It

1384Ms. J.H. alleged that during Dr. Sloka’s assessment of her possible seizures, Dr. Sloka asked her to strip naked behind a curtain, after which he conducted a skin examination that entailed the touching of her breasts, buttocks, and labia. He also asked her to walk naked around the room. Next, he conducted a breast examination during which he cupped and caressed her breasts.

1385Dr. Sloka testified that he conducted neurological, cardiac, and skin examinations as part of his standard investigation of Ms. J.H.’s losses of consciousness and possible seizures. He conducted these examinations in accordance with his training and standard protocols. He denied conducting a breast examination. He denied touching Ms. J.H.’s breasts, spreading her buttocks, and touching her labia.

The Circumstances of Ms. J.H.’s Referral and Treatment Chronology.

1386Ms. J.H. attended the University of Waterloo when she first obtained a referral by a family doctor from university’s Health Services, Dr. Hannah Snider.

1387Ms. J.H. was 25 years old at the time, completing her undergraduate degree in anthropology, following her earlier occupation as a race car driver. Dr. Snider made the referral on November 28, 2014. Ms. J.H. completed her coursework in December.

1388In her referral, Dr. Snider informed Dr. Sloka that Ms. J.H. presented with “concerns of seizure activity.” Dr. Snider’s description of Ms. J.H.’s history included the following:

She describes that when feeling tired, she occasionally notices that she cramps up with strong flexion and pronation in her upper body. Her neck and jaw seem to clench. Her boyfriend describes it as “not looking right.” She is conscious throughout, but this she has LOC perhaps twice. No tongue biting, no bowel/bladder incontinence. These have occurred periodically throughout her life, but more often recently. I have advised her not to drive at this time, and she has promised this.

1389Dr. Sloka saw Ms. J.H. three times and conducted a fourth consultation over the phone. These appointments occurred on December 24, 2014, March 4, 2015, June 4, 2015, and September 9, 2015.

1390During and following Ms. J.H.’s tenure with Dr. Sloka, Ms. J.H. received care from other specialists for her epilepsy. She also obtained a new family physician. The sequence of these referrals is outlined below.

1391In February and March of 2015, following the receipt of imaging reports, Dr. Sloka made attempts to refer Ms. J.H. to a neurosurgeon to investigate and possibly treat her for spinal stenosis. The first neurosurgeon Dr. Sloka contacted practiced in Hamilton. Hamilton was too far away from Ms. J.H.’s home. So, Dr. Sloka contacted Dr. Valiante, a neurosurgeon at the Surgical Epilepsy Program at Toronto Western Hospital. Dr. Valiante accepted the referral.

1392After completing her studies at U of W in December of 2014, Ms. J.H. moved to Bowmanville. After the move, Ms. J.H. continued to see Dr. Sloka. Her second appointment with him occurred on March 4, 2015, at which point Dr. Sloka confirmed the referral to a Dr. Valiente. Ms. J.H. apparently did not have a family doctor in Bowmanville; consequently, Dr. Sloka addressed his consultation letter from March 4th to “Family Doctor.”

1393On April 24, 2015, Ms. J.H. saw Dr. Valiante for her neurosurgical consultation. In his consultation letter, Dr. Valiante advised Dr. Sloka that Ms. J.H. did not require surgery on her spine.

1394Dr. Sloka saw Ms. J.H. in follow-up on June 4, 2015, by which time she was under the care of a family doctor named Dr. Luck.

1395Ms. J.H.’s next appointment with Dr. Sloka was scheduled for September 9, 2015. In his consultation letter Dr. Sloka noted that Ms. J.H. did not show up for the appointment. Instead, they spoke on the phone. On this date, Dr. Sloka wrote to the MTO to advocate for the return of Ms. J.H.’s licence.

1396On October 28, 2015, Ms. J.H. saw Dr. Paul, a neurologist in Oshawa, a city near Bowmanville. In his consultation letter, Dr. Paul indicated that the referral came from an ER doctor who treated Ms. J.H. on October 17, 2015, for a convulsion.

1397According to Dr. Sloka’s chart, Ms. J.H. did not show for a scheduled appointment on December 11, 2015. She did not return to Dr. Sloka’s care again.

1398On November 24, 2016, Ms. J.H. saw another neurologist, Dr. Carlen, of the Toronto Western Hospital. Ms. J.H. believed that Dr. Paul referred her to Dr. Carlen upon his retirement.

1399As noted, Dr. Sloka wrote the MTO on September 9, 2015, to advocate for the return of Ms. J.H.’s licence. Dr. Sloka’s medical chart confirms that, at some previous point, someone wrote to the MTO to trigger a suspension of Ms. J.H.’s licence, but it does not specify which doctor did this. While Dr. Snider’s referral letter indicated that she advised Ms. J.H. against driving, she did not explicitly state that she had contacted the MTO. Ms. J.H. testified that Dr. Snider did not do so. Dr. Sloka’s chart also does not include a letter from Dr. Sloka to the MTO for the purpose of triggering a suspension. Similarly, nothing in Dr. Sloka’s chart indicates that Dr. Luck or Dr. Valiente directed the suspension of Ms. J.H.’s licence. However, Dr. Sloka’s chart does include a letter from him written to the MTO on September 9, 2015, in which he confirmed that Ms. J.H. had been under his care for nine months and had been seizure-fee for six months. This letter was written in support of rescinding Ms. J.H.’s suspension. Dr. Sloka’s chart thus confirms his awareness that someone had previously written the MTO to trigger the suspension of Ms. J.H.’s licence. However, Ms. J.H. denied that anyone prior to that point had written the MTO to trigger her suspension. She expressed surprise that Dr. Sloka would be writing to advocate for the return of her licence. As will be seen, the existence of that suspension becomes relevant to an assessment of Ms. J.H.’s description of her appointment of concern.

The Evidence of Ms. J.H.

1400Ms. J.H. was 32 years old when she testified.

1401According to Ms. J.H., Dr. Sloka sexually touched her when examining her at her first appointment.

1402The first appointment was on Christmas Eve day. She testified that the appointment took place at 11 a.m. Dr. Sloka’s chart, which Ms. J.H. reviewed in preparation for trial, confirmed the that the appointment occurred at 11 a.m. However, in her police statement, Ms. J.H. stated that the appointment occurred at 1 p.m. Indeed, she told the police that she was very certain that the appointment was at 1 p.m., so much so that the time was “implanted” in her mind. Ordinarily an inconsistency like this could be viewed as relatively trivial, but Ms. J.H.’s attempt to minimize the inconsistency made it otherwise:

After looking at the medical records though, I can see that I was wrong about the time and that 1:00 and 11:00 are quite similar in terms of how I recall them. 11:00 and 1:00, just take away the one…. To me, 11:00 and 1:00, if you take away the one number, it’s – it’s 1:00. But also, with it – in regards to the time of day, it felt very similar. 11:00 and 1:00 are not that far apart.

She went on to testify that when she was a student she did not consider 11:00 and 1:00 as being very different times. In my view, her attempt to minimize the error of her purportedly clear memory hurt her credibility. As the adage goes, “It’s not the crime, it’s the cover-up.”

1403Ms. J.H. testified that, at the time of the appointment, she was concerned about her health and her ability to drive. Also, she had never been to a neurologist before. She arrived a little early and checked in with the receptionist. She was the last patient of the day.

1404Ms. J.H. remembered Dr. Sloka coming to the waiting room to retrieve her. She then followed him down the hallway and into an office on the left. Although the floorplan and photographs in Exhibit 2 make it clear that Dr. Sloka’s office sat immediately across the hallway from the waiting room, Ms. J.H. believed that they had to walk down the hallway “for a little bit of time” and past a few doors.

1405Ms. J.H. described Dr. Sloka’s office as a medium sized office, which held an office area and an examination area, which were separated by a curtain. On her evidence, all aspects of her appointments occurred in a single room. She drew a diagram of the office (Exhibit 149), which depicted a curtain entirely bifurcating the room. The office area sat to the left of the curtain. The examination area sat to the right. Ms. J.H. was pretty sure that the curtain hung from a rod on the ceiling and could be pulled open or closed. As will be discussed momentarily, the curtain featured prominently in her narrative about her disrobing for the examination.

1406In cross-examination, defence counsel presented Ms. J.H. with the Exhibit 2 photographs of Dr. Sloka’s office and examination room. These were two rooms separated by a wall and joined by a door. The photographs patently contradicted her description of the layout, but Ms. J.H. downplayed any contradiction:

That’s what I have drawn in my image as the curtain that separated the two areas of the room. That wall, if that’s what you’re referring to… That’s what I have in mine as a – what I’d seen in my mind all these years is a curtain that divided the room.

Again, it’s not the crime. It’s the cover-up.

1407The appointment began with a discussion of her medical history. Ms. J.H.’s evidence concerning her medical history concurred with the medical history documented in Dr. Snider’s referral letter and in Dr. Sloka’s initial consulting letter

1408After obtaining Ms. J.H.’s history, Dr. Sloka proposed an examination, gesturing towards the examination area behind the curtain. In-chief, Ms. J.H. testified that Dr. Sloka said that he will need to do an examination to get to the bottom of her medical issues. He did not give her enough information about what the examination would entail apart from telling her that he noticed a mole [Ms. J.H. had a mole on her chin] and wanted to look for more moles, because moles can cause seizures. She told him she had other moles. In cross-examination, Ms. J.H. agreed that Dr. Sloka may have told her that he would like to conduct some basic neurological tests. She agreed that he may also have proposed a cardiac examination to see if her heart provided any information about her episodes. Ms. J.H. disputed the suggestion that Dr. Sloka said he wanted to do a skin examination because certain marks on the skin can be connected to neurological disorders. She did not remember Dr. Sloka employing the words, “skin examination.” She also did not remember him using the term “marks.” If he had mentioned birth marks, she would have told him about a birthmark she had on her foot.

1409Whatever examinations were proposed, Ms. J.H. said “okay” to them.

1410Here, the curtain surfaces again in Ms. J.H.’s narrative. According to Ms. J.H., after she provided her consent, they walked over to the other side of the room, to where the examination table was located. She was pretty sure that the curtain was wide open at the time. Dr. Sloka then instructed her to remove all her clothing. She asked if she had to remove everything. He responded with a simple “yes.” He then returned to the other side of the room to allow her privacy to change. Ms. J.H. remembered getting undressed behind the curtain and feeling cold. Once undressed, she drew open the curtain, suddenly becoming aware of her nudity. She described this as a memorable moment. She discounted the possibility that Dr. Sloka had thrown open the curtain: “He did not throw open the curtain…. I was the one to open the curtain.” However, in her statement to the police, Ms. J.H. claimed that it was Dr. Sloka who drew open the curtain. She acknowledged that her memory at trial was different than her memory when providing her statement.

1411Confronted with the photographs of Dr. Sloka’s office and examination room on the second day of her testimony, Ms. J.H.’s evidence about the curtain changed. She accepted that a wall separated the examination room from the office. Then, for the first time, she alleged that within the four walls of the examination room there existed a smaller curtain behind which she could undress. This smaller curtain did not feature in the diagram she previously drew for the court. She only drew a curtain that divided the two rooms. Ms. J.H. was unable to pinpoint the location of this small curtain within the examination room. Nevertheless, she continued to maintain she disrobed behind a small curtain somewhere within the examination room. Pressed further, she accepted that there was no curtain. However, she continued to maintain a memory of drawing the curtain back, thereby exposing herself to Dr. Sloka. She then appeared to abandon that memory. Her evidence on this point is perplexing:

Q …. And so accepting that there’s no curtain, is it still in your mind that there was a curtain that was drawn back?

A In my mind, there is still a curtain, yes, because there was a moment before where I felt privacy, and then I didn’t feel privacy. And if the curtain took that role in my mind, that is my memory. But I can accept that there is no curtain here, and so I’m mistaken about a curtain.

Q And drawing it back

A Yes. But the – the loss of privacy, that is the feeling; that is the memory that is behind it.

She thus reluctantly abandoned her previously certain memory of drawing back a curtain to expose her naked body to Dr. Sloka.

1412Whatever the circumstances and location of her disrobing, Ms. J.H. denied that Dr. Sloka ever provided her with a gown.

1413In-chief, Ms. J.H. testified that, once she had drawn back the curtain Dr. Sloka asked her to walk naked around the half of the room containing the examination area. He said he wanted to examine her gait. She was naked while she walked. Then she stood stationary near the examination table, which she incorrectly placed in the middle of the room, abutting the back wall and perpendicular to it. Dr. Sloka allegedly walked up to her and examined a mole on her chin. This marked the beginning of the skin examination.

1414Ms. J.H. testified that Dr. Sloka slowly examined what felt like every square inch of her body, purportedly looking for moles. He began at top and worked to the bottom. He didn’t wear gloves. He touched each mole along the way. He did not advise he would be touching her moles. He did not seek her consent to touch any of the moles.

1415Ms. J.H. testified that Dr. Sloka’s eye was drawn towards a mole on her left nipple. He focussed his attention there for a longer period than with the other moles. He touched it, gently poking at it with the pad of a finger, getting a good close look at it. Ms. J.H. described feeling very nervous, extremely uncomfortable, and quite scared while this occurred. She estimated that Dr. Sloka touched this mole for a good 10 seconds.

1416According to Ms. J.H., after examining the mole on her nipple, Dr. Sloka continued to look at the rest of her moles. After her breasts, she believed he quickly looked at her shoulders and arms. She has moles on her arms. He touched those moles. Then, he examined her stomach. She has moles there too. He touched those moles too. Next, he examined moles on her hip.

1417Ms. J.H. testified that Dr. Sloka then asked her to turn around, following which, he examined her buttocks. She has one or two moles on the cheek of her buttocks. He touched those moles too. At this point he told her, “You do have quite a few. I’m going to check.” Then he spread her butt cheeks to see if any moles existed between the cheeks of her buttocks. She estimated that he examined between her cheeks for over 10-15 seconds. It felt like an eternity. She had no idea what he meant when he said, “I’m going to check.” He did not seek her permission before touching her butt cheeks. She felt mortified and shocked. She testified that instinct took over. She chose to just comply with the examination and get through it.

1418Next, Dr. Sloka allegedly directed Ms. J.H. to turn around to face him. She complied. Consequently, he never examined the moles on her back or the back of her legs.

1419Instead, according to Ms. J.H., Dr. Sloka examined her outer labia. He used his hand to make sure he could see in between where her labia and her leg crease meet, to make sure that there were no moles in that area. He moved the labia aside with his fingers. He did this on both sides. It felt like a long time. Her legs were about a hip’s width apart. Dr. Sloka crouched here. He was at eye level with her genitals. He did not seek her consent before touching that area of her body.

1420Next, Dr. Sloka continued to examine the front of her legs, working down. Things seemed to speed up a little by the time he got to mid-thigh. Once he was done examining legs/feet, he stood back up. He then began looking at some of the moles in her armpit area.

1421Ms. J.H. testified that Dr. Sloka then informed her that he would also need to do a breast examination. Ms. J.H. allegedly remained standing and still naked for the breast examination. Dr. Sloka used a couple fingers to poke at her armpits. She raised her bent arms as he looked at moles and palpated the area. Then, he asked her to raise arm over her head to facilitate the breast examination. He examined both breasts, beginning with the left.

1422Ms. J.H. testified that she thought this breast examination to be odd, compared to prior breast examinations. Dr. Sloka palpated much more softly than other examiners, more like he was caressing her breasts. He worked his way around her entire breast, ultimately cupping her breasts with a full hand. She described this as a groping.

1423Dr. Sloka also allegedly touched the mole on her left nipple again, which Ms. J.H. allegedly considered more than was necessary and involved moving her left nipple.

1424Ms. J.H. believed that, after the breast exam, she put on her clothes, but she expressed some uncertainty on this point.

1425Ms. J.H. also believed that Dr. Sloka conducted reflex tests upon her while she was fully clothed and sitting on the examination table. Based upon her memory of the commencement of the examination, this must have occurred after the alleged skin and breast examinations. He tested reflexes in both her arms and legs. She did not remember the reflex test involving contact with her thighs. Crown counsel then refreshed Ms. J.H.’s memory with her police statement. In her statement, she alleged that Dr. Sloka “got handsy” with her thigh while testing her leg reflexes, squeezing her thighs, and moving his hands upwards towards her groin. Ms. J.H. adopted this allegation in her testimony.

1426In cross-examination, Ms. J.H. conceded that Dr. Sloka may have performed other examinations which she did not remember. For instance, she conceded that Dr. Sloka may have measured her blood pressure using a blood pressure cuff. Dr. Sloka charted a blood pressure measurement of 110/76 in his consultation letter. She did not dispute that he took this measurement. However, she did not recall this occurring at the commencement of her examination (as Dr. Sloka ultimately testified). In her memory, she was naked at the commencement of the examination, and it began with Dr. Sloka examining her gait as she walked about the room.

1427Defence counsel also suggested that Dr. Sloka next conducted a complete neurological examination, which he subsequently documented in his consultation letter. According to Dr. Sloka, she would begin the neurological examination in a seated position on the examination table. Ms. J.H. did remember some tests occurring while she sat on the examination table, but she insisted that these tests occurred after her skin and breast examinations, and they occurred after she put her clothing back on. Defence counsel took Ms. J.H. through various components of Dr. Sloka’s standard neurological examination. One by one, Ms. J.H. agreed that it was possible Dr. Sloka conducted these components. However, apart from the reflex tests, she had no current memory of them occurring.

1428Defence counsel also suggested to Ms. J.H. that Dr. Sloka used a stethoscope to listen to her heart and lungs. She had no memory of this occurring but could not dispute the possibility.

1429Defence counsel then suggested that the skin examination came last in the sequence of the examinations. Ms. J.H. insisted that the skin examination came at the beginning. She also continued to deny that she wore a gown during her examinations. She maintained that she was naked, and that Dr. Sloka touched her various moles, her buttocks, and her labia during the skin examination. She also insisted that Dr. Sloka conducted a breast examination after the skin examination.

1430Ms. J.H. and Dr. Sloka had a discussion in the office area following the conclusion of the examination. Ms. J.H. testified that Dr. Sloka told her that she had Juvenile Myoclonic Epilepsy (JME). He was fairly certain of this diagnosis but would order more tests.

1431Defence counsel took Ms. J.H. to the Impression portion of Dr. Sloka’s consultation letter, in which Dr. Sloka did not convey a definitive diagnosis. Instead, Dr. Sloka wrote, “She may well have juvenile myoclonic, and we will organize for an MRI of her brain as well as a sleep deprived EEG.” Ms. J.H. testified that Dr. Sloka conveyed to her a greater certainty about the diagnosis than he did in the consultation letter he wrote to her family doctor: “I was told I have JME, and that’s why I was starting Keppra.” Contrary to Ms. J.H.’s stated belief, Dr. Carlen, not Dr. Sloka, made a JME diagnosis. Nothing in Ms. J.H.’s medical chart suggests her diagnosis was ever overturned. Dr. Paul, for instance, wrote in his Impression, “History of JME.”

1432Despite what was written in Dr. Carlen’s consultation letter, Ms. J.H. insisted that it was Dr. Sloka, not Dr. Carlen who initially made the diagnosis of JME. She testified that she had in fact informed Dr. Carlen that Dr. Sloka had previously made the diagnosis. Her evidence here was contradicted by Dr. Carlen’s consultation letter, in which he stated that Dr. Sloka diagnosed her with epilepsy, not JME. Ms. J.H. blamed this allegedly erroneous documentation on her father, whom she claimed misinformed Dr. Carlen about the earlier diagnosis.

1433According to Ms. J.H., Dr. Sloka’s JME diagnosis was premature and ultimately overturned. She was also critical of Dr. Sloka for prescribing Keppra (an anti-seizure medication), even though her subsequent neurologist, Dr. Paul, not only continued to prescribe it but also increased her dose. She also agreed that her symptoms improved after she started taking Keppra but was reluctant to ascribe her improvement to the medication: “It is still up in the air what improved my symptoms, if it was actually the Keppra or if it was the change in living arrangements and lifestyle modification.”

1434Whatever the diagnosis, Ms. J.H. agreed that Dr. Sloka ordered further testing at the conclusion of her first appointment and planned to see her in follow-up.

1435Ms. J.H. testified that Dr. Sloka also told her avoid driving. He also allegedly told her that typically, something would be issued to the Ministry of Transportation to say the patient could not drive anymore in cases like hers. However, he said he likes his patients and would not be issuing the form. If he submitted the form, she would have to submit a new form to get her licence back. The other doctor he shared an office with charged patients $300 to get their driver’s licence reinstated. Ms. J.H. testified that this conversation about her driver’s licence felt like a “bribe” to her. As noted in The Circumstances of Ms. J.H.’s Referral and Treatment Chronology, Ms. J.H.’s licence actually appears to have been suspended already, and Dr. Sloka subsequently wrote the ministry to advocate for its return on September 9, 2015. Additionally, Dr. Snider reported in her referral letter that she told Ms. J.H. not to drive and that Ms. J.H. had promised to refrain from driving.

1436Ms. J.H. testified that, at the conclusion of the appointment, she felt that she had been sexually violated. As she walked through the building and outside, she was crying. Tears were running down her face. Her face gets red when she cries. Her state of anguish was visible.

1437According to Ms. J.H., someone drove her home, but she did not know who. She testified that her driver was most likely her boyfriend. Her boyfriend would have known about the appointment. However, she did not recall ever having any conversation with her boyfriend about the appointment in its aftermath. Ms. J.H.’s parents also knew about the appointment. Indeed, she conveyed Dr. Sloka’s provisional diagnosis to them the next day. No one testified about Ms. J.H.’s allegedly visible state of anguish.

1438Despite the presence of her boyfriend and her parents in her life, Ms. J.H. testified that she did not have a person with whom she trusted to talk about the alleged sexual abuse. She had no memory of any discussions with anyone in the car on the way home from the appointment. Ms. J.H.’s next memory was of being at home.

1439Ms. J.H.’s next appointment was scheduled for March 4, 2015. In the interim, she completed her tests. The MRI of her spine prompted a referral to a neurosurgeon. Initially, Dr. Sloka referred her to a doctor in Hamilton, but she had moved to Bowmanville and preferred someone closer to home.

1440According to Ms. J.H., she did not want to be alone with Dr. Sloka at her March 4th appointment. She could not drive from Bowmanville to her appointment. Her father agreed to drive her. She claimed that she asked her father to come into the appointment with her, but he brushed her off and remained in the car. According to Ms. J.H., he remined in the car despite being skeptical of the diagnosis and despite wanting to know about the results of her testing. She described her relationship with her parents as strained and claimed that past medical appointments with her parents went poorly. Nevertheless, this was the only appointment at which Ms. J.H. could remember her father refusing to come into an appointment with her.

1441No examination took place at the second appointment. Ms. J.H. updated Dr. Sloka on her symptoms, which had shown slight improvement. Dr. Sloka confirmed the referral to Dr. Valiente in Toronto. He arranged to see her in follow-up.

1442Ms. J.H. saw Dr. Valiente in April. He confirmed that she did not require spinal surgery.

1443Ms. J.H.’s third appointment with Dr. Sloka was scheduled on June 4, 2015. She would have needed a drive from Bowmanville to get to this appointment. Ms. J.H. also testified that she wanted to see a neurologist closer to Bowmanville, but she took no steps to obtain any such referral. Despite her alleged trepidation about being alone with her alleged abuser and despite the inconvenience of a trip to Kitchener, Ms. J.H. had no memory of attending this appointment. She did not dispute attending it, though.

1444Ms. J.H.’s fourth and final appointment with Dr. Sloka occurred on September 9, 2015. She was unable to travel to this appointment, so she phoned Dr. Sloka’s office instead.

1445While Ms. J.H. testified that she believed on the day of her examination that she had been sexually abused, she did not disclose her allegations to anyone until May 3, 2019. She made no disclosure to her boyfriend, whom she believed may have driven her home from the appointment while she was visibly upset. As noted, she did not remember any details about the drive home, including whether her visible emotional state was noticed by her driver. Ms. J.H. explained that she was embarrassed and feared she would not be believed. She also testified that she did not have anyone in her life at the time that she could confide in. She allegedly knew she had been abused but made the conscious decision to stay silent.

1446Then, on May 3, 2019, Ms. J.H. made her first disclosure to her friend, Am.B., while at Ms. Am.B.’s house in Bowmanville. On April 30, 2019, various media outlets published stories about the CPSO suspending Dr. Sloka’s licence. Ms. J.H. testified that after Ms. Am.B. came across one of those articles, she asked Ms. J.H. about Dr. Sloka. Ms. J.H.’s disclosure ensued.

1447Ms. J.H.’s disclosure was captured on video by a motion activated baby monitor (Exhibit 150). According to Ms. J.H., she did not become aware that the monitor recorded video footage until informed by Detective Gilker that her disclosure had been recorded and that the police would be relying upon it. She repeated this claim in cross-examination. As will be seen, that claim has been demonstrably disproven.

1448The video footage of Ms. J.H.’s disclosure begins with only a dog and an infant on the screen. The dog is watching the infant. The infant is using the furniture to stand upright and move about. The adults in the room are off screen and silent for about the first 40 seconds of the video, apart from a brief expression of affection by Ms. Am.B. to the infant a little over 30 seconds into the video. About 46 seconds into the video, the disclosure conversation begins. The conversation consists of a brief rapid-fire series of questions and answers. It lasts all of 14 seconds. Immediately following the disclosure, the recording ends. There is no follow-up discussion. No questions by Ms. Am.B.. No elaboration by Ms. J.H. The tape just ends. The entirety of the conversation goes as follows:

Ms. Am.B.: You’ve never seen a Dr. Sloka, have you?

Ms. J.H.: Yeah.

Ms. Am.B.: In Kitchener?

Ms. J.H.: Yeah.

Ms. Am.B.: Apparently…

Ms. J.H.: Sexual harassment?

Ms. Am.B.: Yeah.

Ms. J.H.: Not surprised. He had me strip completely naked for my very first appointment.

Ms. Am.B.: Really?

Ms. J.H.: Yes.

The conversation then abruptly ends.

1449Other video clips were disclosed to the defence. The last of those clips contained a video of “the kids” kissing [Ms. J.H. also had a child at the time]. In a conversation about the kissing, Ms. Am.B. stated, “Oh my God. Hoping we got that on video too. That’s 3:24 [pm], okay?” Ms. J.H. agreed that Ms. Am.B. was identifying the time of day where they would find the recording of the kissing. Despite the plain meaning of Ms. Am.B.’s declaration, Ms. J.H. maintained that she had no idea that the baby monitory could capture video footage.

1450Ms. J.H. agreed that before coming forward to the police, she wanted some other evidence against Dr. Sloka so that it was not just her word against his. She agreed that she considered the video to be evidence that supported her claim, because it appeared to confirm that she had made allegations against Dr. Sloka before learning about the allegations of other patients in the media. As will be discussed in more detail below, Ms. J.H. revealed that on May 3, 2019, she was alive to the concept of media tainting. She recognized that media exposure could “sabotage” her allegations.

1451Ms. J.H. contacted the police the same day the disclosure video was recorded, May 3, 2019.

1452Considering the foregoing evidence, defence counsel accused Ms. J.H. of staging the disclosure video with Ms. Am.B.’s assistance. Ms. J.H. denied the accusation. The Crown did not call Ms. Am.B.

1453Ms. J.H. testified that immediately after the disclosure conversation with Ms. Am.B., she reviewed the CBC article Ms. Am.B. had been reading. The article was entitled, “Former Kitchener neurologist stripped of license after patients sexually assaulted.” The article was published on May 2, 2019. Ms. J.H. denied seeing any media publications about Dr. Sloka before Ms. Am.B. showed her this article. She testified that she did not follow the news or use social media regularly. On Ms. J.H.’s account, Ms. Am.B.’s mention of the article was a freak coincidence. Ms. Am.B. knew Ms. J.H. had seizures and that Ms. J.H. had attended school in Waterloo. While others in her life knew these basic facts, Ms. J.H. claimed that none of them ever brought to her attention any articles about Dr. Sloka. By May 3, 2019, there had been two waves of substantial media coverage of the CPSO investigation of Dr. Sloka. The first wave occurred in July of 2018, and the second wave followed the revocation of Dr. Sloka’s licence on April 30, 2019.

1454Ms. J.H. testified that she only read the one CBC article about Dr. Sloka. That article outlined the allegations of four patients. The allegations of those patients and the CPSO conclusions can be summarized as follows:

(1) Patient A alleged that Dr. Sloka proposed a physical examination to look for anything like moles. Dr. Sloka asked this patient to undress completely. He asked her to remove her gown during a visual examination and also when testing her reflexes.

(2) Patients B and C alleged that Dr. Sloka touched and cupped their breasts. Patient C told her family that she had been felt up.

(3) Patient D was a university student. She alleged that Dr. Sloka touched her genitals and rectum with an ungloved hand during at least three appointments.

(4) The CPSO concluded that these allegations constituted sexual abuse.

1455As can be seen, the CBC article contained salient features that mirrored Ms. J.H.’s allegations: nudity, searches for moles, breast touching/cupping, genital touching, and touching near the buttocks (rectal touching).

1456Ms. J.H. claimed to be dumbfounded by the CBC article. She testified that she did not read any more articles because she did not want to taint her account. She did not even click onto any of the hyperlinks in the article that connected to related stories about Dr. Sloka. She added that she was busy taking care of her child and that reading those articles would not be “productive.” However, she had previously testified that her child was napping when she was told about the article. Ms. J.H. replied, “You – you don’t stop caring for your child just because they’re down for a nap. You’re a mom 24/7.” She then shifted her position slightly, stating that she was overwhelmed and did not need any more external stimuli coming at her: “I’d had enough.”

The Evidence of Dr. Bril

1457Only Dr. Bril’s evidence regarding the cardiac and skin examinations bears any review, because Dr. Bril did not dispute the reasonableness of a neurological examination and Dr. Sloka disputed conducting a breast examination. Also, Dr. Bril’s evidence about the impropriety of a naked skin examination was not a material issue -- Dr. Sloka did not dispute the impropriety of a naked skin examination; instead, he disputed conducting the skin examination in this fashion.

1458Dr. Bril testified that a skin examination was not neurologically reasonable. In her opinion, the likelihood of neurocutaneous disease was so remote that a skin examination was not warranted.

1459However, elsewhere in her evidence, Dr. Bril confirmed that she authored a study that found that 13% of Ontario patients with NF1 also had seizures. She also suggested that the rate of neurofibromatosis occurrence in seizure patients was close to 1 in 100.

1460Also, elsewhere in her testimony, she acknowledged that standard screening questions about seizure risk factors can reasonably include questions about stigmata of neurocutaneous disease. Dr. Sloka’s consultation letter documented such an inquiry into seizure risk factors:

Past history is significant for head injuries with concussions. No family history of seizures, no febrile seizures, she has done well in school and was studying anthropology and has graduated, no meningitis or encephalitis, and she has several birthmarks.

1461Despite Ms. J.H.’s history of seizures and despite her report of birthmarks, Dr. Bril did not think a skin examination was justified. She maintained that the possibility of neurocutaneous disease was too remote. Moreover, she testified that, although Ms. J.H. reported several birth marks during the history, Dr. Sloka should have questioned further about the number and nature of the birth marks. Dr. Sloka’s consultation letter was silent on the number and nature of the birthmarks. Presumably, Dr. Bril was implying that his letter ought to have described the number and nature of the birthmark. Also, she testified that neurologists do not do skin examinations, which would seem to contradict evidence she gave elsewhere in the trial. Lastly, she testified that, “Furthermore you know his thinking by thinking by description and it’s reasonable, that she has juvenile myoclonic epilepsy which is not the type of seizures you see in NF1 but just as an aside you still – we still don’t do the skin exam.”

1462Dr. Bril’s stance regarding Ms. J.H. appeared to contradict evidence she gave elsewhere. On several occasions Dr. Bril indicated that skin examinations may be warranted if the neurologist reasonably suspected neurocutaneous disease and the patient reported skin lesions, even in situations where the patient reported one lesion/birthmark and was uncertain about the presence of any others. Indeed, even in circumstances where a neurocutaneous disease was not in the differential diagnosis, Dr. Bril testified that it might be reasonable to look for additional birthmarks on a patient if the patient reported one birthmark but was unsure about the existence of others. For example, while the skin examination would not be a neurologically reasonable investigation of a headache referral, it would “become a [reasonable] incidental thing.” Dr. Bril had also testified elsewhere that neurologists at her own clinic sometimes do skin examinations on neurofibromatosis patients, albeit targeted ones.

1463Dr. Bril also testified that a cardiac examination was not justified. She acknowledged that Ms. J.H. reported some losses of consciousness. However, she took the position that a neurologist must pay heed to the situation in which the loss of consciousness occurs. She did not agree with conducting cardiac examinations in all cases involving a loss of consciousness. In Ms. J.H.’s case, she did not think cardiac syncope was a plausible explanation for Ms. J.H.’s losses of consciousness. As noted above, she favoured the diagnosis of juvenile myoclonic epilepsy. Having said that, the Crown does not rely upon Dr. Bril’s opinion about the reasonableness of the cardiac examination.

The Evidence of Dr. Sloka

1464Dr. Sloka had almost no memory of Ms. J.H., but he did remember that she had juvenile myoclonic epilepsy and that she had been a race car driver. In his experience, JME was “not unheard of, but a little bit rare.” He did not have many patients with this condition. Dr. Sloka also considered Ms. J.H.’s occupation as a race driver to be rare.

1465Dr. Sloka relied upon his medical records for the truth of their contents. He also relied upon the other contents of Ms. J.H.’s medical chart for context.

1466Dr. Sloka received a referral from Dr. Snider to assess Ms. J.H. for possible seizure activity. Dr. Snider’s referral letter outlined relevant symptoms and indicated that Ms. J.H. had been instructed not to drive.

1467Ms. J.H.’s first appointment occurred on December 24, 2014. According to the history charted in Dr. Sloka’s consultation letter, Ms. J.H. described three types of events. She had episodes of “gapping out,” where she disconnected in the middle of conversations. Dr. Sloka referred to these episodes as absence seizures, otherwise known as petit mal seizures. She also experienced bouts of twitching, which Dr. Sloka described as myoclonic jerks. Additionally, she described two losses of consciousness where she also experienced convulsions.

1468After obtaining Ms. J.H.’s relevant medical history, Dr. Sloka proposed neurological, cardiac, and skin examinations. Dr. Sloka testified that the consent process (which takes place in the office) involves a description of what needs to be done and the reasons for it. Ms. J.H. had reported suffering from PTSD. He did not think it appropriate to delve into the reason for a patient’s PTSD before obtaining his patient’s consent. That can be a sensitive topic for a patient.

1469Dr. Sloka denied proposing or conducting a breast examination. He also denied telling Ms. J.H. that issues with breast tissue can cause seizures. There is no connection between breast tissue and seizures.

1470Dr. Sloka testified that he believed the medical literature indicated that a cardiac examination is standard for the investigation of a possible seizure disorder. In addition, he disagreed with Dr. Bril’s opinion that cardiac syncope was not a plausible explanation of Ms. J.H.’s losses of consciousness. He testified that a syncopal convulsion could look like seizure activity. Dr. Sloka also believed that cardiac arrhythmia could also explain Ms. J.H.’s gapping out events.

1471In response to Dr. Bril’s inference that Dr. Sloka was not truly concerned about cardiac syncope because he did not subsequently order a Holter monitor, Dr. Sloka pointed out that he charted a normal cardiac examination. He took the position that Holter monitor was not necessary following this normal cardiac examination.

1472The Crown did not cross-examine Dr. Sloka on his justifications for a cardiac examination, nor did the Crown challenge them in their submissions.

1473Dr. Sloka testified that he proposed a skin examination because he believed Ms. J.H. may have suffered seizures. When taking Ms. J.H.’s history, he asked a series of standard questions related to seizure risk factors, which include an inquiry regarding stigmata of neurocutaneous disease. He documented her responses to those screening questions in his consultation letter. Ms. J.H. told him that she had several birthmarks. Dr. Sloka denied inquiring about moles, stating that moles are not a symptom of neurocutaneous disease and have no connection to seizures. Dr. Sloka did not remember and did not make note of seeing any moles anywhere on Ms. J.H..

1474In his handwritten rough notes, he documented the following:

4 HI [ short for head injuries]

0 FH [short for family history]

Anthropology

0 meningitis / encephalitis

? BM [short for birth marks]

1475Dr. Sloka was not sure why he wrote a “?” beside “BM,” given that his consultation letter referred to several birth marks. He had no memory of these screening questions. He posited that she may have expressed some uncertainty at first and that after further questioning she described them better, but he did not know.

1476Based upon the data contained in the authoritative Ferner text, Dr. Sloka believed the incidence of neurocutaneous disease in seizure patients to be somewhere between 1:125 and 1:250. Relying upon the presence of birthmarks and what he considered a statistically significant incidence of neurocutaneous disease in seizure patients, Dr. Sloka believed a skin examination was justified.

1477Dr. Sloka testified that the proposed examinations required Ms. J.H. remove all clothing and to put on a gown. Dr. Sloka denied depriving Ms. J.H. of a gown.

1478The examinations took place in the examination room after Ms. J.H. had changed into her gown. The examinations began with Dr. Sloka taking Ms. J.H.’s vital signs. He then conducted, in this order, neurological, cardiac, and skin examinations.

1479Dr. Sloka testified that he conducted all examinations in accordance with his standard protocols.

1480Ms. J.H. was gowned for her neurological examination, not naked. Dr. Sloka maintained that he conducted his standard neurological examination. He denied squeezing Ms. J.H.’s thigh when testing her reflexes.

1481While Dr. Sloka charted a normal neurological examination in the examination portion of his consultation letter, he made note in the Impression portion of his letter that Ms. J.H. actually had an abnormal result, noting, “she has some mild reflex spreading” in her right arm. In cross-examination, Dr. Sloka acknowledged the error and conceded it constituted poor charting. Elsewhere in his evidence, Dr. Sloka testified that his standard neurological examination paragraph is a template generated by a voice activated dictation prompt. The implication here is that he did not amend the template to reflect abnormal findings or substitute it with an ad hoc dictation. Be that as it may, the abnormal finding was indeed charted elsewhere, in the impression portion of his letter.

1482Neither party asked any specific questions about Dr. Sloka’s cardiac examination.

1483Turning to the skin examination, as already noted, Dr. Sloka testified that all examinations (the skin examination included) were conducted in accordance with his standard protocols. He denied touching any moles on Ms. J.H.’s body. He did not remember any specific moles, including any mole on Ms. J.H.’s nipple. However, he did not discount the possibility that he saw moles on Ms. J.H.’s body as he looked for stigmata of neurocutaneous disease. While moles were not his focus, he testified that if he noticed an apparently cancerous mole during a skin examination, he might refer that patient to a dermatologist.

1484Dr. Sloka also denied touching or cupping Ms. J.H.’s breasts during the skin examination.

1485In cross-examination, the Crown suggested to Dr. Sloka that neurofibromas can be felt when palpated. Dr. Sloka agreed this was possible but also testified that neurofibromas can usually be spotted visually. They produce a lump. When asked, Dr. Sloka responded that he supposed that neurofibromas could be present in breast tissue. When asked, Dr. Sloka testified that he could not remember if he ever palpated for neurofibromas when screening for neurocutaneous disease. He stated that if he ever did so, it was rarely.

1486Dr. Sloka denied spreading the cheeks of Ms. J.H.’s buttocks during the skin examination. He also denied touching Ms. J.H.’s labia.

1487Dr. Sloka agreed, though, that the skin examination would include a visual inspection of Ms. J.H.’s pelvic region. He agreed he would crouch when examining the lower areas of a patient’s body.

1488Dr. Sloka maintained that, during the skin examination, he remained one to two feet away from Ms. J.H. When treating Ms. J.H., he did not yet wear reading glasses. His near-sighted vision ultimately deteriorated to the point that he relied upon reading glasses at the time of trial. He did not know when his vision began to decline.

1489Dr. Sloka acknowledged that he did not chart the skin examination in either his rough notes or his consultation letter. Elsewhere in this trial, Dr. Sloka repeatedly testified that he did not tend to document normal examination results in his consultation letters. His practice of charting skin examinations in his rough notes was inconsistent.

1490Following the examination, Dr. Sloka discussed his findings and his treatment plan with Ms. J.H. in his office. Dr. Sloka believed Ms. J.H. may have JME, but he denied conclusively diagnosing her with this condition. To arrive at that diagnosis, Ms. J.H. needed to produce abnormal EEG results, which had yet to occur. Upon review of Ms. J.H.’s chart, Dr. Sloka testified that Dr. Paul and Dr. Carlen subsequently diagnosed Ms. J.H. with JME.

1491Dr. Sloka ordered follow up tests, including a sleep-deprived EEG, spinal and head MRIs, and EMG studies on her right arm. Dr. Sloka also prescribed Keppra, an anti-seizure medication.

1492Dr. Sloka denied telling Ms. J.H. that he liked his patients and would therefore not be taking her licence away. He also denied writing the MTO to have her licence suspended. However, Dr. Sloka agreed that he told her not to drive. He also remembered talking to her about whether she would be able to drive on a private racetrack. He was not sure whether a racetrack constituted private property and would be exempt from a driving suspension. It was his understanding that a licence was not required to drive on private property. He did not believe, for example, that farmers needed a licence to operate a tractor on their farms.

1493Ms. J.H. saw Dr. Sloka in follow-up on March 4, 2015. She updated him on her symptoms and advised him that she had moved back home to Bowmanville to live with her parents. Ms. J.H.’s MRI results suggested an abnormality in her spine. Accordingly, Dr. Sloka referred Ms. J.H. to a neurosurgeon. At Ms. J.H.’s request, he made the referral to a neurosurgeon in Toronto. The neurosurgeon later concluded that Ms. J.H. did not require surgery. Dr. Sloka testified that he did not conduct any examinations at this appointment.

1494Dr. Sloka saw Ms. J.H. again on June 4, 2015. His consultation letter indicates that her symptoms had improved: her arm twitches had settled down and she had not suffered any tonic-clonic seizures or staring spells. Dr. Sloka also documented his decision to keep Ms. J.H.’s Keppra dosage at 1000 mg. He did not conduct any examinations at this appointment. He wrote, “I am very happy that she is doing better these days.” He planned follow-up in two months.

1495Ms. J.H.’s next scheduled appointment was on September 9, 2015. Ms. J.H. did not show up in person for this appointment. Instead, she phoned in. In his consultation letter, Dr. Sloka explained,

1496It is quite a distance for her to come [from Bowmanville] as she is not driving at present. I never do these MTO appointments over the phone although I made an exception in her instance because of the distance and the circumstances and if you have any concerns, please let me know although I am not expecting any concerns.

1497Dr. Sloka went on to write in his consultation letter that Ms. J.H. had been seizure free for six months and that he would write to the MTO to advocate for the return of her licence, connoting an awareness that her licence had been suspended by someone at some point. By this point in time, Ms. J.H. had obtained normal results from her sleep deprived EEG. Consequently, Dr. Sloka never made a JME diagnosis, despite considering it a possibility.

1498As indicated in his consultation letter, Dr. Sloka wrote to the MTO on September 9, 2015, and advocated for the return of Ms. J.H.’s licence.

Assessment of the Evidence and Analysis

1499Ms. J.H. was a dishonest witness and unreliable witness.

1500Having considered the evidence about her May 3, 2019, disclosure to Ms. Am.B., I have come to the conclusion that this video was staged for the purpose of buttressing Ms. J.H.’s allegations against Dr. Sloka. On this basis alone, I reject all disputed aspects of Ms. J.H.’s evidence.

1501Despite her evidence to the contrary, it is obvious that she had been made aware that the baby monitor made motion-activated video recordings of events in the room. It is equally obvious that she had been made aware that a recording had been made earlier in the day. I conclude she knew that she had recorded the disclosure conversation. Her evidence to the contrary was a lie.

1502I have watched the video footage of that conversation several times. That conversation arose out of nowhere. Ms. Am.B. betrayed no reason for an all too casual interest in the possibility that Ms. J.H. may have “seen” Dr. Sloka during her brief time in Waterloo. She does not even mention the existence of a media article. A rapid-fire, almost bullet point discussion ensued, ostensibly about a media article neither of them mentioned. Neither Ms. J.H. nor Ms. Am.B. displayed the slightest curiosity about contextual details involving either Dr. Sloka’s treatment of other patients. And Ms. Am.B. displayed absolutely no curiosity about the bald claim made by Ms. J.H. After Ms. J.H. and Ms. Am.B. rhymed off the basic bullet-points of their conversation, the 14-second conversation ended as quickly as it began. This video clip was an obviously staged production, made for the purpose of dishonestly buttressing Ms. J.H.’s allegations.

1503Ms. J.H.’s claim that Dr. Sloka used her driving privileges to bribe her into silence was also dubious and raises serious concerns about her credibility. Ms. J.H. claimed that on the date of her appointment, her licence had not been suspended. Indeed, she disputed that her licence was ever suspended. In my view, that claim is soundly rebutted by Dr. Sloka’s letters to the MTO and her family doctor on September 9, 2015. In his letter to the family doctor, Dr. Sloka mentions Ms. J.H.’s pre-existing suspension. The letter to the MTO was obviously written for the purpose of a licence reinstatement. Meanwhile, Dr. Sloka’s medical file does not contain any previous letter written by him to trigger the suspension of her licence. However, it does contain a referral letter from the family doctor in which the family doctor reported telling Ms. J.H. not to drive. Also, when testifying in-chief, Ms. J.H. said that she was concerned about her health and her ability to keep driving. Yet, when questioned about Dr. Sloka’s reinstatement request to the MTO, she testified that she was surprised he would write that letter and that, in the grand scheme of things, it did not matter because she did not resume driving until late 2019. I disbelieve her. I conclude she knew her licence had been suspended and she knew Dr. Sloka had written to obtain its reinstatement. She fabricated her claim that Dr. Sloka attempted to bribe her by refraining from triggering a licence suspension.

1504Ms. J.H.’s evidence about the layout of Dr. Sloka’s office also reflected negatively on her reliability and credibility. Her description of the layout featured prominently in her narrative of her allegations. Her evidence about her nudity at the outset of the examination was inextricably intertwined with her claim that Dr. Sloka’s office area and examination area were separated by a wall-to-wall curtain in one large room. She professed a vivid memory of drawing back the curtain to expose he naked body. This vivid memory was contradicted by her police statement, in which she told the police that Dr. Sloka drew back the curtain, not her. When confronted with the true state of affairs, her evidence shifted, and she claimed that she changed behind a smaller curtain within the examination room. Pressed further, she abandoned the claim of a curtain altogether but appeared to cling to the notion of a curtain as a metaphor for the loss of her privacy.

1505Ms. J.H.’s memory about the time of her appointment was also suspect. Ordinarily, a discrepancy between 11:00 a.m. and 1:00 p.m. is a small one, something a witness can readily acknowledge and move on. Ms. J.H., on the other hand, chose to advocate for herself and expend considerable effort at minimizing an otherwise insignificant discrepancy. As I said above, sometimes it is not the crime, it is the cover-up.

1506Ms. J.H.’s claim that she was nude from the outset of the examination is also cast into doubt by other evidence. Dr. Sloka charted neurological and cardiac examinations. His standard approach involves conducting these examinations before any skin examinations. And he took a patient’s vitals before commencing other examinations. There was a logic behind his approach. Ms. J.H. agreed to the possibility that Dr. Sloka performed these examinations. Indeed, Ms. J.H. alleged that Dr. Sloka tested her reflexes. She also stated that she was fully clothed for the reflex testing. On her evidence, any neurological and cardiac examination had to have occurred after the naked skin and breast examinations, after she put her clothes back on, but she clearly lacked certainty on this point. In my view, Ms. J.H.’s evidence about the sequence of examinations was unreliable.

1507There also exist strong grounds for concluding that Ms. J.H.’s purported memories and perceptions have (at the very least) been tainted by her review of allegations against Dr. Sloka in the media. In the media article she read on the day she fabricated a disclosure video, the CBC reported allegations of patient nudity, searches for moles, breast touching/cupping, genital touching, and touching near the buttocks (rectal touching). These reported allegations form the core of Ms. J.H.’s complaint against Dr. Sloka. This coincidence strongly supports the inference of either tainting or mimicry. Given the fabrication of the disclosure video, I am inclined to suspect mimicry.

1508Ms. J.H.’s evidence about the aftermath of the appointment also raises concerns about her credibility and reliability. She testified that she was crying as she walked to the car. Her face gets red when she cries. In short, she was visibly upset. She got a ride home. She believed her boyfriend had likely driven her. However, she could not remember with any certainty who drove. She also could remember nothing about the drive home. I consider it highly implausible that, if she was as visibly upset as she purported to be, that her emotional state would have gone unnoticed by her driver. Likewise, I consider it highly implausible that she would not remember what transpired in the car on the ride home. I disbelieve her claim that she was upset, let alone visibly upset. Her evidence on this point was another attempt to buttress her evidence. It backfired.

1509I have admitted cross-count similar act evidence as evidence relevant to a possible sexual purpose. I will discuss Dr. Sloka’s rebuttal of the inference of a sexual purpose when discussing his evidence. I will take a moment here, though, to discuss specific cross-count granular similarities relied upon he Crown to buttress Ms. J.H.’s evidence.

1510The Crown relies upon for granular cross-count similarities. First, Ms. J.H. the Crown contends that Ms. J.H. belongs to a constituency of patients who allege that Dr. Sloka performed skin examinations. Second, Ms. J.H. is one of three patients who allege the spreading of their buttocks. Third, Ms. J.H. belongs to a group of patients who allege that Dr. Sloka claimed to be looking for moles. Fourth, Ms. J.H. belongs to a group of patients who alleged that Dr. Sloka cupped their breasts. I will deal with each alleged similarity in turn.

1511Dr. Sloka acknowledged that he performed a skin examination on Ms. J.H. It was not a material issue. Only the manner in which it was conducted was material. The Crown has failed to rebut the substantial likelihood that exposure to media coverage tainted Ms. J.H.’s evidence about the manner in which Dr. Sloka conducted the skin examination. This granular cross-count similarity offers insufficient probative value.

1512I turn next to the alleged similarity concerning buttocks-spreading. In my view, the Crown has also failed to rebut the likelihood that Ms. J.H.’s evidence about buttocks spreading was tainted by media exposure. The CBC news article that Ms. J.H. read made explicit mention of rectal touching of one patient and a search for moles in another. Needless to say, the rectum can be found between the cheeks of the buttocks. Additionally, of the two other patients in this category, one of them, Ms. J.S., did not allege that Dr. Sloka spread her buttocks. Instead, she alleged that she spread her buttocks herself. I am also mindful of the small sample size (only 3 out of 48 patients) and cannot exclude the possibility of coincidence. This granular cross-count similarity lacks sufficient probative value.

1513The alleged cross-count similarity involving searches for moles also a lacks sufficient probative value for several reasons. To begin with, the Crown has failed to rebut the substantial likelihood that Ms. J.H.’s evidence was tainted by the contents of the CBC article she read. Moreover, Dr. Sloka conceded that he conducted a skin examination in exchange for birthmarks. The evidence in this trial, not to mention common sense and human experience, discloses that many people do not trouble themselves with the medical distinction between moles and birthmarks. In my view, this cross-count similarity offers no support for Ms. J.H.’s evidence.

1514The last alleged cross-count similarity involves breast touching. Again, the Crown has failed to rebut the substantial likelihood that Ms. J.H.’s evidence was tainted by the allegation of “cupping” she read about in the CBC article. Additionally, the term cupping is not used by all complainants in this constituency. Various descriptions are used. The Crown’s definition of cupping is overbroad and lacking sufficient specificity to have meaningful probative value.

1515Having considered the entirety of the evidence, including the similar act evidence relied upon by the Crown, I reject Ms. J.H.’s evidence where it materially conflicts with that of Dr. Sloka.

1516I turn now to the evidence of Dr. Bril.

1517The Crown does not rely upon Dr. Bril’s evidence regarding the reasonableness of Dr. Sloka’s decision to conduct a cardiac examination. Given Dr. Sloka’s reasoned disagreement with Dr. Bril’s position, the Crown’s failure to cross-examine him on that position, and the Crown’s decision to refrain from relying upon Dr. Bril’s position, I do not intend to discuss Dr. Bril’s opinion about the cardiac examination any further.

1518That brings me to Dr. Bril’s evidence regarding the propriety of a skin examination. In my view Dr. Bril provided inconsistent evidence on the topic of skin examinations. On the one hand, she considered the possibility of a seizure patient having NF1 to be “vanishingly rare.” She testified that she could not find a statistical number in the literature. Instead, she spoke to a number of epilepsy neurologists and relied upon their anecdotal accounts. They told her to expect less than 1 in 100 seizure patients to have NF1. Relying upon the statistics reported in Ferner’s book, which Dr. Bril conceded was authoritative, Dr. Sloka understood the incidence of NF1 in seizure patients to be somewhere between 1:125 and 1:250. This estimate roughly aligns with Dr. Bril’s anecdotal assessment. Dr. Sloka did not consider that statistical likelihood to be vanishingly rare. That is a reasonable stance. In my view, Dr. Bril’s evidence does not compellingly refute it. Conversely, Dr. Bril’s own study concluded that the incidence of epilepsy in NF1 patients is about 13%. Dr. Sloka’s consultation letter documented several birthmarks in response to a screening question about neurocutaneous disease, raising a subjective belief in the possibility of neurofibromatosis. Given that 13% of those who suffer that disease also experience seizures and given a possible 1:125 ratio of NF1 in seizure patients, Dr. Sloka’s declared subjective interest in assessing the nature of the “several birthmarks” strikes me as genuine and reasonable.

1519The Crown argues that Ms. J.H. in fact only had one birthmark. But that was not her evidence. She made specific mention of “a birthmark” in her evidence, when declaring she would have show it to Dr. Sloka if he was interested in birthmarks, not moles, but she never provided an exhaustive count of her birthmarks. In any event, given Ms. J.H.’s lack of candor and reliability, I am unable to rely upon her evidence about what she disclosed to Dr. Sloka.

1520Regarding Ms. J.H., Dr. Bril testified that neurologists do not do skin examinations. As discussed in the section devoted to a general assessment of Dr. Bril’s evidence, Dr. Bril gave inconsistent evidence on the question of neurologists performing skin examinations to investigate the possibility of neurofibromatosis. Having considered the entirety of Dr. Bril’s evidence, I agree with the defence contention that “Dr. Bril was a moving target.” I place no weight on this aspect of Dr. Bril’s evidence.

1521Dr. Bril discounted the importance of Dr. Sloka’s documentation of Ms. J.H. having several lesions. Here, she appeared to stray into advocacy. She remarked that Dr. Sloka did not describe these lesions, their precise number, or their location. However, she had no basis for knowing what Ms. J.H. told Dr. Sloka, either. She acknowledged the legitimacy of asking screening questions of seizure patients regarding stigmata of neurocutaneous disease but then balked at a Dr. Sloka relying upon the answer as a basis for performing a skin examination, despite contrary concessions she made elsewhere in her evidence about the propriety of skin examinations when the number of stigmata is not firmly established when taking the patient history.

1522Having considered Dr. Bril’s evidence on the topic of skin examinations, I am unable to conclude it undermines the sincerity of Dr. Sloka’s stated belief that a skin examination was a neurologically reasonable tool to investigate a possible cause of Ms. J.H.’s seizures.

1523It is now time to discuss Dr. Sloka’s evidence.

1524In my view, Dr. Sloka provided a cogent explanation of his approach to his assessment and treatment of Ms. J.H. Neither cross-examination, nor Dr. Bril’s evidence, nor Ms. J.H.’s uncredible and unreliable evidence meaningfully undermined Dr. Sloka’s evidence.

1525Ms. J.H.’s history provided a rational basis for believing Ms. J.H. suffered from three types of seizures. While Dr. Sloka suspected JME, that diagnosis could not be confirmed without an EEG. Dr. Bril did not contest the notion that a JME diagnosis could not be made in the absence of a confirming EEG result. Instead, she purported to know what Dr. Sloka was thinking.

1526Dr. Sloka’s justifications for conducting a cardiac examination were not challenged by the crown in cross-examination, nor disputed by the Crown in submissions. Dr. Sloka’s justifications appear eminently logical to me. Given the logic of his justifications and the lack of any challenge to them by the Crown, I accept the sincerity of his justifications.

1527Similarly, I accept the sincerity of Dr. Sloka’s stated justification for the proposed skin examination. His belief in the incidence of neurofibromatosis in seizure patients was supported by the data in Ferner’s book, which Dr. Bril conceded was authoritative. His estimation of the incidence 1:125-1:250 (i.e. less than 1:100) aligned roughly with Dr. Bril’s anecdotal assessment. I accept as reasonable and sincere his stated belief that this rate of incidence is not “vanishingly rare” but instead worthy of consideration.

1528I accept that Dr. Sloka asked screening questions about stigmata of neurocutaneous disease, not moles. He knew the difference between moles and diagnostically relevant stigmata of neurocutaneous disease.

1529I reject the Crown’s contention that Dr. Sloka’s documentation of Ms. J.H.’s birthmarks was internally inconsistent and contradicted by Ms. J.H.’s evidence. The Crown argues that the note of “?BM” in Dr. Sloka’s rough notes contradicts Dr. Sloka’s report of “several birthmarks” in his consultation letter. I do not see a contradiction. In the absence of a physical examination of any birthmarks, it seems entirely reasonable to write “?BM” as a way of denoting the disclosure of possible birthmarks of interest. “?BM” unquestionably confirms the inquiry. It was Dr. Sloka’s standard practice to dictate the consultation letter immediately after the appointment. In this contemporaneously written letter, he dictated that “several birthmarks” were reported in answer to his screening question. The suggestion of a contradiction is unfounded.

1530The Crown also argues that Ms. J.H. only had one birthmark. Implicitly, they argue that she would therefore not have reported “several” birthmarks. Indeed, Ms. J.H. denied any discussion of birthmarks. This claim is contradicted by Dr. Sloka’s contemporaneously written rough notes and consultation letter. As noted, I reject Ms. J.H.’s evidence where it materially conflicts with Dr. Sloka’s. Also, Ms. J.H. never provided a definitive and exhaustive list of the number of birthmarks on her body. Instead, when denying that Dr. Sloka inquired about birthmarks, she stated that she would have drawn Dr. Sloka’s attention to a birthmark she had. I am not sure if she was referring to the one on her foot, which she mentioned elsewhere, or a different one. She did not say. I reject the Crown contention that, when providing her history, Ms. J.H. had excluded the possibility of stigmata of neurocutaneous disease (the possibility of six café au lait spots, inguinal freckling, or axillary freckling). Instead, I accept that Dr. Sloka’s documentation supports his purported subjectively held basis for proposing a skin examination.

1531Having considered Dr. Sloka’s evidence regarding the justifications for his examinations, I conclude that Dr. Sloka has rebutted the inference of a sexual purpose that might otherwise be made available by the cross-count similar act evidence.

1532I also accept that Dr. Sloka conducted the skin examination in accordance with his training and standard protocols. Dr. Bril’s evidence, in my view, did not directly or sufficiently undermine Dr. Sloka’s evidence about the protocol he adopted. He denied deviation from his standard protocols and specifically denied the allegations made by Ms. J.H. Given my wholesale rejection of Ms. J.H.’s evidence, and my acceptance of Dr. Sloka’s medical motive, I have no reason to disbelieve Dr. Sloka’s evidence on this point. I also accept that the methodology adopted was intended to maintain proper draping and minimize exposure.

1533The Crown contends that Dr. Sloka cannot rely upon his consultation letter because it contains an error it its summation of the neurological examination. Consequently, the Crown argues that Dr. Sloka cannot offer reliable evidence about what transpired during the skin examination. I disagree. Although Dr. Sloka documented a normal neurological examination in the Examination portion of his consultation letter, he clearly documented an abnormal finding when subsequently dictating the Impression portion of the letter. Dr. Sloka reasonably conceded the dictation error. Any reasonable person reading the report would recognize that Ms. J.H. revealed some “mild reflex spreading” in her right arm during the neurological test. There is no other reasonable way to interpret the letter. Dr. Sloka’s drafting error was insignificant and does not undermine the truthfulness of the assertions made in the letter.

1534The Crown also argues that Ms. J.H.’s evidence about breast touching finds support in Dr. Sloka’s evidence. In particular, the Crown alleges that Dr. Sloka testified that he sometimes palpates the breasts of his patients in looking for neurofibromas. That was not his evidence. He could not ever remember having palpated for neurofibromas at all. He conceded that if he ever did so, it would have occurred rarely. When asked if neurofibromas could be present in breast tissue, he said he supposed so. He never said he sometimes palpates breast tissue for neurofibromas. Indeed, he denied touching Ms. J.H.’s breasts and denied conducting a breast examination.

1535The Crown challenges Dr. Sloka’s claim of an independent memory about Ms. J.H. being a race-car driver and his discussion of her ability to drive while under suspension. The Crown argues that this evidence is inherently unbelievable, “given how many patients he saw and how frequently he spoke about licence revocation in his practice.” This submission lacks merit. Dr. Sloka’s evidence about the reason for remembering these details is eminently reasonable and sensible. He described the conversation as, “a bit of a unique conversation.” He understood that 14-year-old children could drive tractors without a licence on farmland because the land is private property. He did not know if the same held true for someone on a racetrack. He suggested she speak to the owner of the racetrack to inquire. That is not a garden variety driver’s licence conversation with an epilepsy patient. It is, as Dr. Sloka put it, “a bit of a unique conversation.” I accept his stated reason for remembering this aspect of Ms. J.H.’s care.

1536The Crown also asks the court to draw negative inference against Dr. Sloka for his failure to write a letter to the MTO to trigger Ms. J.H.’s driver’s licence suspension. Importantly, the Crown makes his submission despite the fact that they did not cross-examine Dr. Sloka on this issue. Moreover, their submission depends upon the assumption that Ms. J.H. had not already been suspended before meeting with Dr. Sloka for the first time. There is no evidentiary basis for that assumption. Ms. J.H.’s family doctor clearly noted that she had told Ms. J.H. not to drive. Additionally, the conversation about the permissibility of driving on a racetrack only makes sense if Ms. J.H. had already been suspended. Moreover, despite Ms. J.H.’s claim that she had not been suspended, Dr. Sloka wrote a letter to the MTO to advocate for the re-instatement of her licence. I infer that Dr. Sloka would not have written the re-instatement letter if Ms. J.H.’s licence had not been suspended at some earlier point. Interestingly, Dr. Sloka made an “exception” for Ms. J.H. and allowed the licence reinstatement appointment to occur over the telephone, rather than insist Ms. J.H. return in person. In doing so, Dr. Sloka eschewed an opportunity to examine Ms. J.H. once more before writing the letter. Considered in its entirety, the evidence strongly supports the conclusion that the triggering of Ms. J.H.’s licence suspension occurred before she ever came into Dr. Sloka’s care. The evidence does not, as the Crown contends, support the conclusion that Dr. Sloka “flouted” his statutory obligation to trigger a driver’s licence suspension. Relatedly, the evidence does not support Ms. J.H.’s contention that Dr. Sloka bribed Ms. J.H. by assuring her that he would not trigger her suspension.

1537Dr. Sloka, of course, did not chart the skin examination. That is an area of concern. He testified that he did not tend to report negative findings for skin examinations. Given his documentation of skin examinations for at least some patients (in consulting letters or rough notes), I am not persuaded I can draw the inference that Dr. Sloka was attempting to conceal the existence of a skin examination from Ms. J.H.’s family doctor. In the end, he conceded conducting a skin examination, in conformity with his standard approach to seizure patients who report stigmata of neurocutaneous disease or report uncertainty about those stigmata.

1538Having considered the evidence in its entirety, I reject Ms. J.H.’s evidence where it materially conflicts with Dr. Sloka’s. I accept Dr. Sloka’s evidence regarding his subjectively held neurological justifications for the examinations he proposed. I thereby accept that Dr. Sloka possessed a medical purpose, not a sexual purpose when conducting neurological, cardiac, and skin examinations on Ms. J.H. I accept that he explained his justifications to Ms. J.H. and that she consented to these examinations. I accept Dr. Sloka’s evidence that he conducted these examinations in accordance with his training and standard protocols. I have no basis for concluding he conducted them in a sexual manner.

1539Having accepted Dr. Sloka’s evidence regarding his motivations for and methods of conducting his examinations, I am unable to conclude the evidence supports the conclusion that the examinations constituted sexual activity. Instead, I conclude that the examinations constituted medical activity for which Dr. Sloka obtained consent.

1540Dr. Sloka must be acquitted on this count.

ix. C.M. (Count 24)

A Summary of Ms. C.M.’s Complaint and Dr. Sloka’s Response to It

1541Ms. C.M. alleged that, during an examination that occurred when she was 15 years old, Dr. Sloka had Ms. C.M. progressively remove more and more clothes until she was completely naked. He then conducted a cardiac examination, placing the stethoscope under each breast and making contact with his hand against the underside of each breast as he applied the stethoscope. She also alleged that Dr. Sloka kneeled in front of her naked body during the reflex examination, putting him at eye level with her knees and exposed pelvic region. Additionally, she alleged that she lay naked on the examination table while Dr. Sloka conducted an eye examination.

1542Dr. Sloka testified that he performed neurological and cardiac examination in accordance with his standard methods. He acknowledged that she would have been gowned for her examination. However, due to Ms. C.M.’s age (under 18), he would not have her remove her bra and underwear.[23] He denied that Ms. C.M.’s naked body was exposed at any point during the examination.

The Circumstances of Ms. C.M.’s Referral and Treatment History

1543Ms. C.M. was 15 years old at the time of her referral. She had recently been diagnosed with epilepsy. Ms. C.M. was under the care of a family doctor and a pediatrician. Her family doctor was Dr. Shelly Metcalfe. Her pediatrician was Dr. Jodi Rosner. Dr. Metcalfe made the referral on December 15, 2011. In the referral request, Dr. Metcalfe stated the reason for the referral as follows: Seizure disorder, affecting school, depression, uncontrollable outbursts, weight increasing. Dr. Metcalfe sought an appointment “ASAP.”

1544Ms. C.M. had a total of four appointments with Dr. Sloka. The first occurred on December 30, 2011. The last occurred on August 17, 2012.

The Evidence of Ms. C.M.

1545Ms. C.M. was 25 years old when she testified.

1546Ms. C.M. testified that she had obtained her epilepsy diagnosis shortly before her being referred to Dr. Sloka. Her pediatrician had struggled with finding the right medications to control her epilepsy. Ms. C.M. was having so many seizures that her mother removed her from school. As she understood it, Dr. Sloka was being asked to determine the medication regimen necessary to control her epilepsy.

1547Ms. C.M. alleged that the sexual assault occurred on the very first visit. That visit occurred on December 30, 2011. She did not allege that Dr. Sloka engaged in any sexual impropriety at subsequent appointments.

1548I will now summarize the evidence Ms. C.M. provided in-chief about what transpired at her first appointment. Once the in-chief evidence has been summarized, I will address the noteworthy evidence elicited in cross-examination.

1549Ms. C.M. had an excellent recall of the location and layout of Dr. Sloka’s office. She attended the first appointment with her mother. She and her mother sat in Dr. Sloka’s office during the initial consultation. Dr. Sloka obtained a detailed medical history from her and her mother. She and her mother sat in chairs against the wall that separated the office from the adjoining examination room. Those chairs were also beside the door that led from the office to the examination room. Dr. Sloka sat across from them at his rounded L-shaped desk.

1550After taking her history, Dr. Sloka told her, in the presence of her mother, that he would like to perform an examination. She could not recall if he provided any specific explanations regarding the purpose of the physical examination. In any event, her evidence suggests her mother knew that Dr. Sloka wanted to perform an examination, and she permitted the examination to take place. For her part, Ms. C.M. demonstrated an agreement to the examination by proceeding into the examination room as requested. Ms. C.M. testified that Dr. Sloka told her to obtain a gown from the examination room, remove her top, and put on her gown. According to Ms. C.M., he told her all of this in the presence of her mother. He also told her to keep on her bra and pants.

1551Ms. C.M. went into the exam room, closed the door, and got changed as instructed. Dr. Sloka waited in the office with her mother. After she got changed, she either sat or lay down on the examination table. The examination table was opposite the door that connected the examination room to the office. She accurately described the examination table as being across from the door and aligned slightly to the left, just as it is depicted in Exhibit 2. She also described it as being directly against the wall, consistent with the orientation of the bed as depicted in Exhibit 2.

1552According to Ms. C.M., Dr. Sloka entered the examination room, closed the door behind him, then sat on the examination table beside her. According to Ms. C.M., the door between the examination room and the office remained closed for the duration of the physical examination.

1553When Dr. Sloka entered the examination room, Ms. C.M. was sitting up on the table with her feet hanging over the side and facing the closed door that connected to the office where her mother sat.

1554According to Ms. C.M., Dr. Sloka said he needed to do an examination. While standing in front of her, he then briefly felt around her lymph nodes on her neck with his fingers. Dr. Sloka then asked her to remove her pants. Complying with that request, she stood up and removed her pants, leaving them on the floor with her shirt. She then sat back down on the examination table beside Dr. Sloka. He then asked her to remove her underwear. She again stood up, removed her underwear, and sat back down. He then asked her to remove her bra and gown. After she undid her gown and began to undo her bra, Dr. Sloka allegedly said that he would do it for her. He then unfastened her bra and removed her gown and bra in one motion, adding them to the pile of clothes on the floor.

1555According to Ms. C.M., Dr. Sloka then used a stethoscope to listen to her chest and back. On her evidence, when he listened to her chest, he held the stethoscope under each breast and pushed up against each breast, making contact with his hand and moving her breast in the process.

1556After this portion of the examination, Dr. Sloka asked her to lay down on the bed. She complied with that request and lay completely naked on the examination table for the ostensible eye examination. At this point, he used a light to examine her eyes. She testified that he either stood at the head of the bed when doing this, or slightly askew to the head of the bed. However you slice it, this would seem to be a rather unusual way to do an eye examination.

1557She testified that after the completion of the eye examination, Dr. Sloka asked her to sit up again. She sat up with her feet hanging over the side of the bed. He then knelt in front of her naked body, eyes at knee level, and tested her knee reflexes. Situated thus, Dr. Sloka was positioned to observe her exposed pelvic region at eye level. According to her, the examination then ended. He told her she could get dressed and left the room to afford her privacy to get dressed.

1558Ms. C.M. then said Dr. Sloka spoke briefly with her and her mother in the office, at which point he discussed a new medication regime. They left with a new prescription and a plan to have a follow up appointment wherein they would assess the effectiveness of the new medication.

1559Ms. C.M. testified that she and her mother spoke about the appointment on the way home. According to Ms. C.M., her mother told her that Dr. Sloka had a “creepy” demeanor. Ms. C.M. purportedly agreed with that assessment but did not mention anything about what had allegedly transpired in the examination room, despite the examination making her feel uncomfortable. To explain her silence in the face of her mother’s expressed concern about Dr. Sloka, Ms. C.M. testified that she did not believe her mother would do anything about it.

1560Ms. C.M. testified that she never disclosed her allegations to anyone until after she read news of the allegations against Dr. Sloka. She first saw news stories about Dr. Sloka in the summer of 2018. However, she did not come forward until July of 2019, when the media reported that Dr. Sloka had been criminally charged. At that juncture, she purportedly disclosed her allegations to her fiancé. She did not speak to the police until October of 2019.

1561Ms. C.M. agreed that, when she first saw media coverage about Dr. Sloka in the summer of 2018, she may have read about patients alleging that they were required to remove all their clothes or more clothing than was necessary. Ms. C.M. also read an article in July of 2019 about the arrest of Dr. Sloka on 34 counts of sexual assault. She testified that the news validated her feelings that her examination was wrong. However, she did not contact the police until October of 2019.

1562Ms. C.M. testified that she first disclosed her allegations to her fiancé, shortly after reading media articles in July of 2019. She testified that she soon thereafter disclosed to her mother. Some time later, she disclosed to her father.

1563I will now summarize noteworthy evidence elicited during cross-examination.

1564Ms. C.M. testified that she came forward to obtain justice for what had happened to her. However, she told the police something different. In her police interview, she said that she did not know whether her information was useful -- remember, her allegation involved the naked examination of a 15-year-old, but did not yet include allegations of breast touching or the testing of her reflexes while at eye level with her exposed pelvic region – but that she was motivated by the desire to strengthen the existing case involving the 34 other complainants, whom she believed had it “worse” than she did.

1565When presented with her statement, Ms. C.M. denied the motivation she had declared to the police. She maintained that she wanted justice for herself, not to strengthen the case of other complainants. She then pivoted and testified that, even if she did not obtain justice for herself, she hoped that her complaint would make other women feel empowered to come forward. Despite the plain meaning of her words to the police, she continued to maintain that she did not come forward with the intent to strengthen the case of other complainants.

1566Ms. C.M. was 23 years old at the time she gave her police statement. She agreed that she was attempting to be as complete and accurate as possible and that she knew that the police would be interested in any allegations about Dr. Sloka invading her personal space or doing anything that seemed inappropriate or medically unwarranted.

1567Despite her mindset at the time she provided her police statement, Ms. C.M. did not allege that parts of Dr. Sloka’s hands touched her breasts as he placed the stethoscope under them. She failed to mention the contact with her breasts, despite her evidence that this was the most upsetting part of the entire examination. Instead, she told the police that all she remembered was Dr. Sloka’s hand on the stethoscope underneath her breast. Ms. C.M. initially explained the omission as a failure to communicate clearly. On her evidence, she had intended to convey to the police that Dr. Sloka had touched her breasts. She also blamed the omission on the failure of the police to make further inquiry: “I guess I was not asked to specify what it looked like when his hand was under my breast. The whole sequence of his hand under my breast, I did not know that at the time in my statement I had to expand on that fully.”

1568Compared to her statement to the police, Ms. C.M. provided an inflated estimate of the duration of time that the stethoscope was positioned beneath each breast. The duration provided to the police was 20 seconds. The duration provided at trial was 30 to 45 seconds.

1569Ms. C.M. also omitted from her police statement her testimonial allegation that Dr. Sloka kneeled down in front of her naked body at eye level with her exposed pelvis as he checked the reflexes on her knees. She explained that she was more focused on the touching of her breasts, which she considered to be the primary violation. She also explained that she was overwhelmed when providing her police statement. However, it is clear from the tenor of her evidence that she was purporting that this body positioning concerned her. Observing her testimony, it is clear to me that she possessed a current understanding of the significance of a man kneeling at eye level and facing her naked pelvic region when she was a 15-year-old. She provided her police statement 2 years before testifying – when she was a 23-year-old adult. It is obvious that the significance of this accusation would have been apparent at the time she provided her police statement.

1570Ms. C.M. also omitted from her police statement her claim that Dr. Sloka stood over her, at the head of the examination table, and shone a light into her eyes while she lay there naked. She again explained that she was focused on the cardiac examination when speaking to police. Again, I note that she spoke to the police 2 years ago, as a 23-year-old adult, long after she purported to realize that what allegedly occurred in Dr. Sloka’s office had no place in a proper physical examination.

1571Ms. C.M. also rejected the suggestion that the door remained open for the duration of the examination with her mother seated beside the open doorway just inside Dr. Sloka’s office. Defence counsel asked, “So, if your mother [whom the Crown had announced would be their next witness] for example were to come to court and suggest that the door was left open, you would disagree with that?” Ms. C.M. confirmed her disagreement.

1572Ms. C.M. also failed to mention to the police the post-appointment conversation with her mother in which her mother called Dr. Sloka “creepy.” This detail was advanced for the first time at trial.

1573Before calling Ms. C.M. as a witness, the Crown had announced that Ms. C.M.’s mother would be called immediately after Ms. C.M. Shockingly, the Crown announced at the conclusion of Ms. C.M.’s cross-examination that they had decided against calling her mother as a witness.

1574Before suggesting the sequence of Dr. Sloka’s standard neurological and cardiac examinations, defence counsel confirmed Ms. C.M.’s account of the sequence of tests. On her account, Dr. Sloka checked her lymph nodes, then examined her chest and back with a stethoscope, then examined her eyes as she lay on the examination table, then had her sit up so that he could check her knee reflexes. Defence counsel then took Ms. C.M. through each step of Dr. Sloka’s standard neurological examination, in the standard order. Ms. C.M. could not remember whether these standard tests occurred but could not dispute that they in fact occurred, and in the order suggested. Defence counsel next suggested that Ms. C.M.’s cardiac examination began with her legs stretched along the length of the examination table. She testified that she did not believe she sat in this fashion, but she did not remember. She also continued to maintain a memory of Dr. Sloka listening to her chest as her legs dangled over the side of the examination table.

1575Counsel also questioned Ms. C.M. about her third visit with Dr. Sloka. According to Dr. Sloka’s consultation letter for that visit (April 12, 2012), Dr. Sloka measured Ms. C.M.’s orthostatic vital signs and performed a “limited” cardiac examination upon her. Ms. C.M. did not recall Dr. Sloka performing any examination.

1576Ms. C.M.’s evidence about the sequence of her disclosure changed in cross-examination. Recall that Ms. C.M. originally testified that she first disclosed to her fiancé, shortly after reading media articles in July of 2019. She testified that she soon thereafter disclosed to her mother. Some time later, she disclosed to her father. However, by the end of cross-examination, she acknowledged that she disclosed to her mother in the summer of 2018 and to her fiancé about a year later, in July of 2019.

The Evidence of Dr. Bril

1577Dr. Bril stated the obvious: there was no justification for examining Ms. C.M. in the manner she described. Dr. Sloka agreed with this aspect of Dr. Bril’s opinion.

1578However, Dr. Sloka insisted that his cardiac examination was medically warranted. In their submissions, the Crown has stated that they do not challenge Dr. Sloka’s decision to conduct a cardiac examination on any of Dr. Sloka’s patients. While the Crown may not rely upon it, Dr. Bril’s opinion on this subject occupied a significant portion of her opinion in relation to Ms. C.M. In my view it is important to address it.

1579Dr. Bril testified that a cardiac examination was not medically warranted. Dr. Sloka testified that a cardiac examination was warranted because Ms. C.M. had described an episode involving dizziness and loss of consciousness. Dr. Bril did not view the episode in the same way. She viewed that episode as simply a more dramatic seizure than her other seizures. She discounted the possibility of cardiac syncope, saying, “Highly unlikely. Really remote. I don’t think so at all neurologically.” She did not allow for the possibility that other neurologist might validly disagree: “Not reasonable neurologists. They wouldn’t be listening to her heart.”

1580Clearly, Dr. Bril lacked a sense of irony, because Dr. Bril had provided a contrary opinion when speaking to the Crown in preparation for trial on November 12, 2021. In that meeting she stated that the cardiac examination was “iffy but okay.” When asked about that contrary opinion, she testified that, while her opinion was reasonable on November 12th, she no longer held that opinion because she had since discounted the possibility that Ms. C.M.’s dizziness and loss of consciousness could have been a fainting spell. Her opinion had shifted. She then added that the shift was “… all coloured by the fact that I’ve said neurologists aren’t listening to the heart anymore as the preferred way of listening to the heart.” As noted elsewhere in these reasons, her belief that neurologists were no longer doing cardiac examinations was informed by a single conversation with a single doctor (the head of the stroke program at the University Health Network in Toronto – one of the largest and well-equipped hospitals in the country) and a single resident from the UHN. Before that conversation, Dr. Bril still thought neurologists were conducting cardiac examinations. Needless to say, Dr. Sloka formed his opinion years before Dr. Bril spoke to the head of her stroke clinic, back in the days when she still believed neurologists listened to the heart.

The Evidence of Dr. Sloka

1581Dr. Sloka had no independent memory of Ms. C.M. He relied upon his consultation letters for the truth of their contents. He also relied upon the rest of Ms. C.M.’s medical file for context.

1582Dr. Sloka noted that Ms. C.M.’s family doctor made the referral. Her family doctor had identified her as having a seizure disorder and difficulties associated with that disorder.

1583Ms. C.M. first met Dr. Sloka on December 30, 2011. Dr. Sloka had no memory of whether her mother attended the appointment too. He made no mention of it in his consultation letter.

1584The appointment began by Dr. Sloka taking Ms. C.M.’s medical history. Amongst the facts he recorded in Ms. C.M.’s history, Dr. Sloka noted that Ms. C.M. was having unusual episodes which could begin in the middle of any activity, including walking. At the onset of an episode, she would stop, and her arms would shake. During the episode, she would be cognizant of her surroundings and able to answer people. Afterwards, she would feel tired and out of it, usually requiring sleep. Recently, she had experienced these events once or twice a day. Ms. C.M. also described another event where she became dizzy to the point she grabbed onto walls, she began shaking, then she lost consciousness. Ms. C.M. had been placed on carbamazepine which was initially effective. However, Ms. C.M. complained of significant side effects, including the following: the development of a headache about 30 minutes after taking the medicine, diplopia (double vision), dizziness, and shaking. However, she had been seizure free for a month.

1585Dr. Sloka testified that he proposed and conducted neurological and cardiac examinations. According to Dr. Sloka’s understanding of the medical literature at the time, a cardiac examination is part of the standard approach for the assessment of a seizure patient. Additionally, he testified that the loss of consciousness episode may have been the product of syncopal convulsion [fainting accompanied by convulsions]. He described syncopal convulsion as within the realm of possibility. According to Dr. Sloka’s understanding of the medical literature, a cardiac examination was indicated and appropriate. Cardiac examinations formed part of his standard approach to loss of consciousness patients. The examinations provided information regarding the functioning of the patient’s heart and resulting blood flow to the patient’s brain.

1586Dr. Sloka disagreed with Dr. Bril’s opinion that a cardiac examination was not warranted. In his view, the loss of consciousness event seemed like it could have been a syncopal event. Also, he testified that Ms. C.M.’s other events were difficult to categorize. Some aspects of her typical episodes did not seem consistent with seizures.

1587Dr. Sloka also testified that he considered a cardiac examination warranted because of the medication that had been prescribed to Ms. C.M. Carbamazepine can have cardiac side effects when taken excessively. In Dr. Sloka’s view, cardiac toxicity was a relevant concern. He wanted to make sure that her medication had not caused any injury to her heart.

1588Dr. Sloka denied recommending a skin examination. He explained that he viewed his role as more being a manager of Ms. C.M.’s medications, given her negative reaction to carbamazepine. He added that he would have asked his standard systems review questions, which would include questions about her skin; however, he did not document any such inquiry in his consultation letter. Dr. Sloka conceded that, had Ms. C.M. identified the existence of stigmata of neurocutaneous disease, he might have proposed a skin examination. As it stood, Ms. C.M. did not provide any testimony suggesting the existence of any stigmata of neurocutaneous disease; she also did not allege that Dr. Sloka conducted a skin examination.

1589Dr. Sloka testified that, given her age, he would have told Ms. C.M. to keep her bra and underwear on when getting gowned. This was his standard approach with children. He had no memory of whether she removed her pants or kept them on. He thought she likely kept her pants on because none of her neurological issues concerned her legs.

1590Dr. Sloka could not remember whether the door to the examination room remained open for the examination. However, he testified that he would often leave the door open when examining patients under the age of 18 (presuming a guardian was in the adjoining office).

1591Dr. Sloka testified that he conducted his neurological and cardiac examinations in accordance with his standard methods. He did not remember palpating Ms. C.M.’s neck, but her documented history and presentation provided him no reason to do so.

1592Dr. Sloka denied asking Ms. C.M. to remove her gown, pants, bra, and underwear once the examination got underway. He also denied untying Ms. C.M.’s gown and removing her gown and bra by himself.

1593Dr. Sloka also denied sitting next to Ms. C.M. as she sat naked on the examination table.

1594Dr. Sloka denied exposing the right side of Ms. C.M.’s chest for the examination. He also denied any contact with her right breast. His cardiac examination involved only the left side of her chest.

1595Dr. Sloka agreed it was possible that there may have been incidental and unintentional contact with Ms. C.M.’s left breast as he placed the stethoscope at various locations on that side during the cardiac examination. However, Dr. Sloka maintained that Ms. C.M. never removed her bra.

1596In cross-examination, Dr. Sloka acknowledged that, on occasion, with some large breasted patients he might need to move the patient’s breast with the back of his hand to listen to the heart. The Crown did not ask Dr. Sloka if Ms. C.M. was a large breasted patient. Ms. C.M. did not testify that she was a large breasted patient. She only testified about recent significant weight gain. Dr. Sloka testified that he had no memory of whether he needed to move Ms. C.M.’s breast to facilitate the cardiac examination but, given her age, he testified that he would have avoided it.

1597Dr. Sloka denied having Ms. C.M. lay down, naked or otherwise, after the completion of the cardiac examination.

1598Dr. Sloka also denied kneeling in front of Ms. C.M. to test her knee reflexes as she sat naked before him.

1599After the completion of the cardiac examination, Dr. Sloka returned to his office to discuss his findings with Ms. C.M. He concluded that Ms. C.M. was experiencing peak dose effects (toxicity) from the carbamazepine. He prescribed a different medication in the hopes of safely managing Ms. C.M.’s symptoms. He planned to wean her of the carbamazepine and gradually increase the dosage of her new drug (lamotrigine). All these conclusions were documented in his consultation letter.

1600Dr. Sloka saw Ms. C.M. three times in follow-up.

1601At a follow-up appointment on April 12, 2012, Dr. Sloka conducted a physical examination. At that appointment, Ms. C.M. had reported episodes where she felt dizzy, nauseated, and tired. These episodes did not seem to be related to her previously described episodes, and they did not appear to be related to her medications. He testified that he wanted to be sure that there did not have a cardiac cause. Instead of a complete cardiac examination, Dr. Sloka documented the performance of a “limited” cardiac examination. According to Dr. Sloka, his limited cardiac examination entailed him slipping the stethoscope down behind her clothing and then placing the bell of the stethoscope on her skin, while he held it in place from the outside of her clothing.

1602By the date of Ms. C.M.’s final appointment on August 17, 2012, she had been seizure free for 7 months. She was tolerating her lamotrigine well. Consequently, Dr. Sloka decided to write the MTO to advocate for the return of Ms. C.M.’s licence. In his consultation letter, he conveyed to her doctors that he would not make any plans to see Ms. C.M. again. His care for Ms. C.M. ended on this date.

1603Four years later, on October 16, 2016, Dr. Sloka received a letter from Dr. Lawson, from Bancroft, Ontario. Ms. C.M. had become Dr. Lawson’s patient. Dr. Lawson sought guidance about the treatment of Ms. C.M. On November 12, 2016, Dr. Sloka corresponded with Dr. Lawson and provided his written guidance.

Assessment of the Evidence and Analysis

1604Ms. C.M. was neither credible nor reliable.

1605She told the police that her decision to lodge a complaint was motivated by a desire to support the cases of other complainants. Her attempts to disavow that purpose was unconvincing and harmed her credibility. In my view, her agenda harms both her reliability and credibility.

1606The severity of Ms. C.M.’s accusations has grown since her initial statement to the police. Since her police complaint, the following details were added to her account: the allegation that Dr. Sloka pushed his hands up against the underside of her breasts; the allegation that she sat completely naked on the edge of the examination table while Dr. Sloka tested her knee reflexes; and the allegation that Dr. Sloka knelt before her exposed pelvic region as he tested her knee reflexes. She also amplified her estimation about the duration of time the stethoscope was under each breast, effectively doubling her original estimate. At the time she gave her statement, she was an adult. She knew that the police wanted a complete and accurate account of her complaint. She knew that the police would be interested in the details that she had omitted. She testified that the alleged breast touching was the most upsetting part of the entire examination, and yet she still omitted this detail in her statement. Her attempts to explain the absence of these details from her statement were not convincing and raised concerns about her credibility. I infer that Ms. C.M.’s augmentation of allegations arose from a desire to support her fellow complainants and from a desire to make Dr. Sloka’s conduct appear more unambiguously sexual and predatory.

1607Ms. C.M. also advanced for the first time at trial that her mother and she talked about Dr. Sloka on the way home from the appointment. Her mother allegedly called Dr. Sloka “creepy.” Ms. C.M. purportedly agreed with that assessment but said nothing more. Ms. C.M. claimed that this conversation simply did not come to mind when speaking to the police. I find that unlikely, because the police had specifically asked her to inform them about the person to whom she first spoke about Dr. Sloka. She was allegedly talking with her mother about her creepy doctor right after the appointment, yet she failed to mention this to the police. Concerningly, the Crown changed course and decided not to call Ms. C.M.’s mother, despite previously announcing the intention to do so. The failure to call Ms. C.M.’s mother leads to an adverse inference her mother would not have provided evidence that assisted the Crown on these issues.

1608Ms. C.M.’s in-chief description of the examination effectively excluded the possibility that Dr. Sloka performed his standard neurological examination before conducting his standard cardiac examination. The limited elements of the examination she purports to have occurred, strung together in the sequence she purports, have an inescapably lurid connotation, with limited diagnostic value. Yet, in cross-examination, Ms. C.M. conceded the possibility that Dr. Sloka began the examination with each and every component of Dr. Sloka’s standard neurological examination, followed by a cardiac examination that possibly could have begun with her legs stretched along the examination table. If the neurological examination was the first examination and contained Dr. Sloka’s standard tests in the standard sequence, there would be no reason to test Ms. C.M.’s reflexes or look in her eyes after listening to her chest.

1609The Crown argues that, because Ms. C.M. was 15 years old at the time of her appointment, little concern ought to arise from any inconsistencies and memory gaps in her evidence. The Crown points to a body of caselaw concerning credibility assessments of child witnesses. The cases upon which the Crown relies typically involve much younger child witnesses. A 15-year-old can get a job. A typical 15-year-old is typically in either grade 9 or grade 10. A 15-year-old can write exams at high school. There is a large developmental gap between a 15-year-old and the grammar school children referred to in much of the jurisprudence relied upon by the Crown. While I accept that the evidence of children ought to be considered in light of their incomplete development, understanding, and ability to communicate, I reject the contention that all children under 18 should be considered as developmental equals. The Supreme Court has made it clear that every witness must be assessed using criteria appropriate to their level of development – it has directed an individualized approach, not a categorical one. Funnily enough, Ms. C.M. was the first witness in this trial who was able to provide a detailed and accurate description of the layout and contents of Dr. Sloka’s office. She was the 19th complainant to testify. Her ability to recall these mundane details was outstanding. This fact undermines the Crown’s contention that a relaxed approach to the assessment of her evidence is warranted. Additionally, I remind myself that a relaxed standard will typically be more suitable on peripheral matters than on core elements of the complaint. The inconsistencies which raise concern here are not peripheral matters; they involve the core of Ms. C.M.’s complaint. Finally, I remind myself that Ms. C.M. was adult when she provided her police statement. The inconsistencies and omissions at issue here involve differences between her police statement, given at 23 years old, and her testimony, given at 25 years old.

1610I have permitted cross-count similar act evidence to support the inference that Dr. Sloka possessed a sexual purpose when examining any given patient in this case. That potential inference, if drawn, can incidentally assist in proving the acts alleged and sexual nature. It may also incidentally rebut innocent explanations, such as accident. However, as will be discussed momentarily, Dr. Sloka has provided compelling evidence that refutes any inference of a sexual purpose.

1611The Crown argues that Ms. C.M.’s evidence finds support from a more granular similarity between the evidence of some patients and her own evidence. In my view, the Crown’s arguments are not compelling.

1612Specifically, the Crown argues that Ms. C.M. belongs to a constituency of patients who allege that Dr. Sloka failed to identify the examinations being proposed and failed to explain the reason for those examinations. Far too many of the patients the Crown places in this constituency simply do not belong in it. Ms. C.M. is one of them. Ms. C.M. had a poor and incomplete memory of what Dr. Sloka told her about the examinations ultimately conducted. She conceded the possibility that Dr. Sloka may have told her that he wanted to do some basic neurological tests to see whether there was a connection between her brain and her symptoms. She also conceded the possibility that Dr. Sloka told her that he wanted to conduct a cardiac examination to determine whether any issue with her heart could explain her seizures. She simply could not remember everything that Dr. Sloka may have told her. Accordingly, her entire memory of the actual examination suffered from a deficit of context. It becomes much harder to remember what occurred during an examination when one does not remember its purpose. Moreover, it becomes much easier to become the subject of tainting.

1613In Ms. C.M.’s case, I conclude that there exists a substantial likelihood of tainting, which the Crown has failed to rebut. The evidence at trial discloses that Ms. C.M. was exposed to news from a wave of media in the summer of 2018 and then news from a wave of media in July of 2019. She agreed she may have read about patients complaining about the removal of all their clothing. She agreed that what she read in the news brought her to the point of concluding her own examination was wrong. Media articles available to Ms. C.M. before her police complaint also included allegations of breast touching. Additionally, she testified that the police detective who interviewed her made some very concerning comments. The officer allegedly told her that what Dr. Sloka did to her was not right and was outside the scope of what a doctor would do. The officer also allegedly told her that there were a lot of similarities between her allegations and those of other patients. Perhaps most concerningly, the officer allegedly told her that there is “strength in numbers” in cases like this. The comments attributed to the officer ought to be avoided. Comments like these would not contribute to the integrity and reliability of Ms. C.M.’s evidence. They would create a risk of tainting, a risk of animus, and a risk of bias. An investigation is not a recruitment drive.

1614The Crown argues that parts of Dr. Sloka’s evidence provide confirmation of Ms. C.M.’s complaint, thereby rebutting any likelihood of media tainting. I disagree. Nothing in Dr. Sloka’s evidence provides confirmation on any material issue of fact, only non-contentious matters, like the existence of a neurological examination or the use of a stethoscope.

1615The Crown also argues that Ms. C.M. was morbidly obese, and that Dr. Sloka would have needed to move Ms. C.M.’s breast tissue when listening to her heart, which he did from time to time when a patient’s large breasts interfered with a cardiac examination. The Crown’s submission here is speculative. I accept that there was evidence that Ms. C.M. had gained weight in the months preceding her appointment with Dr. Sloka, to the point that she was obese. However, the Crown tendered no evidence about Ms. C.M.’s breast size. Ms. C.M.’s description of the alleged breast touching offers no insight on that issue. The Crown invites speculation. I am not prepared to engage in that speculation.

1616Given the credibility and reliability concerns raised by Ms. C.M.’s evidence, I reject her description of her physical examination at her first appointment, which is the only appointment in which the Crown alleges any sexual activity occurred.

1617I turn now to the evidence of Dr. Bril. Dr. Bril’s opinion about the inappropriateness of naked neurological and cardiac examinations is not controversial.

1618While the Crown does not rely upon Dr. Bril’s evidence regarding the neurological reasonableness of a cardiac examination, it would not matter if they did. Dr. Bril’s evidence about the reasonableness of a cardiac examination was inconsistent with a previously expressed opinion and clearly tainted by her reliance upon the anecdotal input of the head of the stroke clinic at her hospital. Her assertion that no reasonable neurologist would consider a cardiac examination was astonishing, given the prior contradictory opinion she gave in preparation for trial. I am left questioning Dr. Bril’s impartiality and reliability.

1619I turn now to an assessment of Dr. Sloka’s evidence.

1620Dr. Sloka provided a clear, logical, and compelling explanation of his approach to Ms. C.M.’s care. I found nothing in the cross-examination of Dr. Sloka that undermined his position or revealed him to lack credibility or reliability.

1621I have considered the Crown’s critiques of Dr. Sloka’s evidence and have concluded that they lack merit. I will deal with each in turn.

1622The Crown alleges that Dr. Sloka misrepresented the nature of his referral to justify what he did and did not do. In particular, the Crown takes issue with Dr. Sloka’s evidence that he viewed himself as primarily managing the medications used to treat her epilepsy. The Crown argues that this stated approach runs contrary to his practice of offering an independent assessment of the patient’s diagnosed condition. They argue that he disavowed any interest in diagnosing Ms. C.M.’s illness to justify his failure to conduct a skin examination of a seizure patient. Their critique is problematic for several reasons.

1623First, the Crown never raised this critique in their cross-examination of Dr. Sloka. They never suggested to him that his approach to Ms. C.M. “runs contrary to his practice of offering an independent assessment, separate from the referring doctor.”

1624Second, Dr. Sloka never said, as the Crown claims, that he did not view his role as evaluating whether Ms. C.M. had epilepsy. The record reveals that Dr. Sloka did perform examinations that delved into possible causes of Ms. C.M.’s symptoms. In-chief, Dr. Sloka testified that one of his reasons for conducting the cardiac examination was that a cardiac examination formed part of his standard investigation of the cause of seizures. He also testified that he believed some of Ms. C.M.’s symptoms were consistent with syncopal convulsion. A cardiac examination could reveal issues with the heart that could lead to syncopal convulsion. Additionally, Dr. Sloka performed a neurological examination. He did not suggest this pertained solely to treatment or management of Ms. C.M.’s epilepsy. Dr. Sloka was not asked about his justification for the neurological examination, which was not a controversial examination, but his evidence at large shows that he conducted neurological examinations to assess any relationship between a patient’s brain and their symptoms – this is an investigation into the cause of symptoms.

1625Third, the Crown mischaracterized Dr. Sloka’s standard approach to seizure patients. He never testified that he automatically conducted skin examinations on all patients with suspected seizures. The proposal of a skin examination turned on the history and clinical presentation of the patient. Dr. Sloka believed there to be a significant statistical incidence of NF1 in epilepsy patients. Accordingly, when taking the history of a seizure patient, he would inquire about any stigmata of neurocutaneous disease. If the patient indicated the presence of birthmarks or did not know, he would consider proposing a skin examination to screen for NF1. The decision to propose a skin examination turned upon the clinical information acquired in the referral and during the patient history. He never testified that he automatically proposed them for all seizure patients. Dr. Sloka did not chart any report of stigmata of neurocutaneous disease. However, he testified that had Ms. C.M. reported some stigmata, he may have considered proposing a skin examination.

1626Fourth, the record amply supported Dr. Sloka’s evidence about his primary role. Both the referral and Ms. C.M.’s own historical account indicated that she was having an adverse reaction to her seizure medication, carbamazepine. She had been receiving a significant dose of it. Dr. Sloka suspected carbamazepine toxicity and reported this belief in the Impression portion of his consultation letter. He testified that a cardiac examination was relevant to his concern about carbamazepine toxicity, because excess consumption of that drug can cause heart damage. At the conclusion of Ms. C.M.’s first appointment, he formulated a plan to wean her off that drug and substitute another in its place. Subsequent appointments disclose that Dr. Sloka continued to manage Ms. C.M.’s transition away from the use of carbamazepine.

1627Fifth, in furtherance of their argument on this point, the Crown argues that Dr. Sloka provided ambiguous evidence about the nature of his referral, to distance himself from the need to independently assess the cause of Ms. C.M.’s seizures and thus explain his failure to conduct a skin examination. The Crown never made this accusation during their cross-examination of Dr. Sloka. Moreover, Dr. Sloka’s stated understanding of the reason for the referral closely tracked the content of the referral letter.

1628Lastly, Ms. C.M. never alleged a skin examination, but she testified that Dr. Sloka conducted a cardiac examination, performed at least some components of a neurological examination, and could not dispute that he may have completed all components of his standard neurological examination. In short, Ms. C.M. agreed that Dr. Sloka performed examinations which had an investigative function, but at the same time never suggested Dr. Sloka performed a skin examination. Her evidence supports Dr. Sloka’s contention that while he primarily viewed his role as involving the management of her medications, he nevertheless performed some investigative examinations.

1629The Crown also challenges Dr. Sloka’s justification for performing a cardiac examination, stating, “if Dr. Sloka were truly trying to treat, rather than diagnose, her seizures, his reasons for conducting a cardiac examination evaporate.” This submission is problematic for several reasons.

1630First, the Crown never cross-examined Dr. Sloka on his justification for a cardiac examination, only his methods. Meanwhile, their own expert flip-flopped on the issue.

1631Second, by questioning Dr. Sloka’s justification for Ms. C.M.’s cardiac examination in the chapter devoted to Ms. C.M., the Crown resiles from an earlier concession that they took no issue Dr. Sloka’s justifications for any of his cardiac examinations.

1632Third, the Crown’s critique of Dr. Sloka’s cardiac examination is based upon a mischaracterization of Dr. Sloka’s stated role in Ms. C.M.’s care. The Crown argues that Dr. Sloka characterized his role as solely managing Ms. C.M.’s medications. As already noted, Dr. Sloka never suggested that he viewed himself as only managing Ms. C.M.’s medication; rather, he viewed this as his primary purpose. Accordingly, the cardiac examination remained relevant to his investigation of a possible fainting episode and to his standard assessment of seizure patients.

1633Fourth, Dr. Sloka provided multiple justifications for the cardiac examination: the investigation of possible carbamazepine toxicity, the investigation of possible episode of cardiac syncope, and a component of his standard investigation of seizure patients.

1634Finally, Dr. Sloka’s stated justifications for the cardiac examination were logical, compelling, and rooted in his understanding of Ms. C.M.’s medical history and presentation. His stated concern about carbamazepine toxicity stood unchallenged. His stated concern about an episode of cardiac syncope was at one point considered reasonable (“iffy but okay”) by the Crown’s own expert, who considered her own opinion reasonable at the time she provided it.

1635The Crown also argues that Dr. Sloka provided inconsistent evidence on whether Ms. C.M. wore pants during her examination. This submission has some merit, but not much. In-chief, Dr. Sloka conceded at least the possibility that her pants were removed but he stated that, “It’s likely she kept her pants on just because again, there’s no focal neurological issues [in her legs].” His position hardened in cross-examination. Here again he noted the absence of any focal concern with her legs. Citing the absence of a reason for her to remove her pants, he stated, “She would have left her pants on because there's no reason to take them off for this examination.” While that is not an outright denial, it is certainly a slightly stronger stance that stating she “likely” would have kept her pants on. However, there is more overlap between his two answers than any minor distinction. In both his evidence in-chief and in-cross, he saw no reason for her to have removed her pants. He also remained consistent in his position that he had no memory of the examination. His answers were based upon what logically flowed from Ms. C.M.’s circumstances.

1636In the final analysis, I see no basis for rejecting Dr. Sloka’s evidence, including his denial of Ms. C.M.’s allegation of a naked neurological and cardiac examination, his denial that Ms. C.M. ever removed her bra or underwear, his denial that he ever touched Ms. C.M.’s naked breasts, and his denial that he ever knelt at eye level with Ms. C.M.’s naked pelvic region. Simply put, I see no basis for rejecting Dr. Sloka’s contention that he conducted neurological and cardiac examinations in accordance with his standard practices in relation to the examination of patients under the age of 18. I also see no reason to reject Dr. Sloka’s implicit denial of any sexual motive. On the contrary, I accept Dr. Sloka’s evidence that he possessed a strictly medical motive, that he performed medical examinations that he believed were medically warranted, and that he performed in accordance with his training.

1637On all material issues, I reject the evidence of Ms. C.M.

1638I conclude that there was no sexual activity.

1639I accept that Dr. Sloka proposed medical examinations, he explained the reason for those examinations, Ms. C.M. consented to those examinations, and Dr. Sloka performed them in a medically appropriate fashion.

1640Dr. Sloka will be acquitted on this count.

x. B.P. (Count 8)

A Summary of Ms. B.P.’s Complaint and Dr. Sloka’s Response to It

1641Ms. B.P. sought Dr. Sloka’s assessment of her recurring losses of consciousness. She alleged that at the outset of her first examination at her first appointment, Dr. Sloka asked her to lay on the examination table, then he pulled down her gown and began to touch and rub her chest, breasts, and nipples. At some other unknown point in the examination, Dr. Sloka also performed some resistance tests. She agreed it possible that Dr. Sloka performed his standard neurological and cardiac examinations.

1642Dr. Sloka denied ever rubbing Ms. B.P.’s chest, breast, and nipples. He maintained that he measured Ms. B.P.’s blood pressure and pulse, then performed neurological and cardiac examinations in accordance with his standard methods. His standard cardiac examination involved the exposure of only her left breast. Any contact with her left breast was unintentional and incidental to the performance of the cardiac examination.

The Circumstances of Ms. B.P.’s Referral and Her Treatment History

1643Ms. B.P. went to the GRH ER on January 13, 2015, because she had suffered a loss of consciousness. Historically, she had occasionally experienced episodes in which she would lose consciousness. They had been occurring once every few years since she was 5 years old. However, she suffered two episodes in close succession at the end of 2014 and the beginning of 2015. The episodes were typically brought on by stress or anxiety, and particularly when she was exposed to medical matters or discussion of medical matters. The ER doctor referred her to Dr. Sloka. Ms. B.P. was 20 years old at the time of the referral.

1644Ms. B.P. attended her first appointment on March 9, 2015. Dr. Sloka ordered a series of tests, one of which was a tilt table test. Dr. Sloka performed the tilt table test elsewhere in the hospital April 2, 2015. Having regard to her history, symptoms during testing, and test results, Dr. Sloka concluded that Ms. B.P.’s losses of consciousness were the syncopal (fainting) episodes, sometimes accompanied by convulsions, brought about by situational/contextual factors – otherwise described as neurocardiogenic situational syncope. Dr. Sloka saw Ms. B.P. in follow-up on June 11, 2015, and relayed his conclusion. He also wrote a letter to the MTO to advocate for the reinstatement of Ms. B.P.’s driver’s licence. He did not see her again.

The Evidence of Ms. B.P.

1645Ms. B.P. was 27 years old when she testified.

1646Apart from the alleged breast touching, Ms. B.P.’s memory was spotty and vague.

1647Ms. B.P. testified that the alleged sexual activity occurred at her first appointment with Dr. Sloka on March 9, 2015. She attended this visit with her father.

1648Ms. B.P. and her father joined Dr. Sloka in his office where Dr. Sloka obtained a brief medical history from her. In cross-examination, defence counsel took Ms. B.P. through the medical history recorded in Dr. Sloka’s consultation letter. Ms. B.P. agreed that she reported that her episodes were associated with medical contexts, for example, having blood drawn and seeing blood with a loose tooth. She also told him that the episodes that preceded her recent ER visit both occurred in some kind of medical context. Ms. B.P. testified that her father also provided some information during this discussion, but she had little recollection of the details. Ms. B.P. also agreed that she or her father may have told Dr. Sloka that her family doctor posited that she might be suffering from psychogenic seizures – she could not remember.

1649According to Ms. B.P., after obtaining her history, Dr. Sloka told her about the tests he planned to order: an MRI, a tilt table test, an EEG, a Holter Monitor, and echocardiogram. Ms. B.P.’s medical records disclose that Dr. Sloka did in fact order all these tests and she did in fact participate in these tests between the appointment on March 9th and her follow-up appointment on June 11th.

1650Next, according to Ms. B.P., she and Dr. Sloka went into the room off to the side of his office where he asked her to remove her shirt and bra and put on a robe. He also told her to leave her pants on. Her father was not with her. He remained behind in Dr. Sloka’s office. She testified that there was no discussion about her father joining her. She would not have wanted him to join her, in any event.

1651Initially, Ms. B.P. offered no evidence about what prompted them to move to the examination room. They simply changed rooms. Then Crown then asked, “Did Dr. Sloka tell you why you were going into the room off to the side?” She answered, “I don’t remember.” Despite Ms. B.P.’s evidence that she did not remember if Dr. Sloka had said anything to prompt a move to the next room, the Crown effectively repeated the same question by asking, “Did Dr. Sloka tell you what you would be doing in that room?” Despite what she said immediately beforehand, Ms. B.P. replied to this version of the question with a definitive, “No.” Ms. B.P. thereby effectively asserted that she relocated to another room and left her father behind without any explanation or indeed any request from Dr. Sloka. At the same time, Ms. B.P. asserted that Dr. Sloka thoroughly explained all the follow-up testing he planned to order, even though he had yet to examine her that day.

1652In cross-examination, Ms. B.P. testified that she was nervous about passing out during the appointment. Then, she said that nervousness affects her focus and memory. Ms. B.P. also testified that she became lightheaded and that she felt that one of her spells might occur while in Dr. Sloka’s office. Dr. Sloka told her to lay on the ground and put her feet in the air. He told her to do this whenever she felt these symptoms, to prevent herself from passing out. She could not remember, though, whether this light-headed spell occurred before or after her examination.

1653Ms. B.P. also conceded that, before departing for the examination room, it was possible that Dr. Sloka may have told her that he wanted to do some basic neurological tests in the examination room, to see if there was a connection between her brain and her symptoms. However, she did not think it possible that Dr. Sloka also proposed a cardiac examination to determine whether there was any connection between her heart and her symptoms. She testified that this subject would have caused her stress. She then testified that she specifically recalled not knowing what was about to happen. In the next breath, she conceded it possible that Dr. Sloka may have told her that he wanted to listen to her heart to see if there was any connection between her heart and her symptoms. She also agreed that Dr. Sloka may have told her that he wanted to measure her blood pressure. She testified that due to the passage of time, she could not recall these things. In short, contrary to what she was prepared to assert in-chief, she agreed to the possibility that, before she ever departed for the examination room – and in the presence of her father – Dr. Sloka proposed and explained all the examinations that he charted in his consultation letter. I should point out here that her father did not testify.

1654According to Ms. B.P., she changed into a hospital gown as instructed. She wore the gown with the opening at the back. Underneath the gown, she was naked from the waist up. Ms. B.P. could not remember whether Dr. Sloka provided her privacy to change or whether he remained in the room as she removed her shirt and bra. She was also unsure whether it would be memorable of Dr. Sloka had remained and seen her undress.

1655Ms. B.P. testified that at the commencement of the examination, Dr. Sloka instructed her to lay down on the exam table. He then pulled the gown down to her waist. He touched her upper chest first, near her collar bone. He then moved his hands to her breasts. He touched both breaths. He was cupping them and rubbing them all over. He also ran his fingertips over her nipples, moving them from side to side. Ms. B.P. testified that the touching of her breasts lasted a couple of minutes. When he was done, he pulled up her gown.

1656At some point, Dr. Sloka also did some resistance tests on her arms, but Ms. B.P. could not recall whether these resistance tests occurred before or after the breast rubbing.

1657Ms. B.P. also testified that she remembered Dr. Sloka asking her if she had any moles or birth marks on her head or scalp. She did not remember when he asked this, but it allegedly occurred in the examination room. She told him that she has a mole and a birthmark on her scalp. Dr. Sloka briefly looked at them but did not examine her elsewhere for marks or moles.

1658In cross-examination, Ms. B.P. agreed that she told the police that the breast touching lasted ten to fifteen minutes, not a couple of minutes.

1659In cross-examination, defence counsel suggested to Ms. B.P. that Dr. Sloka measured her heart rate and blood-pressure both lying down and standing up, and that Dr. Sloka performed complete neurological and cardiac examinations. Ms. B.P. agreed that the examination could have begun by Dr. Sloka measuring her blood pressure while she lay down and while she stood up. Ms. B.P. agreed it was possible that Dr. Sloka next performed each component of his standard neurological test.

1660Defence counsel then suggested that Dr. Sloka next deployed his stethoscope. Here, for the first time, Ms. B.P. remembered feeling a stethoscope on her back. She agreed it was possible that this examination began while she sat with her legs stretched along the examination table. She also agreed that she may have laid down next and that Dr. Sloka listened to her chest with a stethoscope. However, Ms. B.P. insisted that the alleged breast touching occurred separately from any cardiac examination. She also adamantly disputed the suggestion that Dr. Sloka only asked her to expose her left chest and breast for the cardiac examination. On her account, if the gown was lowered for the cardiac examination – the examination she did not really remember – it must have been lowered to her waist. On her account, if Dr. Sloka listened to her chest with a stethoscope, he did so after pulling the entire gown down to her waist. And he did it without asking first. Ms. B.P. disputed the possibility that the only contact with her chest occurred during the performance of a cardiac examination. She conceded that all the examinations reported by Dr. Sloka could have occurred but insisted that these examinations were followed by the overt breast touching she testified about.

1661Ms. B.P.’s concessions about the possible sequence of examinations stood in contrast to both her claims in her evidence in-chief and in her police statement. In both, she alleged that the examination began with the improper chest and breast touching. To explain the omission of the neurological and cardiac examinations from her police statement, Ms. B.P. testified that she did not think these examinations were relevant and that she thought the detective was only asking about the breast touching. That explanation does not explain the same omissions in her evidence in-chief.

1662Whatever occurred during her physical examination, Ms. B.P. testified that she got dressed and rejoined Dr. Sloka in his office afterwards. She did not know whether Dr. Sloka gave her privacy to change. She did not remember.

1663Once Ms. B.P. was back in the office with Dr. Sloka and her father, there was a follow-up discussion. While she remembered a discussion occurring, she remembered little about the details. She did not remember Dr. Sloka telling her that all the test results were normal, but agreed it was possible. She did not remember him saying that there was a noticeable increase in her heartrate when she was standing, but she agreed it was possible. She did remember that he told her he believed she was experiencing fainting spells, though. She also agreed it was possible that he explained that she oriented immediately afterwards, that she did not experience significant convulsions, that minor convulsions can occur with fainting, and that a drop in blood pressure can lead to lack of oxygen which can lead to a convulsion. Dr. Sloka told her that, out of an abundance of caution, he would order several tests. She agreed it was possible that he told her that he was attempting to rule out seizures.

1664Ms. B.P. testified that she did not tell her father about the breast touching after they left the appointment on March 9th. She also did not remember joking with her father about how they both got a weird vibe from Dr. Sloka, something which she agreed she mentioned in her police statement. However, she did not remember the weird vibe she previously reported to the police.

1665In-chief, Ms. B.P. testified that she did not tell anyone about the breast touching in the immediate aftermath of the appointment because she assumed that it was supposed to happen, that it was routine, and that it was medically appropriate. She testified that her opinion of the examination did not change until reading about the allegations against Dr. Sloka in 2019. Her father first sent her an article about Dr. Sloka from the CBC and asked her if Dr. Sloka did anything inappropriate to her. She testified that she initially replied, “no,” because she replied before reading the article and still viewed her examination as medically appropriate.

1666Ms. B.P.’s evidence regarding her real-time response of Dr. Sloka’s actions changed in cross-examination. In cross-examination, Ms. B.P. agreed that it was immediately obvious to her that Dr. Sloka was not looking for anything as he touched her breasts. There was no meaningful examination of her breasts, no method apparent. She agreed that, at the time, she did not think this seemed like a medical exam. Also, unlike other portions of the examination, Dr. Sloka did not explain or legitimize what he was doing. He stayed silent when touching her breasts. She agreed that she felt violated, but she maintained that she did not trust her feelings, despite also agreeing that she did not know what Dr. Sloka’s purpose could possibly have been when he touched her breasts.

1667As noted, Dr. Sloka ordered, and Ms. B.P. participated, in several tests after the first appointment. Only her evidence on the tilt table test is noteworthy.

1668Ms. B.P. testified that when Dr. Sloka tilted the table to conduct the test, he tilted it downwards, bringing her head towards the ground and raising her feet above her head. She disagreed with Dr. Sloka’s evidence that the tilt table is designed to tilt the patient in precisely the opposite orientation Ms. B.P. described and could only be tilted in this fashion.

1669After the completion of all her tests, Ms. B.P. attended for her second appointment on June 11, 2015. On the second appointment, Dr. Sloka confirmed with Ms. B.P. his opinion that she had been experiencing fainting spells. She was dubious of this opinion. She believed that some of the events she experienced were seizures.

1670Over the years, she raised no concerns or complaints about Dr. Sloka with anyone.

1671On September 24, 2019, her father sent her a screenshot of CBC article about Dr. Sloka. The headline of the article stated, “Former Kitchener, Ont. Neurologist charged with 34 counts of sexual assault.” Ms. B.P. could not recall whether she read the contents of the article when she initially received it; however, she told the police during her police interview that she did in fact read the contents of the article. Her father also inquired of her, via this text message, if Dr. Sloka had done anything improper to her. In response, she told her dad, “No.” She provided this response because she had not yet read the article, and she did not yet believe she had been victim of sexual assault.

1672Ms. B.P. testified that, the same day her father sent her the CBC article, she conducted a Google search of Dr. Sloka. She found an article on the CPSO website, recounting the allegations of four patients. One patient’s allegations were similar to her own, involving full exposure of her breasts, breast touching, and insignificant or non-existent draping. She testified that, upon reading these allegations, she came to believe that her own examination was not appropriate.

1673After reading her father’s text message, she went onto the CPSO website that day and read more about the allegations against Dr. Sloka. She recalled reading that one patient complained about the full exposure and touching of her breasts. These allegations jumped out at her. She also read that Dr. Sloka had pleaded no contest to the allegations at the CPSO and had his licence revoked. Ms. B.P. subsequently called her parents and told them that her case was in fact a criminal matter.

1674Ms. B.P. initially testified that she only read the CPSO publication and the CBC article. In cross-examination, though, she agreed that she told the police that, “I’ve kind of just been keeping up with the story. I saw an article that he had been injured in jail, so I read that article, that’s it.” Ms. B.P. then admitted reading the article about Dr. Sloka getting injured. However, despite admitting that she may have come across other articles during her Google search and that she was interested in knowing what others had alleged, she at most read the headlines of other articles.

The Evidence of Dr. Bril

1675Dr. Bril testified that it was neurologically reasonable for Dr. Sloka to perform a neurological examination on Ms. B.P. at her first appointment.

1676Dr. Bril’s evidence about the cardiac examination is more fraught.

1677In-chief, Dr. Bril testified that it was not neurologically reasonable for Dr. Sloka to conduct a cardiac examination. She did not think a neurologist would hear anything what would influence one’s thoughts on Ms. B.P.’s condition. In cross-examination, Dr. Bril gave the opposite opinion, stating that, given the legitimate possibility Ms. B.P. had experienced cardiac syncope, a cardiac examination was “fair and I think it was indicated in this patient.”

1678Dr. Bril agreed with the tests ordered by Dr. Sloka and with Dr. Sloka’s ultimate diagnosis. She agreed that Ms. B.P.’s episodes were more consistent with fainting spells than seizures. The events had definite triggers, were preceded by specific warning signs, and did not result in confusion or disorientation.

1679Dr. Bril’s opinion about the alleged breast touching is not controversial. If it occurred as Ms. B.P. described it, it was neurologically unreasonable.

The Evidence of Dr. Sloka

1680Dr. Sloka had no independent memory of Ms. B.P. He relied upon his consultation letters and his tilt-table test report for the truth of their contents. He relied upon the other documents in Ms. B.P.’s medical file for context.

1681The GRH ER referred Ms. B.P. to Dr. Sloka. The cover page of the referral fax referred to Ms. B.P. as having a history of “infrequent seizure-like events” every three years since the age of six, lasting two minutes each, and occurring at times of stress. The referral fax also included the ER record for Ms. B.P., which documented that the ER had ordered an EEG. The ER records also noted, “seen by GP -> ? psychogenic.” The ER doctor reportedly conducted a neurological and cardiac examination. The results were normal.

1682In advance of her appointment with Dr. Sloka, Ms. B.P. attended for the EEG that had been ordered by the ER doctor. The results were normal.

1683Relying on his consultation letter, Dr. Sloka confirmed that Ms. B.P. was accompanied by her father on March 9th. He obtained her medical history. She reported that she had been losing consciousness possibly every three years since the age of six. These losses of consciousness were often associated with medical discussions, and also with having blood drawn, having a loose tooth and seeing blood, and having stress about an upcoming dance examination. Her most recent events occurred in the previous couple of months. One occurred during a medical discussion during dinner. She became lightheaded, felt hot, her heart rate increased, she had palpitations, her vision blurred, and then she lost consciousness for less than a minute. She did not shake. She tends to reorient immediately.

1684When taking her history, Dr. Sloka asked about standard seizure risk factors. He noted none: “There is no significant head injury, no family history of seizures, no febrile seizures, no meningitis or encephalitis, and no stigmata of neurocutaneous disease. She has done well in school.”

1685Dr. Sloka testified that, presented with this history, Ms. B.P.’s episodes were more consistent with fainting than with seizure. Accordingly, he proposed to measure Ms. B.P.’s blood pressure and pulse and to perform neurological and cardiac examinations.

1686In cross-examination the Crown implicitly suggested that Dr. Sloka would have wanted to propose and conduct a skin examination upon Ms. B.P., to look for evidence of neurofibromatosis, which can be associated with some epilepsy patients. They did this by comparing Ms. B.P.’s case to the case of J.D. where Dr. Sloka conceded the possibility that he proposed and conducted a skin examination in the context of the investigation of possible seizures.

1687To be clear, Ms. B.P. never suggested that Dr. Sloka performed anything resembling a skin examination. Consequently, I am very skeptical about the utility of this line of questioning. Nevertheless, I will summarize Dr. Sloka’s response to this line of questioning.

1688Dr. Sloka had testified that he believed he likely performed a skin examination on Ms. J.D., but he was not certain. He did not document one. For both Ms. J.D. and Ms. B.P., he recorded their seizure risk factors in the patient history. In each, he wrote “no stigmata of neurocutaneous disease.” However, Dr. Sloka noted some distinctions between Ms. J.D. and Ms. B.P. He testified that Ms. J.D. had been referred for seizures but had a different history and presentation than Ms. B.P. Also, her CT scan had shown asymmetrical ventricles, which likely guided his proposal of a skin examination. In pointing out these distinctions, Dr. Sloka testified that he assessed each patient based on their individual histories and circumstances. He would make decisions on the clinical scenario of each patient in the office. In Ms. B.P.’s case, he suspected fainting, not seizures.

1689In submissions, the Crown stated that Dr. Sloka testified that he would sometimes palpate women’s breasts looking for neurofibromas. That submission did not accurately reflect Dr. Sloka’s evidence on the topic, which was given in the context of a different patient, J.H. Crown never raised this issue when questioning Dr. Sloka about Ms. B.P. When the suggestion was put to Dr. Sloka in the context of J.H., Dr. Sloka responded by stating, amongst other things, “I’m not sure I can remember even doing that but probably rarely maybe.” He went on to deny that he palpated Ms. J.H.’s breasts for neurofibromas and to deny that he suggested to Ms. J.H. that breast lumps (neurofibromas) could cause seizures. In short, Dr. Sloka had no memory of ever palpating a patient’s breasts for neurofibromas but could not discount the possibility entirely.

1690Dr. Sloka maintained that Ms. B.P.’s history and presentation in the office, which included the beginnings of a fainting spell whilst discussing her medical history, one that was rectified by laying her on the floor and raising her feet [see the Impression section of his consultation letter], led him to suspect that Ms. B.P.’s losses of consciousness were the product of syncopal [fainting] episodes.

1691Based upon her history and presentation Dr. Sloka therefore proposed and conducted measurements of B.P.’s blood pressure and pulse, both standing and laying down, as well as his standard neurological and cardiac examinations.

1692In providing his rationale for measuring her blood pressure and pulse, he testified that he wanted to ensure that her heart was able to maintain adequate blood pressure when Ms. B.P. changed body position. A loss of blood pressure could lead to the syncopal event.

1693In providing his rational for the cardiac examination, Dr. Sloka testified that cardiac examinations were part of his standard assessment of patients who have suffered losses of consciousness. He wanted to rule out a cardiac explanation for the events.

1694The reasonableness of the neurological examination was not in dispute; so, neither party asked Dr. Sloka to provide a justification.

1695Dr. Sloka testified that he performed each examination in accordance with his standard practices. Dr. Sloka denied pulling the entirety of Ms. B.P.’s gown down to her waist. He insisted that only the upper-left portion of the gown would be pulled down, to expose the left chest and breast for the purposes of the cardiac examination.

1696Dr. Sloka denied touching Ms. B.P.’s breasts in the manner she described. He maintained that any contact with her breasts would have occurred incidentally and unintentionally during the cardiac examination.

1697In answer to questions about the mole on Ms. B.P.’s scalp, Dr. Sloka testified that questions about skin abnormalities would have occurred in his office as part of his standard screening questions. He denied that he would have expressed any interest in common moles. While Dr. Sloka had testified elsewhere in his evidence that, early in his practice, he may have used the term “moles” as an imprecise shorthand for abnormalities of interest, he also consistently testified that he would provide elaboration, so that patients would know he was not interested in common moles. For example, he would tell patients something like, “I’m not looking for the little brown bumps that you have. I’m looking for large flat ones.” As recounted by several patients in this trial, Dr. Sloka also testified hat he routinely used pictures in textbooks to illustrate the skin abnormalities of interest. When writing the CPSO in response to J.W.’s complaint, Dr. Sloka told the CPSO that he told Ms. J.W. that “I’d be checking for ‘moles’ and birthmarks.” He put the word moles in quotation marks to denote that he was not looking for common moles. Returning to the inspection of Ms. B.P.’s mole and birthmark, Dr. Sloka testified that he did not remember Ms. B.P. showing him any mole or birthmark, but he could not discount the possibility she did so. However, he remained steadfast in his assertion that Ms. B.P.’s presentation did not call for a skin examination and he did not perform one.

1698In their submissions regarding Ms. B.P., the Crown submitted that Dr. Sloka conceded that the wording he used to describe his neurological examinations in his consultation letters did not change, “even though he would perform different tests.” Dr. Sloka never testified that he altered the specific types of tests performed in his standard neurological examination. Rather, he testified that he might alter the manner in which he performed each standard test in some circumstances. For example, he might not ask a patient to remove her pants for neurological examinations if she did not have symptoms that implicated her legs. He explained that a skin sensation test on clothed extremities might yield different information, but he never suggested that he would conduct different tests that those he claimed formed part of his standard neurological examination.

Assessment of the Evidence and Analysis

1699Having carefully considered Ms. B.P.’s evidence, I have come to the conclusion that I cannot place any weight upon it. She possessed a sparse recollection of the examination of concern. There exists a substantial likelihood that her sparse memories and perceptions have been dramatically tainted by media coverage about Dr. Sloka. Additionally, her evidence disclosed profound inconsistencies regarding the nature and extent of the alleged breast touching. Also, her evidence on at least two important steps in her care was demonstrably false.

1700In cross-examination, Ms. B.P. described an unabashedly and unambiguously inappropriate examination. For up to 10 to 15 minutes, he rubbed her breasts and nipples with no apparent medical purpose. She questioned its propriety. She became upset. She felt violated. She then immediately added that she did not trust her feelings because she placed trust in him as a doctor. This evidence is highly concerning for two reasons. First, this evidence is fundamentally inconsistent with the evidence Ms. B.P. gave on this topic in-chief. In-chief, she testified that she did not immediately tell anyone about the breast touching because she assumed that it was supposed to happen, that it was routine, and that it as medically appropriate. In my view, Ms. B.P.’s positions in-chief and in cross-examination are irreconcilable. Second, the state of mind that Ms. B.P. professed in cross-examination simply cannot be reconciled with what Ms. B.P. admittedly told her father. Four years after her examination, her father texted her a screenshot of a CBC article, entitled “Former Kitchener, Ont., neurologist charged with 34 counts of sexual assault” and asked her whether Dr. Sloka had done inappropriate to her. She answered, “No.” She testified that, in stating “no,” she still viewed her examination as medically appropriate. That explanation is fundamentally at odds with her evidence in cross-examination about her state of mind at the time of the allegedly inappropriate examination she has ultimately described. I do not accept her explanation that, despite purported concern about the propriety of the examination and her purported sense of violation, she doubted herself and placed trust in her doctor. I do not accept that Ms. B.P.’s self doubt would have survived that screen shot. If Dr. Sloka did what she has since claimed, she would not have answered “no” after seeing that screen shot. I conclude that Ms. B.P.’s perception and memory of her examination fundamentally changed after she delved into the allegations made by other patients, at least one of which made allegations that mirrored her own. In my view, Ms. B.P. likely denied to her father that Dr. Sloka engaged in any inappropriate conduct, because Dr. Sloka did not do what Ms. B.P. has ultimately alleged. That, in my view, is the most likely explanation for the answer she first gave her father.

1701I also have concerns that Ms. B.P. downplayed the extent of her consumption of media coverage about Dr. Sloka. She initially testified that she was not sure whether she read the CBC article her father texted her. Then, when presented with her police statement about following Dr. Sloka’s case in the news, she maintained that she only read the CPSO publication and the two CBC articles (the one her father sent her and the one she mentioned to the police). Given what she told the police and given her admitted interest in Dr. Sloka’s case, I think it far more likely that she was “keeping up with the story,” just as she told the police. Of interest, if she were keeping up with the story, as she claimed, there existed a large volume of articles published prior to the date on which she gave her police statement. Amongst the articles available was a CBC article that recounted that Dr. Sloka allegedly proposed to one patient a physical examination to look for “anything like moles.” In my view, Ms. B.P. showed a lack of candor when giving evidence about the extent to which she reviewed media coverage about Dr. Sloka.

1702Even on Ms. B.P.’s own account, after first declaring that Dr. Sloka had done nothing inappropriate and before coming forward to the police, she read allegations about Dr. Sloka that closely resemble the allegations she ultimately made. In all the circumstances, I conclude that Ms. B.P.’s evidence, memory, and purported perceptions have been tainted by her exposure to CPSO and media publications about Dr. Sloka.

1703I turn now to some concerning inconsistencies in Ms. B.P.’s evidence.

1704Ms. B.P. testified that Dr. Sloka tilted her head toward the floor during the tilt table test. I accept Dr. Sloka’s evidence that what she described was physically impossible. The test and the table are designed to tilt the patient’s head upwards and feet downwards, not the opposite. Given the evidence by both Dr. Bril and Dr. Sloka about the nature of the test, Ms. B.P.’s evidence on this subject is non-sensical and patently wrong.

1705Ms. B.P. also inaccurately testified that Dr. Sloka ordered her EEG after the first appointment. Her medical file reveals that the EEG was actually performed two weeks before she ever saw Dr. Sloka. The results of that EEG showed no abnormal electrical activity in the brain – an important finding that pointed away from seizure activity before Ms. B.P. ever set foot in Dr. Sloka’s office. Presented with her medical records, Ms. B.P. accepted the true timing of the EEG test but still had no memory of discussing the results with Dr. Sloka.

1706Ms. B.P.’s evidence regarding the duration of the breast touching also changed significantly between her police statement and her testimony. She told the police that the breast touching lasted between ten and fifteen minutes, thereby effectively eliminating any plausibility that she could ever have construed the touching as medically appropriate. In cross-examination, she provided the drastically reduced estimate of a “couple of minutes.” When providing that revised estimate, she knew what she had previously told the police. Yet she also did not show any fealty to her revised estimate, either. Once pressed, she returned to agreeing that the breast examination could have lasted ten to fifteen minutes. The exchange between defence counsel and Ms. B.P. is telling. It suggests Ms. B.P. was concerned that her original time estimate could not be reconciled with her initial claim that she initially thought the touching was medically appropriate. The exchange goes as follows:

Q. How long do you say the breast touching went on for?

A. I don’t remember.

Q. Are we talking a couple of seconds?

A. No.

Q. Minutes?

A. I would say a couple of minutes.

Q. Okay. So you’re not going to maintain – do you remember the estimate you gave the police?

A. Ten to 15 minutes.

Q. Yeah. You said 10 to 15 minutes in your police statement. Right?

A. Yes.

Q. And so sitting here today it sounds like you’re dialing that back to a couple of minutes.

A. I really don’t remember how long it was.

Q. I’m going to suggest you’re dialing it back because 10 to 15 minutes is an extremely long time and you recognized that as just not a reasonable estimate, is it?

A. I’m not sure.

Q. Are you saying it could have been that long?

A. It’s possible.

1707Immediately after this exchange, Ms. B.P.’s evidence regarding her subjective state of mind changed. This is the point at which she conceded that she saw no purpose or medical method in the touching, that she questioned its propriety, and that she felt violated. I conclude that Ms. B.P. had made the assessment that her originally professed state of mind was implausible, and she altered her position.

1708In addition to the existence of concerning inconsistencies, Ms. B.P.’s memory of her time in Dr. Sloka’s office was sparse.

1709Ms. B.P. lacked any memory about what prompted her to move from the office to the examination room. Despite this lack of memory, she discounted the possibility that Dr. Sloka had proposed medical examinations and that she had consented to them in the office, before they ever entered the examination room. Ms. B.P. thereby effectively asserted that she relocated to another room and left her father behind without any explanation or indeed any request from Dr. Sloka. Her position made no sense. At the same time, Ms. B.P. asserted that Dr. Sloka thoroughly explained all the follow-up testing he planned to order, even though he had yet to examine her that day. Again, that evidence makes no sense.

1710Ms. B.P. also appears to have recalled at least one aspect of Dr. Sloka’s standard neurological examination but completely forgotten the rest. In cross-examination, she was prepared to accept the possibility that Dr. Sloka performed each component of his standard neurological examination, but she could not remember when these neurological tests occurred in relation to the breast touching.

1711Additionally, Ms. B.P. had virtually no memory of any cardiac examination occurring, until defence counsel suggested the deployment of a stethoscope. Once the possibility was introduced, Ms. B.P. professed a vague recollection of Dr. Sloka placing a stethoscope on her back. She did not, however, remember Dr. Sloka using a stethoscope on her exposed chest. Her failure to remember the exposure of her left breast and the placement of a stethoscope all around it is puzzling, given her alleged sense of violation at the exposure of and touching of her breasts. Ultimately, Ms. B.P. conceded that a cardiac examination may have occurred and that she simply forgot it. Interestingly, Ms. B.P. testified that Dr. Sloka remained quiet as he touched her breasts. Dr. Sloka testified that he remained quiet for cardiac examinations, so that he could properly listen to the heart. While there are certainly immense discrepancies between what she described and Dr. Sloka’s standard cardiac examination, there is also an extremely sparse memory and a significant likelihood of tainting. In my view, it is plausible that, due to tainting, Ms. B.P. has conflated a standard cardiac examination with the allegations she read about in CPSO and media publications.

1712Ms. B.P. also could not remember Dr. Sloka measuring her orthostatic vital signs (blood pressure and pulse while laying down and standing).

1713Despite Ms. B.P.’s failure to remember Dr. Sloka taking her orthostatic vital signs and performing cardiac and neurological examinations, I am prepared to conclude that they did in fact occur. This conclusion is supported by Dr. Sloka’s contemporaneously written consultation letter and supported by Dr. Sloka’s explanation of the medical rationales for these examinations, which I also accept. The examinations were logically and medically related to Ms. B.P.’s history and presentation. The obvious existence of these examinations inherently raises concerns about Ms. B.P.’s reliability, generally. Additionally, their existence has implications for my assessment of the likelihood of tainting. Let me explain. Despite the obvious occurrence of these examinations and their obvious relevance, Ms. B.P. professed no understanding or memory of these examinations, their purpose, or any consent discussions that preceded them. Her attempt to remember her examinations therefore occurred in the absence of any conceptual context. She simply had no memory about the reason she ever stepped into that examination room. In my view, the absence of any conceptual context rendered Ms. B.P. more susceptible to the tainting effect of the allegations of others. She was nearly a blank canvass when she read the accounts of other patients. Those accounts served as brush stokes.

1714The Crown suggests that parts of Dr. Sloka’s evidence and medical records provided confirmation of Ms. B.P.’s evidence. However, I see no confirmation of Ms. B.P.’s allegations in Dr. Sloka’s evidence or the medical records.

1715Most of the supposedly confirmatory evidence pertains to non-material facts: that Ms. B.P. attended an appointment at Dr. Sloka’s office; that she went to that appointment with her father; and that she removed her upper clothing and bra before putting on a gown.

1716Only one area of possible supporting evidence deserves additional mention. The Crown argues that Dr. Sloka helped confirm Ms. B.P.’s account when he acknowledged that he lowers the gown to expose both breasts during a breast examination, “just as B.P. testified.” However, there are difficulties in using Dr. Sloka’s standard practices in breast examinations to support Ms. B.P.’s evidence. Foremost among those difficulties is the fact that Ms. B.P. never testified that Dr. Sloka proposed a breast examination or performed what she interpreted to be a breast examination. Additionally, what Ms. B.P. described bore almost no resemblance to Dr. Sloka’s standard breast examination. The only point of possible resemblance is the fact that Dr. Sloka has his patients lower their gowns for a brief portion of the breast examination. However, even on this small point of similarity, there are differences. Dr. Sloka has the gown lowered as the patient sits upright on the table, so that he can properly visualize and compare the shape and size of each breast to the other. The patient then puts the gown back on before laying down on the examination table to have her breasts and axillary region palpated, one breast at a time. On Ms. B.P.’s account, Dr. Sloka exposed her breasts while she was laying down on the examination table. Also, Ms. B.P. did not describe anything even remotely resembling a proper palpation of the breast tissue and axillary region. What she described was a breast fondling, not a breast examination. The Crown does not suggest otherwise. Dr. Sloka’s standard practices in breast examinations offer no confirmation.

1717The Crown has conceded that, in the absence of their similar fact evidence, the frailties in Ms. B.P.’s evidence might leave the court with a reasonable doubt. That is both an appropriate concession and an understatement. However, the Crown submits that similar fact evidence provides sufficient support for Ms. B.P.’s evidence to enable the Crown to meet its burden of proof. I disagree.

1718While I have allowed the admission cross count similar fact evidence for the purpose of supporting the inference that Dr. Sloka possessed a sexual purpose when conducting an examination on Ms. B.P., I have concluded that Dr. Sloka has provided compelling evidence of a medical purpose and refuted any inference of a sexual purpose. I will discuss Dr. Sloka’s evidence in more detail momentarily. First, though, I will address the Crowns submission that Ms. B.P.’s evidence is supported by four discrete areas of similarity between the evidence of some other complainants and Ms. B.P.’s evidence.

1719The Crown suggests that Ms. B.P. belongs to a constituency of patients who allege that Dr. Sloka cupped their breasts. In my view, the term “cupped” is so vague as to lack probative value. Moreover, exposure to publications about breast touching and exposure raises a significant likelihood of tainting, which the Crown cannot rebut.

1720The Crown also contends that Ms. B.P. belongs to a constituency of patients who allege that Dr. Sloka was looking for “moles.” There are several reasons why this purported similarity lacks any probative value. First, Ms. B.P. did not allege that Dr. Sloka used moles as a pretext for conducting a skin examination. In fact, she did not allege a skin examination. Additionally, she did not allege that Dr. Sloka justified the breast touching as a search for moles. She alleged that he looked at the mole and birthmark on her scalp – an inspection totally unrelated to the alleged breast touching. Unlike the allegations of other patients, the topic of moles was unrelated to the issue of Dr. Sloka’s motive for and justification of the impugned examination. Consequently, any coincidental discussion of moles during her appointment was inconsequential. Finally, I conclude there is a substantial likelihood that Ms. B.P. was exposed to publications that reported patient allegations regarding the search for moles. She told the police that she had been following the coverage of Dr. Sloka’s case in the news. Her testimony to the contrary was not credible. Some media articles published before Ms. B.P.’s police interview included the reference by other patients to mole searches. I conclude that there exists a substantial likelihood that Ms. B.P.’s evidence has been tainted. There is no probative value in this purported similar fact evidence.

1721The third and fourth components of purported similar fact evidence are related. The Crown contends that Ms. B.P. belongs to a constituency of patients who allege that Dr. Sloka failed to identify and explain the examinations he ultimately conducted. Ms. B.P. does not belong in this category. Her memory of the initial consultation was poor. She agreed in cross-examination to the possibility that Dr. Sloka told her that he wanted to conduct some basic neurological tests to determine whether there existed a connection between her brain and her fainting spells. She also agreed that Dr. Sloka may have told her that he wanted to listen to her heart to determine whether it was pumping properly. She also agreed that he may have told her that he wanted to measure her blood pressure. Ms. B.P.’s evidence proves a faulty memory, not a failure of communication by Dr. Sloka.

1722Having considered Ms. B.P.’s evidence in the context of the entirety of the evidence, I am simply unable to accept any of her evidence pertaining to the alleged sexual activity. I reject her evidence about the nature and manner of Dr. Sloka’s examination.

1723I turn now to Dr. Sloka’s evidence. In my view, Dr. Sloka testified in a cogent and compelling manner about Ms. B.P. His contemporaneously written consultation provides evidence that Dr. Sloka measured Ms. B.P.’s orthostatic vital signs and conducted neurological and cardiac examinations. These examinations were neurologically reasonable. Dr. Bril conceded this.

1724Dr. Sloka denied touching Ms. B.P. in the manner she described. The Crown argues that I should reject his denial. In doing so, they Crown makes critiques of Dr. Sloka’s evidence. In my view, those critiques are unfounded, for the reasons which I will now explain.

1725The Crown argues that Dr. Sloka guessed at what occurred and, in effect, that his denial of Ms. B.P.’s accusations is a guess. Dr. Sloka’s denial was obviously based upon the implied assertion that he would never do what she claimed. He may not have remembered her examination, but he knew he would not do that. In my estimation, that was the tenor of Dr. Sloka’s evidence in Ms. B.P.’s case and in the case at large. That is not guess work.

1726The Crown also points to specific examples of what they allege constitutes guesswork in support of their broader submission about the allegedly speculative nature of Dr. Sloka’s denial.

1727Two of the examples relied upon by the Crown concern the subject of moles and, implicitly, the subject of skin examinations. In my view, these examples are red herrings, because Ms. B.P. did not allege that Dr. Sloka performed anything resembling a skin examination. Nevertheless, I will explore the Crown’s two related submissions regarding Dr. Sloka’s evidence about moles.

1728The first example cited by the Crown is Dr. Sloka’s evidence about an inspection for moles during Ms. B.P.’s examination. On the one hand, Dr. Sloka testified that a cardiac examination would involve an incidental inspection of the patient’s exposed skin as the cardiac examination unfolds. I fail to see the speculation. Dr. Sloka repeatedly testified that he would incidentally observe the skin of his patients when performing examinations. The Crown also argues that Dr. Sloka then contradicted himself by denying that he asked Ms. B.P. about moles or birthmarks while in the examination room. I see no contradiction. Dr. Sloka testified that any discussion about skin abnormalities would occur when taking the patient’s history in the office. Indeed, he documented the absence of stigmata of neurocutaneous disease in the history portion of his consultation letter. Dr. Sloka conceded the possibility that Ms. B.P. showed him her mole and birthmark on her scalp, possibly while in the examination room. However, that concession does not constitute an admission that he inquired about moles or birthmarks in the examination room. The Crown never suggested any inconsistency in cross-examination. Dr. Sloka was not provided the opportunity to address the inconsistency they now allege. That is of no moment, though, because no inconsistency exists.

1729The Crown also suggests that Dr. Sloka’s denial that he spoke about moles contradicts other areas of his evidence. They argue that the contradiction reveals that Dr. Sloka was simply guessing when making his denial. For instance, the Crown points to Dr. Sloka’s statement to the CPSO, where Dr. Sloka stated that he told J.W., “I’d be checking for ‘moles’ and birthmarks.” The Crown also points to another other area of Dr. Sloka’s evidence where Dr. Sloka conceded that, early in his practice, he may have used the term moles when inquiring about skin abnormalities. A closer look at Dr. Sloka’s evidence reveals no inconsistency and no guesswork. I come to this conclusion for several reasons. First, while Dr. Sloka had conceded that he may have used the term moles early in his practice when speaking of stigmata of neurocutaneous disease, he would qualify the term. He would do so by saying things like, “I’m not looking for the little brown bumps that you have. I’m looking for large flat ones.” He also resorted to pictures in textbooks to explain the skin markings in which he had interest. In other words, Dr. Sloka purported to use enough specificity to allow his patients to know the nature of the skin abnormalities in which he was interested. His position is supported by several patients in this trial, who confirmed that Dr. Sloka used textbooks and pictures to explain concepts to them. Additionally, when asked about his letter to the CPSO regarding Ms. J.W.’s complaint, Dr. Sloka pointed out that he put the term “moles” in quotes for a reason. He was denoting that he was not using the term as it is used in the common parlance but referring to something else. I accept this explanation. The use of quotes around terms is a common linguistic method of conveying the ostensible (apparent but not real) meaning of a word. Having considered the entirety of Dr. Sloka’s this subject and having considered the evidence of many patients who described Dr. Sloka’s thorough resort to texts and pictures to explain concepts, I conclude that Dr. Sloka did not contradict himself. Dr. Sloka had a rational basis for concluding that his standard screening questions were concerned with stigmata of neurocutaneous disease, not common moles; he had a rational basis for believing he would have adequately explained the object of his interest; he had a rational basis for believing that seizures and neurocutaneous diseases were not his concern; and he had a rational basis for believing that he did not conduct a skin examination.

1730The Crown also essentially argues that Dr. Sloka also guessed when denying the bizarre breast touching described by Ms. B.P. In support of this position, the Crown contends that Dr. Sloka conceded that he would vary the tests performed during his standard neurological examination but nevertheless rely upon the same descriptive template in his reporting letters. Given that alleged variation, the Crown argues that Dr. Sloka’s denial amounts to a guess. This submission invites a reversal of the onus of proof. Moreover, it misstates Dr. Sloka’s evidence. Dr. Sloka steadfastly maintained that he employed the same standard tests in his neurological examinations. The variation to which Dr. Sloka admitted concerned the manner in which he performed each test, such as whether sensation testing was performed over the clothing or on bare skin. I reject the contention that Dr. Sloka’s standard neurological examination template “can be interpreted to include different examinations.” It is obvious from the entirety of Dr. Sloka’s evidence that Dr. Sloka at least implicitly based his firm denial of the allegations of Ms. B.P. on the resolute belief that he would not do what she alleged. I see no guesswork in that implied but nevertheless obvious belief.

1731Dr. Sloka provided logical and cogent explanations for the examinations and investigations he reported in his consultation letters, all of which Dr. Bril agreed were neurologically reasonable. He gave logical and cogent reasons for his denial of the bizarre and sexualized conduct described by Ms. B.P.

1732Ms. B.P., on the other hand, was a patently unreliable witness whose evidence also raised concerns about her credibility. The evidence leads me to conclude that there exists a substantial likelihood that her evidence has been tainted by exposure to CPSO and media publications about Dr. Sloka. I reject her description of the examination performed by Dr. Sloka.

1733Having considered all the evidence, I accept that Dr. Sloka performed the examinations he reported in his consultation letter, and nothing more; I accept that Dr. Sloka proposed and obtained consent for these examinations; I accept that these examinations were performed in accordance with Dr. Sloka’s standard methods; I accept that Dr. Sloka’s motives were purely medical; and I reject the contention that Dr. Sloka possessed any sexual motive. No sexual activity occurred. Ms. B.P. consented to and obtained a medical examination, nothing more.

1734Dr. Sloka will be acquitted on this count.

xi. A.R. (Count 21)

A Summary of Ms. A.R.’s Complaint and Dr. Sloka’s Response to It

1735Ms. A.R. came to Dr. Sloka for the assessment and treatment of her complex migraines and episodic losses of consciousness. She alleged that Dr. Sloka conducted breast and skin examinations at her first appointment. She alleged that both examinations were done for the purpose of searching for “moles and lesions.” She stood almost completely naked for the skin examination, which lasted only a minute. However, contrary to Dr. Sloka’s stated standard practice, she wore her underwear during the skin examination. She lay on the examination table for her breast examination. During the breast examination, Dr. Sloka allegedly placed both hands on a single breast and rotated them, as if trying to turn a doorknob or open a jar. He did the same thing to both breasts. Then he held each breast simultaneously, one in each hand, and again rotated his hands as he cupped her breasts. The breast groping lasted a few minutes. He looked at her breasts while groping them, with his face a mere one foot away from her chest. She alleged that, in the moment, she recognized this as sexual conduct and felt violated.

1736Ms. A.R. also alleged sexual misconduct on one other occasion and suspected the possibility of misconduct on another. First, she alleged that Dr. Sloka repeatedly and intentionally grazed her breasts while attaching the leads for a Holter monitor at a separate appointment with Dr. Sloka at his office. She also expressed concern that Dr. Sloka may have touched her breasts while she was unconscious during a tilt-table test that occurred in a different section of the hospital.

1737Dr. Sloka testified that he proposed obtaining measurements of Ms. A.R.’s orthostatic vital signs (blood pressure and pulse, both upright and laying down) and neurological and cardiac examinations. He also raised the prospect of a skin examination. He testified that Ms. A.R.’s mother wanted Dr. Sloka to perform a skin examination, but Ms. A.R. declined. Her mother, a skin cancer survivor who frequently raised concerns about the subject, raised concern about a mole on Ms. A.R.’s lower right abdomen. Heeding her mother’s concern, Ms. A.R. showed him this mole at the second appointment.

1738Dr. Sloka denied applying or removing Ms. A.R.’s Holter monitor. This test is administered by another doctor in a different location at the hospital, who prepared a report and provided it to Dr. Sloka. He could not have touched her when Ms. A.R. was hooked up to the monitor or when the monitor was removed.

1739Dr. Sloka also denied applying the leads to Ms. A.R.’s chest in advance of the tilt-table test. Accordingly, he denied touching Ms. A.R.’s breasts when applying the leads. Patients show up to the tilt-table room an hour before Dr. Sloka arrives to perform the test. The leads are attached by nurses and the patient’s heart is monitored for 30 minutes before Dr. Sloka’s arrival. While he acknowledged listening to her heart with a stethoscope during his involvement in the test, he denied intentionally touching Ms. A.R.’s breasts at any point.

A Preliminary Remark

1740The Crown concedes that the court may be left with a reasonable doubt by the evidence of Ms. A.R. and her mother, whom the Crown proffered to support the evidence of Ms. A.R. The Crown asks the court to conclude that similar fact evidence provides sufficient support to the evidence of Ms. A.R. to remove any reasonable doubt. For the reasons I will soon discuss, it does not. Ms. A.R. and her mother were both unreliable and dishonest. They colluded with each other, tainted each other, and were both tainted by exposure to substantial media coverage of the allegations against Dr. Sloka.

The Circumstances of Ms. A.R.’s Referral and Treatment History

1741According to Ms. A.R., for years she had been suffering from episodes involving seizures, severe long-lasting headaches, numbness along one side, nausea, vomiting, and impaired speech. These episodes resulted in multiple trips to the ER.

1742Ms. A.R. attended the Grand River Hospital ER on July 1, 2011, in response to one of her medical episodes. It is not clear from the ER records that the ER physician (Dr. Saluja) considered the possibility of a seizure (the notes are not very legible), but migraines were identified as a diagnosis at the bottom of the ER Record. The ER doctor made a referral to Dr. Sloka. Ms. A.R. testified that her mother had insisted upon the referral.

1743Ms. A.R. was 17 years old at the time of her referral.

1744Ms. A.R. attended her first appointment at Dr. Sloka’s office on September 7, 2011. Dr. Sloka documented neurological and cardiac examinations, as well as the measurement of Ms. A.R.’s orthostatic vital signs. At the conclusion of that visit, Dr. Sloka ordered the following tests on Ms. A.R.’s heart and brain: an echocardiogram, a Holter monitor, a tilt-table test (aka stress test), and a head MRI. Ms. A.R. saw Dr. Sloka in follow-up on November 9, 2011. Dr. Sloka saw Ms. A.R. in follow-up again on February 3, 2012. In the aftermath of that visit, Dr. Sloka made a referral to a dermatologist (Dr. Lima, who had treated Ms. A.R.’s mother for Bowen’s disease – which is a skin cancer) to inspect a mole that her mother had expressed concern about (according to Dr. Sloka’s referral letter). Thereafter, Dr. Sloka saw Ms. A.R. in follow-up on April 4, 2012, May 14, 2012 (he documented a cardiac examination and the measurement of orthostatic vital signs on this visit), and July 16, 2012. Ms. A.R. did not attend for a scheduled appointment on September 17, 2012. Dr. Sloka’s office booked another follow-up on November 30, 2012, but Ms. A.R. did not show for that appointment, either.

The Evidence of Ms. A.R.

1745Ms. A.R. was 27 years old when she testified.

1746Ms. A.R. attended her first appointment with her mother, St.M.

1747Ms. A.R. testified that her first appointment with Dr. Sloka was “very memorable” and that many of the details of the appointment were seared into her memory. She also testified that she remembered her examinations of concern “pretty vividly.” As will be seen, some of those seared-in memories were demonstrably wrong.

1748Ms. A.R. testified that Dr. Sloka retrieved her and her mother and brought them to his office, which was across the hall from the reception area. His office adjoined his examination room and accessible through a doorway that connected the two rooms.

1749Ms. A.R.’s description of the layout of the office and examination rooms was demonstrably incorrect, despite having attended a total of seven appointments at Dr. Sloka’s office. Her erroneous memory was made clear from the diagrams she drew, which were entered into evidence as Exhibits 68 and 69.

1750Ms. A.R. erroneously placed Dr. Sloka’s desk in the back left corner of Dr. Sloka’s office. She drew a rectangular-shaped desk that faced the side wall, resulting in Dr. Sloka having his back to the doorway leading to the examination room. In reality, as depicted in the photographs in Exhibit 2, Dr. Sloka’s desk was an L-shaped desk. The back of his chair faced the exterior window at the back of the room. The door to the examination room is to the left of Dr. Sloka’s chair. Further, the door to the examination room is situated close to the front-right corner of the room, not in the rear-right corner, as depicted in Ms. A.R.’s diagram.

1751Ms. A.R. erroneously placed the examination table immediately beside the wall separating Dr. Sloka’s office from the examination room. She also placed it at the back of the room, along that wall. In reality, the examination table sat along the wall opposite from the doorway, roughly in the middle of that wall. As a result of the erroneous placement, which I will discuss in more detail shortly, Ms. A.R. erroneously testified that the right side of her body was adjacent to the wall. In reality, if her head was pointed towards the window (as it would be in a standard examination) the left side of her body would be adjacent to the wall, and the neighboring office would be to her right. This orientation would allow Dr. Sloka to examine Ms. A.R. from the right, which he stated was his standard practice, learned during medical training.

1752Presented with photographs of Dr. Sloka’s office from Exhibit 2, Ms. A.R. agreed that the photographs depicted a room quite different from the room she had described. She remained adamant that the examination table was in the location she claimed during her testimony in-chief. In doing so, she did not address her erroneous placement of the door, which she had tied to her placement of the bed.

1753Ms. A.R. testified that Dr. Sloka obtained her medical history from her during their initial discussions in his office. Ms. A.R. did most of the talking, but her mother also provided some information.

1754In cross-examination, with the aid of Dr. Sloka’s consultation letter, defense counsel elicited a more nuanced picture of Ms. A.R.’s medical issues. She presented with two issues. The primary issue concerned Ms. A.R.’s headaches. She had been experiencing migraines with aura. The auras had stroke like features, including numbness, loss of speech, vision issues, nausea, and vomiting. It was a persisting and immediate concern. Ms. A.R.’s second issue concerned episodes in which she lost consciousness. These episodes were relatively recent. They occurred up to twice a week and were getting worse as she got older. She would experience tremors during these episodes. These episodes seemed to occur when she was not eating well. She would become light-headed, suffer a loss of vision, and fall to the ground.

1755According to Ms. A.R., Dr. Sloka then told her that he would like to take her into the examination room to do an examination to look for “moles and lesions” that might be causing her migraines and seizures. She testified that he did not elaborate upon the nature of the examination and provided no information about the attire she would wear during the examination. She trusted him, so she agreed to the examination.

1756In cross-examination, Ms. A.R. again insisted that Dr. Sloka told her that he wanted to look for moles and lesions. She also added that he told her that he wanted to perform a breast examination and that he wanted her to get into a gown. However, contrary to her assertion in-chief that Dr. Sloka revealed to her while in the office in the presence of her mother that he wanted to search for moles and lesions, Ms. A.R. stated in cross-examination that the entire discussion about the proposed examinations did not occur until after she was in the examination room and separated from her mother by a closed door. She denied that Dr. Sloka proposed conducting a “physical exam in a gown with [her] mother there.”

1757She denied that Dr. Sloka proposed conducting some basic neurological tests. She also denied that he proposed a cardiac examination. She insisted that Dr. Sloka did not make mention of any cardiac investigations until after he finished her examinations and was speaking to her in the office about further testing. However, she acknowledged that Dr. Sloka told her that he wanted to investigate whether there was any connection between her brain and her symptoms. Nevertheless, on her evidence, she did not know what to expect before she entered the examination room and neither did her mother.

1758According to Ms. A.R., she followed Dr. Sloka into the examination room. Once inside, he told her to undress and put on a gown, but he said she could keep wearing her underwear.

1759Ms. A.R. testified that her gown was not like a standard hospital robe that opens up at the back. Instead, the robe opened at the front and tied at the left side. It was blue. She testified that she recalled thinking at the time that the gown provided was unusual. Dr. Sloka provided no instructions about how to wear the gown.

1760Ms. A.R.’s testimony about her gown was proven demonstrably false by the evidence of Tammy Tebbutt, who managed the stroke and neurological clinics since 2005. The hospital stocked Dr. Sloka’s neurology clinic with standard issue hospital gowns, which tied at either the back or the front, depending on how it is worn. Ms. Tebbutt identified the gowns depicted in Exhibit 2 as the standard issue hospital gowns. They did not tie at the side, as Ms. A.R. alleged. They are the precise type of gown that Ms. A.R. denied was present. Ms. A.R.’s purportedly certain memory was wrong. In cross-examination, when presented with photographs of the standard-issue gowns depicted in Exhibit 2, Ms. A.R. insisted that she wore a different gown. She claimed to be certain.

1761Ms. A.R. testified that Dr. Sloka turned around in his chair while she removed her clothing and got into her gown. This was seared into her memory. She testified that she knew at the time that it was unusual for doctors to remain in the room while a patient undressed. Dr. Sloka’s presence allegedly increased her anxiety, which had already been high. Despite expressing certainty on this point, though, Ms. A.R. had expressed uncertainty when providing her statement to the police. She was not sure if Dr. Sloka had left the room to allow her to change in privacy, stating that she could not remember those little details. Confronted with this inconsistency, Ms. A.R. insisted that her current memory was clear. She became argumentative, defending herself against what she believed was a suggestion that she was lying:

I think it was clear; I think I was scared as things started developing from this case. After that I started to really have to sit and think about some of these things. So yes and I just don’t understand why anyone would get up here and this would be true or they would lie to be re-victimized through all of this situation. I just don’t understand why somebody would do that so I feel like that’s kind of – if that’s what you’re getting at, like I don’t know but – I have nothing to hide up here. I am the victim and that’s that. All I know is my truth and this is very traumatic for everybody, I’m sure. So yeah, your brain kind of has a hard time with that sometimes.

1762Ultimately, however, Ms. A.R. struggled to explain how she became certain of an assertion about which she had been previously unsure.

1763According to Ms. A.R., once she had put on her gown, Dr. Sloka stood up from his chair and told her that he wanted to examine the whole of her body to look for moles and lesions. He wanted her to remove her entire robe and stand there in only her underwear. Trusting Dr. Sloka, Ms. A.R. allegedly removed her entire robe, but she did not remove her underwear.

1764Ms. A.R. testified that Dr. Sloka stood about two feet away from her as he looked at her body. She turned 360 degrees to allow him to look at both her front and back. She did not remember if he moved around her at all. When asked about it, she did not remember Dr. Sloka asking her to raise her arms took look beneath them. She thought he might have bent over at one point but was not sure. She testified that the examination did not take very long – perhaps a minute. He did not touch her during the skin examination.

1765In cross-examination, Ms. A.R. acknowledged that she told the police that Dr. Sloka examined her on the examination table before conducting the standing skin examination. Her trial testimony reversed the order of examinations. She testified that, having thought about it, she was now certain that her examinations began with the skin examination.

1766In cross-examination, Ms. A.R. also testified that as Dr. Sloka intermittently said “okay” in a sensual and sexual tone as he examined her skin, almost trailing off as he said it. She said that he made her feel “icky.”

1767Ms. A.R. testified that, once the skin examination was over, Dr. Sloka instructed her to put on her gown. He then told her that she could lay on the table. In cross-examination, she added that he told her that he was going to perform a breast examination and was going to look at her torso for moles and lesions. Ms. A.R. testified that she was perplexed, because Dr. Sloka had just examined her for moles and lesions.

1768According to Ms. A.R., she laid on the table as instructed. Dr. Sloka then allegedly untied her gown – which was tied at the left side. He was able to do this because her left side was purportedly adjacent to him, and her right side was adjacent to the wall. Her description of Dr. Sloka’s conduct here was based upon her demonstrably incorrect memory of both the style of gown she wore and location of the examination table.

1769Ms. A.R. testified that Dr. Sloka did not say anything further as he opened her gown. Once he opened it, he allegedly placed both hands on one breast, then rotated them. He did the same with her other breast. Then he held each breast simultaneously, one in each hand, rotating his hands and softly feeling her breasts. She described Dr. Sloka’s touch as very sensual and light, like the touch of a romantic partner, not like a medical examination. Dr. Sloka was looking at her breasts as he touched her. His face was about one foot away from her chest. She did not remember Dr. Sloka squeezing her breasts until the Crown refreshed her memory with her police statement.

1770In cross-examination, Ms. A.R. agreed that she never told the police that Dr. Sloka held each individual breast with both hands. She testified that she withheld his information because she was nervous and uncomfortable, stating that she was just trying to get out of the interview quickly.

1771In cross-examination, Ms. A.R. also confirmed that she believed in the moment that the groping was sexual act. There was no doubt in her mind. It felt like a romantic partner who was enjoying the way she looked and felt.

1772At the conclusion of the alleged breast examination, Dr. Sloka allegedly told her that everything looked good – there was nothing wrong with her breasts.

1773Ms. A.R. testified that once Dr. Sloka finished examining her breasts, he examined her arms and legs while the gown remained open. He held one arm at a time and touched up and down her arm, rotating it. As he did so, his face was a couple of inches from her face. Next, he touched her lightly up and down her legs.

1774Ms. A.R. testified that, as Dr. Sloka touched her legs, he commented on a mole that sat just above her pubic bone on her right side. He told her that the mole looked concerning. Ms. A.R. testified that Dr. Sloka made a note of it in one of his consultation letters. As it happens, in the consultation letter for Ms. A.R.’s second visit, Dr. Sloka indicated that Ms. A.R. showed him a mole, which he noted lacked several characteristics of concern. He also noted that Ms. A.R. informed him that she had already been referred to a specialist about this mole. Despite what Dr. Sloka recorded in his second consultation letter, Ms. A.R. denied that the topic of her mole arose at the second visit. She insisted that he examined and discussed her mole at the first visit.

1775According to Ms. A.R., Dr. Sloka then told her that he wanted to test her reflexes. After testing her knee reflexes, he told her that the examination was over and that she could get dressed.

1776To sum up, Ms. A.R. alleged in-chief that Dr. Sloka began with a skin examination, then proceeded to a breast examination, then touched her arms and legs while his face was inches from hers, then commented on a mole near her pubic bone, and then tested her knee reflexes. In cross-examination, she agreed that it was possible (but she did not remember) that Dr. Sloka conducted all the elements of his standard neurological examination. However, she insisted that, if he did so, he conducted these tests at the very end of her examination, not at the outset. Ms. A.R. also agreed that it was possible that Dr. Sloka performed his standard cardiac examination at the first visit, but she had no memory of it. In any event, she insisted that her examination began with a skin examination. She suggested that the shock of the skin examination affected her ability to remember other aspects of her examination.

1777Ms. A.R. did not remember whether Dr. Sloka remained in the room while she got dressed at the conclusion of her examinations.

1778Once dressed, Ms. A.R. joined Dr. Sloka and her mother in the examination room.

1779Ms. A.R. testified that they engaged in a brief conversation in the office. He told her that she had probably been experiencing migraines with auras. He prescribed her some medication. As already noted, Ms. A.R. insisted that the topic of cardiac testing first arose in Dr. Sloka’s office after Dr. Sloka had completed her physical examinations. On her evidence, the topic of her heart first arose when he told her that he wanted to order a tilt-table test and a Holter monitor test.

1780Ms. A.R. also testified that Dr. Sloka palpated her throat for lumps while in the office following her examination. However, in her police statement, Ms. A.R. said that Dr. Sloka palpated her throat in the examination room, not in the office in the presence of her mother. When questioned about the contradiction, she testified that she now vividly remembered Dr. Sloka palpating her throat while she was fully dressed and in the office with her mother.

1781Ms. A.R. testified that immediately after she and her mother departed from the appointment, she mentioned her discomfort to her mother in the car on the way home. She purportedly told her mother that the examination felt sensual and did not feel right. Ms. A.R. did not initially remember raising concerns about her draping, or lack of it. After the Crown refreshed her memory with her police statement, Ms. A.R. agreed that “… I told her that it was a gown and that it was open, and I was naked and that he had me standing there naked.” Ms. A.R. also remembered telling her mother that she thought that Dr. Sloka’s touching of her felt long and uncomfortable, and that he looked at her while he was doing it. According to Ms. A.R., her mother reassured her that Dr. Sloka was a medical professional and that they should trust him. Nevertheless, Ms. A.R. allegedly asked her mother to be with her in the examination room at any future appointments.

1782Ms. A.R. testified that she had a follow-up appointment with her family doctor, Dr. Peet, following her initial appointment with Dr. Sloka. She claimed that she told Dr. Peet that she had to have a breast examination, and she was uncomfortable. When asked if Dr. Peet made any comment on whether a breast examination was appropriate, Ms. A.R. walked back her claim that she disclosed the alleged breast examination to Dr. Peet. She stated that she did not give Dr. Peet details about what occurred and that she did not know if she told him about a breast examination. Importantly, Ms. A.R. had testified that there was no doubt in her mind that the alleged breast examination was a sexual act. On any version of her alleged disclosure to Dr. Peet, Ms. A.R. did not claim to have relayed this conclusion to Dr. Peet. Partway through her evidence, Ms. A.R. signed a waiver to permit the release of her medical records from Dr. Peet’s office. After a review of those records, Ms. A.R. agreed that Dr. Peet did not document any complaint about Dr. Sloka during the time period in question. Nevertheless, Ms. A.R. maintained that she told Dr. Peet that she was uncomfortable.

1783Ms. A.R.’s memory about the chronology and circumstances of her subsequent tests and appointments was hazy at best and sometimes objectively wrong. Her objectively incorrect evidence about the timing and circumstances of her tilt-table test and her Holter monitor test deserve careful attention.

1784After discussing her first appointment with Dr. Sloka, Ms. A.R. turned her focus to her second appointment which occurred on November 9, 2011. It is clear on her evidence that she believed this appointment to be the occasion of her second interaction with Dr. Sloka. She believed that her Holter monitor test and tilt-table test occurred later. Her medical records prove her memory about the sequence to be false. As I will discuss, her misapprehension has consequences for the viability of her narrative. As a result, I will discuss Ms. A.R.’s evidence about her Holter monitor and tilt-table tests before turning to her evidence about her second appointment.

1785Ms. A.R.’s memory regarding her Holter monitor test was fundamentally flawed. Evidence at trial established that a Holter monitor is a wearable device that measures the electrical signals of the heart and reveals information about the heart’s rhythm. Leads from the monitor are attached to the chest using sticky pads. Ms. A.R. testified that she attended at Dr. Sloka’s office to have the Holter monitor installed. She testified that this occurred before she attended for her tilt-table test, and likely a few visits into her time as Dr. Sloka’s patient. Ms. A.R. claimed that the installation of the Holter monitor by Dr. Sloka was seared into her memory. She remembered Dr. Sloka placing the sticky pads on her chest in the vicinity of her breasts. She alleged that Dr. Sloka’s palms repeatedly and intentionally grazed her breasts as he placed these pads on her chest. She testified that it, “once again felt very sexual and uncomfortable.” She allegedly left his office feeling violated. Ms. A.R.’s evidence on this topic was proven demonstrably false. The Holter Monitor Test Report proved that a different doctor, Dr. Kuldip Malhotra (a pediatrician), oversaw the installation of the Holter monitor and later produced the report. Ms. A.R. never attended Dr. Sloka’s to have the Holter monitor installed. Confronted with the Holter Monitor Test Report, Ms. A.R. continued to insist that her memory was not false. She testified that, if Dr. Sloka did not install the device, then he must have removed it: “As I said, if he didn’t put them on he took them off because I remember it vividly him touching me with the stickies.” Having said that, Ms. A.R. admitted that she had no memory of Dr. Sloka removing the Holter monitor – it was just an assumption.

1786Ms. A.R.’s memory about the timing of the Holter monitor test was also flawed. Contrary to her belief that it occurred a few visits into her time as Dr. Sloka’s patient, it was installed 12 days after her first appointment, on September 19, 2011. It was removed four days later.

1787On Ms. A.R.’s flawed evidence, Dr. Sloka had groped her breasts twice in less than three weeks. In cross-examination, she claimed to have told her mother about the breast touching that occurred when Dr. Sloka allegedly installed the Holter monitor. However, Ms. A.R.’s description of her mother’s confrontation of Dr. Sloka at the second appointment appeared to only involve a complaint about the first appointment.

1788Ms. A.R.’s evidence about timing and circumstances of the tilt-table test is important because reveals fundamental errors in Ms. A.R.’s memory and casts doubt on existence of an alleged confrontation between St.M. and Dr. Sloka.

1789Some general evidence about the tilt-table test is required before discussing the flaws in Ms. A.R.’s evidence on the topic.

1790The tilt-table test occurred elsewhere in the hospital, in a room clearly equipped for that purpose. It did not occur in Dr. Sloka’s office. It occurred on November 3, 2011, six days before Ms. A.R.’s second appointment with Dr. Sloka. Ms. A.R. went to the tilt-table test with her mother. Ms. A.R. testified that a nurse brought her from a waiting area to a place where she could get changed into a gown. She alleged that the nurse then brought her to the tilt-table room, where Dr. Sloka greeted her at the door. He then allegedly conducted the tilt-table test alone.

1791The timing of the tilt-table test is important, because of the evidence Ms. A.R. and her mother both provided about an alleged confrontation between her mother and Dr. Sloka following the first appointment.

1792According to Ms. A.R.’s evidence in-chief, St.M.’s confrontation with Dr. Sloka occurred at the second appointment at Dr. Sloka’s office, which she characterized as her second ever meeting with Dr. Sloka. The confrontation allegedly occurred because of the disclosures made by Ms. A.R. to her mother following the first appointment. Ms. A.R. had alleged that the tilt-table test was one of the last times she ever saw Dr. Sloka. On her evidence, her mother’s confrontation with Dr. Sloka had long since occurred. She was wrong. In reality, the tilt-table test was Ms. A.R.’s second meeting with Dr. Sloka. The second office visit had yet to occur, so no confrontation could have occurred by the time of the tilt-table test. The tilt-table test was the first occasion in which Ms. K.R. saw Dr. Sloka after allegedly formulating a plan with her mother to not be left alone with Dr. Sloka. That plan was not carried out at the tilt-table test. Instead, Ms. A.R. testified that she was alone with Dr. Sloka for the test. Her evidence about what transpired beforehand is important. Ms. A.R. testified that Dr. Sloka popped by while she and her mother were waiting in the waiting room. He was in a rush. He allegedly explained to Ms. A.R. that a nurse would take her to get changed and would then take her to the tilt-table room. He also allegedly said that her mother could not be present for the tilt-table test. Despite the alleged plan to avoid being examined alone, despite the claim of a confrontation at some point, neither Ms. A.R. nor her mother alleged any confrontation occurred here, nor did either suggest any resistance to the announcement that Ms. St.M. would not be permitted in the tilt-table room.

1793Ms. A.R. was rendered unconscious during the tilt-table test. She worried that Dr. Sloka may have sexual assaulted her while she was unconscious. She did not, however, allege that she raised this concern with her mother. This purported concern did was not addressed in her mother’s alleged confrontation with Dr. Sloka at the second appointment.

1794On Ms. A.R.’s account, two and perhaps as many as three sexual assaults had occurred before her second documented appointment at Dr. Sloka’s office. However, Ms. A.R. misapprehended the timing of the tilt-table test and the Holter monitor test and therefore did not realize that all three incidents of impropriety had transpired before her mother’s alleged confrontation. Coincidentally, her memory of the confrontation only incorporates concerns about the first appointment.

1795Ms. A.R. testified that she was “one hundred, thousand percent” certain that she was alone in the room with Dr. Sloka as he then hooked her up to the machines, placing leads on her chest. She denied the possibility that she had been hooked up to the machines and monitored by staff long before Dr. Sloka’s arrival for the test. This evidence stood in contradiction to Dr. Sloka’s unchallenged evidence that hospital staff hook up the patient to the monitors and monitor the patient for 30 minutes before he arrives to conduct the tests.

1796Ms. A.R. also incorrectly asserted that Dr. Sloka tilted the table both upwards and downwards. She distinctly remembered being almost upside-down and almost losing consciousness in that position. She described the table as being constantly in motion, like a see-saw ride. She also testified that the table may have rocked from side to side. This evidence stands in contradiction to Dr. Sloka’s unchallenged evidence that the table cannot tilt downwards. It is designed to tilt upwards from a horizontal position. The report from the tilt-table test confirmed that Ms. A.R. lost consciousness when the table was tilted upwards to a 70-degree angle. Ms. A.R. disputed the accuracy of the report and stated that she was 95% certain that her head was tilted towards the ground at the time.

1797Ms. A.R. also incorrectly stated that she lost consciousness within a couple minutes, or less, after the commencement of the test. The test report indicates that she was tilted for over 30 minutes before she lost consciousness.

1798Presented with the contents of Dr. Sloka’s tilt-table test report which contradicted her memory, Ms. A.R. stated, “He can write anything he wants… and it doesn’t mean that it was real.” She considered the contents of Dr. Sloka’s test report to be “nonsense.”

1799Ms. A.R. testified that her mother accompanied her to the second appointment. In-chief, she seemed uncertain about whether her mother confronted Dr. Sloka at this appointment or a subsequent one. That uncertainty disappeared by the time of her cross-examination.

1800According to Ms. A.R., she and her mother planned on insisting that Ms. A.R. not be alone during any examination. She incorrectly believed that she had yet to partake in the tilt-table test. Instead, she erroneously believed that the second office appointment was also the second time she ever saw Dr. Sloka. According to Ms. A.R., when they sat in Dr. Sloka’s office for a discussion, Ms. St.M. attempted to carry out the plan by telling Dr. Sloka that Ms. A.R. was uncomfortable, and that Ms. St.M. wanted to be in the examination room for any examination. Ms. St.M. also allegedly confronted Dr. Sloka about “… the touching of the breasts [and] looking over my whole body naked.” In response, Dr. Sloka allegedly told Ms. St.M. that he would leave the door open a couple of inches. He also explained that the previous examination had been for the purpose of finding moles and lesions that might connect to her brain and be causing her seizures. However, according to Ms. A.R., Dr. Sloka never explained why Ms. St.M. could not accompany Ms. A.R. into the examination room.

1801Ms. A.R. agreed that she was extremely anxious about going into Dr. Sloka’s examination room unaccompanied. That was not the plan. However, she did not remember what examinations were proposed or what examinations were conducted. She remembered nothing about her time in the examination room, other than the fact that the door was not fully closed. In his consultation letter, Dr. Sloka charted neurological and cardiac examinations. He also charted an entire paragraph about Ms. A.R. showing him a mole on her right lower quadrant. Ms. A.R. could not remember Dr. Sloka conducting neurological and cardiac examinations, but she agreed he may have done so. Ms. A.R. disputed the notion that Dr. Sloka saw her mole for the first time during this visit.

1802Ms. A.R. had little memory about her remaining visits with Dr. Sloka. She remembered that by the time of her last visit, they had finally figured out the medication regimen necessary to prevent her seizures. She had not been having seizures for a while and Dr. Sloka told her he felt comfortable with ending his involvement in her care.

1803Ms. A.R. testified that she did not consider making a formal complaint against Dr. Sloka while she was his patient, because she trusted him. He had explained his reasons for his examinations, and she accepted them.

1804A week before contacting the police, Ms. A.R. came across a news article about Dr. Sloka facing sexual assault allegations. This occurred in September of 2019. The article came from CTV News. She testified that she immediately began crying, feeling validated. She reportedly realized she was not crazy, and she was not alone. She also saw television news coverage of the allegations on CTV News the next day. Ms. A.R. recalled reading that patients had alleged that Dr. Sloka wanted to check their skin for lesions and moles. As she understood it, patients had made allegations regarding naked skin examinations. She also saw a video clip which reported allegations that Dr. Sloka had a patient remove their gown and stand with their arms and legs outstretched.

1805Ms. A.R. denied reading earlier media coverage of the CPSO investigation of Dr. Sloka in 2018 or of Dr. Sloka losing his license at the culmination of that investigation in April and May of 2019.

1806Ms. A.R. testified that she avoided reading more articles about Dr. Sloka because it was triggering to her. She denied that she was trying to keep up to date on the news about Dr. Sloka. Her testimony was contradicted by her police statement. She told the police that she had watched a few videos of patients discussing what had happened to them. She also told the police that she wanted to make sure she stayed in the loop and read any article about Dr. Sloka that happened to “pop up.” Confronted with this inconsistency, Ms. A.R. stated that she was in shock when speaking to the police. She then attempted to suggest that she could not have read much in the week that transpired between reading the first article and her police interview. She added that she may have seen stories pop up on her Facebook feed, but she denied opening the articles. However, Ms. A.R. agreed that she wanted to understand what other patients were alleging. Additionally, Ms. A.R. told the police, “what really resonated with me was one of the victims had said, yeah, he wanted to look at my skin – exactly from my experience, for moles and lesions. And then I read that that was exactly what he did to me, and then he proceeded to feel me up. So that’s how it correlated.”

1807Ms. A.R. also acknowledged that the exact wording of proposition she attributed to Dr. Sloka was reported in the news she read: the allegation that Dr. Sloka said that he wanted to look for “moles and lesions.”

1808Despite Ms. A.R.’s apparent interest in learning about the allegations of other patients and even though allegations of breast touching were reported by multiple media outlets, including CTV news, she denied reading about any patients alleging breast touching.

1809Ms. A.R. testified that the CTV News article contained contact information for the police officers who were investigating Dr. Sloka. A week after reading her first article, she spoke to the police.

1810In her police interview, the interviewing officer told her that she was joining a large group of people that were already making complaints. The officer added that, “Each time a new victim comes forward, it strengthens the case more and more.” After hearing Ms. A.R.’s complaint, the officer told Ms. A.R. that he believed she had been sexually assaulted.

The Evidence of St.M.

1811St.M. is the mother of Ms. A.R. Ms. St.M. had a close relationship with her daughter. The still resided together at the time of their testimony.

1812The sequence of Ms. A.R.’s and Ms. St.M.’s testimony is important in this case, because there exists compelling evidence of collusion. Ms. St.M. testified immediately following Ms. A.R. Ms. A.R. testified on a Wednesday, Thursday, and Friday. Ms. St.M. began testifying on the Friday. Her testimony resumed on the following Monday.

1813Ms. St.M. was called by the Crown to provide evidence to rebut any suggestion that Ms. A.R.’s testimony was tainted by her exposure to media coverage of the allegations against Dr. Sloka.

1814Ms. St.M. first learned about the allegations against Dr. Sloka from Ms. A.R. Ms. A.R. brought a news article to her attention, and she read it. The article mentioned that the CPSO had determined that Dr. Sloka sexually abused his patients and revoked his licence. The CPSO also ordered Dr. Sloka to pay compensation to the complainants. Ms. St.M. claimed that she did not remember the details of any of the allegations and that she did not really want to know the details.

1815Ms. St.M. also admitted to reading another article about Dr. Sloka on her Facebook feed.

1816Ms. St.M. acknowledged that she and Ms. A.R. talked about what had occurred in 2011. They revisited the details of Ms. A.R.’s initial appointment with Dr. Sloka, including Ms. A.R.’s allegation of standing naked for an examination and her allegation of breast touching. Ms. A.R. also reiterated what she purportedly told her mother in the aftermath of that visit.

1817Ms. St.M. and Ms. A.R. spoke about Ms. A.R.’s intentions in the aftermath of discovering the first article about Dr. Sloka. As defence counsel probed those discussions, Ms. St.M. said the following:

What I did, I basically explained to her the way the system is. With all due respect to the court, Your Honour, I must say the system is seriously flawed if not totally broken. The onus is put on the victims and the other witnesses to remember every last detail while he can sit back there; he still holds all the power sitting in this courtroom today; he makes the decision as to whether he takes the stand or not; he makes the decision whether he has trial by jury or trial by judge. We don’t get any of those decisions, do we? I know exactly what people go through sitting here in this seat. I didn’t want her to do that.

1818Ms. St.M. provided her statement to the police on October 17, 2019, a few weeks after Ms. A.R. provided hers. In her interview with police, Ms. St.M. said that she was happy that Dr. Sloka was in custody and that the police should “nail the fucker.” When the officer confirmed that Dr. Sloka had been denied bail, she responded, “Good. We have to stop these people.”

1819I turn now to Ms. St.M.’s evidence about Dr. Sloka’s treatment of her daughter.

1820Ms. St.M. confirmed that she attended with Ms. A.R. to her first appointment with Dr. Sloka.

1821Ms. St.M. joined Ms. A.R. in Dr. Sloka’s office, where Dr. Sloka inquired about Ms. A.R.’s medical condition and medical history. Ms. A.R. responded to most of the questions, but Ms. St.M. also provided some information. They spoke for about 15-20 minutes.

1822According to Ms. St.M., Dr. Sloka then said that he would perform an examination. He did not elaborate.

1823Ms. St.M. testified that there was no discussion about whether she might join Ms. A.R. in the examination room.

1824When Dr. Sloka went to perform the examination, he closed the door. Ms. St.M. testified that this caused her concern, because there was no chaperone.

1825After about 20-30 minutes elapsed, Dr. Sloka returned from the examination room. Ms. A.R. soon joined them in Dr. Sloka’s office. Ms. St.M. believed that Dr. Sloka informed them that he suspected Ms. A.R. suffered from migraines with aura. She remembered Dr. Sloka providing a prescription, ordering tests, and discussing Ms. A.R.’s birth control medication. They also planned a follow-up visit.

1826Ms. St.M. testified that once they got in the car, Ms. A.R. discussed her examination. They spoke about the examination for the whole ride home and continued their discussion once they arrived home.

1827Ms. St.M.’s testimony about the timing of their post-examination discussion aligned with Ms. A.R.’s testimony but differed from Ms. St.M.’s police statement. In her police statement, Ms. St.M. stated that Ms. A.R. broached the topic after they arrived home. There was no mention of any discussion in the car.

1828According to Ms. St.M., Ms. A.R. said she felt very uncomfortable. She found Dr. Sloka a little creepy. She was not happy with what occurred in the exam room. She took her clothes off and put on a robe. Dr. Sloka had her stand nude and looked over her body closely. She found that strange. She laid on table and he gave her a breast examination. It felt very sexual. It felt more sexual than medical. He didn’t speak through the entire thing. And he was looking at her body the whole time while doing this. After having her memory refreshed from her police statement, Ms. St.M. also testified that Ms. A.R. told her that Dr. Sloka claimed he was looking for lesions and abnormalities on her skin; and that he looked at a mole on her abdomen near her hip. Ms. A.R. said she thought the examination was rather lengthy. She didn’t understand why he did the examination the way he did.

1829Ms. St.M. testified that she tried to reassure her daughter, observing that Dr. Sloka was an expert and suggesting that the examination may have been proper. Ms. A.R. allegedly insisted that the examination was sexual and that it creeped her out.

1830Despite her purported efforts to reassure her daughter, Ms. St.M. agreed that in the wake of her daughter’s disclosure, she believed that Dr. Sloka had sexually abused her daughter. According to Ms. St.M., she asked Ms. A.R. what she wanted to do about it. According to Ms. St.M., Ms. A.R. did not want to proceed with any complaint.

1831Ms. St.M. testified that she accepted her daughter’s wishes to do nothing about her complaint of sexual abuse. It is important here to recall Ms. St.M.’s evidence regarding her professional training and life circumstances. Ms. St.M. testified that she had always been cautious with her children. Her family has trauma in its past. Also, she worked in social services and in that capacity was aware of her duty to make a report about any child in need of protection. In this context, the question that existed in the forefront of her mind was, “Are people in danger?” Despite this mindset, Ms. St.M. did not report Ms. A.R.’s complaint of sexual impropriety. When pressed further on her failure to make a complaint, even an anonymous one, Ms. St.M. testified, “I totally understand that I messed up. Yes, if I could go back I would – I wouldn’t make an anonymous complaint; I would do exactly what I’m doing now.” Instead, Ms. St.M. purportedly decided in conjunction with Ms. A.R. for Ms. A.R. to continue to see Dr. Sloka.

1832Ms. St.M. testified that she and Ms. A.R. agreed to be vigilant at future appointments and make sure that nothing like that ever happened again. Ms. St.M. also purportedly assured Ms. A.R. that she would make sure that Ms. A.R. was never alone with Dr. Sloka. She also said she would speak to Dr. Sloka.

1833Ms. St.M. visited her family doctor, Dr. Peet, on September 20, 2011, just shy of two weeks after Ms. A.R.’s first appointment with Dr. Sloka, and one day following the installation of Ms. A.R.’s Holter monitor, during which Ms. A.R. alleged that Dr. Sloka touched her breasts. On Ms. St.M.’s evidence, she had already come to the conclusion that Dr. Sloka had sexually assaulted her daughter. Dr. Peet’s patient notes for St.M. were entered into evidence. In his note for September 20, 2011, Dr. Peet documented, “she [Ms. A.R.] really likes Dr. Sloka – very thorough.” Confronted with this record, Ms. St.M. testified that she did not remember saying this to Dr. Peet. When asked if she disputed what Dr. Peet recorded, she said, “No. She liked Dr. Sloka as a neurologist, yes. He creeped her out, like as a – personally.” She then backtracked and stated, “I can’t imagine I would have said [Ms. A.R.] really likes Dr. Sloka. What I would have said to him is we find him to be very thorough in his position as a neurologist. We may like the tests he’s ordering or how he’s helping her with the pills, but no, she didn’t really care for him.” She agreed it would not make sense for her to tell Dr. Peet that Ms. A.R. really liked Dr. Sloka. Ultimately, she denied conveying to Dr. Peet that she and Ms. A.R. really liked Dr. Sloka, stating, “No, I don’t remember this wording to be quite honest with you.”

1834Ms. St.M. testified that she spoke with and confronted Dr. Sloka at the second appointment, which occurred a month or two after the first. On her evidence, this was her first opportunity to do so.

1835As with the first appointment, all three sat together in Dr. Sloka’s office for a discussion at the outset of the appointment. At first, Dr. Sloka asked about how Ms. A.R.’s prescription was working. After that discussion, Ms. St.M. testified that she attempted to discuss her concerns out of earshot from her daughter. She testified that she was not sure if Ms. A.R. had gone to the bathroom or had gone to get their coats in preparation to leave the appointment. In any case, she purportedly found a moment to speak with Dr. Sloka alone.

1836According to Ms. St.M., she told Dr. Sloka that Ms. A.R. did not want to be in the examination room alone with Dr. Sloka again. She also purportedly asked Dr. Sloka about the purpose of the skin and breast examinations, and she questioned what those examinations had to do with Ms. A.R.’s brain. She also asked Dr. Sloka to explain why Ms. A.R. had to be nude for her examination.

1837Dr. Sloka explained to her that conditions of the skin can affect the brain. He was looking for lesions that might affect her neurological condition.

1838After this alleged discussion, and in spite of it, Dr. Sloka took Ms. A.R. into the examination room to examine Ms. A.R. in Ms. St.M.’s absence. Ms. St.M. testified, though, that Dr. Sloka left the door open, which made her feel more secure. However, she could not see what was going on in the examination room from where she sat. According to Ms. St.M., the examination did not take long.

1839In her examination in-chief, Ms. St.M. did not remember much about her discussion with Ms. A.R. about what transpired in the examination room at her second visit. Her evidence on this point was as follows:

She reiterated again he creeped her out. He didn’t talk much so that was awkward. There was another time she talked about him touching her breast. I don’t remember what appointment it was. I don’t even remember any specifics about it. I don’t know if it was that visit.

1840In cross-examination, on the second day Ms. St.M. took the stand, Ms. St.M. professed to remember more specifics about a second occasion in which Ms. A.R. alleged that Dr. Sloka touched her breasts. She did not connect that allegation to the second appointment at Dr. Sloka’s office. Instead, she connected that allegation to Ms. A.R.’s Holter monitor test, just as Ms. A.R. had done during her evidence. Ms. St.M.’s evidence on the subject is as follows:

There was – I couldn’t recall – she told me that he had touched her breasts on two occasions. I couldn’t remember – I can’t recall if he had touched her breasts at the second visit or at a different time. I know she had some – I don’t know the word for it. There was something that she had to see him for and she wore some kind of heart monitor – I don’t know what it’s called – with some stickies. She had to wear that to school a couple of days. She did tell me he touched her breasts twice. I can’t remember if it was in the second room or when he took – I don’t know. I don’t know.

1841Ms. St.M.’s evidence on the subject of a second breast-touching allegation contradicted her statement to the police. In her statement, she said that she was not aware if Dr. Sloka touched Ms. A.R.’s breasts after the first appointment. She made no mention of Dr. Sloka being involved in placing stickies on Ms. A.R.’s chest.

1842Ms. St.M. recalled there being an appointment in which they discussed Ms. A.R.’s mole with Dr. Sloka. She could not remember the appointment at which this discussion occurred but stated that it occurred early in Ms. A.R.’s time as Dr. Sloka’s patient. To her recollection, this mole was only discussed once. Ms. St.M. believed that she was more concerned about the mole than her daughter. Ms. St.M. did not like the look of the mole. Dr. Sloka said he would refer Ms. A.R. to a specialist. Ms. St.M. provided Dr. Sloka with the name of her dermatologist, Dr. Lima.

1843Ms. St.M. also recalled attending for Ms. A.R.’s tilt-table test. Just as Ms. St.M. had testified, Ms. St.M. believed that this test occurred near the end of Ms. A.R.’s time as Dr. Sloka’s patient. She also testified that Ms. A.R. had attended Dr. Sloka’s office numerous times before attending for the tilt-table test. Accordingly, it occurred after Ms. St.M. had purportedly confronted Dr. Sloka. When asked about the fact that she and her daughter were both wrong in the same way about the timing of Ms. A.R.’s tilt-table test, Ms. St.M. denied that their coincidental error was the product of discussing Ms. A.R.’s evidence.

1844At an appointment preceding the tilt-table test, Dr. Sloka had explained the fundamentals of the tilt-table test to Ms. St.M. and Ms. A.R. Ms. St.M. knew that Ms. A.R. would be hooked up to leads and that the test was designed to make Ms. A.R. pass out. Dr. Sloka would monitor Ms. A.R.’s heart during the test.

1845The tilt-table test occurred in the main building of the hospital, in the same area where she had once received a CT scan. The appointment was very early in the morning. After checking in, they waited in a waiting area. Then, a nurse came to retrieve Ms. A.R. to bring her somewhere to get gowned. Ms. A.R. returned to the waiting area wearing her gown. Later, the nurse returned and retrieved Ms. A.R. for the test. Contrary to what Ms. A.R. claimed, Ms. St.M. did not see Dr. Sloka at all.

1846According to Ms. St.M., when they left the hospital after the tilt-table test, Ms. A.R. mentioned that she had passed out and that her heart stopped beating during the test. According to Ms. St.M., Ms. A.R. also told her that she was upside down on the tilt-table when she lost consciousness. This was another occasion in which Ms. A.R. and Ms. St.M. were both wrong in the same way about a material fact.

1847After learning from her daughter about the allegations against Dr. Sloka that had been reported in the news, Ms. St.M. met with her family doctor, Dr. Peet, on October 1, 2019. This was the first occasion in which Ms. St.M. raised her concerns about Dr. Sloka to Dr. Peet. Yet, on Ms. St.M.’s evidence, she had always believed that Dr. Sloka had sexually assaulted her daughter. When speaking to Dr. Peet, she sought information about the tilt-table test. She wondered whether Dr. Sloka might have drugged Ms. A.R. while she was on the tilt-table. She wondered whether Dr. Sloka had taken photographs of Ms. A.R. while she was passed out and naked. She even wondered whether Dr. Sloka may have had intercourse with Ms. A.R. or otherwise penetrated her. On Ms. St.M.’s own evidence, she had attended the tilt-table test with her daughter. On the day of the test, she knew her daughter had passed out. Objectively indisputable evidence establishes that this test occurred before Ms. A.R.’s second appointment. If Ms. St.M. had been harboring fears about Dr. Sloka’s conduct during the tilt-table test, she did not raise them with Dr. Sloka at Ms. A.R.’ second appointment. Indeed, her account of her confrontation with Dr. Sloka makes no mention of the tilt-table test – which is not surprising, because she erroneously believed that this test did not occur until much later.

The Evidence of Dr. Bril

1848Much of Dr. Bril’s evidence was uncontroversial. Dr. Bril did not think a skin examination was neurologically reasonable. Dr. Sloka denied performing one. Similarly, Dr. Bril did not think a breast examination was neurologically reasonable. Dr. Sloka denied performing one.

1849Other aspects of Dr. Bril’s evidence deserve additional attention, though.

1850Dr. Bril testified that it was not neurologically reasonable for Dr. Sloka to examine the mole on Ms. A.R.’s lower right quadrant, even if shown the mole by Ms. A.R. She testified that a neurologist should not be setting themselves up to assess the significance of a mole, even if Ms. A.R.’s mother had a know history of skin cancer. She testified that Dr. Sloka ought to have sent Ms. A.R. back to the dermatologist for an assessment, or alternatively to her family doctor.

1851Dr. Bril’s evidence on this subject stood in contrast to evidence she gave elsewhere in this trial. For instance, in the case of E.J., she testified that it was reasonable for Dr. Sloka to look at the mole on Ms. E.J.’s neck and document what he saw, even though the mole had no diagnostic significance to any neurological issue under investigation by Dr. Sloka.

1852Dr. Bril also testified that there was no neurological reason to touch Ms. A.R.’s breasts. Similarly, she testified that there was no reason to expose both breasts during a cardiac examination. This evidence was given in the context of addressing Ms. A.R.’s complaint of an obviously sexualized examination. However, Dr. Bril agreed that it was reasonable for Dr. Sloka to listen to Ms. A.R.’s heart at her first appointment. She also agreed that if a patient has large breasts, the neurologist may need to displace the breast to properly auscultate the heart.

1853Dr. Bril also testified that there was no neurological reason for Dr. Sloka to run a finger along Ms. A.R.’s arms or legs. When addressing the complaint of A.S., Dr. Bril testified that Dr. Bril did not believe sensation could adequately be assessed using a finger. However, she testified that testing sensation on the arms and legs with fingers rather than a wisp or pinprick was a common shortcut taken by neurologists. Despite the prevalence of this practice, Dr. Bril testified that it fell below the standard of practice.

1854I should note that Dr. Bril opined that it was not neurologically reasonable for Dr. Sloka to conduct a cardiac examination at Ms. A.R.’s second appointment. Given Ms. A.R.’s heart stoppage during the tilt-table test, Dr. Bril thought Dr. Sloka ought to have referred Ms. A.R. to a cardiologist if he was concerned about Ms. A.R.’s heart. Nothing turns on this evidence, because Ms. A.R. did not remember any examinations on this date. Neither she nor the Crown have alleged that a sexual assault occurred at Ms. A.R.’s second appointment.

1855Dr. Bril also did not think it necessary for Dr. Sloka to conduct a cardiac examination at a follow up appointment on May 4, 2012. She disagreed with the suggestion that it was necessary to examine Ms. A.R.’s heart to ensure she had not suffered from any adverse effects from the Florinef Dr. Sloka had prescribed her. The Crown does not rely upon Dr. Bril’s opinion here. Ms. A.R. did not even remember this examination, and the Crown does not allege that any sexual assault occurred on this occasion, so I do not intend to spend much time addressing it.

The Evidence of Dr. Sloka

1856Dr. Sloka remembered little about Ms. A.R., but he remembered some things. He remembered that Ms. St.M. had Bowen’s syndrome, which is a cancer syndrome. He also remembered that Ms. St.M. had told him about having multiple tumors removed in the past. Dr. Sloka testified that this disclosure was memorable because he had endured his own difficulties with skin cancer in the past. Dr. Sloka also remembered that Ms. St.M., due to her own history with cancer, was concerned about her daughter’s skin. He recalled Ms. St.M.’s concern being a recurring theme during appointments. He remembered that Ms. St.M. wanted Dr. Sloka to examine Ms. A.R.’s skin, but Ms. A.R. declined.

1857Apart from those memories, Dr. Sloka did not remember the specifics of any particular appointment or examination. He relied upon his consultation letters and reports for the truth of their contents. He relied upon the rest of Ms. A.R.’s medical file for context.

1858Ms. A.R. came to Dr. Sloka’s office with two issues. She had a four-year history of episodic migraines with aura. In addition, she and her mother reported episodes where Ms. A.R. became lightheaded, became numb, lost her vision, and fell to the ground. She appeared to lose consciousness and shook on the ground. She appeared white and sometimes sweaty. Dr. Sloka suspected these episodes were more likely syncopal convulsions (fainting spells with convulsions) than seizures, but he also considered seizures to be a possibility.

1859Presented with this history at Ms. A.R.’s first appointment, Dr. Sloka proposed obtaining Ms. A.R.’s orthostatic vital signs and conducting neurological and cardiac examinations.

1860Dr. Sloka had no record of it, but he also believed he proposed a skin examination. He testified that while he suspected her episodes were more likely fainting episodes (syncopal convulsions), seizures were on the differential diagnosis for Ms. A.R.’s episodic losses of consciousness. At another point, he said seizures remained on a strong list of alternate possibilities. An investigation into evidence of neurocutaneous disease was part of his standard investigation of possible seizure patients. Dr. Sloka testified that, as part of his standard screening questions, he would ask about stigmata of neurocutaneous disease. If a patient indicated the presence of some stigmata or was uncertain, Dr. Sloka would propose a skin examination. In Ms. A.R.’s case, Dr. Sloka remembered that Ms. St.M. wanted her daughter to have a skin examination, but Ms. A.R. did not. As noted, Ms. St.M.’s concern about her daughter’s skin was a recurring theme. Because Ms. A.R. declined a skin examination, Dr. Sloka did not conduct one.

1861Dr. Sloka’s handwritten rough notes for Ms. A.R.’s first appointment appeared to document Ms. St.M.’s concern about skin cancer. Amongst the notes made when recording Ms. A.R.’s family history, Dr. Sloka noted the following: “mom basal cell;” “?mole;” and “MGM BC + squamous,” which Dr. Sloka interpreted as “maternal grandmother basal cell plus squamous.”

1862I will not address Dr. Sloka’s justifications for measuring Ms. A.R.’s orthostatic vital signs or conducting neurological and cardiac examinations, because Dr. Bril and the Crown agree with the reasonableness of those investigations.

1863On Dr. Sloka’s evidence, he proposed, and Ms. A.R. consented to the examinations he performed.

1864Dr. Sloka testified that he would have asked Ms. A.R. to remove her shirt and bra and put on a gown for the examination. He could not remember whether he asked her to remove her pants. He agreed it was possible he asked her to remove them because she reported numbness down her left side.

1865Dr. Sloka denied that Ms. A.R. wore the type of gown she described. His office did not have any such gowns. She wore the standard-issue hospital gown provided to his clinic by the hospital. It tied at the back, not at the side.

1866Dr. Sloka denied being present in the examination room as Ms. A.R. changed into her gown. He gave her privacy to change.

1867Dr. Sloka denied performing a skin examination. He also denied performing a breast examination.

1868Looking at the whole of Dr. Sloka’s evidence, it is clear that he took the position that his examination room was oriented in the manner depicted in Exhibit 2, not as Ms. A.R. described it.

1869Dr. Sloka testified that he performed his examinations in accordance with his standard protocols. He measured Ms. A.R.’s orthostatic vital signs, then conducted a neurological examination, and then a cardiac examination.

1870Dr. Sloka testified that, in accordance with his standard approach, Ms. A.R.’s left breast would have been exposed for the cardiac examination. Dr. Sloka testified that he was trained to examine patients from their right side. As with every other patient he testified about, Dr. Sloka testified that he stood to Ms. A.R.’s right for her cardiac examination.

1871After the examinations, Dr. Sloka discussed his impression with Ms. A.R. and her mother in the office. Dr. Sloka concluded that Ms. A.R. had likely suffered migraine with aura. He provided her a prescription for her headaches. He also ordered a Holter monitor, an echocardiogram, a brain MRI, and a tilt-table test.

1872Dr. Sloka denied installing or removing the Holter monitor. He testified that a nurse in the special testing unit of the hospital equips patients with the Holter monitor. The Holter monitor report was prepared by a different doctor. Dr. Sloka denied grazing Ms. A.R.’s breasts during the installation of the Holter monitor.

1873Dr. Sloka denied speaking to Ms. A.R. and her mother in the waiting area before the tilt-table test. Accordingly, he denied telling them that Ms. St.M. could not accompany Ms. A.R. into the tilt-table room. Dr. Sloka testified that patients are directed to attend at 7:00 a.m. for the tilt-table test. The leads that connect the patient to the monitor are attached before Dr. Sloka ever arrives. Dr. Sloka testified that patients were supposed to lay on the table for thirty minutes before the commencement of the test. Dr. Sloka testified that he arrived for tilt-table tests at about 8:00 a.m.

1874Dr. Sloka documented the tilt-table test in a document entitled, “Stress Test Report.”

1875Dr. Sloka testified that before the commencement of the tilt-table test, he performed a standard cardiac examination. He described the cardiac examination as a safety check. He noted that there was a chance that the patient would lose consciousness during the test. The cardiac examination allowed him to document that everything seemed fine before the test started. He documented a normal cardiac examination in his report.

1876Dr. Sloka testified that Ms. A.R. lost consciousness and had a minor convulsion at about 33 minutes into the test. Dr. Sloka also documented that Ms. A.R. had a five second pause in her heartbeat when she lost consciousness. This was unusually late. He documented this in his report. He denied Ms. A.R.’s claim that she lost consciousness in less than two minutes.

1877Dr. Sloka documented a “positive tilt-table test” and confirmed his diagnosis of “vasovagal syncope.” He advised Ms. A.R. to increase her salt and water intake. He also encouraged her to take her migraine medication.

1878As his records, indicate, Dr. Sloka testified that Ms. A.R.’s Holter monitor and tilt-table tests were conducted before Ms. A.R.’s second appointment on November 9, 2011.

1879Dr. Sloka denied that Ms. St.M. confronted him at the second appointment and accused him of conducting a naked skin examination and touching Ms. A.R.’s breasts.

1880Dr. Sloka documented neurological and cardiac examinations in his consultation letter for the November 9, 2011, appointment. He testified that he repeated these examinations because Ms. A.R. expressed concern about her heart stopping during the tilt-table test.

1881Dr. Sloka also documented that Ms. A.R. showed him a mole on her lower right quadrant at the second appointment. He also referred Ms. A.R. to a dermatologist. When documenting the examination of Ms. A.R.’s mole, Dr. Sloka noted the absence of concerning characteristics. He went on to note, “but it seems to be her mother who has concern here although her mother has had multiple basal cell carcinomas which is concerning for her.” Ms. A.R. confirmed that her mother was concerned about her mole. Ms. St.M. confirmed both her own and her mother’s history of skin cancer. Ms. St.M. also confirmed that she was more worried than her daughter about her daughter’s mole.

1882Dr. Sloka continued to see Ms. A.R. in follow-up. Ms. A.R.’s fifth appointment occurred on May 4, 2012. On that date, Dr. Sloka documented a cardiac examination. He provided a justification for this examination. He stated that he had started Ms. A.R. on Florinef at her previous appointment. This is a medication that increases amount of fluid in the body. Dr. Sloka testified that the product monograph recommends that patients be monitored to ensure they do not have heart failure. If the patient retains too much fluid, the heart cannot keep up with the fluid and heart failure can result. He added that auscultation of the lungs can detect fluid buildup. The lungs of a patient with excess fluid will sound wet. This can be heard in the respiratory component of a cardiac examination. Also, in a patient with excess fluid, you can hear additional heart sounds.

Assessment of the Evidence and Analysis

1883A review of the evidence of Ms. A.R. and Ms. St.M. reveals significant reliability and credibility concerns.

1884In my view, there exists compelling evidence that Ms. A.R. and Ms. St.M. colluded in the alignment of their allegations, or at the very least significantly tainted each others evidence. Additionally, the evidence satisfies me that they discussed their evidence in defiance of the witness exclusion order, which resulted in Ms. St.M. altering her evidence to conform with her daughter’s.

1885I begin with my finding that collusion occurred at one point or another, before either Ms. A.R. or Ms. St.M. ever took the witness stand, and also afterwards.

1886At the outset, it is important to note Ms. St.M.’s extreme animus towards Dr. Sloka and her contempt for the judicial process. She told the police that she hoped that they would “nail the fucker.” This is perhaps one of her few moments of honesty in this case. Similarly, she told the court that she felt the system was broken and took issue with the burden of proof, a foundational concept of our justice system and democracy. These attitudes perhaps explain why collusion came so easily to her. I turn now to the evidence of collusion.

1887On multiple occasions, Ms. A.R. and her mother were wrong about the same fact in the same way. For instance, both Ms. A.R. and Ms. St.M. falsely claimed that the tilt-table test was one of their last encounters with Dr. Sloka. In reality, it was the occasion of their second encounter with Dr. Sloka. They would attend five more appointments with Dr. Sloka afterwards. Similarly, both mother and daughter falsely testified that Ms. A.R. lost consciousness while upside-down on the tilt-table. I have no reason to doubt Dr. Sloka’s assertion that the table is not designed to and does not tilt upside down. Theirs is an identically false memory. Additionally, both Ms. A.R. and her mother testified that they began discussing the alleged sexual assault at the first visit during their car ride home from the visit. However, that is not what Ms. St.M. told the police. Ms. St.M. told the police that the conversation began at home. I cannot be certain when it is that they first spoke and aligned their evidence on these facts, but their alignment on Ms. A.R.’s claim of a sexual assault during the installation of the Holter monitor leads me to conclude that they discussed their evidence after Ms. A.R. took the stand.

1888The alignment of Ms. A.R. and Ms. St.M. on the subject of the Holter monitor is deeply concerning, because I can conclude with certainty that Dr. Sloka did not have anything to do with the installation or removal of the Holter monitor. Dr. Sloka testified that he only ordered the Holter monitor and had nothing to do with its installation or the report prepared after the patient has worn the monitor. He testified that patients are hooked up to this device by a nurse in a different location in the hospital. The Holter monitor report, which was authored by another doctor, supports his evidence. The Crown does not challenge it. I have absolutely no reason to doubt it. Ms. A.R. was simply wrong about having this device installed at Dr. Sloka’s office. Therefore, her allegation that Dr. Sloka sexually assaulted her during the installation of the device was false. The falsity of that allegation is devastating to Ms. A.R.’s reliability and credibility. That supposedly seared-in memory was false. It gets worse, though, because Ms. St.M. testified that Ms. A.R. had told her, at the time of this non-existent event, that Dr. Sloka had touched her breasts when applying the stickies for the heart monitor. Ms. St.M. did not remember the details of this disclosure when she testified in-chief on the Friday. Stickies was a word used by Ms. A.R. during her evidence. Worse, when Ms. St.M. gave her statement to the police, Ms. St.M. did not remember any complaint about a second breast touching at all. On the Monday, with the benefit of time over the weekend, Ms. St.M. testified about a report that could not have been made. She was wrong in precisely the same way as her daughter, because she colluded with her daughter over the weekend. That collusion reveals both mother and daughter to be dishonest and defiant of the witness exclusion order.

1889Their collusion about the Holter monitor allegation has implications for other aspects of their evidence. Ms. St.M. testified that she attended every appointment with daughter – though she briefly held out the possibility that she may have missed some to attend her own mother’s cancer treatments. She testified that Ms. A.R. reported the breast touching at the time of the Holter monitor installation, which had allegedly been performed by Dr. Sloka. On both Ms. A.R.’s and Ms. St.M.’s account, their second encounter with Dr. Sloka occurred at the second appointment on November 9, 2011. Allegedly, this was Ms. St.M.’s first chance to carry out their plan to confront Dr. Sloka and to tell him that Ms. A.R. would no longer be participating in examinations alone with Dr. Sloka. Unbeknownst to them, the Holter monitor test occurred before the second appointment at Dr. Sloka’s office, and thus before any alleged confrontation. By the time of the alleged confrontation, there were two, not one, sexual assaults to complain about. Neither Ms. A.R. nor Ms. St.M. factored the second alleged sexual assault into their narrative about the supposed confrontation with Dr. Sloka on November 9, 2011. Dr. Sloka denied that any confrontation occurred. I accept that denial. I reject the evidence of Ms. A.R. and Ms. St.M. that Ms. St.M. confronted Dr. Sloka at the second appointment. There was no confrontation because no sexual assault occurred at the first appointment.

1890I have additional reasons for rejecting the evidence of mother and daughter about a confrontation at the second appointment.

1891I begin with Ms. St.M.’s visit to Dr. Peet 13 days after Ms. A.R.’s first visit with Dr. Sloka. Dr. Peet’s notes of Ms. Myer’s September 20, 2011, visit with Dr. Peet were filed on consent. According to both Ms. A.R. and Ms. St.M., Ms. A.R. had declared to her mother on September 7, 2011, that she had been sexually assaulted by Dr. Sloka. Yet on September 20, 2011, Ms. St.M. told Dr. Peet that “she really likes Dr. Sloka – very thorough.” It is beyond obvious that Ms. St.M. did not expect to be confronted with a note like that. It is also equally obvious to me that Ms. St.M. would not have made such a declaration if she believed, as she claimed, that Dr. Sloka had sexually assaulted her daughter. Everything about Ms. St.M.’s evidence revealed her to be extremely protective of her daughter. And her animus towards Dr. Sloka was unmistakable. There is simply no way that Ms. St.M. would have sung Dr. Sloka’s praises if her daughter had disclosed a sexual assault, as they both claim. Ms. St.M.’s attempt at explaining her way out of Dr. Peet’s note was disastrous. She clearly recognized its significance. Ms. St.M. sang Dr. Sloka’s praises because her daughter did not disclose a sexual assault. Her daughter did not disclose a sexual assault, because one did not occur.

1892I would now like to discuss the alleged plan formulated in response to the alleged disclosure at the conclusion of the first appointment. I conclude that Ms. A.R. and Ms. St.M. have fabricated this plan. Both mother and daughter allegedly determined that Ms. A.R. would not go unaccompanied into any future examinations by Dr. Sloka. Both failed to realize that the very next examination by Dr. Sloka occurred during the tilt-table test. Ms. St.M. acknowledged that the nature of the test was explained at an appointment which preceded the test. Consequently, she had to expect that Dr. Sloka would be administering the test. According to Ms. A.R., Dr. Sloka greeted them both before the test. Ms. St.M. did not remember that, but what is clear from both of their evidence is that Ms. St.M. did not take any steps to confront Dr. Sloka before the administration of the tilt-table test. I conclude that no steps were taken because Ms. St.M. never formulated a plan to confront Dr. Sloka. There was no plan because there was no complaint of a sexual assault. There was no complaint because there was no assault.

1893The evidence of mother and daughter about their plan also fails because, on the first purported occasion where they could prevent Ms. A.R. from being examined alone, they both abandoned the plan. According to Ms. St.M., she had just finished admonishing Dr. Sloka and telling him that her daughter would not be examined alone. Then, suddenly and without explanation, Dr. Sloka was in the next room examining her daughter alone. The suggestion that an opened door assuaged mother’s concerns simply does not hold water. Ms. St.M. agreed that she could not see in the examination room and had no idea what was transpiring there, moments after telling Dr. Sloka that he would not be examining her daughter alone. Somehow, her serious and abiding concerns had evaporated. I conclude there was no plan. This conclusion is bolstered by Ms. A.R.’s evidence that on two subsequent appointments, her mother did not even come into the office with her – she waited in the car. There was no plan and no confrontation. Both Ms. A.R. and Ms. St.M. have been dishonest with the court.

1894What is truly fascinating is that Ms. A.R. did not remember Dr. Sloka conducting a cardiac examination at this second appointment. She purportedly believed that Dr. Sloka had recently fondled her breasts and recently conducted a naked skin examination at her first appointment. She purportedly had formulated a plan with her mother to prevent future sexual assaults. Her mother had also purportedly abandoned her and left her alone with Dr. Sloka at this second appointment. Yet, astonishingly, Ms. A.R. could not remember that she exposed her breast to the predator that had allegedly and recently groped her breasts. I conclude that Ms. A.R. could not remember this cardiac examination, because nothing untoward happened during her first examination.

1895The Crown relies upon similar act evidence alleged by other complainants in this case in an attempt to rehabilitate Ms. A.R.’s evidence. As discussed in the section of the judgement devoted to the Crown’s SAE application, I am prepared to admit evidence of other sensitive examinations in support of the inference that Dr. Sloka possessed a sexual purpose when conducting examinations on any given patient. However, having considered Dr. Sloka’s evidence, which I will assess momentarily, I accept that he has provide compelling evidence of a medical purpose for the examinations performed on Ms. A.R. He has refuted any available inference of a sexual purpose.

1896The Crown also places reliance upon four discrete purported categories SAE to support the evidence of Ms. A.R. The first two categories incorporate allegations of skin examinations by other patients: that Dr. Sloka conducted a skin examination while the patient was nude and that Dr. Sloka told the patient that he wanted ‘to examine them for moles. The third category of patient involves patients who allege that they wore their gown opened to the front. The fourth category involves breast touching: that Dr. Sloka allegedly cupped the breasts of some patients.

1897In my view, there exists a substantial likelihood of tainting in three of the four alleged categories. It is clear that Ms. A.R. saw media coverage about the allegations against Dr. Sloka. It is also clear that she was motivated to learn what other patients were complaining about. Given her prior statement to the police, I conclude that Ms. A.R. dishonestly attempted to minimize the amount of information she read about Dr. Sloka. Even so, Ms. A.R. acknowledged reading about patients alleging that Dr. Sloka wanted to examine their skin for “moles and lesions.” These are the exact words she attributed to Dr. Sloka. She also acknowledged reading about naked skin examinations. Moreover, at the time of Ms. A.R.’s perusal of the media, there existed an abundance of articles that reported patient complaints about breast touching. Naked skin examinations, “lesions and moles”, and breast touching constituted the three pillars of Ms. A.R.’s complaint.

1898The Crown relies upon the fact that Ms. A.R. alleged breast “cupping,” but that is not a term she employed. That is the Crown’s term. Ms. A.R.’s description of her breast fondling is unique. No one else suggested Dr. Sloka rotated his hands on their breasts as if opening a jar or turning a doorknob. The Crown includes such a wide array of behaviours under the rubric of “cupping” as to eliminate the probative value of the category. And the Crown fails to recognize that breast touching allegations were only made by a minority of patients, some of whom (like Ms. A.R.) have clearly been tainted by media exposure. Between tainting and coincidence, this category of similar fact evidence lacks sufficient probative value.

1899I will say two more things now about tainting before moving on. Not only was Ms. A.R.’s evidence tainted by exposure to media, so was her mother’s. Additionally, after their exposure to media coverage about Dr. Sloka, both spoke to each other about the allegations and about their contemporaneous discussion of those allegations. Ms. A.R. and Ms. St.M. were mutually tainted. I am also concerned that Ms. A.R.’s interviewing officer acted like a recruitment officer during her interview and expressed an opinion on the sexual nature of Ms. A.R.’s examinations. The officer’s comments invited partiality and ran the risk of tainting Ms. A.R.’s perceptions.

1900The “moles and lesions” category also lacks sufficient probative value because Dr. Sloka admits inquiring about stigmata of neurocutaneous disease when asking screening questions relevant to seizures, screening questions which Dr. Bril concedes are appropriate. Moreover, Ms. St.M. expressed an abiding concern about skin cancer, due to her own personal history. There is a consensus in the evidence that she was concerned about Ms. A.R.’s abdominal mole and wanted Dr. Sloka to look at it. There is also a consensus that Dr. Sloka did look at it. There is only disagreement about whether he ever conducted a complete skin examination. The “lesions and moles” category therefore lacks sufficient probative value on the real material issue here.

1901The Crown’s reliance upon the “gown open at the front” cohort is not compelling. The vast majority of patients did not allege that they wore their gown opened at the front. Given the standard-issue gown available at Dr. Sloka’s office, blind guesses by every patient would have produced a much higher incidence of “open at the front” allegations. Moreover, the gown described by Ms. A.R. was one that tied at the side. No such gown existed. Her false memory about the construction of the gown is inextricably tied to her claim that the gown opened at the front. This category of purported similarity offers no support for Ms. A.R.’s evidence.

1902Apart from collusion and tainting, Ms. A.R.’s evidence suffered from additional flaws.

1903Some of Ms. A.R.’s memories were demonstrably incorrect. Some of these demonstrably incorrect memories have already been mentioned: her false memory about the installation of her Holter monitor, her false memory about the upside-down tilt-table, and her false memory about her gown. In addition, Ms. A.R.’s purported memory about Dr. Sloka hooking up the leads for the tilt-table test was also clearly false. Dr. Sloka testified that patients are scheduled to arrive an hour before the test. Nurses hook the patients up to the monitors. The patients are then monitored for half an hour before Dr. Sloka arrives to conduct the test. The Crown does not contest his position. I conclude that Ms. A.R. was wrong. Ms. A.R.’s memory about the layout of Dr. Sloka’s office and room was also incorrect. Her incorrect memory about the placement of the door between the two rooms was tethered to her incorrect memory about the location of her examination bed. In turn, her incorrect memory about the placement of the bed was tethered to her memory that Dr. Sloka examined her from the left. All else being equal, Dr. Sloka could not have examined her from the left. Ms. A.R. also had no memory of the neurological or cardiac examinations performed at either the first or second appointments. These examinations were contemporaneously documented. I accept that they occurred. Ms. A.R.’s narrative of her first examination is severely undermined by her failure to remember these examinations. Her failure to remember the examinations at the second appointment suggests that nothing untoward happened at the first.

1904Ms. A.R.’s evidence was also marred by inconsistencies. In-chief, she alleged that Dr. Sloka announced an interest in “moles and lesions” in the presence of her mother. In cross, she alleged that this did not get announced until she was alone with him in the examination room. At trial, she alleged that Dr. Sloka placed both hands on each individual breast. She did not make this allegation to the police, having only alleged one hand on each breast. Her explanation was unbelievable. I do not accept that she intentionally withheld this feature of her complaint because she was nervous and uncomfortable. She was already talking about breast fondling – the cat was well out of the bag. Ms. A.R. was also inconsistent on the question of whether Dr. Sloka remained in the room while she changed. At trial, she alleged that Dr. Sloka memorably remained in the room. In her statement to the police, she was not sure. In her response to this inconsistency, she engaged in self-advocacy, revealing partiality but failing to explain the inconsistency. At one point in Ms. A.R.’s evidence, she testified that Dr. Sloka palpated her throat for lumps in the presence of her mother. Subsequently, she alleged that this occurred in her absence, in the examination room.

1905In summary, I conclude that Ms. A.R. and Ms. St.M. were unreliable and uncredible witnesses, unworthy of belief on any of the material issues. I reject their evidence.

1906Regardless of my findings regarding Ms. A.R. and Ms. St.M., Dr. Bril’s evidence does little to assist the Crown. She conceded the examinations reported by Dr. Sloka at the first appointment were reasonable. She opined that the conduct Ms. A.R. alleged regarding the first appointment was unreasonable, but Dr. Sloka has denied those allegations, and I have rejected the evidence of Ms. A.R. and her mother.

1907While Dr. Bril took exception to Dr. Sloka inspecting Ms. A.R.’s mole at the second appointment, her opinion here is undermined by her inconsistent evidence elsewhere in the trial. I place no weight on it.

1908While Dr. Bril also contested the reasonableness of some of Dr. Sloka’s other cardiac examinations, neither Ms. A.R. nor the Crown allege that sexual assaults occurred during these other cardiac examinations. Further, Dr. Sloka provided cogent justifications for those examinations. Additionally, the Crown does not challenge Dr. Sloka’s justifications.

1909Lastly, while Dr. Bril took issue with Dr. Sloka using his finger to test for sensation, she acknowledged that this method was a common deviation from the preferred practice. She conceded that it was a rule that was commonly observed in the breach. Dr. Sloka’s purportedly substandard practice therefore does not support an inference of an improper motive.

1910Dr. Sloka provided straightforward and logical evidence regarding his assessment and treatment of Ms. A.R. In my view, his evidence was not undermined in any meaningful way by the other witnesses or by cross-examination.

1911The Crown asks that I reject Dr. Sloka’s claim that he remembered Ms. St.M. wanting him to conduct a skin examination and his related claim that Ms. A.R. declined one. To that end, the Crown points to Dr. Sloka’s concession that he did “not really” remember Ms. A.R.’s first appointment. However, that concession must be considered in its full context. Dr. Sloka specifically remembered Ms. St.M.’s history of Bowen’s syndrome – a cancer syndrome. It was memorable, because he had his own skin cancer history. He remembered Ms. St.M.’s skin cancer concerns being a recurring theme. He remembered Ms. St.M. being concerned about her daughter having skin cancer. And he remembered Ms. St.M. wanting Dr. Sloka to conduct a skin examination. Dr. Sloka’s memories on these issues were supported by the evidence of Ms. A.R. and her mother. Ms. A.R. acknowledged a life-long mole. She acknowledged her mother was concerned about it and expressed that concern to Dr. Sloka. Meanwhile, Ms. St.M. admitted her history with Bowen’s disease, her concern about her daughter and skin cancer. She also acknowledged that she was more concerned about the mole than her daughter. The evidence of mother and daughter supported Dr. Sloka’s evidence regarding his purported memory. Moreover, Dr. Sloka contemporaneously documented Ms. St.M.’s concern in his consultation letter for the second visit.

1912Dr. Sloka’s evidence regarding the discussion and rejection of a skin examination at the first appointment is also supported by his contemporaneously written rough notes. In those notes, Dr. Sloka recorded the following: “mom basal cell,” “?mole,” and “MGM BC + squamous,” thereby noting that Ms. A.R.’s mother and maternal grandmother had a history of skin cancer. The Crown suggests that Dr. Sloka cannot reliably claim that he elicited this information during the history instead of during the examination – that there is no way for him to discern the context of his note. The Crown thereby suggests that Dr. Sloka had no basis for concluding that mention of the mole was made during Ms. A.R.’s history as opposed to during her examination. However, the Crown ignores the fact that nothing in Dr. Sloka’s rough notes recorded the results of any examination. Looking at his notes, Dr. Sloka testified that mole notation, “seems to go along with issues collected in history.” All contextual evidence supported this conclusion.

1913The Crown also suggests that Dr. Sloka took an inconsistent position on the degree to which he suspected Ms. A.R.’s episodes were the result of seizure. They claim that at one point, Dr. Sloka stated he “strongly” suspected seizure, which contradicts his consultation letter, wherein he stated that her episodes sounded like syncope. In my view, the Crown mischaracterizes Dr. Sloka’s evidence. He consistently maintained that he believed her episodes were likely the resulted of syncope but maintained that seizures were on a strong list of possibilities – that they were in the “differential diagnosis of possibilities for these types of events.” In cross-examination, Dr. Sloka even stated that Ms. A.R.’s events did not sound like seizure, but “sounded more like a faint based on history based on the preceding symptoms.” Consequently, I see no contradiction between Dr. Sloka’s evidence and his consultation letter.

1914Having considered the entirety of the evidence, I accept Dr. Sloka’s evidence and reject that of Ms. A.R. and Ms. St.M. on all material issues.

1915I accept that Dr. Sloka proposed and conducted orthostatic vitals and neurological and cardiac examinations on her first appointment. I accept that he conducted these examinations in accordance with his standard protocols, which he learned during his medical training. I also accept that he proposed a skin examination, for what he believe to be a valid purpose, but that Ms. A.R. declined the skin examination. I reject the contention that Dr. Sloka conducted a skin examination, naked or otherwise. I also reject the contention that he performed a breast examination. All examinations conducted at Ms. A.R.’s first appointment constituted medical examinations, not sexual activity. Ms. A.R. consented to those medical examinations. There was no sexual assault.

1916I further accept that, at her second appointment, Ms. A.R. showed Dr. Sloka the mole on her abdomen. I accept that she did so because of her mother’s concern about the mole. I accept that this was a targeted examination -- Ms. A.R. does not allege otherwise. I also accept that Dr. Sloka conducted neurological and cardiac examinations at this appointment, with Ms. A.R.’s consent, and for a valid medical purpose. I also accept that the examinations were done in a medically appropriate manner, in accordance with Dr. Sloka’s standard protocols. In the face of Ms. St.M.’s concern about the mole, Dr. Sloka referred Ms. A.R. to a dermatologist. Dr. Sloka’s examinations at this appointment were medical in nature, not sexual. There was no sexual assault.

1917Dr. Sloka did not partake in the installation or removal of the Holter monitor. It follows that he did not sexually assault Ms. A.R. during its installation or removal.

1918I also conclude that Dr. Sloka’s conduct during the administration of the tilt-table test was medically motivated and conducted in a medically appropriate fashion. The cardiac examination at its outset was a prudent medical precaution. Ms. A.R. does not complain about any conduct of Dr. Sloka during his administration of this test – at least not while she was conscious. There is no evidence of any untoward activity during the brief time in which she lost consciousness. Dr. Sloka’s administration of this test was demonstrably medical in nature, not sexual.

1919Having regard to these findings, Dr. Sloka must be acquitted of this count.

xii. J.W. (Count 7)

A Summary of Ms. J.W.’s Complaint and Dr. Sloka’s Response to It

1920Ms. J.W. was a 17-year-old patient when she saw Dr. Sloka for an assessment of her seizures. She alleged that the assessment involved Dr. Sloka conducting a skin examination while she stood completely naked. Following the skin examination, Dr. Sloka allegedly examined her leg strength as she lay on the examination table completely naked. Additionally, Ms. J.W. alleged that Dr. Sloka touched her chest, breasts, and sides with his bare hands as she lay naked on the examination table.

1921Dr. Sloka testified that he conducted neurological, cardiac, and skin examinations – in that order. He denied Ms. J.W. was fully naked for any portion of her examination. She wore a gown during all her examinations. She wore no street clothes beneath her gown, and she removed her underwear and bra for the skin examination. He testified that he conducted the skin examination in accordance with his standard method, revealing only limited portions of Ms. J.W.’s skin in a piecemeal fashion. He conducted a skin examination because Ms. J.W. had reported having a café au lait spot. He ultimately found two café au lait spots during the skin examination.

The Circumstances of Ms. J.W.’s Referral and the Chronology of Her Treatment

1922In January of 2010, Ms. J.W. deliberately overdosed on 101 pills of prescription risperidone. She suffered cardiac arrest but survived. Following her overdose she began to suffer frequent seizures. After being medicated for her seizures, she went two to three months without any. However, the seizures resumed and occurred in clusters every month or two.

1923On August 10, 2010, Ms. J.W. obtained treatment for a seizure at the Guelph General Hospital ER. The ER doctor ordered a CT scan and referred Ms. J.W. to Dr. Sloka.

1924Ms. J.W. attended her first appointment with Dr. Sloka on August 11, 2010, one day after she had been admitted to the Guelph General Hospital ER.

1925After her first appointment, she attended for a head MRI on August 31, 2010, and an EEG on November 5, 2010.

1926Ms. J.W. attended her follow-up appointment with Dr. Sloka on the same day as her EEG, November 5, 2010.

1927Dr. Sloka booked a follow-up appointment for February 2, 2011, but Ms. J.W. did not show up.

1928Dr. Sloka booked another appointment for March 9, 2011, but Ms. J.W. cancelled the appointment when Dr. Sloka’s secretary called to provide Ms. J.W. a reminder.

The Evidence of Ms. J.W.

1929Ms. J.W. was 28 years old when she testified. She had an admittedly poor memory of her treatment by Dr. Sloka.

1930She confirmed the basic outline her referral history at the outset of her testimony.

1931Ms. J.W. testified the allegedly inappropriate examinations occurred at her first appointment on August 11, 2010. She attended the appointment with her worker from her emergency shelter. The worker was her guardian.

1932Ms. J.W.’s memory about the layout and contents of Dr. Sloka’s clinic was inaccurate. She did not recognize the waiting room when shown photographs of it. In her recollection, the waiting room was dark and had a different layout.

1933Ms. J.W. also testified that Dr. Sloka’s secretary led her from the waiting room through a waist high “weird half door” and down to the end of a dark hallway to an examination room. This description did not accord with the true layout of Dr. Sloka’s clinic. This memory was false.

1934Ms. J.W. denied entering an office. She believed she entered an examination room. She also denied that the room she entered contained a desk. She did not recognize the photographs of Dr. Sloka’s office contained in Exhibit 2. She also did not recognize Dr. Sloka’s examination room from the photographs depicted in Exhibit 2. She believed that Dr. Sloka examined her elsewhere. She described her examination room as very blue and dark looking. She believed the lights in the examination room remained off for the duration of her appointment. The only source of illumination came from the window. The evidence at trial proves Ms. J.W.’s memories about her examination room were false.

1935According to Ms. J.W., her worker was prevented from participating in the appointment. However, Ms. J.W. could not remember whether Dr. Sloka or his secretary communicated that prohibition. Indeed, she could not remember any detail of the discussion leading to the alleged exclusion of her worker. Consequently, Ms. J.W. could not point to any evidence to support her belief that her worker was prohibited from participation in the appointment.

1936Ms. J.W. testified that once she entered the examination room, she sat in a chair right beside the door. She testified that either Dr. Sloka or his secretary handed her a gown and asked her to change into it. Ms. J.W. described her gown as a “weird papery gown.” The evidence indisputably establishes that no such gowns existed in Dr. Sloka’s clinic.

1937Ms. J.W. took off her street cloths and put them on the chair beside the door, but she kept her underwear on. She then put on the gown, with the opening at the back.

1938Ms. J.W. believed that Dr. Sloka knocked before entering the room.

1939In her recollection, Dr. Sloka asked her to remove her gown and underwear. When initially asked, she could not remember anything else occurring before the commencement of the examination.

1940Later in-chief, she testified that she could not remember a discussion in which she provided her consent to the examination, but she was sure that she probably did provide her consent.

1941In cross-examination, defence counsel suggested to Ms. J.W. that the appointment began in Dr. Sloka’s office, not his examination room. Defence counsel also suggested that she and Dr. Sloka discussed the reason for her referral and her recent medical history. Ms. J.W. agreed that these suggestions made sense, but she had no memory of those things occurring. She also felt like any discussion that occurred before the examination was really short. However, Ms. J.W. agreed with the general accuracy of the lengthy history contained in Dr. Sloka’s consultation letter. She also agreed that Dr. Sloka probably took this history before telling her that they would then proceed from his office for an examination. In addition, Ms. J.W. agreed that Dr. Sloka asked her about skin abnormalities and told her that these abnormalities might be connected to the cause of her seizures. In response, she told him about a mole and two birthmarks. For the most part, though, Ms. J.W. did not remember much about the consultation that produced the contents of the history portion of Dr. Sloka’s consultation letter.

1942Ms. J.W. testified that she complied with the alleged request to remove her gown and underwear. She placed these items with her clothes.

1943Ms. J.W. testified that Dr. Sloka then asked her to stand with her feet apart and her hands stretched out from her sides. She complied with his request. She was standing in the middle of the room and facing the window at the time.

1944Ms. J.W. remembered Dr. Sloka talking about a mole on her shoulder and maybe a couple of birthmarks. He was talking about moles or imperfections. She believed that he told her that these imperfections can cause seizures.

1945According to Ms. J.W., Dr. Sloka stood in front of her, looked her over, squatted down in front of her to get a look at her skin. She described him as being a couple of feet away from her while he looked at her skin. When he was squatting, he was situated about a foot away. Even at this distance, she claimed to be able to feel his breath on the top of her legs.

1946Ms. J.W. testified that once Dr. Sloka examined her front, he went behind her and did the same thing. She did not remember feeling his breath on her while he was behind her.

1947According to Ms. J.W., Dr. Sloka told her that he did not find anything during the skin examination.

1948The entire skin examination was brief. She provided a rough estimate of it lasting six minutes a side, but she was far from certain in her estimate.

1949In cross-examination, Ms. J.W. agreed that Dr. Sloka may have performed a neurological and cardiac examination before ever conducting the skin examination that she described. In fact, at the conclusion of her evidence in-chief, Ms. J.W. testified that she vaguely recalled Dr. Sloka examining her eyes, but she thought that this occurred at the beginning of the appointment. She said she barely remembered it. She also vaguely remembered Dr. Sloka testing her reflexes but could not recall when or how. Despite making these concessions about possible neurological and cardiac examinations, Ms. J.W. maintained that Dr. Sloka performed strength tests on her arms and legs after her skin examination.

1950Ms. J.W. alleged that, following the skin examination, Dr. Sloka had her lay down on the examination table. She was still naked. She recalled asking if she could put her gown back on and receiving some kind of negative response, the details of which she could not remember.

1951In cross-examination, Ms. J.W. agreed that in her statement to CPSO investigators in 2016, she stated twice that she did not remember whether she put her gown back on after the skin examination. Instead, she guessed that her gown remained off. The position she took with CPSO investigators on this point clearly contradicted her trial evidence.

1952Once Ms. J.W. was laying on the examination table, Dr. Sloka checked her skin. She described him touching around her chest, breasts, and sides with his bare hands. She did not ask what he was doing but assumed that he was feeling for something, maybe lumps. She did not remember Dr. Sloka providing any explanation for this. It lasted for perhaps a minute.

1953In cross-examination, Ms. J.W. agreed that she omitted from her CPSO statement her allegation about the touching of her chest, breasts, and sides.

1954Next, Dr. Sloka allegedly tested the strength of Ms. J.W.’s arms. She described Dr. Sloka bending her arms and telling her to push back. He said that he wanted to see if one side was stronger than the other.

1955Next, Dr. Sloka allegedly went to the end of the examination bed and performed a strength test on her legs. Ms. J.W. said that she pushed against his hands with her feet, almost like she was riding a bike. Her knees were bent and close to her chest. She testified that she felt very exposed.

1956Ms. J.W. testified that Dr. Sloka also tested her legs for their sensation to temperature. He used a metal instrument to do this. It was cold.

1957Dr. Sloka told Ms. J.W. that both sides of her body responded equally.

1958He then departed the room, allowing her to put her clothes on in privacy.

1959Ms. J.W. did not remember any post examination discussion, including any discussion of a diagnosis, additional tests, treatment plan, or follow-up appointments. Despite the absence of any memory of one, Ms. J.W. agreed that a post-examination discussion made sense. In cross-examination, defence counsel reviewed the lengthy Impression section of Dr. Sloka’s consultation letter, which included a reference to a long discussion about her difficult personal circumstances and treating seizures with medications. Ms. J.W. agreed with the accuracy of the details about her personal life reported in this portion of the consultation letter, thereby conceding the existence of a post-examination discussion, but the details of this discussion were lost to her memory.

1960It was only after reviewing her medical records in preparation for her testimony that Ms. J.W. remembered attending a follow-up appointment with Dr. Sloka. Previously, Ms. J.W. told CPSO investigators that she never booked or attended another appointment with Dr. Sloka. Similarly, in her police statement, she said she never returned.

1961Ms. J.W. testified that years after her appointment with Dr. Sloka, she spoke to another doctor about it, Dr. Calvert. She did not remember the doctor’s area of specialty, but she believed she saw the doctor for anxiety and depression. Her mother came with her to this appointment. Ms. J.W. testified that, by this point in time, she had already spoken to her mother about the appointment with Dr. Sloka. Initially, Ms. J.W. remembered that she told Dr. Calvert that she went into the room alone, that she did not have any clothes on, and that she was uncomfortable. She did not remember whether she went into any more detail. Subsequently, Ms. J.W. testified that she could not remember her conversation with Dr. Calvert, could not remember whether she disclosed being naked for her examination, and could not remember whether she disclosed that Dr. Sloka touched her breasts. Dr. Calvert told Ms. J.W. that she was going to have to report Dr. Sloka to the CPSO.

1962Years after she spoke to Dr. Calvert, Ms. J.W. was contacted by the CPSO. Two investigators arranged to meet with her and obtain a statement from her. The interview took place on April 19, 2016. At the time of that interview, Ms. J.W. was unaware of the existence of any other complaints against Dr. Sloka.

1963On February 22, 2018, Detective Gilker contacted Ms. J.W. and advised Ms. J.W. that the CPSO had forwarded Ms. J.W.’s name. Detective Gilker told Ms. J.W. that she was conducting a criminal investigation into Dr. Sloka. They set up Ms. J.W.’s police interview for February 28, 2018. During the interview, Ms. J.W. advised Detective Gilker that CPSO investigators had told her that they were investigating multiple complaints against Dr. Sloka.

1964She provided a statement to the police in February of 2018.

1965At time she provided statement to police, she had not seen any media stories about Dr. Sloka.

The Evidence of Dr. Calvert

1966Dr. Calvert is a pediatrician who specializes in child and adolescent mental health behaviour and developmental disorders. She first saw Ms. J.W. in 2006 for an assessment. In 2009, Dr. Calvert saw Ms. J.W. twice more. Dr. Calvert also saw Ms. J.W. several times after Ms. J.W.’s assessment by Dr. Sloka, including February 4, 2011, February 25, 2011, May 13, 2011, and May 18, 2011. Dr. Calvert dictated consultation reports for each of these appointments. The consultation report for the February 25, 2011, appointment was entered into evidence. Subsequently, Dr. Calvert saw Ms. J.W. on other occasions between May 13 and May 18, 2011, but she did not dictate consultation reports for these brief follow up visits.

1967Dr. Calvert’s February 25, 2011, appointment with Ms. J.W. occurred six months after Ms. J.W.’s appointment with Dr. Sloka which forms the subject matter of the charge against him. According to Dr. Calvert, Ms. J.W.’s life was in turmoil at the time. In her February 25, 2011, consultation report, Dr. Calvert noted that Ms. J.W. had a serious mood disorder that is clearly presenting as cyclical with both clearly manic and hypomanic events as well as episodes of depression.” Additionally, Dr. Calvert noted that Ms. J.W.’s mania was associated with “some slightly grandiose and delusional thinking.” Ms. J.W.’s mother had also voiced concern to Dr. Calvert that Ms. J.W. was saying things that were not true. Dr. Calvert prescribed medication for Ms. J.W.’s bipolar disorder, but Ms. J.W.’s condition continued to deteriorate.

1968Dr. Calvert testified that Ms. J.W. made disclosures about Dr. Sloka during the February 25, 2011, appointment. According to Dr. Calvert, Ms. J.W. told her that she had seen Dr. Sloka for assessment of seizures and that she was completely naked during her examination. Ms. J.W. allegedly described standing up for the examination and being examined by Dr. Sloka from a short distance. The examination made Ms. J.W. uncomfortable.

1969Dr. Calvert inferred that Ms. J.W. had described a skin examination. She believed that neurologists sometimes perform skin examinations to look for evidence of neurofibromatosis. Dr. Calvert believed she may have explained this to Ms. J.W..

1970Dr. Calvert’s concern arose from the way Dr. Sloka purportedly conducted the skin examination. She did not think it appropriate for Ms. J.W. to stand fully naked for the examination.

1971Dr. Calvert also testified that Ms. J.W. disclosed that Dr. Sloka had asked whether Ms. J.W. was sexually active. She did not consider the inquiry unusual. Whether a patient is pregnant or is planning to become pregnant can inform decisions about which medications to prescribe. She agreed that it would make sense to raise the issue at then end of the appointment, like Ms. J.W. had described.

1972In her documentation of her discussion with Ms. J.W., Dr. Calvert only wrote “a concerning incident with a health professional, this also seemed credible and sincere, made her feel extremely uncomfortable, and I do believe will need to be addressed.” She also added that Ms. J.W., “presented really as quite sincere and credible.” Dr. Calvert made a point of documenting her belief in Ms. J.W.’s sincerity because her family had described her as unstable, incoherent, and dishonest.

1973Dr. Calvert agreed that she would have been concerned if Ms. J.W. had disclosed that Dr. Sloka touched her breasts as she lay down on the examination table. She would have reported any such allegation. Dr. Calvert did not recall such a disclosure ever being made to her. Dr. Calvert agreed Ms. J.W. never suggested to her that she was touched in the chest during the examination. That would represent a serious sexualization of the encounter. She did not report any such allegation when ultimately providing her statement to the CPSO in 2016.

1974Dr. Calvert had no memory of whether she spoke to Dr. Sloka regarding Ms. J.W.’s disclosure. She agreed that following Ms. J.W.’s February 25, 2011, appointment, she needed to make decisions about the appropriate mix of medications to prescribe for Ms. J.W.’s bipolar disorder. She further agreed that her decision required her to speak with Dr. Sloka about his prescription of Keppra for Ms. J.W. She agreed that she called to speak to Dr. Sloka about Ms. J.W.’s medications and left a message. However, she had no memory of whether she subsequently spoke to him. Defence counsel showed Dr. Calvert a handwritten notation by Dr. Sloka on his copy of his November 5, 2010, consultation letter. This notation documented a discussion with her about Ms. J.W.’s medications. She agreed that this documented conversation made sense, but she did not remember it. Dr. Calvert also agreed that it would have made sense for her to send a copy of her February 25th consultation report to Dr. Sloka, because that report documented important information about Ms. J.W.’s prescriptions for bipolar disorder. Dr. Sloka had prescribed Ms. J.W. Keppra. It would be important for Dr. Sloka to know Dr. Calvert’s prescriptions. Whether she called Dr. Sloka about Ms. J.W.’s medications or not, Dr. Calvert had no memory of ever speaking to Dr. Sloka about the concerns Ms. J.W. had expressed.

1975Dr. Calvert initially testified that Ms. J.W. provided additional more detailed disclosure about her examination, possibly on the same day as the initial disclosure (February 25, 2011) or the following day. However, Dr. Calvert did not document any additional disclosure. Ultimately, Dr. Calvert admitted that Ms. J.W. may not have provided any additional disclosure.

1976Dr. Calvert did not phone the CPSO about Ms. J.W.’s concerns until April 6, 2011. She thought she spoke to a man, but the parties agree that Dr. Calvert spoke to Pam Greenberg, who created a memorandum of their conversation. Dr. Calvert did not remember with precision what she told Pam Greenberg. However, she agreed that she was told to put her complaint in writing.

1977Dr. Calvert forgot to put her complaint in writing as instructed by Pam Greenberg.

1978Years later, in 2016, a representative of the CPSO contacted Dr. Calvert and asked her to put her complaint in writing. A few days after receiving the phone call, on January 12, 2016, Dr. Calvert wrote a letter outlining the complaint against Dr. Sloka. In that letter, Dr. Calvert wrote that Ms. J.W. complained about undergoing a naked skin examination, being asked if she was sexually active, and feeling uncomfortable with Dr. Sloka’s demeanour. In writing this letter, Dr. Calvert relied upon notations made on a yellow face sheet from Ms. J.W.’s chart.

The Evidence of Dr. Bril

1979Dr. Bril disagreed with Dr. Sloka’s decision to conduct a cardiac examination. She believed that Ms. J.W.’s losses of consciousness were obviously seizures and not cardiac syncope. Additionally, while Ms. J.W. had suffered a cardiac arrest during her overdose, the records from the ER did not indicate any known cardiac damage. She would have received an assessment of her heart in the ICU. In the circumstances, she considered a cardiac examination unnecessary.

1980Dr. Bril testified that no neurological justification existed for Ms. J.W.’s skin examination. She considered the chances of Ms. J.W.’s seizures being caused by neurocutaneous disease as “vanishingly rare.”

1981In Dr. Bril’s opinion, Ms. J.W.’s seizures were the result of her overdose. She testified that everyone has a seizure threshold. The seizure threshold is the point at which various factors (for example, sleep deprivation, drug use, lack of oxygen to the brain) may cause a person to suffer a seizure. In Ms. J.W.’s case, she suffered an overdose, which caused cardiac arrest. That cardiac arrest deprived Ms. J.W.’s brain of oxygen, thereby causing damage to Ms. J.W.’s brain. The damage to her brain made her more susceptible to seizures.

1982Dr. Bril agreed, though, that seizures can be caused by a combination of factors. For instance, NF1 can lower a patient’s seizure threshold and make a person more vulnerable to other seizure inducing factors, like drug ingestion. NF1 and drug consumption could therefore combine to induce a seizure.

1983Despite Ms. J.W. confirming two café au lait spots (which Dr. Sloka documented in his handwritten notes), Dr. Bril nevertheless did not believe a skin examination was warranted. She reasoned that neurofibromatosis is very rare, that Ms. J.W.’s cardiac arrest was a huge event, and that Ms. J.W. also had two previous episodes of head trauma, which could have caused scarring and rendered her more susceptible to seizures.

1984To further support her evidence about the insignificance of Ms. J.W.’s café au lait spots, Dr. Sloka testified that a small number of Café au lait spots (one or two) are found in the majority of the population. She relied upon Ferner’s text, Neurofibromatosis in Clinical Practice, to support her claim about the incidence of café au lait spots in the general population. Defence counsel presented Dr. Bril with a segment of the text which contradicted Dr. Bril. According to the authors of the text, “One or two café au lait patches are found in ten percent [not the majority] of the general population….” Dr. Bril agreed that her earlier assertion about the prevalence [and thus insignificance] of café au lait spots was wrong.

1985Dr. Bril’s evidence about the reasonableness of a skin examination was contradicted by positions she had taken on other occasions. For instance, Dr. Bril had testified elsewhere in the trial – more than once, in fact – that when a patient indicates on history that they may have markings that might be consistent with neurocutaneous disease, it may be neurologically reasonable to consider a skin examination. Also, Dr. Bril authored an expert report when retained by the Canadian Medical Protective Association on behalf of Dr. Sloka for the CPSO proceedings. The report was dated June 13, 2016. It is marked as Exhibit 215. In that report, Dr. Bril stated, in part:

Neurofibromatosis type I (NFl) is a hereditary disorder transmitted by autosomal dominant means (parent to child in 50% of children), and it frequently causes seizures. NF1 is very common and observed in about one in 3000 or 4000 births. One half of people with NF1 do not have a family history and the disorder is thought to happen due to spontaneous gene mutation. The clinical diagnosis requires two of six criteria. Those criteria include: six or more cafe-au-l ait patches that are greater than 0.5 cm in children and 1.5 cm in adults. The age of adulthood is generally taken to be age 18. In addition to the cafe-au-lait patches, another criterion is the presence of freckling in the axillae (the armpits) or groins. There are [sic] a total of 8 criteria as shown in the attached table.

In order to determine the presence of cafe-au-lait spots, it is necessary to observe the skin, determine the size of existing spots and whether there are more unsuspected spots as 6 are required to fulfill the criterion. In addition, it is important to check the armpits (axillae) and the inguinal areas for freckling of the skin which is also a feature of NF1.

1986Defence counsel sought Dr. Bril’s response to what she wrote in her June 13, 2016, report. Dr. Bril took pains to point out that her letter did not indicate when it might be reasonable to suspect the presence of NF1, only what to do once the suspicion arises. She then went on to state when a neurologist might reasonably suspect NF1, stating as follows:

For example, if someone had a report to you of having skin lesions, if you ask them about it or if there was a family history so that you would have a reasonable expectation that they may have Neurocutaneous Syndromes. And then if you did think there was an indication to do it would be reasonable to look at the skin.

In giving this testimony, Dr. Bril clearly indicated that reports of skin lesions by the patient might provide grounds to suspect NF1. Dr. Bril’s June 13, 2016, report also clearly contemplated that patients may possess “unsuspected” lesions (lesions about which they remain unaware) and that neurologists may conduct a skin examination to search for any additional unsuspected lesions. Ms. J.W. had reported skin lesions to Dr. Sloka. He purportedly acted on that report. In my view, Dr. Bril’s opinion cannot reasonably challenge Dr. Sloka’s decision to do so.

1987Dr. Bril also took the position that the manner of skin examination alleged by Ms. J.W. was improper. A patient should not stand fully naked for a skin examination. The patient should be gowned, and the neurologist should only expose smaller portions of the patient’s skin in a piecemeal fashion. This aspect of her opinion was not controversial.

The Evidence of Dr. Sloka

1988While Dr. Sloka did not independently remember much about his assessment and treatment of Ms. J.W., he remembered some things. He remembered that Ms. J.W. was living in a shelter and not with her parents. He also remembered attempting to get her parents to pay for her medication. Additionally, he remembered talking to Dr. Calvert about Ms. J.W..

1989Dr. Sloka relied upon his consultation letters and notes for the truth of their contents. He relied upon the rest of Ms. J.W.’s medical file for necessary context.

1990The Crown tendered Dr. Sloka’s written response to Ms. J.W.’s CPSO complaint, which was marked as Exhibit 5. Being an admission tendered by an opposing party, that response is admissible for its truth.

1991The Guelph General Hospital ER referred Ms. J.W. to Dr. Sloka to assess her for possible seizures.

1992At the time of her first appointment, Ms. J.W. was 17 years old. He considered her a mature minor: she was old enough to make decision on her own, but still a minor.

1993Dr. Sloka did not remember whether Ms. J.W. attended the appointment with her worker from the shelter. At the time, Dr. Sloka did not yet have a policy about whether a third party must be present with minor patients. Nevertheless, Dr. Sloka testified that, if Ms. J.W. had wanted the worker to participate in the consultation, he would have permitted it. He denied excluding the worker, either directly or through instructions given to his secretary.

1994Dr. Sloka confirmed that the layout of his clinic was as it was depicted in Exhibit 2. No half-door separated the waiting area from the hallway. He did not have an examination room down the end of a dark hallway. Despite Ms. J.W.’s belief to the contrary, the office depicted in Exhibit 2 was his office and the examination room depicted in Exhibit 2 was his examination room.

1995Dr. Sloka denied Ms. J.W.’s assertion that the appointment began in an examination room. His standard practice was to retrieve his patients from the waiting room himself and bring them to his office. Appointments began in his office, not his examination room.

1996Consistent with his standard practice, Dr. Sloka interviewed Ms. J.W. in his office and obtained her pertinent medical history. Ms. J.W. had suffered a significant deliberate overdose in January of 2010. She was taken to Guelph General Hospital and suffered cardiac arrest. She was kept in the hospital for several weeks. Starting the day after her overdose, she began to suffer frequent seizures. She was medicated while at the hospital but discharged without any seizure medications. She went about two to three months without seizures, but then having seizures in clusters every month or two. During seizures, she experienced cramps in legs, head pounding, eyes rolling, and shaking in all her limbs. In the aftermath, she felt tired, exhausted, and confused.

1997When taking Ms. J.W.’s history, Dr. Sloka documented information provided in relation to several seizure risk factors, including the following: two significant head injuries, no history of febrile seizures, no history of seizures before January, no history of meningitis or encephalitis, doing fairly well in high school, one café au lait spot on her abdomen and otherwise no stigmata of neurocutaneous disease.

1998Given the amount of detail contained in his consultation letter, Dr. Sloka estimated that it would have taken about 15 to 20 minutes to obtain Ms. J.W.’s history before he proposed any examinations.

1999Dr. Sloka proposed neurological, cardiac, and skin examinations.

2000Dr. Sloka was able to confirm that he conducted a skin examination because he wrote the acronym COSE in his rough notes. His consultation report did not mention it. He also wrote the results of his skin examination in his rough notes: the discovery of two café au lait spots (more than she reported). The discovery of only two café au lait spots constituted a negative finding. He tended not to report negative skin findings in his consultation letters.

2001Dr. Sloka explained his justification for the cardiac examination. Dr. Sloka testified that, with any potential seizure patient, the medical literature indicates that cardiac examination is part of the patient’s standard evaluation. Dr. Sloka noted that Ms. J.W. had a loss of consciousness with shaking. In his view, syncopal convulsion was within list of possible explanations for her symptoms. He wanted to make sure that there was no cardiac explanation for these events.

2002Also, Dr. Sloka considered the possibility that Ms. J.W. suffered cardiac injury during her cardiac arrest. He testified that cardiac injury is in the differential diagnosis in someone with Ms. J.W.’s symptom presentation. Based upon the information available to him, he would not have been certain about what injury did or did not occur to Ms. J.W.’s heart. Dr. Sloka added that someone in his position is often dealing with incomplete information and second-hand information. He testified that he tends to want to think broadly when assessing patients. In the circumstances, Dr. Sloka disagreed with Dr. Bril’s opinion that a cardiac examination was unnecessary.

2003Dr. Sloka also provided a justification for the proposed skin examination. According to Dr. Sloka, the medical literature indicates that a skin examination may be part of the assessment of a seizure patient. Further justification arose from the fact that Ms. J.W. had described a café au lait spot on her abdomen.

2004Like Dr. Bril, Dr. Sloka considered the Ferner textbook to be an authoritative textbook on neurocutaneous diseases. To his understanding, only ten percent of the population have one or two café au lait spots. Dr. Sloka did not consider the incidence of neurocutaneous disease in epilepsy patients to be vanishingly rare. Relying upon the statistics contained in the Ferner text, be believed the incidence of neurocutaneous disease in epilepsy patients to be somewhere between 1:125 to 1:250.

2005Dr. Sloka believed that Ms. J.W. had told him about one café au lait spot. Ms. J.W. testified that she told him about two. Had she told him about two, he would have made note of both. As it happens, his rough notes indicate that he found two café au lait spots during the skin examination.

2006Consistent with the evidence of Dr. Bril, Dr. Sloka testified that the presence of neurocutaneous disease can lower a person’s seizure threshold. Dr. Sloka also believed that an injury to Ms. J.W.’s brain, arising from her heart failure, could also lower her seizure threshold. Ms. J.W.’s excessive risperidone use could also have lowered her seizure threshold at least temporarily – he was uncertain whether it could cause a long-term reduction in her threshold, though.

2007Consistent with the evidence of Dr. Bril, Dr. Sloka testified that seizures may arise from the cumulative effect of multiple factors on a person’s seizure threshold.

2008Given Ms. J.W.’s apparent seizures and given the presence of at least one café au lait spot, Dr. Sloka considered it appropriate to conduct a skin examination to look for skin findings that might suggest Ms. J.W. had neurofibromatosis.

2009In cross-examination, the Crown pointed out to Dr. Sloka that he used definitive language in stating that Ms. J.W. had only reported a single café au lait spot and “otherwise has no stigmata of neurocutaneous disease.” Consequently, the Crown suggested to Dr. Sloka that he had no reason to search for additional stigmata (café au lait spots and freckling in the axillary and inguinal regions). Dr. Sloka disagreed. Dr. Sloka testified that, with his manner of expression, he was not declaring that Ms. J.W. had denied the possibility of any other stigmata. Rather, his turn of phrase was meant to denote that Ms. J.W. had reported the stigmata of which she was aware. He could not remember ever having any patients who expressed certainty about the quantity of their skin markings. In Ms. J.W.’s case, Dr. Sloka noted that she reported only one café au lait spot, but Dr. Sloka ultimately found two.

2010According to Dr. Sloka, he conducted the cardiac examination and skin examinations in accordance with his standard methods.

2011Dr. Sloka denied that Ms. J.W. stood fully naked for her skin examination.

2012Dr. Sloka acknowledged that he would have positioned himself about one to two feet away from Ms. J.W. during her skin examination. He would also have squatted when examining her lower extremities.

2013After the completion of Ms. J.W.’s examinations, Dr. Sloka had a lengthy discussion with her in his office. They discussed medication options to reduce her seizure frequency. Dr. Sloka testified that their discussion included Ms. J.W.’s previous overdose on prescription medication. He wanted to ensure that she was aware that these were serious medications and that she should not take more than was prescribed. They also discussed avoiding factors that might lower her seizure threshold, including sleep deprivation and alcohol withdrawal. Generally speaking, the various seizure medications are equally effective at preventing seizures; however, their side effects vary. Dr. Sloka said he was motivated to provide a medication that she could use long term and not need to change later in life. Some seizure medications are not safe to use during pregnancy. Accordingly, Dr. Sloka testified that it was his standard approach with female patients to point out the pregnancy risk associated with some seizure medications, if they plan to start a family. He testified he might say something like, “It’s none of my business but, if you decide to start a family, here are the considerations….” Dr. Sloka denied, though that he asked specific questions about Ms. J.W.’s sex life. After receiving input from Dr. Sloka, Ms. J.W. chose Keppra as her seizure medication.

2014Dr. Sloka also organized an MRI and EEG to further investigate Ms. J.W.’s seizures.

2015Dr. Sloka saw Ms. J.W. in follow up on November 5, 2010. Ms. J.W.’s MRI and EEG results were normal. However, Ms. J.W. had suffered five seizures since her last appointment, because she had not been taking her medication regularly. Dr. Sloka scheduled a follow-up appointment in three months time. Ms. J.W. did not show up for that appointment.

2016Dr. Sloka remembered speaking to Dr. Calvert in the spring of 2011. Dr. Calvert spoke to Dr. Sloka about changing Ms. J.W.’s seizure medications to address her recent diagnosis of bipolar disorder. He made a handwritten note of this conversation on his copy of his November 5th consultation letter. According to Dr. Sloka, Dr. Calvert also informed him that Ms. J.W. had reported being completely disrobed for a skin examination and felt uncomfortable. Dr. Sloka stated that he was surprised and upset upon hearing this. He testified that he told Dr. Calvert that Ms. J.W. was not disrobed for the examination. However, he confirmed performing a skin examination to look for evidence of neurocutaneous disease. Dr. Sloka testified that Dr. Calvert told him that she had previously practiced as a pediatrician. She told him that she had previously examined Ms. J.W.’s skin and found three café au lait spots. As a result, Dr. Sloka added an annotation to his handwritten rough notes, where he had recorded his own skin examination findings. His annotation read, “?3”, which was meant to denote “query 3.”

2017Dr. Calvert’s February 25, 2011, consultation letter was in Dr. Sloka’s patient file for Ms. J.W. He did not know if he had this letter at the time of his conversation with Dr. Calvert about Ms. J.W.’s medications. However, he agreed that he read the letter at some point. He also agreed that when he read that Ms. J.W. had “disclosed a concerning incident with a health professional,” he may have connected it to his examination of Ms. J.W..

2018I wish to make a few brief notes about Dr. Sloka’s written response to Ms. J.W.’s CPSO allegations, which Dr. Sloka authored on June 15, 2016. There are several noteworthy factual declarations in the response that warrant summarizing.

2019Dr. Sloka stated that, with seizure patients, it was his practice to look for risk factors relating to the patient’s seizures. Amongst other things, those risk factors included the existence of neurocutaneous disease.

2020Dr. Sloka declared that he was taught in his residency at Memorial University to screen for neurocutaneous diseases when assessing some patients with new onset epilepsy (or with onset during childhood or adolescence who may not yet have been screened). If patients have birthmarks or freckling/skin changes in their axilla and/or inguinal region, or if they are unsure if they do, he will suggest a skin examination. He stated that it was standard practice to perform the skin examination in this circumstance to see if the patient meets the criteria for the two most common neurocutaneous syndromes -- neurofibromatosis and tuberous sclerosis. He stated that the medical literature and current teaching indicates that patients with these syndromes have a higher risk of seizures than in the general population.

2021Dr. Sloka stated that, through the use of skin examinations, he had identified neurocutaneous disease in patients who went on to obtain genetic testing to confirm the syndrome.

2022Dr. Sloka also stated that he explained to patients in simple terms that brain and pigment cells come from the same source. He informed them that birthmarks on the skin might indicate the presence of “birthmarks on the brain” that could be related to the cause of their seizures. He added that he ensures that patients understand that this is a simplified explanation given to help them understand the reason for the skin examination.

2023He stated that given the wider availability of genetic testing since late 2015, he no longer (as of 2016) conducts skin examinations “as a matter of course.”

2024Ms. J.W. had informed him of one café au lait spot on her abdomen. Given his training, he recommended a skin examination.

2025Dr. Sloka stated that he told Ms. J.W. that “I would be checking for ‘moles’ and birthmarks because there can be a connection between these and seizures.” I note here that Dr. Sloka put the term “moles” in quotation marks. Dr. Sloka testified that he did so to denote that he was not using the term in its literal sense – he was not referring to common moles.

2026He maintained that he conducted neurologist, cardiac and skin examinations on Ms. J.W., and in that order.

2027Dr. Sloka denied that Ms. J.W. was ever naked for her skin examination. He maintained that he only examined one small local area at a time, while the rest of Ms. J.W. remained draped.

2028Dr. Sloka also recounted his conversation with Dr. Calvert in the spring of 2011. His account mirrored the testimony he gave at trial.

Assessment of the Evidence and Analysis

2029Ms. J.W. was an unreliable witness with an admittedly poor memory of her appointment with Dr. Sloka.

2030While Ms. J.W. was a child at the time of her examination, she was barely so, being seventeen years old. I reject the contention that, by virtue of her age, her ability to observe, understand, and remember events was compromised to any significant degree. Additionally, I keep in mind that Ms. J.W. testified as an adult. Moreover, the frailties about which I am concerned are not peripheral matters but instead form an integral part of her narration of the alleged offence. Consequently, the relaxed approach to the assessment of the evidence of child witnesses has little application here.

2031While a relaxed approach to the assessment of child witnesses may have little application here, I think it appropriate to keep in mind that Ms. J.W. was a very troubled teenager at the time.²⁴ Keeping in mind her fragility, I think there is little conceptual difference between having her entire body exposed in a piecemeal fashion during a proper skin examination and having her entire body exposed all at once during an improperly performed skin examination. In both instances, she could rightly consider herself fully exposed. A feeling of discomfort may plausibly arise in both situations. In Ms. J.W.’s circumstances, it is entirely plausible that in the recounting of the appointment, that small conceptual gap collapsed. I make this observation in light of all the other frailties that exist in Ms. J.W.’s evidence, which I will now discuss.

2032Ms. J.W.’s memory about the layout and contents of Dr. Sloka’s clinic was demonstrably false. She described being led by Dr. Sloka’s secretary from the waiting area through a half door down the hallway to an examination room at the end of the hall. This memory contextually tied to Ms. J.W.’s claim that either Dr. Sloka or his secretary prevented Ms. J.W.’s worker from joining her in the consultation. On her evidence, the worker was left behind in the waiting room. Ms. J.W. walked unaccompanied through that half-door and unaccompanied down that hallway and unaccompanied into that examination room at the end of that hall. However, there was no half-door and there was no examination room at the end of a hallway. The trip she described could not have occurred. Additionally, Dr. Sloka testified that he invariably retrieved his patients from the waiting room and brought them to his office immediately across the hallway from the waiting room. I reject Ms. J.W.’s evidence about how she was taken to her meeting with Dr. Sloka, where she was taken, and whether she was denied the opportunity to bring her worker into the appointment.

2033Similarly, Ms. J.W.’s memory about the examination room was demonstrably false. She did not recognize the photograph of Dr. Sloka’s examination room as being her examination room. However, I accept that Dr. Sloka’s clinic only had one office and one examination room, which were the rooms depicted in Exhibit 2. Ms. J.W.’s appointment did not begin in the room she described. Moreover, Ms. J.W. effectively conceded that she must have provided Dr. Sloka with a detailed medical history, as outlined in his consultation letter. In doing so, she retreated from her initial accusation of that Dr. Sloka immediately commenced the examination upon entering the room. Similarly, Ms. J.W. conceded the possibility that Dr. Sloka may have performed neurological and cardiac examinations before proceeding to a skin examination. On the other hand, Dr. Sloka testified that he took a detailed history in his office, then proposed and performed neurological, cardiac, and skin examinations – in that order. Given Dr. Sloka’s testimony about his invariable practice of commencing consultations in his office, wherein he obtained a patient history, given his documentation of Ms. J.W.’s history in his consultation letter, given his documentation of neurological, cardiac and skin examinations, and given Ms. J.W.’s eventual concessions, I reject Ms. J.W.’s evidence that her appointment began in the way she initially described and in the room she described. Ms. J.W.’s initial description of her initial interaction with Dr. Sloka in a non-existent examination room imbued the entirety of the appointment with a sinister intent to hurriedly proceed to an obviously sexualized examination. By the end of cross-examination, that sinister fog had cleared. I accept Dr. Sloka’s evidence that he retrieved Ms. J.W. from the waiting room and took her to his office to obtain her history before proposing any examinations. And I accept that the examinations were performed in the order described by Dr. Sloka.

2034Ms. J.W. also provided inconsistent accounts of her examination. In her 2016 CPSO statement, she twice indicated that she was not sure whether she put on her gown after the skin examination and before laying down on the examination table. However, at trial, Ms. J.W. testified that she went so far as to ask Dr. Sloka whether she could put the gown back on. On her evidence, he provided a negative response. Consequently, she allegedly lay naked on the examination table. The contradiction between her CPSO position and her evidence at trial does significant harm to her reliability. I reject Ms. J.W.’s evidence that she lay naked on the examination table after the skin examination. This finding has implications on the reliability of Ms. J.W.’s claim about the order of examinations and about her state of dress during the skin examination. Recall that Ms. J.W. conceded that Dr. Sloka may have conducted neurological and cardiac examinations before proceeding to a skin examination. Recall that Ms. J.W. claimed that she became naked to facilitate the skin examination. Her inconsistent evidence about her state of dress when laying down on the examination table, coupled with her concession that Dr. Sloka may have conducted neurological and cardiac examinations before proceeding to a skin examination, casts doubt on her assertion that she was ever naked and casts doubt on her assertion that any examination followed the skin examination.

2035There is also a significant material omission from Ms. J.W.’s CPSO statement. Ms. J.W. made no mention of any allegation of breast touching in her CPSO statement. I am satisfied that she treated the CPSO interview with the seriousness it deserved. I am satisfied that she knew the interview’s purpose involved exploring the possibility of inappropriate and sexualized conduct by Dr. Sloka. The omission of any allegation of breast touching was therefore no small oversight. Instead, the omission leads me to conclude that the breast touching never occurred. In coming to this conclusion, I keep in mind here that Dr. Calvert testified that Ms. J.W. never disclosed any breast touching to her when speaking about Dr. Sloka on February 25, 2011. The omission takes on greater significance considering Ms. J.W.’s original uncertainty about whether she wore a gown when laying down on the examination table. Both the breast touching allegation, and her nakedness are thrown into serious doubt. Ms. J.W.’s belated accusation of breast touching, having previously omitted this accusation in previous accounts, harms Ms. J.W.’s credibility as well as her reliability.

2036Ms. J.W. also did not remember any post examination discussion with Dr. Sloka in his office. Her memory lapse here is significant, because Dr. Sloka’s consultation letter reveals an in-depth discussion about her history of drug overdose, her medication options, and the gravity of Dr. Sloka’s decision to place confidence in her and prescribe her potentially dangerous medication. This memory lapse is also significant, because the possibility of future pregnancies was an important factor in choosing the appropriate medication. This factor provides an innocent explanation for Dr. Sloka raising the current and future risk of pregnancy – one that does not involve an explicit discussion of Ms. J.W.’s sex life, but also one that might be prone to misinterpretation.

2037Ms. J.W. was also only able to remember attending a follow-up appointment with Dr. Sloka after she reviewed her medical records in preparation for trial. When she provided her CPSO statement in 2016 and her police statement in 2018, she took the position that she never returned after the first appointment. Her failure to remember her November 5, 2010, appointment suggests that at the time of the second appointment she had yet to acquire any serious concern about her first appointment.

2038I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this case. However, having considered Dr. Sloka’s evidence about Ms. J.W. against the totality of the evidence, I conclude that he has refuted any inference of a sexual motive.

2039The Crown also relies upon four granular categories of cross-count similar fact evidence to support Ms. J.W.’s evidence on other material issues. First, they argue that Ms. J.W. belongs to a constituency of patients who alleged, before any exposure to media coverage, that Dr. Sloka sought to examine them for moles. Second, they allege that Ms. J.W. belonged to a category of patients who described a distinctive leg strength examination. Third, they argue that Ms. J.W. belonged to a category of patients who alleged that Dr. Sloka required them to be naked for their skin examination. And fourth, they contend that Ms. J.W. belonged to a category of patients who alleged some form of skin examination. In my view these four cross-count similarities lack sufficient probative value on any other material issue. I will deal with each similar fact submission in turn.

2040I begin with the “mole” category. Dr. Sloka did not dispute the possibility that he may have used the term “moles” when trying to explain to Ms. J.W. the nature of the skin abnormalities that were of interest to him. However, he also testified that he would have qualified that term to distinguish the marks of interest from common moles. Given Dr. Sloka’s concession, this was not a material issue. Similarly, Dr. Sloka conceded that he performed a skin examination. The existence of a skin examination was therefore not a material issue. Consequently, this category of similarity had no probative value to any remaining material issue.

2041The Crown argues that Ms. J.W. belongs to a group of four patients who allege a distinctive leg strength examination, which thereby bolsters her reliability. I disagree. I heard evidence from over 50 patients. Only four testified about Dr. Sloka standing at the foot of the examination bed to conduct a leg strength examination. They constituted a small minority of the patients in this trial. Any similarity between the accounts of these four patients is, in my view, far more likely the product of coincidence than it is proof of their veracity. Furthermore, amongst these four patients, there existed variability. For instance, two of the four patients did not express any concern about genital exposure during the leg strength examination. Also, each of them described their attire differently: only Ms. J.W. alleged she was naked; one alleged that she was wearing a gown and underwear; one alleged she was wearing a gown and was unsure about underwear, and one alleged she was wearing a gown without underwear. There was also some variability in their memory of the mechanics of their leg-strength examination. Ms. A.S. testified that Dr. Sloka had her pull her leg into her body. Ms. J.L. described bending, stretching, and pushing with Dr. Sloka’s hands on her feet. And Ms. S.W. could not remember whether her legs were straight, or her knees were drawn in; she only remembered using her foot to press into Dr. Sloka’s palms, like pushing on a gas pedal. Additionally, I consider the fact that each of these patients had at least one other doctor in their circle of care. In my view, there exists a risk of patients conflating examinations performed by other doctors on other occasions. Consequently, I do not consider any alleged similarity between patients in this purported category to have sufficient probative value on any remaining material issue.

2042I turn then to the Crown’s reliance upon Ms. J.W.’s membership in a constituency of patients who allege that they were completely naked for a skin examination. The Crown relies upon only the five who first made this allegation before April 30, 2019. Of those five, Ms. J.W. the only one of them who was not exposed to media tainting on the subject. The evidence of tainted witnesses cannot offer support to Ms. J.W..

2043Dr. Calvert’s is of limited value to the Crown. Indeed, I think her evidence did more harm than good to the Crown’s case. Dr. Calvert’s evidence would be admissible for the purpose of rebutting the inference that Ms. J.W.’s evidence was the product of media tainting, but the defence has not submitted that Ms. J.W.’s allegations were the product of tainting, so admissibility is not gained through this purpose. However, Dr. Calvert’s evidence is also admissible for the purpose of explaining how Ms. J.W. ultimately provided a statement to the CPSO and later to the police. Dr. Calvert also confirmed that Ms. J.W. did not make any allegation of breast touching when expressing discomfort in 2011 regarding her skin examination. As already discussed, this material omission cast doubt on Ms. J.W.’s reliability.

2044Dr. Bril’s evidence did not assist the Crown in any meaningful way. For the reasons outlined in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on Dr. Bril’s evidence concerning the appropriateness of a neurologist conducting skin examinations to investigate the possibility of neurocutaneous disease. I emphasize here that Dr. Bril provided contradictory evidence on the subject. I also emphasise that she confidently misquoted the authoritative text on neurofibromatosis in clinical practice. I also emphasize that Dr. Bril agreed that seizure thresholds can be lowered by the combination of multiple factors and that neurofibromatosis can lower the seizure threshold of afflicted patients. Consequently, she agreed that neurofibromatosis and some other factor may be sufficient to cause a seizure in some patients. Considered in their entirety, Dr. Bril’s sometimes conflicting stances tended to support more than it detracted from the reasonableness of Dr. Sloka’s decision to look for stigmata of neurocutaneous disease in Ms. J.W. – particularly if I accept that Dr. Sloka did not take as gospel Ms. J.W.’s stated belief in the existence of only one café au lait spot. Of importance here, Ms. J.W. believed she alerted Dr. Sloka to the presence of two spots. Dr. Sloka recorded her alerting him to only one. Meanwhile, Dr. Sloka made a note that Dr. Calvert advised him of three. I am prepared to accept that Dr. Sloka simply took note of the café au lait spot of which Ms. J.W. was aware and never intended to convey that she had discounted the possibility of any other stigmata of neurocutaneous disease, whether café au lait spots, freckling, or otherwise.

2045And, of course, Dr. Bril’s evidence regarding the inappropriateness of naked skin examinations was not in dispute. Her opinion on this issue does not undermine Dr. Sloka’s evidence.

2046I turn now to Dr. Sloka’s evidence.

2047In my view, Dr. Sloka’s evidence was internally consistent, logical, and compelling. The Crown has failed to impugn his credibility or reliability in any meaningful way.

2048I accept Dr. Sloka’s evidence regarding his invariable practice of retrieving his patients from the waiting room. I also accept his evidence regarding his practice of commencing his consultations in his office. His evidence does not assist me in determining whether Ms. J.W. was accompanied by her worker, but neither does the Ms. J.W.’s unreliable evidence on this topic.

2049Dr. Sloka provided a logical and compelling explanation for his decision to conduct a cardiac examination. Since the Crown does not challenge Dr. Sloka’s decision here, I will not dwell on this topic. I think it sufficient to say that Dr. Sloka provided a reasoned basis for a cardiac examination, even if it was one to which Dr. Bril did not subscribe. As noted in the section devoted to a general assessment of Dr. Bril’s evidence, I am not prepared to place weight on Dr. Bril’s evidence concerning the propriety of any cardiac examinations conducted by Dr. Sloka.

2050Dr. Sloka provided a reasoned explanation for his decision to conduct a skin examination on Ms. J.W. I saw no contradiction between his testimonial evidence and his prior response to the CPSO in 2016.

2051The Crown tendered Dr. Sloka’s written response to Ms. J.W.’s allegations, which he wrote to the CPSO on June 15, 2016. In that written defence, Dr. Sloka indicated that he was trained in his residency to conduct a skin examination in seizure patients who states they have birthmarks or are not sure if they do. The position he took in his written defence was seemingly consistent with the position take by Dr. Bril in the opinion she provided when retained by the CMPA to provide an opinion in Dr. Sloka’s disciplinary proceedings. His position was also seemingly consistent with the position Dr. Bril took at times in this trial. Importantly, while the Crown tendered as part of its case Dr. Sloka’s position about how he was trained at Memorial University, the Crown never tendered any evidence to rebut Dr. Sloka’s evidence about his training. Dr. Sloka’s evidence about his training, tendered by the Crown, therefore stood uncontradicted.

2052It is obvious that Dr. Sloka considered Ms. J.W.’s overdose and resulting cardiac arrest to be likely significant factors in Ms. J.W.’s seizure activity. However, like Dr. Bril, Dr. Sloka recognized that multiple factors might combine to lower a patient’s seizure threshold and thereby cause seizures. In some patients, neurofibromatosis might be one of the factors. In Ms. J.W.’s case, she made Dr. Sloka aware of at least one café au lait spot. I accept his evidence that he had not known any patient to who had expressed certainty about the quantity of their skin markings. Given what Ms. J.W. had reported to him and given his medical training, I accept that he believed that a skin examination was medically warranted. Dr. Sloka provided a logical explanation, rooted in his training, about why he considered neurocutaneous disease to be a worthwhile consideration and, consequently, why he considered a skin examination to be a worthwhile investigation.

2053In their critique of Dr. Sloka’s evidence, the Crown did not focus on Dr. Sloka’s medical rational for the skin examination. Instead, the Crown attacked Dr. Sloka on more peripheral matters.

2054For instance, the Crown criticized Dr. Sloka’s evidence regarding his alleged discussion with Dr. Calvert. First, the Crown faulted Dr. Sloka for being unable to distinguish between his independent memory and his refreshed memory about that discussion. I see no merit in this critique. I do not fault Dr. Sloka for being unable to identify exactly what he remembered and what had been lost to his memory at any given point in time. Dr. Sloka’s memory was aided by documents of his own creation, some authored contemporaneously, and some authored in response to the CPSO five years after Ms. J.W.’s treatment. It was entirely appropriate that he refresh his memory.

2055The Crown takes issue with Dr. Sloka’s written account of his phone call with Dr. Calvert, contained in the 2016 written response he provided the CPSO. Dr. Sloka told the CPSO that the discussion of Ms. J.W.’s skin examination arose “incidentally” during their conversation. The Crown suggests that the allegedly incidental nature of discussion was somehow at odds with the discussion being memorable. There is no logic to that submission. Something memorable can arise from something incidental. The Crown also faults Dr. Sloka for failing to report to the CPSO that Dr. Calvert had relayed Ms. J.W.’s complaint about being naked for the skin examination. The whole point of Dr. Sloka’s written response was to address Ms. J.W.’s complaint about a naked skin examination. Dr. Sloka specifically and repeatedly denied that allegation in his written response. Dr. Sloka’s recounting of his discussion with Dr. Calvert was a digression and not remotely close to being the focus of his seven-page response. I take nothing from Dr. Sloka’s failure to disclose to the CPSO his prior consistent denial of Ms. J.W.’s claim of nudity during his conversation with Dr. Calvert.

2056The Crown also expresses skepticism of Dr. Sloka’s evidence that he recorded “?3”, referring to the number of café au lait spots, in his handwritten notes during his discussion with Dr. Calvert. The Crown argues that it defies belief that Dr. Sloka would remember making this notation over a decade ago. I do not agree. The Crown’s submission ignores what Dr. Sloka wrote in his 2016 response to the CPSO. In his response, Dr. Sloka wrote:

I vaguely recall explaining to Dr. Calvert that I was conducting an exam to rule out neurocutaneous syndromes and she herself confirmed that she had completed a skin examination as well and found 3 café au lait spots. I made note of our call on the face of my dictated consultation note dated November 5, 2010. It reads “D/W Dr. Calvert ?change -> lamotrigine or valproic acid d/t ?bipolar” and gave the conversation little further thought until I received this complaint earlier this year.

2057In this response, Dr. Sloka clearly purported in 2016 to remember Dr. Calvert mentioning the three café au lait spots. He also remembered making a note of their call. What he failed to note, or perhaps remember, was that he wrote “?3” elsewhere in his file. Dr. Sloka also provided an explanation for remembering this detail from their conversation: it struck him as odd that Dr. Calvert had examined Ms. J.W. for café au lait spots. Given that Dr. Calvert was practicing as a psychiatrist at the time of their phone call, his purported reaction seems entirely reasonable. While Dr. Calvert did not remember their conversation, she testified that she previously practiced as a pediatrician and had experience performing skin examinations. She also agreed to the possibility that she may have informed Dr. Sloka that Ms. J.W. had three café au lait spots. Having considered all the circumstances, I see nothing suspicious in Dr. Sloka’s evidence about his conversation with Dr. Calvert.

2058The Crown also argues that Dr. Sloka’s failure to report the skin examination in his consultation letter betrays an awareness that he knew it was improper. However, Dr. Sloka created a written record of his skin examination in his handwritten rough notes, which became part of his patient file. Although he used acronyms like “COSE” and “2 C-A-L ?3”, and shorthand like “N axil” and “No freckling”, the context clearly suggests for posterity that Dr. Sloka performed a skin examination. His documentation of the examination in his rough notes is inconsistent with the theory that he was attempting to hide the examination. Moreover, the Crown’s submission ignores the fact that Dr. Sloka neglected to chart skin examinations for patients who alleged that Dr. Sloka performed them in accordance with his standard practice. A.E., A.D., and S.T. all described skin examinations that confirmed wit Dr. Sloka’s standard practice. Additionally, for some patients in this trial, Dr. Sloka did in fact make a note of skin findings, suggesting that he was not afraid of revealing the inspection of a patient’s skin. He once explicitly documented a limited skin examination (A.F.) as part of the investigation of a patient’s apparent seizures. He did this for the purpose of memorializing the boundaries of Ms. A.F.’s consent. He also sometimes documented breast and pelvic examinations. I see no pattern of concealment that supports any conclusion that Dr. Sloka harboured a consciousness of guilt. Additionally, Dr. Sloka testified that he tended not to make note of examinations with negative results. Ms. J.W.’s skin examination produced negative results: it did not reveal enough café au lait spots or any inguinal or axillary freckling necessary to constitute a positive diagnostic criterion for NF1. In all the circumstances, I am unable to draw a negative inference from the fact that Dr. Sloka did not make mention of a diagnostically insignificant skin examination in his consultation letter.

2059The Crown argued that Dr. Sloka was evasive when responding to the Crown’s suggestion that Ms. J.W. was a vulnerable patient. They argue that his evasiveness negatively impacts his credibility. I keep in mind here that Dr. Sloka had almost no memory of Ms. J.W. He based his evidence on the content of his consultation letter. In his letter from Ms. J.W.’s first appointment, Dr. Sloka wrote, “I was also impressed that she was quite forward-looking and was looking forward to moving in with her girlfriend, finishing high school, and looking at starting a job. I think I have enough confidence that I can prescribe her some medication given her current stability.” Dr. Sloka testified that, based on what Ms. J.W. had told him, he may have felt Ms. J.W. was in a place of stability. He was not being evasive. He was working from the contemporaneous record he had created when meeting with Ms. J.W. Dr. Sloka also agreed with the Crown that Ms. J.W.’s circumstances were ones that may have called for an additional level of care and attention. Indeed, he noted her overdose history and the related lengthy discussion about treating her seizures with serious prescription medications. Similarly, he agreed with the Crown’s suggestion that Ms. J.W., being a young woman, might be nervous, uncomfortable, in an unfamiliar environment, and in need of some reassurance from him. I saw nothing evasive in Dr. Sloka’s evidence.

2060In light of Ms. J.W.’s manifest unreliability on important aspects of her evidence, and in light of Dr. Sloka’s unshaken denial, I reject Ms. J.W.’s evidence about being naked for her skin examination and about Dr. Sloka touching her breasts, chest, and sides while she lay naked on the examination bed. I do so despite accepting her evidence that the examination made her feel uncomfortable. I am also unable to accept her evidence regarding the sequence of the examinations. Instead, I accept Dr. Sloka’s evidence that he conducted neurological, cardiac, and skin examinations, in that order. I accept his evidence that these examinations were performed in accordance his standard methods, and that those methods were done in accordance with his training. I accept that Dr. Sloka possessed a valid medical motive when proposing and conducting these examinations. I further accept that he obtained Ms. J.W.’s consent to conduct them. Given my rejection of Ms. J.W.’s evidence on the material issues, I am unable to conclude that any portion of Ms. J.W.’s examinations constituted sexual activity. Instead, I conclude that Ms. J.W.’s examinations were medical examinations conducted in accordance with Dr. Sloka’s medical training and for a medical purpose. Dr. Sloka will be acquitted on this count.

B. Concussions

i. K.L. (Count 40)

A Summary of Ms. K.L.’s Complaint and Dr. Sloka’s Response to It

2061Ms. K.L. suffered post-concussion syndrome and experienced regular headaches. She alleged that, during the examination at her initial appointment, Dr. Sloka instructed her to wear her gown opened at the front. During her cardiac examination, he completely exposed her chest. He then placed his stethoscope on various points on her chest, resting the base of hand on her chest while he listened. He leaned in close, staring at her chest. She believed he was looking at her breasts.

2062Dr. Sloka denied performing a cardiac examination at Ms. K.L.’s first appointment. She arrived late and there was not enough time to do examinations at this appointment. He testified that, at her second appointment, he performed a cardiac examination according to his standard practice. He did not have Ms. K.L.’s gown open to the front, nor did he stare at her chest or lean in any closer than the examination required. Any touching of her chest was incidental to the cardiac examination.

The Circumstances of the Referral

2063Ms. K.L. was seventeen years old when first referred to Dr. Sloka. She suffered a concussion and obtained treatment from Dr. Lee of the Waterloo Sports Medicine Centre. Her care was also overseen by her family doctor, Dr. Gebeyehu. She had been experiencing headaches, difficulty sleeping, difficulty concentrating, and mood changes. After six months, her physician made a referral to Dr. Sloka for an assessment of her post-concussion syndrome. Her first appointment with Dr. Sloka occurred on April 16, 2014. Ms. K.L. ultimately attended four appointments to see Dr. Sloka: April 16, June 16, October 8, 2014, and April 28, 2015.

The Evidence of K.L.

2064Ms. K.L. was 24 when she testified. She was also a nurse.

2065Ms. K.L. suffered from a congenital heart defect: a ventricular septal defect. She regularly saw a cardiologist to monitor this defect. She had seen a cardiologist her entire life. She was accustomed to doctors listening to her heart.

2066Ms. K.L.’s complaint pertains to the way Dr. Sloka allegedly performed a cardiac examination, which she believed occurred at her first appointment.

2067Her mother attended the first appointment with her.

2068As was typical at Dr. Sloka’s office, the appointment began with a pre-examination discussion in Dr. Sloka’s office. Her mother was present for this discussion. They discussed her medical history and presenting complaint. She did not have much memory of the discussion but believed she did most of the talking. She agreed that she provided most of the information contained in Dr. Sloka’s consultation letter.

2069Ms. K.L. agreed that prior to any examination, Dr. Sloka may have told her that he needed to do a standard neurological examination to see if there is a connection between her brain and her symptoms. She also agreed to the possibility that Dr. Sloka told her he would like to perform a cardiac examination to see if her symptoms were connected to her heart.

2070While Dr. Sloka’s consultation letter indicated that she was late and that he deferred the examination until her next appointment, she vigorously disputed this claim. She testified that, to her recollection, she had never been late for a medical appointment, ever. She was certain she was not late. If she was late at all, it was not to any significant degree. She testified that Dr. Sloka had lied when reporting the deferral and had lied when he reported in the second consultation letter that he conducted neurological and cardiac examinations at the second appointment. She read these purported lies when reviewing her own medical records in preparation for testifying. These lies stood out to her. As a nurse, she knew the importance of accuracy in medical records. However, she did not advise the Crown or police that the records contained these lies. She explained that she did not know she was supposed to raise this issue, though she admitted that she had the opportunity to do so.

2071Ms. K.L. testified that after the in-office consultation, Dr. Sloka took her into the examination room. Her mother remained in the office.

2072She recalled Dr. Sloka giving her a gown. She also recalled asking if she should wear it open to the front or back. On her evidence, she always asks that question before gowning for an examination – a perplexing assertion given her claim that she always wore the gown open to the front during her many visits with her cardiologist. She had been to see her cardiologist 20-30 times. Each time, she wore her gown open to the front. She did the same for all of her other out-patient visits. In response to her purported inquiry, she recalled Dr. Sloka telling her to wear the gown open to the front. She denied confusing this visit with her cardiology appointments. Of note, she did not inform the police that she asked about how to wear the gown or that Dr. Sloka instructed her to wear it open to the front. This feature of her allegations first arose at trial.

2073Ms. K.L. did not recall whether Dr. Sloka departed the examination room to allow her to change. She accepted the possibility that he did so. She was never concerned about Dr. Sloka watching her change. There being no cause for concern, she had no concern to report any to her mother.

2074In-chief, Ms. K.L. testified that she could not see her mother once she was inside the examination room, though she could not remember whether the door between the rooms was open or shut. In cross-examination, after reviewing her police statement, she accepted the possibility that Dr. Sloka deliberately left the door to the examination room open for the examination. She also agreed to the possibility that her mother was not visible to her because her mother was seated beside the doorway, along the wall that separated the two rooms.

2075Ms. K.L. could not recall but accepted the possibility that Dr. Sloka performed the standard components of his neurological examination before doing a cardiac examination. She had a specific recollection of him doing reflex tests on her knees.

2076As for the cardiac examination, she alleged that Dr. Sloka situated himself very closely for the examination, so close that she could feel his breath on her. She testified that this was a memorable aspect of her cardiac examination. However, she provided a slightly different account in her statement to police. Rather than allege that she could feel Dr. Sloka’s breath, she told police that Dr. Sloka was so close she could almost feel his breath. After being presented with this contradiction, she testified that she did not see a contradiction.

2077During her examination in-chief, she recalled feeling the heel of Dr. Sloka’s stethoscope-hand grazing her chest as he moved it about to listen at various places on her chest. In cross-examination, she testified that Dr. Sloka rested the heal of his stethoscope hand on her chest in various places. Contrary to her evidence in-chief, she also claimed that the contact did not feel like grazing. As the defence explored her evidence on this point, Ms. K.L. ultimately testified that she knew there was contact, but she was unsure of the mechanics of it. Despite being unsure about the mechanics of the contact, Ms. K.L. maintained that the contact was not simply incidental.

2078Whether Dr. Sloka’s was grazing or resting the heal of his hand on her chest, Ms. K.L. never alleged that it contacted the lower portion of her breast.

2079She further agreed that Dr. Sloka listened for a longer period at a certain point between her breasts, called Erb’s point, which she knew was the location at which he would best be able to listen to her septal defect.

2080Ms. K.L. also alleged in cross-examination that Dr. Sloka had his eyes open has he listened with the stethoscope. She had the sense that he was staring at her breasts. On her account, she knew at the time that this staring was inappropriate. Her subsequent years of nursing had reinforced this perception. However, she never made this allegation in her police statement or during her evidence in chief. To explain the omission of this inappropriate behaviour from her earlier accounts, she said nobody specifically asked her about it. That observation holds true for her cross-examination, too. Ms. K.L. then offered a different explanation: she didn’t now she was supposed to say anything. She made this claim despite knowing, as a nurse, how seriously the CPSO takes claims of sexual impropriety by medical professionals.

2081Ms. K.L. testified that she spoke to her mother after the appointment and informed her mother that she had an uncomfortable experience during the examination. She could not recall precisely what details she imparted. Her evidence on the details of her disclosure was vague and varied. In chief, she said, “I explained what had happened so I told her that I had to open my gown and my bare chest was exposed while he listened to my chest and basically what I’ve said here, that – that he was close to my chest and I was uncomfortable and that I could feel his skin.” In cross-examination when questioned about whether she reported to her mother “everything that you’ve told us here today,” she replied, “I don’t recall exactly what I said to her, but it would have been along those lines.” She noted, though, that the alleged exposure and alleged staring were her greatest concerns at the time. Ms. K.L.’s evidence therefore leaves uncertain her position on whether she purportedly reported to her mother feeling Dr. Sloka’s breath on her chest. However, as noted above, when first describing the allegations to the police, she indicated that Dr. Sloka was so close she could “almost” feel his breath. She did not report actually feeling Dr. Sloka’s breath.

2082According to Ms. K.L., her mother wanted to go back and confront Dr. Sloka about the examination, but she did not want to do so. She was already dealing with enough.

2083Ms. K.L. testified that she and her mother decided that, during future appointments, she would not be alone in the examination room with Dr. Sloka again.

2084Despite allegedly making this decision to never be alone with Dr. Sloka again, Ms. K.L. had no memory of feeling anxiety about upcoming appointments or feeling uncomfortable or anxious at future appointments. She had very little memory of her subsequent appointments.

2085After the final appointment, Ms. K.L.’s mother wrote a letter to Dr. Sloka, seeking a referral to a doctor. In that letter she thanked Dr. Sloka for his “professional, warm, attentive demeanour, and his empathy – all of which made a big difference to [K.].” Ms. K.L. testified that Dr. Sloka could possess all those qualities and still have conducted an inappropriate examination. Both things could be true, she said.

2086In April of 2019, Ms. K.L.’s work colleague showed her a media report about the investigation of Dr. Sloka. While the report referred to multiple allegations of misconduct, Ms. K.L. could not recall any specifics.

2087Ms. K.L. saw another article about Dr. Sloka shortly before she contacted the police on September 27, 2019. The article recounted, amongst the allegations, that patients complained of being inappropriately dressed or covered for examinations. The article invited those with information to contact the police, and it provided a phone number for them to do so. Consequently, Ms. K.L. spoke to her mother about whether she should contact the police. They discussed her experience with Dr. Sloka. According to Ms. K.L., it was obvious to both of them that the claims of inappropriate draping resembled her own experience. She therefore contacted the police.

2088Even though some the contents of the media reports resembled her own concerns about her own examination by Dr. Sloka, Ms. K.L. testified that these reports did not contribute to her level of concern about Dr. Sloka.

The Evidence of C.S.-L.

2089Ms. C.S.-L. testified the day after her daughter did.

2090Like her daughter, Ms. C.S.-L. testified that the cardiac examination occurred at the first appointment.

2091To her recollection, the appointment started on time. They spent time in the waiting room before entering Dr. Sloka’s office. In cross-examination, the defence asked, “Do you independently remember that… the appointment started at the time it was supposed to?” Ms. Ms. C.S.-L.’s reply involved the answer to a different question, the question of her and her daughter’s promptness: “I know that we were there at the time of the appointment.” She later explained that she believed she was being asked about her own promptness, not Dr. Sloka’s. Ms. C.S.-L. further testified that she is never late for medical appointments – “period.” Like her daughter, she vigorously disputed the notion that they may have arrived late for this appointment.

2092Ms. C.S.-L. could not recall whether Dr. Sloka explained the nature of the examinations he wished to perform on Ms. K.L. She agreed it was possible that he explained his interest in performing neurological and cardiac examinations.

2093Ms. C.S.-L. testified that Dr. Sloka had told her, “You can wait here” before entering the examination room with Ms. K.L. However, she did not view herself as being prohibited from entry into the examination room. It was obvious to her that she had the option to observe.

2094Ms. C.S.-L. recalled that the doorway between the office and the examination room remained opened during the examination. She sat in a chair against the wall that separated the two rooms. From that position, she was unable to observe the examination, but she the option was available, if she so chose.

2095Ms. C.S.-L. recalled Dr. Sloka and her daughter going into the examination room. She recalled Dr. Sloka instructing her to remove her clothing from the waist up and put on a gown.

2096Ms. C.S.-L. disputed the notion that Dr. Sloka left the examination room to allow Ms. K.L. privacy while getting gowned. She knew Dr. Sloka did not depart the room because her daughter told her that Dr. Sloka stayed in the room.

2097Ms. C.S.-L. testified that following the appointment, her daughter told her that the examination was “weird.” Ms. C.S.-L. also testified Ms. K.L. reported that Dr. Sloka had her lay down on the examination table, opened her gown, looked at her breasts, placed his face was close to her chest, and placed his stethoscope-hand on her chest while he held the stethoscope.

2098According to Ms. C.S.-L., her daughter told her that Dr. Sloka was so close that at one point she could feel his breath. She agreed that this would be a memorable and disturbing revelation. She was concerned that Dr. Sloka was not listening to her daughter’s heart at all. However, Ms. C.S.-L. agreed that she never recounted this feature of Ms. K.L.’s disclosure during her police interview.

2099Ms. C.S.-L. professed to be concerned by the fact that Dr. Sloka required Ms. K.L. to wear her gown opened to the front. This was purportedly an immediate concern. Despite her daughter’s evidence about virtually all of her out-patient examinations, Ms. C.S.-L. believed the gown was always worn open to the back. Contrary to her daughter’s evidence, she testified that her daughter had been accustomed to wearing the gown opened to the back.

2100Ms. C.S.-L. testified that she suggested going back into the office to talk to Dr. Sloka or to the secretary about their concerns or alternatively go into the hospital and make inquiries. According to Ms. C.S.-L., her daughter did not want to confront the issue. She purportedly had all she could handle with her concussion issues and could not sustain another challenge. Accordingly, they went home.

2101The matter was discussed further at home, but they ultimately decided against reporting their concerns about Dr. Sloka.

2102Ms. C.S.-L. accompanied her daughter to all subsequent appointments. On her evidence, there were no examinations at subsequent appointments.

2103The third visit occurred on October 8, 2014. Ms. C.S.-L. agreed that they did not schedule a follow up appointment after this visit.

2104Four months later, on February 9, 2015, Ms. C.S.-L. wrote a letter to Dr. Sloka. She informed Dr. Sloka that her daughter was “improving slowly” but was still experiencing difficulties. She asked Dr. Sloka to order an MRI, “so that we can rule out any shadow of a doubt that there might be something else going on.” Dr. Sloka ordered this high-demand test for Ms. K.L.

2105While Ms. C.S.-L. did not specifically remember it, she agreed that Ms. K.L. attended for a follow-up visit on April 28, 2015. No issues were discovered in the MRI results.

2106On May 9, 2015, Ms. C.S.-L. wrote Dr. Sloka to give him a “heart-felt thank you” and to make “one last request.” Her heart-felt thank you was worded as follows:

First, I would like to be sure to acknowledge the time and attention you have provided to [K.] during this challenging time. Your professional, warm, and attentive demeanor, encouraging words and profound empathy have made a big difference to her as she has stumbled through the ‘concussion wilderness’. The positive results of the MRI have gone a long way to eliminating some of her worries around bigger issues that could explain her difficulties. Please know how responsive and friendly Laurie has been throughout. She is a gem (but I bet you know that already).

In this “one last request”, Ms. C.S.-L. went on to ask Dr. Sloka to provide a letter to encourage her school to exempt her from a final examination at school, due to post-concussion syndrome.

2107Ms. C.S.-L. followed up her May 9th letter with another letter on June 1, 2015, which she delivered by fax.

2108On June 2, 2015, Dr. Sloka sent a letter addressed to Ms. K.L.’s school, “to advocate for exempting” Ms. K.L. from her final examination.

2109Ms. C.S.-L. acknowledged becoming aware of media coverage of Dr. Sloka. She purportedly did not know the details of other women’s complaints after learning about the first wave of media coverage. On her evidence, she was not interested in what others were alleging. She read an article about Dr. Sloka but professed not to remember its contents in fine detail. However, she allowed that she probably recalled people complaining about being exposed.

2110According to Ms. C.S.-L. she spoke to her daughter about the prospect of coming forward but did not discuss the details of her daughter’s complaint. Ms. C.S.-L. testified that she had always viewed Dr. Sloka’s alleged conduct as deliberately and sexually inappropriate. She purportedly held this view when her daughter allegedly made a contemporaneous complaint about Dr. Sloka’s conduct.

2111Ms. C.S.-L. acknowledged awareness of a second wave of media. More people had come forward. After reading some of this second wave of media, Ms. C.S.-L. spoke to her daughter. She acknowledged that she and her daughter vaguely discussed the similarity of some of the other complaints to Ms. K.L.’s complaint: “Hey, this stuff happened to other people.” However, she denied comparing the specifics of Ms. K.L.’s complaint to the complaints of others. She also denied, contrary to the evidence of Ms. K.L., reviewing the specifics of Ms. K.L.’s complaint. According to Ms. C.S.-L., their discussions focussed on whether Ms. K.L. should report her complaint to the police.

The Evidence of Dr. Bril

2112In their submissions, the Crown indicates that they take no issue with the justification provided by Dr. Sloka for any cardiac examinations in this trial.

2113Nevertheless, Dr. Bril testified that she did not think a cardiac examination was neurologically reasonable in Ms. K.L.’s case. She testified that it might be reasonable, out of curiosity, to listen for her ventricle-septal defect, but not neurologically necessary. She was not aware if there exists a concern in patients with ventricle-septal defects that the hole might enlarge over time. That issue is outside the scope of neurology.

2114Dr. Bril observed that Dr. Sloka believed that Ms. K.L. had suffered a concussion. She was unaware of any medical literature on brain injuries that suggest a cardiac examination is indicated in cases with traumatic brain injury. She also observed that Ms. K.L. was reportedly tolerating the increase in her nortriptyline. Consequently, she did believe any possible cardiac contraindications warranted a cardiac examination.

2115Dr. Bril agreed that, during a cardiac examination, it would be reasonable to move the patient’s breast away from the apex of the heart to facilitate auscultation. No other touching of the breast would be reasonable.

2116Dr. Sloka also testified that Dr. Sloka should have remained one to two feet away from Ms. K.L. during any cardiac examination.

2117Dr. Bril also testified that Ms. K.L. should have been given the option of having her mother present for the examination. If Ms. K.L. sought her mother’s presence, Dr. Sloka should have permitted it.

The Evidence of Dr. Sloka

2118Dr. Sloka had no independent recollection of his treatment of Ms. K.L. He relied upon his consultation letters for the truth of their contents.

2119According to his contemporaneously authored April 16, 2014, consultation letter, Dr. Sloka obtained a medical history and a description of Ms. K.L.’s presenting complaint at this initial appointment. The letter also indicates that Dr. Sloka deferred a physical examination because Ms. K.L. and her mother were a little bit late. He also increased her nortriptyline dosage from 10 mg to 30 mg. He left open the possibility of brain imaging and he asked to see Ms. K.L. again in two months.

2120At trial, Dr. Sloka testified that an appointment like Ms. K.L.’s would typically have been booked for one hour in duration. He took a comprehensive medical history, which takes time. He noted that the process of explaining examinations, obtaining consent, changing into a gown, getting dressed, and having further discussions is time consuming. Accordingly, if the patient showed up late, he might not have time to conduct an examination.

2121Dr. Sloka further testified that, according to the history he obtained, Ms. K.L. had already been tolerating her nortriptyline. He incrementally increased her dose to 30 mg, which is still a small dose. He felt increasing the dose would help with her headaches. He planned to listen to her heart during the follow up appointment. He did not think a two-month interval between appointments was overly long, because Ms. K.L. was already tolerating her medications and the increased dosage was “incremental.” He considered the delay reasonable, if not ideal.

2122The second appointment occurred on June 16, 2014. Once again, Dr. Sloka contemporaneously authored a consultation letter addressed to Ms. K.L.’s doctor. According to that letter, Ms. K.L. reported some improvement with her headaches, but she still reported fatigue and cognitive difficulties. Dr. Sloka performed neurological and cardiac examinations on that date. The results of both examinations were normal, but he noted some unusual moles on Ms. K.L.’s back, which he understood the family doctor would be following. He decided to keep her on the same dosage of nortriptyline and see her in September.

2123In his testimony, Dr. Sloka maintained that he performed a neurological and cardiac examination at this second appointment.

2124Dr. Sloka testified that he performed the cardiac examination because Ms. K.L. was presenting with ongoing concussion symptoms and had reported headaches and cognitive issues. He testified that, pursuant to his education and training, he conducted cardiac exams on patients with these presentations. He also testified that he conducted a cardiac examination, because Ms. K.L. was taking nortriptyline, which has cardiac contraindications. He did not know if Ms. K.L.’s VSD played any role in his decision to perform a cardiac examination, but he testified that he would want to show extra care with any patient with a structural defect in their heart.

2125Dr. Sloka testified that he did not now know whether he was aware that Ms. K.L. was being monitored by a cardiologist during her time as his patient. Even it she was, he would have felt obligated to perform his own cardiac examination to hear for himself what issues were present.

2126Dr. Sloka testified that he would have departed the examination room to allow Ms. K.L. to gown in private.

2127Because he was performing a cardiac examination, he would have asked Ms. K.L. to remove her all clothing from the waist up before putting on a gown.

2128Dr. Sloka denied that Ms. K.L. wore her gown open to the front. He did not have his patients wear their gowns in this manner.

2129Dr. Sloka agreed that it was possible that the door from the office to the examination room remained open during the examination. Her age (17) could be a factor in such a decision.

2130Dr. Sloka testified that he would have conducted his cardiac examination in his standard fashion. He denied staring at her chest. He testified that he habitually closed his eyes while listening to the heart, to focus.

2131Dr. Sloka testified that the VSD could be heard upon auscultation of the heart. He further testified that placement of the stethoscope at Erb’s point would enable him to hear the VSD. He testified that any contact by his hand with her chest would have been incidental to auscultation, not intentional. He denied touching her breasts and chest with his palm and fingers.

2132Dr. Sloka denied that Ms. K.L.’s chest was completely exposed for the cardiac examination. Only the left breast was exposed in his standard examination.

2133Dr. Sloka testified that his head would be at least one foot away from the patient’s skin during auscultation of the heart.

Assessment of the Evidence and Analysis

2134Aspects of Ms. K.L.’s evidence cause me concern.

2135Ms. K.L.’s insistence that the examinations occurred on the first appointment troubles me. Dr. Sloka’s contemporaneous consultation letters indicate that the examinations were deferred at the first appointment and conducted on the second. I can see no plausible reason to fabricate these two related reports, particularly when they are addressed to the primary care physician who is overseeing the ongoing care of the patient to whom they refer. Indeed, the theory of fabrication seems both implausible and nonsensical – implausible because this alleged cover-up was being conveyed to the primary care physician who was overseeing Ms. K.L.’s care and had been told to expect an examination during follow-up; nonsensical because it makes no sense to cover up an examination and then promptly admit it after the next appointment. In Ms. K.L.’s adamant estimation, Dr. Sloka lied, but to no apparent end – he ultimately conceded the examination about which she now complains, just one appointment too late. During her initial complaint, and later in her testimony, she was recalling a series of appointments many years in the past. It is entirely understandable, indeed predictable, that she might forget details about the sequence of her appointments. Yet, she simply refused to admit the possibility that she conflated memories of two appointments into one. In this steadfast refusal she revealed herself to be a stubborn, unreasonable, and inflexible witness, who insisted upon eschewing likely explanations in favour of conspiratorial ones.

2136Ms. K.L.’s allegation that Dr. Sloka lied in the preparation of his consultation letters has other ramifications. She was a nurse by the time she was a witness in this case. As a nurse, she was aware of the gravity of falsifying medical records. Despite this awareness, she did not raise her concern about the alleged fabrications during witness preparation. She also did not raise the concern during her evidence in-chief. She first explained that she had not been given the opportunity to flag the alleged lies. I find that explanation suspect. Then, she explained that she did not know she was supposed to say anything. Given her willing participation as a witness and given her knowledge as a nurse, I reject that explanation. The more likely explanation: the records she reviewed did not accord with her recollection about an inconsequential sequence in the narrative of her treatment; so, she belatedly constructed in her mind an explanation that would preserve the integrity of her narrative. Rather than allow for a minor error in her recollection, she belatedly attributed an unlikely and nonsensically nefarious motive to Dr. Sloka. Her mother’s identical evidence on this point does not assuage my concern, because, as I will discuss below, I have serious concern that mother and daughter have either colluded or tainted each other’s evidence.

2137Ms. K.L.’s evidence regarding Dr. Sloka’s alleged instruction to wear her gown open to the front causes me concerns about both her credibility and reliability. She was adamant that she sought instruction from Dr. Sloka about how to wear her gown. She was equally adamant that Dr. Sloka replied by instructing her to wear the gown opened to the front. Yet, on her evidence, she wore her gown open to the front at every out-patient appointment, including her 20-30 appointments with her cardiologist. It seems an odd question to ask, then, given her evidence that her practice was invariable. Moreover, she raised this assertion for the first time at trial. She did not make this allegation in her police interview. Given the number of visits with her cardiologist and given the allegedly commonplace way in which she allegedly wore the gown, I am skeptical of her trial-day claim that Dr. Sloka instructed her to wear the gown in this fashion. My concerns are heightened by the contradictory evidence of her mother, who testified that, for other appointments, Ms. K.L. always wore her gown open to the back. The conflict between mother and daughter on this point causes me to have concern about Ms. K.L.’s credibility.

2138Ms. K.L.’s evidence regarding the feel of Dr. Sloka’s breath on her skin also concerns me. In giving this evidence, she was clearly motivated by the intention to illustrate how close Dr. Sloka got to her body. An examination of the history of her disclosure causes me to conclude, though, that this specific allegation did not surface until she testified at trial. As noted, she could not recall precisely what she informed her mother on the day of the appointment. During the police interview, she most definitely did not report feeling Dr. Sloka’s breath. She reported that Dr. Sloka was so close that she could almost feel his breath. Ms. K.L.’s attempt to attribute this discrepancy to a harmless turn of phrase was not convincing. I reject it. Ultimately, I conclude that Ms. K.L.’s concerns have grown over time, in conjunction with media exposure and her participation as a witness in Dr. Sloka’s prosecution.

2139The amplification of Ms. K.L.’s claim about Dr. Sloka’s breath seeped into the evidence of Ms. K.L.’s mother. Ms. C.S.-L. did not mention to the police any complaint by her daughter that she could feel Dr. Sloka’s breath on her chest during the cardiac examination. She also did not mention this aspect of the prior complaint in-chief. This allegation arose for the first time in cross-examination. Ms. C.S.-L. agreed that a disclosure of a detail like this would be memorable. And, yet this detail did not surface until Ms. C.S.-L. was in cross-examination. This causes me concern, because I have concluded that Ms. K.L. did not explicitly make this allegation until she testified. Ms. K.L.’s testimony occurred the day before her mother first mentioned this detail. I conclude that mother and daughter most likely discussed daughter’s evidence. I draw this conclusion despite mother’s assertions to the contrary. It simply defies belief that both would coincidentally disclose this detail for the first time when they hit the witness box a day apart from each other. Ms. K.L.’s credibility suffers from my conclusion that she discussed a notable material fact with her mother in defiance of a non-communication order. There exists, in my view, the very real prospect of collusion or tainting here. That concern clouds the evidence of both Ms. K.L. and Ms. C.S.-L..

2140I have other concerns about the amplification of Ms. K.L.’s evidence over time. In cross-examination Ms. K.L. alleged for the first time that she believed that Dr. Sloka was staring at her breasts during the cardiac examination. She did not make this allegation in her police statement, despite her testimony that the exposure and staring were her two fundamental concerns. She also did not make this allegation during her evidence in-chief. This memorable feature was not remembered at two critical junctures in this case. Consequently, I concerned that Ms. K.L.’s negative perceptions of the examination have grown over time.

2141A similar amplification can be seen in Ms. K.L.’s description of contact between Dr. Sloka’s hand and her chest during the cardiac examination. In-chief, she described the contact as “grazing.” In cross-examination, she testified that Dr. Sloka rested his hand on her chest. In saying so, she testified that it did not feel like “grazing.” After further cross-examination, she then agreed that she could not recall the mechanics of the contact but still maintained that it did not feel like an incidental graze. This shifting perception again causes me concerns about Ms. K.L.’s reliability and credibility. It suggests a confirmation bias, where she searches her memory for details to support her nefarious conclusions.

2142Yet another amplification is revealed in Ms. K.L.’s evidence about her switch from Dr. Gebeyehu to a female family doctor. She testified that her experience with Dr. Sloka was a contributing factor in making that switch. She had become uncomfortable with male doctors after her experience with Dr. Sloka. However, in her police statement, she told police that her mother had asked to switch her to a female family doctor and that she did not think her experience with Dr. Sloka necessarily played a role: “I don’t know if we made the specific connection.”

2143In another context, Ms. K.L.’s amplified accounts might hold a lesser significance. However, context is important here. At its height, her allegation involves a cardiac examination where the doctor got a little too close, lingered a little too long, may have rested the heal of his hand more than was necessary, and looked at her as he examined her. In short, the allegations do not constitute a blatant and extreme departure from a proper cardiac examination. With the passage of time, and after the exposure to media coverage of other allegations, certain aspects of Ms. K.L.’s recollection appear to have become amplified. On at least one occasion, Ms. K.L. shared an amplification with her mother, despite the existence of a witness exclusion order. I would note also that Ms. K.L. spoke with her mother after reading the second news article. They discussed their recollection of her experience with Dr. Sloka. Ms. K.L.’s testified that she and her mother both concluded that the claims of inappropriate draping resembled her own experience. Her account of this discussion raises a serious concern that each influenced the other’s memory of the circumstances of the examination as they shared their recollections. Her account of this discussion also raises the serious concern that a review of the media allegations influenced both of their perceptions of the examination.

2144The Crown asks me to take into consideration that Ms. K.L. was a 17-year-old child at the time of the examination of concern. The Supreme Court has recognized that the evidence of younger children suffers from inherent frailties attributable to the mental immaturity of the child, namely, frailties in the capacity to observe, the capacity to recollect, the capacity to understand questions and frame intelligent answers, and frailties in their moral responsibility. However, any assessment must be contextual. With respect to inconsistencies uncovered during a child witness’ evidence, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events” about which they testify. A 17-year-old may be a child, legally speaking, but there is a vast difference between a 17-year-old and a 7-year-old. A 17-year-old is trusted to drive. A 17-year-old can be trusted with paid employment. A 17-year-old can complete high school and enroll in university. I am skeptical of the proposition that Ms. K.L. had any kind if significantly diminished capacity to observe, recollect, or perceive events as they were occurring. The tenor of Ms. K.L.’s evidence suggests she would not admit of such frailties. I am also highly skeptical of the proposition that she had a diminished capacity to communicate her concerns about the events as they occurred. On her evidence, in the aftermath of the appointment, she communicated with precision the concerning aspects of the appointment to her mother. While I accept that the passage of time may have may have played a role in her conflating the first appointment with the second one, it is her inflexibility as an adult witness that raises concern on this point. Moreover, much of the areas of concern I have thus far identified involve the amplification and tainting of her evidence as an adult, inconsistencies between different accounts given while an adult, tainting from the media while she was an adult, and collusion while she was an adult.

2145I am troubled by Ms. C.S.-L.’s evidence as well.

2146As noted, I have concluded that there exists compelling evidence which leads me to conclude that Ms. K.L. spoke to her mother about her own evidence and that, as a result, Ms. C.S.-L. for the first time at trial alleged that Ms. K.L. had previously reported feeling Dr. Sloka’s breath on her skin. There exists the compelling evidence of either collusion or tainting between mother and daughter.

2147Further concern about collusion or tainting arose in the cross-examination of Ms. C.S.-L. about the first appointment. In response to a defence question about whether the appointment started on time, Ms. C.S.-L. responded by insisting she and her daughter were on time. She was not asked about her punctuality. The way in which she addressed this subject suggested she was ready to engage on the subject. Her daughter had been questioned on the issue the day before. Her daughter had fielded questions on their punctuality. The question posed by counsel allowed for the possibility that Dr. Sloka was late. Defence counsel did not explicitly put her punctuality in issue. That she was ready to engage and did immediately engage on her own punctuality suggests she and her daughter discussed this issue following her daughter’s evidence. This evidence gives rise to a very real concern about collusion or tainting. That concern clouds the evidence of both Ms. K.L. and Ms. C.S.-L..

2148Also, while Ms. K.L. readily acknowledged discussing with Ms. C.S.-L. their recollections of the appointment of concern after reading the second media article, Ms. C.S.-L. denied any such discussion. Ms. C.S.-L. acknowledged that the police told her not to discuss her memories with her daughter. I infer she believed such discussions might be viewed negatively. Having heard her daughter candidly admit such discussions, I reject Ms. C.S.-L.’s denials to the contrary. Her credibility suffers as a result.

2149I am also skeptical of Ms. C.S.-L.’s claim that Dr. Sloka did not allow her daughter privacy to change. In support of her stance, she testified that her daughter told her that Dr. Sloka remained in the room while she changed. Ms. K.L., on the other hand, accepted the possibility that he did allow her privacy to change. She testified that she was never concerned about Dr. Sloka watching her change. There being no cause for concern, she had no concern to report to her mother. Given the entirety of Ms. K.L.’s evidence, I infer her to have effectively conceded that she received privacy to change, even if she lacked a present recollection. The conflict between mother and daughter on this subject negatively impacts Ms. C.S.-L.’s credibility and reliability.

2150Ms. C.S.-L.’s letter in which she bestowed effusive praise upon Dr. Sloka also causes me concern about the credibility and reliability of both Ms. C.S.-L. and her daughter. Recall that mother and daughter both effectively take the position that daughter complained immediately about Dr. Sloka and that mother, in response, wanted to immediately confront Dr. Sloka about what she perceived to be inappropriate and unprofessional behaviour. On their account, they were guarded for all future appointments, because of their negative impression of Dr. Sloka after the first appointment. They purportedly formulated a plan in which they resolved that Ms. K.L. would never be alone in the examination room with Dr. Sloka again. In her letter, though, Ms. C.S.-L. extoled Dr. Sloka’s “professional, warm and attentive demeanour, encouraging words, and profound empathy.” There is nothing professional about sexually predating upon a seventeen-year-old patient. There is nothing empathetic about it either. In my view, that letter cannot truthfully co-exist with Ms. C.S.-L.’s alleged perception of her daughter’s first appointment. Ms. C.S.-L. attempted to explain that she wrote this letter in her typical writing style. That claim was belied by an earlier letter she wrote to Dr. Sloka. In giving this explanation, she simply dug a deeper hole in which her credibility and reliability could sink. She also testified that the attributes, for which she effusively expressed gratitude, and his alleged predatory behaviour could both be true – implying that she was prepared to both thank and praise her daughter’s predator. I disbelieve her. Predators are not professional. Predators are not empathetic. I conclude that she thanked Dr. Sloka for those attributes because she did not, at the time she wrote the letter, believe that Dr. Sloka had been sexually inappropriate with her daughter.

2151I conclude that Ms. C.S.-L. did not believe Dr. Sloka had behaved improperly because her daughter had made no complaint of impropriety. Consequently, I disbelieve the claims of both Ms. C.S.-L. and Ms. K.L. that Ms. K.L. made a contemporaneous complaint. I further conclude that Ms. K.L. never made a complaint because she did not believe at the time that anything untoward had occurred.

2152While Ms. K.L. didn’t write the letter, she did testify that she believed that contents of the letter could be true and that Dr. Sloka could still have done the things alleged. Both could be true, she said. Interestingly, her mother subsequently gave nearly precisely the same rationalization. Of note, Ms. K.L. acknowledged reviewing her mother’s letter while preparing for trial. She had time to formulate a response to it. The similarity of their response to this letter suggests collusion.

2153I have admitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this trial. However, having considered Dr. Sloka’s compelling evidence against the flawed evidence tendered on behalf of the Crown, I conclude that Dr. Sloka has refuted any possible inference of a sexual motive. I am satisfied that Dr. Sloka possessed valid medical motives for conducting the neurological and cardiac examinations. Accordingly, the cross-count similar fact evidence does not assist in rehabilitating the deeply flawed evidence of Ms. K.L. and her mother.

2154Having considered all the above frailties in the evidence of Ms. K.L. and Ms. C.S.-L. and having considered the significant possibility of either the cross-tainting of their evidence or outright collusion, their evidence, even standing alone, leaves me with a reasonable doubt. Simply put, I reject the evidence of both Ms. K.L. and her mother.

2155I will now assess Dr. Sloka’s evidence in more detail.

2156Dr. Sloka testified that he conducted cardiac examinations as part of his standard assessment of concussion patients. He also conducted cardiac examinations when prescribing nortriptyline. As noted, I accept as sincere his stated justifications for conducting a cardiac examination.

2157I am cognizant of Dr. Bril’s evidence that she was unaware of any literature advising cardiac examinations in concussion patients. However, her evidence on the subject was cursory. Also, as stated in the general assessment of Dr. Bril’s evidence, I place very little weight on Dr. Bril’s evidence regarding the neurological reasonableness of cardiac examinations. Further, the Crown’s challenge to Dr. Sloka’s cardiac examination centred on his evidence concerning the prescription of nortriptyline, not on his use of cardiac examinations in the assessment of concussion patients.

2158The Crown also challenges Dr. Sloka’s assertion that he deferred examination until the second appointment. Their challenge rests on several grounds.

2159The Crown argues that when the body of Dr. Sloka’s consultation letters from all the patients in this case are considered as a whole, there exists enough errors to support the conclusion that Dr. Sloka’s consultation letters are unreliable. Accordingly, the Crown urges me to conclude that I cannot rely upon Dr. Sloka’s documentation about deferring an examination at the first appointment. I reject that submission. While I acknowledge that sporadic typographical/dictation errors exist and other sporadic errors may exist, the consultation letters are, on the whole, accurate. With few exceptions, complainants routinely acknowledged the accuracy of the contents of the medical histories reported in the consultation letters and the accuracy of Dr. Sloka’s purported impressions and the accuracy of the prescriptions and testing he purportedly ordered. Indeed, when it has suited the Crown’s purposes, the Crown has relied upon the content of Dr. Sloka’s consultation letters.

2160The Crown also argues that Dr. Sloka would not have increased Ms. K.L.’s nortriptyline dosage if he deferred the cardiac examination. I reject that submission. Dr. Sloka provided a reasoned explanation for the deferral. I see no reason to reject it. First, he had documented that Ms. K.L. and her mother were late for the appointment. Second, he noted that Ms. K.L. was already tolerating a 10mg dosage. Third, although he incrementally increased the dosage to 30 mg, this new dosage was still a small dose. Fourth, while not ideal, he did not consider a two-month delay to be unreasonable. Fifth, he nevertheless felt obliged to perform his own independent cardiac examination in accordance with his approach to concussion patients and patients taking nortriptyline. His explanation for both the deferral and the need for a cardiac examination was reasoned, logical, and carefully considered. I accept that he subjectively believed in the reasonableness of his approach. I accept that the examinations were performed for a valid medical purpose and at Ms. K.L.’s second appointment.

2161The Crown theory requires that I conclude that Dr. Sloka fabricated both the deferral of examinations and the first appointment and the conduct of examinations at the second. I reject as entirely far-fetched and non-sensical the theory that Dr. Sloka fabricated in his first consultation letter the deferral of the examinations. It makes no sense to hide the existence of the examinations at one appointment only to foreshadow and subsequently admit the existence of those same examinations at another.

2162I also reject as speculative the Crown’s submission that, because Ms. K.L. and her mother were only “a little late”, Dr. Sloka still had time to perform the examinations on the first appointment. I would note here that both Dr. Sloka and Dr. Bril often spoke in a circumlocutory, arcane, and sometimes outright oblique manner. I lost track of the number of times I paused to seek clarity and simplicity in their communications. In my experience, they have good company in the medical profession. I am tempted to think that medical schools train doctors to speak this way. Here, I conclude that Dr. Sloka was simply being polite when noting that Ms. K.L. was a “little” late. The most plausible explanation for the contemporaneous report of a deferral is that Dr. Sloka in fact deferred the examination. I accept as true Dr. Sloka’s report of a deferral.

2163Dr. Sloka denied any touching other than incidental contact with Ms. K.L.’s chest during his cardiac examination. He also denied staring at Ms. K.L.’s chest. He noted that, to focus his attention on heart sounds, he closes his eyes when performing cardiac examinations. He also denied being any closer than one foot from Ms. K.L.’s chest. I note in passing that Ms. K.L. testified about Dr. Sloka making mention of a mole on her chest. Dr. Sloka did not recall this mole and did not document it. He explained that if it was unremarkable, he would not report on it. He did document some unusual moles on her back though, which Ms. K.L. did not recall. As for the chest mole, Ms. K.L. never alleged that Dr. Sloka touched the mole or used it as an excuse to touch her chest. In my view, the subject of the moles has next to no probative value on the issue of whether Dr. Sloka stared at Ms. K.L.’s breasts or got too close to her chest during a cardiac examination. Ultimately, in my view, cross-examination did nothing to unseat Dr. Sloka’s denial of staring at or getting too close to Ms. K.L.’s chest.

2164Dr. Sloka also denied instructing Ms. K.L. to wear her gown open to the front. He invariably instructed his patients to wear their gowns opened at the back. As noted above, I have concerns about the credibility of Ms. K.L.’s evidence about the way she wore the gown and any instructions given by Dr. Sloka in that regard. When the evidence at trial is considered as a whole, I do not see a compelling pattern in which patients consistently allege Dr. Sloka instructed them to wear the gown open to the front. Indeed, such patients constitute a minority of Dr. Sloka’s patients. The more prevalent pattern is the one consistent with Dr. Sloka’s evidence. I fail to see how the similarity amongst a minority of patients can be chalked up to anything other than coincidence.

2165Dr. Sloka insisted he identified and explained the examinations he wished to perform. Further, he testified that he proposed, and she consented to, the examinations while in his office. The Crown suggests that Ms. K.L. testified to the contrary, that she was not told the nature of the examinations being proposed, nor the reason for them. The evidence does not support this contention. Ms. K.L. acknowledged that she did not remember whether Dr. Sloka spoke about the examinations being proposed to her. She had no memory of what transpired in Dr. Sloka’s office before going into the examination room. She agreed it was possible that Dr. Sloka explained that the purpose of the proposed examinations involved a search for connections between her brain, heart, and lungs to her presenting symptoms. The Crown did not suggest in their cross-examination of Dr. Sloka that Dr. Sloka failed to explain the nature of and reason for the proposed examinations.

2166On Dr. Sloka’s evidence, only the left breast was exposed during the cardiac examination, in accordance with his standard practice. This assertion did not falter during cross-examination.

2167I have paid careful attention to the evidence of Dr. Sloka. Contrary to the Crown’s submission, I do not believe Dr. Sloka’s evidence suffered from significant frailties or was undermined in any significant way by cross-examination or the evidence of Dr. Bril.

2168Having considered all the evidence and having rejected the evidence of Ms. K.L. and her mother, I accept that Dr. Sloka possessed a valid medical motive for conducting the examinations he proposed. I accept that Dr. Sloka performed them in accordance with his training and standard methods. I accept his denial of any contact with Ms. K.L.’s chest other than incidental contact during a cardiac examination.

2169I reject the notion that any aspect of Dr. Sloka’s examinations of Ms. K.L. was sexual in nature. Instead, I accept that the examinations were medical in nature. I conclude that Ms. K.L. consented to these medical examinations.

2170There was no sexual assault. Dr. Sloka will be acquitted on this count.

ii. S.M. (Count 61)

A Summary of Ms. S.M.’s Complaint and Dr. Sloka’s Response to It

2171Ms. S.M. was a concussion and migraine patient. She had previously been under the care of a different neurologist in Ottawa. She alleged that, at her first appointment with Dr. Sloka, he instructed her to remove all her clothing, but he did not provide her with a gown or any draping. Ms. S.M. did not cooperate and instead only removed her blouse. According to Ms. S.M., Dr. Sloka used a stethoscope to listen to her back using one hand and simultaneously he reached from behind and fondled each of her breasts with the other hand.

2172Dr. Sloka could not remember whether he performed a cardiac examination. He did not chart doing one, either, but he agreed that he may have done so. Some of the information charted suggested that possibility: in his consultation letter, he charted her heart rate and blood pressure and wrote, ““I am hoping you keep an eye on her blood pressure and cardiac status going forward.” Cardiac examinations were part of his standard approach to headache patients. He considered one to be justified, he just did not know if he did one. He denied fondling Ms. S.M.’s breasts. He also denied asking her to undress completely. If she removed her blouse for a cardiac examination, she would have worn a standard hospital gown.

The Circumstances of the Referral

2173Before I proceed further, I will make an observation. Given the content and quality of Ms. S.M.’s evidence, it is difficult to summarize it without also highlighting its manifest frailties. Those frailties commence with her evidence regarding the circumstances of her referral. However, they do not end there.

2174Ms. S.M. was 28 years old when she obtained a referral to Dr. Sloka for an assessment and treatment of her concussion and related symptoms. She was 33 years old when she testified.

2175Ms. S.M. had previously been under the care of a neurologist in Ottawa, Dr. Ho, after suffering a concussion while living in Ottawa. Ms. S.M. moved to the Waterloo Region in February of 2016. According to Ms. S.M.’s memory, Dr. Ho referred her to Dr. Mandalfino to assist with Ms. S.M.’s continuing neurological care. Ms. S.M. suffered from headaches, migraines, dizziness, and loss of balance. Ms. S.M. believed she saw Dr. Mandalfino in April or May of 2016. Whatever the date, Ms. S.M. remembered visiting Dr. Mandalfino before her initial appointment with Dr. Sloka.

2176Ms. S.M. seems to have also believed that Dr. Ho had arranged her referral to Dr. Sloka; however, her memory on this point was uncertain. Medical records disclosed that a GRH ER doctor referred Ms. S.M. to Dr. Sloka when Ms. S.M. attended at the ER on May 24, 2016. According to the history contained in Dr. Sloka’s consultation letter, she reported having suffered another blow to her head on the Victoria Day weekend in 2016, which exacerbated her pre-existing symptoms. Ms. S.M. accepted that she obtained the referral to Dr. Sloka from the ER. She also agreed that the ER record discloses no mention by her of being under the care of Dr. Mandalfino already. She also agreed that it would make perfect sense for her to tell ER doctor that she already been referred to Dr. Mandalfino.

2177The alleged referral to Dr. Mandalfino is perplexing. It calls into question the necessity to make a referral to Dr. Sloka at all. If Ms. S.M. was already a patient of Dr. Mandalfino, why would the ER refer her to Dr. Sloka? If Ms. S.M. had a pending appointment with Dr. Mandalfino, why would she accept a later appointment with Dr. Sloka? If Dr. Sloka committed a flagrant sexual assault on Ms. S.M. on her very first visit, if Ms. S.M. clearly understood herself to be a victim of sexual assault, and if Ms. S.M. was reluctant to return to see Dr. Sloka, why did she not eschew future appointments with Dr. Sloka and instead continue to obtain treatment by Dr. Mandalfino, a female neurologist? Unfortunately, as will be discussed in due course, the evidence does not yield a satisfactory answer to these questions.

2178Ms. S.M. could not assist with explaining why the GRH ER doctor made a referral to Dr. Sloka if Dr. Mandalfino had already accepted Ms. S.M. as a patient. Likewise, Ms. S.M. could not explain why, if she had already seen Dr. Mandalfino, she did not make contact with Dr. Mandalfino after her trip to the ER on May 24th, 2016. Similarly, Ms. S.M. could not explain why, if she had a pending appointment with Dr. Mandalfino following her ER visit, she wouldn’t simply tell the ER doctor that she already had an appointment with a neurologist booked. Ms. S.M.’s memory about these issues was lacking and her evidence too vague.

2179Unfortunately, the Crown did not call Dr. Mandalfino as a witness, nor did it tender any medical records made by Dr. Mandalfino that pertain to the treatment that Ms. S.M. allegedly received from Dr. Mandalfino. Similarly, the Crown did not tender Ms. S.M.’s medical records from the office of her family doctor, Dr. Htun, that might shed light on the alleged referral to Dr. Mandalfino.

2180The Crown did, however, tender Dr. Sloka’s medical records for Ms. S.M. Those medical records demonstrate that Dr. Ho had actually tried, independent of any referral made by the GRH ER, to refer Ms. S.M. to Dr. Sloka. Dr. Ho sent a referral letter on May 28, 2016. Dr. Sloka’s office declined Dr. Ho’s referral in a responding letter on June 9, 2016. The letter indicated that Dr. Sloka’s practice was busy with local ER referrals and referrals from university student clinics. To avoid excessive wait times, Dr. Sloka was not able to accept a community-based referral like the one being made by Dr. Ho.

2181It would appear, then, that Ms. S.M. obtained two nearly simultaneous referrals to Dr. Sloka. One succeeded and the other didn’t. Meanwhile, according to Ms. S.M., she also obtained a referral to a different neurologist, Dr. Mandalfino, and saw that neurologist before ever seeing Dr. Sloka. While Ms. S.M. initially thought Dr. Ho had made the referral to Dr. Mandalfino, she was ultimately uncertain as to whether her family doctor or Dr. Ho made the referral. Regardless, in my view, Dr. Ho’s referral letter to Dr. Sloka on May 28, 2016, and Dr. Sloka’s response on June 9, 2016, overwhelmingly refute Ms. S.M.’s contention that she saw Dr. Mandalfino before ever seeing Dr. Sloka. This conclusion has important implications, because Ms. S.M. weaves the alleged appointment with Dr. Mandalfino into her narrative about the appointment of concern with Dr. Sloka.

2182While Ms. S.M.’s narrative about the timing of her referral to Dr. Mandalfino appears manifestly dubious, Ms. S.M. nevertheless professed to have fairly comprehensive memories of her visit to Dr. Mandalfino’s office. According to Ms. S.M., she remembered providing Dr. Mandalfino a detailed history during her one and only consultation. Ms. S.M. also remembered Dr. Mandalfino performing standard neurological tests upon her.

2183Other aspects of Ms. S.M.’s memory of her treatment by Dr. Mandalfino were cloudier. For instance, Ms. S.M. could not recall whether they discussed a treatment plan, nor could she remember whether they discussed the possibility of Ms. S.M. resuming her use of propranolol, a drug previously prescribed with success by Dr. Ho. While she did not believe she scheduled any follow up appointment with Dr. Mandalfino, she could not recall whether they discussed Dr. Mandalfino’s willingness to see her again.

2184In any event, Ms. S.M. ultimately attended for six appointments with Dr. Sloka, the first occurring on July 15, 2016. After Ms. S.M.’s first visit with Dr. Sloka, she attended for five additional appointments, only two of which were booked by Dr. Sloka.

The Evidence of Ms. S.M.

2185Ms. S.M. alleged that Dr. Sloka sexually assaulted her once, on her first visit, which occurred on July 15, 2016.

2186To Ms. S.M.’s recollection, the initial visit began with a consultation in Dr. Sloka’s office. According to Ms. S.M., while providing her personal and professional history, she told Dr. Sloka that she had seen Dr. Mandalfino already. She testified that Dr. Sloka responded by telling her that she would not be seeing Dr. Mandalfino anymore and that she was his patient from that point forward. On her evidence, she believed that she had no option but to see Dr. Sloka for any future neurological consultations and treatment.

2187According to Ms. S.M., after Dr. Sloka took her history, he told her he wanted to perform an examination. Although she could not remember specifics, she could not dispute the notion that Dr. Sloka told her that he wanted to perform some basic neurological examinations to ascertain any connections between her brain and her symptoms. Similarly, she could not dispute the notion that Dr. Sloka told her that he wanted to listen to her heart to ascertain any connections between her heart and her symptoms.

2188Ms. S.M. testified that Dr. Sloka told her to remove all her clothing, which she understood to be an instruction to get completely naked. Ms. S.M. also testified that Dr. Sloka did not provide a gown to her. She denied the suggestion that Dr. Sloka only told her to remove her top and bra. She further denied that Dr. Sloka told her to put on a gown. Dr. Sloka left the examination room to allow her privacy to change. Ms. S.M. was uncomfortable with removing all her clothing and only removed her top. According to Ms. S.M., when Dr. Sloka returned to the examination room, he commented on her failure to remove all her clothing. He appeared upset. He then quickly said, “It’s fine. It’s fine. It’s okay,” before proceeding with the examination.

2189Ms. S.M. testified that, as she sat on the exam bed, Dr. Sloka listened to her back with a stethoscope. While he held the stethoscope with one hand and listened to her back, he rubbed both breasts with his other hand. He rubbed each breast for about 15 seconds, his hand over the top of her bra as he did so. According to Ms. S.M., Dr. Sloka then tested her knee reflexes using a reflex hammer. He then tested her hand-eye coordination by having her move her fingertip from her nose out to his upheld finger. These were the only aspects of the examination that Ms. S.M. could specifically remember.

2190The defence suggested to Ms. S.M. that the examination began with Dr. Sloka taking her blood pressure and pulse. She could not remember but nor could she dispute this possibility. In her memory, the exam began with Dr. Sloka performing the stethoscope examination on her back with its simultaneous breast fondling. She did not remember but could not dispute that Dr. Sloka used an ophthalmoscope to examine her eyes and mouth. Similarly, she could not remember but could not dispute that Dr. Sloka touched her face while examining her cranial nerves. She also could not remember him putting his hand on jaw and asking her to push. In addition, she could not remember but could not dispute that Dr. Sloka touched her arms and legs to test for her ability to sense his touch. However, she accepted that she previously reported to the police that “he was like feeling my arms and my legs… and then he was testing my reflexes,” a statement which suggests she previously remembered Dr. Sloka testing her ability to sense touch on her arms and legs. Ms. S.M. could not remember, nor could she dispute that Dr. Sloka performed strength tests on her arms and legs. She also did not remember Dr. Sloka running a metal object along the bottom of her feet.

2191When the examination ended, Dr. Sloka returned to his office to allow Ms. S.M. to get dressed again. When Ms. S.M. returned to the office, they had a discussion. In that discussion, Dr. Sloka prescribed her propranolol, which she had previously used with some success when she lived in Ottawa. They also discussed making another follow up appointment in three months. However, Ms. S.M. did not remember how that follow up appointment got booked.

2192Ms. S.M. testified that she knew at the time that alleged breast fondling was not a valid medical procedure. She also hesitantly agreed that she knew this fondling constituted sexual abuse. She described feeling uncomfortable about returning to see Dr. Sloka. She testified that she asked her mother to come with her to the next appointment, but her mother rebuffed that request. The Crown did not call her mother to provide testimony on this point. Despite this professed discomfort about readily apparent sexual abuse, Ms. S.M. could not recall making any effort to reconnect with Dr. Mandalfino following her first appointment with Dr. Sloka.

2193As noted, Ms. S.M. testified that she continued to see Dr. Sloka after being sexually assaulted on the first visit because she believed that he had assumed a monopoly over her neurological treatment, and that her family doctor had informed her that no other neurologist would take her case. This proposition does not sit comfortably with much of the other evidence, though. To begin with, Ms. S.M. was unable to satisfactorily explain why she never saw Dr. Mandalfino in follow up. On her evidence, the initial visit with Mandalfino occurred after moving back to Waterloo Region and before the first appointment with Dr. Sloka. She was unable to remember if a follow up appointment had been contemplated at the conclusion of her initial appointment with Dr. Mandalfino, or, if one was contemplated, the reason it was not booked. Indeed, her evidence fails to explain why the appointment with Dr. Sloka was even necessary, given that she had already seen Dr. Mandalfino. She further failed to adequately explain or recall why she simply didn’t return to Dr. Mandalfino, given her purported awareness of her own sexual victimization and her purported ongoing reluctance to return to Dr. Sloka’s care. She claimed that her family doctor tried unsuccessfully to find another neurologist willing to accept a referral, but this claim seems at odds with the proposition that Mandalfino had not only accepted a referral but had already seen Ms. S.M. once. At no time did Ms. S.M. suggest that she tried to directly book a follow up with Dr. Mandalfino but was rebuffed by Dr. Mandalfino. Given her purportedly clear memory of her assault and her subsequent reservations about returning to Dr. Sloka, one might expect her to have a correspondingly clear memory of the efforts she made to see Dr. Mandalfino and the explanations she purportedly received about Dr. Mandalfino’s unavailability. Yet, on an issue of considerable importance to her she professes little to no memory.

2194Dr. Sloka’s alleged hegemony over her neurological care is also undercut by the evidence of S.M.’s treatment history with Dr. Sloka. The consultation reports disclose that he did not, as she implied, schedule a series of five follow up appointments following the first appointment, thereby ensnaring her in a continuous web of care. Rather, her return visits were, as often as not, the product of either subsequent referrals by her family doctor or by appointments apparently scheduled on her own initiative.

2195Following the first visit on July 15th, Ms. S.M. next saw Dr. Sloka for a scheduled follow up appointment on October 17, 2016. At that juncture, Dr. Sloka did not suggest or schedule any further course of treatment. Her course of treatment by Dr. Sloka had effectively ended at that point, subject to her seeking additional assistance. However, after Ms. S.M. suffered another injury in 2017, her family doctor once again referred her to Dr. Sloka. That second course of treatment began on March 8, 2017. Once again, Dr. Sloka did not book any follow up appointment but left that option available to Ms. S.M., should she need it. About 11 months transpired before Ms. S.M. met with Dr. Sloka again, on February 7, 2018. The records do not suggest that Dr. Sloka scheduled this appointment, but Ms. S.M. could not remember arranging it on her own initiative, either. In any event, the records disclose that Dr. Sloka did not book a follow up appointment but rather left the option of a follow up open to Ms. S.M. in the event a need arose.

2196Following a car accident, Ms. S.M. once again obtained an appointment with Dr. Sloka, on September 6, 2018. At the conclusion of this appointment, Dr. Sloka scheduled a follow up for November 16, 2018.

2197To sum up, of the 5 appointments Ms. S.M. attended after the initial appointment in which the alleged sexual assault occurred, Dr. Sloka booked only two of them.

2198While Ms. S.M. proved herself capable of contacting Dr. Sloka to arrange appointments in the 2 years following an incident of alleged sexual abuse which allegedly caused her significant discomfort, she could not point to or recall a single instance of an effort to resume treatment with Dr. Mandalfino – despite her agreement that it would make sense to do so.

2199Ms. S.M. did not tell anyone about the alleged sexual abuse until after reading an article about Dr. Sloka on May 1, 2019. According to her memory, she read an online article from The Record that day. She recalled that the article indicated that Dr. Sloka lost his license to practice medicine, because of allegations that he sexually abused patients. She also specifically recalled that the article mentioned patients being asked to completely undress for medical examinations. The article in question also included allegations of inadequate draping and breast touching. Apart from those facts, she could not recall much more about the contents of the article. According to Ms. S.M., a lightbulb went off in her head and she realized that she needed to tell someone about what had happened to her. The article provided the contact information for the CPSO; so, she decided to contact the CPSO and recount her experience to them. She called the same day she read the article, May 1st.

2200Upon calling the CPSO, Ms. S.M. spoke to the investigator, Pam Greenberg. Defence counsel presented an excerpt of Ms. Greenberg’s memo from that call: “Ms. S.M. clarified that she was not sexually assaulted by Dr. Sloka though he did ask her to remove all her clothes. This happened in May or June 2016 and she continued to see him consistently until now.” Ms. S.M. agreed that Ms. Greenberg accurately recorded what Ms. S.M. had relayed to her. She had denied to Ms. Greenberg that Dr. Sloka had sexually assaulted her. Ms. S.M. also testified that at the time of the making of that declaration to Ms. Greenberg that she knew the opposite to be true. Knowingly stating an untruth is the definition of a lie. However, Ms. S.M. was reluctant to admit lying to Ms. Greenberg. Rather than admit the lie, she repeatedly offered this explanation: “I was not ready to say I was sexually assaulted.” Eventually, though, Ms. S.M. conceded the inevitable: if she knew she had been sexually abused, then she knowingly told Ms. Greenberg a falsehood. Ms. S.M.’s reluctance to admit the obvious causes me significant concerns about her credibility. Her prior inconsistent statement to Ms. Greenberg also causes me significant concerns about the reliability and credibility of her current claim of physical sexual abuse.

2201Ms. S.M. agreed that Pam Greenberg told her that the CPSO investigation had concluded with the revocation of Dr. Sloka’s license. Pam Greenberg told her that there was nothing further the CPSO could do about Ms. S.M.’s concerns. She also told Ms. S.M. that Ms. S.M. could contact the WRPS if she so desired. Ms. S.M. agreed that she told Ms. Greenberg that she did not want to contact the police.

2202Seven days after the phone conversation with Pam Greenberg, though, Ms. S.M. changed her mind. She called the police on May 8, 2019, the same day as subsequent media coverage of Dr. Sloka occurred. On that date, CTV released an article entitled, “‘It’s okay to come forward’: neurologist had more than 20 complaints against him, docs show.” Ms. S.M. did not recall reading this but agreed she possibly did. Ms. S.M. could not point to or recall any particular turn of events that caused her to change her mind and call police.

2203Ms. S.M. could not remember whether, at the time she first telephoned the police, she had decided to inform the police of the sexual-touching component of her allegations. I find it suspicious that Ms. S.M. could not recall her mindset at a point in time when she made such a momentous decision and completely reversed a stance that she took 7 days previously.

2204Ultimately, Ms. S.M. partook in a video-taped interview conducted by Detective Gilker. During that interview, Detective Gilker asked, “What has brought you here today?” Ms. S.M. responded, “I think knowing that it wasn’t just me and that maybe what happened wasn’t right. I even came in thinking that maybe ... I don’t know…over exaggerating… making this up or whatever…took a long time to admit to myself that that’s what even happened….” Defense counsel suggested that, leading up to the interview, she was not sure what happened and not sure whether what happened was not right. In response, Ms. S.M. stated, “I’m not sure.” Defense counsel suggested that Ms. S.M. only started to think that what occurred wasn’t right after she read the media about Dr. Sloka. Ms. S.M. responded, “I’m not sure.” When defence counsel asked if, before reading any media about Dr. Sloka, Ms. S.M. had doubts about the examination being “not right,” Ms. S.M. replied, “I don’t remember.” When defence counsel suggested that, prior to reading the media, she was not sure if something improper happened, she replied, “I don’t remember.”

2205Ultimately, and contrary to her statement to the CPSO, Ms. S.M. alleged breast touching in her interview with police.

The Evidence of Dr. Bril

2206Dr. Bril testified in-chief that there was no reason to listen to Ms. S.M.’s heart.

2207In support of her opinion, Dr. Bril rather glibly opined in her evidence in-chief that the heart does not cause post-concussion syndrome. Her in-chief evidence did not touch on the more detailed and nuanced justifications Dr. Sloka provided regarding his general approach towards concussion and headache patients.

2208In cross-examination, Dr. Bril allowed that a cardiac examination might have been neurologically reasonable, given Ms. S.M.’s reported difficulty during headaches. She conceded that, perhaps, she did not take note of speech difficulties during her evidence in-chief regarding Ms. S.M..

2209The above noted shift in Dr. Bril’s opinion on Ms. S.M. did not reflect well upon Dr. Bril.

2210Dr. Bril also opined that the alleged breast groping was neurologically unreasonable and totally inappropriate. Dr. Sloka completely agreed with this opinion.

2211Dr. Bril’s evidence therefore offers no probative evidence on any material issue concerning the allegations of Ms. S.M.

The Evidence of Dr. Sloka

2212Dr. Sloka had virtually no independent memory of Ms. S.M..

2213He relied upon the content of his reporting letters for Ms. S.M. for the truth of their contents and the rest of Ms. S.M.’s chart for context.

2214In taking Ms. S.M.’s history, Dr. Sloka noted amongst other things, the following post-concussion symptoms: headaches, dizziness, difficulty seeing, nausea, and difficulty speaking.

2215Dr. Sloka could not recall if he performed a cardiac examination on Ms. S.M. His reporting letter from the first appointment did not mention whether he performed one. He did record, though, that he measured Ms. S.M.’s blood pressure and pulse rate. Her blood pressure was somewhat elevated. He observed that, in a subsequent reporting letter he told Ms. S.M.’s doctor, “I am hoping you keep an eye on her blood pressure and cardiac status going forward.” In his mind, this passage gave rise to the possibility that he did, in fact, perform a cardiac exam but failed to chart it and could no longer remember it.

2216Dr. Sloka also acknowledged that his standard approach towards concussion patients, headache patients, and dizziness patients would involve performing a cardiac examination. He also agreed that his prescription for propranolol had cardiac implications, which would indicate the need for a cardiac examination. Lastly, he agreed that Ms. S.M.’s elevated blood pressure might provide him a reason to listen to Ms. S.M.’s heart. Accordingly, he believed that a cardiac examination would have been justified. As noted already, Dr. Bril did not ultimately dispute the reasonableness of a cardiac examination.

2217When questioned on the absence of a record of the cardiac examination, Dr. Sloka speculated that he may not have performed one “for whatever reason.” Amongst his speculations was the possibility that the patient declined one. Despite his various speculations, Dr. Sloka never overtly asserted that he did not perform a cardiac examination. At most, he at one point inferred from the absence of a record that he may not have performed one: “it doesn’t look like I did based on the notes.” Ultimately, though, he agreed that one may have occurred. Due to his lack of memory, he was simply unsure.

2218Dr. Sloka testified that if he did conduct a cardiac examination, he would have done so in accordance with his standard practice. Ms. S.M.’s description of sitting on the exam table with her legs dangling over the side of the table was not in accordance with Dr. Sloka’s standard practice.

2219Dr. Sloka also denied depriving Ms. S.M. of a gown. If he conducted a cardiac examination, he would have required her to remove her top and bra, but he would also have provided her a gown.

2220Dr. Sloka denied that he touched Ms. S.M.’s breasts in the manner she described. Any contact with her breasts would only have occurred incidentally to the conduct of a cardiac examination.

2221Dr. Sloka also denied preventing Ms. S.M. from seeing another neurologist. Also, if Ms. S.M. had already seen Dr. Mandalfino, he would have also sent a copy of the consultation to her, which he did not do. The Crown did not suggest to Dr. Sloka in cross-examination that he did anything to prevent Ms. S.M. from seeing another neurologist.

Assessment of the Evidence and Analysis

2222In my view, Ms. S.M. was neither a credible nor reliable witness.

2223Fundamental to Ms. S.M.’s complaint is her assertion that Dr. Sloka removed her from the care of Dr. Mandalfino and ensnared her into his own care. As already alluded to above, that assertion does not withstand even the most cursory scrutiny.

2224I am highly skeptical of Ms. S.M.’s assertion that she had been under the care of Dr. Mandalfino before seeing Dr. Sloka. The ER records from May 24, 2016, make no mention of Ms. S.M. being under Dr. Mandalfino’s care. Indeed, they indicate “no physician” under the heading “family physician”. They indicate the name of the ER doctor under the heading “initial provider”. I infer that, had Ms. S.M. already been under the care of a neurologist when attending the ER, she would have informed the ER upon being told of the need for a neurological referral. The ER, in those circumstances, would have referred her to the ongoing care of her neurologist. And surely, Ms. S.M. would have been motivated to contact her current neurologist about her recent emergency episode instead of phoning Dr. Sloka’s office to book an appointment with a brand-new neurologist. Ms. S.M. did not recall contacting Dr. Mandalfino after her visit to the ER. She did not recall any follow up plans following her purported initial assessment by Dr. Mandalfino in either April or May of 2016. Ms. S.M.’s assertion that she was already under the care of a different neurologist when referred by the ER to Dr. Sloka simply makes no sense. While Ms. S.M. testified that Dr. Ho (her doctor in Ottawa) referred her to Dr. Mandalfino, the Crown tendered no records from Dr. Ho to support this contention. Indeed, Dr. Ho’s May 28th, 2016, referral to Dr. Sloka rebuts Ms. S.M.’s contention that she previously received a referral to Dr. Mandalfino. The Crown has also filed no records from Dr. Mandalfino to support Ms. S.M.’s illogical and non-sensical claims of being under Dr. Mandalfino’s care prior to her first appointment with Dr. Sloka.

2225Ms. S.M. agreed in cross-examination that it would have made sense to contact Dr. Mandalfino following the alleged abuse by Dr. Sloka, to seek a follow-up appointment with Dr. Mandalfino. She had no memory of making any such attempt. At no time did Ms. S.M. suggest that she tried to directly book a follow up with Dr. Mandalfino but was rebuffed by Dr. Mandalfino. This evidence does not sit well with her in-chief contention that her family doctor attempted but failed to obtain a referral to a new neurologist. Again, the Crown tendered no records to suggest any such unsuccessful attempts by the family doctor to obtain a different neurologist. Of course, if Dr. Mandalfino were already her treating neurologist, there would be no need for a new referral.

2226As mentioned above, Ms. S.M.’s assertion about Dr. Sloka’s hegemony over her care is also undercut by the records of her treatment history. The consultation reports disclose that he did not, as she implied, schedule a series of five follow up appointments following the first appointment, thereby ensnaring her in a continuous web of care. Rather, her return visits were, as often as not, the product of either subsequent referrals by her family doctor or by appointments apparently scheduled on her own initiative.

2227Consequently, I reject Ms. S.M.’s contention that she was already under the care of Dr. Mandalfino when she first met with Dr. Sloka. Accordingly, I reject her assertion that Dr. Sloka, at her first appointment, declared that Dr. Mandalfino would not be treating her anymore. And without hesitation, I reject the assertion that Dr. Sloka had orchestrated a hegemony over her care. I conclude that Ms. S.M. made this sinister assertion to bolster her evidence and explain her repeated decisions to return to Dr. Sloka’s care. Unfortunately, this false claim is not the most concerning frailty in Ms. S.M.’s evidence.

2228More concerning than her false claim of Dr. Sloka’s hegemony is the fundamental inconsistency between Ms. S.M.’s CPSO statement and her statement to the police. Ms. S.M. specifically told the CPSO that Dr. Sloka did not sexually assault her, despite attending for the interview to allege that Dr. Sloka was guilty of a sexual impropriety, and despite purportedly believing she had been sexually assaulted. One week later, she told police that Dr. Sloka groped her breasts. On her evidence, she deliberately told the CPSO investigator a falsehood, yet she was reluctant to admit that she lied. On this point, she was outright evasive during cross-examination. This evasiveness did not serve her credibility well, nor did the reluctantly admitted lie. I reject Ms. S.M.’s explanation for this lie. Her CPSO statement denies the very conduct that is the subject matter of the charge. This prior exculpatory inconsistency fatally undermines the credibility and reliability of Ms. S.M..

2229While it is entirely understandable, Ms. S.M.’s memory also suffered from the passage of time. She acknowledged an incomplete memory at various points in her evidence. Her medical history also disclosed that in the past she suffered from memory problems as a consequence of her head trauma.

2230I have allowed the admission cross-count similar act evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations on female patients, such as cardiac examinations. However, in my view, there is compelling evidence that Ms. S.M.’s memory, perceptions, and motives have been tainted by exposure to media publications about Dr. Sloka. Also, I have concluded that Dr. Sloka’s evidence refutes any such inference. While Dr. Sloka could not remember whether he performed a cardiac examination, he provided a compelling rationale for conducting one in a patient with Ms. S.M.’s presentation. I also accept his denial that he performed the examination in the manner Ms. S.M. described. I will delve more deeply into an assessment of his evidence momentarily, but first I will assess the Crown’s reliance on more granular cross-count similar facts.

2231I do not accept the Crown’s submission that any granular similarities between the accounts of other complaints and Ms. S.M. resuscitate the fatal flaws in Ms. S.M.’s evidence. Contrary to the Crown’s submission, Ms. S.M. did not assert that Dr. Sloka failed to inform her of the nature of and reason for the proposed examinations. She allowed for the possibility that he identified the examinations proposed and the reasons for them. Contrary to the Crown’s submission, the manner of the alleged breast touching is not so similar to the allegations of 8 other complainants that the similarity has any real probative value. While the Crown applies the moniker of “cupping” to the allegations of these 9 witnesses, that is not a moniker unanimously employed by them. The conditions of membership in this “cupping” group are so vague that they offer little to no probative value. Also, as is the case with Ms. S.M., media tainting is a significant concern with at least some of these patients.

2232Ms. S.M.’s exposure to media coverage regarding the allegations against Dr. Sloka raises considerable concern that her perception of past events has been tainted by the media coverage. The May 1st article she read included allegations that are central to her police complaint. A week later, she read another article in which similar allegations were again recounted. In the span of that week, her allegation expanded from breast exposure to breast touching. The media exposure, coupled with the evolution and timing of Ms. S.M.’s complaint leaves me with considerable concern that her perception of her treatment by Dr. Sloka has been tainted by media exposure. That tainting erodes the probative force of any similarity between her evidence and that of other witnesses; it also undercuts the reliability of her evidence.

2233Dr. Sloka denied groping Ms. S.M.’s breasts. He allowed for the possibility that he conducted a cardiac exam, even though he did not specifically make note of one. I do not accept that Dr. Sloka was evasive on the question of conducting this examination. At times, he was invited to speculate despite having virtually no memory of Ms. S.M. He obliged. I did not view his evidence as evasive.

2234I do not share the Crown’s view that aspects of Dr. Sloka’s evidence support Ms. S.M.’s evidence on the material issue here. His evidence regarding a standard cardiac examination certainly confirms that Ms. S.M.’s left breast would be exposed for a cardiac examination. Interestingly, her original concerns ended with breast exposure and excluded the touching she later alleged. His standard approach does not confirm she sat for the examination with her legs dangling over the table. His standard approach is not capable of confirming the groping alleged. Dr. Sloka allowed for the possibility of incidental contact between his hand and a patient’s chest when conducting a cardiac examination. That concession is inherently incapable of confirming the more blatant and patently sexual conduct alleged by Ms. S.M.

2235Having regard to the aforementioned frailties in her evidence, I do not accept the evidence of Ms. S.M. regarding the manner in which Dr. Sloka physically contacted her. I accept Dr. Sloka’s denial of these allegations.

2236In my assessment of the evidence, it affords no credible or reliable basis for concluding that Dr. Sloka performed a cardiac examination in anything other than a medically appropriate manner. The evidence affords no credible or reliable basis for concluding that Dr. Sloka possessed anything other than a medical motive for conducting the cardiac examination. In the absence of sufficient evidence to prove that Dr. Sloka conducted the examination for a sexual purpose or conducted it in a medically inappropriate manner, I see no basis for concluding that the examination constituted sexual activity. The evidence also affords no credible or reliable basis for concluding that Ms. S.M. did not consent to a medical examination. Accordingly, I acquit Dr. Sloka on this count.

iii. J.P. (Count 4)

A Summary of Ms. J.P.’s Complaint and Dr. Sloka’s Response to It

2237Ms. J.P. was a concussion patient. Her post concussion symptoms included dizziness and migraines. Dr. Sloka examined her as part of his neurological assessment. She alleged that Dr. Sloka prevented her mother from accompanying her into the examination room. Dr. Sloka asked her to remove her shirt and bra and provided her a paper gown. She also alleged that Dr. Sloka had her lay down on the examination table and drape the paper gown over top of her body, rather than wear it as it was designed. While she laid on her back, Dr. Sloka rapidly poked down her neck and arm. His hand rubbed against her breast in the process. Then, he suddenly lifted the gown, exposing her left breast.

2238Dr. Sloka testified that he performed neurological and cardiac examinations in accordance with his standard methods, as part of his standard assessment of headache patients. He also performed a Dix Hallpike manoeuvre. He agreed that Ms. J.P.’s left breast was exposed during her cardiac examination. However, he denied Ms. Pfieffer’s description of the sequence and nature of her examination. He also denied intentionally touching Ms. J.P.’s breast. Any contact was incidental to the performance of his standard cardiac examination.

The Circumstances of Ms. J.P.’s Referral and Treatment History

2239At the age of 17, after being the victim of a vicious assault by a group of girls, J.P. suffered from dizziness and persistent migraines.

2240Her family doctor, Dr. Kent McKinnon, referred her to Dr. Sloka.

2241She attended only one appointment with Dr. Sloka. That appointment occurred on February 2, 2010. She attended the appointment with her mother, Co.M.

The Evidence of Ms. J.P.

2242The consultation began in Dr. Sloka’s office. There, Dr. Sloka took her medical history, during which Ms. J.P. explained her symptoms.

2243Dr. Sloka then told her that he wished to examine her. She did not recall the specific wording of his proposal. Accordingly, Ms. J.P. did not remember whether Dr. Sloka proposed neurological and cardiac examinations, but she could not discount the possibility. Presented with his examination proposal, she agreed to go into the examination room to be examined.

2244Ms. J.P. testified that she twice asked Dr. Sloka whether her mother could come into the examination room. On her evidence, “He kind of brushed it off”, saying she would be fine. Dr. Sloka offered to leave the door to the examination room open. She agreed that Dr. Sloka was trying to be re-assuring.

2245In Ms. J.P.’s telling, Dr. Sloka informed her that she would need to remove her shirt and bra. He provided her with a paper hospital gown. He told her that, after she got undressed, she should lay on the exam table with the gown draped over top of her. On her evidence, she asked him how she ought to wear the gown, and he told her “Oh, just put it on top of you.” He did not instruct her to wear it.

2246Dr. Sloka departed to allow her to change in privacy. She undressed and draped the gown overtop of her as instructed. Dr. Sloka then re-entered the examination room.

2247She remembered the door between the office and examination room being a sliding pocket door, which Dr. Sloka left open about two inches during the examination.

2248On Ms. J.P.’s account, Dr. Sloka began the examination by rapidly poking her neck with his fingertips. He then poked her left side, the inside of her arm, and her bicep. He then rubbed against the outside of her left breast, pushing it. Then, without warning, he lifted the paper gown from her left breast and pulled it over to the right side, thereby exposing her left breast. She testified that she did not consent to the exposure of her breast. She was in shock. After three seconds, she covered herself back up. During this time, Dr. Sloka did not say anything. According to Ms. J.P., the entirety of the examination lasted “ten seconds at the most.”

2249Ms. J.P. agreed that she had blocked out a lot of the memory of the examination and that she did not recall portions of the examination. She admitted that she may not have a clear memory of the first thing done during the examination. She did not recall Dr. Sloka performing standard elements of neurological examination and cardiac examination, nor the Dix-Hallpike manoeuvre. She did not think these examinations occurred, but she did not decisively refute the possibility.

2250After the examination was over, Dr. Sloka returned to his office. Once Ms. J.P. changed, she followed. Back in the office, they had a discussion, which included talk of a follow-up appointment. Ms. J.P. did not believe that Dr. Sloka did not intend to see her again. Contrary to Dr. Sloka’s medical chart, she did not think a follow-up appointment was ever booked.

2251Ms. J.P. testified that once she and her mother left the building, she told her mother that Dr. Sloka pulled out her breast and she did not understand why.

The Evidence of Co.M. (Ms. J.P.’s Mother)

2252The Crown called Co.M., who confirmed that she attended the appointment with Ms. J.P. This evidence was proffered to rebut the possibility of media tainting and to provide evidence regarding Ms. J.P.’s contemporaneous demeanour immediately following the examination.

2253On Ms. Co.M.’s account, Dr. Sloka retrieved them from the waiting room. He then escorted Ms. J.P. directly to the examination room. As he brought Ms. J.P. into the examination room, he put up his hand, told Ms. Co.M. he would be done soon, and told her she could wait outside the examination room. Ms. Co.M. could not understand why she might be excluded from the examination room. She sat in a chair that was right outside of the door of the examination room, in the hallway between the waiting room and the examination room. Just as Ms. J.P. testified, Ms. Co.M. alleged that the door to the examination room was a sliding pocket door. Concerningly, she offered this description gratuitously. Her testimony came after the lunch break; her daughter’s testimony ended before the lunch break.

2254Ms. Co.M. denied participating in any pre-examination discussion with Dr. Sloka and her daughter in Dr. Sloka’s office. Her narrative did not allow for the possibility that Dr. Sloka took Ms. J.P.’s history during an initial consultation in his office. Indeed, in Ms. Co.M.’s narrative, she never entered Dr. Sloka’s office.

2255Similarly, on Ms. Co.M.’s narrative, she did not participate in any post-examination discussion with Dr. Sloka and her daughter in Dr. Sloka’s office.

2256According to Ms. Co.M., when Ms. J.P. came out of the examination room, she appeared visibly upset. She asked Ms. J.P. what was wrong. Ms. J.P. replied, “let’s get out of here.” Once they got outside, her daughter informed her that her gown had slipped away, and her breast became exposed. On Ms. Co.M.’s account of Ms. J.P.’s disclosure, the exposure of Ms. J.P.’s breast sounded accidental. After the gown slipped, her daughter reportedly pulled the gown back up to cover her breast.

2257Ms. Co.M. alleged that she contacted Dr. McKinnon’s office immediately after the appointment, using her cell phone. She told the receptionist that her daughter would not be returning to see Dr. Sloka, that Dr. Sloka had been inappropriate with her daughter, and that the office should not refer anyone else to Dr. Sloka. She testified that she asked the receptionist to have Dr. McKinnon document this event. She also testified that she followed up her complaint when at her next appointment with Dr. McKinnon. She told him that he needed to report the incident. He said he would look into it.

2258Ms. Co.M. denied ever accompanying Ms. J.P. to an appointment with Dr. McKinnon after Ms. J.P.’s sole appointment with Dr. Sloka. Her evidence here contradicts that of Dr. McKinnon.

The Evidence of Dr. Kent McKinnon

2259Despite Ms. Co.M.’s testimony to the contrary, Dr. McKinnon had no record of Ms. Co.M. calling his office on the date of the appointment to complain about Dr. Sloka.

2260According to Dr. McKinnon, concerns were first raised about Dr. Sloka when he saw Ms. J.P. and her mother on June 1, 2010 – four months following Ms. J.P.’s appointment with Dr. Sloka. Ms. J.P. told him that Dr. Sloka declined to let Ms. Co.M. join her in the examination room. She also reported that Dr. Sloka required her to disrobe from the waist up and put on a robe. He then examined the head and neck region. She also reported that, without explanation, Dr. Sloka pulled back the gown and exposed her left breast. Her first response was to cover herself up again. On Dr. McKinnon’s recollection of the disclosure, Ms. J.P. made no suggestion that Dr. Sloka had improperly touched her. In particular, she never suggested he improperly touched her breast. He would have treated any allegation of breast touching as significant – it would have upped the ante. He was aware that doctors are bound by a mandatory reporting requirement if they suspect sexual abuse of a patient by another doctor. Dr. McKinnon told both Ms. J.P. and her mother that she could contact the CPSO if they were concerned about the appointment with Dr. Sloka. He documented the complaint as follows:

[J.] and [C.] concerned about dr. sloka’s approach: disinterested, mother out of the room, seemed inappropriate, disconnected etc. copy of consult note given which seems to be very thorough and compassionate. Issues discussed support given; CPSO if concerned.

Media Exposure, The Timing of the CPSO Complaint, and Prior Inconsistent Statements to CPSO Investigators

2261Neither Ms. J.P. nor her mother contacted the CPSO in 2010, despite being informed of that option by Dr. McKinnon. Ms. J.P. did not contact the CPSO until the fall of 2018.

2262Ms. J.P. first contacted the CPSO after she read a news article about Dr. Sloka on Facebook. That article recounted allegations that Dr. Sloka had improperly draped patients. After reading the article, she did further research online. She also read additional media reports about patients who alleged breast touching.

2263When Ms. J.P. made her statement to the CPSO on October 15, 2018, she told investigators that she did not believe that Dr. Sloka touched her breast: “I don’t believe he actually touched my boob.”

The Evidence of Dr. Bril

2264Dr. Bril’s evidence regarding Ms. J.P.’s allegations was, for the most part, not controversial. She testified that the alleged poking and prodding of Ms. J.P.’s neck was not neurologically reasonable. Similarly, she testified that it was not reasonable to rapidly poke down Ms. J.P.’s arm, to touch her breast, and to expose her breast in the manner alleged by Ms. J.P. The Crown does not rely upon Dr. Bril’s evidence to challenge the reasonableness of the neurological and cardiac examinations, or the Dix-Hallpike manoeuvre. The defence did not contest Dr. Bril’s opinion regarding the poking and prodding, the breast touching, or the breast touching described by Ms. J.P. The actions described by Ms. J.P. were improper.

2265Dr. Bril initially testified that during an appointment with a 17-year-old patient (a minor) a neurologist must have a parent present, both when taking the history and when conducting any examinations. A chaperone is not optional; it is mandatory. However, in cross-examination, her evidence changed. She testified that, while a doctor should strongly recommend a chaperone for a 17-year-old patient, a competent 17-year-old patient can choose whether to have a chaperone present.

The Evidence of Dr. Sloka

2266Dr. Sloka had no memory of Ms. J.P. He relied upon his notes and consultation letter for the truth of its contents. He relied upon the rest of Ms. J.P.’s chart for necessary context.

2267Dr. Sloka proposed and conducted neurological and cardiac examinations. He also performed the Dix-Hallpike manoeuvre.

2268Dr. Sloka testified that he conducted the cardiac exam for three reasons. A cardiac examination was part of his standard evaluation of concussion patients. A cardiac examination was also part of his standard approach for patients presenting with headaches and dizziness. Finally, he conducted a cardiac examination because he was considering a prescription for Elavil, a drug which has cardiac contraindications.

2269Dr. Sloka performed the Dix-Hallpike manoeuvre to help identify the type of dizziness that Ms. J.P. was experiencing. In his experience, people describe dizziness in varying ways, which makes it difficult to pinpoint the cause. The manoeuvre, which involves movements of the patient’s head and torso, plus an examination of their consequent eye movements, assesses whether the cause of the dizziness lies in the vestibular system of the inner ear.

2270Dr. Sloka denied exposing Ms. J.P.’s breasts without warning, agreeing that doing so would be inappropriate. He also denied touching the side of her breast as Ms. J.P. described. He agreed that there would be no medical reason to do so.

2271Dr. Sloka denied that Ms. J.P. pulled up her gown, thereby terminating the examination. Had she pulled up her gown, he would have terminated the cardiac examination. His consultation report indicated that he completed all his examinations, including the cardiac examination.

2272According to his report, Ms. J.P.’s neurological and cardiac examinations yielded normal results. The Dix-Hallpike manoeuvre “was mildly positive to left.”

2273Following the examination, Dr. Sloka prescribed Elavil and advised her to wean off Tylenol. He also gave her some exercises to address vestibular vertigo.

2274Dr. Sloka did not recall any conversation with Ms. J.P. about her mother’s presence in the examination room. However, he testified that, if she wanted someone in the room with her, he would allow it.

2275Dr. Sloka also testified that the door would have been left open if her mother remained in the office. He could not remember the degree to which the door would have been opened. He testified, however, that the door was not a pocket door. The door had always been a standard hinged door, as depicted in exhibit 2.

Assessment of the Evidence and Analysis

2276I have concerns about both the reliability and credibility of Ms. J.P. and her mother.

2277I will first address my concerns about the evidence of Ms. J.P..

2278The core of Ms. J.P.’s trial complaint involved a non-consensual removal of her gown and a non-consensual touching of her breast. She made prior inconsistent statements in which these core elements were either omitted or denied. For example, Ms. J.P.’s mother alleged that, on the day of the appointment, Ms. J.P. indicated that her gown slipped away from her breast, rather than being deliberately removed by Dr. Sloka. While Ms. J.P. alleged at trial that Dr. Sloka deliberately pulled the gown away and touched her breast, she did not raise concerns about either the deliberate removal of the gown or breast touching when she raised her concerns with her mother. The focus of her concern at that time appears instead to have been the exposure of her left breast, an exposure which would occur during Dr. Sloka’s standard cardiac examination. Similarly, four months later when speaking to Dr. McKinnon, Ms. J.P. complained about the exposure of her breast, but made no allegation of breast touching to Dr. McKinnon. I think it unlikely that Dr. McKinnon would have failed to record this complaint and failed to act on it. Dr. McKinnon was a conscientious record keeper who was keenly aware of his professional responsibilities. He understood the importance of a breast touching allegation by his 17-year-old patient. Moreover, years later, after having read media coverage of Dr. Sloka’s case and having decided to lodge a complaint, Ms. J.P. specifically denied to CPSO investigators that Dr. Sloka touched her breast. These inconsistencies severely undermine the reliability and credibility of Ms. J.P.

2279Ms. Co.M.’s evidence is also undermined by inconsistencies. For instance, on Ms. Co.M.’s account, she was excluded from any participation in the appointment. She alleged that Dr. Sloka required her to sit in the hallway outside the examination room. The evidence unquestionably establishes that this purported memory is wrong. There is no seating in the hallway that separates the examination room from the waiting room. Moreover, Ms. J.P. testified that her mother was present for both the pre-examination consultation and the post-examination discussion in Dr. Sloka’s office. Ms. Co.M. denied participating in these discussions and denied ever being in Dr. Sloka’s office.

2280In my view, the evidence of Dr. McKinnon refutes Ms. Co.M.’s claim that she called Dr. McKinnon’s office immediately following Ms. J.P.’s appointment with Dr. Sloka. She purportedly asked the staff at Dr. McKinnon’s office to document her complaint about Dr. Sloka. No such documentation exists.

2281Dr. McKinnon undermines Ms. Co.M. in other ways. For example, Ms. Co.M. alleged that she spoke about Dr. Sloka during one of her own medical appointments with Dr. McKinnon. Dr. McKinnon had no recollection or recording of this alleged discussion. Ms. Co.M. also denied being present at her daughter’s medical appointment with Dr. McKinnon on June 1, 2010, when her daughter relayed her concerns about Dr. Sloka. According to Dr. Mckinnon’s notes from that appointment, Ms. Co.M. was present.

2282Regarding the potential that mother and daughter tainted each other’s evidence, I turn my attention to their evidence regarding the door to the entrance of the examination room. Both mother and daughter report the exact same inaccuracy about the door to Dr. Sloka’s examination room, namely that the door was a sliding pocket door. Ms. Co.M. offered her description gratuitously. Her evidence came after the lunch break. Her daughter had finished providing evidence before the lunch break. By providing a gratuitous and identical description of the doorway in the immediate aftermath of her daughter’s evidence, Ms. Co.M. provided damning evidence of collusion between them, and damning evidence of a defiance of the witness exclusion order.

2283I am also concerned about media tainting and the cross-tainting of the evidence of Ms. J.P. and her mother. The media reports reviewed by Ms. J.P. before coming forward included allegations of improper draping and breast touching. Ms. J.P.’s complaint evolved over time. It did not initially include breast touching. Judging from Dr. McKinnon’s records, her initial concern was the exposure of her breasts. Even when she provided her statement to the CPSO, she denied breast touching. Subsequently, breast touching became part of her allegations. I conclude that, over time, and only after exposure to similar allegations in media coverage, Ms. J.P. either consciously or unconsciously incorporated allegations of breast touching to align her complaint with what she read about in the media. Ms. J.P.’s mother, of course, also consumed media coverage of the allegations. There is compelling evidence of collusion between these two witnesses, as revealed by their identically incorrect evidence about a pocket door. These two colluding witnesses also discussed the news coverage of Dr. Sloka and Ms. J.P.’s historical complaint. Having considered the evolution of Ms. J.P.’s allegations over time, the timing of her complaint in relation to media exposure, and the cross-tainting between mother and daughter, I conclude that the Crown has failed to rebut the very real prospect that Ms. J.P.’s perception of the appointment, and that of her mother, has been tainted by media exposure.

2284I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient. However, having considered Dr. Sloka’s evidence against the totality of the evidence, I am satisfied that he has refuted any possible inference of a sexual purpose. Consequently, the cross-count similar fact evidence does not incidentally rehabilitate Ms. J.P.’s extremely flawed evidence about the nature of her examination.

2285The Crown also relies upon two granular cross-count similarities, to support the evidence of Ms. J.P. Specifically, the Crown alleges that Ms. J.P. belongs to a constituency of patients who allege that Dr. Sloka did not explain the reason for or nature of the examinations he proposed to conduct. However, Ms. J.P. conceded that she could not recall the wording of his examination proposal. She could not discount the possibility that Dr. Sloka proposed neurological and cardiac examinations. Whatever was proposed, she agreed with it. This purported cross-count similarity lacks sufficient probative value on any material issue.

2286Dr. Sloka denied any inappropriate conduct. Relying upon his medical records, he asserted that he proposed and conducted neurological, cardiac, and Dix-Hallpike examinations, all with Ms. J.P.’s consent. He denied instructing Ms. J.P. to drape the gown over her body, as she described. He denied that he would remove the gown without Ms. J.P.’s consent and participation. He denied the alleged breast touching and agreed that there existed no medical reason to do so. He denied deliberate exclusion of Ms. J.P.’s mother from the examination room, stating that if Ms. J.P. wanted someone present, she could have someone present.

2287I found no significant frailties in Dr. Sloka’s regarding Ms. J.P.

2288The Crown argues that Dr. Sloka provided significant corroboration of Ms. J.P.’s complaint by agreeing that it was possible that he told her, “You’ll be fine” and “She’ll be on the other side of the door” in response to a request to have her mother come into the examination room. In doing so, the Crown mischaracterizes the evidence. The Transcript reveals that Dr. Sloka’s only agreed that to the Crown’s suggestion that Ms. J.P. provided this evidence. He did not agree to the truth of her evidence. Once the Crown’s question had been clarified, he took the position that he could not remember what he specifically said to Ms. J.P., but if Ms. J.P. wanted her mother present, he would have permitted it.

2289The Crown also takes issue with Dr. Sloka’s failure to document taking Ms. J.P.’s vital signs in his consultation letter. In my view, the omission is insignificant. He documented her vital signs in his rough notes.

2290Dr. Sloka provided a cogent reason for the examinations he performed. He made contemporaneous documentation of those examinations in his consultation letter. That letter provides compelling admissible evidence capable of proving he performed the three examinations he maintains he performed. He shared that report with a trained family doctor who was overseeing Ms. J.P.’s ongoing care. The history and symptoms recorded in the consultation report contextualized those examinations for the family doctor. They also contextualized those examinations for the court. I accept that Dr. Sloka subjectively believed these examinations to be appropriate. I accept that he conducted them in accordance with his training and that the results influenced his medical impression and recommendations, all of which he documented. I also accept his corresponding assertion that he did not gratuitously touch or fondle Ms. J.P. I note that Dr. Sloka’s standard cardiac examination would, with the patient’s consent, involve the exposure of the left breast of his patient. Ms. J.P.’s earliest concerns appear to have centred on that exposure. I consider it entirely plausible that Ms. J.P. consented to a cardiac examination but subsequently felt uncomfortable about the consensual exposure of her left breast during that cardiac examination.

2291Given my concerns about the reliability and credibility evidence of Ms. J.P. and her mother and given my acceptance of Dr. Sloka’s evidence regarding his treatment of Ms. J.P., I am not satisfied beyond a reasonable doubt that Dr. Sloka touched or exposed Ms. J.P. in the manner she alleged.

2292Consequently, I am not satisfied beyond a reasonable doubt that the Crown has proven that Dr. Sloka committed a sexual assault. Dr. Sloka will be acquitted on this count.

iv. C.R. (Count 58)

A Summary of Ms. C.R.’s Complaint and Dr. Sloka’s Response to It

2293Ms. C.R. suffered headaches after a significant head trauma. She alleged that, at her lone appointment, Dr. Sloka performed a breast examination, immediately after using a stethoscope to listen to her upper chest. During the breast examination, he palpated around her breasts with his fingers. He may have incidentally touched her nipples in the process.

2294Dr. Sloka testified that he performed neurological and cardiac examinations on Ms. C.R. The cardiac examination was part of his standard approach to the assessment of post-concussion patients. He also believed a cardiac examination was warranted to assess her risk of stroke and to ensure it was safe to prescribe a particular medication for her headaches. He denied touching her breasts or conducting a breast examination.

The Circumstances of Ms. C.R.’s Referral and Treatment History

2295C.R. was 17 years old when referred to Dr. Sloka for an assessment of her worsening migraines. Her headaches began after a horse stepped on her head and face in 2013. Her family doctor, Dr. Robert Ghali, made the referral on May 2, 2015.

2296Ms. C.R. attended one appointment with Dr. Sloka, on September 2, 2015. She cancelled her follow up appointment.

The Evidence of Ms. C.R.

2297Ms. C.R. testified that she attended the appointment with her mother, J.Z.

2298At the appointment, she and her mother entered Dr. Sloka’s office for an initial consultation, during which she discussed her history and presenting symptoms.

2299In addition to experiencing migraines, Ms. C.R. described experiencing “brain fog,” during which she would lose her train of thought. She also reported memory issues.

2300According to Ms. C.R., Dr. Sloka proposed an examination. She recalled him telling her that he wanted to listen to her heart. She did not remember what more Dr. Sloka may have said about the proposed examination.

2301On Ms. C.R.’s account, Dr. Sloka told her mother that she could wait in the office and that the examination wouldn’t take long.

2302Dr. Sloka and Ms. C.R. then entered the adjacent examination room. Dr. Sloka handed her a gown asked her to remove her clothes, including her bra. He left the room to allow her to change into her gown. She could not remember whether she kept her underwear on.

2303To Ms. C.R.’s recollection, she wore her gown open to the front. She did not recall him instructing her to wear the gown in this fashion.

2304After she changed, Dr. Sloka re-entered the examination room.

2305Dr. Sloka then asked her to lay down on the examination table. He wanted to listen to her heart with a stethoscope. According to Ms. C.R., Dr. Sloka then opened the left side of the gown, exposing the top of her chest, but not her breast. He then used the stethoscope to listen to the top of her chest. According to Ms. C.R., her breast was not exposed during the time that Dr. Sloka used his stethoscope.

2306According to Ms. C.R., a breast examination followed the stethoscope examination. During the breast examination, Dr. Sloka used his fingers to feel around her chest and breast. She indicated that he may have accidentally touched her nipple in the process.

2307After about a minute, Dr. Sloka covered her left side and exposed her right side. He again used his fingers to feel around her chest and breast.

2308According to Ms. C.R., she did not understand why she was receiving a breast examination during a consultation for a concussion. She did not recall her head being the focus of the examination.

2309Ms. C.R. had no recollection of Dr. Sloka performing a neurological examination. She could not discount the possibility of one; however, she asserted that, if one occurred, it occurred after her breast examination.

2310In Ms. C.R.’s recollection, once Dr. Sloka had finished his brief breast examination, he told her that the examination was complete and that she could meet him back in the office once she changed.

2311Once back in the office, Dr. Sloka told her that the results of her examinations were normal. He told her that she did not have anything to worry about regarding her brain. Accordingly, she believed he told her that she did not need to get a scan of her brain. He did, however, tell her he wanted to see her in follow-up in a few months.

2312Ms. C.R. testified that, once she and her mother entered the hallway during their departure, she began to cry. She felt embarrassed and confused. Once outside, she purportedly told her mother that Dr. Sloka performed a breast examination. On her evidence, she explicitly complained to her mother that Dr. Sloka had touched her breasts. Her mother was confused and asking questions. However, due to embarrassment, she did not impart all the details – she “shut up about it.”

2313Ms. C.R. further testified that her mother had a conversation with a neurologist who told her that it was abnormal for a neurologist to perform a breast examination. Despite learning this information from her mother, she felt it was too late to report Dr. Sloka.

2314Ms. C.R. testified that she disclosed her allegations to two friends, C. and B., on two separate conversations. She alleged that both conversations occurred before any media publications of the allegations against Dr. Sloka. On her account, she told C. that Dr. Sloka felt her breasts and checked her heart. She did not remember how C. reacted to the disclosure. Her disclosure to B. was purportedly less specific. Ms. C.R. alleged that these conversations were clear and memorable. The Crown did not call C. or B. to testify.

2315Ms. C.R. first saw a news article about Dr. Sloka on Facebook, in April of 2019, while she was away on a trip in Iceland.

2316After seeing the news article, Ms. C.R. partook in a text message exchange with her mother on May 1, 2019. Other details of that text message will be discussed below. At this juncture, I will note that when asked by her mother whether she had made a disclosure to her doctor, Ms. C.R. replied, “IDK if I told anyone but you and family.” That statement, made in 2019, would suggest that she did not remember her purportedly clear and memorable conversations with C. and B. in 2018.

2317In addition to texting her mother, Ms. C.R. recalled speaking to her mother by phone.

2318Upon returning to Canada from her trip to Iceland, she contacted the CPSO on May 14, 2019. The investigator at the CPSO referred her to the investigating officer, Detective Gilker. She phoned Detective Gilker on May 14, 2019. She then attended for an interview on May 15, 2019.

The Evidence of J.Z.

2319Ms. J.Z. confirmed her attendance at her daughter’s appointment. She also confirmed her presence for the pre-examination consultation and the post-examination discussion.

2320According to Ms. J.Z., Dr. Sloka did not explain what the examination would entail or what he would be looking for. This evidence stands in contradiction to the evidence of her daughter who testified that Dr. Sloka told her he wanted to listen to her heart.

2321On Ms. J.Z.’s evidence, Dr. Sloka instructed Ms. C.R. to wear the gown open to the front. Contrary to the evidence of her daughter, she testified that this instruction occurred in the office, before Ms. C.R. entered the examination room. Also contrary to the evidence of her daughter, she testified that her daughter went into the examination room alone to get changed. Dr. Sloka remained in the office.

2322Ms. J.Z. alleged that during the post-examination discussion, her daughter did not appear herself: “the walls were up for sure.” Dr. Sloka suggested Ms. C.R. use anti-depressants to treat her headache. Her daughter was strongly opposed to this suggestion. He also suggested vision testing and a follow-up appointment.

2323Ms. J.Z. testified that her daughter couldn’t wait to get out of the office. Once outside, her daughter allegedly said, “I’m never going back there again. He’s a creep. Don’t you think he was creepy, mom?” According to Ms. J.Z., her daughter went on to say that Dr. Sloka opened her top to check her heart, and that he saw her “boobs”. Ms. J.Z.’s recollection of her daughter’s disclosure in the aftermath of the appointment did not include any allegation of a breast examination or breast touching.

2324According to Ms. J.Z., she spoke to her boyfriend about the appointment on the evening following the appointment. He said he would speak to a family doctor friend. Later, her boyfriend confirmed that the family doctor considered the breast examination to be “a little weird.” Contrary to the evidence of her daughter, Ms. J.Z. did not purport to have spoken to a neurologist. Nor did she purport to speak to another doctor directly. Despite the feedback from her boyfriend, Ms. J.Z. did not lodge a complaint. She did not know why she failed to lodge a complaint.

2325According to Ms. J.Z., her daughter first complained of Dr. Sloka touching her breasts after her daughter had already read about Dr. Sloka in the media in 2019. When her daughter saw the allegations in the media, she texted Ms. J.Z. on May 1, 2019. The text exchange began with Ms. J.P. sharing a copy of a news story relating allegations against Dr. Sloka. During their text exchange, Ms. J.Z. asked her daughter, “He had some excuse for why you had to be naked too, didn’t he?” She then offered, “And I remember you saying something about him looking at [your] breasts.” Her daughter’s reply included the following:

Gown on, don’t know if I had underwear on or not, think not, and I lied there and the gown opened up at the front and he said he needed to hear my heartbeat and just opened up the top half of my gown own so my boobs were right out and started feeling them pretty much.

The tops of them

Ms. J.Z. replied:

Maybe think about what all happened for a day or two and I will think too. I will read the articles more thorough and see if there is a lawyer name.

2326In the text exchange, Ms. J.Z. also told her daughter “Oh my, the more that come forward the more compelling.” She wanted her daughter to support the other complainants. She wanted to see Dr. Sloka go to jail.

2327Once Ms. C.R. returned from Iceland, Ms. J.Z. spoke more with Ms. C.R. about whether she should lodge a complaint with the police.

2328Ms. J.Z. ultimately met with the police on May 16, 2019. Between May 1 and May 16, she read media coverage of the allegations against Dr. Sloka.

The Evidence of Dr. Bril

2329Dr. Bril agreed that it was reasonable, in the circumstances of the appointment, to conduct neurological and cardiac examinations.

2330While Dr. Bril initially opined in her written expert report that a chaperone was required for a sensitive examination, her opinion changed at trial. After reviewing the CPSO’s boundary violations policy that was in effect at the time of the appointment, she opined that chaperones were not mandatory, but the patient must be given the option of having a chaperone present.

The Evidence of Dr. Sloka

2331Dr. Sloka had no independent memory of Ms. C.R..

2332He placed reliance upon his consultation letter for the truth of its contents and the rest of her medical chart for context.

2333Ms. C.R. had, in the previous three weeks, experienced an increase in the frequency of her headaches. Having reviewed the consultation letter, Dr. Sloka testified that, given Ms. C.R.’s history and presenting symptoms, he recommended taking Ms. C.R.’s vital signs and conducting neurological and cardiac examinations.

2334In his view, Ms. C.R. was presenting with post-concussion symptoms. According to his training, standard procedure dictated the conduct of a cardiac examination. He held this opinion despite the fact that Ms. C.R. suffered her concussion two years earlier. He wanted to ensure that cardiac issues were not holding back her recovery.

2335He also believed that blurry vision raised the unlikely possibilities of both stroke and a drop in blood pressure. While unlikely, he believed these possibilities must be considered.

2336Finally, Dr. Sloka believed a cardiac examination was warranted because he was considering prescribing a headache medication with cardiac contraindications.

2337Dr. Sloka denied conducting a breast examination. He agreed there would be no medical reason to do so. The Crown did not during cross-examination suggest he performed one.

Assessment of the Evidence and Analysis

2338I have concerns about the reliability and credibility of Ms. C.R.’s evidence.

2339Significant inconsistences were revealed during her evidence.

2340In her police interview, Ms. C.R. told the police that during the cardiac examination Dr. Sloka opened her entire gown, exposing both breasts at once. She specifically ruled out the possibility that Dr. Sloka exposed one breast at a time. Instead, she specifically alleged that the gown was pulled down to her waist. At trial, she provided contradictory evidence. She denied that the gown was open at all during the stethoscope examination [which presumably is a reference to a cardiac examination]; her breasts were not exposed for the stethoscope examination. She further testified that Dr. Sloka exposed one breast at a time during the alleged breast examination. These conflicts between her police statement and her trial evidence pertain to core elements of the alleged criminal conduct. Her trial evidence definitively segregated the cardiac examination from the alleged breast exposure and breast fondling. Ms. C.R. acknowledged the contradiction between her police statement and her trial evidence. Strangely, she testified that she was being truthful on both occasions – an impossibility, given the blatant contradiction.

2341Ms. C.R. was also contradicted by her mother on a significant point. According to Ms. C.R., she told her mother immediately after the appointment that Dr. Sloka had touched her breasts. Her mother, on the other hand testified that Ms. C.R. told her that Dr. Sloka exposed and saw her breasts.

2342The contradiction between Ms. C.R. and her mother about the content of the initial disclosure is repeated in their recounting of the anecdote about getting feedback from another doctor near the time of the appointment. Ms. C.R. testified that a neurologist told her mother that a breast examination was an abnormal procedure for a neurologist to perform and that he had never done one in his neurological practice. In contrast, her mother testified that she spoke to her boyfriend, who in turn spoke to a family doctor. She relayed to her boyfriend the concern about Dr. Sloka exposing Ms. C.R.’s breast while listening to her heart. She wanted an opinion about whether it is appropriate for a neurologist to have a patient’s breast exposed while listening to the heart. She did not speak directly to a neurologist. And she did not seek feedback about the propriety of a breast examination or breast touching. I paid careful attention to Ms. J.Z.’s evidence and the manner in which it was given. It is abundantly clear to me that she presented as a caring, concerned, and protective mother. It is also abundantly clear to me that she acted immediately upon the concerns that were raised with her on the day of the appointment, precisely because she was a caring, concerned, and protective mother. I conclude that she did not seek input on the propriety of a breast examination because her daughter had not complained of a breast examination in the aftermath of the appointment. Her daughter only complained of breast exposure. Ms. C.R. omitted what is now a core element of her complaint. This conflict between mother and daughter on the content of Ms. C.R.’s contemporaneous disclosure causes me to have significant concerns about Ms. C.R.’s credibility and reliability.

2343Ms. C.R.’s evidence about her purported prior disclosure to her friends, C. and B., also concerns me. She testified that these disclosures were clear and memorable. She also testified that they occurred before her exposure to any media. These prior disclosures, if true, serve to ward off any suggestion that her allegations were influenced by media exposure. However, immediately after Ms. C.R. first saw media coverage of allegations against Dr. Sloka, she told her mother that she was not sure whether she had told anyone else but her mother and family. In her text exchange with her mother on May 1, 2019, she said, “IDK if I told anyone but you and family.” On May 1st, 2019, she had no memory of the purportedly memorable 2018 discussion with C. about the alleged breast examination. The Crown did not call C. The Crown did not call B. The Crown did not call any other family to whom Ms. C.R. purportedly and previously alleged a breast examination. I conclude that on May 1, 2019, Ms. C.R. did not know whether she had made a prior complaint of breast touching to anyone else, because she had not done so yet. I conclude the first allegation of breast touching occurred during her text exchange with her mother on May 1, 2019. Ms. C.R.’s assertions to the contrary give me significant concerns about her credibility and reliability.

2344In-chief, Ms. C.R. described an examination that appeared focused exclusively on her chest and breasts. According to her evidence, at the time of the physical examination, she was purportedly confused by this focus. On the other hand, Dr. Sloka’s contemporaneously written consultation report, a copy of which was sent to her family doctor, indicated that Dr. Sloka took her vital signs, conducted a neurological examination, and conducted a cardiac examination. In cross-examination, Ms. C.R. could not discount the possibility that Dr. Sloka measured her heartrate and blood pressure. She also could not discount the possibility that Dr. Sloka performed the components of his standard neurological exam and took her vital signs. She had no recollection one way or the other. However, she maintained that, if he performed these tests, he did so after the breast exam. The concession of the possibility that she may have forgotten that Dr. Sloka took her vital signs and performed a neurological examination does not square with her assertion that she recalled being confused about Dr. Sloka’s exclusive focus on her breasts. I am highly skeptical of her claim that she ever experienced confusion about a purportedly exclusive focus on her breasts during the examination.

2345The Crown asks me to take into consideration that she was a 17-year-old child at the time of the examination of concern. The Supreme Court has recognized that the evidence of younger children suffers from inherent frailties attributable to the mental immaturity of the child, namely, frailties in the capacity to observe, the capacity to recollect, the capacity to understand questions and frame intelligent answers, and frailties in their moral responsibility. However, any assessment must be contextual. With respect to inconsistencies uncovered during the child witness’ evidence, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events” about which they testify. I keep in mind here, that the inconsistencies about which I harbour concern are not “peripheral” matters. They concern the core of her current complaint. They concern whether Ms. C.R. complained of breast touching at the time of the examination. They concern the evidence of a grown woman who testified about her experience as a 17-year-old. Ms. C.R. purported to be someone who was conscious of her sexual integrity and astutely aware when it had been intruded upon. I am highly skeptical of the proposition that she had a diminished capacity to observe, recollect, or perceive events as they were occurring. I am also highly skeptical of the proposition that she had a diminished capacity to communicate her concerns about the events as they occurred. She did not purport to suffer from any diminished capacity, which is hardly surprising. Instead, she purportedly raised the alarm about what she allegedly considered intrusion immediately following the examination of concern. Her evidence on that point was soundly contradicted by her own mother, someone with obvious and profound loyalty to her. She was less than a year away from being an 18-year-old, which does little to blunt my concerns raised by the inconsistencies I have highlighted. I am not prepared to afford much of a relaxed approach to Ms. C.R.’s evidence on core factual issues.

2346I would also note that Ms. C.R.’s purported disclosures to C. and B. allegedly occurred when she was an adult. Additionally, she was an adult when she wrote the text messages that suggest these disclosures never occurred. The evidence on this subject causes me concern about both Ms. C.R.’s credibility and reliability. A relaxed approach to the evidence of children is not applicable to these aspects of Ms. C.R.’s evidence. Similarly, the corrupting influence of media tainting occurred when Ms. C.R. was an adult, not a child.

2347I harbour serious concern that Ms. C.R.’s perception of the appointment has been tainted by her review of news coverage about Dr. Sloka. As already discussed, there exists no reliable evidence capable of establishing that Ms. C.R. complained to anyone about breast touching before reading news about Dr. Sloka in April of 2019. In April of 2019, she read a news article from which she learned that Dr. Sloka faced accusations that he told patients to completely undress for examinations, that they were inadequately draped, that he touched their breasts, and that he performed invasive examinations without medical cause. I conclude that she only made allegations of breast touching after reading news of similar complaints in the media. After reading the news, her concerns expanded from a concern about breast exposure to an allegation of an improper breast examination.

2348I have admitted the use of cross-count similar fact evidence for use in supporting the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations, such as cardiac and breast examinations. However, having considered the frailties of Ms. C.R.’s evidence and Dr. Sloka’s exculpatory evidence, I have concluded that Dr. Sloka has rebutted any inference of a sexual purpose. I will delve more deeply into an assessment of Dr. Sloka’s evidence momentarily. Before doing so, I would like to address the Crown’s reliance on granular similarities between the evidence of some complainants and Ms. C.R.’s evidence.

2349The Crown argues that, as with other patients, Dr. Sloka did not explain to Ms. C.R. the nature of the proposed examinations nor the reasons for them. That argument is not founded in the evidence. Ms. C.R. conceded that these things may have been explained to her and that she has simply forgotten. Indeed, she specifically recalled Dr. Sloka telling her that he wanted to listen to her heart, even though she could not currently remember whether he provided a reason to do so.

2350The Crown argues that I should find support in Ms. C.R.’s evidence from the evidence of other complainant’s who testified that they were directed to wear their gowns open to the front. This submission lacks merit for several reasons. First, Ms. C.R. did not allege that Dr. Sloka instructed her to wear the gown in this fashion. She had no memory of receiving such an instruction. Her evidence leaves open the possibility that she wore the gown in this fashion of her own volition. Second, only a slim minority of patients alleged that they wore their gowns open to the front. Of those, only some alleged that they were instructed to do so. In my view, this similarity is easily explained by a minority of patients coincidentally and incorrectly remembering how they wore their gown. Third, Ms. C.R.’s evidence on the exposure of her chest changed dramatically from her police statement to her evidence in court. The method and degree of exposure are subjects directly relevant to the manner in which she wore her gown. Here, I note her evidence that the gown was open to her waist. As a matter of common sense and logic, if her gown were open to the front, the opening of the gown at the chest would, almost inevitably result in the opening of the gown all the way down the front. The description of the gown being open down to the waist, seems more plausible in the case of a gown being pulled down, which is in turn more plausible if the gown is worn open to the back. All told, I do not accept as reliable Ms. C.R.’s evidence generally and more specifically her evidence with respect to the manner in which she wore the gown.

2351Dr. Sloka’s contemporaneously written consultation report indicates he took Ms. C.R.’s vitals, performed a neurological examination, and conducted a cardiac examination. Dr. Sloka gave evidence explaining his reasons for those examinations. The Crown does not challenge his justification for those examinations.

2352The Crown suggests that Dr. Sloka fondled Ms. C.R.’s breasts during a cardiac examination. That submission, however, has no foundation in the evidence. Ms. C.R. alleges a breast examination independent of and following the cardiac (stethoscope) examination.

2353Dr. Sloka denied performing a breast examination or fondling Ms. C.R.’s breasts.

2354The Crown has not explicitly identified any flaws or inconsistencies in his evidence, despite generically alleging that such “flaws and inconsistencies” exist.

2355Dr. Sloka provided cogent evidence regarding his treatment for Ms. C.R. and his rationale for that treatment. Neither the evidence of Dr. Bril nor the Crown’s cross-examination undermined this evidence. He denied the alleged breast examination. He was unshaken in that denial.

2356Having regard to my concerns about the evidence of Ms. C.R., I accept the evidence of Dr. Sloka. I accept that any physical contact with Ms. C.R. occurred in the context of a medical examination conducted solely for a medical purpose, with the express consent of Ms. C.R., and in a manner consistent with Dr. Sloka’s medical training. The Crown has failed to prove that Dr. Sloka engaged in any sexual activity towards Ms. C.R..

2357Dr. Sloka must be acquitted on this count.

C. Headaches

i. K.A.-C. (Count 36)

A Summary of Ms. K.A.-C.’s Complaint and Dr. Sloka’s Response to It

2358Ms. K.A.-C. alleged that Dr. Sloka asked her to completely remove her gown for a cardiac examination. She refused. He proposed an alternative approach, and she consented. In this approach, Dr. Sloka performed a cardiac examination by sliding his stethoscope down her gown and holding the stethoscope in place with both of his hands, both of which he slid beneath her gown. Ms. K.A.-C. also alleged that Dr. Sloka’s head was overly close to her as he listened to her heart.

2359Dr. Sloka denied asking Ms. K.A.-C. to totally remove her gown. Instead, he asked her to lower the left side of her gown to expose her left breast for the purposes of the cardiac examination. She declined but consented to what Dr. Sloka referred to as a modified cardiac examination. He agreed he snaked the stethoscope down beneath her gown and held the stethoscope from the outside. He denied placing his head overly close to her body.

The Circumstances of Ms. K.A.-C.’s Referral and Treatment History

2360Ms. K.A.-C. was referred to Dr. Sloka twice and, consequently, saw Dr. Sloka for two separate courses of treatment. She first obtained a referral to Dr. Sloka after suffering stroke like symptoms in 2013. Then, in 2015, she began to suffer seizures, so she once again obtained a referral to Dr. Sloka.

2361Ms. K.A.-C. received her first referral to Dr. Sloka on September 10, 2013, from her doctor at the University of Waterloo Health Services. She was 19 years old at the time. She awoke one morning unable to read, speak, or move the right side of her face. The doctor at UW asked Dr. Sloka to investigate Ms. K.A.-C.’s stroke-like symptoms.

2362Ms. K.A.-C.’s recollection of her referral history was muddled before having it refreshed and clarified by her medical records during trial preparation. Before reviewing her medical records, she told the police that she only ever attended two appointments with Dr. Sloka. In reality, she attended six. She also told the police that she was initially referred to Dr. Sloka because of seizures, when in fact she was referred because of stroke-like symptoms. The seizure referral occurred two years later. Similarly, she told police that Dr. Sloka discussed epilepsy at her first appointment, but he did not do so until two years later. Likewise, Ms. K.A.-C. told police that, at her first appointment, Dr. Sloka asked questions related to her sex life, but she ultimately agreed that this discussion occurred during the second referral period when discussing seizure medications.

The Evidence of Ms. K.A.-C.

2363Ms. K.A.-C. alleged that she was sexually assaulted by Dr. Sloka once and that this sexual assault occurred during her first referral period. Initially, she was reluctant to pinpoint the precise visit on which this sexual assault occurred. However, she testified that Dr. Sloka only physically examined her once and the medical records disclosed that Dr. Sloka physically examined her during her first visit. Accordingly, Ms. K.A.-C. agreed during cross-examination that the alleged sexual assault occurred on this very first visit. The first visit occurred on September 23, 2013.

2364Ms. K.A.-C. brought her father with her for her first appointment with Dr. Sloka. According to Ms. K.A.-C., Dr. Sloka began this appointment by speaking to her and her father in his office. Ms. K.A.-C. found Dr. Sloka to be quite strange. Something about him made her feel uneasy. She couldn’t quite put her finger on the reason, but his mannerisms seemed odd. He seemed uncomfortable when gesturing and wouldn’t make eye contact with her. He seemed to be talking more to her father than to her. She recalled thinking to herself that Dr. Sloka was strange. And her sense of uneasiness increased as the appointment progressed.

2365After obtaining her medical history and current complaints, Dr. Sloka told Ms. K.A.-C. that he wanted to perform an examination, to better understand the cause of her symptoms. While she could not recall the precise wording used by Dr. Sloka, she was prepared to agree that he likely told her that he wanted to do neurological and cardiac examinations.

2366On Ms. K.A.-C.’s evidence, when discussing the proposed cardiac examination, Dr. Sloka mentioned that he would be requisitioning an echocardiogram. According to Ms. K.A.-C., she recalled wondering at the time about the necessity of a cardiac examination, given the proposed echocardiogram. The cardiac examination seemed unnecessary. This lack of necessity allegedly caused her concern at the time. She testified that Dr. Sloka subsequently mentioned the echocardiogram in the examination room too.

2367The trouble with Ms. K.A.-C.’s evidence regarding her concerns about the necessity of the cardiac examination is this: the evidence suggests that Dr. Sloka never mentioned the possibility of requisitioning an echocardiogram at this visit.

2368Dr. Sloka’s consultation letter mentioned ordering an MRI of the head, arteries, and veins, but it made no mention of ordering an echocardiogram.

2369Medical records from St. Michael’s hospital suggest that 3 days after Ms. K.A.-C.’s appointment with Dr. Sloka, a different doctor – an internal medicine specialist named Dr. Lee – was the person who first suggested ordering an echocardiogram. In the report from St. Michael’s, Dr. Lee indicated a desire to rule out the possibility of a transient ischemic attack, caused by the presence of a small hole in the heart. Dr. Lee reported that she was unable to detect a murmur, but “wondered if Dr. Sloka might consider ordering an echocardiogram.…” In saying so, Dr. Lee confirmed that she conducted a cardiac examination. In closing remarks in her report, Dr. Lee went on to state, “our only request is that consideration be given to ordering an echocardiogram by Dr. Sloka in order to rule out a PFO.” Dr. Lee’s report thus clearly suggests to Dr. Sloka the possibility of ordering an echocardiogram. This suggestion is made 3 days after the date of the alleged incident of concern in which Ms. K.A.-C. alleges that Dr. Sloka raised the need for an echocardiogram.

2370In his next consultation letter, from the appointment that occurred following Ms. K.A.-C.’s appointment with Dr. Lee, Dr. Sloka made mention of Dr. Lee’s echocardiogram recommendation. Dr. Sloka then wrote, “we again deferred a cardiac exam given her modesty and we will let the tests guide us.” The medical records therefore suggest that Ms. K.A.-C.’s recollection is wrong.

2371When presented with the above noted records about the timing of any decision to order an echocardiogram, Ms. K.A.-C. accepted that Dr. Lee suggested ordering the echocardiogram after the appointment of concern. She went on to say that this evidence made her question whether the alleged sexual assault occurred during a follow-up appointment instead of at the first appointment. However, she agreed that she was only in the examination room once and was only subject to a physical examination once. She also agreed that she could not have been questioning the need for a cardiac examination if an echocardiogram had not been ordered.

2372Attempting to resolve the obvious conflict in her own mind, she “wondered” – speculated – whether she was examined twice, not once.

2373Ms. K.A.-C. testified that, in some fashion, Dr. Sloka indicated that the examination would take place in the adjoining examination room. According to Ms. K.A.-C., Dr. Sloka informed her father that he was welcome to return to the waiting room, if he wished. Ms. K.A.-C. believed that her father accepted that invitation and departed the office.

2374Ms. K.A.-C. went into the examination room. Dr. Sloka informed her that he would like her to get undressed and put on a robe. Dr. Sloka returned to the office while she got changed. She believed he had told her to remove all her clothes; however, whatever the instruction, she kept her underwear on after removing everything else. She then put on the gown provided. She wore it open to the back.

2375After Ms. K.A.-C. gowned herself, Dr. Sloka returned to the examination room.

2376Ms. K.A.-C. could not remember whether Dr. Sloka performed various elements of a standard neurological examination but agreed he may have done so.

2377Regarding the cardiac examination, Ms. K.A.-C. remembered Dr. Sloka telling her that he wanted to listen for the possible presence of a heart murmur. He told her that to do so he needed to place the stethoscope directly on her skin. According to Ms. K.A.-C., he asked her to remove her entire gown. She declined. According to Ms. K.A.-C., Dr. Sloka also mentioned that he was going to order an echocardiogram to investigate a possible murmur, in any event. Nevertheless, Dr. Sloka was somewhat insistent upon getting an opportunity to place the stethoscope directly onto her skin for the purpose of being able to properly hear her heart. She also recalled Dr. Sloka commenting that he thought she was being modest. Ms. K.A.-C. remained steadfast in refusing to remove her gown. In a compromise, Dr. Sloka suggested placing the stethoscope underneath her gown.

2378On Ms. K.A.-C.’s evidence, she laid down while Dr. Sloka listened to her heart. Using his left hand, he snaked the stethoscope through the top of the gown to get the bell of the stethoscope to a place in between her two breasts. According to Ms. K.A.-C., he somehow placed his right hand underneath the gown, too, and placed it on top of his left hand which, in turn, was pressing down on the bell of the stethoscope. She could not clearly describe how or where Dr. Sloka got his right hand under her gown. As Dr. Sloka listened to her heart, his right ear was extremely close to the surface of her chest. His face pointed in the direction of her head as he closed his eyes and listened to the stethoscope. He listened for what she described as an uncomfortably long time. She estimated that he listened for 1-2 minutes. She acknowledged, though, that the examination may have seemed longer that it was.

2379From Ms. K.A.-C.’s perspective, she took no issue with the fact that Dr. Sloka performed a cardiac examination. She also took no issue with the placement of the stethoscope or the placement of Dr. Sloka’s hands. However, she took issue with Dr. Sloka asking her to remove her gown and she took issue with the fact that Dr. Sloka performed the examination with his head so close to her chest and that he took so long to listen to her heart.

2380Regarding Dr. Sloka’s proximity during the cardiac examination, I would note that Ms. K.A.-C. agreed that Dr. Sloka explained to her the mechanics of the modified cardiac examination before obtaining her consent to this modified approach. Also, Ms. K.A.-C. informed the court that the length of the tube of the stethoscope was a mere 45 cm. This estimate was provided after she was asked to comment on the length of the stethoscope relative to her shoulder width. A substantial portion of the length of the stethoscope was used to get the stethoscope beneath the gown, leaving little length to extend away from her body.

2381Ms. K.A.-C. allegedly became so uncomfortable that she moved or shifted in a display of her discomfort. Soon after, Dr. Sloka ceased listening to her heart.

2382After Dr. Sloka listened to her heart, the examination ended. Dr. Sloka returned to his office and allowed her to get dressed in private. Ms. K.A.-C. then joined Dr. Sloka and her father in the office. Dr. Sloka told her that the results of his examination were normal. Also, according to Ms. K.A.-C., Dr. Sloka re-raised the echocardiogram requisition in the office. She said that Dr. Sloka told her father that he was unable to do a proper cardiac examination because of her modesty, so he was ordering an echocardiogram.

2383According to Ms. K.A.-C.’s evidence in-chief, there was no discussion about medication, and no discussion about pregnancy at this first appointment.

2384Ms. K.A.-C. testified that after this initial appointment, she spoke to her father about it. She said that Dr. Sloka made her feel uncomfortable and something about the visit didn’t sit right with her. Her father responded by asking her if she wanted to report it. However, she testified that she did not want to ruin Dr. Sloka’s life. She reasoned that she was not a doctor and did not want to overreact to conduct that was possibly proper and normal.

2385So, while Ms. K.A.-C. did not pursue any action in the aftermath of the first appointment, she did look up Dr. Sloka on Google from time to time, to see how other’s rated and reviewed Dr. Sloka.

2386Although Ms. K.A.-C. did not testify about any further alleged sexual assaults, she did testify that Dr. Sloka behaved in a concerning manner on one visit during her second course of treatment. She believed her father was present for that visit too. According to Ms. K.A.-C.’s evidence in-chief, Dr. Sloka made some concerning comments when discussing her seizure medications at one appointment. Ms. K.A.-C. recalled that the seizure medication being discussed was carbamazepine. According to Ms. K.A.-C., Dr. Sloka asked her whether she was pregnant, whether she was a virgin, whether she was waiting until marriage to have sex, and whether she wanted to have children. She also recalled that he mentioned the possibility of switching drugs when she got married.

2387It is not entirely clear to me why the Crown lead the evidence of the allegedly concerning comments by Dr. Sloka. Even on the Crown’s theory, these comments occurred long after the alleged sexual assault. Presumably, the Crown is alleging that Dr. Sloka’s comments suggest a sexual desire for Ms. K.A.-C. a year or two after the alleged sexual assault. Presumably, the Crown is relying upon this subsequent sexual desire to prove that Dr. Sloka possessed a sexual motive at an earlier point in time.

2388Ms. K.A.-C. conceded, during cross-examination that, when giving her statement to the police, she informed the police that the alleged sexual assault and the allegedly inappropriate comments occurred on the very same visit. Her evidence at trial separated these two incidents by nearly two years.

2389Regardless of when the allegedly inappropriate comments occurred, Ms. K.A.-C. testified that she did not take any action against Dr. Sloka in their immediate aftermath. She did, however, continue to intermittently Google Dr. Sloka’s name.

2390In mid-July of 2019, Ms. K.A.-C. came across two news articles about Dr. Sloka. The articles mentioned complaints from about 4 or 5 of Dr. Sloka’s patients. Ms. K.A.-C. could not remember the details of their allegations. She testified, though, that the articles validated her feelings about her appointment and confirmed her belief that Dr. Sloka had tried to get her naked.

2391After reading news about Dr. Sloka, Ms. K.A.-C. contacted the CPSO, who informed her that the CPSO had revoked Dr. Sloka’s medical licence and that the matter had then been referred to the police. The person she spoke to referred her to the police. Accordingly, commencing July 31, 2019, Ms. K.A.-C. began e-mail correspondence with Detective Gilker.

2392Ms. K.A.-C. eventually provided a statement to the police. Before providing her statement to police, she learned that Dr. Sloka had been charged with criminal offences. She believed that she may have googled Dr. Sloka before providing her police statement.

The Evidence of Dr. Bril

2393Dr. Bril agreed that it was neurologically reasonable for Dr. Sloka to perform a cardiac examination. Ms. K.A.-C.’s history and presentation suggested that a stroke was a plausible cause of some of her symptoms. A cardiac examination is warranted during the investigation of the possibility of a stroke.

2394Dr. Bril admitted to having little experience with cardiac examinations. Her evidence regarding the proper methodology of cardiac examinations was based upon her observations of physicians in emergency rooms.

2395Dr. Bril agreed that, if a patient prefers not to expose her breast for cardiac exam, it is reasonable to accommodate that and find some compromise, such as snaking the stethoscope beneath the patient’s garment. However, Dr. Bril testified that “minimal cardiac examination” was not a term of art used in the profession. Dr. Bril also testified that it would also have been reasonable to order an echocardiogram in lieu of performing a cardiac examination. She testified that Dr. Sloka could have ordered the echocardiogram earlier than the records revealed he did, particularly if Ms. K.A.-C. was uncomfortable with a physical examination and he had to resort to performing a minimal cardiac examination instead.

2396Dr. Bril also testified that it was not reasonable for Dr. Sloka to use two hands to hold the bell of the stethoscope in place during the cardiac examination. She also testified that it was not reasonable for a neurologist to place his head within a couple of inches of a patient’s chest during a cardiac examination.

The Evidence of Dr. Sloka

2397Dr. Sloka had essentially no memory of Ms. K.A.-C. He relied upon his consultation letters for the truth of their contents. And he relied upon his interpretation of his own idiosyncratic jargon within the consultation reports.

2398At Ms. K.A.-C.’s first appointment on September 23, 2013, he met with Ms. K.A.-C. and obtained her medical history and a description of her symptoms. He then proposed obtaining Ms. K.A.-C.’s vital signs and conducting neurological and cardiac examinations. In doing so, he would have explained the reason for the proposed examinations. Regarding the cardiac examination, Dr. Sloka testified that he would have essentially told Ms. K.A.-C. that he wanted to listen to the heart for anything that might impact the brain. Dr. Sloka testified that he might have repeated himself in the examination room, but at the very least, it was his standard practice to propose and explain the examinations in the office before proceeding to the examination room.

2399Dr. Sloka denied telling Ms. K.A.-C. that he intended to order an echocardiogram at any point during this visit. He also specifically denied mentioning and echocardiogram in the office prior to the examinations. Dr. Sloka testified that, as a matter of standard practice, he did not mention future tests during the initial consultation in the office. Instead, he mentioned proposed tests after the conclusion of the examinations, when informing patients of his impression and proposed next steps. Dr. Sloka observed that he did not record making a requisition for an echocardiogram in his consultation letter. Instead, Dr. Sloka testified that his chart revealed that he ordered the echocardiogram after Ms. K.A.-C.’s second visit, in accordance with the recommendation of Ms. K.A.-C.’s internal medicine specialist, Dr. Le. This recommendation was made by letter on September 26, 2013, three days after Ms. K.A.-C.’s first appointment – three days after the alleged offence date.

2400Dr. Sloka testified that he proposed a cardiac examination to investigate the possibility that Ms. K.A.-C.’s symptoms arose from a stroke.

2401Dr. Sloka recorded employing a “minimal cardiac examination.” In his consultation letter, he explained, “She was modest.” From this language, Dr. Sloka inferred that Ms. K.A.-C. did not consent to a full cardiac examination, which would involve the exposure of her left breast.

2402Dr. Sloka could not recall whether Ms. K.A.-C. had declined a full cardiac examination while still in his office or if she withdrew consent to a full cardiac examination once she was already in the examination room. Consequently, Dr. Sloka could not recall whether Ms. K.A.-C. removed any clothing and got into a gown or whether Ms. K.A.-C. simply wore street clothes for the examinations. In either case, Dr. Sloka testified that Ms. K.A.-C.’s underwear would have remained on for the examinations.

2403While he could not remember whether Ms. K.A.-C. was gowned or not, Dr. Sloka considered it likely that Ms. K.A.-C. wore a gown and had removed her pants for the examinations. He based this belief on the fact that Ms. K.A.-C. had described “one-sided” symptoms that progressed down the length of her body. It was his standard practice in such situations to ask the patient to remove their street clothing (with the exception of their underwear) and wear a gown for the neurological examination. That said, based on his consultation letter, he did not believe he noticed any symptoms involving her arms or legs that day. Consequently, he was unable to take a firm position on Ms. K.A.-C.’s manner of dress for the examinations, except for his firm belief that Ms. K.A.-C. would have kept her underwear on.

2404Dr. Sloka maintained that there existed no reason for Ms. K.A.-C. to remove her underwear for any of the proposed examinations. He testified he would never instruct a patient to remove their underwear for a neurological examination. Accordingly, like Ms. K.A.-C., Dr. Sloka testified that she had her underwear on for the examinations.

2405Dr. Sloka denied telling Ms. K.A.-C. to remove her gown and lay on the table for the cardiac examination. This did not accord with his standard practice. He would not have done that. Assuming there was discussion of the gown, Dr. Sloka testified that he would have only proposed that she pull the gown away from her left chest to facilitate the cardiac examination.

2406Dr. Sloka testified that for a minimal cardiac examination, Ms. K.A.-C. would remain seated on the examination table with her legs dangling over the side.

2407According to Dr. Sloka, the “minimal cardiac examination” method involves placing the stethoscope overtop of the patient’s garment while listening to the heart. Dr. Sloka testified that he would never have placed his hands beneath Ms. K.A.-C.’s gown. He testified that he was taught in the clinical skills portion of his training that he ought not to place his hands beneath a patient’s gown.

2408Dr. Sloka testified that, during the cardiac examination, he would be in front and a little to the patient’s right, with his left hand on the patient’s shoulder, holding stethoscope with his right hand. He would be about a foot away from the patient while listening to their heart. The tube of his stethoscope is 16 inches.

2409Dr. Sloka recorded that Ms. K.A.-C.’s neurological and minimal cardiac examination yielded normal results. Her blood pressure was 120/80. Her pulse was 73.

2410Dr. Sloka formed the impression that Ms. K.A.-C.’s presentation was consistent with migraine with aura, except for the fact that she possessed a facial droop. Accordingly, Dr. Sloka ordered an MRI, MRA, and MRV, as well as a hypercoagulable screen. He planned to see her in follow up after she completed those tests.

2411Dr. Sloka denied ever asking Ms. K.A.-C. if she was going to wait until marriage to have sex and whether she was a virgin. He did acknowledge, though, that he discussed the family planning implications of a seizure medication during Ms. K.A.-C.’s second referral period.

2412An GRH ER physician referred Ms. K.A.-C. to Dr. Sloka on October 7, 2015, after Ms. K.A.-C. suffered an apparent seizure.

2413In accordance with that referral, Ms. K.A.-C. scheduled an appointment with Dr. Sloka on November 25, 2015. According to Dr. Sloka’s consultation letter, Ms. K.A.-C.’s father was present for that appointment. At the conclusion of that appointment, Dr. Sloka formed the impression that Ms. K.A.-C. had suffered at least one recent seizure, possibly two. He ordered some tests and made a referral to an allergist, to investigate whether Ms. K.A.-C. had suffered an allergic reaction to her current seizure medication, carbamazepine.

2414Dr. Sloka testified that an allergy to Ms. K.A.-C.’s current medication, carbamazepine, was causing her recent seizures, so he discussed with her the possibility of switching to a different seizure medication. In his consultation letter, he documented a discussion about Keppra. Keppra is a more expensive medication and is unaffordable for some patients. Carbamazepine, on the other hand is cheaper, but can interfere with oral contraceptives and creates a significant risk of birth defects. Ms. K.A.-C. was 21 years old at the time. Dr. Sloka charted, “they will also consider whether switching to Keppra at this time would be optimal or not as at some point she is considering starting a family.” Based on this notation, Dr. Sloka believed he would have engaged in a discussion with Ms. K.A.-C. about the risk of birth defects with her current medication. He testified that he would broach the topic in roughly this fashion: “It’s none of my business whether you decide to have a family or not, but carbamazepine causes birth defects.”

Assessment of the Evidence and Analysis

2415Ms. K.A.-C. had an unreliable memory, while simultaneously possessing an overconfidence in its strength.

2416Ms. K.A.-C. specifically recalled that Dr. Sloka, while attempting to convince her to participate in a cardiac examination, repeatedly told her that he would be ordering an echocardiogram in any event. She professed to remember that she consequently wondered to herself about the utility of the cardiac examination Dr. Sloka seemed so intent on performing. This powerful narrative provides a specific and somewhat obscure detail in combination with fine details of Ms. K.A.-C.’s mental and emotional response to the situation. The evidence, if left unchallenged, carried an aura of verisimilitude. Through this evidence, Ms. K.A.-C. implied that Dr. Sloka’s cardiac examination was medically unnecessary and motivated by a sexual purpose. It was a skillfully told narrative that commanded belief, which is frightening, because it is also demonstrably false. More frighteningly, I think she sincerely believed this narrative to be true, right up until the point when she was proven wrong.

2417Dr. Sloka’s medical records, establish, without any doubt, that Dr. Sloka did not requisition an echocardiogram at Ms. K.A.-C.’s first appointment. Indeed, it was Dr. Lee, three days after her first appointment who suggested to Dr. Sloka that he consider ordering an echocardiogram. Dr. Sloka took up that invitation following Ms. K.A.-C.’s second appointment. Given, Ms. K.A.-C.’s agreement that the cardiac examination of which she complains occurred on the first appointment, I conclude that it is impossible that Dr. Sloka told her at that first appointment that he was going to order an echocardiogram.

2418While there were other aspects of Ms. K.A.-C.’s evidence which demonstrated that she was an unreliable historian, her false memory about the echocardiogram is the most important one. It fundamentally undermines my faith in the reliability of her memory about the cardiac examination.

2419I am also concerned that Ms. K.A.-C.’s perception of Dr. Sloka was influenced by her negative reaction to him at the outset. She found him to be quite strange and awkward. Something about his persona and mannerisms bothered her. He made her feel uneasy. She recalled that he would not make eye contact with her and focussed more on talking to her dad. It is important to recall that the essence of Ms. K.A.-C.’s complaint lies in her recollection of Dr. Sloka’s proximity during the cardiac examination and the duration of the cardiac examination. These recollections do not rely upon objective measurements of distance and time taken at the time of the event, but rather her subjective impression of those metrics. By their very nature, her impressions about proximity and time are virtually immune from objective scrutiny by the court. In my view, such impressions are extremely susceptible to the influence of her immediate emotional response to Dr. Sloka, the passage of time, and more recent negative media coverage. Consequently, I consider these impressions unreliable.

2420Ms. K.A.-C.’s unreliability is also revealed by her poor memory of her referral history and the timeline of important events in her narrative. As noted, in her statement to police, she did not recall two separate referral periods for two different medical concerns. Instead, she recalled two appointments around the summer of 2015. In her statement to the police about those two remembered appointments, she blended details from the second referral period [the seizure appointments] into the circumstances of the first referral period. In doing so, she imbued the appointment of concern with additional impropriety. For example, I note that she informed the police that Dr. Sloka asked questions about her sex life at the very same appointment in which the allegedly improper cardiac examination occurred. Ultimately, she testified that the questions about her sexual activity occurred during the second referral period and were connected to a discussion about her seizure medications and how they might impact her ability to have children. She admitted that his discussion occurred in 2015, not 2013.

2421While her memory was refreshed about the context of the discussion about family planning, she was never able to recall what provoked the more intrusive alleged questions about her virginity and her sex life. However, clues exist in the consultation report authored by Dr. Lee on September 26, 2013, written three days after her appointment with Dr. Sloka. In that letter, Dr. Le reported, “She has never been sexually active in the past.” Dr. Lee also reported, “She has not had any history of any STI’s.” In addition, Dr. Lee wrote, “She has not been sexually active, as noted; thus, there is no pregnancy history to comment on.” There thus exists evidence that Dr. Lee at least purported to have made inquiries about Ms. K.A.-C.’s sexual activity. The existence of this claim in Dr. Lee’s report gives rise to a plausible likelihood that Ms. K.A.-C. has conflated aspects of Dr. Lee’s consultation with Dr. Sloka’s consultation.

2422Ms. K.A.-C.’s showed herself to be unreliable in recounting the mechanics of the cardiac examination. At trial, she testified that that Dr. Sloka slid both hands beneath her gown and held the bell of the stethoscope with both hands. In her statement to the police, she told them that Dr. Sloka held the bell of the stethoscope beneath the gown with his left hand, while pressing down with his right hand from the outside of the gown. The trial version involved a greater intrusion beneath the gown, utilizing two hands instead of one beneath her gown. These are not minor details. These are details of the mechanics of the alleged offence.

2423Interestingly, Dr. Le reported performing a cardiac examination on Ms. K.A.-C. three days after Dr. Sloka performed one. Ms. K.A.-C. could not recall any aspect of Dr. Le’s purported cardiac examination. I have already concluded that Ms. K.A.-C. conflated different stages of her treatment with Dr. Sloka, conflated some aspects of Dr. Le’s appointment with Dr. Sloka’s appointment, and plausibly conflated yet other aspects of Dr. Le’s appointment with Dr. Sloka’s appointment. Given the malleability of Ms. K.A.-C.’s memory and the proximity of Dr. Le’s appointment with Dr. Sloka’s appointment, I have concern about the possibility that Ms. K.A.-C. also conflated aspects of one cardiac examination with another.

2424Ms. K.A.-C. acknowledged reading in the news about the allegations made by others against Dr. Sloka. While she could not recall the details of what she read, the parties have tendered a media brief, which allows the court to know what was publicly available to Ms. K.A.-C. in July of 2019. At that time, the media had reported on complaints about Dr. Sloka having a patient undress for examinations. This information was available in numerous publications at the time. Given the demonstrated malleability of Ms. K.A.-C.’s memory, I have serious concern that media coverage may have tainted Ms. K.A.-C.’s memory and perception of her appointment with Dr. Sloka.

2425The defence argues that, taken at its highest, Ms. K.A.-C.’s complaint does not allege a sexual assault. I cannot accept this submission. If a court were to accept that Dr. Sloka unnecessarily asked Ms. K.A.-C. to completely disrobe, that he placed both hands under her garment, that he placed his head unnecessarily close to Ms. K.A.-C.’s chest, that he remained in that position for longer than was necessary, and that he later showed an inappropriate interest in Ms. K.A.-C.’s sex life, it would be open to a court to infer that Dr. Sloka possessed a prurient motive when performing the cardiac examination and that he acted on that motive when placing his head unnecessarily close to the chest of Ms. K.A.-C. It would therefore be open to the court to infer that, in all the circumstances, Dr. Sloka had sexualized what otherwise would have been an appropriate cardiac examination.

2426However, given the concerns I have raised about Ms. K.A.-C.’s reliability, and the plausible tainting effect of media consumption, I am unable to accept Ms. K.A.-C.’s key allegations, particularly considering Dr. Sloka’s sworn denials, which I will discuss momentarily.

2427I have permitted the Crown to rely upon cross-count similar fact evidence for the purpose of supporting the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this case. In their submissions on Ms. K.A.-C., the Crown describes this sexual motive as part of his “modus operandi.” However, having regard to the frailties of Ms. K.A.-C.’s evidence, and having regard to Dr. Sloka’s compelling evidence, I am satisfied that Dr. Sloka has refuted any possible inference of a sexual motive.

2428The Crown also relies upon two specific granular cross-count similarities to support Ms. K.A.-C.’s evidence on other material issues. I do not find either of these granular cross-count similarities to be sufficiently probative, for reasons which I will now explain.

2429In my view, there exists compelling grounds to believe that Ms. K.A.-C.’s memory and perceptions have been influenced by her media consumption. The Crown has failed to rebut this plausibility. Also, as discussed above, the evidence gives rise to the plausibility that that Ms. K.A.-C. has conflated the cardiac examination conducted by Dr. Le with the cardiac examination conducted by Dr. Sloka. The Crown has failed to rebut that plausibility.

2430Even absent the concern about tainting, I conclude that the granular cross-count similarities lack sufficient probative value.

2431The crown argues that Ms. K.A.-C. is one of five patients where Dr. Sloka pressed for additional and more invasive physical examinations. This submission ignores the fact that Dr. Sloka documented at a subsequent appointment deferring another cardiac examination when one was clearly being considered. It also ignores Ms. K.A.-C.’s concession that Dr. Sloka only examined her once over the course of six appointments. And it ignores the fact that Dr. Sloka did not press for additional and more invasive examinations. Instead, he began and ended with a proposal of two rather standard examinations – examinations which the Crown’s own expert conceded were reasonably proposed. Also, I do not equate repeatedly emphasizing the importance of being able to listen her heart carefully with pressure to conduct “additional and more invasive physical examinations.” Lastly, the size of this supposed cross-count similar fact constituency is too small to have probative value. The vast majority of patients did not make any such allegation. In my view, any passing similarity can be attributed to coincidence, not a situation specific propensity.

2432The Crown also argues that Ms. K.A.-C. is one of a constituency of two complainants where Dr. Sloka commented that they were modest when each declined an examination. The Crown points out that one was 19 years old and one was 21 years old. Stretching a little further, the Crown observes that the examinations occurred between 2011 and 2013. In my view, the fact that Dr. Sloka used the term modest to describe a patient who declined an examination is not probative of any material issue.

2433I turn now to an assessment of Dr. Sloka’s evidence.

2434Dr. Sloka provided a compelling justification for performing his cardiac examination. His justification was not challenged by either Dr. Bril or the Crown.

2435Dr. Sloka also provided compelling denials of Ms. K.A.-C.’s allegations regarding the way in which he conducted the cardiac examination. In my view, those denials were not shaken in cross-examination.

2436The Crown raises relatively minor criticisms about the evidence of Dr. Sloka, none of which I have found to possess merit.

2437The Crown argues that Dr. Sloka speculated about whether he proposed and explained the cardiac examination. However, Ms. K.A.-C. agreed that Dr. Sloka told her in the office something to the effect of, “I’d like to conduct a physical exam to investigate what the potential underlying causes are for your symptoms.…” She could not specifically recall him mentioning a cardiac examination, but she believed that would be something that would have been said. Also, Dr. Sloka based his belief on his standard practice of proposing examinations in his office before proceeding to the examination room.

2438The Crown also argues that Dr. Sloka gave inconsistent evidence by admitting to the possibility that Ms. K.A.-C. might have revoked her consent to a cardiac examination after entering the examination room. I fail to see how the revocation of a consent previously given precludes the possibility of a prior consent discussion in the office.

2439The Crown argues that Dr. Sloka gave inconsistent evidence about whether Ms. K.A.-C. had removed any clothing before getting gowned. I do not see any inconsistency. He provided a basis for believing she would have removed her pants – this evidence favoured the Crown. However, he also maintained that he had no specific memory of Ms. K.A.-C.’s attire for the examination. He did not resile from his belief about her attire in cross-examination. He simply observed that, having reviewed the consultation letter, he did not see any symptoms involving her legs. He continued to have no memory about whether she removed her pants for the examination.

2440The Crown also argues that Dr. Sloka guessed when insisting that Ms. K.A.-C. wore underwear for her examination. Dr. Sloka did not guess. Ms. K.A.-C. herself testified that she wore underwear for the examinations. Also, Dr. Sloka testified that he had no reason to ask her to remove her underwear for the examinations. He based his evidence on his standard practice for neurological and cardiac examinations.

2441The Crown also contended that Dr. Sloka was evasive. I did not find him to be evasive. He was being asked about events and conversations about which he had no memory. His evidence was based largely on the content of his consultation letters, the other information in his medical chart, and his standard practices.

2442Having considered all the evidence, I accept that Dr. Sloka performed a “minimal cardiac examination” in accordance with his standard practice, just as he documented. Accordingly, I accept that he placed the stethoscope over top of Ms. K.A.-C.’s clothing for the examination. I also accept that he positioned himself about a foot away from Ms. K.A.-C. when listening to her heart. Further, I accept his denial that he placed his hands under her garment. I also accept his denial that he asked her to remove her entire gown. Additionally, I accept his denial that he asked Ms. K.A.-C. any inappropriate questions about her sex life. I further accept that Dr. Sloka conducted all examinations on Ms. K.A.-C. for what he believed to be a valid medical purpose.

2443Having regard to my concerns about the significant frailties in Ms. K.A.-C.’s evidence and given my acceptance of Dr. Sloka’s evidence on the material issues, I reject Ms. K.A.-C.’s evidence on those material issues. Consequently, the Crown has failed to prove that Dr. Sloka engaged in sexual activity when examining Ms. K.A.-C. The evidence is only capable of establishing that Ms. K.A.-C. consented to and received a medical examination.

2444Dr. Sloka will be acquitted on this count.

ii. N.B. (Count 38)

A Summary of Ms. N.B.’s Complaint and Dr. Sloka’s Response to It

2445Ms. N.B. alleged a shocking, brazen, and patently sexualized examination that allegedly occurred while her mother sat in another area waiting. On her account, she stood naked while Dr. Sloka slid his hands up her legs, then scissored her labia between his fingers, then cupped the cheeks of her buttocks with both hands, then scissored her labia between his fingers once more. Then, while she lay on an examination table, Dr. Sloka allegedly inserted his ungloved and unlubricated fingers into her vagina, while his other hand rested on her thigh. He then allegedly placed one hand on each breast. As he moved his hands on her breasts he placed his head close to her chest between his hands, purportedly to listen to her breathing. He then asked her to lay naked on the examination table and meditate while he stood there. Eventually, he spoke to her about medications. Ms. N.B. then asked about her mother joining them. Only then did Dr. Sloka allegedly return her gown and allow her to cover up. Dr. Sloka then retrieved her mother. Ms. N.B. purportedly convinced herself that the examination was medically appropriate.

2446Dr. Sloka denied the examinations Ms. N.B. alleged, including the conduct of any skin, pelvic or breast examinations. He also denied instructing Ms. N.B. to meditate while laying naked on the examination table. On his account, he took Ms. N.B.’s vital signs then performed neurological and cardiac examinations. He then performed an abdominal examination to investigate her complaint of pain in the left lower quadrant of her abdomen.

The Circumstances of Ms. N.B.’s Referral and Treatment History

2447Ms. N.B. possessed a confused and inaccurate recollection of the circumstances of her referral.

2448Ms. N.B. was 19 years old at the time of her referral. At that age, she had just completed her first year of university. When providing her police statement, she had thought she was 17 or 18 at the time of the referral, which would have placed her in high school, not university.

2449She believed that her family doctor referred her to Dr. Sloka after she passed out during final examinations at the end of her school year. However, her medical file established that an ER doctor from St. Mary’s hospital made the referral after a visit on March 16, 2015. According to ER records, she had reported suffering from chest pains and headaches for approximately one year; she also reported losing consciousness at school in March, during a mid-term examination, not at the end of the year during a final examination. Ms. N.B. also reported previously sustained concussions. The ER records also noted that she was on birth control and that her ECG and CT scans were negative. Ms. N.B. did not remember that ER visit, the tests conducted at the ER visit, and the resulting referral to Dr. Sloka by the ER doctor. However, she did recall that at some point she went to the hospital when she experienced chest pain. She surmised that the March 16th visit may have been that occasion.

2450Dr. Sloka’s medical records indicate that her first appointment with him occurred on May 11, 2015, at 9:00 a.m. Following that appointment, Dr. Sloka booked a pelvic ultrasound for Ms. N.B. He also scheduled a follow-up visit. She attended the pelvic ultrasound but never showed for her follow-up appointment.

The Evidence of Ms. N.B.

2451Ms. N.B. was 25 years old when she testified.

2452Ms. N.B. testified that she went to the appointment with her mother. According to her evidence in-chief, she checked in at reception and then sat in a chair in the hallway across from the reception window. She did not recall sitting in a waiting room.

2453Ms. N.B. recalled Dr. Sloka coming into the hallway from a doorway near where she and her mother sat. He did not introduce himself, nor confirm which of the two women were his patient. Instead, he simply handed her a gown and asked her to go to a nearby change room to put the gown on. He pointed to the nearby change room and told her to take everything off. She asked whether she had to remove even her underwear, to which Dr. Sloka allegedly replied, “Everything off.” All this discussion allegedly occurred in the hallway in the presence of her mother.

2454On Ms. N.B.’s account, she then went to the nearby change room, the precise location of which she could not remember. She recalled it being a simple room. She got changed into the gown as instructed and then returned to sit in the hallway with her mother. The Crown called no other evidence to establish such a room existed. The floor plan tendered as part of Exhibit 2, together with the totality of the evidence at this trial, satisfies me that this change room did not exist. Nevertheless, Ms. N.B. denied that Dr. Sloka had provided her with a gown in the examination room before allowing her the get changed in privacy there. On her evidence, she put on her gown in a change room down the hall before ever going into Dr. Sloka’s examination room.

2455Ms. N.B. was unsure what she did with her clothing after she put on her gown.

2456According to Ms. N.B., the gown covered her entire front and back, and it was tied at the side. She described getting into the gown being like putting a coat on backwards. She denied that the gown was designed to be tied at the back. In cross-examination, she was shown the hospital-issued gowns from Dr. Sloka’s office, which were depicted in a photograph in Exhibit 2. She did not think the top gown depicted the photograph was like her gown. The bottom gown in the photograph was not clearly depicted; so, she was unable to say whether it as like her gown. In explaining how she knew that her gown did not open to the back, she testified that she would not have walked down the hallway [from the non-existent changeroom] with her backside exposed.

2457Ms. N.B. testified that she waited for what seemed like a long time before Dr. Sloka returned. At this point, Dr. Sloka introduced himself, asked if she was N., and said he was there to do her assessment. Ms. N.B. looked at her mom and asked, “Are you coming in?” According to Ms. N.B., Dr. Sloka said, “No. It’s alright. You can just come in.” – or words to that effect. She interpreted Dr. Sloka to be saying that she should come into the office alone. Her mother stayed in the hallway.

2458Ms. N.B. described the office has having a desk against the wall opposite the entrance. The desk sat beneath a window on that opposite wall. She testified that an examination table was on the right wall, near the corner of the room to the right of the entry door. She sat on the examination table and Dr. Sloka sat on a swivel chair near his desk. She also recalled an eye chart being on the left wall, opposite the examination table.

2459According to Ms. N.B., she sat on the examination table and discussed her medical history with Dr. Sloka at the outset of the appointment. Dr. Sloka asked questions, and she provided answers. She agreed that she provided much of the information contained in Dr. Sloka’s consultation letter: she told Dr. Sloka she had been experiencing headaches for about 3 years; she told him about her rugby injury 3 years previously; she thought the head injury could be related to her headaches; she told him that the frequency of headaches had been increasing; she felt headaches at the front and on both sides of her head; the headaches involved pressure and throbbing, at any time of day; about two months prior to her appointment she lost consciousness during a school examination; and she had been experiencing irregular menstrual cycles for quite a while. She also agreed that it was possible she discussed menstrual pain with Dr. Sloka, but she did not recall the topic of an abdominal examination arising. She did not recall that she had recently ceased taking birth control medication. She also did not recall discussing with Dr. Sloka the relationship between birth control medication and her headaches.

2460Ms. N.B. testified that while she was still in the office, Dr. Sloka tested her eyesight by asking her to look at the eye chart. He also tested her reflexes as she sat on the examination bed that was in the office.

2461Ms. N.B. also recalled Dr. Sloka listening to her breathing with a stethoscope as she sat on the examination table in the office. In her evidence in-chief, she could not recall whether the stethoscope was placed on her skin or over top of her clothing. In cross-examination, defence counsel took Ms. N.B. through the various stages of Dr. Sloka’s standard cardiac examination, including the respiratory component of a cardiac examination. Broadly speaking, Ms. N.B. could not remember but could not dispute that Dr. Sloka performed a cardiac examination. She acknowledged the possibility that some components of a cardiac examination may have occurred, and she disputed the possibility of others. Among the things disputed were the following: that she sat with her legs flat on the examination table at the commencement of the stethoscope examination; that her gown was open to the back; that she lay down for some portions of the stethoscope examination; and that her left breast, and only her left breast, was exposed during the stethoscope examination. Among the things Ms. N.B. could not recall but could not dispute included the following: that he listened to four to five different areas on her chest with the stethoscope, as depicted in exhibit 139; and that he placed the stethoscope on her bare skin on her chest. Unlike her evidence in-chief, Ms. N.B. agreed in cross-examination that Dr. Sloka placed the stethoscope on her bare skin on her back. However, she testified that he slid the stethoscope below her gown. On her evidence, her gown remained on for the whole stethoscope examination. If he examined her chest with the stethoscope, he must have done so by placing the stethoscope beneath her gown.

2462Ms. N.B. expressed certainty about aspects of the layout and contents of Dr. Sloka’s office that proved to be demonstrably false. For instance, Ms. N.B. was certain that there was an examination bed in Dr. Sloka’s office, just as she was certain that Dr. Sloka had an eye chart in his office. Ms. N.B. also had a clear memory of traversing a short hallway/passageway to get to the adjacent examination room. She drew a diagram of the office and the examination room. While she could not express confidence in the scale of the items depicted on the diagram, she was very confident as to the relative orientation of the items and objects depicted. Upon being shown some photographs of Dr. Sloka’s waiting room from Exhibit 2, her memory about the waiting room was refreshed, and she accepted that her memory about waiting in a hallway was incorrect. When shown photographs of Dr. Sloka’s office from Exhibit 2, she did not accept that these photographs depicted Dr. Sloka’s office. She acknowledged that the orientation of things in her diagram and her memory was inconsistent with the photographs of Dr. Sloka’s office. Still, she remained confident about the accuracy of her diagram. Regarding the photographs of Dr. Sloka’s examination room, she was uncertain as to whether they indeed depicted Dr. Sloka’s examination room. As for the door that connected the two rooms, she did not recall a door being present, but rather a small connecting hallway.

2463According to Ms. N.B., after the initial consultation, Dr. Sloka told her that he would like to do an examination in the adjoining examination room. She recalled him telling her that the gown would be off during the examination. She testified that Dr. Sloka said he would be looking for irregular moles, hairs, and things on her skin. However, in her statement to the police, she told police that Dr. Sloka’s justification for the examination was “…in case there were any irregular hairs or any irregular anything.” She made no mention of moles to the police.

2464Ms. N.B. recalled speaking to Dr. Sloka more about her symptoms when she initially entered the examination room. She could not recall whether she had removed her gown by this point. According to her memory, they spoke about the back of her neck and how Dr. Dunning thought she might be having tension headaches. She recalled Dr. Sloka looking at her shoulders and neck. She did not recall him touching her at this point, but previously she had told the police he was touching her shoulders and neck as he examined her. She testified that Dr. Sloka then told her that they might as well do a full examination.

2465Although she cannot remember with precision when the gown came off, Ms. N.B. testified that she was naked at the commencement of what she described as the “full examination.” According to Ms. N.B., she stood in place, with her feet shoulder width apart, as Dr. Sloka began the examination. This account differs somewhat from her account to the police, where she indicated that she started to walk towards the examination table from her position in the middle of the room before Dr. Sloka stopped her and said, “No, you can stand.” In any event, Dr. Sloka sat on a swivel chair between her and the window as she stood facing the window. He began the examination by placing a hand on either side of her leg, beginning at the feet, and sliding his hands up to the top of her legs. He did the same thing on the other leg. After sliding up her second leg, he held each of her labia between two scissored fingers and massaged her labia. Although she could not be certain, she thought he may have touched her labia after sliding his hands up her first leg. On her evidence, she assumed Dr. Sloka was looking for moles, hairs, and other irregularities.

2466Ms. N.B. testified that months after the examination, she noticed a hair on her forearm and, seeing the hair, told herself that the examination must have been normal. However, in her police statement, she informed the police that Dr. Sloka had in fact noticed that very hair during the examination, and he told her that the hair was exactly what he was looking for. She informed the police that she then allowed Dr. Sloka to continue to examine her. When confronted with this prior inconsistent statement, Ms. N.B. adopted it as true, saying her memory had been refreshed. Despite adopting the truth of this prior statement, Ms. N.B. never testified that Dr. Sloka examined her arms during the examination.

2467In cross-examination, Ms. N.B. agreed that, with each step of the examination, it was apparent to her that the examinations were not medical in nature. Every touch was non-medical. The failure of Dr. Sloka to provide advance notice of these touches was a red flag for her. Similarly, the failure to obtain consent was a red flag for her. Ms. N.B. nevertheless testified that she subjectively consented to these examinations, because “I was trusting a medical professional.”

2468Contrary to her claim that she trusted her medical professional, Ms. N.B. testified that Dr. Sloka’s conduct made her so uncomfortable that she turned around, thus putting an end to the touching that had been occurring during the frontal examination. She believed that she may have asked Dr. Sloka at this point about the relevance of his examination to her presenting complaint. In response, Dr. Sloka allegedly repeated that he was looking for irregular moles, hairs, and markings on her skin. In other words, she alleged that he was not responsive to her question.

2469According to Ms. N.B., when she turned around, Dr. Sloka also said, “That’s better. This is great.” He then allegedly proceeded to grope her buttocks with his entire hands. Despite what on its face appears to be a description of overt sexual conduct, Ms. N.B. again testified, “I was trusting my medical professional.” Ms. N.B. testified that after groping her buttocks, Dr. Sloka again massaged her labia between two scissored fingers. She testified that she felt extremely uncomfortable and overwhelmed and, despite the trust she purported to have in her medical professional, moved away from Dr. Sloka and towards the examination table.

2470Ms. N.B. testified that she then sat on the examination table. She believed she went on her own initiative. According to her, Dr. Sloka then told her that she could lay down if she felt more comfortable. For reasons she could not fully articulate, she believed she understood that Dr. Sloka would be performing a pelvic examination next. Her memory here was vague. She believed he mentioned that he was going to do a pelvic examination. She believed the pelvic examination related to their earlier discussions about her menstrual cycle.

2471Ms. N.B. described laying down on the examination table, spreading her legs, and bending her knees. She believed she may have assumed this position without instruction, noting that it was just natural for her to bend her legs in this fashion. Dr. Sloka placed one hand on her thigh. Using his other un-gloved and un-lubricated hand, he massaged her labia before he inserted his fingers into her vagina and moved them around. She did not know what he was looking for. She did not recall him speaking as he examined her. She had previously experienced a bi-manual pelvic examination. She knew what it was supposed to be like. She knew that placing the other hand on the thigh was wrong. He didn’t explain the examination as it was unfolding. She knew this was wrong. She also knew that this type of examination was always done with gloves and lubricant. So, she knew his method was wrong. She also knew that it was clearly inappropriate for him to insert his bare fingers in her vagina. She purported to have become overwhelmed with emotion because she knew it was wrong. However, she denied the suggestion that she knew at the time that there was nothing medical about Dr. Sloka’s conduct. Later in cross-examination, she would say the opposite.

2472Once the pelvic examination ended, Dr. Sloka moved on to a breast examination. She sat upon on the bed with her legs over the side. Dr. Sloka placed one hand on each breast. He was feeling up and around each breast. His hands were closed around each breast. She described it as a cupping motion. At one point his face and head were situated close to her breasts, almost between his hands. In her evidence in-chief, she testified that Dr. Sloka was looking for moles and irregular hairs while in this position. In cross-examination, she recalled that Dr. Sloka was listening to her breathing, without a stethoscope, by asking her to breath in and out. He allegedly had his head turned to one side, close to her breasts, while he listened to her breathing with his ear. He listened to her breathing as he continued to fondle her breasts. In cross-examination, Ms. N.B. disputed defence counsel’s suggestion that the only contact with her breasts involved incidental contact with her exposed left breast during a cardiac examination. She maintained her allegation that a breast examination occurred. She testified that the breast examination did not feel medical. She did not know its purpose. There was nothing medical about it. Dr. Sloka’s breast examination ran contrary to her expectations regarding the proper method of conducting a breast examination. There was no doubt in her mind that his conduct was not medical. She was uncomfortable. She recalled breathing heavily and fidgeting. Eventually, Dr. Sloka stopped the breast examination.

2473As she sat there breathing heavily and fidgeting, Dr. Sloka allegedly next suggested meditation breathing. He also suggested that she could lay down and shut her eyes, if she wanted, and continue deep breathing.

2474After defence counsel took her through all the alleged examinations in cross-examination, Ms. N.B. testified that, during each step of the examinations, it was apparent to her that these examinations were not medical. However, she also paradoxically testified that she was trusting a medical professional.

2475Ms. N.B. testified that, in accordance with Dr. Sloka’s suggestion, she laid down naked on the examination table. After she laid down, she believed they discussed her medication options. She then asked whether her mother could come into the examination room. Dr. Sloka agreed but had her put on a gown before her mother came in. Once her mother came in, they talked about medications again. Ms. N.B. also recalled Dr. Sloka suggesting a pelvic ultrasound, to further explore issues involving her menstrual cycle and flow.

2476Ms. N.B. testified that, immediately following her appointment, she purportedly felt uncomfortable, creeped out, and gross. She had no interest in returning. However, Ms. N.B. agreed that a follow up appointment had been booked for June 22, 2015. She did not recall but did not dispute that she planned to return to see Dr. Sloka. She did not recall if she stopped to obtain the follow-up appointment before leaving the first appointment. She agreed that she may have booked the follow-up appointment over the phone. She ultimately failed to show up for this appointment, but she never cancelled it ahead of time. She did, however, attend the pelvic ultrasound booked by Dr. Sloka.

2477Given the structure of Ms. N.B.’s narrative, it proved impracticable to summarize her response to the entirety of the defence version of the appointment within the thread of her own narrative. Consequently, her response to the defence theory about the events of her appointment will be summarized now.

2478In cross-examination, Ms. N.B. disagreed that her initial consultation with Dr. Sloka occurred in the office which is depicted at pages six and seven of Exhibit 2. Her consultation allegedly occurred in a different office. The rectangular desk she remembered is absent from the photographs. The examination table she remembered is also absent. Likewise, the eye chart she remembered is absent. Also, the photographs did not depict the passageway between Dr. Sloka’s office and examination room. Instead of a passageway, the photographs depicted a door connecting the office to the examination room.

2479Ms. N.B. also disagreed with defence counsel’s suggestion that her mother was present in the office for the initial consultation.

2480Ms. N.B. agreed that Dr. Sloka proposed a neurological examination. Further, she could not recall but could not dispute that Dr. Sloka proposed a cardiac examination. However, she disagreed that Dr. Sloka told her that these examinations would require her to wear a gown. To her recollection, she was already wearing a gown at the commencement of the consultation in his office, having already put one on in a small change room somewhere down the hall.

2481Although Ms. N.B. took issue with the accuracy of the office photographs, she agreed that the examination room depicted in the photographs in Exhibit 2 could have been Dr. Sloka’s examination room.

2482Ms. N.B. denied the suggestion that all examinations occurred in the examination room. She maintained that Dr. Sloka performed some examinations in his office before she went to the examination room.

2483Ms. N.B. also denied the suggestion that Dr. Sloka handed her a gown upon their arrival in the examination room. She also denied the suggestion that the gown opened at the back. Additionally, she denied the suggestion that Dr. Sloka asked her to remove her clothing but keep her underwear on.

2484When asked about Dr. Sloka’s standard neurological examination, Ms. N.B. denied that Dr. Sloka shone an ophthalmoscope into her eyes. She could not recall whether Dr. Sloka performed other aspects of his standard neurological examination. If he did perform those tests, she maintained that these tests were done in the office, not in the examination room.

2485Ms. N.B. did not specifically recall a cardiac examination but could not dispute that one occurred. If it occurred, it occurred in the office, not the examination room. She also specifically recalled Dr. Sloka employing a stethoscope to listen to her back when she was in the office. On her account, her gown remained on for this stethoscope examination; although, he did apply the stethoscope to her bare skin on her back by sliding it beneath her gown. She denied removing the front left portion of the gown to facilitate a cardiac examination.

2486Ms. N.B. also denied that Dr. Sloka performed an abdominal examination. She also did not recall feeling abdominal pain that day, but agreed it was possible. She also agreed it was possible that they also discussed menstrual pain. Ms. N.B. also did not remember Dr. Sloka listening for bowel sounds. She also did not recall Dr. Sloka palpating her abdomen to search for areas of pain and discomfort. However, she could not dispute that this occurred. If it occurred, it occurred in the office, not the examination room. She could not recall but could not dispute that Dr. Sloka located pain in her lower left abdominal quadrant.

2487Ms. N.B. rejected the suggestion by the defence that Dr. Sloka did not perform a head-to-toe examination of her in the middle of the room while she stood naked.

2488Ms. N.B. also rejected the suggestion by the defence that no pelvic examination occurred.

2489Likewise, Ms. N.B. rejected the suggestion by the defence that no breast examination occurred.

2490Ms. N.B. also rejected the suggestion by the defence that, after completing her examination, Dr. Sloka departed the room to allow her to get changed in privacy.

2491Similarly, Ms. N.B. rejected the suggestion that she joined Dr. Sloka and her mother in Dr. Sloka’s office after the examination. To her recollection, her mother joined them in the examination room. In her memory, this is where the post-examination discussion occurred in the examination room, not the office.

2492Ms. N.B. could not recall but did not dispute the Dr. Sloka reported on the results of his examinations, which included normal blood pressure, a normal neurological examination, and a normal cardiac examination.

2493Ms. N.B. could not recall but could not dispute that Dr. Sloka prescribed her Topiramate for her headaches. She agreed, though, that he discussed her use of Tylenol.

2494Ms. N.B. could not recall but could not dispute that Dr. Sloka raised the possibility that she suffered from polycystic ovarian syndrome. Similarly, she could not recall but could not dispute that he spoke to her about the potential connection between PCOS and headaches. Also, she could not recall but could not dispute that Dr. Sloka discussed the relationship between hormones and headaches.

2495Ms. N.B. could not recall but did not dispute that Dr. Sloka ordered bloodwork and a pelvic ultrasound.

2496She also could not recall but did not dispute that Dr. Sloka proposed a follow up appointment, which would occur after her testing.

2497She also could not recall attending for a pelvic ultrasound. She acknowledged, though, that the record at tab 6 of her medical records indicated that she attended for a pelvic ultrasound.

2498According to Ms. N.B., she and her mother spoke about her appointment on their way out of the building. Her mother asked her what was going on. She told her mom that she did not feel comfortable, that Dr. Sloka was a creep, and that she was not going back there. She believed that she told mother that Dr. Sloka touched areas that did not make sense to her, but she did not give further details. She did not believe she told her mother what parts of her body were touched or that they were sexual parts. She purportedly felt extremely vulnerable, confused, embarrassed, and overwhelmed.

2499According to Ms. N.B., her mother suggested speaking to Dr. Dunning. When she spoke to Dr. Dunning, she said that she did not want to see Dr. Sloka anymore, that she was emotionally discomforted, and that some of the examination did not feel appropriate. Dr. Dunning did not ask any questions to probe the reason for her discomfort. Ms. N.B. did not share any further details with Dr. Dunning.

2500Medical records from Dr. Dunning’s office were tendered in evidence. Those records showed that Ms. N.B. met with Dr. Dunning on November 13, 2015, about five months after Ms. N.B.’s no-show for her second appointment. Dr. Dunning’s notes for that visit indicated that Ms. N.B. “does not want to see dr sloka in f/u.” The notes do not record that Ms. N.B. provided any reason for her decision.

2501On December 31, 2019, her mom sent her a text containing a video of a news report about Dr. Sloka. She watched the video. She could not recall if the video contained details about the allegations made against Dr. Sloka. That same night, she googled Dr. Sloka to seek further information about whether he was still practicing. She testified that she would have been interested to see whether the complaints of others were similar to her own experience. She would have been interested in any details that were reported. When defence counsel took her to various allegations reported in the media prior to December 31, 2019, Ms. N.B. disagreed that she had seen most of these allegations, including allegations of inappropriate draping, naked examinations, skin examinations, and penetration of the vagina with an ungloved finger. Ms. N.B. only allowed for the possibility that she may have seen reports about Dr. Sloka cupping patients’ breasts and removing a patient’s gown. Ms. N.B. explained that she did not want to read details involving Dr. Sloka’s conduct towards other patients. She did not want to relive her own experience.

2502On January 1, 2020, she contacted the police. She then attended for a police interview on January 5, 2020.

The Evidence of J.A.B.

2503J.A.B. confirmed that Ms. N.B. voiced concerns about the appointment immediately after the appointment. However, there were significant inconsistencies between the evidence of J.A.B. and N.B. First, contrary to the evidence of N.B., J.A.B. testified that she sat in Dr. Sloka’s office for the duration of the appointment. She testified that when her daughter returned from the examination room, she appeared upset and uncomfortable. She testified that, as they were leaving, N.B. told her “That was weird. I’m never going back to see him.” After further questions, J.A.B. testified that her daughter told her that Dr. Sloka “touched” her “boobs”, thereby contradicting N.B.’s testimony that she did not provide her mother any specifics to explain her discomfort. According to J.A.B., Ms. N.B. did not elaborate on the nature of the breast touching and J.A.B. did not seek any elaboration. J.A.B. concluded that Dr. Sloka “must have a reason for why he would have touched her.” Importantly, J.A.B. previously worked as a frontline protection worker for Family and Children’s Services. She was fully aware of all the reporting options relating to doctor misconduct, including contacting the College of Physicians and Surgeons.

2504J.A.B. testified that she wanted to go back inside and confront Dr. Sloka. She believed that she may have expressed this desire to her daughter. However, she did not end up going back inside. In her mind, he was a specialist. To her, that meant he had special skills, which he honed after many years in medical school. She was trying to figure out in her mind why and how investigating headaches would involve touching her daughter’s breasts. She testified that she ended up giving Dr. Sloka more deference than she should have. As a specialist, she thought and hoped that he was really trying to figure out what was wrong with her daughter. She was trying very hard to rationalise what had gone on.

2505J.A.B. testified that she ended up talking to Dr. Dunning (their family doctor) about it, because it bothered her so much. She was unable to pinpoint a date for this appointment. She believed she spoke to Dr. Dunning alone. She recalled telling Dr. Dunning exactly what her daughter had reported. J.A.B. testified that Dr. Dunning had somewhat of a blank look on her face. She did not recall Dr. dunning saying anything in response to Ms. N.B.’s revelations. J.A.B. testified that she was looking for a response from Dr. Dunning, one that might verify her concerns. She did not get that from Dr. Dunning. After seeing Dr. Dunning, she did not pursue her concerns further. Instead, she just ensured that they did not go to any further appointments with Dr. Sloka.

The Evidence of Dr. Bril

2506Dr. Bril opined that the alleged skin, pelvic, and breast examinations were not neurologically warranted. This evidence was not controversial. Dr. Sloka agreed. He denied performing these examinations.

2507Dr. Bril provided conflicting opinions on the appropriateness of a cardiac examination. In her evidence in-chief, she opined that a cardiac examination was not neurologically warranted. In cross-examination, she agreed that a cardiac examination was reasonable considering Ms. N.B.’s history of headaches and her loss of consciousness.

2508Dr. Bril also opined that Dr. Sloka had no neurological justification for performing an abdominal examination on Ms. N.B. In her opinion, Dr. Sloka ought to have referred Ms. N.B. to her family doctor to investigate any complaints of lower left quadrant pain. Similarly, she felt Dr. Sloka stepped out of his neurological lane when ordering blood work and a pelvic ultrasound to investigate the cause of Ms. N.B.’s abdominal pain. Dr. Bril testified that the investigation of PCOS is outside of the field of neurology and is not something that should be diagnosed or managed by a neurologist. She offered no opinion about any connection between headaches and PCOS.

2509Dr. Bril opined that Dr. Sloka also stepped out of his neurological lane when inquiring about Ms. N.B.’s menstrual cycles. In her opinion, Ms. N.B.’s headaches were tension headaches, not migraines. Consequently, Ms. N.B.’s menstrual cycles were irrelevant to her headaches.

The Evidence of Dr. Sloka

2510Dr. Sloka did not remember his appointment with Ms. N.B. He relied upon his consultation letters for the truth of their contents. He relied upon the rest of Ms. N.B.’s medical chart for necessary context.

2511Dr. Sloka obtained Ms. N.B.’s history during a consultation in his office at the outset of the appointment, which was his usual practice. In his consultation letter, Dr. Sloka documented that Ms. N.B. began experiencing headaches three years before seeing Dr. Sloka. He also noted that she suffered from a head injury and fractured nose when playing rugby. In the preceding year or two, her headaches became more frequent. She also described losing consciousness while she was sitting during an examination about two months prior to the appointment. Dr. Sloka testified that he considered the loss of consciousness while in the seated position to be abnormal.

2512Dr. Sloka also obtained a history of Ms. N.B.’s menstrual cycles as part of his standard screening questions for headache triggers. He wanted to know whether her headaches were associated with her cycles.

2513Dr. Sloka denied asking Ms. N.B. to change into a gown before they ever entered his office for the initial consultation. There was no changeroom in his wing of the hospital. In answer to the evidence of Ms. N.B. and her mother, he also testified that the hallway outside his office did not contain chairs in which patients could sit and wait. His evidence was supported by the floor plan and photographs included in Exhibit 2.

2514Dr. Sloka also denied performing any kind of examination while inside his office. He had no eye chart in his office. He had no examination table in his office. He also denied testing Ms. N.B.’s reflexes in his office. Elsewhere in his evidence, he explained that he needed patients to sit on the examination table to properly test leg reflexes. Their legs must dangle during the reflex test. The chairs in his office are too low to the grown to permit a patient’s leg to dangle. Dr. Sloka maintained that he conducted reflex testing and the rest of his standard neurological examination in the examination room, not his office.

2515In his consultation letter, Dr. Sloka documented a neurological examination. He also documented obtaining Ms. N.B.’s blood pressure and heart rate. In addition, adjacent to these vital signs, Dr. Sloka documented, “Current examination was normal today.” Dr. Sloka testified that the word “current” was a common speech recognition error that occurred when he documented cardiac examinations during dictation. He inferred from the context that his speech recognition program had erroneously recorded the word “current” instead of the word “cardiac.” That inference was supported by his reference to “cardiac testing” in the impression portion of his consultation letter. Dr. Sloka therefore believed he had performed a cardiac examination. In his examination paragraph, Dr. Sloka also documented, “She has some lower left quadrant pain.” From that sentence, he concluded that he had performed an abdominal examination.

2516Dr. Sloka denied performing skin, vaginal, or breast examinations. These examinations were not warranted. Accordingly, he denied scissoring Ms. N.B.’s labia, groping her buttocks, touching her breasts, and inviting her to partake in naked meditation.

2517Dr. Sloka did not consider a seizure as a plausible explanation for Ms. N.B.’s loss of consciousness. He explained that he did not consider the possibility of a seizure, because Ms. N.B. did not report any shaking. Accordingly, he had no reason to conduct a skin examination as part of his standard approach to the assessment of a possible seizure.

2518Dr. Sloka disagreed with Dr. Bril that an inquiry about Ms. N.B.’s menstrual cycles was not neurologically warranted in Ms. N.B.’s case. He did not believe he had stepped out of his neurological lane. Dr. Sloka noted that Ms. N.B. had reported throbbing headaches as part of her history. Accordingly, he considered some of her headaches to have migraine-like qualities. He disagreed with Dr. Bril’s opinion that all of Ms. N.B.’s headaches were tension headaches. She had both tension features and migraine features in her headaches. In his experience, with some patients, the classification of their headaches can become muddled. He observed that he ultimately prescribed Topiramate for Ms. N.B., which he only would have prescribed if he believed migraines were a component of her headaches. He also noted that Ms. N.B. reported that her baseline headache had disappeared since the ER doctor directed her to cease taking her birth control medication. Consequently, he inferred from is his medical file that Ms. N.B.’s headaches potentially had a hormonal component. He inferred that he ultimately ordered hormonal bloodwork for this very reason. He did not see himself as stepping outside of his lane when inquiring about Ms. N.B.’s menstrual cycles and ultimately ordering bloodwork.

2519Dr. Sloka testified that Ms. N.B. would have been gowned for both the neurological and cardiac examinations. He would have discussed the usual gowning procedure for these examinations. To facilitate the cardiac examination, he not only would have requested Ms. N.B. to wear a gown; he would also have requested that she remove her top and bra. He was not certain whether he would have asked Ms. N.B. to remove her pants for the neurological examination. However, he testified that he would not have asked Ms. N.B. to remove her underwear for any of her examinations.

2520Dr. Sloka also denied that Ms. N.B. wore the type of gown she described. The hospital provided the gowns for his clinic. Those gowns are depicted in Exhibit 2. All gowns were the same. They tied at the neck. He instructed his patients to wear the gown with the opening at the back. His clinic did not have the type of gowns Ms. N.B. described. The gowns in his office were designed to be tied at the back, leaving the back open.

2521Dr. Sloka agreed that he would have examined Ms. N.B.’s neck as part of his assessment of her headaches. He would have done so in his standard fashion. Elsewhere in his evidence, he explained that he would examine the necks of patients to assess whether the headaches were triggered by tension. Dr. Sloka denied that Ms. N.B. stood naked while he examined her neck. During a neck examination, his patients sat on the examination table, wearing their gowns.

2522Dr. Sloka testified about his justification for a cardiac examination. A cardiac examination formed part of his standard approach for headache patients. Also, a cardiac examination was warranted due to Ms. N.B.’s loss of consciousness. These justifications were ultimately not disputed by Dr. Bril, so I will not delve further into them.

2523As for the abdominal examination, Dr. Sloka believed he conducted it because of a complaint about pain in the lower left quadrant of Ms. N.B.’s abdomen. He recorded this complaint in the examination section of his consultation letter instead of the history section of his letter. He agreed he should have recorded this report in the history portion of his letter.

2524Dr. Sloka testified that, according to his general training, an abdominal examination is indicated when a patient reports lower left quadrant pain. When asked to explain his medical rationale for the examination, Dr. Sloka provided several reasons: she had an unusual loss of consciousness; sometimes you can find things in the abdomen that can explain a loss of consciousness; she also had irregular cycles; he performed the examination to ensure there was not anything obvious that might explain her symptoms.

2525Dr. Sloka testified that the term “left lower quadrant pain” is not a term used to describe pelvic pain. It is a term used to describe abdominal pain – a different area of the body. Pelvic examinations are meant to identify pelvic pain, not abdominal pain. In cross-examination, the Crown suggested that a complaint of lower left quadrant paint would give him cause to conduct a bimanual pelvic examination. Dr. Sloka replied that a bimanual pelvic examination targets the pelvis, not the abdomen. He rejected the Crown’s suggestion that a bimanual pelvic examination could be used to investigate pain in the lower left quadrant of the abdomen.

2526After taking Ms. N.B.’s history, taking Ms. N.B.’s vital signs, and performing a neck, neurological, cardiac, and abdominal examinations, Dr. Sloka concluded that Ms. N.B. had suffered a single loss of consciousness without any seizure activity. He found her cardiac testing reassuring. He prescribed Topiramate for Ms. N.B.’s headaches. He also ordered hormonal bloodwork, given her report of irregular menstrual cycles. In addition, he ordered an ultrasound of Ms. N.B.’s pelvis. Lastly, he instructed Ms. N.B. to reduce her use analgesic medication, to avoid “rebound headache.”

2527Dr. Sloka could not be sure why he ordered a pelvic ultrasound for Ms. N.B. He inferred that he had trouble localizing her left lower quadrant pain. He testified that abdominal examinations are not an effective means of localizing pain. In his requisition for the pelvic ultrasound, he wrote “query polycystic ovarian syndrome.” Other than reporting Ms. N.B.’s irregular cycles, he did not record anything else in the consultation letter to suggest he was considering PCOS. Dr. Sloka confirmed in cross-examination that he believed that PCOS could result in hirsutism – excessive hair on the face – but he was unaware of whether it could result in excessive hair elsewhere on the body. He was unaware of whether that syndrome produced other skin manifestations and did not know whether investigation of this syndrome would justify a skin examination. Dr. Sloka’s subjective knowledge on this subject was not contradicted by any other admissible evidence.

2528Dr. Sloka had planned to see Ms. N.B. in six weeks for follow up. She never attended her follow up appointment.

Assessment of the Evidence and Analysis

2529Ms. N.B. was a manifestly unreliable and uncredible witness. Portions of her evidence were demonstrably false. Other portions of her evidence were contradicted by her police statement. At times her evidence was internally inconsistent. When questioned regarding these difficulties in her evidence, Ms. N.B.’s responses suggest that she did not always respond with complete candor. While the Crown relies upon Ms. N.B.’s prior disclosure to J.A.B. to rebut the suggestion that Ms. N.B.’s allegations have been motivated or tainted by exposure to news of the case against Dr. Sloka, that prior disclosure does not amount to even a faint echo of the bizarre and hyper-sexualized allegations Ms. N.B. made at trial. The vast majority of Ms. N.B.’s testimonial allegations are absent from the vague disclosure made to her mother, despite the fact that Ms. N.B. and her mother purportedly were close and communicated openly with each other, and despite the fact that Ms. N.B. purportedly knew that what transpired was not medical. To make matters worse, J.A.B.’s account of the vague disclosure contradicted that of Ms. N.B. Similarly, J.A.B.’s description of the appointment differed fundamentally from Ms. N.B.’s description.

2530I will begin by discussing the manifestly false aspects of Ms. N.B.’s evidence.

2531Ms. N.B. believed that her family doctor referred her to Dr. Sloka. GRH ER records established that the referral was made by an ER doctor.

2532Ms. N.B. testified that she and her mother waited in chairs in the hallway outside Dr. Sloka’s office. In her initial recollection, she sat in the hallway outside Dr. Sloka’s door. He came of his door, gave her a gown, and, in the middle of a hallway, told her that she would need to get completely undressed in the change room down the hallway. He then took her to a small changeroom. Afterwards, she returned to sit beside her mother in the hallway. All this evidence was demonstrably false. There were no chairs in the hallway. No change room exists. No other patient testified that they got into a gown before the commencement of their appointment. I do not accept that Dr. Sloka on this one occasion decided to tell a patient in a public area that he wanted them to get completely nude and get into a gown. It is so improbable as to be utterly unbelievable.

2533Ms. N.B. testified that her gown wrapped around her whole body and tied at the side. Dr. Sloka’s office had no such gowns. The evidence overwhelmingly establishes that the hospital only supplied his office with gowns that tied at the neck and could only be worn with the opening at the back or the front.

2534Ms. N.B. testified that Dr. Sloka’s office contained a rectangular desk, an examination table, and an eye chart. The office did not contain an examination table or an eye chart. His desk was not rectangular.

2535Ms. N.B. testified that she sat on an examination table when providing her medical history to Dr. Sloka in his office. Again, there is no examination table in Dr. Sloka’s office.

2536Ms. N.B. testified that Dr. Sloka tested her reflexes on her knees and had her look at an eye chart as she sat on the examination table in his office. An examination table is clearly required for Dr. Sloka to test the knee reflexes of his patients (the legs need to dangle from the table for this test), but this could not have occurred in Dr. Sloka’s office, because no examination table was present. She also could not have participated in a test on a non-existent eye chart.

2537Ms. N.B. testified that the office and examination room were separated by a short hallway. They were not. The two rooms were separated by a door.

2538In summary, Ms. N.B. purported to believe things that were simply not true. Parts of her narrative incorporated these demonstrably false facts. As a result, she remembered experiencing things that could not have occurred. As a result, she proved herself to be a fundamentally unreliable historian.

2539I would next like to discuss inconsistencies in Ms. N.B.’s evidence.

2540Ms. N.B. testified that Dr. Sloka told her that he wanted to examine her for moles, hairs, or skin irregularities, to see if there was a connection between these things and her headaches. In-chief, she had no recollection of whether he reported finding any. She claimed that months later she found a hair on her wrist. She testified that this hair was not discovered by Dr. Sloka. The discovery of this hair by her helped normalize the examination in her mind. In cross-examination, she testified that she noticed this same hair before her appointment with Dr. Sloka. Yet, she did not, on her account, draw it to his attention during his purported search for hairs. She also testified that she noticed this same hair after the appointment. In her police statement, Ms. N.B. told police that Dr. Sloka did indeed find that one hair on her wrist and he commented, “This is exactly what we’re looking for.” However, Ms. N.B.’s testimonial description of her examinations did not include an examination of her arms. As can be seen, Ms. N.B. gave wholly inconsistent versions of her discovery of this hair and Dr. Sloka’s discovery of this hair. Also, I reject as preposterous Ms. N.B.’s assertion that the discovery of a singe stray hair on her wrist months after an examination could somehow help normalize the alleged labia-scissoring and buttocks-squeezing that was allegedly conducted during a supposed search for hairs, moles, and skin markings.

2541While Ms. N.B. testified that Dr. Sloka purported to be looking for moles when he examined her body, she made no such claim to the police. In her police statement, she claimed, “… he had just said in case – if there were any irregular hairs or any irregular anything.” In cross-examination, she testified that by referring to “irregular anything” she meant to convey that Dr. Sloka had voiced an interest in any skin irregularities, including moles, hairs, and freckles. I find this explanation dubious, particularly in light of the significant likelihood of media tainting, which I will discuss momentarily.

2542In my opinion, Ms. N.B.’s evidence is also internally inconsistent. On the one hand, Ms. N.B. agreed repeatedly that she considered Dr. Sloka’s examinations to be non-medical and inappropriate. Defence counsel took her through each one of Dr. Sloka’s non-medical and inappropriate actions, clearly challenging Ms. N.B. to explain why she would consent to something she subjectively believed was improper. Repeatedly, Ms. N.B. explained, “I was trusting my medical professional.” However, that purported trust is belied by Ms. N.B.’s purported discomfort and resulting conduct during her examination. On her evidence, she became so uncomfortable when Dr. Sloka was scissoring her labia that she turned away from him. Then, after Dr. Sloka squeezed her buttocks and scissored her labia from behind, she once again became so uncomfortable that she walked away from him towards the examination table. That discomfort and her resulting behaviour is not consistent with her claim that she was trusting her medical professional. When contrasted with Ms. N.B.’s purported discomfort and resulting conduct, Ms. N.B.’s refrain of “I was trusting my medical professional” came across as a disingenuous dodge. Ms. N.B.’s claim that she trusted her medical professional is also at odds with her evidence that she expressed concern to her mother and that she did not want to return to see him. These incongruencies call into question the truth of the allegations and the discomfort that allegedly arose from them. Viewed in isolation, Ms. N.B.’s claim that she considered such blatantly sexualized conduct to be medically appropriate is a difficult proposition to accept, even when one considers her youthfulness and the dynamics inherent in a doctor-patient relationship. But for the incongruities present here, I might have been tempted to give Ms. N.B. the benefit of the doubt. However, having regard to her internally inconsistent evidence, and all the other frailties in her evidence, all doubt recedes. In my view, the inconsistencies and incongruencies suggest that Dr. Sloka did not do the patently sexualized conduct she ultimately alleged. The totality of the evidence satisfies me that Ms. N.B.’s complaint was dishonestly made. In saying this, I do not reject the possibility that she felt discomfort during her examination. I also do not reject the possibility that she trusted her medical professional. Discomfort and trust are not mutually exclusive conditions. However, I reject that any simultaneous trust and discomfort existed in tandem with the examinations she alleged. I am satisfied that what she alleged did not occur. Instead, I conclude that her trust and discomfort existed in tandem with the examinations that Dr. Sloka described.

2543Ms. N.B.’s evidence was also contradicted by her mother in some very fundamental ways, which fundamentally challenge Ms. N.B.’s characterization of the tenor of the visit. Ms. N.B. described an appointment where she was from the outset separated from her mother, where she was interviewed alone by Dr. Sloka, where Dr. Sloka proposed examinations to Ms. N.B. in the absence of her mother, where examinations were performed in both the office and the examination room, and where her mother was only allowed to participate after all the examinations were over. Her mother contradicted her on key aspects of this narrative. Unlike Ms. N.B., J.A.B. did not allege that Dr. Sloka provided Ms. N.B. a gown in the hallway or waiting room and ask that she go to a changeroom to put on the gown. J.A.B. also testified that Ms. N.B. did not get changed into a gown before they spoke to Dr. Sloka. Moreover, unlike Ms. N.B., J.A.B. testified that she sat in Dr. Sloka’s office with Ms. N.B. during the initial consultation. Dr. Sloka did not prevent her from being present for that discussion. Unlike Ms. N.B., J.A.B. agreed that no examination occurred in the office. Also, although J.A.B. testified that she remained in the office while the examination took place in the examination room, she did not allege that Dr. Sloka prevented her from joining Ms. N.B. for the examination. On the contrary, J.A.B. testified that she did not enter the examination room because Ms. N.B. was 19 years old and thus old enough to go into the examination room alone. J.A.B. left it up to her daughter to decide whether she wanted company. Ms. N.B. did not ask her mother to join her. J.A.B. also contradicted Ms. N.B.’s testimony regarding they types of examinations proposed by Dr. Sloka. While Ms. N.B. testified that Dr. Sloka informed her that he wanted to search for hairs, moles, and skin irregularities, when proposing an examination, J.A.B. recalled Dr. Sloka telling them that he wanted to listen to Ms. N.B.’s heart. To be fair, though, J.A.B. did not recall what other justifications or proposals might have been made. Like Ms. N.B., many details were lost to her memory. However, J.A.B. had a clear memory of Dr. Sloka proposing an examination that, according to Dr. Sloka’s standard method, would ultimately require Ms. N.B. to wear a gown and expose one breast. Contrary to Ms. N.B.’s evidence, J.A.B. testified that Ms. N.B. put on the gown after she went into the examination room, while J.A.B. sat waiting in the office, just outside the examination room door. Also, contrary to Ms. N.B.’s evidence, Dr. Sloka did not bring J.A.B. into the examination room for a discussion with Ms. N.B. at the conclusion of the examination. Instead, J.A.B. waited in the office while the examination occurred. Dr. Sloka and Ms. N.B. rejoined her in the office after the examination was over. She believed Dr. Sloka came back to the office first to allow Ms. N.B. to change.

2544I would now like to consider the contrast between J.A.B.’s and Ms. N.B.’s account of Ms. N.B.’s disclosure. In Ms. N.B.’s account, she told her mother, “Well, that was weird, I’m never going back there again.” Then she made a vague complaint that Dr. Sloka touched in areas that did not make sense to her. It is important to keep in mind here that both Ms. N.B. and her mother purported to have a close supportive relationship. They talked about a lot of things. Ms. N.B. trusted her mother. Despite allegedly feeling extremely uncomfortable after the appointment, she only disclosed that Dr. Sloka touched areas that did not make sense to her. She made no allegation of labia scissoring, no allegation of buttocks squeezing, no allegation of a breast examination, and no allegation of a naked meditation. She explained that she didn’t want to talk about it, but on her evidence, she nevertheless chose to talk about it. She raised the issue. She raised the issue to explain to her mother why she did not want to return. This is not a case of delayed disclosure, but rather a case of a material omissions during a disclosure. According to Ms. N.B., in response to these allegedly vague complaints, her mother proved herself devoid of curiosity about the source of her daughter’s discomfort. On the other hand, J.A.B. alleged that Ms. N.B. did in fact disclose that Dr. Sloka touched her “boobs.” That is a significant contradiction.

2545I do not accept J.A.B.’s claim that her daughter made a complaint about “boob” touching in the immediate aftermath of the appointment. Similarly, I do not accept J.A.B.’s evidence that she subsequently relayed this complaint to Dr. Dunning, the family doctor. J.A.B. was a former child protection worker who was well aware of the existence of the CPSO and who was accustomed to advocating for those in need of protection. She has since shown herself to be a staunch advocate for her daughter, who, with little factual basis, later urged her daughter to lodge a police complaint. Yet, on her evidence, she did not make any attempt to explore the nature of her daughter’s complaint about boob touching. I pause here to note that she did not allege that her daughter complained about a breast examination. No. The complaint was allegedly about boob touching. She was purportedly concerned enough to raise the issue with her family doctor. Surely, J.A.B. would want more detail, and not simply silently deliberate about the implications of that vague disclosure. By all accounts she was an involved and caring mother who enjoyed an open and communicative relationship with her daughter. Interestingly, J.A.B.’s memory evolved during trial. For the first time in cross-examination, she alleged that Ms. N.B. had told her that Dr. Sloka touched her breasts beneath her gown. That allegation was absent from both J.A.B.’s police statement and her testimony in-chief. I find it highly unlikely that such an obviously partisan witness would omit such an important allegation at such critical moments. Had such a detail been shared by Ms. N.B., I find it difficult to accept that J.A.B. would have eventually given Dr. Sloka the benefit of the doubt, as she claims. Moreover, had she given Dr. Sloka the benefit of the doubt, as claimed, I find it hard to understand why she would then purportedly raise the issue with her family doctor. According to J.A.B., she went to her family doctor to discuss a complaint that was, by her daughter’s design, devoid of full factual detail. Also, the Crown tendered no evidence from Dr. Dunning’s records, or from Dr. Dunning herself, to support J.A.B.’s claim that she discussed her concerns with Dr. Dunning. Yet, the Crown tendered evidence that gives rise to the expectation that Dr. Dunning would in fact have recorded such a complaint if it had been made. That expectation comes from documentation Dr. Dunning’s file for Ms. N.B., in which Dr. Dunning recorded Ms. N.B.’s desire to stop seeing Dr. Sloka. This documentation suggests that Ms. N.B. felt more comfortable with a female neurologist. It does not support the contention that either Ms. N.B. or her mother made allegations of inappropriate touching. Accordingly, I disbelieve J.A.B.’s claim that she relayed to Dr. Dunning her daughter’s allegation of breast touching. Ms. N.B. never made such an allegation. I disbelieve J.A.B.’s assertions to the contrary.

2546Four years later, in 2019, J.A.B. shared a video of a news story about Dr. Sloka facing over 60 criminal charges. Her daughter replied, “OMFG OMFG ON… [illegible due to screen reflection] I FUCKING TOLD DR DUNNING” In answer to that, despite purportedly having virtually no factual context, J.A.B. replied, “AND NOW YOURE GOING TO TELL THE POLICE.” That reply suggests to me that J.A.B. was encouraging Ms. N.B. to make a police complaint despite not knowing whether such a complaint was even warranted. Later, in that text exchange, Ms. N.B. told her mother, “I legit KNEW he over groped.” The term “over groped” does not come close to adequately characterizing the allegations Ms. N.B. has ultimately testified about in court.

2547I would now like to discuss the prospect N.B.’s and J.A.B.’s evidence have been tainted by media consumption.

2548Both Ms. N.B. and her mother viewed the same news video on the same day, which reported Dr. Sloka facing 63 criminal charges. Ms. N.B. purportedly contacted the police the very next day. The video aired on December 10, 2019. However, Ms. N.B. did not contact the police until January 1, 2020. I am satisfied there was a three-week gap between when they saw the video and when Ms. N.B. contacted the police. Ms. N.B. testified that she performed a google search after seeing the CTV video. She acknowledged that she would have been interested in the details of any of the other allegations. She acknowledged reading other articles about Dr. Sloka. She agreed that the details of other allegations would assist in helping her determine whether she should come forward. However, Ms. N.B. was suspiciously unable to recall what allegations she discovered during her review of news articles. She did not recall and largely disputed reading about inadequate draping, patients being naked, touching of breasts, touching of genitals, skin examinations, penetration of the vagina with an ungloved finger, or the removing of a patient’s gown. Other than recalling reading about the cupping of patient breasts, she purportedly only recalled reading about inappropriate conduct and people feeling uncomfortable. Effectively, Ms. N.B. disavowed reading about almost anything that resembled her allegations. As it happens, by the time Ms. N.B. contacted the police the news media had in fact recounted allegations of inadequate draping, naked examinations, skin examinations, searches for moles, breast touching, genital touching, and vaginal penetration. All these reported details are the details Ms. N.B. testified she would have been interested in knowing, to help her decided whether to lodge her own complaint. I disbelieve Ms. N.B.’s denial that she read about these accusations. I similarly disbelieve her denial that she could not recall reading about these allegations. J.A.B. similarly denied reading about other allegations in the media. Nevertheless, she agreed that she was curious about what other patients were alleging. In the next breath she testified that she was not trying to find out what happened to others and that she was not interested in comparing her daughter to anyone else. I simply do not believe her claim that she did not act upon her own admitted curiosity.

2549In my view, there existed ample motive and opportunity for both Ms. N.B. and her mother to research news stories about Dr. Sloka online. The content of the news stories available included details that ultimately featured in Ms. N.B.’s complaint. Those details were not details shared by Ms. N.B. with her mother when she initially expressed a general discomfort about her appointment with Dr. Sloka. Upon her initial exposure to a CTV News Video, which did not recount specific allegations, Ms. N.B. concluded she had been “over groped.” Subsequently, after reading other news stories, Ms. N.B.’s allegations enlarged substantially, to the point that the term “over groped” becomes an almost insultingly inadequate description. In my view, the most plausible explanation for the amplification of Ms. N.B.’s complaint is that Ms. N.B.’s complaint has been influenced by her exposure to the media’s detailed recitation of other patient complaints.

2550I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations on any given patient in this case. This possible inference may serve to incidentally prove the essential elements of the offence and rebut any defences. However, having regard to the manifest frailties in the evidence of Ms. N.B. and J.A.B., and having carefully considered Dr. Sloka’s evidence, I conclude that Dr. Sloka has refuted any possible inference of a sexual purpose. I will provide a more detailed assessment of Dr. Sloka’s evidence momentarily.

2551The Crown also relies upon certain discrete cross-count similarities to support the evidence of Ms. N.B. First, the Crown relies upon the similarity between Ms. N.B.’s description of her pelvic examination body position and the description provided by other patients. Second, the Crown contends that Ms. N.B. belongs to a constituency of patients who allege that Dr. Sloka performed a skin examination on them while they were naked or in a state of undress. Third, the Crown contends that Ms. N.B. belongs to a constituency of patients who allege that Dr. Sloka did not provide a justification for the examinations he performed. Fourth, the Crown argues that Ms. N.B. belongs to a constituency of patients who alleged that Dr. Sloka expressed an interest in searching for moles. Fifth, the Crown alleges that Ms. N.B. belongs to a constituency of patients who alleged breast cupping. For the reasons that follow, I do not find any of these discrete similarities to have sufficient probative value to offer support to Ms. N.B.’s evidence on any other material issue.

2552The Crown suggests that Ms. N.B.’s position for the pelvic examination is so distinctive and so similar to the position alleged by four other patients that the similarity is unlikely the product of coincidence. I see nothing distinctive about a patient laying on their back, bending their knees and spreading their legs for a pelvic examination. Absent stirrups, I cannot fathom any other logical way of performing one. Apparently, Ms. N.B. couldn’t either. She testified that she assumed this position without being prompted to do so by Dr. Sloka. There is nothing probative about the body position alleged.

2553The Crown also relies upon the fact that multiple patients alleged that Dr. Sloka performed a skin examination on them while they were naked or in a state of undress. In my view, these allegations were repeatedly reported in the media and available to Ms. N.B. when she was browsing the internet in search of news about other allegations. I conclude there exists a substantial likelihood that Ms. N.B.’s evidence has been tainted by reading about other allegations. The Crown has failed to rebut that likelihood. Also, no patient describes skin examination that remotely resembles the bizarre examination alleged by Ms. N.B. This ostensible similarity has no probative value.

2554The Crown also relies upon Ms. N.B.’s similarity to an alleged constituency of complainants who were not told the reason for their examinations. As has been noted elsewhere, that constituency is not nearly as large as the Crown alleges. And Ms. N.B. most certainly does not belong in it. She could not recall all the reasons provided, nor could she recall all the examinations proposed. The Crown’s submission is in part premised upon the assumption that the examinations she alleged truly occurred. The Crown contends that Dr. Sloka did not explain the reason for conducting examinations he denied performing. In doing so, the Crown assumes guilt in service of its invocation of similar facts to prove guilt. Their reasoning is circular. This similarity has no probative value.

2555The Crown also argues that Ms. N.B. belongs to a constituency of patients who allege that Dr. Sloka told them he wanted to examine their skin for moles. Ms. N.B. used the term “moles” for the first time at trial. Her explanation for the omission of this term from her police complaint was not credible. There exists ample reason to believe that Ms. N.B. was exposed to media coverage of the claims by other patients about searches for “moles.” The Crown has failed to rebut the prospect of media tainting. This similarity has no probative value.

2556The Crown also relies upon Ms. N.B.’s alleged membership in a constituency of complainants who allege breast cupping. Allegations of cupping were reported in media coverage available to Ms. N.B. prior to her police statement. The Crown has failed to establish that Ms. N.B.’s evidence has not been tainted by that media coverage. Moreover, as pointed out elsewhere, conditions of membership in the “breast cupping” constituency are so broad and ill-defined as to deprive it of probative value.

2557In summary, even before considering Dr. Sloka’s sworn denial, I find the evidence of Ms. N.B. and her mother to be so unreliable as to be incapable of establishing guilt, whether on a civil or criminal standard. I reject their evidence.

2558I turn now to an assessment of Dr. Sloka’s evidence.

2559Dr. Sloka provided compelling and cogent explanations for conducting the examinations he acknowledged performing. Having considered his evidence in light of the totality of the evidence, I accept that he proposed and conducted these examinations for valid medical purposes. I accept his implicit denial of any sexual purpose. I also accept his denial of the allegations made by Ms. N.B. Additionally, I accept he performed his examinations in accordance with his training.

2560The Crown made numerous critiques of Dr. Sloka’s evidence. The defence submits that many of those critiques are based upon inaccurate and unfair interpretations of the evidence and are at times illogical. The defence also argues that the Crown unfairly invites adverse inferences from portions of Dr. Sloka’s evidence that were not the subject of cross-examination. I do not disagree.

2561The Crown argued that Dr. Sloka was evasive when testify about Ms. N.B.’s attire for the examinations. He testified he did not know whether Ms. N.B. wore her underwear beneath her gown. In cross-examination, the Crown asked Dr. Sloka to speculate about whether some patients might remove their underwear for neurological examinations. He did not know why they would do that. He testified that he would not instruct them to do so. He had no specific memory of this ever occurring. “That’s just not something I would keep in my memory bank,” he explained. The Crown argued that Dr. Sloka was being evasive to distance himself from access to Ms. N.B.’s vagina. That argument is illogical. The opposite is true. He allowed for the possibility that some patient in his practice might have removed their underwear despite the absence of a request from him to do so, but he could not remember whether that ever occurred. He was not evasive. He made a concession favourable to the Crown.

2562The Crown took issue with Dr. Sloka’s evidence regarding his abdominal examination in furtherance of an investigation of her left lower quadrant pain. In essence, the Crown argues that Dr. Sloka’s claim of an abdominal examination is a fabrication aimed at obscuring the fact that he performed a pelvic examination. Interestingly, while the Crown questioned Dr. Sloka about his justification for performing an abdominal examination, they never suggested to him that he never did one.

2563The Crown argues that Dr. Sloka was evasive in cross-examination when addressing the Crown’s questions about abdominal pain, thereby attempt to dodge any suggestion that he had an interest in Ms. N.B.’s pelvis. He was not evasive. In my view, the Crown simply misunderstood his evidence. Dr. Sloka testified that the term “left lower quadrant pain” is a term used to describe abdominal symptoms, not pelvic symptoms. He further testified that a bimanual pelvic examination targets the pelvis and the anatomy inside the pelvis, not the abdomen. An abdominal examination targets the abdomen, not the pelvis. That evidence was not contradicted. There was nothing evasive about it. Dr. Sloka did not testify, as the Crown suggests, that a pelvic examination is better at localizing abdominal pain than an abdominal evaluation. He testified that abdominal examinations were not particularly effective at localizing abdominal pain, whereas pelvic examinations were more effective at localizing pelvic pain. Based on Dr. Sloka’s uncontradicted evidence, Dr. Sloka’s inferred from the report of “left lower quadrant pain” in the examination portion of his consultation letter that he had performed an abdominal examination. He was not evasive in explaining his foundation for that inference. His explanations withstood scrutiny unscathed.

2564The Crown also argues that the absence of a report of abdominal pain in the history portion of the consultation letter means that Ms. N.B. never reported any abdominal pain. That submission lacks merit. Dr. Sloka recorded the existence abdominal pain in both the examination and impression portions of his consultation letter. I think it unlikely that Dr. Sloka could know Ms. N.B. was experiencing abdominal pain unless Ms. N.B. reported this pain to him. Ms. N.B. did not recall whether she made any complaint of abdominal pain. True, he should have recorded Ms. N.B.’s report of abdominal pain in the history portion of his letter, too. Nevertheless, the consultation letter strongly supports the conclusion that Ms. N.B. reported abdominal pain.

2565The Crown also takes issue with Dr. Sloka’s decision to perform an abdominal examination in furtherance of an investigation into Ms. N.B.’s loss of consciousness. With respect, I think the Crown mischaracterizes Dr. Sloka’s evidence. In my view, it is clear from his evidence that he performed an abdominal examination because she complained of abdominal pain, not because he intended from the get-go to perform one to investigate her loss of consciousness. He testified that he was trained to do abdominal examinations when a patient complains of abdominal pain. He then added the following:

So, she had an unusual loss of consciousness. Sometimes one can find things in the abdomen that can explain that sort of thing but also she described irregular cycles too. So, I just made it part of the general examination that did to include the abdominal examination just – just to make sure there wasn’t anything that was obvious.

2566To my mind, it is obvious from his evidence that the abdominal examination arose from a patient complaint of abdominal pain, not a pre-existing design. He was prepared to examine the complaint for its own sake, but he also considered the potential of its connection to other symptoms. In my view, there is no basis for concluding that Dr. Sloka would have performed an abdominal examination in the absence of a complaint about abdominal pain. Accordingly, the Crown makes an inapt comparison between Ms. N.B.’s case and that of Ms. J.H., who did not complain of abdominal pain but who had a history of PCOS and loss of consciousness.

2567An appropriate comparison to Ms. N.B. is the case of Ms. A.D. Unfortunately, the Crown misstated Ms. A.D.’s evidence. Contrary to the Crown’s submission, Ms. A.D. did in fact complain of abdominal pain associated with her menstrual cycle. Dr. Sloka performed multiple abdominal examinations on Ms. A.D. to investigate that pain. He also ordered several ultrasounds of her pelvis in furtherance of his investigation of PCOS. Yet, he did not perform a pelvic examination on Ms. A.D. Therefore, despite what the Crown contends, the ordering of a pelvic ultrasound to investigate PCOS does not on its own support Ms. N.B.’s contention that Dr. Sloka performed a pelvic examination.

2568I would like to say one last thing about the Crown’s submissions about Dr. Sloka’s evidence regarding his abdominal examination. We would not be talking about an abdominal examination unless Dr. Sloka made a record suggesting one had occurred. Ms. N.B. has never alleged that Dr. Sloka ever conducted one. Dr. Sloka drew the attention of Ms. N.B.’s family doctor to an issue about which the family doctor might otherwise have been unaware. The family doctor, of course, is a medically trained professional, who could reasonably be expected to review Dr. Sloka’s letter and maybe even review it with her patient. The suggestion that Dr. Sloka recorded lower left quadrant pain, drawing it to the attention of the family doctor, to obscure the existence of a pelvic examination comes close to conspiratorial thinking. The Crown argues repeatedly in this case that failures to document examinations were the product of a conscious decision to cover up examinations. Elsewhere, the Crown argues that the reports of deferrals amount to conscious cover-ups. Elsewhere, the Crown relies upon admissions of examinations to prove they occurred. It seems like the Crown uses Dr. Sloka’s evidence like a Rorschach Test: no matter the picture, the Crown argues it portrays the same thing.

2569Reminiscent of their critique of Dr. Sloka’s abdominal examination evidence, the Crown argues that Dr. Sloka’s evidence regarding the ordering of a pelvic ultrasound lacked credibility. They challenge Dr. Sloka’s claim of a connection between PCOS, hormonal cycles, and headaches. Dr. Sloka testified that people with PCOS have an increased risk for headaches. His evidence on this point was not contradicted by any other evidence. Dr. Bril offered no opinion; she simply stated that the investigation of PCOS is not within the field of neurology. I am unable to conclude from Dr. Bril’s evidence that there exists no connection between PCOS and headaches. People with the flu get headaches. I imagine Dr. Bril might say that the investigation of the flu lies outside the field of neurology. That is not the same as saying flu sufferers don’t experience headaches. According to Dr. Bril, the connection between PCOS and headaches was beyond her expertise. I therefore have no basis for rejecting Dr. Sloka’s stated belief on the subject.

2570The Crown also argues that Dr. Sloka’s knowledge of PCOS was paltry. They imply that his willingness to operate outside his field of expertise supports the theory of an ulterior motive. However, they did not call any evidence to show his knowledge of PCOS was incorrect. To the extent the Crown contradicted him, it was with inadmissible evidence. Specifically, the Crown asked Dr. Bril about hirsutism. Dr. Sloka believed PCOS resulted in excessive hair on the face, not elsewhere on the body. Dr. Bril believed hirsutism (not PCOS specifically) resulted in unwanted hair in other places too. This opinion was outside the scope of her expertise and was inadmissible. The Crown did not call admissible evidence to prove that Dr. Sloka’s understanding regarding PCOS-related hirsutism wrong. Likewise, the Crown called no evidence to support the contention that the prospect of hirsutism would move Dr. Sloka to search for hairs elsewhere on Ms. N.B.’s body, thereby supporting Ms. N.B.’s claim that Dr. Sloka performed a skin examination. Dr. Sloka was not aware of whether PCOS might cause dark skin patches or skin tags. He was also not aware of whether the medical literature indicated that a physical examination is indicated in the investigation of this condition. The Crown called no evidence on these matters. Instead, they confined themselves to asking Dr. Sloka a series of questions in quick succession many years after he had ceased medical practice, with what I consider to be an unreasonable expectation that he have every answer on the tip of his tongue. Then they called no evidence to show whether Dr. Sloka’s knowledge of the condition was incorrect or “paltry.” Likewise, they called no evidence capable of establishing that an investigation of PCOS would warrant a skin examination.

2571To sum up, the Crown did not establish that Dr. Sloka lacked credibility when testifying about the connection between PCOS and headaches.

2572The Crown argues that, rather than investigating a connection between PCOS and headaches, Dr. Sloka ordered the pelvic ultrasound because he had an interest in Ms. N.B.’s vagina, which they argue supports Ms. N.B.’s claim that Dr. Sloka performed a pelvic examination. This submission is akin to arguing that the farmer’s interest in letting the horse out of the barn has been proven by the fact he closed it after the horse had already left. On the Crown theory, the pelvic examination was over and done with by the time Dr. Sloka decided to order a pelvic ultrasound.

2573The Crown also argues that Dr. Sloka did not order pelvic ultrasounds to investigate PCOS for any other patients that had lost consciousness or suffered headaches. In doing so, the Crown urges the court to conclude that Dr. Sloka performed a vaginal examination. However, the Crown’s submission is inaccurate. In the case of E.J., when providing his justification for ordering a pelvic ultrasound, Dr. Sloka testified that irregular cycles, suffered by those with PCOS, can be associated with headaches. Ms. E.J. had reported suffering from PCOS when providing her medical history. She was a headache patient. For various reasons, Dr. Sloka ordered pelvic ultrasound for four other headache patients: I.R., A.D., C.C., and M.R.E. Thus, Dr. Sloka ordered a pelvic ultrasound for a total of five other headache patients. Of those five patients, only one alleged a pelvic examination. The evidence clearly established that Dr. Sloka ordered pelvic ultrasounds in circumstances where headache patients did not allege that Dr. Sloka performed pelvic examinations.

2574While Dr. Bril testified that the investigation of PCOS is outside the field of neurology, she offered no opinion about whether irregular cycles or hormonal fluctuations in PCOS sufferers might be related to their headaches. Her opinion was confined to the reasonableness of a neurologist engaging in this medical inquiry – the neurological reasonableness of Dr. Sloka’s conduct. Here, I note that Dr. Bril’s evidence on catamenial migraines did not address whether irregular cycles were associated with these migraines. Dr. Sloka’s subjective belief regarding the association between irregular cycles, PCOS, and headaches stood uncontradicted. While the Crown challenged the neurological reasonableness of Dr. Sloka’s approach, the Crown called no evidence capable of challenging the medical reasonableness of Dr. Sloka’s approach.

2575The Crown argues that, if Dr. Sloka remained true to his standard approach to patients with a loss of consciousness, he would have performed a skin examination. The Crown argues that this standard practice supports Ms. N.B.’s allegation of a skin examination and the rejection of Dr. Sloka’s denial. However, the Crown oversimplifies Dr. Sloka’s standard practice when making this argument. Dr. Sloka did not consider neurocutaneous disease for every loss of consciousness patient. He testified that he considered neurocutaneous disease in patients with suspected seizures. As the defence points out, there were multiple patients who lost consciousness for whom Dr. Sloka did not suspect the possibility of seizure and consequently did not propose a skin examination: B.P., D.H., and T.H. Moreover, Dr. Sloka’s standard practice involves a review of symptoms which may involve inquiries about any skin abnormalities. If he was considering the possibility of seizures, answers to these inquiries informed any decision to propose a skin examination. In Dr. Sloka’s purported standard practice, the proposal of a skin examination was not automatic. Dr. Sloka testified in chief about this subject. He testified that he may have discussed Ms. N.B.’s skin during his review of systems when taking her history in his office. He further testified that any report of a single hair on Ms. N.B.’s wrist would not move him to propose a skin examination. He could not imagine how a single hair would be the topic of any discussion: “It is just not a thing.” The Crown did not cross-examine Dr. Sloka on this evidence, nor did they suggest to him that he deviated from his standard practice.

2576In a similar vein, the Crown relies on Dr. Sloka’s evidence elsewhere in the trial that he asked loss of consciousness patients about “moles” when investigating the possible skin manifestations of neurocutaneous disease. The Crown argues that this evidence supports Ms. N.B.’s contention that Dr. Sloka asked her about moles. In particular, the Crown points to Dr. Sloka’s evidence regarding A.R. and his response to the CPSO for J.W. (Exhibit 5).

2577In making their argument about Dr. Sloka’s use of the term “moles”, the Crown ignores some crucial context. Dr. Sloka explained that early in his practice, he may have used the inaccurate term “moles” when inquiring about manifestations of neurocutaneous diseases. He stated, “I'm not certain if at one point I used the terminology ‘moles’ and then qualified it by showing the patient what I was looking for.” At one point he referred to the term “moles” as an “all-encompassing term,” which was in his mind, at least, distinct from “common moles.” He went on to say, “The patient would know I'm not looking for moles, but I don't know if at one point I used that type of language to encompass the possibility of a birthmark and then qualified it with pictures in a book that I would be looking for like ash-leaf spots or café-au-lait spots or these sorts of things.”

2578In addition, the Crown misplaces their reliance on Dr. Sloka’s evidence about A.R. In Ms. A.R.’s case, he was investigating the possibility of a seizure. Though her mother expressed concerns about skin cancer, that was not Dr. Sloka’s focus. He testified that he inquired about skin abnormalities. He specifically testified that he was not interested in finding moles. He also testified that Ms. A.R. declined a skin examination. However, he made note in his consultation letter for Ms. A.R.’s next appointment that Ms. A.R. showed him a mole on her abdomen. Dr. Sloka ultimately referred Ms. A.R. to a dermatologist to discuss removal of this mole. The Crown did not accurately characterize Dr. Sloka’s evidence when arguing that, “He admitted he told Ms. A.R. that he was looking for moles due to a loss of consciousness” and that “Dr. Sloka’s evidence was that he did talk about moles and birthmarks with patients who had loss of consciousness.” Contrary to what the Crown argues, Dr. Sloka did not draw a connection between Ms. A.R.’s mole and her loss of consciousness.

2579The Crown also challenges Dr. Sloka’s claim that he did not consider a seizure in Ms. N.B.’s case because she did not report any shaking. They argue that Dr. Sloka had elsewhere testified that “gaping out” could also be evidence of a seizure. On this basis, they argue that Dr. Sloka would have considered a seizure in Ms. N.B.’s case. However, there is no basis in Ms. N.B.’s recorded history or in her testimonial evidence to suggest that Ms. N.B. was observed to or had reported “gapping out.” She reported feeling dizzy, slumping forward in her desk, and losing consciousness. She passed out. She did not gap out. The Crown makes a similar unfounded argument about syncopal convulsions (convulsions while fainting). As best as I can understand it, the Crown argues that since convulsions can accompany fainting, Dr. Sloka would have considered seizures in Ms. N.B.’s case and would therefore have proposed a skin examination. However, Ms. N.B. did not report experiencing convulsions. Her recorded medical history made no reference to convulsions. There is no factual foundation in the record to support the Crown’s contention that adherence to Dr. Sloka’s standard practice would involve a skin examination.

2580The defence also argues that the Crown mischaracterized Ms. N.B.’s evidence when stating that she alleged a full skin examination. I agree. She did not allege a head-to-toe examination, front-to-back. She alleged that he touched her legs, her vagina, and her buttocks while she stood there naked, ostensibly in the search for moles and hairs. Although she testified about a hair on her wrist, she never alleged that Dr. Sloka examined her arms.

2581The Crown tendered opinion evidence that an abdominal examination was outside the field of neurology. Similarly, they tendered opinion evidence that the investigation of PCOS is outside the field of neurology. However, for the reasons stated in the section of this judgement devoted to an assessment of Dr. Bril’s evidence, I place little weight on Dr. Bril’s evidence generally and I place little to no weight on her evidence regarding the permissible scope of a neurologists practice. Further, the Crown called no evidence to rebut Dr. Sloka’s claim that he possessed the training necessary to competently investigate abdominal pain by performing an abdominal examination. The Crown also called no evidence rebut Dr. Sloka’s claim that he possessed the training necessary to investigate PCOS. Similarly, the Crown called no evidence to challenge the propriety of using a pelvic ultrasound as a means of investigating PCOS. The Crown has failed to establish that Dr. Sloka’s endeavours were not medically reasonable. The Crown has also failed to establish that Dr. Sloka did not believe his endeavours to be medically reasonable. Despite the Crown’s strenuous submissions, I am unable to conclude that Dr. Sloka’s investigations (all of which were fully disclosed to Ms. N.B.’s family doctor) were conducted for an improper motive. The evidence simply establishes that Dr. Sloka took a broader approach to the practice of neurology than Dr. Bril felt appropriate.

2582Having considered Dr. Sloka’s evidence, and the Crown’s critiques of it, I am unable to reject it. Indeed, I am prepared to accept it.

2583I do not accept the Crown’s contention that Dr. Sloka’s evidence and medical records establish that Dr. Sloka turned a complaint of headaches and loss of consciousness into an intimate examination of Ms. N.B.’s entire body under the false guise of medical care. Instead, I accept that Dr. Sloka performed medical examinations for a medical purpose and in accordance with his training and standard practices. He then prescribed medications and ordered testing to treat Ms. N.B.’s symptoms and gain a better understanding of her medical condition. Dr. Sloka’s conduct was not sexual. It was medical. I find that Ms. N.B. consented to this medical conduct. No sexual assault occurred.

2584Given my rejection of Ms. N.B.’s evidence and given my acceptance of Dr. Sloka’s evidence, Dr. Sloka will be acquitted on this count.

iii. M.B. (Count 47)

A Summary of M.B.’s Complaint and Dr. Sloka’s Response to It

2585M.B. (pronouns: they/them) alleged that Dr. Sloka performed a breast examination on them. M.B. alleged that Dr. Sloka used his whole hand to squeeze each breast. M.B. could not recall whether Dr. Sloka squeezed the breasts simultaneously or in sequence.

2586Dr. Sloka denied performing a breast examination. Dr. Sloka testified that he conducted took M.B.’s vital signs then performed a neurological and cardiac examination. He agreed that there existed no justification for a breast examination and no justification to squeeze M.B.’s breasts.

The Circumstances of the Referral

2587M.B. received a referral from a Dr. Roy at University of Waterloo Health Services. In the referral, Dr. Roy indicated that M.B. suffered from two types of headaches. With one type, M.B. felt a squeezing occipital pain with photophobia but no sonophobia. This type lasts all day. They suffered from this type for eight years. The other type of headache occurred every other day. It lasted about 3 hours. It involved bitemporal/occipital throbbing pain and nausea. It was accompanied by photophobia and sonophobia. Dr. Roy asked Dr. Sloka to assess and treat M.B.’s headaches.

2588M.B. was 18 years old at the time of the referral.

The Evidence of M.B.

2589M.B. was 26 years old when testifying.

2590M.B. requested the assistance of a pen and paper to write down questions during M.B.’s testimony. M.B. explained that they had trouble processing auditory information. M.B. informed the court that they had a very weak memory, both generally and regarding aspects of the allegations against Dr. Sloka. M.B. indicated that they “find that sometimes I miss information or words that’s only given to me orally and I rely heavily on visual cues, so just jotting down words helps me remember what [was] said [to them].” This professed difficulty becomes relevant to the court’s assessment of M.B.’s professed ability to remember the contents of discussions in Dr. Sloka’s office.

2591M.B.’s first appointment occurred on July 23, 2014. The appointment was booked for 5:00 p.m. Dr. Sloka informed M.B. that he would normally perform a physical examination, but because it was late in the day, he would defer the examination until the next appointment.

2592M.B. stated that it was impossible that Dr. Sloka gave any explanation at the first appointment about why he wanted to conduct a physical examination. M.B. also professed to recall the precise words Dr. Sloka used when deferring the examination. Yet, M.B. was not using a pen and paper to assist them with processing auditory information at the appointment. M.B. was certain that Dr. Sloka did not mention that M.B. was the last patient of the day.

2593M.B. had no memory of any conversation about medications at the first appointment. M.B. agreed that any discussion about medications would have been important to them. M.B. also did not recall Dr. Sloka discussing the options of Sibelium or topiramate. They did not recall selecting topiramate.

2594M.B.’s second appointment occurred on November 24, 2014. M.B. attended that appointment alone.

2595In M.B.’s first memory of that second visit, they were already situated in the examination room. M.B. did not recall any discussion in Dr. Sloka’s office. M.B. did not recall discussing the efficacy of the medication that Dr. Sloka had prescribed, nor did M.B. recall Dr. Sloka prescribing Sibelium in place of topiramate at this second appointment.

2596According to M.B., Dr. Sloka proposed a breast examination. M.B. agreed. M.B. testified that Dr. Sloka asked them to remove their shirt for the examination. M.B. complied.

2597Although professing to have a clear memory that Dr. Sloka expressly proposed a breast examination, M.B. was less certain when speaking to the police. Instead, M.B. told the police, “I think he said breast examination.” Despite their prior uncertainty, M.B. testified at trial that they were now certain that Dr. Sloka had explicitly stated his intention to perform a breast examination.

2598M.B. testified when they removed their shirt, Dr. Sloka remained present in the examination room. M.B. did not remember whether Dr. Sloka was facing them when they removed their shirt.

2599When asked about it in cross-examination, M.B. recalled Dr. Sloka using an ophthalmoscope to perform an examination. M.B. did not recall any other component of a neurological examination but did not dispute the possibility that a full neurological examination occurred. Similarly, M.B. did not recall but did not dispute that a cardiac examination occurred or that Dr. Sloka took their heart rate and blood pressure measurements.

2600M.B. testified that Dr. Sloka stood at their left side for the examination. Dr. Sloka placed his whole hand on M.B.’s breast, including his palm. Dr. Sloka then squeezed and released. M.B. was unsure if Dr. Sloka squeezed each breast simultaneously or in sequence. In either case, the exam was quick. He squeezed, then released, and “that was it.”

2601M.B. professed to be certain that they were sitting down for the breast examination. However, in M.B.’s police statement, M.B. initially told the police that they were unsure whether they were sitting or laying down. Later in the police statement, M.B. told police that they were “pretty sure” that they were sitting down during the breast examination.

2602M.B. recalled being embarrassed during the examination. Their face and ears felt hot.

2603M.B. testified that after the examination, Dr. Sloka discussed M.B.’s medication. Dr. Sloka prescribed Sibelium to treat M.B.’s migraines.

2604A follow up appointment was booked for May 4, 2015, but M.B. cancelled it. A new appointment was booked for June 1, 2015, but M.B. cancelled it again. M.B. testified that they cancelled the appointment because they never took the Sibelium prescribed. Consequently, M.B. did not see the need for a follow up visit.

2605At the time of the alleged breast examination, M.B. believed it to be an appropriate one. Their opinion on the matter remained unchanged for years.

2606M.B. first saw media coverage about Dr. Sloka in August of 2018, while M.B. was at getting a massage with their partner, E. According to M.B., E. mentioned that her mother’s masseuse touched her breast. M.B. told E. that M.B.’s neurologist touched their breast, and they thought it was odd. E. told M.B. that this was not normal. M.B. had another conversation on the topic with E.’s father. Then M.B. and E. spoke on it once more at a nail salon. After the discussion at the nail salon, M.B. decided to query on google whether it was normal for a neurologist to perform a breast examination. M.B. then googled Dr. Sloka’s name. In doing so, M.B. found several stories about Dr. Sloka.

2607One of the articles read by M.B. was a CTV news article. It contained allegations of “patients being inadequately draped during an exam and inappropriate touching of the breast.” From reading the article, M.B. purportedly realized that the exact same thing had occurred to them. The articles confirmed in M.B.’s mind that what occurred was not standard, not appropriate, and was sexual assault.

2608M.B. looked up the CPSO website on October 3 or 4, 2018. They did so after having read allegations about Dr. Sloka in the media. On the CPSO website, M.B. read about and assessed the complaint process.

2609Then, on October 4, 2018, M.B. submitted a written complaint to the CPSO. They itemized their complaints as follows: 1. sexual assault; 2. inappropriate conduct; and 3. inappropriate touching. In answer to the question, “Why are you concerned about these areas?” they wrote, “In light of the allegations about Dr. Sloka in the news, I questioned my own experience with Dr. Sloka and found them strikingly similar to the sexual assault allegations.”

2610M.B. testified that one of their reasons for coming forward was that their story may offer assistance to others, particularly those who might not, for their own reasons, be able to come forward themselves.

2611After M.B. submitted their written complaint, the CPSO contacted them. M.B. then sat for an interview on November 28, 2018.

2612M.B. eventually became aware that Dr. Sloka faced criminal charges. They received emails and updates from victims’ services. M.B. also read other articles in the winter of 2020. After reading the articles, M.B. came to believe that there existed about 60 complainants in Dr. Sloka’s criminal case.

The Evidence of Dr. Bril

2613Dr. Bril testified that there was no neurological reason to perform a breast examination. Her opinion on this point was not contentious.

2614Dr. Bril also testified that, if Dr. Sloka did not perform a neurological on the first appointment, he should have done so on the second appointment. Dr. Sloka’s consultation letter did not chart a neurological examination. If he performed one, he ought to have charted it.

2615While Dr. Bril held the opinion that a cardiac examination was not necessary for M.B., the Crown has not relied upon that opinion in submissions, nor challenged Dr. Sloka’s justification for performing one. Having said that, Dr. Bril had testified that she could not comment on whether calcium channel blockers, like Sibelium, had contraindications for patients with cardiac abnormalities. She was unfamiliar with any warnings in the product monographs of Sibelium or other calcium channel blockers. But Dr. Bril testified that she had not received advisories to do cardiac examinations before prescribing calcium channel blockers. Given M.B.’s young age and lack of any reported cardiac history, Dr. Bril nevertheless felt a cardiac examination was unnecessary.

The Evidence of Dr. Sloka

2616Dr. Sloka had almost no memory of M.B..

2617Dr. Sloka relied on the contents of his consultation letters for the truth of their contents and the rest of M.B.’s medical chart for context.

2618Dr. Sloka testified that he took a history from M.B. at the first appointment and recorded it in his consultation letter. He deferred the examination because the appointment was at the end of the day, they were the last patient of the day, and they had attended alone – he preferred not to do examinations on patients when there was no staff around the clinic. Had their appointment been earlier, he would have proposed taking their vital signs and performing a neurological and cardiac examination. Nevertheless, Dr. Sloka believed that he would have informed them about the proposed examinations when advising them that he was deferring them. He testified “I probably said something like, ‘usually I would have a listen to your heart at look at your nervous system, but I would like to defer that until a follow-up appointment if that [is] okay with you.” Dr. Sloka also discussed their medication options with them and planned to assess the efficacy of their choice in follow up.

2619I turn now to Dr. Sloka’s evidence concerning the second appointment.

2620Dr. Sloka was not asked about what he said when proposing and explaining examinations at the second appointment.

2621Dr. Sloka documented taking M.B.’s pulse and blood pressure. He recorded the results in the consultation letter.

2622Dr. Sloka agreed that his second consultation letter made no mention of a neurological examination. Despite this, Dr. Sloka believed that he performed one. It was his standard approach to conduct a neurological examination. Dr. Sloka noted that he had communicated in his first consultation letter the intention to do an examination at the next. The second consultation letter made no mention of another deferral. Shining an ophthalmoscope in a patient’s eye is part of Dr. Sloka’s standard neurological examination. M.B. remembered Dr. Sloka shining and ophthalmoscope into their eye. Dr. Sloka could not conceive of doing only a fundoscopy and not completing the rest of a neurological examination, particularly in a patient with M.B.’s presentation.

2623Dr. Sloka documented the performance of a cardiac examination in his second consultation letter. He testified that he would have performed this in accordance with his standard method. A cardiac examination was part of his standard approach to the assessment of headache patients. Also, he was planning on prescribing Sibelium (a calcium channel blocker medication), which has cardiac contraindications. A cardiac examination would allow him to listen for any structural problems in the heart and allow him to confirm whether Sibelium could be safely prescribed. Relatedly, he testified that he measured M.B.’s vital signs because high blood pressure can cause headaches. Sibelium is a blood pressure medication. He testified that one would want to be cautious and measure the patient’s blood pressure before prescribing it.

2624In his handwritten notes in the file, Dr. Sloka recorded the acronym, “FAFG”. Dr. Sloka testified that the acronym pertained to the examinations performed at the second appointment. In cross-examination, the Crown suggested to Dr. Sloka that the use of the acronym confirmed he performed a breast examination. Dr. Sloka disagreed. Dr. Sloka explained that he asked for feedback because M.B. was in a gown for a cardiac examination and their left breast was exposed. He gave evidence elsewhere that he sought feedback when patients gowned for examinations and there was any kind of exposure. He did not always document seeking feedback, but, when he did, he noted “FAFG” in his rough notes.

Assessment of the Evidence and Analysis

2625M.B. is a conundrum. On the one had, M.B. testified that they have a weak memory, that they miss information during oral communication and that they rely heavily on visual cues to process and remember what was said to them. Accordingly, M.B. sought and was granted permission to use a pen and paper to jot down questions, thereby providing themselves with visual cues during questioning. On the other hand, M.B. purported to remember with certainty that Dr. Sloka never told them at their first appointment that M.B. was the last patient of the day and that Dr. Sloka had decided to defer their examination. M.B. purported to remember verbatim what on its face was a rather mundane discussion. The incongruity between these two propositions causes me to have concern about their reliability and credibility.

2626Of course, M.B.’s admitted difficulties with memory raises concerns about M.B.’s reliability in general. As one might expect, those memory frailties became apparent as M.B. testified about matters that were of admitted importance to them.

2627For example, M.B. could not recall any discussions at the first appointment about whether Dr. Sloka discussed or prescribed medications to them, despite the importance of that issue. M.B. also could not remember a basic component of the alleged unlawful act: whether Dr. Sloka squeezed their breasts simultaneously or in sequence. M.B. also had initial difficulty remembering whether they were sitting or laying down as Dr. Sloka squeezed their breasts.

2628The evolution of M.B.’s memory over time also causes me concern about M.B.’s reliability. On matters where M.B. previously expressed uncertainty they subsequently acquired certainty. For example, when recounting events to the CPSO investigators, M.B. was initially unsure of whether they were sitting or laying down for the breast examination. Later in that interview, they became “pretty sure” that they were sitting down. At trial, they were certain that they were sitting. Likewise, in the CPSO interview, M.B. expressed uncertainty about whether Dr. Sloka announced his intention to perform a breast examination. At trial, M.B. expressed certainty on the subject. M.B.’s progression from uncertain to certain on core aspects of M.B.’s allegations suggests a likelihood that, in the aftermath of media exposure, M.B. has progressively convinced themselves of memories that support their belief that they had been abused in the same fashion as those whose complaints were reported in the media.

2629M.B. first saw media coverage of the allegations against Dr. Sloka in August of 2018, a month after the initial news stories were released. In those articles, M.B. read about “patients being inadequately draped during an exam, and inappropriate touching of the breast.” M.B. testified that, after reading those articles, M.B. realized that “that the exact same thing had happened to me several years prior.” M.B. went from thinking the examination was “perfectly normal” to realizing that what occurred was “not standard, was not appropriate, and was sexual assault.”

2630It is important here to consider M.B.’s state of mind prior to media exposure. M.B. testified in-chief that, during the examination, they purportedly felt confused about the breast squeezing and that they remember wanting to leave as quickly as possible. M.B. also testified in-chief that, following the examination, they experienced “thoughts of confusion… initially … after the appointment of not knowing if this was standard procedure for a neurological to perform.” Yet, in cross-examination, M.B. testified that, until their discussion with E., they thought the examination was “completely normal” and that they “did not think twice about it.” In my view, the evidence they provided during cross-examination about their state of mind directly contradicted their evidence in-chief.

2631In my view, M.B.’s explanation for googling the propriety of a breast examination by a neurologist is illogical. According to M.B., they only googled Dr. Sloka after E. discussed the roaming hands of a masseuse. On M.B.’s telling, they had no cause to google the propriety of a breast examination by a neurologist until that discussion with E. If, as M.B. testified, they considered their examination completely normal and never gave it a second thought, I fail to see any logical reason why a story about the roaming hands of a masseuse would sew the seeds of doubt and inspire them to google the propriety of a breast examination by a neurologist. It simply does not track. If, on the other hand, M.B. harboured thoughts of confusion about the examination, it makes little sense that they waited four years to perform that google search. Consequently, I have trouble accepting that a supposed discussion with E. about someone else’s masseuse would somehow cause M.B. to have concerns about the propriety of medical examination four years in the past. E., of course, was not called as a witness to provide any support for this narrative.

2632As if just by happenstance, M.B.’s purported doubt sprouted at the same time media coverage of Dr. Sloka surfaced. In my view, it is far more likely M.B.’s interest in their own examination was ignited by exposure to media coverage of Dr. Sloka than it was by any story about a masseuse. I reject M.B.’s narrative about the impetus behind their google search on neurological breast examinations. I conclude that this evidence was designed to put some distance between M.B. and the prospect of media tainting – to suggest that M.B. had pre-existing concern when in fact they did not.

2633This is yet another case where, on the Crown’s theory, Dr. Sloka effectively abandoned all pretence and gratuitously groped M.B. On M.B.’s allegation, the momentary squeezing was unexplained, came nowhere close to resembling a real breast examination, and bore no apparent connection to an investigation of M.B.’s headaches. Worse, on M.B.’s account, Dr. Sloka never tried to tether the gratuitous groping to their headaches. The defence submits that, if this occurred, M.B. would have recognized it as a sexual assault. While this reasoning is tempting, I acknowledge that in a doctor patient relationship, patients might, due to the trust placed in their doctor, consent to things that are, in hindsight, objectively sexual. However, I consider it highly implausible that, rather than adhere to the methods of a proper albeit unnecessary breast examination, Dr. Sloka would abandon all pretence and grope M.B. in the manner described. In one breath, the Crown urges me to conclude that Dr. Sloka was a cunning charlatan. In another, the Crown urges me to conclude that Dr. Sloka knowingly abandoned all effort at making his groping look like a real breast examination. The Crown’s theory just does not track.

2634Having considered the totality of the evidence, I consider it plausible that M.B. has simply misremembered a legitimate examination. M.B. was a witness with admitted memory deficits, upon whom Dr. Sloka purportedly conducted a cardiac examination. As a result, Dr. Sloka admittedly exposed M.B.’s left breast. For years M.B. considered their examination to be completely appropriate to the point that they didn’t think twice about it. M.B.’s perception changed totally upon reviewing allegations against Dr. Sloka in the media. I consider it quite plausible that, due to media tainting, M.B. has now misremembered and misperceived an otherwise proper cardiac examination and has become convinced it was something it was not.

2635Given the evolution of M.B.’s certainty on core aspects of their complaint, given the admitted impact of media exposure on M.B.’s perception of their examination, and given the similarities between M.B.’s complaint and what M.B. read about in the media, I conclude that there exists a significant likelihood that exposure to media has tainted the memory and perceptions of M.B. M.B.’s exposure to media has caused me concern about M.B.’s reliability.

2636I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when examining any given patient in this case. However, having regard Dr. Sloka’s compelling evidence against the totality of the evidence, I have concluded that he has rebutted any possible inference that he possessed a sexual purpose when examining M.B. I will assess his evidence in more detail momentarily.

2637The Crown also relies upon two discrete cross-count similarities to support the evidence of M.B. on other material issues.

2638Given the likelihood that M.B.’s memory and perceptions have been tainted by exposure to media publications, these specific cross-count similarities can offer no additional support.

2639Even in the absence of tainting, I do not find the two specific cross-count similarities to have sufficient probative value.

2640The Crown suggests M.B. belongs to a constituency of patients who alleged breast cupping. Cupping was not a word M.B. used. M.B. described the momentary squeezing of each breast with a full hand. The criteria of membership in the Crown’s cupping club are so ill-defined and so broad as to deprive membership in that club of sufficient probative value.

2641The Crown also suggests M.B. belongs to a constituency of patients who alleged that Dr. Sloka never explained the reason for conducting various examinations. However, M.B. acknowledged that it was possible that Dr. Sloka told them that he wanted to do some basic neurological tests to see if there was a connection between their brain and their headaches. M.B. also acknowledged that Dr. Sloka may have told them that he wanted to perform a cardiac examination to determine if their heart might be the source of their headaches. They also conceded the possibility that Dr. Sloka proposed a cardiac examination due to possibility of cardiac contraindications. The failure to provide a rationale for a breast examination is only probative if I conclude that a breast examination occurred, which I do not.

2642Contrary to the Crown’s submission, I do not find support for M.B.’s evidence on any material issue in the evidence of Dr. Sloka. Specifically, I do not believe that Dr. Sloka’s documentation of “FAFG” amounts to a concession that he performed a breast examination. Dr. Sloka claimed a cardiac examination occurred, during which M.B.’s left breast was exposed, and any contact with the breast was incidental to this cardiac examination. On the other hand, M.B. alleged that they were naked from the waist up; M.B. did not describe a cardiac examination; and M.B. alleged that Dr. Sloka momentarily squeezed each breast in a manner untethered from any apparent connection to M.B.’s headaches. The fact that Dr. Sloka recorded seeking patient feedback is consistent with his purported practice of seeking feedback where there existed any kind exposure during a gowned examination. It is therefore as consistent with performing a standard cardiac examination as it is with M.B.’s allegations.

2643Dr. Bril’s evidence is not capable of resolving the material issues in M.B.’s case. Dr. Sloka concedes that a breast examination was unwarranted and concedes that the manner of draping described by M.B. was inappropriate.

2644The Crown argues that I ought to reject Dr. Sloka’s evidence, because he has no memory of performing a breast examination and therefore cannot deny doing one. They argue that Dr. Sloka’s denial is a guess. This submission, in my view, reverses the burden of proof. It also ignores Dr. Sloka’s evidence about his subjectively held justifications for the medical examinations he purportedly performed. Dr. Sloka provided a reasoned justification for the performance of a neurological and cardiac examination, as well as the taking of M.B.’s vital signs. Dr. Sloka never suggested in his evidence even the remote possibility of a justification for a breast examination. I am unable to see how any of his standard justifications for performing breast examinations applied to M.B. The Crown never suggested otherwise during cross-examination. Implicit in Dr. Sloka’s firm denial of a breast examination are the assertions that he had no reason to perform one and he would therefore not perform one.

2645The Crown also suggests that Dr. Sloka guessed when claiming he performed a neurological examination. True, Dr. Sloka did fail to chart a neurological examination; however, he provided a cogent basis for his belief that he did perform one. First, it was part of his standard approach to conduct a neurological examination with new patients. Second, M.B. conceded that Dr. Sloka used an ophthalmoscope during the examination at the second appointment. A fundoscopy utilizing an ophthalmoscope is part of Dr. Sloka’s standard neurological examination. Third, the first consultation letter clearly contemplated conducting an examination at the next appointment.

2646Dr. Sloka provided a rational basis for his belief that certain examinations occurred. He also refrained from purporting to remember greater details than he recalled. Unlike M.B., he did not purport to recall verbatim the words of long-ago conversations he had no motivation to remember. He could only aver to their general content. Contrary to the Crown submission, this restraint does not harm his credibility.

2647In my view, cross-examination did not do any damage to Dr. Sloka’s evidence regarding his treatment of M.B..

2648Dr. Sloka denied doing a breast examination, he denied squeezing M.B.’s breast in the manner alleged, he denied instructing M.B. to disrobe in the manner alleged, and he denied staying in the room while M.B. changed into a gown. Instead, he provided a rational basis, in accordance with his standard approaches, which was in accordance with his training and education, to conduct neurological and cardiac examinations. He allowed for the possibility of unintentional and incidental contact with M.B.’s left breast during a cardiac examination. His evidence survived unscathed during cross-examination.

2649Having regard to the frailties of M.B.’s evidence, having regard to the spectre of media tainting that clouds M.B.’s evidence, and having regard to Dr. Sloka’s undiminished evidence, I reject the evidence of M.B. Even if the standard of proof was a balance of probabilities, I would not accept M.B.’s evidence.

2650Having considered all the applicable evidence, I accept Dr. Sloka’s evidence regarding his treatment of M.B. and his denials of the conduct alleged by M.B. I accept that any contact made by Dr. Sloka with M.B. during any examinations of M.B. was made in accordance with Dr. Sloka’s training and standard practice, and for what Dr. Sloka believed to be a valid medical purpose and nothing more. An acquittal must follow.

iv. DR. K.C. (Count 49)

A Summary of Dr. K.C.’s Complaint and Dr. Sloka’s Response to It

2651Dr. K.C. alleged that during an assessment of her headaches at her first appointment with Dr. Sloka, he directed her to lay on the examination table. He said he wanted to look for moles. He pulled her gown down to her midsection. Then he squeezed her right breast with his hand for about ten minutes. His face was only a few inches away while he squeezed.

2652Dr. Sloka denied squeezing Dr. K.C.’s breast. Dr. Sloka testified that he performed a standard neurological and cardiac examination.

The Circumstances of Dr. K.C.’s Referral and Treatment History

2653Dr. K.C. was 31 years old when she received a referral to Dr. Sloka.

2654She was referred to Dr. Sloka by the GRH ER. She attended the ER on July 28, 2015, because she was suffering from excruciating headaches on and off for about four days. The headaches began following an orgasm. She had no prior history of headaches. While at the ER, she underwent an MRI and CT scan.

2655Dr. K.C. booked an appointment with Dr. Sloka’s office for September 19, 2014.

The Evidence of Dr. K.C.

2656Dr. K.C. was a geography professor with a PhD. She preferred that her title be used during questioning. During cross-examination, she took issue with calling Dr. Sloka a doctor, because she knew that the CPSO had revoked Dr. Sloka’s licence. However, Dr. Sloka also had a PhD. When that was pointed out to her, she relented.

2657Dr. K.C. testified that she spoke to her mother, who had seen a neurologist before, about what to expect from a neurology appointment, including what tests she might expect.

2658Dr. K.C. went alone to her first appointment on September 19, 2014.

2659As she recalled it, Dr. Sloka retrieved her from the waiting room and brought her into his office.

2660According to Dr. K.C., they walked across the hall, through his office, and straight into the examination room. They did not sit down for any discussion in his office before entering the examination room. Similarly, she did not recall any discussion of her medical history prior to any examination. Defence counsel reviewed with Dr. K.C. the history portion of Dr. Sloka’s consultation letter from the appointment. Dr. K.C. confirmed that the contents of the history were accurate and confirmed that she was the source of the information. However, Dr. K.C. refused to acknowledge that she provided this information to Dr. Sloka before the commencement of any examination. Instead, according to her memory, Dr. Sloka handed her a gown, told her to take everything off, and to put it on. She testified that she sought clarification, asking “everything?”, to which replied, “Yes, everything.”

2661When asked in cross-examination if, before entering the examination room, Dr. Sloka told her he wanted to do an examination to determine the cause of her headaches, Dr. K.C. conceded that it was possible Dr. Sloka said something to that effect on the way into the examination room. When asked if Dr. Sloka specifically told her that he wanted to do a basic neurological examination, Dr. K.C. agreed that it was possible. When asked if Dr. Sloka told her specifically that he wanted to perform a cardiac examination, Dr. K.C. testified that she did not recall this at all. However, she seemed uncertain when she gave this answer. When asked if it was possible that Dr. Sloka proposed a cardiac examination, her answer was not definitive. She said, “I don’t think so.”

2662In Dr. K.C.’s next memory, Dr. Sloka departed so she could change. She testified that she removed all her clothing, including her underwear, just as Dr. Sloka instructed her to do. In her statement to the police, though, Dr. K.C. was uncertain about whether Dr. Sloka asked her to remove all her clothing and whether she in fact had removed her underwear.

2663When putting on the gown, she wore it opened at the back, and she tied it at the back. Once she got changed, she sat on the edge of the examination bed.

2664Dr. Sloka returned to the room. She next remembered him asking her to lay down. She complied. He told her he needed her to untie her gown because he was going to examine her. She untied her gown. Then he started to undress her, without seeking her permission first. She testified that she gasped as he began to remove her gown. He gave her a reassuring gaze. He told her he was looking for moles. He pulled the gown past her breasts, down to her belly button. He crouched down next to the bed, formed his hand into a “C” shape, and started to touch the outer edge of her right breast with the fingers of one hand. He did not provide any warning. He did not seek consent. He started working his hand towards her nipple but did not touch it. He fairly gently squeezed the outer edges of her breast with his cupped hand. All the while, he remained silent. She testified that she felt exposed, violated, and really uncomfortable. She testified that the examination was alarming and shocking; however, she told herself that he was a doctor and that this was a medical examination. The touching lasted around 10 minutes.

2665Dr. K.C. also remembered that, at some juncture, Dr. Sloka asked her to raise her arms. She could not remember if her arms were raised while Dr. Sloka squeezed her right breast. She told the police that her arms were raised as Dr. Sloka touched her breast. Despite being reminded of this, she was unable to say that her arms were raised as Dr. Sloka squeezed her breast.

2666Dr. K.C. testified that she convinced herself that Dr. Sloka was a medical professional conducting a legitimate examination.

2667She also recalled that Dr. Sloka asked her to raise her hands above her head at some point, but she could not recall whether it occurred before or after he squeezed her breast.

2668Afterwards, he briefly touched her stomach with his fingers, while he was still crouched beside her and while her bare chest remained exposed. Dr. K.C. testified that he offered no explanation. She recalled him making a comment about her having gained weight and saying, “calories in – calories out”. She purportedly felt that this comment was unprofessional. In her police statement, Dr. Sloka denied that Dr. Sloka conducted any examination other than the one involving the squeezing of her breast. She did not mention the touching of her stomach or the comment, “calories in, calories out.” Dr. K.C. explained that she did not think the touching of her stomach and the comment were relevant or sexual.

2669Defence counsel cross-examined Dr. K.C. about the possibility that Dr. Sloka had, in reality, performed a cardiac examination on her. Dr. K.C. agreed that Dr. Sloka may have listened to her back with a stethoscope. She denied the possibility, though, that Dr. Sloka asked her to lower her gown slightly, without exposing both breasts, to listen to the top right area of her chest. She also rejected the suggestion that Dr. Sloka asked her to lower the left portion of her gown so that he could listen to two areas on her chest near her left breast. Dr. K.C. insisted that the only time Dr. Sloka lowered her gown occurred when Dr. Sloka exposed both breasts and squeezed her right breast.

2670Dr. K.C. testified that, following her examination, Dr. Sloka asked her to get dressed. He went to his office while she changed. Once changed, she joined him in his office. Then they had a discussion. He showed her the MRI images. An ER doctor had told her that she was missing a carotid artery. This information was incorrect. Dr. Sloka showed her both of her carotid arteries. He told her to avoid orgasms, and the headaches would go away. He did not provide any diagnosis. On her evidence, there was no discussion about follow up.

2671Dr. K.C. testified that, when she left the appointment, she felt incredibly uncomfortable. She expressed her discomfort to her partner. She could not recall if she told her partner that Dr. Sloka had examined her. Nevertheless, she testified to feeling uncomfortable about the prospect of returning to see Dr. Sloka. Consequently, she asked her partner to attend with her. However, in her police statement, she told the police that she did not know why her husband came to her second appointment. Dr. K.C. provided an explanation for the change in her evidence. She testified that she had spoken to her husband before testifying once she learned that her husband would not be called as a witness. She did so despite being warned against speaking to anyone else about the allegations. Her husband told her that she had asked him to come to the second appointment because of her discomfort from the first. Despite her husband imparting this information, Dr. K.C. still had no independent recollection of mentioning her discomfort to her husband and asking that he join her for the second appointment. In other words, she had falsely claimed her husband’s recollection as her own.

2672Following the first appointment, Dr. K.C. purportedly spoke to her mother about it. Her mother asked her if Dr. Sloka conducted the same tests as her mother had undergone, the ones her mother had told her to expect in advance of the appointment. Dr. K.C. told her mother that he had not performed those tests. According to Dr. K.C., despite her curiosity, her mother did not inquire about the tests that Dr. Sloka did in fact perform. Similarly, Dr. K.C. did not respond to her mother’s inquiry by informing her mother about the tests that Dr. Sloka did perform. In short, in answer to an inquiry about the examinations performed by Dr. Sloka, Dr. K.C. purportedly refrained from telling her mother about the alarming and shocking examination she had allegedly just endured. When question in cross-examination about this allegedly taciturn response, Dr. K.C. explained that she did not discuss the examinations performed because she did not want to inform her mother that her headaches had been caused by orgasms.

2673Dr. K.C. testified that she and her partner both went inside Dr. Sloka’s office for the second appointment, which occurred on October 29, 2014. She described the appointment as uneventful. She was not even sure why it had been booked. No examination occurred at this appointment.

2674Despite being shocked by her examination and harbouring feelings of discomfort about it, Dr. K.C. did not conduct any online research into the propriety of her examination until about five years later, after she first became exposed to media coverage of Dr. Sloka.

2675In 2019, she saw a news story online about Dr. Sloka. She came across the article through a Facebook group. The article mentioned that his licence had been revoked at the CPSO. Although she could not recall the details, the article set out the nature of the allegations. Amongst the allegations, she recalled complaints about Dr. Sloka performing breast exams. She also recalled that complainants were told to completely undress. She could not recall whether there were allegations of skin exams or searches for moles, but it was possible. Other women on the Facebook group also claimed to have been patients of Dr. Sloka. Some recounted their own experiences with Dr. Sloka. By the time she testified, she could not recall the details of their accounts.

2676Soon after reading about Dr. Sloka in the news, Dr. K.C. searched the CPSO website to read more about the allegations against Dr. Sloka. After reading about Dr. Sloka, she realized that the examination he performed was not likely related to any medical condition she suffered. Dr. K.C. testified that, until she read the allegations against Dr. Sloka, she did not know that the examination performed on her was medically inappropriate.

2677Dr. K.C. communicated with two former patients of Dr. Sloka, as well as a mother of a patient. This occurred in May of 2019. She discussed her experience with Dr. Sloka, and they discussed theirs with her.

2678Dr. K.C. contacted the CPSO in May of 2019. Staff at the CPSO told her that they were taking no further action because Dr. Sloka had already lost his licence. The told her to contact the police instead. She then called the police.

The Evidence of Dr. Bril

2679In their submissions, the Crown did not rely upon Dr. Bril’s opinion about the reasonableness of Dr. Sloka’s decision to conduct a cardiac examination. It was her opinion that one was not warranted.

2680Dr. Bril also testified that both a breast examination and skin examination were not warranted. That opinion was not controversial.

The Evidence of Dr. Sloka

2681Dr. Sloka had no memory of Dr. K.C. He relied upon the contents of his consultation letters for the truth of their contents. He also relied upon the rest of her medical file for context.

2682Dr. Sloka testified that, at the first appointment, he met with Dr. K.C. in his office and obtained her medical history and a description of her presenting complaint. It was his standard practice to speak to his patients in his office before proposing examinations and proceeding to the examination room. He recorded Dr. K.C.’s history in his consultation letter.

2683Dr. Sloka testified that, in accordance with his standard practice, he would have identified and explained the examinations he proposed to conduct on Dr. K.C. In Dr. K.C.’s case, he sought to measure her vital signs and conduct a neurological and cardiac examination.

2684Dr. Sloka testified that a cardiac examination was part of his standard approach to the evaluation of headaches. According to Dr. Sloka, the sudden onset of Dr. K.C.’s headaches would prompt him to consider a cardiac cause.

2685Dr. Sloka denied recommending or performing a skin examination or breast examination. In his view, Dr. K.C.’s symptoms did not warrant these examinations. Dr. Sloka also denied telling Dr. K.C. that he would be looking for moles. Moles played no role in his assessment of Dr. K.C.’s headaches.

2686Dr. Sloka testified, in accordance with his standard practice, that he would have asked Dr. K.C. to wear a gown for the examinations. In accordance with his standard practice, the cardiac examination would involve the exposure of her left breast. Accordingly, he would have required her to remove all clothing from the waist up. Dr. Sloka did not recall whether he asked Dr. K.C. to remove her pants. He suspected he would have asked her to remove her pants for the neurological examination, due to the concerning nature of her headaches, but he could not recall.

2687Dr. Sloka specifically denied asking Dr. K.C. to remove her underwear. His standard practice for neurological and cardiac examinations did not require Dr. K.C. to remove her underwear.

2688Dr. Sloka testified that he performed the neurological and cardiac examinations in accordance with his standard practice. And he recorded the normal results in his consultation letter.

2689According to Dr. Sloka, he did not require Dr. K.C. to remove her gown to measure her vital signs or conduct the neurological examination. He therefore denied that the examination began with the removal of Dr. K.C.’s gown.

2690Dr. Sloka denied lowering Dr. K.C.’s entire gown down to her mid-section. In a cardiac examination, he only asked a patient to expose their left breast.

2691Dr. Sloka testified that it was his practice to ask the patient to untie their gown at the commencement of the cardiac examination. Then he would ask the patient if it was okay if they lowered the left portion of the gown to expose the left breast for the cardiac examination. He might then join the patient in lowering the gown.

2692Dr. Sloka denied that both breasts were exposed. And he denied that the entire gown was lowered to Dr. K.C.’s belly button. He did not do that for cardiac examinations.

2693Dr. Sloka also denied squeezing Dr. K.C.’s breast at any point. Dr. Sloka maintained that any contact with Dr. K.C.’s breast would have been accidental and incidental to the conduct of his cardiac examination; although, he allowed for the possibility that, if Dr. K.C. had large breasts, he might have needed to displace the breast with his hand to listen to one location on her heart.

2694Dr. Sloka formed the impression that Dr. K.C. was suffering from coital headaches. They seemed to occur during a timeframe in which there had been a change in her menstrual cycle. Consistent with his concern about a possible cardiac cause of her headaches, he ordered an MRI of her brain and veins of her brain, to rule out the possibility of clotting. He also ordered hormonal bloodwork to look for an explanation for the change in her menstrual cycle that might also explain her headaches.

2695Dr. Sloka denied commenting on Dr. K.C.’s weight and saying “calories in, calories out” to her. Her weight gain had nothing to do with her headaches. He did record in his notes, “gained wgt.” He also noted her reported weight gain in the screening questions portion of his consultation letter. However, he did not know what prompted her to provide this information to him. He was unable to see how weight fit into her neurological issues. In any event, Dr. Sloka testified that he would not have said “calories in, calories out” to Dr. K.C. This was not the type of language he would use with a patient: “I wouldn’t say anything like that.” The Crown did not cross-examine Dr. Sloka on that assertion.

Assessment of the Evidence and Analysis

2696The Crown concedes that Dr. K.C.’s evidence, standing alone, could leave the court with a reasonable doubt. The Crown argues, however, that her evidence is supported and rehabilitated by the similarity between other allegations and Dr. K.C.’s. I agree with the Crown’s concession that Dr. K.C.’s evidence leaves sufficient room for reasonable doubt. I disagree, however, that any similarities with other complaints is capable or removing that doubt. I shall begin with a discussion of my concerns with Dr. K.C.’s evidence.

2697Dr. K.C.’s description of the examination is so bizarre, so outlandishly inappropriate, that I reject as remotely possible her contention that she convinced herself of its medical propriety. I find it far more likely that she considered it medically appropriate because it bore no resemblance to the absurd description she provided in court. I understand that, given the dynamics of a doctor patient relationship, patients might consent to behaviours which in hindsight appear objectively sexual but, in the moment, were considered medically appropriate. The Supreme Court has made it abundantly clear that courts must be mindful of the dynamics of the doctor patient relationship when evaluating consent in this context. But this is beyond the pale. Dr. K.C. alleges a search for moles where virtually no search occurred. Dr. K.C. alleges a breast examination where only one breast was squeezed. Instead of a proper breast examination, she alleges that Dr. Sloka sat crouched, with is head inches from her right breast, and squeezed. Imagine that scenario. Now imagine it for ten minutes. Ten minutes spent squeezing, crouched beside her, his face inches from her breast. It is utterly preposterous; utterly unmoored from any semblance of a medical procedure. Meanwhile, she discounts the possibility of a cardiac examination, despite one being documented in Dr. Sloka’s consultation letter. She alleges that she was alarmed and shocked in the moment but somehow convinced herself that this outlandish behaviour was medically appropriate. Nevertheless, she purportedly maintained a lingering concern. Despite this lingering concern, she lacked the curiosity to bother making any online inquiries for five years. Her curiosity about Dr. Sloka only began after exposure to news of allegations against Dr. Sloka, not after the examinations. I simply cannot accept that, if what she describes actually occurred, she would ever convince herself that this strange caricature of an examination was genuine. I should note that I do not come to this conclusion in a vacuum. I come to this conclusion having considered all the other frailties in Dr. K.C.’s evidence.

2698Related to the unlikelihood of Dr. K.C. believing that alleged mockery of an examination to be a legitimate one, is my conclusion that it is highly unlikely Dr. Sloka would attempt such a mockery. I remind myself once again of the Crown theory: Dr. Sloka used the guise of legitimate examinations as a ruse to gain access to women’s bodies for a sexual purpose. Dr. K.C. did not allege anything remotely resembling a proper breast examination, skin examination, or cardiac examination. On Dr. K.C.’s account, Dr. Sloka abandoned all pretence and engaged in a parody of a medical examination. On this theory, though, he did not gain additional access to Dr. K.C.’s body. A real breast examination would involve both breasts. A real skin examination would involve full nudity. A real cardiac examination would expose just as many breasts – only the opposite one. The Crown does not allege a ruse in Dr. K.C.’s case; it alleges a farce. Engaging in such a farce increases the prospects of detection, with no apparent advantage. I find it highly unlikely that Dr. Sloka would do so.

2699My concerns with Dr. K.C.’s evidence do not end there.

2700Dr. K.C.’s credibility and reliability suffer from her insistence that the appointment began in the examination room, without the taking of any patient history. Dr. Sloka’s contemporaneously dictated reporting letter clearly strongly supports his contention that he took her history before recommending any examinations. Dr. K.C. agreed that the contents of the history were essentially accurate. Dr. Sloka did not pull that information from thin air. He obtained it from her. I accept that he took her history before conducting any examinations. For that reason, I accept that he met with Dr. K.C. in his office before proceeding to the examination room. I reject Dr. K.C.’s evidence to the contrary. As a result, I reject her implication that Dr. Sloka was in a rush to get her out of her clothes and into a gown. Relatedly, Dr. K.C.’s intransigence on this subject undermines her claim that Dr. Sloka did not identify and explain the examinations he wished to perform. She paints Dr. Sloka as being in a hurry to get her into a gown and then get her undressed, but there is ample evidence he took his time. I accept Dr. Sloka’s evidence that he proposed and explained the examinations in accordance with his standard practice. I reject Dr. K.C.’s assertions to the contrary.

2701Dr. K.C.’s attempt to explain the omission of stomach touching from her police statement raises concerns about her credibility. I can understand how one might overlook a detail about an event five years in the past. It is not the omission that raises a concern for me. It is the way Dr. K.C. attempted to explain the omission. She testified that she did not think the stomach touching was relevant or sexual. That claim is dubious. On her evidence, her chest and stomach were exposed. Dr. Sloka had just finished squeezing her right breast for ten minutes. His head remained immediately beside her torso, inches away. And now his hand roamed to her stomach. While this is going on, he is commenting on her weight and telling her, “calories in, calories out.” On her evidence, this is all one ongoing transaction, one which she had come to believe was sexual after reading allegations about Dr. Sloka. The notion that a part of an ongoing sexualized transaction was neither relevant nor sexual is simply untenable. That an obviously intelligent person would make such an assertion tells against their credibility.

2702I am also concerned that about Dr. K.C. passing off her husband’s recollections as her own. Recall that Dr. K.C. professed to have lingering concern after her first appointment, despite satisfying herself that the examination was medically appropriate. She attempted to bolster her claim of an ongoing concern by testifying that she was so concerned that she asked her husband to come to the next appointment. As it turns out, she had no memory of asking her husband to come to the next appointment and no memory of expressing her concern to him. That was a memory her husband apparently shared with her. It was a memory she did not posses, but it was a memory she was willing to claim as her own. Dr. K.C.’s credibility suffers considerably from this revelation.

2703Dr. K.C.’s resistance to the prospect of a cardiac examination also puzzles me. For one, it was charted in Dr. Sloka’s consultation letter. This was drawn to her attention. Yet she still resisted the suggestion that one occurred, even though she was prepared the admit the possible use of a stethoscope on her back. However, when conceding this possibility, she didn’t put forward the possibility of a respiratory examination. The stethoscope just hung there as a possibility, unconnected to any medical examination, and NOT connected to a cardiac examination; that is, not connected to the only examination charted that involved the use of a stethoscope. Even as she rejected the possibility of a cardiac examination, the speed and tone of her answer suggested uncertainty, at least to my ears. It seemed to me that she was reluctant to admit a legitimate examination that might explain the exposure of and contact with a breast. She appeared to have become entrenched in a position, and unwilling to entertain any notion that might dislodge her from it.

2704Dr. K.C.’s alleged conversation with her mother raises concerns. Before her appointment, she spoke to her mother about the types of examinations she ought to expect. Her mother had spoken of numerous components of a neurological examination, including strength tests and reflex tests. Based on this conversation with her mother, Dr. K.C. purportedly knew what to expect in her appointment with Dr. Sloka. Dr. K.C. also testified about speaking to her mother after the appointment. Her mother asked if Dr. Sloka had conducted the same tests as those performed on her mother. She told her mother, “He didn’t do any of those”, thereby purportedly telling her mother that Dr. Sloka had not done a neurological examination. In other words, Dr. K.C. purportedly told her mother that her expectations for the examination had not been met. She and her mom were close. Before the appointment, mom made predictions. After the appointment, daughter informed mom that those predictions did not come to pass. And then… nothing. No discussion of what examinations occurred in lieu of the ones predicted. No discussion of a shocking and alarming intrusion upon her body, one which allegedly inspired fear of future violations. The apparent point of this conversation was to review the nature of the examinations conducted. Yet, Dr. K.C. claimed she shared nothing. That makes no sense. Dr. K.C.’s explanation for her silence also makes no sense. She testified that she did not want to speak to her mother about the cause of her headaches. The conversation had nothing to do with the cause of her headaches. The conversation was about the types of examinations that had occurred. She showed herself to be more than willing to discuss what types of examinations to expect and to tell her mother that those expectations had been defeated. I therefor reject Dr. K.C.’s claim that her orgasms prevented her from telling her mother about what examinations actually occurred. It is far more likely, in my view, that Dr. K.C. did not describe what has become her allegations, because Dr. K.C. had nothing to complain about at that point. In coming to this conclusion, I observe that the Crown chose not to call Dr. K.C.’s mother.

2705Dr. K.C. also took inconsistent positions about a core aspect of the alleged assault. In her police statement, Dr. K.C. was unsure about whether Dr. Sloka asked her to remove all of her clothing. She also could not remember whether she had removed her underwear. In cross-examination, she became certain that Dr. Sloka asked her to remove all her clothing, and she became certain that she complied. For the first time, she purported to recall a conversation with Dr. Sloka on the subject. She did not report this conversation in her statement to police. She did not raise it in her evidence in chief. Then, in cross-examination, this purported memory surfaced. I reject Dr. K.C.’s claim that Dr. Sloka directed her to remove her underwear. Similarly, I reject her claim that she removed her underwear.

2706The spectre of media tainting also clouds Dr. K.C.’s evidence. According to Dr. K.C., in the aftermath of her review of news stories about Dr. Sloka, she went from accepting that her examination was appropriate to believing that it was improper.

2707Dr. K.C. reviewed a considerable amount of media coverage. That media coverage recounted allegations of Dr. Sloka having patients completely undress for examinations, Dr. Sloka inappropriately touching patients’ breasts and performing inappropriate breast examinations, and Dr. Sloka conducting skin examinations to look for moles. All of these allegations mirror the allegations she ultimately made in her complaint.

2708Dr. K.C. admitted that seeing the allegations in the media caused her to revisit her own experience with Dr. Sloka. Seeing these stories caused her to change her opinion about the propriety of her own examination.

2709Dr. K.C. continued to make inquiries about Dr. Sloka. She went on the CPSO website and read the ruling of the disciplinary committee in Dr. Sloka’s case.

2710Dr. K.C. also read the comments and opinions of other people on her Facebook group. She was interested in learning about the experiences of others.

2711Given the vast quantity of media consumption prior to making a statement, given the similarity of the allegations in the media to Dr. K.C.’s eventual allegations, given the consequent change in Dr. K.C.’s perception of her own experience, and given the other indicia of unreliability in Dr. K.C.’s evidence, I conclude there exists a significant likelihood that Dr. K.C.’s perceptions and memory have been tainted by media consumption.

2712Dr. K.C. also posted onto her Facebook feed every news article she came across. She even went so far as to post a rating of Dr. Sloka on RateMD. Despite having no animus for years, once she was exposed to media coverage of Dr. Sloka, Dr. K.C. has demonstrated a new-found animus and an interest in the outcome of this trial.

2713The Crown suggests that, despite its frailties, Dr. K.C.’s evidence can be rehabilitated by resort to similar fact evidence. I disagree.

2714While I have admitted cross-count similar fact evidence in support of the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations on any given patient, I have also concluded that Dr. Sloka has provided a compelling rebuttal of any such inference in Dr. K.C.’s case. I will discuss his evidence in due course. First, I will discuss the Crown’s reliance upon granular similarities between the evidence of some other patients and Dr. K.C.’s evidence.

2715The Crown argues that Dr. K.C. belongs to a constituency of patients who allege breast cupping. That submission is problematic for a number of reasons. First, the terms of membership in the “cupping” club are ill-defined and overbroad. Indeed, most of the supposed members of this group never employed the word “cupping.” Second, Dr. K.C.’s outlandish description of her alleged assault is a species unto itself. Third, the Crown has failed to rebut the influence of media tainting. Consequently, the purported similarities of other complaints have insufficient probative value.

2716The Crown also places Dr. K.C. in a group of patients who testified that Dr. Sloka claimed to be looking for moles. Dr. K.C.’s voracious consumption of media coverage included a review of other patients’ complaints about searches for moles. The Crown has failed to rebut the significant likelihood that Dr. K.C.’s evidence was tainted by reading media coverage about Dr. Sloka. Moreover, Dr. K.C. does not allege anything remotely akin to a skin examination. This purported similarity therefore lacks sufficient probative value.

2717Dr. Bril’s evidence is also incapable of repairing the significant frailties in Dr. K.C.’s evidence on any of the material issues. I note here that the Crown has not relied upon Dr. Bril’s opinion about the reasonableness of Dr. Sloka’s decision to perform a cardiac examination. Absent reliance on that aspect of her opinion, Dr. Bril’s evidence does nothing to resolve the material issues here. Given the general frailties of Dr. Bril’s evidence regarding cardiac examinations, as discussed in the segment devoted to the general discussion of her evidence, I place little weight on Dr. Bril’s opinion here, anyway.

2718Dr. Sloka has denied asking Dr. K.C. to remove the entire upper portion of her gown. He denied groping Dr. K.C.’s right breast. He denied the entirety of the bizarre examination alleged by Dr. K.C.

2719Instead, Dr. Sloka testified that he took Dr. K.C.’s vitals, then performed a neurological and cardiac examination in accordance with his standard methods. Dr. Sloka maintained that any contact with Dr. K.C.’s breast would have been incidental contact with the left breast during a cardiac examination done for the legitimate purpose of investigating a possible cardiac cause of Dr. K.C.’s headaches. His decision to order an MRI and MRV support his contention that he wanted to rule out cardiac issues that might lead to stroke.

2720The Crown spent a considerable amount of time cross-examining Dr. Sloka on his decision to order hormonal bloodwork related to the functioning of the pituitary gland. The Crown made no submissions on the significance of this line of questioning. The logic of it escaped me then and still escapes me now. Given the absence of submissions on this subject, I do not intend to delve into it, other than to say that Dr. Sloka provided cogent answers relating to the bloodwork he ordered. The bloodwork related to her menstrual cycle which he believed to be related to her headaches.

2721The Crown suggested Dr. Sloka’s evidence, reporting letter, and handwritten notes confirmed important details of Dr. K.C.’s evidence. I disagree.

2722The fact that Dr. Sloka chronicled Dr. K.C.’s report of weight gain offers no support for the contention that he uttered the phrase “calories in, calories out.” Likewise, it offers no support for the contention that it was Dr. Sloka and not Dr. K.C. who brought up the topic of her weight or was interested in her weight. All it confirms is that Dr. K.C. reported weight gain. Weight gain ultimately did not feature in Dr. Sloka’s medical opinion. He believed that Dr. K.C. brought up the issue of her weight gain, but he thought that weight gain was irrelevant to her medical issues. I would make one final observation. Dr. K.C.’s evidence about this discussion makes little sense unless she is the one who brought up the issue of weight gain. This purported conversation occurred at Dr. K.C.’s first appointment. Dr. Sloka had no way of knowing whether Dr. K.C. had gained or lost weight leading up to her appointment with Dr. Sloka. He had no baseline by which to measure her current status. It makes no sense for Dr. Sloka to have initiated an observation about Dr. K.C.’s weight gain. It makes far more sense that she introduced the topic.

2723I disagree with the Crown’s contention that Dr. Sloka changed his position with regard to Dr. K.C.’s attire for the examination. In my view, his evidence remained consistent. Contrary to what the Crown submits, he always asserted that Dr. K.C. would have been gowned for her examinations. He did not know what she wore from the waist down. He suspected he would have asked her to remove her pants, but he could not recall. Despite being invited to speculate, Dr. Sloka ultimately stated he could not recall whether Dr. K.C. had removed any clothing from the waist down.

2724The Crown has not satisfied me that Dr. Sloka’s evidence regarding his treatment of Dr. K.C. suffered from any meaningful frailties. His evidence was logical, internally consistent, and unfazed by cross-examination. Nothing in Dr. K.C.’s evidence or Dr. Bril’s evidence served to undermine Dr. Sloka’s evidence on any material issues.

2725Having considered the frailties of Dr. K.C.’s evidence in the face of Dr. Sloka’s unshaken denials, I reject Dr. K.C.’s evidence on the material issues in her complaint. I reject her account of the bizarre examination involving the squeezing of her right breast. I reject her allegation that Dr. Sloka brought up her weight gain and said, “calories in, calories out.” I reject her allegation that Dr. Sloka touched her stomach after groping her breast. Instead, I accept that Dr. Sloka proposed and explained the examinations he wished to conduct. I accept that he received Dr. K.C.’s consent to perform those examinations. I also accept he took Dr. K.C.’s vital signs, then performed a neurological examination followed by a cardiac examination. Further, I accept that Dr. Sloka performed these examinations for what he believed to be a valid medical purpose. I also accept his denial that he squeezed Dr. K.C.’s breast. And I accept his assertion that any contact with Dr. K.C.’s breasts involved incidental contact with her left breast during a cardiac examination. In short, I accept that any contact with Dr. K.C. was medical in nature, not sexual; and Dr. K.C. consented to this medical contact.

2726Dr. Sloka will be acquitted on this count.

v. C.C. (Count 31)

A Summary of Ms. C.C.’s Complaint and Dr. Sloka’s Response to It

2727Ms. C.C. alleged that Dr. Sloka examined her breasts at her first appointment.

2728Dr. Sloka denied performing a breast examination. He testified that she was the last patient of the day, and he only performed a minimal safety examination of her eyes, reflexes, and blood pressure. He completed a full neurological and cardiac examination at the next appointment.

The Circumstances of Ms. C.C.’s Referral and Treatment History

2729Ms. C.C. was 21 years old when she received her referral to Dr. Sloka. She was a student at the University of Waterloo.

2730She had been sitting in a university lecture when she lost her vision and half of her body went numb. Then she experienced a severe headache with light sensitivity. She had a history of migraines with aura, but she had never gone numb down the entire side of her body before.

2731She went to the U of W Health Services Centre on September 27, 2012, and saw Dr. Stecho. After taking her history and conducting an examination, Dr. Stecho advised her to immediately cease taking her birth control medication, due to the stroke risk involved. He also referred her to Dr. Sloka.

The Evidence of Ms. C.C.

2732Ms. C.C. was 30 years old when she testified.

2733She attended a total of three appointments with Dr. Sloka. The first appointment occurred on October 15, 2012. She attended for a follow up appointment on November 21, 2012. Her last appointment occurred on December 17, 2012. At the conclusion of her last appointment, Dr. Sloka did not make any plans for further follow up.

2734Ms. C.C. testified that her first appointment took place at 5:30 p.m. – after hours. At that time of day, no one else was at the clinic.

2735Dr. Sloka came to the waiting room to greet Ms. C.C. He then brought her to his office.

2736Once in the office with her, Dr. Sloka asked about her medical history and the details of her recent concerning episode. Dr. Sloka explained that migraine sufferers who take birth control have an increased risk of stroke. He also proposed a physical examination and sought her consent. He explained that the examination would involve testing her reflexes, looking in her eyes – that kind of thing. She agreed to the examination. Ms. C.C. rejected the suggestion that Dr. Sloka only proposed a brief safety examination involving her eyes, reflexes, and blood pressure. She understood him to have recommended a full examination.

2737Defence counsel referred to the summary of the examination in Dr. Sloka’s reporting letter. The summary indicated, “Because she was the last patient of the day, I only minimally examined her, but she was quite comfortable with this and fundoscopy was normal and the reflexes at her knees were normal. Her blood pressure was slightly elevated but eventually settled to 120/90. Her heart rate was 72.” After reviewing this passage, Ms. C.C. agreed with counsel that Dr. Sloka performed a fundoscopy using an ophthalmoscope, tested her reflexes, measured her blood pressure, and took her pulse. However, she continued to insist that the examination involved more than just these minimal components.

2738According to Ms. C.C., Dr. Sloka did not provide any rational for the examination. He simply told her that an examination was required. Ms. C.C. agreed to the examination.

2739Once she agreed to the examination, Dr. Sloka told her that she would need to take off all her clothes and put on a gown.

2740The two of them went into the examination room. According to Ms. C.C., Dr. Sloka told her to undress, put on a hospital gown, and lay on the examination table. He also told her that she needed to remove all her street clothing. He said he needed to examine her neck, breasts, and abdominal area. Apart from that, he provided no further explanation. He then departed the room to allow her to get gowned.

2741Once she had removed all her clothing, put on a gown, and got on the exam table, Dr. Sloka came back into the examination room.

2742Ms. C.C. testified that Dr. Sloka told her that it was late; so, there were no other people in the building. He said that normally there would be someone else in the room for a breast examination. He asked her if it made her uncomfortable to be in the room alone with him. She assured him she was okay, but, in reality, she was uncomfortable. In her mind, she was trying to figure out why a breast examination was necessary. She rationalized that he would not be doing one, though, if it were not necessary.

2743The examination began with her neck as she laid on her back on the examination table. Dr. Sloka stood to her right and he touched her neck using one hand. She believed that she had told Dr. Sloka that her neck had been tight and wondered if the tightness had something to do with the migraines.

2744In cross-examination, Ms. C.C. recalled Dr. Sloka employing a stethoscope at some point during her examination at the first appointment. She recalled being in a seated position with her legs stretched out along the examination table. After he listened to her back, she laid back on the table for the rest of the examination. She could not recall him listening to her chest while she was gowned for an appointment.

2745According to Ms. C.C., Dr. Sloka then then examined her breasts as she lay on the table. He began by saying, “Now I’m going to examine your breasts.” Though expressing uncertainty, she testified that she believed she removed the gown all the way to her pelvic area to facilitate the breast exam. She recalled being naked from the waist up for the exam. Dr. Sloka started touching her right breast using two hands, in a massaging kind of motion. She said it kind of felt like groping. He kept asking if he was making her uncomfortable. He also said she seemed nervous and uncomfortable. He kept massaging, though. Ms. C.C. testified that she shook head, “no”, even though she actually felt uncomfortable. She did not want Dr. Sloka to know that she felt uncomfortable, though. She reportedly kept saying to herself, “Stop freaking out. He’s a doctor. Calm down. This needs to be done.”

2746Ms. C.C. testified that Dr. Sloka examined her left breast in a similar fashion. Afterwards, he examined her abdomen.

2747Ms. C.C. described Dr. Sloka using both hands to press his fingers into her abdomen. After he examined her abdomen, she pulled up her gown and sat up.

2748According to Ms. C.C., Dr. Sloka then checked her blood pressure. He checked it multiple times. He told her that her pressure was high. He said he thought he was making her uncomfortable and told her he would leave the room briefly. She testified that she was nervous, and her heart rate was racing. She also testified that, after a couple of minutes, Dr. Sloka returned and checked her blood pressure again. By this time, her blood pressure had come down.

2749According to Ms. C.C., Dr. Sloka next checked her reflexes and her eyes. Ms. C.C. later commented in-chief that she was not 100% sure that Dr. Sloka checked her eyes at this appointment. However, in cross-examination, she agreed that Dr. Sloka did in fact check her eyes at this appointment.

2750Dr. Sloka then told her she could get undressed before returning to his office to allow her to change. However, she testified that he left the door between the office and examination room open.

2751Once changed, Ms. C.C. joined Dr. Sloka in the office, and they had a brief discussion. He told her she would be going for an MRI and would be doing follow up testing. He also told her that he believed she had experienced a migraine with aura. She also recalled a discussion about her birth control. He wanted to confirm she had stopped taking her current prescription. He also spoke of other birth control options that did not pose as much of a risk for stroke. However, he did not provide her with a new prescription.

2752Ms. C.C. testified that, at some point in the visit, Dr. Sloka asked her if she was sexually active, He also asked about the number of her sexual partners. She did not understand the relevance of the questions, but she answered them.

2753Ms. C.C. testified that, following the first appointment, she went to her car and called her boyfriend, S.C., who has since become her husband. She told him that she had a breast exam and that it made her feel uncomfortable. She also told him that she found it weird that Dr. Sloka kept asking if she was uncomfortable. He reacted by saying he assumed Dr. Sloka was doing what he was supposed to do. He agreed the examination seemed weird, but “he’s a doctor… it must have needed to be done.” Accordingly, she came to think that maybe she was overreacting and thought, “Maybe that’s what doctors do.” Consequently, she did not press her concerns further. Apart from speaking to her boyfriend about the appointment, she did not discuss the appointment with anyone else. She purportedly kept it to herself over the years.

2754Ms. C.C. returned for her second appointment on November 21, 2012.

2755In her evidence in-chief, Ms. C.C. testified that Dr. Sloka used an ophthalmoscope to perform an eye examination at two appointments. She specifically recalled him doing an eye-examination at the second appointment. She said that this eye examination stood out in her memory. The eye examination occurred in the examination room, while she sat on the examination table. She wore her street clothes this time, not a gown. Ms. C.C. recounted being uncomfortable. Dr. Sloka claimed that he saw something when he was looking at her eyes. She testified that he placed one hand on her leg while he held the ophthalmoscope in the other hand. According to Ms. C.C., Dr. Sloka did not examine any other parts of her body on this occasion. Ms. C.C. purportedly did not feel that they eye examination was necessary, but she convinced herself otherwise.

2756In cross-examination, Ms. C.C. acknowledged the possibility that Dr. Sloka performed other parts of his standard neurological exam upon her at this second appointment, but she did not recall him doing so; although, she did recall him testing the strength of her arms and hands. Defence counsel also asked Ms. C.C. whether Dr. Sloka also performed a cardiac examination at the second appointment. Ms. C.C. initially responded by saying, “… yeah, I do remember a stethoscope like him listening to my heart.” Then, when asked to confirm that this cardiac examination occurred at the second appointment, she said she was not 100% sure. Then, Ms. C.C. retreated from her recollection of Dr. Sloka listening to her heart when defence counsel asked her to confirm whether she remembered Dr. Sloka listening to her chest. At that point, she said, “I can’t recall him listening to the front, but I do remember him listening to my back.” Despite her evidence about the use of a stethoscope at this appointment, she insisted that she did not wear a gown at the second appointment. She insisted that she remained in her street clothes.

2757In cross-examination, Ms. C.C. confirmed that Dr. Sloka examined her eyes at both the first and second appointments. Contrary to her evidence in-chief, though, she testified in cross-examination that Dr. Sloka placed his hand on her thigh at her first appointment, not the second appointment. She was naked and wearing a gown when Dr. Sloka touched her thigh, not in street clothes as she had testified in-chief. She elaborated, saying that the thigh touching made this first eye examination memorable. In effect, Ms. C.C. went from alleging that Dr. Sloka sexually assaulted her at two appointments, to alleging that he assaulted her at only the first appointment. She went from alleging that Dr. Sloka touched her thigh over her street clothes at the second appointment to alleging that Dr. Sloka touched her thigh at the first appointment while she wore a gown over her naked body.

2758In re-examination, the Crown sought to use Ms. C.C.’s police statement to refresh her memory about the timing of the thigh touching. Having read from one portion of her police statement, Ms. C.C. then confirmed her assertion that the thigh touching occurred at the first appointment, not at the second, as she had initially alleged in her evidence in chief.

2759At this point, things took a strange turn. The defence was permitted to read to Ms. C.C. and then question her about the portion of her police statement that was used to refresh her memory. In the process, it became abundantly clear that she clearly told the police that the thigh touching happened at the second appointment, not at the first:

Q. And then there were follow-up appointments [emphasis added]?

A. There was [sic] two other appointments, yeah [emphasis added].

Q. And what happened at those appointments [emphasis added]?

A. They were a lot more brief. There wasn’t like there wasn’t really as much like examination. Like he came up and he had an issue with my eyes, and he wanted to send me to like a specific… eye person. And he was examining my eyes like he – he put his hand on my thigh like while he’s doing it like very inappropriate manner like way too like comf- comfortable like touchy feely. But there was no other like further like examination like the first one was like that first appointment is when that had happened. [emphasis added]

2760Despite the wording of this portion of her statement, Ms. C.C. testified that she had interpreted the passage as her indicating that the thigh touching occurred at the first appointment.

2761The Crown then received permission to read in an earlier portion of Ms. C.C.’s police statement, where the officer was trying to place the thigh touching in the chronology of Ms. C.C.’s allegations. In that portion of the statement, Ms. C.C. told the officer that the thigh touching occurred after her physical examination. She reasoned: “I think it had to have been after because he was rechecking my eyes for something. [emphasis added]” In this passage, Ms. C.C. had undoubtedly linked the thigh touching to the second eye examination – the rechecking of her eyes.

2762To sum up, Ms. C.C. had alleged in-chief that the thigh touching occurred during the eye examination at the second appointment, while she wore street clothes. In cross-examination, she alleged that the thigh touching occurred at the first appointment, while she wore a gown, and her legs were bare beneath the gown. This inappropriate touching allegedly made that first eye examination more memorable. In re-examination, she was shown passages from her police statement that confirmed she told the police that the thigh touching occurred at the second appointment, not the first. However, in reading the passages, she misinterpreted them. She believed she had told the police that the thigh touching occurred at the first appointment.

2763Continuing with the second appointment, Ms. C.C. confirmed that Dr. Sloka referred her to an eye specialist, Dr. Wilkinson, following her second appointment, as indicated in Dr. Sloka’s reporting letter for November 21, 2012.

2764Ms. C.C.’s last appointment occurred on December 17, 2012. At this appointment, she updated him on her symptoms. Dr. Sloka reviewed with her the opinion of the eye specialist. The specialist had decided that Ms. C.C. had a congenital difficulty in her right eye, which gave no cause for concern. Dr. Sloka told her that there was no reason to continue to see him, but he would see her if troubles arose. From that point onwards, Ms. C.C. dealt with her family doctor.

2765Ms. C.C. testified that, on Remembrance Day, 2019, she learned that a friend of a friend had died of breast cancer. Her friend had posted a reminder to others to do self-examinations. That night she examined her own breasts, which was the first time she had ever done so. According to Ms. C.C., memories of Dr. Sloka’s breast exam came flooding back. She spoke to her husband about it. She was unable to remember Dr. Sloka’s name. She decided to google “Waterloo neurologist sexual assault.” The search results revealed that Dr. Sloka was facing criminal charges. Ms. C.C. testified that she only read the headline and the first couple of lines of the article. Then, she spoke to her husband about Dr. Sloka. She recounted to him everything that she could recall about her appointment with Dr. Sloka. She agreed that, in doing so, she told him about receiving a breast examination. She also reminded him of her phone call to him after the appointment. Ms. C.C. testified that was the first time she gave a full account of what she had recalled from her treatment by Dr. Sloka.

2766Although Ms. C.C. testified that she did not read the whole news article about Dr. Sloka, she found the contact information for the police at the bottom of the article. Using that number, she contacted the police and left a message.

2767Ms. C.C. also emailed her doctor’s office to requisition a copy of her medical records, so that she could confirm from her medical records that she was treated by the same neurologist as discussed in the news. She had been unable to remember Dr. Sloka’s name.

2768Ms. C.C. testified that, before November 11, 2019, she had not been aware of any allegations against Dr. Sloka. She had also not thought about Dr. Sloka for years, nor had she discussed her treatment by Dr. Sloka with anyone since her discussion with her husband after the first appointment. The subject went into a “black box” until November 11, 2019.

2769Ms. C.C. had obtained and reviewed her medical records from U of W Health Sciences before providing her statement to the police. Ms. C.C. also googled Dr. Sloka again. She found an article that indicated Dr. Sloka faced 34 charges of sexual assault. He had been denied bail and suffered a broken nose in custody. Ms. C.C. also continued to have discussions with her husband about the allegations. She told her husband that she did not think Dr. Sloka’s reporting letters were inaccurate. She disputed Dr. Sloka’s assertion that he only performed a partial examination at the first appointment and then subsequently performed a full examination at the second. All these things transpired before she and her husband provided their statements to the police.

The Evidence of S.C.

2770S.C. testified that Ms. C.C. called him after her appointment with Dr. Sloka. At the time, Ms. C.C. was his girlfriend. He was 21 years old. He was driving home from college at the time. Ms. C.C. was “freaked out” about her migraines. She had obtained an emergency referral in the evening. She didn’t feel comfortable going late at night. She went alone. She described the doctor as a weird guy that creeped her out. She said that she had to strip down to a robe for an examination. She mentioned the doctor doing some standard preliminary examinations like checking her eyes and ears. She also mentioned a breast examination, where she was not a wearing robe. She said that Dr. Sloka more or less poked and prodded, she also used the word fondled. She told Mr. S.C. that she was not comfortable with the person performing the examination or the time of day of the examination. She said Dr. Sloka was telling her to stay calm and relax – everything’s okay.

2771According to Mr. S.C., he did not really know how to respond. He believed she had called to express her discomfort. He consoled her. He told her that Dr. Sloka must have been looking for something, that it seemed weird to him, but he is not a medical professional. Mr. S.C. testified that he was more concerned about Ms. C.C.’s health issues.

2772In cross-examination, Mr. S.C. agreed that whatever Ms. C.C. told him, he concluded that the neurologist did what he needed to do to get a diagnosis. Neither he nor Ms. C.C. conducted any research or took any further action. The topic did not arise again until November 11, 2019

2773On November 11, 2019, Ms. C.C. did a self-administered breast examination in bed. Following this, she did some online research. Mr. S.C. had thought Ms. C.C. had searched Dr. Sloka’s name. In cross-examination, the defence pointed to Mr. S.C.’s police statement, in which he recounted Ms. C.C. searching “sexual assault in waterloo region.” Then, defence counsel suggested that Ms. C.C. searched “Waterloo neurologist sexual assault.” Mr. S.C. replied, “That sounds right.”

2774Ms. C.C.’s search query resulted in her finding a story about a neurologist charged with sexual assault. Mr. S.C. knew that there were multiple complainants. Ms. C.C. said, said “I’ve had this guy examine me. Other people had this done. This was done to me too.” She said everything came back to her. Then, she recounted what she remembered from her appointment seven years previously. She gave the full account, as if replaying the video. She asked him if he remembered the call that she made to him seven years earlier; and then they discussed the call.

2775Later, Ms. C.C. ordered her medical records. When she reviewed the medical records, she told Mr. S.C. that some things had been left out of her records.

2776After these discussions with Ms. C.C., Mr. S.C. provided his statement to the police.

The Evidence of Dr. Bril

2777Some of Dr. Bril’s evidence concerned matters that were not contentious. It was not neurologically reasonable to examine Ms. C.C.’s breasts. It was not neurologically reasonable to ask Ms. C.C. about the number of her sexual partners. Dr. Sloka did not dispute Dr. Bril’s opinion here.

2778Dr. Bril took issue with Dr. Sloka providing medical services related to Ms. C.C.’s reproductive health. She stated that it was within the field of neurology to provide advice about stroke risks associated with oral contraceptives. However, she took issue with Dr. Sloka actually prescribing birth control medication to Ms. C.C. Dr. Bril testified that Dr. Sloka should have left the prescription to Ms. C.C.’s family doctor. Having said that, Dr. Bril acknowledged that she did not know Dr. Sloka’s specific training, competence, and expertise regarding the prescription of birth control. Dr. Bril also took issue with Dr. Sloka investigating the possibility of a uterine fibroid through bloodwork and an ultrasound. She testified that these investigations lay outside the field of neurology and were thus improper. Dr. Bril allowed that it might be reasonable to order the ultrasound to expedite the investigation, but she held the view that Dr. Sloka should then have left this aspect of Ms. C.C.’s care to her family doctor.

2779Dr. Bril testified that Dr. Sloka failed to address the issue of Ms. C.C.’s one-sided weakness, which was in fact a neurological issue, at the first appointment. However, she agreed it can be appropriate to conduct a limited examination and defer the entire neurological examination to another appointment, so long as one has ruled out an urgent health issue like stroke. Dr. Bril agreed that Dr. Sloka appeared to have done just that.

2780While the Crown did not rely upon this opinion in their submissions, Dr. Bril provided an opinion about the appropriateness of a cardiac examination at the second appointment. Dr. Bril assumed that Dr. Sloka had ruled out the possibility of stroke at the first appointment. Accordingly, she did not believe a cardiac examination was warranted at the second appointment.

The Evidence of Dr. Sloka

2781Dr. Sloka had effectively no independent memory of his treatment of Ms. C.C., but he thought he remembered an unusual eye finding that prompted a referral to an eye specialist. He relied upon his reporting letters for the truth of their contents and the rest of her file for context.

2782Ms. C.C. suffered from migraines with aura. For the first time, she suffered from a migraine where the aura involved the entire left side of her body, which lasted for 90 minutes. Presented with this new headache, Ms. C.C.’s doctor at U of W Health Services referred Ms. C.C. to Dr. Sloka. In the referral, she informed Dr. Sloka that he had instructed her to immediately stop using her oral contraceptive.

2783Dr. Sloka agreed that Ms. C.C.’s appointment occurred at 5:30 p.m. on October 15, 2012. His reporting letter indicated she was the last patient of the day. The other clinics would have been closed. His secretary would be gone for the day. Cleaning staff were usually around, but he had no memory one way or the other.

2784Dr. Sloka took a detailed medical history from Ms. C.C. That history occupied a 1 ¼ pages of his reporting letter.

2785Ms. C.C. had suffered from migraines for many years. More recently, on September 27, 2012, she suffered from a migraine on her way to school. Once at school, she began to feel numbness in her left arm which radiated to her face, the left side of her nose, and the left side of her tongue. In taking Ms. C.C.’s history, Dr. Sloka obtained information about her stroke risk factors. That information occupies an entire paragraph of his reporting letter.

2786At the time of the appointment, Ms. C.C. confirmed that she had ceased taking her oral contraceptive medication on the advice of her clinic doctor.

2787Dr. Sloka wanted to prescribe Micronor for Ms. C.C. because it did not pose the same stroke risk as her former contraceptive medication – it was a progesterone only pill. He also prescribed Micronor because Ms. C.C. had reported long menstrual flow and significant cramping. She wanted help and was looking for options. He had training in this area and believed he was competent to make the prescription.

2788Dr. Sloka testified that, because Ms. C.C. was the last patient of the day and she attended after hours, he only recommended a minimal safety examination. He recommended the examination while in his office with Ms. C.C. As with all examinations, he would have conducted the examination in the examination room. Ms. C.C. would wear street clothes for a safety examination.

2789The safety examination involved him examining her eyes, checking her blood pressure, and testing her reflexes. These minimal tests were performed to rule out anything “grossly abnormal.”

2790Dr. Sloka denied performing a breast examination on Ms. C.C. His reporting letter indicated he only did a limited examination, because of the time of day, which would not involve a breast examination.

2791Dr. Sloka testified that it was his usual practice to offer a breast examination when prescribing birth control, if the product monograph for that drug recommended a breast examination. Micronor was one such drug. When the product monograph recommended a breast examination, he typically discussed that recommendation with the patient. That discussion helps inform whether he will offer to perform a breast examination on the patient.

2792As a result of his discussion with Ms. C.C., Dr. Sloka learned that she received regular yearly breast examinations from her family doctor. According to Dr. Sloka, his approach to patients who were first time users of oral contraceptives differed from his approach to patients who had previously used oral contraceptives. Ms. C.C. was a patient who had already used oral contraceptives. Ms. C.C.’s family doctor was consequently already performing annual breast examinations. The product monograph for Micronor only recommended a breast examination once a year. If the patient had already received a breast examination within the timeframe suggested in the monograph, there did not exist a need to conduct another one. Consequently, the information provided by Ms. C.C. indicated that a breast examination was not warranted. He simply switched Ms. C.C. from one oral contraceptive to another. Dr. Sloka testified that he took the same approach with another patient, A.R.

2793The Crown did not challenge Dr. Sloka on the correctness of his understanding of the product monograph for Micronor.

2794Given the time of day, given that he recorded only a minimal safety examination, and given that the circumstances did not indicate the necessity of a breast examination, Dr. Sloka maintained that he did not perform a breast examination on Ms. C.C. on October 15, 2012.

2795Dr. Sloka denied that Ms. C.C. got undressed and wore a gown on October 15, 2012. The safety examination would be performed with Ms. C.C. in street clothes. Dr. Sloka further denied touching Ms. C.C.’s breasts. He also denied having her lay down on the table. Likewise, he denied asking about her sex life.

2796Dr. Sloka testified that he ordered an ultrasound of Ms. C.C.’s uterus, because Ms. C.C. had informed him that she had a uterine fibroid. Uterine fibroids can grow in response to intake of certain hormones, including progesterone and estrogen. He wanted to see the size of the fibroid because he was prescribing Micronor. He took a different approach with the investigation of Ms. C.C.’s uterine fibroid than he did regarding breast cancer screening. Unlike Ms. C.C.’s breasts, Dr. Sloka noted in his reporting letter that Ms. C.C.’s uterine fibroid had not been investigated for quite some time. He testified that he ordered a pelvic ultrasound because her uterine fibroid had not been measured recently and he did not want to cause harm by prescribing Micronor.

2797Dr. Sloka also ordered some bloodwork, because Ms. C.C. had reported some disruption in her cycles. He wanted to examine her menstrual hormones to make sure there was no hormonal cause for the disruption.

2798Dr. Sloka testified that, if the bloodwork or ultrasound revealed abnormalities, he could refer Ms. C.C. to a gynecologist.

2799Dr. Sloka disagreed that he had stepped out of his lane when ordering the bloodwork and ultrasound. He noted that the referral involved her birth control medication. Her birth control medication potentially played a role in her headaches. The test results could impact the birth control recommendations he might make. He understood from the medical literature and texts that neurologists may need to provide birth control advice to patients with neurological problems.

2800In his reporting letter, Dr. Sloka recorded normal results from his safety examination. In his impression, he reported that Ms. C.C. was suffering from migraine with aura. He planned to see Ms. C.C. after she completed her tests.

2801Dr. Sloka next met Ms. C.C. on November 21, 2012.

2802Dr. Sloka’s reporting letter for November 21 indicated that Ms. C.C. discussed her ongoing symptoms. It also indicated that he performed a neurological and cardiac examination.

2803Dr. Sloka relied upon his standard justification for headache patients when proposing a cardiac examination to Ms. C.C. Also, Ms. C.C. had some stroke-like symptoms with her headaches which warranted a cardiac examination. Additionally, she had reported a recent change in her headaches. In response to the critique of Dr. Bril, Dr. Sloka testified that his minimal safety examination had not ruled out all stroke concerns. He minimized his safety examinations. He had planned to do a full cardiac examination at the next appointment. Dr. Sloka also testified that Ms. C.C.’s report of some stroke risk factors justified a cardiac examination.

2804When conducting the neurological examination, Dr. Sloka discovered a concerning yellow opacity when performing a fundoscopy on the right eye. He had not noticed this opacity during fundoscopy at the first appointment. He testified that the fundoscopy in the safety examination was done for the purpose of finding evidence of swelling (papilledema), which involves a focus on the centre portion of the retina. It would not involve an examination of the entire eye. He speculated that he may have missed seeing the opacity because it was not located where he was looking.

2805Due to his discovery of the yellow opacity in Ms. C.C.’s eye, Dr. Sloka obtained an appointment for her with an ophthalmologist that same day. He was concerned because he believed the yellow opacity in her eye could potentially have represented a stroke.

2806In addition to sending Ms. C.C. immediately to the ophthalmologist, Dr. Sloka planned to see Ms. C.C. in a month.

2807Ms. C.C.’s final appointment occurred on December 17, 2012. The ophthalmologist had determined that the yellow opacity was a congenital defect in her right retina. It was not a cause for concern. When writing about the opacity his reporting letter to the family doctor, he wrote, “I find this unusual as I thought I had done a fundoscopy with her first appointment and did not see the difficulty then. She has been to see optometry before as well.” The Crown suggested to Dr. Sloka that by using this language Dr. Sloka expressed uncertainty as to whether he did a fundoscopy at the first appointment. Dr. Sloka maintained that he did a fundoscopy. As noted, he testified that his minimal safety examination at the first appointment was focussed on a search for swelling in the centre, at the optic nerve (papilledema), which could indicate swelling in the brain. That was his focus. It was a safety examination. His certainty about this examination was shared by Ms. C.C., who also testified that Dr. Sloka performed a fundoscopy at the first examination.

2808After obtaining an update from Ms. C.C., Dr. Sloka did not make further plans for follow up, but he indicated to her family doctor that he would be pleased to see her again if the doctor felt he might be of some benefit.

Assessment of the Evidence and Analysis

2809I found Ms. C.C. to be an unreliable witness who was also dishonest with the court.

2810Most concerningly, Ms. C.C. disclosed uncertainty about whether she was sexually assaulted on one occasion or two. At trial, she testified in-chief that Dr. Sloka fondled her breasts at the first appointment and placed his hand on her thigh at the second appointment. On her account, she was gowned for the breast examination at the first appointment and in her street clothes when Dr. Sloka placed his hand on her thigh at the second. Then, in cross-examination, she testified that Dr. Sloka placed his hand on her thigh at the first appointment, while looking in her eyes after he had already performed the breast examination – there was no thigh groping at the second appointment. In this scenario she wore no clothes beneath her gown when Dr. Sloka groped her thigh. In re-examination, she mis-read a portion of her police statement and erroneously came to believe that she told the police that Dr. Sloka had placed his hand on her thigh at the first appointment. In reality, she told the police that Dr. Sloka placed his hand on her thigh at the following appointment. This is an important contradiction, which I will now discuss.

2811There is a big difference between getting molested at two successive appointments and getting molested twice in a single appointment. Ms. C.C. could not keep these things straight, which suggests neither happened.

2812Pause here to contemplate the implications of each scenario. Ms. C.C. testified that she told her boyfriend about the breast examination immediately following the first appointment. She purportedly told him that the breast examination made her feel uncomfortable. He purportedly reassured her that the breast examination was medically appropriate. This purportedly put the issue to rest. In this narrative, she made no mention to her boyfriend of Dr. Sloka groping her thigh as he looked into her eyes – a gratuitous action unconnected to the examination being performed. Surely, that additional feature would change the calculation entirely. Now, imagine the alternative scenario. Suppose she had expressed concern about the breast examination at the first appointment, but the thigh groping had yet to occur. Ms. C.C. purportedly sought her boyfriend’s input after the breast examination. A month later, her doctor allegedly groped her thigh while looking into her eye – again, a gratuitous action unconnected to the eye examination. Yet there is no suggestion from Ms. C.C. that this groping caused her to revisit the appropriateness of the breast examination that gave her pause; no suggestion that she sought additional assurances from her boyfriend – even though, on Ms. C.C.’s account, the thigh groping was not part of any examination but done gratuitously. In reviewing Ms. C.C.’s evidence, it appears obvious to me that she did not consider the implications of these alternative scenarios for the rest of her narrative. She also proved incapable of remembering something as fundamental as the sequence of the alleged misconduct. At best, these are hallmarks of a completely unreliable historian. At worst, these are hallmarks of a carelessly constructed fabrication.

2813Ms. C.C.’s reliability was called into question in other ways.

2814For instance, Ms. C.C. insisted that she wore street clothes at her second examination. She maintained this position in the face of Dr. Sloka’s report of a full neurological and cardiac examination. She continued to maintain this position despite acknowledging that Dr. Sloka may have listened to her back with a stethoscope, thus providing some independent support for Dr. Sloka’s claim of a cardiac examination. And she continued to maintain this position despite confirming that Dr. Sloka performed some strength tests on her arms and hands, thus providing some independent support for Dr. Sloka’s report of a neurological examination at the second appointment. I find it extraordinarily unlikely that Dr. Sloka would report a full neurological and cardiac examination to Ms. C.C.’s family doctor if those examinations did not occur. Those examinations provided a foundation for his opinion. The reports of those examinations were tendered by the Crown. They are admissible for their truth. Given the evidence of Dr. Sloka’s standard approach to these examinations, I conclude it overwhelmingly likely that Dr. Sloka asked Ms. C.C. to wear a gown for these examinations. Ms. C.C.’s insistence to the contrary is simply wrong; and it raises concerns about her reliability and objectivity.

2815Dr. Sloka’s report of a cardiac examination at the second appointment provides another reason to be troubled by Ms. C.C.’s evidence. Again, I consider his contemporaneous report of a cardiac examination to be highly probative. I find it implausible that he would report doing one when he did not do so. I am therefore prepared to accept that a cardiac examination occurred, just as Dr. Sloka reported. I am likewise prepared to accept that Dr. Sloka conducted it in accordance with his standard method. Her left breast was exposed. If Dr. Sloka examined Ms. C.C.’s breasts at the first examination, as she reported, and if that breast examination caused her discomfort, I cannot fathom how she would not find the cardiac examination at the second appointment to be memorable and cause for additional discomfort. Ms. C.C.’s failure to remember a cardiac examination at the second appointment therefore provides me another reason to conclude that a breast examination did not occur at the first appointment. If there truly was a cause for discomfort during her time as a patient of Dr. Sloka, I think it more plausible that the cardiac examination at the second appointment was the source of that discomfort.

2816Ms. C.C.’s insistence she wore a gown for the first appointment also raises concern. Again, Dr. Sloka reported performing only a minimal safety examination. He made a point of reporting that fundoscopy was normal, that reflexes at the knees were normal, and that her blood pressure eventually settled to an acceptable range. These basic examinations are clearly aimed at ruling out an urgent neurological crisis, like stroke. I fail to see the profit in reporting to Ms. C.C.’s family doctor only a minimal examination when a full examination occurred. In effect, the Crown asks that I conclude Dr. Sloka deployed a ruse with Ms. C.C. but failed to continue with that ruse when discussing it with her family doctor. It makes no sense. Similarly, it makes no sense for Dr. Sloka to then proceed to falsely claim to have completed two full examinations at the second appointment, particularly if the sexual assault occurred at the first appointment. It makes far more sense for Ms. C.C. to have simply confused the events at the two appointments. However, once again, her evidence about her discussion with her boyfriend following the first appointment makes such a concession unworkable, particularly if she expected her boyfriend to back her claim about that discussion.

2817I now come to the evidence of Mr. S.C., the man who in 2012 was Ms. C.C.’s boyfriend and who at trial was her husband. The Crown called Mr. S.C. to rebut the suggestion that Ms. C.C.’s evidence was influenced by her exposure to media coverage of Dr. Sloka. Both Mr. S.C. and Ms. C.C. would have the court believe that Ms. C.C. spontaneously remembered a seven-year-old breast examination while she was performing a self-examination in bed on November 11, 2019 – Remembrance Day, of all days. Both would have the court believe that she spontaneously did a google search using words like “Waterloo neurologist sexual assault,” despite the fact that both would have the court believe that they had not given Dr. Sloka any thought for seven years, having accepted that Ms. C.C.’s examination was medically proper. Both would deny awareness of abundant media coverage of Dr. Sloka in the fall of 2019. Both would deny that the decision to come forward with her own allegations was influenced by exposure to extensive media coverage of the CPSO and criminal case against Dr. Sloka. In doing so, I believe both have been dishonest with the court. The scenario they paint is outrageously implausible. I reject as too coincidental to be true the notion that Ms. C.C. just happened to have flashbacks of her historical breast examination at a time when the internet was rife with publications about the allegations being made against Dr. Sloka. All doubt is removed when I consider the wording of Ms. C.C.’s google search. On her evidence, seven years had passed. During that time, she did not purport to be dogged with doubt and concern. She did not purport to view herself as a victim of sexual assault. Her boyfriend had allayed her concerns. Her memories of the exam were stored in a metaphorical “black box.” Neither had spoken of it in seven years. Then, despite the fact she had not yet considered herself to be a victim of sexual abuse, she purportedly searched “Waterloo neurologist sexual assault.” The use of those search terms does not align with their historical narrative, and it does not align with Ms. C.C.’s purported views about her long-ago medical treatment at the time she performed her search. I conclude that they have constructed this narrative to obstruct any inference that they have jumped on a bandwagon or that they have been influenced by media exposure. This conclusion causes me to severely doubt the veracity of their alleged conversation seven years previously. Indeed, it causes me to have grave doubts generally about their credibility.

2818I also reject as dishonest Ms. C.C.’s denial that she fully read the news story she had found. On her account, she read the headline and the first couple of lines of an article about Dr. Sloka. Then, she skipped to the end to find the contact information for the police. Given the context, given her purported state of mind, given the admitted purpose of the google search, Ms. C.C.’s denial is simply not believable. She would have the court believe that after seven years of dormancy, her curiosity and concern about Dr. Sloka arose spontaneously. Then, she would have the court believe that she sought to satisfy that curiosity by googling information that might reveal whether her doctor was implicated in sexual assault. Then, she would have the court believe that, once she found that sought after information, she declined to read it. In doing so, Ms. C.C. has been dishonest.

2819Even absent my concerns about their honesty, the content of the discussion between Mr. S.C. and Ms. C.C. undermines the reliability of Mr. C.C.’s evidence. Both of these witnesses agree that Ms. C.C. raised with Mr. S.C. what she purportedly told him seven years previously. Both also agree that she informed Mr. S.C. of what she could recall from her appointments with Dr. Sloka. Both would agree that in recounting her purported memories, she discussed her breast touching allegations. All this information imparted by Ms. C.C. to Mr. S.C. created a significant potential for the contamination of Mr. S.C.’s memory. In addition to his dubious credibility, this anti-tainting witness was tainted.

2820As it happens, Ms. C.C.’s allegations involve breast touching – a prevalent component of the allegations reported in the media. In my view, there is a significant concern that exposure to media coverage has consciously or unconsciously impacted Ms. C.C.’s allegations. Given my concerns about Mr. S.C.’s credibility and my concerns about his own tainting, his evidence is not capable of alleviating my concerns about Ms. C.C.

2821The Crown argues that Ms. C.C.’s evidence is supported to some extent by Dr. Sloka’s own evidence. The Crown points to Dr. Sloka’s justification for conducting breast examinations on patients to whom he prescribes oral contraceptives, including Micronor. With respect, the Crown oversimplifies Dr. Sloka’s evidence regarding his standard practice. True, the prescription of an oral contraceptive is one of his standard justifications for conducting breast examinations – just as it would appear to be for a legion of family doctors across the province. However, as noted above, Dr. Sloka testified that the prospect of a prescription would give rise to a discussion. That discussion would inform whether he would recommend a breast examination. In Ms. C.C.’s case, he learned from Ms. C.C. and her family doctor that she had already been taking an oral contraceptive. He learned from Ms. C.C. that her family doctor performed annual examinations. Knowing this and knowing he was simply switching her from an estrogen-based contraceptive to a safer progesterone-only pill, a breast examination was not required. Therefore, Dr. Sloka’s practices regarding patients taking oral contraceptive did not support Ms. C.C.’s allegation of a breast examination. Moreover, his report of only a minimal safety examination directly contradicted Ms. C.C.’s claim of a more extensive examination.

2822The Crown also argues that Dr. Sloka provided evidence capable of confirming that Ms. C.C. was nervous and that her heart was racing. His reporting letter indicated that her blood pressure was elevated but eventually settled. Dr. Sloka conceded that he may have left the room to wait for her blood pressure to settle. Ultimately, Ms. C.C.’s blood pressure was 120/90. Her pulse was 72. The Crown called no evidence about whether blood pressure and nervousness were correlated. Her initially elevated blood pressure does not provide evidence to support Ms. C.C.’s purported emotional state following the alleged breast examination.

2823I have trouble seeing how the evidence of Dr. Bril supports Ms. C.C.’s allegations. True, Dr. Bril believed that Dr. Sloka operated outside of his neurological lane when prescribing birth control medications and ordering bloodwork and ultrasound to investigate Ms. C.C.’s uterine fibroid. I don’t see how this opinion helps establish that a breast examination occurred. While Dr. Bril felt that these actions should have been left for Ms. C.C.’s family doctor, Dr. Bril did not know Dr. Sloka’s level of competence, training, and experience in this area of medicine. Also, as Dr. Sloka pointed out, part of the referral at least implicitly involved the termination of an unsafe contraceptive pill and the search for a safer option. Dr. Sloka’s investigations were relevant to that aspect of the referral. His subjective approach to the referral was logically supported. Dr. Bril’s insistence that Dr. Sloka role end at providing contraceptive advice and not involve providing contraceptive prescriptions seems a dogmatic and arbitrary line – particularly when she did not know the full extent of Dr. Sloka’s competence and training in the area. Even assuming that line is properly drawn, I don’t see how it proves that Dr. Sloka performed a breast examination.

2824Dr. Bril’s evidence was helpful on one material issue, though. She confirmed that it would be appropriate to conduct only a minimal examination to rule out any exigent neurological crisis, like stroke, at the first appointment. She agreed it would be proper to defer a full examination to the next appointment. She took no issue with this reported approach.

2825Dr. Bril’s evidence was also potentially helpful on the question of the propriety of a cardiac examination at the second appointment. Given that this examination would involve the exposure of Ms. C.C.’s left breast, Dr. Bril’s opinion could potentially be of assistance to the Crown. However, the Crown has not relied upon Dr. Bril’s evidence regarding the propriety of the cardiac examination. Even if the Crown had relied upon that opinion, Dr. Sloka provided a cogent explanation of why he still believed it appropriate to further investigate a cardiac cause for Ms. C.C.’s symptoms. Reasonable people can disagree. I accept that Dr. Sloka subjectively believed in the reasonableness of his approach.

2826In support of Ms. C.C.’s evidence, the Crown places reliance on similar fact evidence. I have permitted the use of cross-count similar fact evidence in support of the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations on female patients. However, having considered Dr. Sloka’s exculpatory evidence, I have concluded that he has rebutted any inference of a sexual purpose. I will delve more deeply into an assessment of Dr. Sloka’s evidence momentarily. Additionally, in Ms. C.C.’s case, I conclude that the probative value of her evidence is undermined significantly by the tainting effect of her review of media publications about Dr. Sloka.

2827The Crown asks that I conclude that Ms. C.C.’s evidence is bolstered by two related granular similarities between the evidence of some other complainants and Ms. C.C.: that Dr. Sloka failed to identify the nature of the examinations (the what) and the reason for the examinations (the why). Admittedly, media publications did not include allegations by patients that they were not informed of the nature of the examinations about to be conducted. Ms. C.C., like some other patients, alleged that Dr. Sloka did not identify every examination he was about to conduct. However, as has been discussed above, Ms. C.C.’s memory of what transpired is so poor that I have no confidence in her claim that Dr. Sloka did not identify the examinations ahead of time. Like some of the 14 other complainants who occupy this category, I don’t know whether I can attribute the similarity in this aspect of their evidence to a poor memory about a full discussion or good memory about an incomplete discussion. I also keep in mind that many patients described Dr. Sloka’s thoroughness, his reliance upon textbooks, pictures, and self-drawn pictures and diagrams when explaining himself. On the Crown’s theory, Dr. Sloka was sometimes excessively thorough with some patients and nefariously abrupt with other patients. The probative value of similar fact lies in the unlikelihood of innocent or exculpatory coincidence. There is ample reason here to conclude that any coincidence is due to the passage of time and its impact on the memories of the witnesses. Also, given the credibility concerns I have identified with Ms. C.C., I can place no reliance on her claim that Dr. Sloka did not identify and explain the examinations he planned to conduct.

2828I turn now to the evidence of Dr. Sloka.

2829As noted, the Crown suggests Dr. Sloka’s approach to patients to whom he prescribed contraceptive medication supports their contention that a breast examination occurred. For the reasons already discussed, I disagree with that contention. Dr. Sloka provided a reasoned explanation for his approach to Ms. C.C. That explanation did not run afoul of his standard practice. It conformed with it.

2830The Crown also takes issue with Dr. Sloka relying on Ms. C.C.’s report of annual breast examinations. They suggest that his reliance upon Ms. C.C.’s word runs afoul of his practice of doing independent assessments of patients to form his own conclusions. Importantly, Dr. Sloka spoke of the need to perform independent assessments in the context of formulating diagnoses. Regular breast examinations were not diagnostic, but more akin to preventative maintenance or observation. Dr. Sloka never gave evidence that he insisted on independent breast examinations in this context.

2831The Crown also submits that I ought to reject Dr. Sloka’s claim that he performed a fundoscopy at the first examination. The Crown argues that no fundoscopy occurred at the first examination and that Dr. Sloka proved himself to be an unreliable witness. In making this submission, the Crown overlooks that their own witness agreed that Dr. Sloka performed a fundoscopy at the first examination. The Crown also asks that I reject a contemporaneously written consultation report that specifically reported doing a fundoscopy plus two other examinations, all of which were clearly designed to rule out an acute neurological crisis. Similarly, the crown asks that I reject Dr. Sloka’s assertion in his second reporting letter, where he repeated his assertion of a fundoscopy at the first appointment: “… everything seemed normal except for the fundoscopy. I noted that we did minimal fluoroscopy with her last appointment, but she seems to have a yellow opacity involving much of her right superior pole.” In the face of three pieces of direct evidence about the performance of a fundoscopy, one of which came from the complainant herself, the Crown asks that I speculate that Dr. Sloka did not in fact examine Ms. C.C.’s eye at the first appointment. The basis for that invitation? Dr. Sloka’s expression of befuddlement in his third reporting letter about missing the opacity during the first examination: “I find this unusual as I thought I had done fundoscopy with her first appointment and did not see any difficulty then.” I noted throughout the trial, and I have noted elsewhere in these reasons that both Dr. Sloka and Dr. Bril spoke in a rather opaque fashion, as if medical school teaches a class in linguistic obfuscation. The passage on which the Crown relies does not provide a basis for a reasonable inference that no fundoscopy was performed. It does not even really provide a basis for speculation. Dr. Sloka provided a reasoned explanation for how he could miss the opacity during the first fundoscopy: at that time, he was focussed on finding evidence of acute brain trauma – papilledema – at the centre of the retina. His focus was narrow. The evidence here overwhelmingly establishes that Dr. Sloka conducted a fundoscopy at the first appointment.

2832In my view, the Crown failed to identify any meaningful frailties in Dr. Sloka’s evidence.

2833Given my concerns about the credibility and reliability of Ms. C.C. and Mr. S.C. I reject their evidence as it pertains to the nature of the examinations conducted by Dr. Sloka and as it pertains to any post-examination discussion that allegedly occurred following the first appointment.

2834I accept the evidence of Dr. Sloka, including the assertions made in his reporting letters about the examinations conducted. I accept his denial of a breast examination; I accept his denial of an abdominal examination; and I accept his denial that he placed his hand on Ms. C.C.’s thigh. I accept that he performed the examinations that he reported on the dates he reported doing those examinations. I further accept that he performed those examinations in accordance with his standard methods, for a valid medical purpose, and with his patient’s consent. The Crown has failed to prove that Dr. Sloka performed any medically inappropriate examinations and has failed to prove that Dr. Sloka possessed anything other than a medical purpose when conducting examinations on Ms. C.C. In my view, the evidence is only capable of credibly establishing that Ms. C.C. consented to and received medical examinations that were conducted for a medical purpose in a medically appropriate manner. Dr. Sloka must be acquitted on this count.

vi. M.R.E. (Count 14)

A Summary of Ms. M.R.E.’s Complaint and Dr. Sloka’s Response to It

2835Dr. Sloka treated Ms. M.R.E. in two distinct referral periods. Ms. M.R.E. alleged that, on either the first or second appointment during the second referral period, Dr. Sloka instructed her to remove her clothing from the waist up, lay down on the examination table, and cover herself with a sheet. She alleged that he used his hands to touch her from the forehead down to her beltline. In the process, he cupped her breasts from below and felt her lower abdomen beneath her beltline.

2836Dr. Sloka denied touching Ms. M.R.E. in the manner she alleged. In fact, Dr. Sloka denied examining Ms. M.R.E. during the entire second referral period. Instead, Dr. Sloka testified that he examined her once during her first appointment of her first referral period. In that examination, he performed a neurological and cardiac examination. Ms. M.R.E. denied that Dr. Sloka examined her at this appointment.

The Circumstances of Ms. M.R.E.’s Referrals and Treatment History

2837Ms. M.R.E. received her first referral to Dr. Sloka in 2010. She was 29 at the time. She went to the GRH ER on October 29, 2010, due to the severity of her headaches. The ER doctor referred her to Dr. Sloka. Her first appointment occurred on November 19, 2010. She attended a total of three appointments during this first referral period. Dr. Sloka concluded she had for years suffered from catamenial migraines (migraines associated with menstruation) and sporadic migraines between menstrual cycles. After the third appointment on July 8, 2011, Dr. Sloka left follow up open. He did not hear from Ms. M.R.E. again until 2017.

2838Ms. M.R.E.’s family doctor, Dr. Kim, referred Ms. M.R.E. to Dr. Sloka again in 2017. She was 35 at the time. Her first appointment in this period occurred on July 24, 2017. By the time of her third appointment, a CPSO practice monitor had begun monitoring Dr. Sloka’s interactions with patients. Ms. M.R.E. attended a total of four appointments in this referral period. The last appointment occurred on March 27, 2018.

The Evidence of Ms. M.R.E.

2839According to Ms. M.R.E., Dr. Sloka only examined her once. On her evidence, this examination occurred during the second referral period, not the first. On her evidence, the sexual assault occurred during this examination.

2840Ms. M.R.E. had no concerns about Dr. Sloka’s behaviour during the first referral period. On her evidence, no examination occurred during this referral period. Indeed, she denied even entering the examination room during the first referral period. Likewise, she denied wearing a gown during the first referral period. Given that position, it is important to delve further into her evidence regarding the first referral period.

2841Ms. M.R.E. testified that, on the November 19th visit, Dr. Sloka took a detailed medical history and did what she called a minimal examination of her in his office while she wore her street clothes. The minimal examination consisted of Dr. Sloka shining a light in her eyes. It did not involve any physical touching. Ms. M.R.E. also denied getting into a gown.

2842Cross-examination revealed that Ms. M.R.E. had not recalled any examination occurring at her first appointment, not even an eye-examination, when she provided her statement to the police on October 9, 2019. By that point in time, she had not reviewed Dr. Sloka’s medical file. After her police interview and during preparation for her trial testimony, she read her medical file, including Dr. Sloka’s consultation letter for November 19, 2010. When she reviewed that consultation letter, she interpreted it as documenting an eye examination. Then, by the time of trial, she purportedly remembered the eye-examination. In effect, she purported to have her memory refreshed by her review of the consultation letter, which contradicted her earlier testimony that the records did not alter her memory. While conceding an eye-examination in the office, Ms. M.R.E. continued to deny in cross-examination that Dr. Sloka examined her in the examination room. She specifically denied that Dr. Sloka performed full neurological and cardiac examinations in the examination room with her on the examination table. While she could not remember it, she was prepared to concede that Dr. Sloka used a reflex hammer and a stethoscope during the visit, but if he used those instruments, he did so in the office while she remained fully clothed. Ms. M.R.E. continued to deny getting into a gown.

2843As noted, the second round of treatment began in 2017.

2844Ms. M.R.E. had gone through personal trauma, and her migraine frequency and duration had been increasing for a couple months. Her family doctor made the referral.

2845Ms. M.R.E. testified that the sexual assault, which occurred during an examination, was memorable and concerning. However, Ms. M.R.E. could not remember when the alleged sexual assault occurred. She believed it occurred on either the first or the second appointment of this referral period. It could not have happened at the third appointment. In her recollection, she was alone with Dr. Sloka when the examination occurred. She testified that by the time of the third appointment, Dr. Sloka was accompanied by a monitor and CPSO notices were posted about Dr. Sloka’s office.

2846Dr. Sloka’s records confirmed that the first appointment in this period occurred on July 24, 2017. The second appointment occurred on August 17, 2017.

2847Ms. M.R.E. recalled that, at the appointment of concern, she reviewed how she was feeling and provided feedback to Dr. Sloka on the effectiveness of her medications. She had been experiencing prolonged migraines during her menstrual cycle. She was also seeing a gynecologist about the situation.

2848What happened next is a little unclear. Initially, in her evidence in-chief, Ms. M.R.E. testified that she did not recall what Dr. Sloka said to her, but she went into the examination room. She added that she did not know the purpose behind entering the examination room. In cross-examination, Ms. M.R.E. testified that there was no discussion about Dr. Sloka’s reason for taking her into the examination room. She alleged that Dr. Sloka was very quiet and used few words during the appointment. However, in her police statement, Ms. M.R.E. told police that Dr. Sloka said something like, “okay, well, if you could just take our top layer off and have a lay down, I’m going to feel around for a little bit and see if there’s anything that stands out that could help with a treatment plan.” Ms. M.R.E. disputed any contradiction between her testimony and her police statement. Ultimately, she conceded that Dr. Sloka said something to prompt her to go into the examination room, but she could not recall any details about what he told her. She had no memory of the purpose behind entering the examination room.

2849According to Ms. M.R.E., while they proceeded to the examination room, Dr. Sloka told her to undress from the waist up and told her that there was a sheet available. She denied that Dr. Sloka offered or provided her with a gown.

2850Ms. M.R.E. testified that she asked Dr. Sloka whether she was supposed to remove her bra. According to her, he confirmed with her that he wanted her bra removed. Accordingly, she removed it. While Ms. M.R.E. presented this as a memory at the time she testified, she told the police that she could not remember whether Dr. Sloka asked her to remove her bra. She also told the police that she was not certain if she in fact she removed her bra. Ms. M.R.E. agreed that both the request and the removal were new memories. She testified that, through reliving her story many times in her head, she came to realize her bra was in fact off.

2851Ms. M.R.E. went alone into the examination room. Dr. Sloka gave her privacy to change. She then removed her shirt and bra. She kept her pants on. She then lay on the examination table and covered herself with the sheet.

2852Ms. M.R.E. described the sheet as thin, almost translucent, and made of linen. It was also small, a mere two feet by three feet. When she put it over her top half, it did not provide a lot of coverage. He told her the sheet was for the purpose of providing her cover.

2853It is important at this point to summarize Ms. M.R.E.’s description of both the office and the examination room.

2854Ms. M.R.E. drew a diagram of the office and examination room, which was marked as Exhibit 201. The diagram and her evidence about the layout contained numerous inaccuracies. To begin with, the office and examination room were transposed. She also placed the examination table parallel to the windows. Moreover, she testified that as she lay on the examination table, her head pointed towards the doorway to the office. Also, a gap existed between the examination table and the walls and windows, such that someone could easily walk all the way around the table. She described the table as floating in the middle of the room. In her memory, the examination room was much larger than the one depicted in Exhibit 2 – in other words, much larger than Dr. Sloka’s actual examination room. To her recollection, most of the space in the room was unutilized. When shown photos of Dr. Sloka’s examination room, Ms. M.R.E. wondered whether there might be another room adjacent to Dr. Sloka’s office in which she could have been examined. There was no such room.

2855In Ms. M.R.E.’s memory, Dr. Sloka entered the examination room from the doorway behind her head, as she lay down on the examination table. She could not see him enter. He began touching her head from behind. He was not saying anything. In fluid motion, he touched her forehead, then her temples, then her neck and her upper chest. Each hand was mirroring the action of the other. His hands flowed down the side of her breasts, cupping her breasts from the side and then from below. He was still positioned behind her head when he was cupping and groping her breasts. Then, he came around to the side of the table as he moved his hands down her sides and across her stomach. As he moved his hands across her abdomen, he slid them beneath her beltline. The touching lasted two to three minutes.

2856Ms. M.R.E. testified that she questioned him about why he was cupping and groping her breasts. He told her that she would be amazed to see how everything can be connected. In her police statement, Ms. M.R.E. said that Dr. Sloka replied by saying that he likes to do a thorough examination when working with a lot of different parts.

2857Ms. M.R.E. testified that her nipples became hard beneath the sheet during the examination, because it was cold. This detail was a new element in her narrative, one that was not included in her police statement.

2858According to Ms. M.R.E., Dr. Sloka left the room shortly after he slid his hands along her belt line and touched her abdomen.

2859Ms. M.R.E. was certain that Dr. Sloka used a reflex hammer at some point while she was his patient. She believed he used one at least one appointment, possibly two. However, she was unclear when he did so. She was also not sure of her location when he used the reflex hammer. She had no memory of Dr. Sloka using a reflex hammer at the appointment of concern but considered it a possibility.

2860Ms. M.R.E. testified that, following the examination, she got changed and went back into the office to speak with Dr. Sloka. She recalled him giving her paperwork for testing and telling her that he would follow up with her after she had done the tests. He sent her for bloodwork at different times during her cycle. He also sent her for an ultrasound to check the position of her IUD. He also gave her medication samples to try. He did not discuss the results of his physical examination.

2861She then went to reception to book her follow up appointment. Ms. M.R.E. testified that she was feeling awkward and uncomfortable, wondering what had just transpired. It did not seem right. However, she claimed that she was most interested in following up on the tests and seeing if Dr. Sloka had a viable solution to her health issue. She testified that she blindly trusted that Dr. Sloka would only be conducting appropriate medical procedures. She gave him the benefit of the doubt.

2862Ms. M.R.E. testified that she left the appointment and picked up her son from her mother’s place. When she got there, she was quite frazzled, and she spoke to her mother about the appointment. Ms. M.R.E. described the conversation as occurring near the front entranceway as her son was getting ready to leave. According to Ms. M.R.E., she told her mom that she had a weird experience with Dr. Sloka and that she had to ask Dr. Sloka what her breasts had to do with her head. Her mother reportedly said that the examination sounded awful. Ms. M.R.E. then departed with her son.

2863Ms. M.R.E. testified that she and her mother were close and supportive of one another. However, in Ms. M.R.E.’s account, neither she nor her mother took any action after Ms. M.R.E.’s purported disclosure of breast touching. Ms. M.R.E. testified that she did not speak about the incident with her mother again until after she gave her police statement. Despite her prolific consumption of news coverage about Dr. Sloka, she did not recall speaking to her mother about media coverage regarding developments in Dr. Sloka’s CPSO and criminal investigations.

2864In her police statement, Ms. M.R.E. did not know whether her mother was babysitting for Ms. M.R.E. at the time of the appointment. Thus, she did not remember at that time the specific circumstances surrounding her purported conversation with her mother. Also, Ms. M.R.E. did not inform the police that she had mentioned breast touching to her mother. Instead, in her police statement she purportedly told her mother that she “had a really like weird experience and it kind of creeped me out a little bit.”

2865The Crown did not call Ms. M.R.E.’s mother as a witness.

2866Ms. M.R.E. testified that, following the appointment of concern, she did not want to be alone with Dr. Sloka. She testified that her father came to her final two appointments for that reason. Oddly, though, her father’s attendance at that point was superfluous, because a practice monitor was present for her final two appointments. Despite her purported desire to avoid being alone with Dr. Sloka, Ms. M.R.E. went alone to her very next appointment. When questioned in cross-examination about this, Ms. M.R.E. testified that she trusted that she was in the care of a medical professional.

2867Ms. M.R.E.’s third appointment in this second referral period occurred on November 17, 2017. By this date, a practice monitor was present at Dr. Sloka’s office. According to Ms. M.R.E., her father also attended on this date. While sitting in the waiting room, Ms. M.R.E. saw a CPSO notice posted in the room. The sign was quite visible. It spoke of restrictions on Dr. Sloka’s practice. It also indicated that complaints had been filed against Dr. Sloka. But it didn’t detail their nature. Ms. M.R.E. understood that Dr. Sloka could not see patients without another person being present. She believed that Dr. Sloka was not allowed to conduct any examinations. This restriction “weirded [her] out.”

2868Later that same day, Ms. M.R.E. went onto the CPSO website. There, she could see that complaints had been made, a hearing would follow, and restrictions would be in place until the hearing. She understood that the investigation was ongoing. There were two or three complaints. The first complainant was August 10, 2017.

2869Ms. M.R.E. attended for a fourth appointment on March 27, 2018. She had planned to attend a fifth appointment but decided she had already been given the best treatment plan. She no longer felt the need to see Dr. Sloka. She decided she had what she needed and would take that plan and work with it. Consequently, she cancelled her fifth appointment.

2870She saw media coverage of Dr. Sloka’s CPSO hearing on April 30, 2019. The stories reported that three patients were the subject of that hearing. The allegations included complaints of inadequate draping, patients’ being exposed, improper touching of patients’ breasts and invasive examinations without medical cause. Ms. M.R.E. testified that, only after she compared her situation to the stories of others, did she realize that her examination was a sexual assault.

2871By this point, the hearing had been completed. A fund had been set up for the victims involved. In her view, that was the best outcome at the time, aside form going to criminal court.

2872There was no indication of any police investigation at that juncture. The CPSO had finished their investigation. Dr. Sloka had lost his licence. Ms. M.R.E. testified that, because Dr. Sloka had lost his licence, she didn’t bother trying to contact the police.

2873A short time later, Ms. M.R.E. saw media reports that there were over twenty additional people who alleged impropriety at the CPSO. Media reports came out on May 8, 2019, contained this information. Ms. M.R.E. was appalled at how much the number of complainants had grown. She was sad to hear that he wasn’t going to be charged. Nevertheless, she didn’t come forward to police.

2874Ms. M.R.E. recalled that there were updates in media on 4 different occasions. She decided to come forward after hearing that Dr. Sloka had been charged with sexual assault in relation to 34 former patients.

2875Ms. M.R.E. continued to monitor news stories up to the point of her police interview. She knew Dr. Sloka was in jail at the time of her police interview.

2876At the time of her interview, Ms. M.R.E. wanted Dr. Sloka to go to jail for a long time. She wanted him to be held accountable.

The Evidence of Dr. Bril

2877Dr. Bril testified that the examination described by Ms. M.R.E. was not neurologically justified. Dr. Sloka conceded this point.

2878Dr. Bril agreed took no issue with Dr. Sloka performing a neurological examination at Ms. M.R.E.’s first appointment on November 19, 2010.

2879However, Dr. Bril did not think it reasonable for Dr. Sloka to perform a cardiac examination at Ms. M.R.E.’s first appointment on November 19, 2010. In her opinion, cardiac contraindications of medications were not a concern for Ms. M.R.E. because she was young. Such concerns ought to be reserved for older patients. Also, Ms. M.R.E.’s migraines were menstrual migraines, which she had been having since she was a teenager; so, a cardiac cause of her headaches was not a reasonable concern. The Crown did not rely upon this opinion in their submissions.

2880Dr. Bril also testified that it was unnecessary for Dr. Sloka to conduct a neck examination when first assessing Ms. M.R.E.’s headaches on November 19, 2010. She testified that, while palpation may find a trigger point that would cause cervicogenic headaches [headaches originating from the neck], this patient’s presentation was consistent with migraines and not with cervicogenic headaches; consequently, no neck examination was warranted. As with her opinion about the cardiac examination, the Crown did not rely upon this opinion in their submissions.

2881Dr. Bril also testified that Dr. Sloka ought to have conducted and recorded a neurological examination at the first appointment of the second referral period. His failure to do so was unreasonable.

The Evidence of Dr. Sloka

2882Dr. Sloka did not independently remember his treatment of Ms. M.R.E. He relied upon his consultation letters for the truth of their contents and the rest of Ms. M.R.E.’s file for necessary context.

2883Dr. Sloka testified that the GRH ER first referred Ms. M.R.E. to his urgent neurology clinic in 2010. Her first appointment with him occurred on November 19, 2010. At that appointment, he met Ms. M.R.E. in his office and obtained a medical history and summary of her presenting complaint. There, he recommended a neurological and cardiac examination.

2884Contrary to Ms. M.R.E.’s evidence, Dr. Sloka testified that he performed the neurological and cardiac examinations in the examination room. Apart from some isolated fundoscopic examinations during follow up appointments, he did not perform examinations in his office.

2885Dr. Sloka denied only performing a fundoscopy and reflex test on Ms. M.R.E. in his office, as she alleged. He noted that he would only do reflex tests while a patient was seated on the examination table, so that their legs would dangle from the table during the test.

2886Dr. Sloka noted that significant aspects of Ms. M.R.E.’s history included chronic catamenial migraines and sporadic migraines.

2887He also testified that a neck examination would have been part of his headache assessment at the outset of the neurological examination. Dr. Sloka disagreed that it was sufficient to simply ask about neck pain when taking Ms. M.R.E.’s history. He maintained that a neck examination was warranted. Dr. Sloka observed that GRH ER records indicated that Ms. M.R.E.’s ER doctor performed a neck examination on Ms. M.R.E. during her visit on October 29, 2010. Dr. Sloka further testified that migraine headaches have an association with neck problems, which is why doctors sometimes treat migraines with Botox treatments. He testified that one could ask about neck pain during history, but palpation during the examination is still helpful.

2888According to Dr. Sloka, Ms. M.R.E. would have been seated on the examination table while he examined her neck. That was his standard practice. In accordance with his standard practice, he would have stood in front of her and to her left while palpating her forehead, neck, and shoulders. He denied progressively palpating her upper chest and cupping her breasts. He also denied palpating her abdomen.

2889Dr. Sloka also disagreed with Dr. Bril about the merits of a cardiac examination. He noted that some migraine headaches are associated with cardiac abnormalities [PFO (patent foramen ovale) or microvalve prolapse]. Dr. Sloka also believed that it was important to rule out any cardiac condition that may contraindicate the use of her prescribed Imatrex medication. He also prescribed Nortriptyline that day, which also had cardiac contraindications. It was part of his standard approach to conduct a cardiac examination before prescribing medications with cardiac contraindications. He disagreed with Dr. Bril that cardiac contraindications were not a concern. In his view, one might not know if patient has pre-existing cardiac disease without doing cardiac exam, even in young people.

2890Dr. Sloka also disagreed with Dr. Bril’s assessment that, because all of Ms. M.R.E.’s migraines were catamenial, a cardiac examination was unnecessary. Ms. M.R.E. had reported sporadic headaches unrelated to her menstrual cycle. In a review of Ms. M.R.E.’s medical file, Dr. Sloka observed that Ms. M.R.E. saw an endocrinologist, Dr. Hussein, for an assessment of her headaches, too. In a letter dated April 11, 2018, Dr. Hussein reported doing a cardiac examination as part of his assessment of her headaches. Dr. Sloka also observed from the GRH ER records that on October 29, 2010, the ER doctor who referred Ms. M.R.E. to Dr. Sloka also performed a cardiac examination when assessing Ms. M.R.E.’s headaches.

2891Dr. Sloka testified that even though the ER doctor performed examinations upon Ms. M.R.E. on October 29, 2010, he performed his own examinations on November 19, 2010, because he felt it important to do his own independent examinations and make his own findings. He also noted that a patient’s symptoms can change over time, and their clinical presentation can change too.

2892Dr. Sloka testified that, for her examinations, he would have required Ms. M.R.E. to wear a gown and to remove her bra. He did not know whether her lower clothing was removed. Because her symptoms did not involve her lower extremities, he did not think it likely she removed her lower garments.

2893Dr. Sloka denied providing Ms. M.R.E. with a small 2 x 3-foot translucent drape, as Ms. M.R.E. described. He did not have any such draping in his clinic.

2894In accordance with his standard practice, he would have asked Ms. M.R.E. to expose her left breast for the cardiac examination. Dr. Sloka denied having Ms. M.R.E. expose her entire upper torso, as alleged by Ms. M.R.E..

2895Dr. Sloka also denied that his examination table floated in the middle of the room, as described by Ms. M.R.E. It was also not oriented parallel to the window. Instead, he testified that the examination table would have been oriented as shown in Exhibit 2, with one side of the table abutting the wall opposite the entrance. The head of the bed pointed towards the window, not the office entrance.

2896Dr. Sloka also testified that the examination room in Exhibit 2 was the only examination room adjacent to his office. In doing so, he rejected Ms. M.R.E.’s depiction of the orientation of his office and examination room in her diagram.

2897Dr. Sloka testified that the results of Ms. M.R.E.’s examinations were normal. Accordingly, he concluded that Ms. M.R.E. suffered from catamenial migraines with some additional sporadic migraines. He prescribed naproxen for use during menstrual periods and nortriptyline to treat the sporadic migraines. Dr. Sloka also recommended Sibelium, which is a calcium channel blocker, which has cardiac contraindications, and which provided another reason to conduct cardiac examination.

2898Dr. Sloka saw Ms. M.R.E. twice in follow-up, after which he left follow-up open.

2899Ms. M.R.E.’s next referral period began in 2017, after Dr. Kim referred her back to him.

2900In this second referral period, Dr. Sloka first met with Ms. M.R.E. on July 24, 2017. According to the history documented in his consultation letter, her migraines had become more severe, albeit showing some improvement in her last menstrual cycle.

2901Dr. Sloka testified that he did not conduct a neurological examination at this appointment or any subsequent appointments during this second referral period. Accordingly, he denied that Ms. M.R.E. even entered his examination room on July 24th.

2902Dr. Sloka agreed that he ought to have conducted a neurological examination on July 24th. However, Dr. Sloka testified that, by this point 2017, he had reduced the allotted time for initial consultations from 1 hour to 45 minutes. His clinic had become very busy, and he reduced the duration of his initial assessments. Ms. M.R.E.’s appointment was for an even shorter duration. He made a handwritten notation on Dr. Kim’s faxed referral, instructing his secretary to book only a ½ hour appointment. He did not have sufficient time in a 30-minute consultation to perform a neurological examination. His evidence on this point was not challenged by the Crown in cross-examination.

2903Dr. Sloka’s records indicated that Ms. M.R.E. had been taking Imatrex and Nortriptyline leading up to her appointment on July 24, 2017. She had been taking these medications since 2010. Dr. Sloka performed a neurological and cardiac examination in 2010.

2904Dr. Sloka’s records also indicated that he prescribed Ms. M.R.E. the medication Frova. He had testified in relation to another patient that Frova had cardiac contraindications. The Crown did not question Dr. Sloka about whether his standard practice warranted a cardiac examination prior to prescribing Frova for Ms. M.R.E.

2905It is worth noting here that, apart from patients whose neurological examinations were expressly deferred, Dr. Sloka routinely documented neurological examinations, even when the results were normal.

2906Having reviewed his records, Dr. Sloka concluded that he did not perform a neurological examination. He testified that he focussed his consultation on having a discussion with Ms. M.R.E. A neurological examination would have taken at least 10 minutes. He felt discussion was more fruitful.

Assessment of the Evidence and Analysis

2907There exists a fundamental problem with Ms. M.R.E.’s evidence and with the theory of the Crown.

2908Ms. M.R.E. was adamant that she only ever received one examination from Dr. Sloka. She insisted that this examination occurred during the second referral period. She outright rejected the possibility of gowning, entering the examination room, and undergoing a neurological or cardiac examination in the first referral period. She made it clear that she had no issues with her treatment during her first referral period. It did not involve the exposure of her breast to a man she alleged would subsequently grope her breasts in the second referral period.

2909Unless the Crown asks me to reject a fundamental tenet of Ms. M.R.E.’s evidence, the Crown theory rests upon the proposition that Ms. M.R.E.’s single examination occurred during the second referral period and not the first.

2910Consequently, the Crown theory and Ms. M.R.E.’s evidence face a profound problem. The problem lies in the existence of extraordinarily compelling evidence that establishes that Dr. Sloka performed neurological and cardiac examinations on Ms. M.R.E. during the first appointment of her first referral period. That evidence is found in Dr. Sloka’s November 19, 2010, consultation letter. Dr. Sloka dictated his consultation letters immediately following each appointment and before the next. The necessity of at least some examination was confirmed by Dr. Bril. While she disputed the reasonableness of the cardiac examination, Dr. Bril made it clear that a neurological examination was effectively mandated at the first appointment – it was unreasonable to omit performing one at the beginning of a referral period. The reported examination results informed Dr. Sloka’s diagnosis and treatment plan, which was also articulated in his consultation letter. Dr. Sloka did not just report these results for his own reference; he reported them to Ms. M.R.E.’s family doctor who could rely upon them when continuing to provide health care to Ms. M.R.E. into the future. In my view, the consultation letter indisputably proves that Dr. Sloka performed both a neurological and cardiac examination at Ms. M.R.E.’s first appointment in the first referral period.

2911If, in fact, Ms. M.R.E. only ever had one examination, if that examination occurred on the first visit of the first referral period, and if, in fact, nothing untoward occurred during the first referral period, then no sexual assault could have occurred.

2912Accordingly, I can understand, then, why the Crown conceded that Ms. M.R.E.’s might be a case where reasonable doubt might exist, even if the Crown did not elaborate upon the reason for this concession.

2913To accept the Crown theory, I must soundly reject Ms. M.R.E.’s unwavering insistence that no examination occurred during the first referral period, or I must soundly reject Ms. M.R.E.’s insistence that the sexual abuse occurred in the second referral period and not the first. In either case, the Crown asks that I conclude that Ms. M.R.E. is a fundamentally unreliable witness and that I simultaneously base a conviction on the evidence of that very same witness. This is an invitation I simply cannot accept.

2914Standing alone, this fundamental problem with Ms. M.R.E.’s evidence precludes a conviction. The issues with Ms. M.R.E.’s do not end there, though.

2915Ms. M.R.E.’s depiction of the orientation of the examination room and its contents also reveals fundamental problems with her evidence. Her description of the orientation of the examination table within the examination room is fundamental to her choreography of the alleged assault. According to her, Dr. Sloka came from the office and approached her from behind as she lay on the examination table. Due to her alleged orientation, she could not see his initial approach. However, I accept that Dr. Sloka’s examination room was not arranged in the manner Ms. M.R.E. described. It was arranged as depicted in Exhibit 2. Dr. Sloka testified that the room was always set up in the fashion depicted in Exhibit 2. The Crown called 3 independent witnesses with personal knowledge of Dr. Sloka’s office and examination room: Tammy Tebbutt, Nancy Halstead, and Amanda Plozzer. All three of these witnesses testified before any complainants testified. The Crown never asked any of them whether the room was set up any other way than the way in which it was depicted in the photographs in Exhibit 2. The notion that Dr. Sloka drastically re-arranged the examination room for Ms. M.R.E., and a few other patients borders on conspiratorial. With the examination table oriented as seen in Exhibit 2, Ms. M.R.E. would have seen Dr. Sloka approach her from the right as he came from the office. The window, not Dr. Sloka and not the entranceway, would have been behind her head. I reject as utterly unreliable Ms. M.R.E.’s claim that Dr. Sloka came from behind her and began to rub her forehead, temples, and neck from behind.

2916Ms. M.R.E.’s evidence regarding her small translucent draping is also utterly unreliable. Tammy Tebbutt testified for the Crown. She set up that clinic. She testified that Exhibit 2 depicted the gowns and sheets provided to that clinic. Dr. Sloka concurred with Tammy Tebbutt’s evidence on the subject. I accept his evidence that the gowns and bedding shown in Exhibit 2 were the only ones ever provided to the clinic. In this trial, Ms. M.R.E. stood alone in her description of the draping provided. I have no trouble finding that nothing like what Ms. M.R.E. described was ever stocked in Dr. Sloka’s office.

2917Ms. M.R.E.’s description of her draping is no small matter. It plays a prominent role in her narrative. It was so small and so thin that it was nearly translucent, purportedly causing her to feel exposed. Her nipples allegedly became hard beneath this nearly translucent draping. Meanwhile, Dr. Sloka allegedly stood behind her and slid his hands down her sides and beneath this gauzy apparel and groped her breasts. That sequence of actions does not work on a patient laying on their back and wearing a gown worn opened at the back. I reject entirely Ms. M.R.E.’s description of her draping.

2918Ms. M.R.E. description of her draping also draws attention to material omissions from her police statement. Recall, again, her evidence of feeling cold and exposed beneath her translucent and tiny sheet; and recall her evidence of her nipples protruding from beneath that sheet. These descriptions depend upon her assertion that her bra had been removed. Her assertion that her bra had been removed in turn depended upon her assertion that Dr. Sloka had directed her to remove her bra. These assertions were absent from her police statement. Likewise, her description of her nipples was absent from her police statement. Their absence tells against the veracity of Ms. M.R.E.’s account.

2919Numerous other frailties exist in Ms. M.R.E.’s evidence. Cumulatively, they lead me to conclude that I simply cannot rely upon or give any weight to Ms. M.R.E.’s allegations.

2920I will begin with Ms. M.R.E.’s claim, or at least implication, that she reported the groping to her mother on the same day as the appointment. She claimed that she told her mother that she had a weird experience and had to ask Dr. Sloka what her breasts had to do with her head. However, when recounting this conversation in her police statement, she did not tell the police that she mentioned anything about her breasts to her mother. Instead, she told police, “I had a really like weird experience and it kind of creeped me out a little bit.” Ms. M.R.E.’ also testified that she was certain that she had this purported conversation with her mother when picking up her son from her mother’s home after the appointment. However, she was not sure of the circumstances of the conversation when speaking to the police. The Crown did not call Ms. M.R.E.’s mother to confirm the existence of this conversation and to confirm what was said. I am left wondering whether the conversation even occurred. I reject Ms. M.R.E.’s implication that she told her mother about breast touching on the day of the appointment.

2921Ms. M.R.E. testified that she did not realize the examination she described was not medical until she saw stories about the experiences of other patients. This claim seems incongruent with Ms. M.R.E.’s claims that she questioned Dr. Sloka about its propriety as it was occurring, that she didn’t feel right about the examination after it occurred, that she reported her concerns to her mother immediately after the examination, and that she wanted to avoid being alone with Dr. Sloka at subsequent appointments. All these claims were built upon the premise that she doubted the legitimacy of Dr. Sloka’s conduct. In addition, Ms. M.R.E.’s claim that she wanted to avoid being alone with Dr. Sloka at future appointments was incongruent with Ms. M.R.E.’s acknowledgement that she in fact attended the next appointment alone. When confronted with this incongruity, Ms. M.R.E. returned to her refrain that she trusted that she was in the care of a medical professional. The conflicts in Ms. M.R.E.’s evidence therefore call into question the veracity of her claim that she believed that such allegedly overt sexual behaviour was legitimate. Consequently, these conflicts undermine her claims about Dr. Sloka’s conduct.

2922Ms. M.R.E. also showed herself to have a malleable memory. Initially, she believed that no examinations of any kind occurred at her first visit on November 19, 2010. After reading Dr. Sloka’s consultation letter for that visit during trial preparation, she believed Dr. Sloka had reported an eye examination (a fundoscopy) – a clearly incomplete understanding of the full scope of the examinations reported in Dr. Sloka’s letter. As a result, she came to believe that Dr. Sloka had performed an eye examination in his office. This was a new belief; one clearly influenced by her misinterpretation of Dr. Sloka’s consultation letter. Once she formed that belief, she clung to it. As already indicated, I reject Ms. M.R.E.’s assertion that only an eye examination occurred on November 19, 2010, and I reject her assertion that she never entered the examination room on that date. I conclude instead that Ms. M.R.E.’s memory has been influenced by what she thought she had read. She has thus shown herself to have memory susceptible to suggestion. Given her copious consumption of media coverage about Dr. Sloka, that is a significant concern.

2923Ms. M.R.E. was an avid follower of news about Dr. Sloka. She obtained information from the CPSO website and internet news publications. She was exposed to a large volume of information before ever making her statement to the police on October 9, 2019. In her review of news about Dr. Sloka, Ms. M.R.E. read about allegations of improper breast touching, inadequate draping, improper exposure of patients, and unwarranted and non-medical examinations. In these complaints, Ms. M.R.E. recognized what she believed to be her own experience. On her own evidence, she went from believing that her examination was medically appropriate to believing she had been sexually assaulted. Given Ms. M.R.E.’s demonstrated susceptibility to suggestion, as discussed above, I think there exists a substantial likelihood that her memory and perception of her experience was tainted by her review of other complaints in CPSO and news publications. Having rejected Ms. M.R.E.’s evidence about her disclosure to her mother, this purported disclosure does nothing to alleviate my substantial concern about tainting.

2924I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations on any given patient in this case. However, after considering Dr. Sloka’s compelling evidence against the totality of the evidence, I have concluded that Dr. Sloka has refuted any possible inference of a sexual purpose. I will assess his evidence momentarily.

2925The Crown also relies upon two discrete cross-count similarities to support the evidence of Ms. M.R.E. on other material issues. First, the Crown contends that Ms. M.R.E. belongs to a contingent of patients who alleged breast cupping. Second, the Crown contends that Dr. Sloka told them “Everything is connected” when justify breast examinations. For reasons that I will explain, these discrete cross-count similarities lack sufficient probative force to provide support on any other material issue.

2926I begin with Ms. M.R.E.’s membership in the breast-cupping constituency. This component of Ms. M.R.E.’s complaint mirrors complaints contained in the media prior to her police complaint. Having concluded there exists a substantial risk of tainting, this similarity has insufficient probative value and cannot support Ms. M.R.E.’s evidence. Moreover, as observed by the defence, conditions of membership in the breast cupping constituency are so broad and ill-defined that it lacks sufficient probative value.

2927The Crown also points to the evidence of three other complainants who alleged that Dr. Sloka told them, as justification for his breast examinations, that everything in the body is connected. In my view, far too few patients make this allegation to preclude the possibility of erroneous coincidence. Also, each of these patients provided unreliable evidence regarding the justifications provided to them by Dr. Sloka. Moreover, Ms. M.R.E.’s case differs from the other three in that she alleged that this justification was proffered only after the examination had begun. On her evidence, he did not propose a breast examination in advance, and he did not attempt to justify it in advance. On her evidence, she did not provide advanced consent based on this justification. On her evidence, she does not fit the pattern.

2928I would now like to discuss the evidence of Dr. Bril. The Crown has not relied upon Dr. Bril’s opinion about the reasonableness of Dr. Sloka’s cardiac examination. Indeed, the Crown theory of the case does not involve an allegation of a cardiac examination. For that matter, the Crown theory of the case does not involve an actual breast examination, either. The Crown theory of the case involves something more akin to an unlawful massage. In any event, absent reliance upon Dr. Bril’s opinion about Dr. Sloka’s decision to conduct a cardiac examination, I find her evidence largely unhelpful in resolving the material issues in Ms. M.R.E.’s case.

2929Once one removes consideration of her opinion about the cardiac examination, Dr. Bril’s evidence does more to assist the defence than it does the Crown. Dr. Bril confirmed the appropriateness of doing a neurological examination at the commencement of both referral periods. It was neurologically unreasonable to omit doing one. Her evidence thereby supports Dr. Sloka’s assertion that he conducted examinations at Ms. M.R.E.’s very first appointment. It also supports the conclusion that Dr. Sloka eschewed an opportunity to examine Ms. M.R.E. and gain access to her body on an occasion when Dr. Bril considered a neurological examination was necessary.

2930I turn now to an assessment of Dr. Sloka’s evidence.

2931Dr. Sloka testified that he only examined Ms. M.R.E. once and that this occurred at her first appointment. His evidence about the number of times he examined Ms. M.R.E. finds support in the evidence of Ms. M.R.E. herself. She too insisted that Dr. Sloka examined her only once, though she alleged it occurred at some point during the second referral period. However, as already noted, Dr. Sloka’s contemporaneously authored consultation letter from Ms. M.R.E.’s first appointment of the first referral period compellingly confirms that Dr. Sloka performed neurological and cardiac examinations at Ms. M.R.E.’s very first appointment of the first referral period. Ms. M.R.E.’s fundamentally unreliable evidence provides no basis for refuting Dr. Sloka’s claim that the only examination he conducted occurred at Ms. M.R.E.’s very first appointment.

2932Ms. M.R.E.’s fundamentally unreliable evidence also affords no basis for doubting Dr. Sloka’s claim that he performed both cardiac and neurological examinations at that first appointment, just as he documented.

2933On the other hand, Dr. Sloka provided compelling justifications for conducting cardiac and neurological examinations at Ms. M.R.E.’s first appointment. Dr. Bril confirmed the appropriateness of a neurological examination. Although Dr. Bril contested the reasonableness of the cardiac examination, the Crown has not relied upon Dr. Bril’s evidence to challenge Dr. Sloka’s justifications for the cardiac examination. For the reasons articulated in the section of the judgement devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on her opinions about the propriety of cardiac examinations in this case. Also, while Dr. Bril did not agree with his decision to conduct a cardiac examination, Dr. Sloka’s decision found support in the approach taken by Ms. M.R.E.’s ER doctor and endocrinologist, both of whom also conducted cardiac examinations on her. Given his evidence regarding his training and his resulting reasons for conducting a cardiac examination, and given the cardiac examinations documented by his colleagues, Dr. Sloka had every reason to believe his cardiac examination was justified. Accordingly, I accept that Dr. Sloka subjectively believed a cardiac examination was justified at Ms. M.R.E.’s first appointment of her first referral period.

2934The compelling evidence regrading Dr. Sloka’s subjective belief in the justification for a cardiac examination provides additional support for the conclusion that Dr. Sloka indeed performed one at Ms. M.R.E.’s first appointment. The occurrence of the neurological and cardiac examination at the first appointment, coupled with Ms. M.R.E.’s insistence that she was only examined once, supports Dr. Sloka’s assertion that he did not examine Ms. M.R.E. during the second referral period.

2935Despite the Crown’s contention to the contrary, I see no basis for concluding that Dr. Sloka examined Ms. M.R.E. during the second referral period.

2936The Crown contends that Dr. Sloka’s standard approach would support the conclusion that he performed a neurological examination at the first appointment of the second referral period. In addition, the Crown contends that Dr. Sloka’s standard practice required that he conduct a cardiac examination before issuing a prescription for a drug with cardiac contra-indications. As a result, they argue that Dr. Sloka’s standard approaches provide evidence that he performed examinations at the first appointment of the second referral period in addition to the examinations performed during the first referral period. The Crown’s argument fails for several reasons.

2937First, the Crown’s argument requires the court to either overlook or reject Ms. M.R.E.’s claim that she was only examined once.

2938Second, documentary evidence strongly supports the conclusion that Dr. Sloka did not perform any examinations at the first appointment of the second referral period. That documentary evidence establishes that Dr. Sloka had only booked 30 minutes for Ms. M.R.E.’s appointment. While Dr. Sloka agreed with Dr. Bril’s opinion that he ought to have performed a neurological examination, he did not book sufficient time for one to occur. Given the time allotted for that appointment, I accept that Dr. Sloka did not perform a neurological or cardiac examination on July 24, 2017.

2939Third, the evidence does not compellingly support the conclusion that Dr. Sloka would have performed a cardiac examination in accordance with his standard approach. Dr. Sloka testified that he previously conducted a cardiac examination on his patient in 2010 before prescribing medications with cardiac contraindications. Accordingly, he was previously satisfied in 2010 that she did not suffer from cardiac abnormalities that would be contraindicated for these types of medications. She continued to take a drug with cardiac contraindications (Imitrex) in the lead-up to the 2017 referral period. I acknowledge that Dr. Sloka prescribed a new medication (Frova) during the 2017 referral period; and that elsewhere in his evidence he testified that Frova has cardiac contraindications. However, the Crown did not cross-examine Dr. Sloka about whether a cardiac examination was nevertheless necessary before he prescribed this drug to Ms. M.R.E., despite her long-term use of other medication with cardiac contraindications.

2940Fourth, Dr. Sloka routinely documented neurological examinations, even when the results were normal. The absence of any documented neurological examination during the second referral period supports the conclusion that Dr. Sloka never performed one.

2941Fifth, a practice monitor was present after the first two appointments of the second referral period. The window of opportunity to conduct the examination alleged by Ms. M.R.E. therefore closed after the first two appointments.

2942Given Ms. M.R.E.’s insistence that Dr. Sloka only examined her once, given the overwhelming evidence that Dr. Sloka examined her at the first appointment of the first referral period, given Dr. Sloka’s denial of any examinations in the second referral period, and given the absence of any compelling evidence to suggest that Dr. Sloka examined her a second time, I accept Dr. Sloka did not examine Ms. M.R.E. in the 2017 referral period.

2943I therefore conclude that Dr. Sloka only examined Ms. M.R.E. once, and that he did so at the first appointment of the first referral period.

2944I also conclude that Dr. Sloka performed these examinations in accordance with his training and standard practice. This conclusion is supported by Ms. M.R.E.’s contention that nothing untoward occurred in 2010.

2945The Crown has not suggested that Dr. Sloka failed to obtain Ms. M.R.E.’s consent for neurological and cardiac examinations on November 19, 2010.

2946Having considered the totality of the evidence, I accept Dr. Sloka’s evidence on all material issues. Also, I reject Ms. M.R.E.’s evidence where it conflicts with Dr. Sloka’s on any material issue.

2947Specifically, I reject Ms. M.R.E.’s claim that Dr. Sloka examined her during the second referral period. I further reject her evidence about the way Dr. Sloka examined her. Relatedly, I accept Dr. Sloka’s denial that he conducted the examination in the manner described by Ms. M.R.E. Also, I accept his denial that he performed any kind of examination on Ms. M.R.E. during her second referral period in 2017. Further, I accept his evidence that he only ever examined Ms. M.R.E. at her very first appointment of the first referral period, on November 19, 2010. I also accept his evidence that he performed neurological and cardiac examinations on that date in accordance with his training and standard methods. Additionally, I accept that he subjectively believed these examinations were medically justified. Consequently, I conclude that the Crown has failed to prove that Dr. Sloka engaged in any sexual activity. The evidence satisfies me that Dr. Sloka conducted medical examinations with Ms. M.R.E.’s expressed consent.

2948Dr. Sloka will be acquitted on this count.

vii. H.J. [H.C.] (Count 32)

A Brief Summary of Ms. H.J.’s Complaint and Dr. Sloka’s Response to It

2949Ms. H.J. attended a single appointment with Dr. Sloka. She alleged that, during this appointment, Dr. Sloka pinched all around her left exposed breast with his fingers and thumb for a few minutes. She alleged that the entire appointment occurred in a single room, which included both Dr. Sloka’s desk and his examination table. Dr. Sloka denied pinching her left breast. Dr. Sloka testified that he took Ms. H.J.’s vital signs, then conducted neurological and cardiac examinations.

The Circumstances of Ms. H.J.’s Referral and Treatment History

2950Ms. H.J. was 19 at the time of her referral. She believed that her family doctor had referred her to Dr. Sloka. ER records established that an ER doctor, not her family doctor, made the referral. Ms. H.J. attended the GRH ER on November 10, 2012, because she had been experiencing episodic headaches for about four weeks. The onset of these headaches could be sudden. Ms. H.J. elaborated on her condition at the time of her ER admission. She had begun to experience severe headaches during which she experienced a sharp pain and blurry vision. She had never experienced headaches before. They came on strong. She experienced these headaches multiple times per week. They would come on strong then abruptly end after about 20-60 minutes. These headaches alarmed her. Ms. H.J. recalled receiving a CT scan and lumbar puncture while at the ER. She did not think she had obtained any results until after meeting with Dr. Sloka. However, ER records indicated that the results were reviewed by the ER doctor. The ER doctor prescribed Nortriptyline for her headaches and faxed the referral to Dr. Sloka on November 11, 2012. Despite what was recorded in the medical records, Ms. H.J. maintained a memory of her family doctor making the referral.

2951Ms. H.J. also initially believed that her appointment with Dr. Sloka occurred in 2015, but medical records established that her appointment occurred on January 8, 2013. In cross-examination, Ms. H.J. accepted that the appointment occurred on January 8, 2013.

The Evidence of Ms. H.J.

2952Ms. H.J. recalled checking in at reception and filling out a patient sheet. On that sheet she reported a pre-existing medical condition: CMT (Charco-Marie-Tooth Disease, which is a neuromuscular degenerative disease with which she was diagnosed when she was 16.

2953Ms. H.J. recalled Dr. Sloka’s office and examination table all existing in the same room. She did not have a memory of a door separating the office from the examination room. She professed a clear visual memory of a single room and a clear visual memory of the appointment. In her recollection, the examination table was a mere few feet away from the chair in which she sat for her pre-examination discussion with Dr. Sloka. A review of the photographs of Dr. Sloka’s office and examination room did not refresh or change her memory.

2954In-chief, Ms. H.J. did not recall much discussion with Dr. Sloka before he preposed an examination, other than a review of CT scans and the fact that migraines run in her family. In cross-examination, Ms. H.J. testified that she did not remember Dr. Sloka asking her detailed questions about her medical history. She agreed however, that this must have occurred. She agreed that the information contained in the first three paragraphs of Dr. Sloka’s reporting letter was accurate.

2955Ms. H.J. had received CT scans when in the ER. She did not initially recall being told in the ER that the results of the CT scans were normal. She recalled reviewing those CT scans with Dr. Sloka in his office. He told her that they did not disclose anything abnormal. In cross-examination, she agreed that the ER doctor informed her that her ER scan was normal.

2956Ms. H.J. recalled that Dr. Sloka told her that her migraines were weather related. He also told her he would give her a prescription.

2957Dr. Sloka then proposed an examination. She was not expecting to undergo an examination that day. In-chief, she recalled Dr. Sloka explaining that the whole body is connected to the brain. In cross-examination, she testified that she “won’t disagree” that (1) Dr. Sloka said that he wanted to investigate the causes of her headaches; (2) that he wanted to do basic neurological tests to see if they would provide insight into her problem; and (3) that he wanted to do a basic cardiac examination to see if they would provide any insight into her problem. Whatever he said, she was satisfied that the proposed examinations made sense.

2958Ms. H.J. also did not remember expressing to Dr. Sloka any discomfort at the notion of exposing her breast for the purpose of a cardiac exam. She also did not recall Dr. Sloka taking pains to obtain her consent. Specifically, she did she remember Dr. Sloka explaining that he would be able to hear heart sounds better if the stethoscope was placed directly on her skin. She accepted the possibility that this discussion occurred, though, but she did not recall it occurring.

2959Ms. H.J. remembered getting up from her chair and turning to the adjacent examination table, upon which rested a gown. She recalled Dr. Sloka telling her to remove her street clothing and bra and put on a gown. She also recalled him specifically telling her to wear the gown open to the front. She next recalled him leaving the room to allow her to change.

2960According to Ms. H.J., when Dr. Sloka returned, he asked her to lay down. In her initial memory, Dr. Sloka then began to examine her chest. He moved the gown to expose her left breast. He then felt her breast in a pinching motion with his four fingers and thumb. He performed this pinching motion as he moved his hands around her breast. After a few minutes, he told her the examination was over. Significantly, she did not recall Dr. Sloka using any instruments to examine her.

2961Later in her testimony, the Crown used Ms. H.J.’s CPSO statement to refresh her memory. Ms. H.J. then remembered that Dr. Sloka used a stethoscope to listen to her heart. He placed the stethoscope on the top of her chest while her left chest was exposed. She alleged that he used the stethoscope to listen to the top of her chest before proceeding to pinch her left breast with his fingers and thumb. According to Ms. H.J., both the application of the stethoscope to her upper chest and the alleged pinching made her feel uncomfortable and exposed.

2962Before having her memory refreshed, Ms. H.J. did not remember the stethoscope examination despite (1) informing CPSO investigators about the stethoscope examination; (2) reviewing her CPSO statement (in audio and written form) during her preparation for trial; and (3) reading a transcript of that CPSO statement on the day of trial before taking the stand.

2963In cross-examination Ms. H.J. described Dr. Sloka listening to her heart sounds with the stethoscope. She could feel the stethoscope on her chest as well as the fingers holding the stethoscope. The feel of his fingertips and the feeling from having her left breast exposed made her uncomfortable.

2964Ms. H.J. confirmed that her right breast was never exposed.

2965Ms. H.J. testified that she immediately knew the examination was inappropriate.

2966Other than the breast pinching and the cardiac examination, Ms. H.J. did not initially recall or claim any other examinations.

2967In cross-examination, Ms. H.J. conceded the possibility that Dr. Sloka took her blood pressure and heart rate. She also conceded the possibility that Dr. Sloka performed each component of his standard neurological examination. While she accepted the possibility that Dr. Sloka performed these examinations, she had no recollection of them. Similarly, Ms. H.J. accepted the possibility that, before she ever lay down on the examination table, Dr. Sloka performed examinations upon her while she sat upright. However, she had no memory of any such examinations.

2968Defence counsel drew Ms. H.J.’s attention to Dr. Sloka’s account of his neurological examination in his reporting letter. In the examination portion of that letter, Dr. Sloka noted that she had high arches. Ms. H.J. agreed that she does in fact have high arches, which she understood to be a common symptom of CMT.

2969Ms. H.J. did not recall any part of the cardiac examination occurring while she sat upright on the examination table with her legs laying flat along the table. She had no recollection of Dr. Sloka listening to her breathing for any part of the cardiac exam. In her memory, the entirety of the cardiac examination occurred while she lay down on the table.

2970At the conclusion of the examination, Dr. Sloka left the office, and she got changed back into her street clothes. She then obtained a prescription from a counter in the waiting area and left.

2971Defence counsel showed Ms. H.J. a picture of the waiting area from Exhibit 2. The waiting area did not have a counter. Upon seeing the photograph, Ms. H.J. insisted that the counter must have been in a different area not depicted in the photograph. According to the agreed evidence, no such area exists.

2972She did not recall any follow up discussion with Dr. Sloka after the physical examination. However, she could not discount that possibility.

2973To sum up, Ms. H.J. initially alleged that the physical examination lasted only for a few minutes and consisted solely of Dr. Sloka pinching her left breast with his thumb and fingers. In her initial memory, the examination then ended, Dr. Sloka departed, she got changed, and she left without further discussion with Dr. Sloka. She later agreed that the examination also involved a cardiac exam. She also accepted the possibility that Dr. Sloka took her vitals and performed a neurological exam. Lastly, she also agreed in cross-examination to the possibility that Dr. Sloka had a follow up discussion with her after the physical examination. She did not recall such a follow up discussion, but she could not discount it.

2974According to Ms. H.J., she always believed her examination to be wrong and inappropriate.

2975Ms. H.J. testified that, about 5 years after the appointment and before reading about Dr. Sloka in the news, she spoke to her mother about it. On her evidence, she did not provide any details but instead told her mother that she felt uncomfortable with Dr. Sloka. In cross-examination, defence counsel put to Ms. H.J. a portion of her mother’s statement, suggesting to Ms. H.J. that she told her mother, “I don’t know if what happened was appropriate or not appropriate. I don’t think it was right, but I don’t know.” Ms. H.J. agreed it was possible she told this to her mother, but she could not remember.

2976The Crown did not call her mother to confirm Ms. H.J.’s evidence about their discussion.

2977Ms. H.J. also testified that she spoke to her friend, Ly.F., about Dr. Sloka. Ms. Ms. Ly.F. needed to be referred to a neurologist. Ms. H.J. testified that she told Ms. Ms. Ly.F., “Don’t go to Dr. Sloka.” Ms. H.J. purportedly told Ms. Ms. Ly.F. that she thought Dr. Sloka was creepy. Ms. H.J. claimed that she wanted to protect Ms. Ms. Ly.F. However, Ms. H.J. did not elaborate and tell Ms. Ms. Ly.F. that Dr. Sloka pinched her breast. Ms. H.J. also could not recall when this conversation occurred. In her statement to the CPSO, she claimed it occurred a year or two before making her report to the CPSO. Ms. Ms. Ly.F. did not testify.

2978Ms. H.J. saw a news broadcast about Dr. Sloka on July 11, 2018. She heard that Dr. Sloka was accused of sexually abusing three patients during medical appointments. The story mentioned that the allegations included inadequate draping during examinations. The story mentioned inappropriate touching of the breasts. Those allegations mirrored her own. Seeing that news story validated her concerns and motivated her to make a report to the CPSO.

The Evidence of Dr. Bril

2979Dr. Bril testified that there was no neurological justification for a cardiac examination of Ms. H.J. Dr. Bril was not able to comment on the cardiac contraindications of some of the medicines Dr. Sloka had considered in lieu of the Nortriptyline prescribed at the ER. The Crown has not relied upon Dr. Bril’s opinion about Dr. Sloka’s decision to conduct a cardiac examination.

2980Dr. Bril acknowledged that incidental contact with breasts can occur in cardiac examinations and that the lifting of the breast may be necessary in women with large breasts.

The Evidence of Dr. Sloka

2981Dr. Sloka had no independent memory of Ms. H.J., other than the fact that she had CMT. CMT is a rare disease. He believed Ms. H.J. may have been his only patient with that disease. He relied upon his reporting letter for the truth of its contents and the rest of Ms. H.J.’s chart for context.

2982Dr. Sloka maintained that the appointment occurred in both is office and his examination room, in accordance with his standard practice.

2983He took Ms. H.J.’s history in his office. He also proposed and explained the need for neurological and cardiac examinations, as well as the taking of Ms. H.J.’s vital signs. These examinations were documented in his consultation letter.

2984Dr. Sloka testified that he recommended a cardiac examination because this was part of his standard approach to headache patients. He also noted that her headaches had a sudden onset, what neurologists call “red flag headaches.” He was concerned about the possibility of stroke, which may have its origins in the heart. In particular, he wanted to listen for arrhythmias, murmurs, and heart failure. Also, it was his understanding that some CMTX conditions have some cardiac issues associated with them. In addition, some of the medicines he was considering are contraindicated for those with cardiac issues: nortriptyline, sibelium, and propranolol.

2985Defence counsel drew Dr. Sloka’s attention to the portion of his reporting letter that addressed Ms. H.J.’s consent for the cardiac examination. He wrote “with careful consent, cardiac examination was normal today.” Dr. Sloka testified that it was his practice to use that phrase when a patient asked questions about gowning, exposure, and other areas of concern. In those situations, he provided patient a more thorough explanation. Dr. Sloka could not recall the contents of his specific consent discussion with Ms. H.J., though.

2986Dr. Sloka testified that Ms. H.J. would have been gowned for the examination. He would have at least asked her to remove her clothing from the waist up, given the cardiac examination. He could not recall whether he asked her to remove her lower clothing for the examination, or whether she did so.

2987Dr. Sloka denied asking Ms. H.J. to wear her gown opened to the front. He did not ask his patients to wear the gown in this fashion.

2988Dr. Sloka testified that he took Ms. H.J.’s vital signs, then performed the neurological examination, and then the cardiac examination, all in accordance with his standard practice. He denied pinching Ms. H.J.’s left breast, as she described. Dr. Sloka maintained that any contact with Ms. H.J.’s left breast would have been unintentional and incidental to his cardiac examination.

Assessment of the Evidence and Analysis

2989Ms. H.J. was an unreliable witness.

2990She professed to have a clear visual memory of her appointment. She visualized the appointment occurring in a single room. She visualized her surroundings. She visualized the examination table being a mere few feet from the chair she sat in while Dr. Sloka took her medical history. In her visual memory, she did not walk from one room to the next following a consent discussion. No. She got up from her chair and took a few short steps to the examination table and obtained her gown. That visual memory is the scaffolding on which her narrative of the assault is built. That visual memory was demonstrably false.

2991A similar problem with Ms. H.J.’s visual memory can be seen at the conclusion of her appointment. On her recollection, when the examination ended, she got dressed, exited the office/examination room, and walked over to a counter in reception to obtain her prescription from atop the counter. To her recollection, the prescription was just sitting there on the counter. No such counter existed. Once again, this visual memory is interwoven with her narrative of the events that she claimed transpired. Once again, her visual memory was demonstrably false.

2992The evolution of Ms. H.J.’s memory regarding the role of a stethoscope in her examination also raises concern, concern about her general reliability and concern about the impact of media tainting on her memory. To hear Ms. H.J. initially testify in-chief, no portion of her examination resembled a cardiac examination. Instead, she described a rather weird breast pinching episode, unconnected to anything resembling a medical procedure. Only after the Crown refreshed her memory from her CPSO statement did Ms. H.J. incorporate the use of a stethoscope in her examination. She then agreed that Dr. Sloka used a stethoscope to listen to the upper part of her chest before pinching her left breast. Ms. H.J. later purported to have felt uncomfortable when Dr. Sloka applied the stethoscope. The discomforting use of the stethoscope immediately preceded the breast pinching. And yet she could not independently remember it. I find Ms. H.J.’s failure to initially remember the stethoscope troubling. She had twice reviewed her CPSO statement in preparation for her testimony, including the day she took the witness stand. If it caused her discomfort, as she claimed, I would expect it to be more easily remembered, especially because she subsequently wove it tightly into her narrative. Instead, she omitted it from her narrative. The omission amplified her complaint. It removed any resemblance to a cardiac examination from her narrative and underscored the unambiguously inappropriate nature of the alleged conduct. As noted, my concern hear is interwoven with my concern about media tainting.

2993Dr. Sloka’s standard cardiac examination included auscultation at the top of the chest, just as she described, before progressing to other areas closer to the breast, which is where she testified Dr. Sloka’s hand went next. Ms. H.J.’s media consumption included reviewing news of complaints of inappropriate breast touching. I have concern that her perception and memory of an uncomfortable but legitimate cardiac examination have been tainted by her exposure to allegations she read about in the news. I am concerned that her memory then evolved again to eliminate any resemblance between the alleged breast touching and a cardiac examination.

2994Ms. H.J.’s claim that she always viewed her examination was wrong and inappropriate also troubles me. It troubles me because she allowed for the possibility that she took the opposite stance when speaking to her mother. If she truly had always thought the examination wrong and inappropriate, she would never have said, “I don’t know if what happened was appropriate or not appropriate. I don’t think it was right, but I don’t know.” If she always thought the examination was wrong, she ought to have had no difficulty denying the suggestion that she said such a thing. Her inability to do so casts grave doubt upon her claim that she always believed her examination to be wrong and inappropriate. It suggests that her current perception was more recently acquired and was the product of media tainting.

2995Relatedly, if Ms. H.J. was truly motivated to protect her friend from a possible sexual assault, she would have told her friend that Dr. Sloka inappropriately touched her breasts. Ms. H.J. offered no evidence to explain why she was not more specific. I am therefore inclined to conclude that Ms. H.J.’s current perception of her examination was more recently acquired and the product of media tainting.

2996Ms. H.J. testified that she saw a CTV news broadcast about a neurologist facing allegations that he sexually abused patients. Those allegations recounted complaints of inadequate draping during examinations and inappropriate breast touching. These complaints mirrored the ones she would eventually make. Ms. H.J. testified that this news story solidified in her mind that the examination was wrong. It validated her concerns. In my view, having regard to the other frailties in Ms. H.J.’s evidence, as already articulated, I conclude there exists a significant likelihood that her perceptions and memory have been tainted by media consumption.

2997I have allowed the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations, like the cardiac examination conducted on Ms. H.J. However, having considered Dr. Sloka’s evidence in the context of the entirety of the evidence, I am amply satisfied that Dr. Sloka has refuted any possible inference of a sexual purpose. I will discuss my assessment of Dr. Sloka’s evidence momentarily. First, though, I will assess the Crown’s reliance upon more granular cross-count similarities, all of which the Crown contends were not discussed in the news, cannot be the product of media tainting, and serve to rebut the possibility that Ms. H.J.’s evidence has been tainted by media exposure.

2998The Crown points to the fact that Ms. H.J. was one of ten complainants who alleged they wore their gowns open to the front. This allegation was not reported in the media and thus cannot be the product of media tainting. However, I do not find this cross-count similarity convincing. The choice between open-fronted and open-backed attire is a 50-50 proposition. If all 48 complainants guessed, probabilities would suggest that something approaching 24 would complain of an open fronted gown. However, only 10 out of 48 patients made this allegation – a ratio of approximately 1:5 complainants. Moreover, not all these ten patients alleged that Dr. Sloka instructed them to wear the gown in that fashion. Some had no memory of Dr. Sloka’s instruction, Ms. C.R., for example. Some provided inconsistent accounts between their police statements and their testimony, Ms. L.M., for example. And some deduced rather than remembered that Dr. Sloka must have instructed them to wear the gown in this fashion – Ms. S.W. Others inaccurately described the kind of gown provided, Ms. K.R., Ms. E.J., and Ms. A.R., for example. And some did not remember if they were even wearing a gown: Ms. M.G. Others testified that they wore the gown in this fashion without any instruction from Dr. Sloka. I find it far more likely that any coincidental position is owed to chance rather than to any propensity of Dr. Sloka. Far too many complainants specifically testified to the opposite instruction for me to construe a propensity that cannot be explained by coincidence. Lastly, Ms. H.J. was so unreliable in her visual memory about other integral components of her narrative that I can place no reliance on this purported memory.

2999The Crown also suggests that Ms. H.J. is one of three complainants who testified that Dr. Sloka used the “everything is connected” justification when proposing to examine their breasts. In my view, a ratio of 3:48 falls far short of establishing a propensity. Any similarity amongst these three witnesses can be explained by random coincidence. Also, I do not construe Ms. H.J. as alleging that Dr. Sloka declared a specific interest in examining her breasts when seeking her consent. Moreover, in cross-examination, Ms. H.J. allowed the possibility that Dr. Sloka provided a much more expansive explanation for the proposed examinations that she could recall.

3000The Crown also argues that Ms. H.J. is one of fifteen complainants who described transitioning from Dr. Sloka’s office to the examination room for a physical examination without understanding the nature of the proposed physical examination. Again, Ms. H.J. allowed for the possibility of a much more expansive consent discussion than the one she was able to recall. She testified that, whatever the content of that discussion, she was satisfied with it, and she provided her consent. The Crown over-reaches here.

3001None of these granular cross-count similarities rebut the plausible effect of media tainting. And none of these granular similarities possess sufficient probative value to warrant admission to support Ms. H.J.’s evidence.

3002The Crown does not rely upon Dr. Bril’s opinion about the reasonableness of Dr. Sloka’s decision to conduct a cardiac examination. I can see no other way in which Dr. Bril’s evidence buttresses the Crown’s case on the material issues in Ms. H.J.’s case.

3003Dr. Sloka firmly denied pinching Ms. H.J.’s breasts. He maintained that he conducted all his examinations for a medical purpose and conducted them in accordance with his standard practice. His evidence was cogent and unshaken by cross-examination.

3004Apart from its similar fact argument, the Crown places their reliance upon Dr. Sloka’s decision to record Ms. H.J.’s “careful consent” in his reporting letter. The Crown argues that Dr. Sloka thereby attempted to “hide what actually happened.” Respectfully, this submission is wholly without merit. Rather than hide the issue, Dr. Sloka highlighted it. Generally, he did not document the consent provided to the examinations proposed. He simply documented the examinations. Moreover, there is no logical connection between the consent to a cardiac examination and what Ms. H.J. describes. She did not allege that the fondling occurred during a cardiac examination. The she purported the breast pinching to be an examination unto itself. I fail to see how highlighting Ms. H.J.’s consent to a cardiac examination somehow conceals an allegedly unrelated breast fondling. Surely, the more likely inference from Dr. Sloka’s documentation is that Ms. H.J.’s consent to a cardiac examination was obtained after a careful discussion. Importantly, the Crown did not cross-examination Dr. Sloka on their illogical and speculative theory.

3005In rejecting the Crown’s theory, I keep in mind that Dr. Sloka documented his examinations in his reporting letter and sent that reporting letter to Ms. H.J.’s family doctor. In these circumstances, Dr. Sloka could expect the elements of his consultation to be discussed between the family doctor and patient. I find it highly unlikely that he would document a cardiac examination and indeed highlight by documenting the carefully obtained consent necessary to conduct it, when he in fact did not. The absence of a cardiac examination from Ms. H.J.’s memory therefore raises even more concerns about her reliability.

3006Having considered the frailties in Ms. H.J.’s evidence and the plausibility of media tainting, and having considered the evidence of Dr. Sloka, I reject Ms. H.J.’s complaint that Dr. Sloka pinched her breasts. I accept Dr. Sloka’s evidence that he took Ms. H.J.’s vital signs and then proceeded to perform neurological and cardiac examinations in accordance with his standard procedures. I further accept that he proposed and explained the examinations before obtaining Ms. H.J.’s consent. Ms. H.J. consented to a medical examination. She got one. There was no sexual assault.

3007Dr. Sloka will be acquitted on this count.

viii. J.L. (Count 1)

A Summary of Ms. J.L.’s Complaint and Dr. Sloka’s Response to It

3008Ms. J.L. alleged that Dr. Sloka exposed her breasts during an examination in which he purported to be looking for moles. In doing so, he touched her breasts, nipples, and other areas of her chest.

3009Dr. Sloka denied exposing and touching her breasts as she described. He conducted a cardiac examination, which may have involved incidental contact with her left breast. Dr. Sloka contends that Ms. J.L.’s perception and memory have been tainted by exposure to media about Dr. Sloka.

The Circumstances of Ms. J.L.’s Referral and Treatment History

3010Ms. J.L. was 25 when she received the referral to Dr. Sloka.

3011Ms. J.L. had been suffering from bad migraine headaches. She went to the ER twice in 2010.

3012At her second ER visit, on September 8, 2010, the attending doctor referred her to Dr. Sloka. The ER doctor also ordered a CT scan to rule out a malignancy or a possible life-threatening vascular issue in the brain. The ER doctor also prescribed two medications for Ms. J.L.’s headaches.

3013Of note, the ER doctor performed neurological and cardiac examinations and reported those findings in the Emergency Physician Record. The cardiac examination involved the use of a stethoscope. The records also suggested that the ER doctor performed a respiratory examination: “chest clear.”

The Evidence of Ms. J.L.

3014Ms. J.L. was 36 when she testified.

3015Ms. J.L. recalled meeting initially with Dr. Sloka in his office in the Kauffman building. She believed she had brought with her a CD of a CT scan performed at the Guelph hospital. She also recalled having a paper copy of that CT scan. It should be noted that she reported to the police that she had undergone an MRI, not a CT scan, and that she was still awaiting the results of that MRI at the time of the visit. Nevertheless, she maintained at trial that she received a CT scan at the hospital. She relied upon a note in her day timer to refresh her memory. Though she remembered this detail about the visit, she remembered very little about what if any discussions she had with Dr. Sloka while in his office. She could not recall the details of the history she provided him or whether any history she provided him was provided before or after the physical exam conducted during her visit.

3016Ms. J.L. recalled that Dr. Sloka was thorough during her visit. She also recalled that he told her that he wanted to perform physical examinations to enable him to understand the cause of her headaches. More specifically, she recalled Dr. Sloka mentioning a correlation between moles and skin abnormalities and some kind of neurological condition that could explain her headaches. She could not recall if he discussed this topic with her in his office or the examination room. Ms. J.L. agreed that she probably told Dr. Sloka that she had some moles.

3017Ms. J.L. recalled going into the exam room, removing her clothes, and putting on a gown. She was alone when she got changed. She removed her bra. She was unsure about whether she removed her underwear. At some point Dr. Sloka had returned to the exam room.

3018Much of Ms. J.L.’s recollection of the examination was hazy. She could not recall the full sequence of the procedures involved in the exam, or the first step of the examination. She could not recall whether Dr. Sloka told her that he wanted to perform a neurological examination. She also could not remember whether Dr. Sloka conducted many of the standard components of his standard neurological exam, but agreed it was possible. However, she did recall that Dr. Sloka performed a strength test on her legs. She could also not recall whether Dr. Sloka used a stethoscope to listen to her lungs and heart.

3019The bulk of Ms. J.L.’s memory concerned an examination of her breasts. Ms. J.L. recalled sitting on the exam table with her gown pulled down to her lap. Her upper torso was naked. She recalled Dr. Sloka using the tips of his fingers to palpate her breasts and her chest. He explained that he was looking for marks or moles on her body and mentioned the possibility that they correlated to her headaches. She also recalled him palpating in the area around her armpits, where she has moles. She described Dr. Sloka’s palpations as being softer than a normal breast exam. Ms. J.L. further alleged that when palpating her breasts, Dr. Sloka also palpated her nipples.

3020This nipple-touching allegation was new. She had not alleged any nipple touching to the police. Despite having failed to mention the nipple touching to the police, Ms. J.L. testified that this touching felt like a real invasion of her personal space, and that it was the greatest, most intimate, and most memorable violation from the examination. She testified that she possessed a memory of that nipple touching when speaking to the police but deliberately held back that information because the topic caused her discomfort. However, she also acknowledged that she specifically agreed to tell the officer every possible detail, no matter the discomfort involved, and she acknowledged that her purported discomfort did not prevent her from alleging breast touching in her police statement.

3021Ms. J.L. acknowledged that some portions of Dr. Sloka’s skin examination involved a strictly visual inspection. She could not recall, though, whether Dr. Sloka examined her back, buttocks, groin, legs, or feet.

3022Ms. J.L. also recalled Dr. Sloka having her lay down on the examination table. He indicated that he wanted to perform further tests. She thought she had her gown overtop of her at the time, but she could not remember. She recalled Dr. Sloka doing a test involving her legs and feet. She recalled him standing at the foot of the table. He asked her to push her feet against him and then pull away from him. Her outstretched legs were raised off the table for this test. When asked about her knees, said she did not remember her knees being bent for this test. She believed this strength test occurred near the end of the examination.

3023Ms. J.L. also could not recall whether Dr. Sloka provided a debriefing in his office after the examination. She did not recall going into another room after the examination ended.

3024Ms. J.L. testified that shortly after her first appointment, she called her friend Je.H. Ms. Je.H. was a registered nurse. She wanted to get Ms. Je.H.’s opinion about whether her examination was appropriate. Ms. J.L.’s memory of what she relayed to Ms. Je.H. was vague. She remembered telling Ms. Je.H. that she thought it was strange that Dr. Sloka examined for moles on her body. She purportedly was doubting the relevance of her skin examination. She believed she must have told Ms. Je.H. that she was wearing a gown and had to undrape, exposing her breasts. She did not specifically recount telling Ms. Je.H. about any breast touching. In-chief, she testified that Ms. Je.H. agreed that the examination didn’t seem right. In cross-examination, she agreed that Ms. Je.H. may have conveyed to her that the examination may have been medically warranted. She also said in cross-examination that her sentiment echoed that of Ms. Je.H.’s.

3025Ms. J.L. had a follow-up appointment on December 21, 2010. She felt no concern or anxiety about this follow-up appointment, despite purportedly experiencing a significant and memorable violation at her first appointment. She did not feel it necessary to have someone accompany her to the second appointment.

3026Ms. J.L. was one of the last complainants to come forward. She contacted the police on January 30, 2020.

3027Before ever contacting the police, Ms. J.L. read about Dr. Sloka in the news. She testified she read a story in The Record, which indicated that Dr. Sloka faced allegations before the CPSO. She remembered that the story mentioned patients complaining of being completely undressed or inadequately draped for examinations. She remembered reading that Dr. Sloka was not allowed to perform skin exams anymore. She also remembered that reading about allegations that Dr. Sloka moved a gown to expose the breasts of a patient. She also recalled reports of breast touching in the news.

3028Ms. J.L. acknowledged reading multiple articles about Dr. Sloka before she spoke to the police on January 30, 2020. The articles included coverage of the CPSO investigations, coverage of the suspension of Dr. Sloka’s licence pending investigation; the existence of a police investigation; the laying of 34 charges; and the laying of 29 additional charges. She agreed that some of the articles recounted allegations with “the same details that form, essentially, [her] allegations about the examination [she] had with Dr. Sloka.”

3029Ms. J.L. could not recall when she first read media articles about the allegations against Dr. Sloka. She knew her exposure to this media did not occur within weeks of her contacting police in January of 2020. She also did not think that the gap was as large as two years. As will be discussed, this assertion is at odds with the evidence provided by Ms. Je.H. After thorough questioning on the subject, Ms. J.L. professed that she was unable to recall the amount of time that passed between her initial media exposure and her call to police. Ms. J.L. also did not recall if she contacted Ms. Je.H. immediately after discovering the media coverage. Again, as will be discussed, Ms. Je.H. had a different recollection. Also, Ms. J.L. could not recall whether she spoke to Ms. Je.H. at all before contacting the police on January 30, 2020. She also could not recall whether she spoke to Ms. Je.H. between that date and the date of her police interview on February 3rd. She agreed, though, that she spoke to Ms. Je.H. at some juncture about her allegations against Dr. Sloka. She simply did not recall the timing of that discussion.

3030Although Ms. J.L. could not recall the timing of when she spoke to Ms. Je.H. about the allegations she ultimately made to the police, she did admit that a conversation occurred. She also admitted that in that conversation they compared recollections of what Ms. J.L. purportedly told Ms. Je.H. way back in 2010.

3031When asked if, because of their conversation, she knew what Ms. Je.H. might say in her testimony, Ms. J.L. prevaricated. At first, she said no. Then she agreed that, having told Ms. Je.H. of her recollection of their long-ago discussion, she should have a pretty good idea of what Ms. Je.H. might say. Then when asked if she told Ms. Je.H. about the purportedly memorable nipple touching allegations, Ms. J.L. replied, “I don’t remember.”

The Evidence of Je.H.

3032Ms. Je.H. was called by the Crown to rebut the suggestion that Ms. J.L.’s evidence has been tainted by her exposure to media coverage of Dr. Sloka.

3033Ms. Je.H. testified that at some point in the past Ms. J.L. called her about an appointment with a neurologist. On her evidence, this phone call occurred before she ever read any media coverage of the allegations against Dr. Sloka. She estimated that the call occurred between the births of her two children: after 2008 and before 2011. Later in her evidence, she appeared to agree that the phone call occurred in 2010.

3034The call occurred close in time to Ms. J.L.’s appointment.

3035According to Ms. Je.H., Ms. J.L. was upset and questioning whether the examination was appropriate. Ms. Je.H. was a registered nurse. Accordingly, Ms. J.L. wanted Ms. Je.H.’s opinion. Ms. Je.H. candidly admitted that she did not have a perfect memory of what Ms. J.L. disclosed. At times in her evidence, particularly in cross-examination, she couched her recollections with the qualifier, “I feel like.” Nevertheless, the sum of her recollections can be summarized as follows. Ms. J.L. told Ms. Je.H. that the examination was very hands-on and that the doctor asked her to take off more clothing than necessary for the examination. She recalled Ms. J.L. reporting that she removed her top clothing and put on a gown. She also recalled a report of a breast examination, but one that felt invasive and longer than necessary. Then the doctor moved his hands all down her body to her feet as he moved to the end of the bed. Then he stood at the bed awkwardly while she was unclothed. Ms. J.L. reported that the doctor provided vague explanations and mentioned looking for moles.

3036Ms. Je.H. testified, though, that had Ms. J.L. recounted nipple touching, she would have considered that behaviour as completely inappropriate. On Ms. Je.H.’s evidence, she was never able to conclude that the reported touching was inappropriate. Instead, after hearing Ms. J.L.’s description of her examination, Ms. Je.H. did not know whether the conduct was proper. She felt that the described examination was outside of her area of expertise. While the examination sounded unusual to her, she felt it could have been medically appropriate. She just was not sure. According to Ms. Je.H., she comforted Ms. J.L. and expressed hope that the steps taken were medical.

3037Ms. Je.H. testified years after her initial discussion with Ms. J.L., she saw news about the allegations against Dr. Sloka in “medial outlets.” She testified that she first saw this media “when things would’ve come out,” implying that she became aware of the allegations at the outset of media reporting on the subject. She further agreed that she saw the media reports “a couple of years” before she sat down for an interview with the police. The totality of Ms. Je.H.’s evidence therefore suggests that she first spoke to Ms. J.L. about the media coverage in 2018.

3038As Ms. Je.H. recalled it, the media coverage mentioned allegations involving the inappropriate touching of patients’ breasts and unwarranted skin examinations. She felt there were some elements in the media that sounded “familiar to what [J.L.] had told [her] years before.”

3039Ms. Je.H. called Ms. J.L. very promptly after seeing the media articles. She also sent to Ms. J.L. a copy of an article about Dr. Sloka.

3040In this initial phone conversation after Ms. Je.H. saw the media coverage, Ms. J.L. recounted her own memory of the medical examination and her own memory of what she previously told Ms. Je.H. about that examination. By the time of trial, Ms. Je.H. could not provide more details about the content of this phone conversation. She could not recall whether she shared with Ms. J.L. her own memory about the 2010 conversation.

3041Ms. Je.H. also agreed that she followed the media’s coverage of Dr. Sloka’s case as it unfolded. She recalled seeing media reports about Dr. Sloka being suspended, and then subsequent reports about him losing his licence. She also recalled seeing media reports about Dr. Sloka being assaulted in prison.

3042Ms. Je.H. spoke to Ms. J.L. one more time before giving her statement to the police on February 3, 2020. That conversation occurred after Ms. Je.H. saw the news report about Dr. Sloka being assaulted in custody. She recalled talking about “the challenges of this case.”

3043Following the instructions from the police, Ms. Je.H. did not speak to Ms. J.L. about the case after giving her police statement.

The Evidence of Dr. Bril

3044Dr. Bril testified that the alleged skin examination was unnecessary and unreasonable. Likewise, she testified that the alleged touching of Ms. J.L.’s exposed breasts was unnecessary and unreasonable. These opinions were not controversial. Dr. Sloka denied doing these things. Dr. Sloka testified that he performed his standard neurological examination and his standard cardiac examination. He was unsure if he performed a complete and independent respiratory examination. Given Dr. Sloka’s position, Dr. Bril’s testimony offers no assistance in resolving the material issues in Ms. J.L.’s complaint.

3045I would note in passing, though, that while Dr. Bril opined in-chief that a cardiac examination was unnecessary in Ms. J.L.’s case, she indicated in her trial preparation meeting that a cardiac examination could have been reasonable for Ms. J.L..

3046I would also note that Dr. Bril observed that Ms. J.L.’s ER doctor had prescribed Toridol and Maxiran. This was not a drug combination she ever prescribed for migraines. However, Dr. Sloka testified that he had prescribed this combination both as an ER doctor and as a neurologist.

The Evidence of Dr. Sloka

3047Dr. Sloka had no independent memory of Ms. J.L..

3048He relied upon the contents of his consultation letters for the truth of their contents. He relied upon the rest of Ms. J.L.’s chart for necessary context.

3049Dr. Sloka first saw Ms. J.L. on September 21, 2010.

3050Though her CT scan had been booked for September 16, 2010, he had no memory of whether he saw the results of the CT scan at Ms. J.L.’s initial appointment. The imaging findings were not contained in his chart. Usually, he would note in his consultation letter whether he had reviewed any imaging results.

3051Dr. Sloka observed that the possible ailments considered by the ER doctor were serious.

3052Dr. Sloka testified that when taking Ms. J.L.’s history, he asked his usual screening questions during his systems review. Those screening questions include questions about any markings on Ms. J.L.’s skin.

3053Given her headaches, Dr. Sloka testified that his standard approach to such a patient would involve both a neurological and cardiac examination. A cardiac examination was part of his standard assessment of a headache patient. He also noted that some of the medications he might consider prescribing have cardiac contraindications. Ultimately, the two drugs he prescribed both have cardiac contraindications. He further testified that his standard cardiac examination involved a respiratory component. However, he did not recall whether he did a full respiratory examination. In retrospect, he did not see any reason for him to consider a full respiratory examination.

3054Dr. Sloka acknowledged the ER doctor charted a neck examination, a neurological examination, a respiratory examination, and a cardiac examination. He could not recall whether he took note of these examinations prior to seeing Ms. J.L. He testified that, while he reads the reason for the referral, he often does not read about the examinations conducted. He explained that he does an independent assessment of the patient, one that is not clouded by any previously conducted physical examinations. He added that he would not refrain from conducting a cardiac examination simply because the ER doctor charted normal results for a cardiac examination. A patient’s condition can change.

3055Dr. Sloka testified that at the onset of the neurological examination, he would have palpated the back of Ms. J.L.’s neck to check for tenderness, which can be a headache trigger.

3056Based on Ms. J.L.’s presentation and the examinations he performed, Dr. Sloka testified that he would have asked Ms. J.L. to remove the clothing from her torso and put on a gown. Her history did not suggest an issue with her lower extremities, so he saw no reason for him to ask her to remove her pants. Having said that, he had no memory one way or the other.

3057Dr. Sloka denied visually inspecting Ms. J.L.’s bare breasts, doing a skin examination, touching in the area of Ms. J.L.’s armpits, and touching Ms. J.L.’s naked breasts.

3058Dr. Sloka testified that if he observed a mole during his cardiac examination but there was no concern about that mole, he would not note that observation in his consultation letter.

3059Dr. Sloka was not asked about how he performed any leg or foot strength examinations on Ms. J.L..

3060Ultimately, Dr. Sloka concluded that Ms. J.L.’s headaches were migraine-like but did not fully meet the criteria for migraines. He prescribed Zomigand and Nortriptyline to reduce the severity and frequency of her headaches. Because she did not have a regular local family doctor, he booked a follow up in three months to ensure she was tolerating her medications.

3061According to his December 21, 2010, consultation letter, Ms. J.L. reported no headaches since her first appointment. In addition, she reported that she did not resort to the use of the prescribed medications. She simply reduced her hours of employment. She attributed the headaches to stress. Dr. Sloka did not make any further plans for follow-up after this second appointment. There was no need.

Assessment of the Evidence and Analysis

3062For various reasons, I have concerns about Ms. J.L.’s reliability and, to a certain extent, her credibility.

3063My most significant concern arises from Ms. J.L.’s failure to inform the police about the admittedly most significant, most intimate, and most memorable violation allegedly committed by Dr. Sloka. To explain this glaring omission, she testified that she knowingly held back this allegation because the topic caused her discomfort. I reject that explanation. I do not consider it an honest one. To explain, I want to take a step back. On Ms. J.L.’s evidence, she decided to contact the police after reviewing media coverage about Dr. Sloka. That coverage included reports of other patients alleging breast touching. An article she read provided a phone number she could call to speak to the police. I infer she intended to make an allegation of breast touching. And that is precisely what she did during her interview with the police. But that allegation involved palpation of the breasts and, by her own admission, did not involve an allegation of nipple touching. I reject as utterly unbelievable the notion that an allegedly sexualized breast touching was within the bounds of her comfort zone but that somehow nipple touching was out of bounds. As the Crown aptly elicited in re-examination, the nipples are part of the breasts.

3064I also conclude that Ms. J.L. did not allege nipple touching when speaking to Ms. Je.H. in 2010. It is clear from Ms. Je.H.’s evidence that, had this allegation been made, Ms. Je.H. would have most certainly concluded that the examination was inappropriate. She did not come to that conclusion after her discussion with Ms. J.L. There exists only one reasonable inference, in my view. Ms. J.L. never alleged nipple touching when speaking to Ms. Je.H. in 2010.

3065I now turn the to the possibility of media tainting. In my view a significant likelihood exists.

3066Ms. J.L. agreed that she felt no concern or anxiety following her initial appointment with Dr. Sloka. She did not feel it necessary to have someone accompany her. This acknowledgement is at odds with Ms. J.L.’s assertion that she had experienced a significant, intimate, and memorable violation at her first appointment. Instead, this acknowledgement is consistent with Ms. J.L. having little concern about what transpired at the first appointment.

3067Ms. J.L. purportedly could not recall when she first read media coverage about Dr. Sloka. She claimed that it was not a matter of weeks before she spoke to police but rejected the possibility it was a couple of years. She also claimed no memory of speaking to Ms. Je.H. about the media coverage. While she was prepared to admit that, at some point, she and Ms. Je.H. compared recollections of what she purportedly told Ms. Je.H. in 2010, she claimed not to recall whether this comparison occurred before or after she gave her police statement. I am dubious about all these claims. In my view, Ms. J.L. was obfuscating here. Let me explain. She clearly indicated that media coverage moved her to contact the police. The exposure to media coverage must have been memorable. Any other suggestion is specious. Moreover, Ms. Je.H. testified that she contacted Ms. J.L. after the allegations against Dr. Sloka “came out” – implying that she contacted Ms. J.L. about the news in 2018. This implication is reinforced by her testimony that a couple of years elapsed between that call and her February 3, 2020, interview with the police. She also testified to speaking to Ms. J.L. about at least one other media article, published after Dr. Sloka had been charged and was in custody. Based on the evidence of Ms. Je.H., I conclude that initial discussions between the two about the media coverage must have occurred sometime in 2018 – in the early days of the media coverage and about two years before Ms. J.L. eventually decided to contact the police. I simply do not believe Ms. J.L.’s evidence that she had no memory of speaking to Ms. Je.H. about the media coverage of Dr. Sloka. It defies belief that she would not recall what Ms. Je.H. paints as an obviously momentous conversation but at the same time recall many details of a decade-old conversation. The circumstances lead me to conclude that Ms. J.L. was attempting to thwart any scrutiny of the delay between her media exposure and her eventual decision to contact the police on January 30, 2020. The circumstances also lead me to conclude that Ms. J.L. was attempting to thwart the conclusion that her account has been tainted by media exposure. Ms. J.L.’s credibility suffers significantly from these conclusions.

3068Ms. Je.H. testified that, when she first came across media coverage of Dr. Sloka, she sent Ms. J.L. an article about the allegations. The article referred to allegations of inappropriate breast touching and inappropriate skin exams – both allegations that mirror some of Ms. J.L.’s complaint. According to Ms. Je.H., when Ms. Je.H. called Ms. J.L. to discuss the media coverage, Ms. J.L. recounted aspects of her complaint to Ms. Je.H. and recounted her version of what she told Ms. Je.H. in 2010. While not committing to the timing of the conversation, Ms. J.L. also admitted to comparing recollections with Ms. Je.H. about what Ms. J.L. told Ms. Je.H. in 2010. In addition, both Ms. J.L. and Ms. Je.H. acknowledged reading numerous articles about the allegations against Dr. Sloka. Ms. J.L. acknowledged that the media reports she read contained details that form essentially the contents of her own allegations before the court. Ms. Je.H. made a similar acknowledgement. The circumstances here reveal the significant potential for the media coverage to have tainted the memories and perceptions of both Ms. J.L. and Ms. Je.H. In addition, the information imparted by Ms. J.L. to Ms. Je.H. during their post-media phone call had the significant potential of tainting Ms. Je.H.’s recollection of their 2010 conversation. In short, I conclude that there exists a real likelihood that Ms. J.L.’s testimony has been tainted. I also conclude that there exists a real likelihood that her anti-tainting witness has been tainted.

3069Ms. J.L.’s evidence also suggests that, despite the evidence she gave at trial, she did not contemporaneously consider her examination to be inappropriate. She agreed that she had no concerns or anxiety about attending a follow up appointment. This acknowledged subjective state of mind appears inconsistent with her evidence that she experienced an intimate and memorable violation that prompted her to seek an opinion and reassurance from her nurse friend – and it appears inconsistent with her friend’s characterization of her state of mind during that post-examination discussion.

3070The evidence establishes a substantial delay between Ms. J.L.’s first exposure to media coverage of Dr. Sloka and her January 30, 2020, call to police. Delay alone on its own may not form a basis for the rejection of a complainant’s evidence. However, delay does not stand alone here. The Crown asks me to consider Ms. J.L.’s state of mind at the time of the examination when drawing conclusions about the sexual nature of the activity alleged. Surely, then, Ms. J.L.’s state of mind when she read allegations that mirror her own is admissible to assess the reliability of Ms. J.L.’s claims about her contemporaneous state of mind at the time of the examinations. Importantly, Ms. J.L. never suggested that, after exposure to the media, she was not yet ready to make her allegations. She simply obfuscated when asked to pinpoint the timeframe of her exposure to that media. On her evidence, it was the media exposure that prompted her to come forward. Yet other evidence suggests a significant gap, potentially an 18-month gap, between her initial media exposure and her call to the police. In the meantime, she admitted to copious consumption of media articles about Dr. Sloka. That delay suggests that Ms. J.L. did not immediately conclude or believe that she had been victimized. On the contrary, that delay suggests media coverage tainted her perceptions and memory.

3071The Crown asks me to consider the similarity of the evidence of some of the other complainants to Ms. J.L.’s when assessing Ms. J.L.’s evidence.

3072I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on patients. However, having considered Dr. Sloka’s evidence against the totality of the evidence, I conclude that he has refuted any possible inference of a sexual motive.

3073The Crown also asks that I consider two granular cross-count similarities in support of Ms. J.L.’s evidence on other material issues.

3074In particular, the Crown relies upon the alleged similarity between Ms. J.L.’s leg strength examination and that of three other patients. For several reasons, I do not find this cross-count similarity sufficiently probative on any other material issue. First, in my view, there is insufficient similarity between Ms. J.L.’s evidence and the other three patients. Ms. J.L. alleged her outstretched leg was raised in the air during her leg strength examination. She did not allege it was bent at the knee as the others described. She alleged she pushed and pulled with her foot. It was a rotational movement of her foot, not a movement of her leg. There were other differences between her evidence and the others. She testified that she believed she had her gown overtop of her but wasn’t sure. She also wore underwear. Therefore, she did not allege being naked or in a state of undress. And she did not complain of any genital exposure during this portion of the examination. Second, the Crown never asked Dr. Sloka whether he conducted the examination as Ms. J.L. described. In my view, it is unfair for the Crown to place reliance upon this purported similarity without first having given Dr. Sloka a chance to address it. Lastly, I would observe that four patients out of 48 does not constitute a compelling pattern of alleged conduct. Forty-four other patients did not allege anything similar. I attribute any vague similarity in the description of this examination by these four patients to chance and not to any propensity of Dr. Sloka.

3075The Crown also relies on Ms. J.L.’s membership in a constituency of patients who allege that Dr. Sloka asked about moles. I do not find this purported cross-count similarity to be sufficiently compelling, for several reasons. First, and crucially, I have concluded that there exists a significant likelihood of media tainting. Ms. J.L. read a lot of news about Dr. Sloka. The reference to moles was present in many media articles. Second, and to a lesser extent, I note that Dr. Sloka gave evidence that he asked questions pertaining to markings on the skin during his systems review questioning. This evidence gives rise to the reasonably possible and innocent explanation for any memory about the mention of markings on the skin. I have observed in this case that many witnesses did not trouble themselves with the distinction between common moles, birthmarks, and stigmata of neurocutaneous disease. The terms “moles” and “birthmarks” appeared to be used interchangeably by many witnesses. As a matter of common sense and human experience, that can be expected. For his part, Dr. Sloka professed some difficulty in explaining to patients the type of skin abnormalities that were of interest. It is entirely understandable that laypeople might conflate moles with stigmata that were actually of interest.

3076Having regard to the above noted concerns, I am unable to conclude that Ms. Je.H.’s evidence rebuts the very real likelihood of tainting here. And having regard to the above noted credibility and reliability concerns, I reject t Ms. J.L.’s evidence on the material issues in this case, including her evidence regarding the examinations proposed and conducted by Dr. Sloka.

3077I turn now to an assessment of Dr. Sloka’s evidence.

3078Dr. Sloka provided a cogent explanation for conducting the neurological and cardiac examinations he charted. Regarding the cardiac examination, Dr. Sloka testified that cardiac examinations formed part of his standard assessment of headache patients. Also, a cardiac examination was warranted because he was prescribing medications with cardiac contraindications. The Crown does not critique Dr. Sloka’s justification for conducting either the neurological or cardiac examinations.

3079Dr. Sloka denied performing a skin examination, contending that there existed no reason to do one. He also maintained that he performed the neurological and cardiac examinations in accordance with his standard methods – methods that did not involve exposure of anything more than Ms. J.L.’s left breast, did not involve breast or nipple touching, and did not involve the leg-strength examination described by Ms. J.L..

3080The Crown levies several critiques at Dr. Sloka’s evidence, but I do not see merit in them. I will address the critiques in turn.

3081The Crown argues that Dr. Sloka’s concession that he may have asked Ms. J.L. about skin markings makes no sense because Dr. Sloka acknowledged that he did not suspect neurocutaneous disease. This submission ignores Dr. Sloka’s testimony that, when taking a patient’s history, he inquired about skin and joint concerns when doing his standard review of the various systems of the body. Dr. Bril agreed that such a systems review inquiry was appropriate.

3082The Crown suggests that because Dr. Sloka could not remember Ms. J.L., he could not deny her allegations of inappropriate examinations. They suggest his denial lacks foundation and is speculative. I disagree. Dr. Sloka charted neurological and cardiac examinations. Ms. J.L.’s history and presentation provided no medical basis for conducting a skin examination. He thus had a foundation for believing he did not conduct one. Also, he provided an unchallenged description of his standard method of performing neurological and cardiac examinations. The alleged conduct did not conform with his standardized approach. He knew he didn’t do what was alleged because that is not what he does when performing the examinations he charted. While he did not say so explicitly, his evidence constituted a resounding implicit denial that he would ever do what Ms. J.L. alleged. He had an ample basis for his denials.

3083The Crown also suggests Dr. Sloka gave inconsistent evidence on whether he performed a full respiratory examination. I disagree. He simply could not recall one way or the other. And he did not document one. He knew, though, that his cardiac examination contained a respiratory component. There was no inconsistency.

3084In summary, neither the cross-examination of Dr. Sloka nor the Crown’s evidence succeeded in undermining Dr. Sloka’s evidence regarding Ms. J.L.

3085Dr. Sloka provided a reasoned explanation of the examinations documented in his consultation letter and a reasoned explanation for his denial of a skin examination.

3086I accept that he conducted a neurological and cardiac examination in accordance with his standard procedure. I accept that the cardiac examination involved the exposure of the left breast and nothing more.

3087I reject Ms. J.L.’s testimony that Dr. Sloka exposed Ms. J.L.’s full torso, touched both her breasts, and touched her nipples. I also reject her testimony about her leg/foot strength examination.

3088The Crown has failed to prove that Ms. J.L. received anything other than a medical examination conducted for valid medical purposes.

3089Dr. Sloka will be acquitted on this count.

ix. K.R. (Count 62)

A Summary of Ms. K.R.’s Complaint and Dr. Sloka’s Response to It

3090Ms. K.R. was a headache patient. She testified that Dr. Sloka palpated the left side of her torso from her armpit to her ribcage, while she laid down on the examination table. She testified that her gown fell open in the process, which was made possible because she wore her gown open to the front. Dr. Sloka repeated this palpation on the right side of her torso, which caused the gown on that side to slip away too, thereby exposing her right breast. Ms. K.R. testified that Dr. Sloka then began to palpate and massage her breasts. Ms. K.R. denied that Dr. Sloka performed a neurological examination.

3091Dr. Sloka testified that he performed a neurological examination and a “minimal cardiac examination”. He also palpated the back of her neck to look for headache trigger points.

The Circumstances of Ms. K.R.’s Referral and Treatment History

3092On December 20, 2011, Ms. K.R. attended the GRH ER. She had been suffering from headaches and dizziness for three weeks. The headaches came on suddenly and had recently become more intense. Her headaches were also accompanied by nausea and facial numbness. The ER doctor ordered a CT scan. The results were normal. The ER doctor discharged Ms. K.R. and referred her to Dr. Sloka. In the referral form, the ER doctor noted that Ms. K.R. also suffered from right sided weakness in her upper arms and lower limbs.

3093Despite reviewing her medical records in preparation for trial, Ms. K.R. incorrectly believed that her family doctor referred her to Dr. Sloka. While she did not initially recall it, she ultimately agreed that, following an ER visit at GRH on December 20, 2011, an ER doctor made the referral to Dr. Sloka.

3094Around the time of the referral, she was seeing several doctors, including an endocrinologist, cardiologist, and family doctor. She had previously been diagnosed with pheochromocytoma, a tumor on the adrenal glands. In 2008, she underwent surgery to have a tumor removed. She wondered whether her headaches signalled a return of pheochromocytoma.

3095Dr. Sloka first saw Ms. K.R. on December 30, 2011. Ms. K.R. was 41 years old at the time.

3096Dr. Sloka saw Ms. K.R. in follow-up on March 16 and October 17, 2012.

The evidence of Ms. K.R.

3097As noted, Ms. K.R. went to three total appointments with Dr. Sloka. She alleged that Dr. Sloka sexually assaulted her on her first appointment, on December 30, 2011.

3098Ms. K.R. testified that some memories of her first appointment were vivid, and some were fuzzy. She testified that her memory of the sequence of the examinations was vivid.

3099Ms. K.R. recalled that, on the day of her first appointment, Dr. Sloka retrieved her from the waiting area and took her to his consultation room. Once there, they discussed her personal and medical history. While she could not recall all the details discussed, she remembered that much of the conversation centred on the severity of her headaches. She also recalled discussing her travel history with him. She had been concerned about tropical disease and reported growing up in several Latin American countries. As they talked, they both recounted how they had been hiking in Latin America. She described being in awe of him, while also finding him to be a quirky person, somewhat out of step with social norms. Nevertheless, she considered him to be authentic, “real”. At the time, she felt that they had formed a good connection and that he was a good neurologist.

3100According to Ms. K.R., while still in the consultation room, Dr. Sloka asked to check her neck for lumps. She agreed. She advised that she had possessed lumps since childhood. After feeling her neck for 20-30 seconds, Dr. Sloka informed her that he wanted to do a further search for lumps and nodules. On her evidence, he did not provide any other justification for the examination that followed.

3101In cross-examination, Ms. K.R. testified that she did not remember “at all” Dr. Sloka stating that he wanted to conduct a neurological examination to assess whether there was any connection between her brain and her symptoms. She also did not remember “at all” Dr. Sloka stating that he wanted to conduct a cardiac examination to assess whether her heart provided insight into her symptoms. She emphatically denied that Dr. Sloka told her that he needed her to remove her shirt and bra to facilitate a cardiac examination. This denial is puzzling, because, as will be discussed below, Ms. K.R. could not remember whether Dr. Sloka performed a cardiac examination and could not dispute the possibility.

3102Ms. K.R. testified that, at Dr. Sloka’s direction, Ms. K.R. moved to the examination room to be examined. Dr. Sloka directed her to sit on the examination table. After she sat on the examination table, he provided her with a gown. He then instructed her to remove her shirt and bra and put on a gown. He told her to wear the gown open to the front. Dr. Sloka then gave her privacy to get changed. After she changed, he returned to examine her.

3103In her evidence in-chief, Ms. K.R. testified that her gown was blue and had short sleeves. She could not remember whether it was made of paper or cloth. She also did not remember it having any ties. Ms. K.R. testified that she wrapped one side of the gown over the other and held it closed. In cross-examination, Ms. K.R. agreed that she repeatedly told the police that the gown was made of paper but then became uncertain later in her interview. Additionally, Ms. K.R. acknowledged that she did not tell the police that Dr. Sloka instructed her to wear the gown open to the front. Nevertheless, Ms. K.R. maintained that she would not have known to wear the gown this way if Dr. Sloka had not provided the instruction to do so. However, Ms. K.R. also testified that she wears her gown open to the front when obtaining mammograms. This was not the only medical situation in which she wore her gown open to the front. Defence counsel confronted Ms. K.R. with photographs in Exhibit 2 which depicted the standard issue gowns used in Dr. Sloka’s clinic. As it happens, one of the standard issue gowns depicted in Exhibit 2 is blue and has short sleeves. Ms. K.R. confirmed this. Both gowns depicted in Exhibit 2 are made of cloth and have ties at the neck. Ms. K.R. confirmed this. Ms. K.R. also confirmed that the gowns depicted in Exhibit 2 were designed to be worn with the opening at the back. Confronted with these photographs, Ms. K.R. then became certain that the gown she wore was different than those depicted – suddenly, she was certain that her gown did not have ties.

3104Ms. K.R. described the examination table. Her description was at odds with the examination table depicted in Exhibit 2. She described it as an old school table with black cushion and with a step up to the table. She recalled using the step to get onto the examination table.

3105According to Ms. K.R., after she put on her gown, Dr. Sloka palpated the nodules on her neck some more while she sat on the examination table. He then asked her to lay down on the examination table so that he could continue to search for nodules. Accordingly, she laid down on the examination table with her gown pulled closed, with one side overlapping the other.

3106Ms. K.R. remembered Dr. Sloka palpating under her left armpit, from over top of the gown. He then continued to palpate down her rib cage to the left side of her breast. The gown lay between his fingers and her torso. As he palpated with the flat of his fingers, the left side of the gown slid off her left breast. He repeated the same process on her right side, also causing the gown to slide off her right breast. As a result, her breasts were fully exposed.

3107Ms. K.R. testified that Dr. Sloka then began to palpate with his finger pads and the flat of his hands all around her left breast – “all around but not on it” – everywhere but the nipple. He repeated the same palpation around her right breast.

3108According to Ms. K.R., while Dr. Sloka palpated around her breasts, her arms were extended outwards from her sides, with each arm bent 90 degrees at the elbow. She described it as a “hands up” or “robbery” position.

3109Ms. K.R. acknowledged in cross-examination that what she described was a blatantly sexualized examination. However, she testified in-chief that she told herself that she had to trust him. She also recalled thinking that endocrine cancer can go anywhere in the body. She told herself that the examination was important but at the same time thought that it was “out of line.”

3110Ms. K.R. testified that after Dr. Sloka finished palpating her breasts, he told her to get dressed. On her evidence, Dr. Sloka did not perform any other kind of examination on her. In sum, on Ms. K.R.’s account, the entire physical examination consisted of Dr. Sloka palpating her neck, palpating from both armpits down along her rib cage, and then palpating and massaging her breasts.

3111In cross-examination, Ms. K.R. acknowledged that her testimony regarding the sequence of the nodule palpation differed from the sequency she described to the police. At trial, she testified that Dr. Sloka did not resume palpating any nodes in the examination room until after she got changed into her gown. Ms. K.R. agreed that she told the police that, while she sat fully dressed on the examination table, Dr. Sloka palpated the nodes of her neck before instructing her to get into her gown. She adopted as accurate the sequence she provided to the police.

3112In cross-examination, defence counsel took Ms. K.R. through the steps of Dr. Sloka’s standard neurological examination. One by one, she denied that Dr. Sloka performed these neurological tests. Regarding the fundoscopy, Ms. K.R. was adamant that Dr. Sloka did not turn off the lights and use an ophthalmoscope to look into her eyes. She explained that the room was illuminated by sun shining through the window. Turning off the lights would have been pointless. Then she said that there were no lights on anyway. The room was lit entirely by sunlight. According to Ms. K.R.’s testimony, Dr. Sloka’s documented neurological examination simply did not occur.

3113In cross-examination, defence counsel also took Ms. K.R. to Dr. Sloka’s consultation letter, in which he documented a “minimal” cardiac examination. Ms. K.R. had not been aware of this documentation. She agreed that it was possible that Dr. Sloka conducted a minimal cardiac examination by using a stethoscope to listen to her heart from over top of her clothing. She also agreed that, in her police statement, she told the police that she did not remember whether Dr. Sloka listened to her heart. She confirmed at trial that she could not remember whether Dr. Sloka listened to her heart, but she could not discount it. Her concession here cast into doubt her previous adamant denial that Dr. Sloka asked her to put on a gown for the purpose of conducting a cardiac examination. It also cast into doubt her assertion that her breasts were exposed. Until the topic arose in cross-examination, a “minimal” cardiac examination did not appear to be a possible component of her narrative.

3114According to Ms. K.R., once she got changed, she returned to the consultation room to speak again with Dr. Sloka. She did not recall specifics of their discussion, but she understood that she would be partaking in further testing. She did not believe Dr. Sloka informed her of any findings.

3115Ms. K.R. described being confused and frustrated after the appointment. She really liked Dr. Sloka. However, she testified that she almost felt betrayed by what she conceded was a blatantly sexualized examination. She purportedly attempted to justify the examination to herself.

3116Due to her overwhelming sense of embarrassment, she never discussed the appointment with anyone.

3117Ms. K.R. saw Dr. Sloka two times in follow-up. She saw him on March 16, 2012, and October 12, 2012.

3118According to Ms. K.R., she was more reserved and “potentially colder” on these subsequent visits. She did not want to leave room for any misinterpretation. She testified that she went to these visits because she wanted to obtain her test results.

3119In 2018, Ms. K.R.’s mother was referred to Dr. Sloka by an eye doctor. Her mother told her the issue was serious. She could no longer see out of her left eye. Ms. K.R. encouraged her mother to see Dr. Sloka. Ms. K.R. wanted to come to the appointment. She convinced her mother to allow her to accompany her. According to Ms. K.R., although her mother knew nothing about her own allegations against Dr. Sloka, she planned to intervene without warning and prevent Dr. Sloka from performing an examination on her mother. Her mother’s first appointment occurred on September 6, 2108. A woman sat and observed the consultation. Ms. K.R. inquired about the woman’s presence. The woman said that she was there to assist Dr. Sloka. Neither the woman nor Dr. Sloka provided any additional information. They did not inform Ms. K.R. or her mother of any practice restrictions. Ms. K.R. did not observe any Notices about Dr. Sloka. According to Ms. K.R., Dr. Sloka had no answers to her mom’s medical issue.

3120Later that same day, Ms. K.R. decided to go on the internet in search of another neurologist for her mother. In doing so, she came upon an article about Dr. Sloka. She read the article and re-read it a couple of times. She believed the article was from 570 News, but she could not be certain. She also testified that she could not recall the specific allegations reported in the article. However, she testified to being sickened by what she read in the news article. According to Ms. K.R., she did not search the internet for other articles. She was not interested in seeing if other people had similar experiences to her own. Instead, according to Ms. K.R., she simply continued to search for a different neurologist for her mother. Despite doing this search, Ms. K.R. made no actual effort to obtain a new referral for her mother. She explained that she assumed it would take a year to obtain a new referral.

3121Ms. K.R. spoke to her mother after she read the news article about Dr. Sloka. She did not however, discuss with her mother her own allegations against Dr. Sloka. Instead, the two discussed whether her mother should return to see Dr. Sloka in follow-up.

3122Her mother’s second appointment occurred on December 10, 2018. Ms. K.R. again accompanied her mother. By that time, Dr. Sloka was in the midst of his disciplinary proceedings. She had yet to lodge her own complaint about Dr. Sloka.

3123Apart from the one article she read in September of 2018, Ms. K.R. denied reviewing any more media publications about any CPSO complaints regarding Dr. Sloka.

3124Ms. K.R. decided to call the CPSO on May 24, 2019. She denied that she read or saw any media coverage about Dr. Sloka in the days or weeks leading up to this phone call.

3125In her phone call to the CPSO, the staff member advised Ms. K.R. about the option of calling the police. She also suggested Ms. K.R. look at the CPSO website to read about the discipline proceedings. Ms. K.R. followed that advice and read the information contained in the CPSO’S records of the disciplinary proceedings. In doing so, she read allegations about full body skin examinations, patients being completely naked during examinations, and breast cupping.

3126Ms. K.R. also believed she reviewed some more media in the ensuing months. However, Ms. K.R. could not recall any specific contents of the media she reviewed, other than the fact that the media referred generally to allegations of sexual assault.

3127Ms. K.R. sent an email to police on September 27, 2019, and partook in a police interview on October 19, 2019.

3128After the police interview, Ms. K.R. had still not decided whether she wished to participate in the prosecution.

3129However, upon learning that her own daughter had been sexually assaulted by someone, she decided to participate.

The Evidence of Dr. Bril

3130Dr. Bril testified that the breast palpation described by Ms. K.R. was not neurologically reasonable. This opinion was not controversial. Dr. Sloka denied palpating Ms. K.R.’s breasts.

3131She also testified that it would in fact be neurologically reasonable to palpate Ms. K.R.’s neck in search of headache trigger points. However, she added that any palpation of the neck for this purpose and the resulting findings ought to have been recorded, even if the findings were negative.

3132Dr. Bril also agreed that a cardiac examination was justified. She testified that it was standard to conduct a cardiac examination on someone who had apparently been suffering from fainting spells.

The Evidence of Dr. Sloka

3133Dr. Sloka had no independent memory of his examination of Ms. K.R. He relied upon his consultation letters for the truth of their contents and the rest of Ms. K.R.’s medical chart for context.

3134The December 30, 2011, consultation letter confirmed that Dr. Sloka took a detailed history from Ms. K.R. In taking that history, Dr. Sloka learned that Ms. K.R. had recently been suffering from headaches. In the two weeks leading up to the appointment, the headaches occurred daily. She also experienced nausea, dizziness, and facial numbness. One eye had also reportedly turned inward. She also described other unusual episodes. Dr. Sloka documented those episodes as follows:

She also tells me of unusual episodes where she becomes nauseated, has a pressure in her bowels, she becomes sweaty, looks pale, she feels hot, she has a thumping in her chest, and she falls to the ground and has tremulousness and is stiff for a while. She is completely aware during the entire episode [,] and this occurs around once or twice a week. She finds this difficult in social situations.

3135Dr. Sloka documented the performance of neurological examination and “minimal” cardiac examinations. He conducted them in accordance with his training and standard practices.

3136Dr. Sloka did not think he obtained Ms. K.R.’s heart rate and blood pressure during the examination, but his rough notes contained a blood pressure reading. He believed that Ms. K.R. had verbally reported having a previous blood pressure reading of 146/88. If he had obtained that reading in his office, it would have raised a red flag. Any reading above 140/90 is considered high.

3137Dr. Sloka maintained that he proposed these examinations to Ms. K.R. in his office. He also discussed the prospect of wearing a gown in his office. That was his standard practice.

3138Dr. Sloka testified that all gowns used in his clinic were the standard issue hospital gowns depicted in Exhibit 2. They all tied at the neck. Dr. Sloka had no independent memory of whether Ms. K.R. wore a gown or her street clothes for the examinations. He could not be sure that Ms. K.R. wore a gown, because he documented a “minimal” cardiac examination. The examinations he documented could have occurred with Ms. K.R. wearing her street clothes. Either way, Dr. Sloka denied Ms. K.R.’s claim that he directed her to wear her gown open to the front for the examination. It was his standard practice to direct patients to wear their gowns open at the back.

3139Dr. Sloka denied using an old school examination table like the one Ms. K.R. described. His clinic always used the examination table depicted in Exhibit 2. It had a metal frame and was on wheels. It did not have a black leather top and did not contain a step stool.

3140Dr. Sloka testified that, during his neurological examinations for headache patients, he palpates the back of his patients’ necks to look for tender areas that might be headache triggers. If he did not find any tender areas, he did not chart the results. No tender areas were charted for Ms. K.R.’s examination. However, Dr. Sloka obtained and charted an abnormal result during another part of Ms. K.R.’s neurological examination: he noted a mild weakness in her right arm that appeared to “give-way.”

3141Dr. Sloka also testified that his neurological examination includes a fundoscopy. His consultation letter documented this. To examine the patient’s eyes, he turns of the lights and shines an ophthalmoscope into the patient’s eyes. He denied that the room was illuminated by the shining sun. The office window was north-facing and had blinds on the windows. It was not possible for sun to shine through the windows.

3142Dr. Sloka’s justification for the neurological examination was not contested. Accordingly, he was not asked to explain it.

3143Dr. Sloka explained his justification for the minimal cardiac examination. He testified that a cardiac examination is part of his standard evaluation of a headache patient. He was not sure that her headache presentation suggested the possibility of stroke, but he stated, “I guess it’s possible.” He also considered a cardiac examination appropriate because Ms. K.R. had reported unusual episodes which included thumping in her chest, though he did not know how much of a role the chest thumping played in his decision at the time. He was not sure how seriously he would have considered stroke to be a possible explanation for these unusual episodes. As he sat in the witness stand, they did not seem as if they were stroke-like events. However, Dr. Sloka also testified that the prescription of nortriptyline justified a cardiac examination, because the drug has cardiac contraindications.

3144Dr. Sloka explained that a “minimal cardiac examination” involves the placement of the stethoscope overtop of the patient’s clothing. He testified that he performed the examination in this fashion because this was the level of Ms. K.R.’s consent. He inferred that Ms. K.R. must have either declined to put on a gown or had decided after gowning that she did not want a full cardiac examination. While not an ideal way to conduct a cardiac examination, he was prepared to prescribe nortriptyline after conducting the cardiac examination in this fashion.

3145Dr. Sloka denied palpating Ms. K.R.’s neck in search for “nodules.” Dr. Sloka also denied having Ms. K.R. lay down with her arms in the “robbery” position. The size and orientation of the examination table (against the wall) did not provide enough room for a patient to assume that position. Additionally, he denied palpating Ms. K.R.’s armpits and rib cage causing her gown to fall open on both sides. He also denied palpating her breasts.

3146Dr. Sloka also testified that the examination table would have abutted the wall opposite the door that leads to his office. With the table placed against the wall, there did not exist sufficient room for Ms. K.R. to assume the robbery position she had described in her evidence.

3147After completing Ms. K.R.’s examinations, Dr. Sloka concluded that Ms. K.R.’s headaches had a “migrainous” component. However, given some of her unusual symptoms, he ordered a brain MRI and an EEG, to investigate the unlikely prospect that Ms. K.R. had suffered seizures. He suggested follow up in a few months.

3148Ms. K.R. attended for follow-up on March 16, 2012. They discussed her test results. She had suffered side effects from using nortriptyline. He discussed with her the possibility of changing her medications but wanted the approval of her endocrinologist first. Dr. Sloka also discussed with Ms. K.R. some cardiac testing she had undergone several years earlier in Guatemala. The test results were in his chart. He reviewed and discussed those results with her. Ms. K.R. also asked Dr. Sloka about taking Ativan for her anxiety, which she had done before. Dr. Sloka documented that he thought that seemed reasonable, but suggested she speak to her family doctor, thus flagging the issue for her family doctor. In the concluding paragraph of his consultation letter, Dr. Sloka wrote, “We left follow‑up open and once the pheochromocytoma has been ruled out [by her endocrinologist] I can see her back and we can think about working on her syncopal events and headaches at that time.” Dr. Sloka testified that he did not perform any physical examinations on this date. The Crown did not suggest otherwise.

3149Ms. K.R. returned to Dr. Sloka’s office on October 17, 2012. In his consultation letter, Dr. Sloka documented Ms. K.R.’s continuing headaches. He also documented that Ms. K.R. had been experiencing periodic heart palpitations which might be tachycardia. He ordered a 48-hour Holter monitor and stated, “If it is sinus tachycardia then we are relieved.” He discussed possible medication options to address her migraines in a way that did not have further cardiac complications, but he stated that he preferred to wait until Ms. K.R. saw her endocrinologist before confirming which medications to recommend. He noted that he expected to see her in follow-up after her imminent consultation with the endocrinologist. He denied performing any examinations on this date. The Crown did not suggest otherwise.

Assessment of the Evidence and Analysis

3150The evidence of Ms. K.R. raises significant concerns about her credibility and reliability as a witness.

3151At times, Ms. K.R.’s purported to have vivid memories of facts that were either demonstrably false or inconsistently recounted.

3152For example, Ms. K.R. described Dr. Sloka’s examination table as being “old school,” having a black surface with a white paper over top. She also professed certainty that she climbed a step stool onto to get onto the table. This is the very table on which the alleged sexual assault occurred. The photographs of Dr. Sloka’s office, tendered by the crown and formally admitted by the defence, prove this memory to be demonstrably false. The table depicted in exhibit 2 is not the table of Ms. K.R.’s memory. Dr. Sloka testified that the table depicted in exhibit 2 is the only table he ever used. The crown does not contest this assertion.

3153Similarly, Ms. K.R. denied that Dr. Sloka ever performed a standard neurological examination. She maintained this denial in cross-examination, despite having her attention drawn to Dr. Sloka’s contemporaneously written consultation report in which both the examination and the abnormal finding were documented. The document was addressed to her primary care physician and the referring ER physician. I find it highly implausible that Dr. Sloka would report to Ms. K.R.’s family doctor that he had performed a neurological examination, especially one with an abnormal finding, if he did not in fact conduct that examination. On Ms. K.R.’s account, her examination quickly escalated from an innocuous neck nodule examination to a blatantly sexualized palpation of her breasts. She professed a clear memory of this sequence of events. She allowed no room for the possibility of more benign procedures, such as a standard neurological examination and a minimal cardiac examination. Her steadfast denial of these documented examinations causes me to have significant concern about her reliability. It also raises the concern that she insincerely discounted any facts that might undermine her characterization of the examination as a blatantly sexualized one.

3154In her denial of the neurological examination, Ms. K.R. made what I find to be a palpably incorrect factual assertion which she nevertheless passed off as a vivid memory. When asked if Dr. Sloka turned off the room lights to employ the ophthalmoscope during the neurological examination, Ms. K.R. denied that Dr. Sloka did so. She explained that to do so would have been futile, because the sun was shining through the window into the examination room. Objectively incontrovertible evidence proves otherwise. Dr. Sloka testified that the window in his office faced north. This evidence is uncontested and incontrovertible. The appointment occurred on December 30th. The sun could not possibly have been shining through the window and lighting up the entire room. Dr. Sloka also testified and Exhibit 2 confirmed that Dr. Sloka’s examination room had translucent blinds covering the windows. Blinds provided privacy. It makes sense that an examination room would have them. Having seen the photographs of the examination room from Exhibit 2, I accept that the window, even with blinds drawn, allowed for some ambient light to enter the examination room, but I reject Ms. K.R.’s evidence about the sun shining through the open window. Ms. K.R.’s assertion that the sun made pointless any effort to turn off the lights was demonstrably false. Ms. K.R.’s memory was either unreliable or insincerely manufactured.

3155Ms. K.R. testified that she possessed a precise memory about the sequence of events during her appointment. However, the evidence revealed that her memory of the sequences evolved and changed.

3156For example, her testimony about the timing of her trip to South America differed from what she told the police. At trial, she testified that the discussion about the trip occurred before, during, and after Dr. Sloka examined her neck in the office. However, she told the police that the neck examination occurred before any discussion of South America. She acknowledged the contradiction and ultimately agreed that she could not remember if they discussed South America before or after Dr. Sloka touched her neck.

3157Ms. K.R. also inconsistently described the sequence of the neck palpations in the examination room. At trial, she asserted that the neck palpations occurred while she sat on the examination table. In her police statement she gave two accounts regarding the neck palpation in the examination room, one that was consistent with her trial evidence and one that was not. At first, she told the police that Dr. Sloka told her to lay down and then he began to examine her neck area. Later in her police statement, she told them that he felt her neck before asking her to lay down. Ms. K.R. ultimately conceded that her memory of this sequence was unclear. She was uncertain about how many times he examined her neck, stating he could have done so between one and three times.

3158Ms. K.R.’s memory of her gown poses two problems for her credibility and reliability. First, her evidence about the gown ultimately became another instance in which she stubbornly clung to a factual assertion that was, in my view, demonstrably false. Second, her evidence about the gown was inconsistent. Initially, Ms. K.R. testified to having a poor memory of the gown she wore. She could not recall whether it was made of fabric or paper. In her police statement, though, Ms. K.R. specified that the gown had been made of paper. Ms. K.R. also did not recall whether the gown had any ties. She recalled having to hold it closed, but she could no longer hold it closed when she raised her arms in the robbery position to permit palpation of her armpits and sides. As a result, the gown fell open as Dr. Sloka palpated her ribs. In my view, the totality of evidence unquestionably established that the gowns used in Dr. Sloka’s office were cloth gowns and tied at the neck. Tammy Tebutt and Dr. Sloka both testified that the gowns depicted in Exhibit 2 were the standard issue hospital gowns supplied to Dr. Sloka’s clinic. These gowns tied at the neck. Nancy Halstead (a nurse from the stroke clinic who sometimes acted as a chaperone for Dr. Sloka’s examinations in the neurology clinic) confirmed that the hospital issued cloth gowns for use in the neurology clinic. She had never seen a patient use paper draping. When presented a photograph of the gowns from Dr. Sloka’s office, contained in Exhibit 2, Ms. K.R. rejected with certainty the possibility that either of the cloth gowns depicted were the same as the gown she had worn. She then became adamant in her assertion that her gown had no ties. Ms. K.R. has denied what I conclude to be an incontrovertible fact, and she provided inconsistent evidence regarding the gown she wore. Her deeply flawed evidence regarding her gown played a key role in her narration of the alleged sexual assault. Consequently, it profoundly undermined the reliability of Ms. K.R.’s allegation.

3159I am also troubled by Ms. K.R.’s assertion that Dr. Sloka instructed her to wear the gown open to the front. She did not make this assertion in her police statement. She explained that she had been asked by other doctors to wear a gown in this fashion. She considered it a normal way to wear the gown. It was unremarkable. However, according to her, Dr. Sloka commenced a highly sexualized examination immediately after instructing her to wear her gown open to the front. The allegedly sexualized examination was made possible because of her compliance with Dr. Sloka’s instruction. Dr. Sloka’s alleged instruction is inherently tied to the sexual intent she has subsequently and unmistakenly implied. Given the nature of Ms. K.R.’s allegation, I consider it highly implausible that she would not appreciate the importance of Dr. Sloka’s alleged instruction when speaking to the police. I therefore think it unlikely Dr. Sloka ever gave it.

3160I am also troubled by Ms. K.R.’s evidence about her body position during the alleged examination. Ms. K.R. testified that, as Dr. Sloka palpated her torso and chest, she held both her arms out perpendicular from her torso, while her arms were bent 90 degrees at the elbow. She described it as a “hands up” or “robbery” position. She also testified that one side of the examination table abutted the far wall of the examination room, as depicted in her diagram of the premises [Exhibit 91] and as depicted in Exhibit 2. The defence submits and I agree that the assumption of this position is implausible. Indeed, I conclude it extremely implausible. The examination table is 2 feet and four inches wide [see exhibit 193]. I cannot fathom how she could have assumed this position without falling of the examination table. When confronted with this issue, Ms. K.R. suggested that she was thinner at the time of the appointment, which made it easier to assume the position. I fail to see how her body weight has anything to do with her wingspan. Her failed explanation negatively affects her credibility.

3161In addition to the implausibility of Ms. K.R.’s stated arm position, Ms. K.R.’s testimony on the subject contradicts her police statement. She told the police that her arms were down at her sides when Dr. Sloka touched her. That contradictory claim was in and of itself problematic because it called into question Dr. Sloka’s ability to palpate her ribs with her arms in that position. In any event, when confronted with the obvious contradiction between her police statement and her testimony, Ms. K.R. denied there was any contradiction. She maintained that when she told the police that her arms were at her side, she meant that they were in the “robbery” position. She wrote off any apparent discrepancy as being the product of the brevity of her police interview. I reject Ms. K.R.’s evidence here. The contradiction between her police statement and her testimony was self-evident. Her failed attempt to neutralize this contradiction severely undermined her credibility.

3162Ms. K.R.’s description of the robbery position is not a peripheral detail. It forms an integral component of her description of Dr. Sloka’s movements during the allegedly sexualized examination. The assumption of this position makes possible her claim that the gown fell to the sides as Dr. Sloka palpated her ribs and chest. Without the assumption of this position, it becomes implausible that Dr. Sloka palpated her ribs in a way that caused her gown to fall. However, the size of the examination table and its position against the wall renders the assumption of the position highly implausible. This implausibility renders the entirety of her complaint implausible.

3163Ms. K.R.’s credibility was also called into question by her attempt to put some distance between her exposure to media publications about Dr. Sloka and her decision to come forward with a complaint.

3164Ms. K.R. testified that, before coming forward, she had only read one article in September of 2018. The article came from 570 News. Although she read and re-read the article, she testified that she had no interest in the nature of the allegations that other patients had made against Dr. Sloka. She also disputed the suggestion that she wanted to know whether the complaints were like her own experience. It was enough for her to know that the allegations were sexual. She testified that she could only remember reading about inadequate draping. I disbelieve this testimony. In my view, it constitutes a transparent attempt to convince the court that the complaints of others had nothing to do with her decision to come forward roughly eight years after her alleged sexual violation. Her attempts to contact CPSO and police investigators after subsequent waves of media publications tell against her professed indifference. Additionally, she acknowledged reading and re-reading the story. Further, as will be discussed momentarily, her ultimate complaint happens to mirror complaints reported by 570 News at the material time. These circumstances lead me to believe that Ms. K.R. was being dishonest when testifying she lacked interest in knowing the nature of the allegations made by other patients.

3165Ms. K.R. did not contact the CPSO until May 24, 2019. She denied reading any news stories in the weeks leading up to her May 24, 2019, call to the CPSO. Coincidentally, in the wake of the CPSO hearing on April 30, 2019, several media outlets published stories about the hearing and the consequent revocation of Dr. Sloka’s licence. She denied that recent news of Dr. Sloka’s disciplinary hearing influenced her decision to come forward. The timing of her CPSO complaint is too close to the news of Dr. Sloka’s disciplinary hearing to be coincidental. I conclude that Ms. K.R. dishonestly attempted to disavow any connection between news of Dr. Sloka’s disciplinary hearing and her decision to contact the CPSO.

3166Ms. K.R. contacted the police on September 27, 2019, a mere three days after news of Dr. Sloka’s arrest broke. News publications of the arrest encouraged others to come forward. Nevertheless, Ms. K.R. denied that news of Dr. Sloka’s arrest prompted her to come forward. Indeed, she denied reading news of Dr. Sloka’s arrest before contacting the police. She had not read any news about Dr. Sloka since reading the one article in September of 2018. Once again, the timing of her decision to contact the police is too close to news of Dr. Sloka’s arrest to be coincidental. I conclude that Ms. K.R. dishonestly attempted to disavow any connection between news of Dr. Sloka’s arrest and her decision to contact the police.

3167Ms. K.R.’s participation in her mother’s treatment by Dr. Sloka also raises concern. I appreciate that delayed disclosure, standing alone, cannot provide a basis for the rejection of a sexual assault complainant’s evidence. However, additional circumstances provide a compelling basis for concluding that Ms. K.R. delayed making a complaint because she had nothing to complain about. Ms. K.R.’s mother had obtained a referral to Dr. Sloka when she first learned that Dr. Sloka was facing allegations of sexual impropriety in September of 2018. Her mother appeared concerned and asked if she should continue to see Dr. Sloka. According to Ms. K.R.’s she always believed Dr. Sloka’s examination was “out of line.” She also acknowledged that what she described in court was a blatantly sexualized examination. Nevertheless, instead of telling her mother about her own experience and dissuading her mother from seeing Dr. Sloka, she encouraged her mother to continue under his care. I find it highly implausible that she would encourage her mother to continue under Dr. Sloka’s care if she believed that Dr. Sloka had sexually assaulted her. Despite encouraging her mother to continue under Dr. Sloka’s care, Ms. K.R. purportedly began to look for another neurologist after her mother’s first appointment with Dr. Sloka. However, her efforts were perfunctory. She claimed that she did not continue to pursue another neurologist, because she assumed that it would take a year for her to get into see another neurologist. I disbelieve that evidence. In my view, it constitutes an insincere attempt to explain her endorsement of a neurologist whom she subsequently claimed had sexually assaulted her.

3168While the Crown concedes that the court may be left in a reasonable doubt by the evidence of Ms. K.R., they rely upon the absence of any motive to fabricate and the presence of cross-count similar fact evidence to support Ms. K.R.’s flawed testimony.

3169In my view, the evidence does not establish the absence of a motive to fabricate. The Crown’s submission lacks any force because of the presence of compelling evidence that Ms. K.R.’s purported perceptions and memories have been influenced by what she read in the news. As mentioned, Ms. K.R. read a news article from 570 News in September of 2018. She read the entire article and then re-read it. Around this time, her mother also sent her a link to an article from 570 News. It is unclear whether it was the same one or a different one. In any event, the Joint Media Brief (Exhibit 8) contains an article from 570 News published around that time. Defence counsel presented this article to Ms. K.R. She could not confirm it was the one she read. Nevertheless, this article includes allegations that mirror Ms. K.R.’s, including allegations that Dr. Sloka examined patients while naked or with inadequate draping, exposed and touched patients’ breasts, and touched patients sexually. Ms. K.R. initially stayed silent and did not warn her mother about Dr. Sloka but instead encouraged her to see him. If her allegations are true, her silence was a conscious and abject betrayal of her mother. I find that highly implausible. Then, in lockstep with subsequent waves of media coverage, Ms. K.R. came forward, first to the CPSO and subsequently to the police. The totality of the circumstances suggests that exposure to media coverage motivated Ms. K.R.’s complaint and that the content of her complaint was influenced by what she read in the news. Given my other concerns about Ms. K.R.’s credibility, I harbour concerns that Ms. K.R. has chosen to mimic what she read rather than report what actually occurred. She found additional motivation to participate in the prosecution after learning that her daughter had been sexually assaulted.

3170I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting examinations on any given patient in this case. However, Dr. Sloka provided cogent and compelling evidence regarding the examinations performed and his motivation for them. His contemporaneous documentation of only a “minimal” cardiac examination supports the conclusion that Ms. K.R.’s chest was never exposed and the resulting conclusion that Dr. Sloka never palpated her breasts. After considering the entirety of the evidence, I conclude that Dr. Sloka refuted any possible inference of a sexual purpose.

3171The Crown also relies upon three discrete cross-count similarities to support the evidence of Ms. K.R. on other material issues. First, the Crown contends that Ms. K.R.’s belongs to a group of patients who alleged that Dr. Sloka instructed them to wear their gowns open at the front. Second, the Crown submits that Ms. K.R. belongs to a group of patients whom Dr. Sloka brought into the examination room without informing them of the examinations he intended to perform. Third, the Crown contends that Ms. K.R. belongs to a group of patients who alleged that Dr. Sloka did not explain his reasons for some examinations. For the reasons that follow, I do not find any of these cross-count similarities to be sufficiently probative.

3172I begin with the “gown open to the front” similarity. Ms. K.R.’s evidence regarding her gown was too frail to be rehabilitated by the evidence of the other witnesses in this similar fact cohort. Ms. K.R. did not tell the police about being instructed to wear the gown open at the front. This is an important material omission, given the importance of that fact to her narration of the events. Additionally, she initially told the police that her gown was made of paper, before becoming unsure. She could not remember whether it had ties at the neck. At trial, she remained unsure about whether it was made of paper or cloth. She was also initially unsure about whether it had ties. However, when confronted with photographs of the cloth gowns used at Dr. Sloka’s clinic, she denied that she wore either of the gowns depicted and insisted that her gown did not have ties at the neck. Be that as it may, I am confident that the evidence indisputably establishes that Dr. Sloka’s clinic used only the standard issue cloth gowns depicted in Exhibit 2. These gowns have ties at the neck. Given the frailties of Ms. K.R.’s evidence about the gown, I am not satisfied that she belongs to this cohort of similar fact witnesses. Furthermore, this cohort of similar fact witnesses constitutes a minority of the complainants in this case. In my view, membership in this cohort is more likely the product of coincidence than any situation specific propensity of Dr. Sloka. This category of similar fact evidence lacks sufficient probative value.

3173I now turn to the next cross-count cohort, those who did not know why they were going into the examination room. In my view, Ms. K.R. does not belong in this cohort. As I understand her evidence, Dr. Sloka told her that he wanted her to go into the examination room to continue to palpate nodes. On her evidence Dr. Sloka provided an explanation. Also, Ms. K.R.’s memory about her examinations was extremely poor. She denied any neurological examination. I disbelieve that denial, because Dr. Sloka contemporaneously documented performing one in his consultation letter. Also, her basis for denying a fundoscopy (a room fully illuminated by sunlight) was demonstrably false. Interestingly, despite adamantly denying a neurological examination, she allowed for the possibility of a “minimal” cardiac examination. Resort to “minimal” cardiac examination implies that Ms. K.R. never provided consent to expose her chest. On her evidence, her chest was fully exposed, making a complete cardiac examination possible. Nevertheless, Dr. Sloka contemporaneously documented a “minimal” cardiac examination in his consultation letter, which was written for the benefit of Ms. K.R.’s other doctors. In short, Ms. K.R.’s evidence regarding the nature of the examinations conducted was extremely unreliable. When considered in conjunction with her generally foggy memory, it follows that Ms. K.R.’s evidence regarding the information provided to her is also extremely unreliable. I would also add that the Crown includes many patients in this similar fact cohort that simply do not belong in it. As noted in the assessment of the evidence of those other patients, cross-examination revealed that many conceded receiving explanations about the examinations proposed and the reasons for them. Others conceded that they simply did not remember what Dr. Sloka said. Lastly, having permitted cross-count similar fact evidence to support an inference of a sexual motive, I see no other material issue for which this cross-count cohort offers probative value. This similar fact category offers no support for Ms. K.R.’s fundamentally flawed evidence on any remaining material issue.

3174The third category of cross-count similar fact evidence is related to the second. The Crown contends that Ms. K.R. belongs to a group of witnesses who claim that Dr. Sloka failed to explain the justification for some examinations. In Ms. K.R.’s case, she testified that Dr. Sloka failed to explain why he was looking for nodules and why he was palpating her breasts. In my view, this cross-count similarity is only probative of a possible sexual intent. I have already permitted cross-count similar fact evidence in support of the inference of Dr. Sloka’s consent. This specific similarity therefore has trifling value. Further, Ms. K.R.’s membership in this cohort is contingent on the court concluding that Dr. Sloka palpated for nodules and palpated Ms. K.R.’s breasts. Given Dr. Sloka’s sworn denial and Ms. K.R.’s manifest unreliability, I reject her evidence that these things occurred. There was therefore nothing to explain. This cross-count cohort offers no assistance to Ms. K.R.’s flawed evidence.

3175I turn now to an assessment of Dr. Bril’s evidence concerning Ms. K.R.

3176In my view Dr. Bril’s evidence offers no support for the Crown’s case on Ms. K.R., because Dr. Sloka conceded that the palpation described by Ms. K.R. was not warranted. Dr. Sloka denied the examination described by Ms. K.R.

3177Further, Dr. Bril agreed that it was medically reasonable for Dr. Sloka to palpate Ms. K.R.’s neck at the base of the skull to look for headache triggers. This is what Dr. Sloka testified he did. He denied looking for “nodules.” In my view, I think it likely that Ms. K.R. misremembered this palpation for headache triggers. She was under the care of a family doctor and an endocrinologist during this period in her life. I think it plausible she has conflated examinations by other doctors with Dr. Sloka’s examination.

3178I turn now to an assessment of Dr. Sloka’s evidence.

3179In my view, the contemporaneous documentation of a neurological examination and a “minimal cardiac examination” provides compelling evidence that these things occurred. I find it highly implausible that Dr. Sloka would have documented these examinations on the day they occurred if they did not actually occur. The Crown does not suggest he falsified his consultation letter. Instead, they challenge its reliability. They do so without challenging his assertion that he dictated his consultation letters in the immediate aftermath of his appointments. I think it highly implausible he would mistakenly document these two examinations in the immediate aftermath of Ms. K.R.’s appointment. It is far more plausible that he dictated these things because they occurred, particularly given Dr. Sloka’s cogent reasons for conducting these examinations.

3180Dr. Sloka was not asked by any party to justify his standard neurological examination. Also, Dr. Bril took no issue with it. Elsewhere in Dr. Sloka’s evidence he testified that, with rare exception, he conducted his standard neurological examination at every patient’s first appointment. Also, in Ms. K.R.’s case, he documented abnormal results, which decreases the likelihood that he accidentally triggered his dictation template for neurological examinations. In cross-examination, the Crown never questioned the veracity of Dr. Sloka’s claim about performing this examination. Given the frailties of Ms. K.R.’s evidence, I have no reason to disbelieve that Dr. Sloka performed it, and I have no reason to believe it was not justified.

3181Dr. Sloka also provided a cogent and compelling justification for conducting a cardiac examination. Dr. Bril agreed that a cardiac examination was warranted.

3182Dr. Sloka explained that his “minimal” cardiac examination involves listening to a patient’s heart from outside their clothing. He did not consider it ideal, but he inferred that Ms. K.R. had confined her consent to this method. I find it highly unlikely that Dr. Sloka at some juncture exposed and palpated Ms. K.R.’s breasts if she only provided consent to a “minimal” cardiac examination. Accordingly, I accept Dr. Sloka’s denial that he ever exposed and fondled Ms. K.R.’s breasts. For the same reason, I accept his denial of the palpation of Ms. K.R.’s armpits and ribs, which she claimed resulted in the exposure of her breasts.

3183The Crown argues that Dr. Sloka’s evidence ought to be rejected for several reasons. I found none of those reasons compelling.

3184First, the Crown contends that, because Dr. Sloka had no memory of Ms. K.R.’s examinations, he could not deny performing the one Ms. K.R. alleged. As I have said elsewhere, this submission reverses the burden of proof. Moreover, Dr. Sloka had a basis for his denial. He documented different examinations than the one alleged by Ms. K.R. He had rational justifications for performing the examinations he documented. There existed no rational justification for what Ms. K.R. alleged. Also, Dr. Sloka obviously and implicitly denied any sexual purpose. His denial was not a guess.

3185Second, the Crown contends that, because Dr. Sloka did typically chart breast examinations, the absence of any documentation of a breast examination could not support his denial of performing one. This argument rests upon the premise that Ms. K.R. alleged a breast examination. She did not. She testified that what she described was a blatantly sexualized examination. She never testified that Dr. Sloka proposed a breast examination. Those words were never uttered by Dr. Sloka. Importantly, the Crown never suggested to Dr. Sloka in cross-examination that he conducted a breast examination. They suggested to him that he “palpated, pressed, and moved her breasts.” The notion of a breast examination was never tabled for discussion. Further, the Crown seeks to invalidate Dr. Sloka’s denial because he has no memory of Ms. K.R.’s examinations. As already noted, the Crown reverses the burden of proof. That reversal is aggravated by the Crown’s failure to ever suggest to Dr. Sloka that he performed a breast examination. Fundamental fairness demands more.

3186In my view, Dr. Sloka’s evidence withstood cross-examination unscathed.

3187Having considered all the evidence, I reject Ms. K.R.’s evidence where it conflicts with the evidence of Dr. Sloka. In doing so, I reject her evidence regarding the palpation of her armpits, torso, and bare breasts. I accept that Dr. Sloka proposed and obtained consent for a neurological examination and a minimal examination. I accept that he had sound medical motives for conducting these examinations. I also accept that he performed these examinations in accordance with his training and standard methods. Further, I accept his denial of Ms. K.R.’s allegations. Accordingly, I conclude that Ms. K.R. received a medical examination, to which she provided her expressed consent. There was no sexual assault.

3188Dr. Sloka will be acquitted on this count.

x. A.R.-U. (Count 25)

A Summary of Ms. A.R.-U.’s Complaint and Dr. Sloka’s Response to It

3189Ms. A.R.-U. alleged that Dr. Sloka performed a breast examination during which he exposed and touched her breasts.

3190Dr. Sloka testified that he performed a neurological and modified cardiac examination, in accordance with Ms. A.R.-U.’s consent. Dr. Sloka admitted proposing a breast examination but denied performing one because Ms. A.R.-U. did not consent to one. However, with her consent, he palpated her left axillary region (armpit) to investigate a complaint of pain and tingling there.

The Circumstances of Ms. A.R.-U.’s Referral and Treatment History

3191Ms. A.R.-U. was 30 years old when she became Dr. Sloka’s patient.

3192She attended the ER at GRH in May of 2016 after she experienced numbness and a loss of mobility in the left side of her body. She also experienced headaches accompanied by an odd visual sensation of black light with sparkling.

3193The ER admitted her, and she remained in the hospital for two days. As Ms. A.R.-U. recalled it, one doctor suspected that she had suffered TIA’s [transient ischemic attacks – essentially mini-strokes] and another suspected that she had experienced a complex migraine, even though she had never experienced a migraine before.

3194Ms. A.R.-U. had a blurry memory of the doctors who treated her in hospital and the nature of their specialties. She did not recall the tests performed. In particular, she did not recall receiving an MRI, nor did she recall the MRI revealing no evidence of stroke [which would include TIA’s]. She thought Dr. Sloka had ordered the MRI.

3195The hospital medical records indicate that Dr. Saxena, an internal medicine specialist, diagnosed Ms. A.R.-U. as suffering from a hemiplegic migraine [complex migraine] and wished to order further testing to rule out TIA’s. Ms. A.R.-U. did not recall any doctor arriving at a definitive diagnosis. Although Dr. Saxena charted having a detailed discussion with Ms. A.R.-U. about his diagnosis, she did not recall a detailed discussion: “When it was time to discharge me, they popped in, threw a bunch of information at me, said I would be followed-up with the neurologist, and I was good to go.” Ms. A.R.-U. did not recall the doctor telling her that her symptoms were “classic” complex migraine symptoms and that the condition was benign.

3196Upon discharge, a doctor referred her to Dr. Sloka’s Urgent Neurology Clinic for further consultation and investigation. Ms. A.R.-U. believed that an ER physician, not an internal medicine specialist, had made the referral, but agreed during cross-examination that the referral had been made by an internal medicine specialist.

The Evidence of Ms. A.R.-U.

3197Ms. A.R.-U. was 35 years old when she testified.

3198While Ms. A.R.-U. had thought she had attended Dr. Sloka’s office for about 15-20 appointments, she only attended for nine visits. The first visit occurred on August 10, 2016. Her last visit occurred on February 23, 2019. Ms. A.R.-U. alleged that Dr. Sloka sexually assaulted her on the very first visit.

3199Ms. A.R.-U. testified that she received a breast examination on her first visit. At the time, she believed this examination to be medically appropriate. She later came to believe that this breast examination was medically unnecessary and constituted a sexual assault.

3200Ms. A.R.-U.’s husband drove her to her first appointment and dropped her off at the Kaufman building. She went inside alone.

3201The consultation began in Dr. Sloka’s office, where he took a detailed medical history from Ms. A.R.-U. Ms. A.R.-U. agreed that the medical history recorded in Dr. Sloka’s consultation report was accurate. Dr. Sloka recorded that she had experienced an episode in May, in which she had black spots in her vision, followed by a blinding light, then a black blob in her vision on the left eye, accompanied by sparking lights. She then developed a right-sided, occipital throbbing headache with photophobia. She also reported weakness and numbness on the whole left side of her body. These symptoms prompted her to attend the ER.

3202The consultation report listed the tests performed on her during her admission. Until reviewing the report once again during cross-examination, she had forgotten that she had undergone an MRI during her earlier stay in the hospital. Despite her lack of memory, she agreed that these tests had occurred. She assumed Dr. Sloka would have discussed the results with her. Dr. Sloka recorded that all the tests [which were performed to investigate the possibility of TIA’s or stroke] were “reassuring” – which I take to be doctor-speak for “negative.”

3203By the time of her appointment with Dr. Sloka, Ms. A.R.-U. had not suffered another episode, but she had also not returned back to normal. The second paragraph of Dr. Sloka’s consultation report accurately recorded Ms. A.R.-U.’s condition on the date of the appointment: residual difficulties on the left side of her body; unable to raise her left eyebrow as well as previously; and a shaky left leg.

3204Ms. A.R.-U. agreed that Dr. Sloka asked her several screening questions about her health to gather further information. In particular, she did not dispute that he may have asked questions about chest pain, joint problems, skin problems.

3205Although her symptoms had subsided somewhat since the ER visit, she still suffered from some residual symptoms. The second paragraph of Dr. Sloka’s consultation report accurately summarized those residual symptoms, which included pain in her left arm and armpit area. Ms. A.R.-U. took pains in her evidence, though, to describe the armpit pain as being near, but not in the armpit. She was aware of the connection between lymph node lumps in the armpit and breast cancer. She resisted the suggestion that she had reported feeling pain “inside” the armpit. However, in her statement to the police, when describing her left arm pain, she noted that it was present “especially in my armpit [emphasis added].”

3206Ms. A.R.-U. testified that breast cancer was a big issue in her family. She had a close relationship with her mother and sisters. These family members have the genetic marker that corresponds to an increased risk for breast cancer. And she and her family members all have cystic breasts, which was also a concern. As a result, Ms. A.R.-U. testified that “we all have to be very careful of the lumps that develop in our breasts.” However, Ms. A.R.-U. testified that, despite being a 30-year-old woman, she was unaware of these concerns at the time of her appointment with Dr. Sloka. On the contrary, she testified that she only became aware of these concerns during a phone call she placed with her mother immediately following her appointment with Dr. Sloka. Ms. A.R.-U. denied that she possessed any concern about breast cancer during her appointment with Dr. Sloka. On her evidence, she had no concern about her breasts.

3207By remarkable coincidence, Dr. Sloka reported in his consultation letter, “She did tell me that she had some concern regarding breast cancer and a tingling sensation in her left axillary region….” Ms. A.R.-U. denied expressing this breast cancer concern.

3208Ms. A.R.-U. denied reporting tingling inside her armpit. She did allow, though, that she might have reported tingling near her armpit, what she described as the “shoulder armpit area”, and that this tingling progressed down her left arm. She also denied that she was concerned about this tingling being related to breast cancer.

3209Contrary to her testimony in court, Ms. A.R.-U. indicated in her police interview that she did report pain inside her armpit. The interaction with the police went as follows:

Q. So, while you’re discussing your medical issues and you’re talking about your left sided pain, how does things transition to a breast exam?

A. He was just asking like where I was feeling things. Like… when your body goes numb, do you have pain elsewhere? I said yes, in my arm like especially in my armpit.”

3210To explain the contradiction between her police statement and her testimony on this point, Ms. A.R.-U. stated, rather unconvincingly, “I think I was generalizing the area for the detective.” She further explained, “I don’t know how accurate that statement is, because I was recapping things for the detective; but I believe I was talking generally about that area.”

3211As for whether Dr. Sloka inquired about the presence of lumps or tingling inside her armpit, Ms. A.R.-U. did not think Dr. Sloka specifically inquired, but, in the end, she could not dispute it.

3212To Ms. A.R.-U.’s recollection, Dr. Sloka introduced the topic of breast lumps without her ever raising a longstanding family concern about breast cancer. On her evidence, Dr. Sloka broached the topic when exploring the causes of her left sided numbness and tingling.

3213According to Ms. Ms. A.R.-U., Dr. Sloka told her that a lump could be pressing on a nerve and causing the tingling she was experiencing in her left arm. Accordingly, Dr. Sloka suggested that it would be advisable for a trained doctor to perform a breast examination. Ms. A.R.-U. testified that she initially declined the breast examination. In her police statement, though, she never suggested that she initially declined. Instead, she told police that she asked if the examination was really necessary. She explained at trial that when a woman asks if something is necessary, a woman is saying no.

3214Ms. A.R.-U. also testified that Dr. Sloka pressured or pushed her to have the breast exam, despite her refusal. In essence, she testified that she capitulated to this pressure. However, in her statement to the police she said that she “didn’t feel like he was saying ‘you have to do this,’” but rather that he thought it was a good idea, “just to be safe;” she added that he was “not pushing it on me per se.”

3215Whether pressured or not, Ms. A.R.-U. agreed to the breast examination.

3216Ms. A.R.-U. also recalled Dr. Sloka suggesting some other tests, like examining her gait, testing her reflexes, and performing some grip and strength tests. More generally, she agreed that Dr. Sloka proposed conducting a neurological examination, to see if there were any clues from her nervous system that would explain why she was experiencing her symptoms. I cannot tell from her evidence whether the discussion of these tests occurred before or after the discussion of a breast examination. In any event, she agreed to those examinations too.

3217Ms. A.R.-U. did not recall Dr. Sloka discussing her heart or proposing a cardiac examination. However, she was not prepared to dispute the possibility.

3218According to Ms. A.R.-U., some of the other proposed tests were performed in the office, before she ever went into the examination room. In her evidence in-chief, she recalled the possibility of Dr. Sloka doing one examination in his office, a hand-strength test, before she proceeded to the examination room. In cross-examination, she suggested more examinations occurred in the office. By the end of cross-examination, she testified that Dr. Sloka performed the small components of the neurological examination in the office, and that he performed the big things in the examination room. She recalled in cross-examination, for example, Dr. Sloka shining a light in her eyes while she was situated in the office. She could not recall whether this occurred on the first appointment or on another one. She professed to have a visual memory of looking at the bookshelf behind Dr. Sloka as he shone the light.

3219Ms. A.R.-U.’s evidence does not clearly describe how Dr. Sloka transitioned from proposing examinations, to conducting small in-office examinations, and to taking Ms. A.R.-U. into the examination room.

3220Ms. A.R.-U. recalled, though, that at some juncture, Dr. Sloka told her that a physical examination would occur in the neighbouring examination room. Enroute to the examination room, Dr. Sloka told her that she would need to remove all her clothing except her underwear. When they arrived in the examination room, he provided her a gown. He then left and allowed her to change in private.

3221According to Ms. A.R.-U., when Dr. Sloka returned to the examination room, she was sitting on the examination table with her legs over the side. He asked her if she was ready. She told him, “Yes.” He then asked her to lay down on the table; so, she lay down. He then told her that she needed to undo the gown; so, she unfastened her gown. He then pulled the gown down to her waist, exposing her breasts. According to Ms. A.R.-U., Dr. Sloka stared very intently back and forth between her two breasts. He then started touching in her left armpit area [near it, but not inside of it] with his fingers, while her arms remained at her sides. Ms. A.R.-U. testified that Dr. Sloka moved his fingers in a circular motion and progressed from the armpit area [again, she stressed that he touched near, but not inside of it] to examine all around her left breast. In doing so, his fingers touched the areola of her nipples. He performed a similar examination on her right breast, once again beginning near, but not inside of her armpit. After examining her right breast, he repeated the whole breast exam but had her raise her arms for the second round. Ms. A.R.-U. testified that, at the time, she assumed that the breast examination was legitimate. When Dr. Sloka told her that he did not find anything, she was relieved.

3222Dr. Sloka’s consultation report indicated that, “she did tell me that she had concern regarding breast cancer and a tingling sensation in the left axillary [armpit] region and we did not examine her breasts today although she might ask her family physician to do this with her. She seemed modest today.” The consultation report was addressed to her family physician, explicitly suggesting that the family physician consider performing a breast examination that Dr. Sloka had deferred. Despite what was written in the report, Ms. A.R.-U. maintained that Dr. Sloka actually performed a full breast examination, in which he placed his fingers near but not inside of her armpits. She firmly rejected the suggestion by defence counsel, and the claim made in Dr. Sloka’s consultation report, that Dr. Sloka did not do a breast examination but instead only felt the lymph nodes within her armpits to investigate the pain she claimed to feel in that area.

3223According to Ms. A.R.-U., when Dr. Sloka finished the breast examination, he told her to put her gown back on and sit up. Once she had done so, he felt her legs. He then reached back and examined the alignment of her spine by palpating her vertebrae. Ms. A.R.-U. also recalled Dr. Sloka running the handle of the reflex hammer along the bottom of her feet. She next recalled him asking her to walk back and forth across the room. Ms. A.R.-U. testified that Dr. Sloka then tested her grip and afterwards performed strength tests on her outstretched arms. Dr. Sloka then tested her knee reflexes using a reflex hammer.

3224The defence suggested to Ms. A.R.-U. that Dr. Sloka performed various standard neurological and cardiac examinations. She was prepared to agree that Dr. Sloka performed a small number of the components of his standard neurological examination. She was also prepared to accept that she may have forgotten others that did in fact occur. She also suggested that any of the “smaller” investigations that might have occurred actually occurred in the office, not the examination room. She specifically recalled Dr. Sloka performing the hand-strength test in the office, before she entered the examination room. On her evidence, this test was repeated inside the examination room. She testified that only the “larger” procedures occurred in the examination room.

3225When Ms. A.R.-U. gave her police statement, she told the police that Dr. Sloka did not utilize any instruments to conduct his examinations; he only utilized his hands. By the time she testified, having had the benefit of a review of her medical records, Ms. A.R.-U. described Dr. Sloka using an ophthalmoscope, a reflex hammer, and the metal end of the reflex hammer during his examinations.

3226However, Ms. A.R.-U. rejected the suggestion that Dr. Sloka performed any examination with a stethoscope. More specifically, she disputed the claim, reported in Dr. Sloka’s consultation report, that Dr. Sloka performed a “limited” cardiac examination by sliding the stethoscope under her gown to listen to her heart without exposing her breasts. She also rejected the suggestion that Dr. Sloka employed a tuning fork during her examination.

3227Ms. A.R.-U. also disputed the suggestion that Dr. Sloka performed strength tests on her lower extremities. Having subsequently undergone neurological testing, Ms. A.R.-U. knew of the type of exams being suggested by the defence. She was cognizant of the implication that she was painting Dr. Sloka’s examination as being deficient in many ways. However, she disputed the suggestion that she was intentionally attempting to make Dr. Sloka appear incompetent.

3228Once the examination ended, Dr. Sloka told Ms. A.R.-U. that she could get dressed and join him back in the office. Ms. A.R.-U. then changed in private before returning to the office.

3229According to Ms. A.R.-U., when she rejoined Dr. Sloka in the office, they spoke further. She recalled Dr. Sloka telling her that he wanted to order an MRI. Ms. A.R.-U. denied that Dr. Sloka told her that her heart sounds were normal. She also disagreed that Dr. Sloka discussed the irritation that she felt inside her armpit. Although, during her evidence in chief, Ms. A.R.-U. testified that Dr. Sloka did not provide a diagnosis, she agreed during cross-examination that Dr. Sloka told her that her symptoms were consistent with a complex migraine, with the exception that her symptoms were prolonged. She also agreed that he told her she did not have a stroke; her symptoms were not consistent with TIA’s, because her symptoms came and went. Ms. A.R.-U. initially testified that Dr. Sloka ordered more tests; however, after a review of the medical records during cross-examination, she agreed that the ER had already ordered all the pertinent tests, and she had already undergone those tests. Ms. A.R.-U. nevertheless testified that Dr. Sloka said he wanted to see her again in 3 months. She did not agree with the suggestion that Dr. Sloka left follow up open. However, she could not explain why or how the next appointment did not occur for another 8 months.

3230On Ms. A.R.-U.’s account, after departing the appointment, she waited outside of the building for her husband to pick her up. While waiting, she claimed to have phoned her mother. Ms. A.R.-U., her mother, and her sisters were close. She alleged that she told her mother about the breast examination. On Ms. A.R.-U.’s account, her mother was glad she received a breast examination and that the results were negative. The Crown chose not to call Ms. A.R.-U.’s mother to support Ms. A.R.-U.’s evidence regarding this conversation. According to Ms. A.R.-U., her mother encouraged her to speak to her sisters too, because her sisters had genetic markers that indicated a high risk of breast cancer. Ms. A.R.-U. purportedly engaged in a group text chat with her mother and sisters while waiting for her husband. Ms. A.R.-U. testified that she mentioned the breast examination to her sisters in this text chat. The Crown did not introduce the text chat, nor did it call the sisters to support this claim.

3231Ms. A.R.-U. testified that she also told her husband of the breast examination when he picked her up following the appointment. She spoke to her husband again about the breast examination within the next day or two, while she performed another self-examination at home. The Crown chose against calling Ms. A.R.-U.’s husband, too.

3232The defence suggested to Ms. A.R.-U. that the police made repeated attempts in the summer of 2020 to get the contact information for Ms. A.R.-U.’s husband, mother, sisters, family doctor, and new neurologist. Ms. A.R.-U. professed to be unaware of those attempts.

3233Ms. A.R.-U. testified that as she continued to see Dr. Sloka, he began to make what she considered to be inappropriate comments and inquiries. In particular, she claimed that, at around the 2nd or 3rd appointment, she discussed with Dr. Sloka that she was experiencing personality changes. She was experiencing anger, frustration, impatience, and a decreased libido. She told Dr. Sloka that her husband and family members had noticed these issues. Dr. Sloka asked whether her left sided numbness had extended to her pelvic region and vagina. She informed him that they had not. The questions about her sex drive and genital numbness did not concern her; she understood that he was exploring a potential cause of her decreased sex drive.

3234With each follow up appointment, Dr. Sloka discussed Ms. A.R.-U.’s personality changes and asked about any changes or developments. According to Ms. A.R.-U. Dr. Sloka also asked her if her marriage was okay, if sex with her husband was good, and whether her husband could stimulate her. In-chief, she testified that these questions occurred at a number of appointments – “a lot.” It should be noted, though, that Ms. A.R.-U. was unable to independently recall the alleged inquiries into her husband’s ability to stimulate her. The Crown relied upon excerpts from Ms. A.R.-U.’s police interview to refresh Ms. A.R.-U.’s memory on this point. When asked about her failure to recall the allegedly salacious questions, Ms. A.R.-U. testified that she had not in fact forgotten them but, instead, “didn’t think it was important to mention [them] at that time.” That answer was belied by the evidence she gave in chief, where, when asked about such discomforting inquiries, she said, “I don’t recall. I’m sorry. I would probably say no.”

3235In cross-examination, Ms. A.R.-U. agreed that she had a different reason for bringing her husband to appointments. She testified that she also brought her husband to appointments because she had trouble understanding medical terminology and needed her husband’s help in understanding and remembering what was discussed at appointments.

3236In cross-examination, the defence put Ms. A.R.-U.’s claims of multiple sexualized discussions under scrutiny. She was asked to review Dr. Sloka’s reporting letters to confirm when the practice monitor began monitoring her appointments. She agreed that the inappropriate comments did not occur when the practice monitor was present. She was also asked to review Dr. Sloka’s reporting letters to confirm when her husband started attending at appointments. She agreed the inappropriate comments did not occur with him present. After a review of the records, Ms. A.R.-U. agreed that Dr. Sloka’s inquiries into her libido only occurred on one visit. Ms. A.R.-U.’s suggestion that Dr. Sloka made inappropriate sexual comments and inquiries on successive visits did not stand up to scrutiny.

3237Ms. A.R.-U. had a negative perception of Dr. Sloka’s interest in her care, one which seemed at odds with other aspects of her evidence, which I will now discuss.

3238Ms. A.R.-U. saw Dr. Sloka a total of nine times from August 10, 2016, to February 13, 2019. Then, on March 25, 2019, Dr. Sloka wrote to Ms. A.R.-U. to advise her that he was retiring, and that she should meet with her family doctor to review pending test results and obtain a referral for a new neurologist. Ms. A.R.-U. ultimately sought and obtained a new neurologist.

3239Over the course of Ms. A.R.-U.’s treatment by Dr. Sloka, she continued to experience left sided numbness and weakness, personality changes, and memory issues. Following her fifth appointment, Dr. Sloka referred her to a rheumatologist, Dr. Suhail, on October 6, 2017, to assess whether a rheumatological condition might lay behind her symptoms. Dr. Suhail subsequently addressed a consultation report to Dr. Sloka to confirm that she did not suffer from a rheumatological condition. During her period under Dr. Sloka’s care, Ms. A.R.-U. had also received a referral to an internal medicine specialist, Dr. Danescu. Dr. Sloka repeatedly ordered various tests, including MRI’s blood work, EMG studies, and a tilt-table test. Dr. Sloka shared his consultation reports with Ms. A.R.-U.’s family doctors and Dr. Danescu. Dr. Danescu wrote to Dr. Sloka to advise of his assessment that Ms. A.R.-U. had POTS. Following this diagnosis, Dr. Sloka ordered and performed a tilt-table test. Ms. A.R.-U. agreed that Dr. Sloka ordered many tests for her. She agreed that he reviewed imaging results with her. She agreed that he used textbooks and diagrams to explain medical concepts. She agreed that he drew diagrams to help her understand her medical issues. This treatment history should be kept in mind when considering Ms. A.R.-U.’s perception of Dr. Sloka.

3240Ms. A.R.-U. testified that, after about a year, Dr. Sloka became dismissive and unhelpful. She testified that he made her feel like a jerk and a drain on the healthcare system. She felt like he was not truly trying to determine the cause of her condition. She thought that Dr. Sloka felt that she was wasting his time. It was her perception that she had to practically beg Dr. Sloka to order tests.

3241Ms. A.R.-U. testified that she believed Dr. Sloka sabotaged her tilt-table test, because he viewed it as a waste of time. She believed that Dr. Sloka was upset that he was not the doctor who came up with the POTS diagnosis. The testing report revealed, though, that Dr. Sloka repeated the tilt-table test after receiving negative results on the first test. He obtained a positive test result after performing the test a second time.

3242Ms. A.R.-U. disagreed with the suggestion that her perception of Dr. Sloka may have been skewed by the personality changes she had been experiencing during the timeframe of her treatment.

3243Ms. A.R.-U. was still a patient of Dr. Sloka when she first learned that Dr. Sloka was facing allegations of sexual abuse.

3244She testified that she saw a practice notice in Dr. Sloka’s waiting room during an appointment on October 4, 2017 – her fifth appointment. By this appointment, she had been in Dr. Sloka’s care a little over a year. On her evidence, by this point in time, she had come to view Dr. Sloka as disinterested in her care, and she felt she had to practically beg him to order testing. The notice indicated that Dr. Sloka was not allowed to see patients without a practice monitor. She freaked out. She said that she believed that maybe should not trust Dr. Sloka anymore. The CPSO website address was included on the practice notice. However, Ms. A.R.-U. denied looking up Dr. Sloka’s case on the website. She testified that she was unable to get cell-phone service in the waiting room. Her evidence on this point was contradicted by her police statement. She said the following in her police statement:

I was sitting in the waiting room and there was this piece of paper saying that [he] was no longer allowed to be alone with patients. And I’m like what is that? So, then I looked it up and I was like oh, that’s – that’s kind of bad, you know. So, I was like all right, that’s fine. And then we met. He introduced me to Tammy and he’s like she’ll be sitting with me for now.

3245Ms. A.R.-U. denied that this passage from her police statement contradicted her testimony. She suggested that the passage could be interpreted as indicating that she subsequently performed the search. She also testified in cross-examination that she texted a photo of the practice notice to her husband. When defence pointed out that texting wouldn’t be possible in a dead zone, she testified that she assumed that the text message did not get delivered while she was sitting in the waiting room. Ultimately, she allowed that could not recall whether she searched Dr. Sloka on the CPSO website from inside the waiting room. Nevertheless, she testified “I’m going to lean towards I didn’t.”

3246Ms. A.R.-U. testified that she and her husband researched the allegations online after returning home from her October 4th appointment. She purportedly read that Dr. Sloka was accused of touching a woman’s vagina. The CPSO allegations posted at that time did not include allegations of vaginal touching. Ms. A.R.-U. agreed she must have seen this allegation later.

3247Ms. A.R.-U. testified that she did not make a complaint after reading the CPSO allegations because her experience was not as severe the experiences she read about on the website.

3248In cross-examination, defence counsel reviewed with Ms. A.R.-U. the information that had been published as of October 4, 2017. By that date, the allegations posted on the CPSO included inappropriate draping or being asked to completely undress, inappropriate breast touching, and inappropriate or sexual remarks. Ms. A.R.-U. agreed that those allegations were similar to the allegations she had made at trial. Ms. A.R.-U. then changed her explanation for not making a report. She testified that she had not previously experienced a proper breast examination and was unaware that she had been inadequately gowned.

3249Despite being freaked out by the allegations and despite being frustrated by his level of care by that point, Ms. A.R.-U. testified that she continued to trust Dr. Sloka after reading the allegations against him.

3250Ms. A.R.-U. testified that she came to believe in the impropriety of her breast examination after receiving one from her family doctor, Dr. Bell in mid-2018. After receiving a breast examination from Dr. Bell, and being aware that Dr. Sloka was facing allegations, she mentioned to Dr. Bell that Dr. Sloka had performed a breast examination upon her. On her evidence, Dr. Bell told her that Dr. Sloka should not have performed a breast examination. Dr. Bell said she should report Dr. Sloka to the CPSO. While she may not have said so explicitly, Ms. A.R.-U. believed Dr. Bell considered her to be a victim of sexual abuse. Nevertheless, there was no discussion with Dr. Bell about Dr. Sloka’s consultation report which indicated a breast examination did not in fact occur. There was no discussion about the method of Dr. Sloka’s breast examination or how it differed from Dr. Bell’s breast examination. Also, Dr. Bell made no mention of having a mandatory duty to report another doctor for the sexual abuse of a patient. Likewise, Dr. Bell did not suggest avoiding Dr. Sloka. Dr. Bell also did not suggest making a referral to a new neurologist.

3251The Crown did not call Dr. Bell to confirm the Ms. A.R.-U.’s alleged conversation with Dr. Bell about Dr. Sloka, nor did the Crown tender any of Dr. Bell’s medical records pertaining to this alleged discussion.

3252Ms. A.R.-U. testified that, being cognizant of CPSO allegations of breast touching and being cognizant of Dr. Bell’s reaction, “the light went on.” She told her husband that Dr. Bell believed that Dr. Sloka had sexually abused her. Her husband wanted to make a report to the CPSO. Ms. A.R.-U. testified, though, that she planned to continue to see Dr. Sloka. She testified that she felt she had no other option. She knew there were a limited number of neurologists in the area. However, by this point, she had not yet inquired about another referral from Dr. Bell. Also, by this point, according to her testimony, she had already become frustrated with Dr. Sloka’s level of care and had questioned his utility.

3253To explain her decision to continue with Dr. Sloka after October 4, 2017, Ms. A.R.-U. testified she planned to have her husband present at each subsequent appointment. By October 4, 2017, a practice monitor was already in place, as were practice restrictions.

3254According to Ms. A.R.-U., she attempted to contact the CPSO the day after her appointment with Dr. Sloka. Her effort fell short, though, because she was interrupted by her day-care duties. She never got past the automated menu. She did not make another attempt to contact the CPSO.

3255At some point following her alleged disclosure to Dr. Bell, Ms. A.R.-U. sought and obtained a referral to another neurologist for a second opinion. That neurologist was Dr. Stewart. She believed this appointment occurred before her final visit with Dr. Sloka – a visit, it should be noted, where another follow-up was contemplated. She testified that she continued to see Dr. Sloka following her appointment with Dr. Stewart because she wanted to obtain the most recent blood test results from Dr. Sloka.

3256Returning to the visit with Dr. Stewart, Ms. A.R.-U. testified she told Dr. Stewart that she was a victim of Dr. Sloka’s. Dr. Stewart apologised to her on behalf of all neurologists. She did not provide Dr. Stewart of any details about her allegations, though. She testified that there was no reason for Dr. Stewart to know about her breast examination. Ms. A.R.-U. told the police something different. In her police statement, she said, “after talking to my family doctor and talking to my new neurologist, they said that wasn’t appropriate because he wasn’t the family doctor. He shouldn’t have been touching me….” Ms. A.R.-U. explained that she simply lumped Dr. Stewart and Dr. Bell together when speaking to the police.

3257Ms. A.R.-U. testified that she believed she saw CPSO updates about Dr. Sloka over time. She and her husband would search for updates. She remembered reviewing the amended Notice of Hearing, published by the CPSO on October 30, 2018, which included allegations similar to her own.

3258Ms. A.R.-U. recalled receiving an article from The Record while she was still a patient of Dr. Sloka. At trial, she was shown an article from The Record and from CTV News. The CTV News article looked more familiar than The Record article. Both articles referred to allegations of inadequate draping, breast touching, and breast exposure.

3259For five months after Dr. Sloka’s licence was revoked, Ms. A.R.-U.’s husband continued to update her about developments in Dr. Sloka’s case. He informed her that Dr. Sloka had lost his licence, and that people continued to come forward. However, Ms. A.R.-U. testified that she did not have the time or desire yet to lodge her own complaint to the CPSO.

3260Eventually, Ms. A.R.-U. saw on television that Dr. Sloka had been criminally charged. Seeing this report prompted her to complain. The report indicated that the police were asking for absolutely everyone to come forward. The report provided a hotline number to call. Ms. A.R.-U. decided to come forward because she believed they needed her help.

The Evidence of Dr. Bril

3261The Crown has not relied upon Dr. Bril’s opinion about Dr. Sloka’s decision to propose a cardiac examination for Ms. A.R.-U. Consequently, I do not intend to summarize it in much detail. In brief, Dr. Bril did not think a cardiac examination was warranted because Ms. A.R.-U. had already received reassuring echocardiogram and holter-monitor test results from her stay in the hospital.

3262Dr. Bril testified that there was no neurological reason to perform a breast examination on Ms. A.R.-U., nor was there a neurological reason to examine her lymph nodes.

3263Dr. Bril acknowledged, though that if a patient expressed a concern about breast cancer, a breast examination would be warranted. In her opinion, though, Dr. Sloka should not have performed a breast examination. He should have referred the examination to Ms. A.R.-U.’s family doctor.

The Evidence of Dr. Sloka

3264Dr. Sloka had some independent memory of Ms. A.R.-U., but not much. He placed reliance upon the contents of his consultation reports for the truth of their contents and relied upon the rest of Ms. A.R.-U.’s chart for context.

3265At her first appointment, he met with Ms. A.R.-U. and obtained her medical history and a description of her current symptoms. He asked several screening questions in his systems review. He then recommended a neurological, cardiac, and breast examination, which would include an axillary examination.

3266As justification for the proposed cardiac examination, he noted that Ms. A.R.-U. presented with a hemiplegic migraine, which can mimic stroke. Both can result in one-sided weakness with headache. He wanted to rule out a source of stroke. He made note of the reassuring echocardiogram and holter-monitor results in his consultation report. Even though Ms. A.R.-U. had undergone these tests, Dr. Sloka took the position that he still felt a cardiac examination was appropriate because three months had passed since Ms. A.R.-U.’s stay at the hospital and because she was still experiencing residual symptoms.

3267Dr. Sloka also agreed that he proposed a breast examination.

3268Dr. Sloka provided two justifications for the proposed breast examination. First, she had expressed concern about breast cancer. Second, she had reported tingling in her axillary region. He believed this tingling could represent an irritation in a bundle of nerves (the brachial plexus) in that region, which he had learned can sometimes be caused by breast cancer. He believed that Royal College of Physicians and Surgeons required him to know the causes of such irritations when writing his examinations to become certified as a neurologist. He also believed that medical literature supported his consideration of a breast examination when a patient reports such tingling. His purported education and training on this subject were not challenged in cross-examination or by other evidence.

3269Dr. Sloka testified that he had the proper training and experience to conduct breast examinations. He had also co-authored scholarly papers on breast cancer. Having both the training, experience, and the medical justification to propose a breast examination, he proposed one. He also observed that Ms. A.R.-U. had expressed concern about breast cancer. He testified that alleviating patient concern is part of patient care.

3270Dr. Sloka agreed that it was possible Ms. A.R.-U. was gowned for the examinations, though he had no independent memory one way or the other.

3271Relying on his consultation report, Dr. Sloka testified he conducted a neurological examination and a limited cardiac examination. A limited cardiac examination involves placing the bell of the stethoscope beneath the clothing of the patient and does not involve exposure of the left breast. In this situation, Dr. Sloka holds he stethoscope in place from the outer side of the fabric. In Dr. Sloka’s experience, even patients who have gowned for an examination sometimes decline to expose their left breast for a cardiac examination. Dr. Sloka inferred that Ms. A.R.-U. did not provide consent for a full cardiac examination. He had no memory of when she communicated her decision to him.

3272According to his consultation report, Dr. Sloka palpated Ms. A.R.-U.’s axillary region but did not then proceed to a breast examination. He documented the axillary examination as follows, “She had local irritation in her left axillary region but there were no signs of lymphadenopathy.” As for the breast examination, he reported, “She did tell me that she had some concern regarding breast cancer and a tingling sensation in her left axillary region and we did not examine her breasts although she might ask her family physician to do this with her. She seemed modest today.” Dr. Sloka concluded from this notation that Ms. A.R.-U. had declined the offer of a breast examination. Accordingly, instead of performing a breast examination himself, he flagged the issue for her family doctor in his reporting letter.

3273In reporting on his impression, Dr. Sloka informed the family doctor that he believed Ms. A.R.-U. was suffering from complicated migraines, although her symptoms seemed quite prolonged. He found no obvious evidence of stroke or any evidence of demyelination in the MRI. He also did not think the symptoms were suggestive of seizure activity. As documented in his reporting letter, Dr. Sloka did not require a follow up visit for Ms. A.R.-U. He left follow-up open but was prepared to see her again if the need arose.

3274Ms. A.R.-U. ultimately booked an appointment with Dr. Sloka eight months later, on April 3rd, 2017. Dr. Sloka’s reporting letter indicated she was still reporting left-sided symptoms. After a discussion with her, he ordered an MRI of her brain and cervical spine. He also ordered blood work to rule out possible causes of her symptoms. Dr. Sloka also reported to her family doctor that he would look into doing screening for the BRCA1 gene (the one that increases risk for breast cancer), given Ms. A.R.-U.’s ongoing concern about breast cancer and given her sister testifying positive for this gene. Dr. Sloka informed the family doctor that he planned to see Ms. A.R.-U. in follow-up.

3275Two days later, as promised, Dr. Sloka sent a letter directly to Ms. A.R.-U. about testing options for the BRCA1 gene. He did not send a copy to Ms. A.R.-U.’s family doctor. Dr. Sloka agreed that ordering this testing was not part of neurology.

3276With regard to Ms. A.R.-U.’s allegations that Dr. Sloka asked her questions about her sex life, Dr. Sloka pointed to his reporting letter from Ms. A.R.-U.’s fourth visit. At that visit, he reviewed with her the results of her MRI and pituitary blood work. He also took note of her report of intermittent weakness and as well as other symptoms he thought might be related to migraine with aura. In addition, he reported to her family doctor that Ms. A.R.-U. had confided to him that she had been experiencing a decreased libido and personality changes. In particular, she disclosed being irritability around her family and was concerned about her relationship with her family. Dr. Sloka testified that a decreased libido can be a neurological issue. Accordingly, he would inquire about whether the patient was suffering from numbness in the saddle region, which occurs when the nerves serving that region have been compromised. He denied asking her about whether her husband could stimulate her.

3277In the reporting letter, Dr. Sloka advised the family doctor that he had prescribed Cipralex for Ms. A.R.-U. Dr. Sloka testified that he prescribed this medication to address what he believed to be mood related symptoms. Dr. Sloka issued the prescription instead of referring to psychiatrist because there were long wait lists to see psychiatrists in his region. Wait lists were a year long. In Dr. Sloka’s view, Ms. A.R.-U. was there to see him, and it was in the scope of his training to deal with mood disorders in neurology patients. Accordingly, he facilitated the care and made a note of it for the family doctor, so that the family doctor would know to follow the issue. The Crown did not cross-examine Dr. Sloka on this aspect of his evidence.

Assessment of the Evidence and Analysis

3278I have considerable concern about the credibility and reliability of Ms. A.R.-U.

3279Ms. A.R.-U.’s allegation of a breast examination is directly contradicted by the contents of Dr. Sloka’s reporting letter. On her evidence, the assertion in the reporting letter must be a fabrication, but that implied assertion is utterly illogical.

3280I want to spend some time exploring Ms. A.R.-U.’s theory of fabrication, which the Crown urges me to accept. On this theory, Dr. Sloka falsely declared that he deferred the breast examination and explicitly raised the possibility that the family doctor might be asked to perform an examination that Dr. Sloka had in fact already performed. If true, Dr. Sloka invited a discussion about and discovery of his own examination and a consequent discovery of the falsification of his own reporting letter. In my view, this theory of fabrication is so far fetched and so outlandish that it is absurd.

3281Ms. A.R.-U.’s credibility and reliability also suffered from her insistence that it was Dr. Sloka, and not her, that suggested the breast examination. On her evidence, he pressured her to have the breast examination, linking the proposed examination with her left sided tingling and numbness. She strongly disputed the suggestion that she had raised a concern about breast cancer with Dr. Sloka. In my view, her evidence did not withstand scrutiny.

3282To begin with, I think it is critical to recall that Ms. A.R.-U. had not seen Dr. Sloka’s medical file by the time she provided her police statement. When giving her statement, she had no idea that Dr. Sloka had reported that she had expressed a concern about breast cancer but had declined the offer of a breast examination. She had also had no idea that Dr. Sloka had raised with her family doctor the prospect that the family doctor might be asked to perform a breast examination instead. Consequently, at the time she provided her statement to police, she had no idea that there existed documentation that flatly contradicted her assertion that Dr. Sloka introduced the concern of breast cancer, and that Dr. Sloka introduced the possibility of a breast examination.

3283While she did not read her medical file before providing her police statement, she did read it before testifying. It shows. In my view, Ms. A.R.-U. attempted to tailor her evidence to account for the documentation she discovered in Dr. Sloka’s medical file. As a result, Ms. A.R.-U. would have the court believe that Dr. Sloka, by some divine coincidence, charted that Ms. A.R.-U. expressed a concern about breast cancer mere hours before her mother provided the information necessary to inspire Ms. A.R.-U. to have that concern. This evidence is unworthy of belief.

3284Ms. A.R.-U. acknowledged that breast cancer was a significant concern amongst the women in her family. She acknowledged that family members have a genetic pre-disposition to develop breast cancer. They also have cystic breasts which required them to “be very careful f the lumps that develop.” She also acknowledged being taught by her mother at a younger age about how to do a breast examination. She was a 30-year-old woman who had clearly been taught how to examine her own breasts for a reason. Remarkably, though, she insisted that she had not learned of her family’s breast cancer concerns until phoning her mother immediately after the appointment. I reject this assertion as a fabrication, one which she contrived to address the contents of Dr. Sloka’s reporting letter.

3285I accept as entirely more plausible that, due to her report of tingling and numbness in her armpit, which Dr. Sloka had charted, that she reported her breast cancer concern to Dr. Sloka, just as he charted. While Ms. A.R.-U. admitted pain near her armpit, she firmly resisted the suggestion that she ever reported pains within her armpit. Her evidence was contradicted by her police statement, wherein she told police that she reported pain, “especially in my armpit area.” She then suggested that the description she gave the police was inaccurate. Her evidence on this point harmed both her credibility and reliability. I reject Ms. A.R.-U.’s evidence that she had no concerns about tingling inside her armpits and no concern about her breasts. Her evidence to the contrary lacked both reliability and credibility.

3286At trial, Ms. A.R.-U. testified she flatly refused the breast examination, but Dr. Sloka insisted. Her evidence on this point was contradicted by her statement to the police. She never claimed in the police interview that she refused the breast examination. Instead, she claimed to have told him she did her own breast examinations and asked if it was necessary. She told the police that, when Dr. Sloka told her it was best to get a second opinion from a doctor, she agreed. She specifically told the police that Dr. Sloka was “not pushing me per se.” Ms. A.R.-U. attempted to explain the inconsistency by stating, “I think a woman asking if it’s necessary is a nice way of saying no.” In my view, Ms. A.R.-U.’s denial of the inconsistency did not hold water. The inconsistency was unmistakable and undeniable. Her credibility consequently suffered.

3287The evidence in Ms. A.R.-U.’s case also suggests a significant likelihood of tainting by exposure to reports on the CPSO website and in the media about the allegations made against Dr. Sloka. The likelihood of tainting gives rise to significant concerns about Ms. A.R.-U.’s reliability.

3288Ms. A.R.-U. first learned about allegations against Dr. Sloka on October 4, 2017, when she looked up information about Dr. Sloka on the CPSO website. Ms. A.R.-U. thereafter reviewed numerous media reports about Dr. Sloka. As she read media reports, she read more about the allegations being made against Dr. Sloka. She also learned of the revocation of Dr. Sloka’s licence. She subsequently learned of that the police had laid criminal charges against Dr. Sloka. Ultimately, she saw a television story that reported that Dr. Sloka had been criminally charged. In that story, she learned that the police were looking for “absolutely everyone to come forward.” A hotline number was provided. At that moment, she decided to come forward, “because I felt they needed my help.” By the time she came forward, allegations of inappropriate breast touching were widely reported. In my view, there is a significant likelihood that Ms. A.R.-U.’s perception and memories have been influenced by exposure to reporting about Dr. Sloka on the CPSO website and in the media. Given my other concerns about the reliability and credibility of Ms. A.R.-U.’s evidence, I have significant concern that her perceptions and memory have been tainted by her exposure to the allegations of other complainants about breast exposure and breast touching.

3289I am also concerned that Ms. A.R.-U. gave less than credible and reliable evidence that appeared to be aimed at explaining her delayed awareness of the sexual nature of her examination and her correspondingly delayed complaint about Dr. Sloka.

3290According to Ms. A.R.-U., she first became aware that Dr. Sloka was under investigation on October 4, 2017. Ms. A.R.-U. denied reviewing this information immediately before entering her appointment with Dr. Sloka on October 4, 2017. She claimed she was in a dead zone and unable to search the CPSO website from Dr. Sloka’s waiting room. Her evidence on this point was directly and plainly contradicted by her statement to the police. The contradiction and her attempt to deny it harmed her credibility. On Ms. A.R.-U.’s evidence, she was freaked out by the practice notice and questioned whether she should trust Dr. Sloka anymore. On the other hand, she purportedly still thought her breast examination was normal and in her best interest. I have trouble squaring these two assertions. It bears repeating that Ms. A.R.-U. purportedly had grown frustrated with Dr. Sloka’s supposed disinterest and felt she had to beg him to perform further tests. Now she was freaked out by the practice notice. Nevertheless, she attended the appointment, supposedly unaware of any specific allegations. I reject Ms. A.R.-U.’s assertion that she did not look up the allegations while in Dr. Sloka’s waiting room. I reject her assertion that she had no cell signal. In giving this evidence, Ms. A.R.-U. was dishonest. That dishonesty was betrayed by her police statement. I conclude from Ms. A.R.-U.’s dishonesty that she was attempting to explain her decision to continue with her appointment despite having just reviewed allegations made against Dr. Sloka that closely tracked what she would ultimately report years later.

3291Ms. A.R.-U. also testified that she did not initially report Dr. Sloka because her experience was not as serious as those reported in the CPSO material she reviewed later in the evening of October 4, 2017. She claimed the patient allegations involved vaginal touching; however, no allegations involving vaginal examinations had been made by that point. Instead, the allegations available on the CPSO website at that point involved allegations that aligned very closely with the complaints she would ultimately make. Accordingly, her explanation of her decision to remain silent did not withstand scrutiny. I conclude here that Ms. A.R.-U. constructed in her mind a false explanation for the lack of a complaint at this juncture.

3292Ms. A.R.-U. also testified that she did not fully come to realize that she had been sexually assaulted until after an appointment with her new family doctor, Dr. Bell, in the middle of 2018. After purportedly disclosing Dr. Sloka’s alleged breast examination to Dr. Bell, Dr. Bell allegedly made comments that made a light go off. In Ms. A.R.-U.’s mind, Dr. Bell viewed her as a victim of sexual abuse, causing her to come to the same conclusion. On her evidence, Dr. Bell advised her to make a complaint. Yet, surprisingly, Dr. Bell did not, on Ms. A.R.-U.’s evidence, refer her to another neurologist at this appointment. Dr. Bell did not even advise her to avoid Dr. Sloka. This simply makes no sense. The evidence at trial has revealed a mandatory obligation on doctors to report the suspected sexual abuse of a patient by another doctor. There is no evidence of any report being made. The Crown did not call Dr. Bell. The Crown also did not tender evidence of any complaint lodged by Dr. Bell. And while there is no evidence to back up Ms. A.R.-U.’s claims about her conversation with Dr. Bell, there is evidence that Ms. A.R.-U. continued to see Dr. Sloka. I simply reject Ms. A.R.-U.’s evidence regarding her purported conversation with Dr. Bell.

3293According to Ms. A.R.-U., her husband helped her place a call to the CPSO the day after the appointment with Dr. Bell. However, her phone call was interrupted by her daycare responsibilities. On her evidence, she lacked the time and inclination to make a further attempt to contact the CPSO. I find this claim highly dubious. She claimed to have finally realized she had been sexually abused. She claimed her doctor told her to report Dr. Sloka. She allegedly felt the need to make a complaint but then abandoned all further effort at the first interruption. By contrast, she made her phone call to police the next year during business hours without difficulty. I reject Ms. A.R.-U.’s evidence that she ever placed the call to the CPSO in the year preceding her police complaint.

3294Ms. A.R.-U. continued to see Dr. Sloka after her alleged conversation with Dr. Bell. She also continued to see Dr. Sloka even after she later obtained a referral to another neurologist for a second opinion. That neurologist was Dr. Stewart. According to Ms. A.R.-U., she did not disclose Dr. Sloka’s breast examination to Dr. Stewart. However, this claim was contradicted by her earlier police statement. In my view, she told the police that she had reported the breast examination to both Dr. Bell and Dr. Stewart. Ms. A.R.-U.’s reliability suffers from this inconsistency.

3295The Crown places considerable reliance upon Dr. Sloka’s allegedly inappropriate inquiries about Ms. A.R.-U.’s sex life. Interestingly, Ms. A.R.-U. had trouble remembering that these inquiries even occurred. She was not able to remember these inquiries until after the Crown refreshed her memory with her police statement. Ms. A.R.-U. denied forgetting the inappropriate inquiries, though. Instead, she claimed that she refrained from mentioning them because she did not think them important. In doing so, she flatly contradicted her evidence in-chief, wherein she clearly stated that she did not recall any questions about her sex life that made her feel uncomfortable. Not only were the supposedly memorable questions unmemorable, Ms. A.R.-U. dishonestly claimed to have remembered them when she in fact did not. I reject Ms. A.R.-U.’s claim that Dr. Sloka asked her questions about her sex life with her husband. Her evidence on this subject lacked both credibility and reliability.

3296I agree with the defence that Ms. A.R.-U. displayed a considerable degree of animus towards Dr. Sloka. In my view, she acquired that animus late in the day. I consider it highly likely that her review of the published allegations against Dr. Sloka contributed to that animus. As already noted, Ms. A.R.-U. reviewed a considerable amount of CPSO and media coverage of the allegations against Dr. Sloka. Her decision to come forward followed her viewing of a television news report that Dr. Sloka had been charged. She learned from that report that the police were asking others to come forward. In her police statement, she reported that after reading the media and realizing that Dr. Sloka had done some horrific things, she would be happy to help. She wanted to make sure that Dr. Sloka got in trouble for “all the horrible things that he did.” At trial, she testified that she wanted Dr. Sloka to understand that he “hurt a bunch of people.” Ms. A.R.-U. presented as a witness with an agenda. Her credibility and reliability suffered as a result.

3297Ms. A.R.-U.’s animus perhaps explains what I believe to be a distorted view of Dr. Sloka’s level of care. Judging from her medical chart, Dr. Sloka worked diligently to order tests, to consult with other specialists, and to take the time to show Ms. A.R.-U. test results, show her textbooks and diagrams, and draw diagrams to explain concepts to her. All of that evidence undermines Ms. A.R.-U.’s perception that Dr. Sloka was disinterested in her care. In my view, Ms. A.R.-U.’s distorted perception is likely the product of tainting.

3298While I have admitted cross-count similar act evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting intimate examinations on his patients, after a careful review of Dr. Sloka’s evidence, I conclude that he has rebutted that inference. I will discuss Dr. Sloka’s in a moment, but first I will discuss another discrete cross-count similarity upon which the Crown relies to support Ms. A.R.-U.’s evidence.

3299The Crown also relies upon a discrete cross-count similarity between the evidence of some complainants and that of Ms. A.R.-U. Specifically, the crown argues that Ms. A.R.-U. belongs to a constituency of patients who alleged that Dr. Sloka pushed them into participating in examinations. They suggest Ms. A.R.-U. belongs in this group. I have difficulty with this submission for several reasons. First, the alleged constituency is a small one. The vast majority of complainant’s do not make any such allegation. I fail to see how a similarity amongst a small group of patients is probative of anything more than chance coincidence. Second, Ms. A.R.-U. specifically told the police that Dr. Sloka “was not pushing it on me per se.” At trial, she agreed with the truth of this prior statement. Third, as already discussed, Dr. Sloka’s reporting letter strongly supports the contention that it was Ms. A.R.-U., not Dr. Sloka, who raised the prospect of a breast examination. In my view, the alleged similarity upon which the Crown relies lacks sufficient probative force.

3300For all the above reasons, I reject Ms. A.R.-U.’s evidence that Dr. Sloka performed a breast examination on her and touched her breasts as she described. I found Ms. A.R.-U. to be a witness that lacked both credibility and reliability.

3301I turn now to an assessment of Dr. Bril’s evidence.

3302Dr. Bril’s evidence does not assist the Crown in proving that a breast examination occurred.

3303Dr. Bril’s evidence also does little to challenge Dr. Sloka’s decision to propose a breast examination. As noted in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place no weight on her categorical claims about the permissibility of neurologists performing breast examinations. Also, Dr. Bril could not and did not challenge Dr. Sloka’s assertion that he possessed ample training and experience to competently conduct a breast examination. She was unaware of and unconcerned with Dr. Sloka’s qualifications. Dr. Bril also conceded that a breast examination was a least medically reasonable in the circumstances. Accordingly, I find Dr. Bril’s evidence of little help on this count.

3304I turn now to an assessment of Dr. Sloka’s evidence.

3305Dr. Sloka denied actually performing a breast examination on Ms. A.R.-U. His evidence is supported by his contemporaneously written consultation report. As noted already, I consider it highly unlikely, ludicrously so, that Dr. Sloka would effectively invite Ms. A.R.-U.’s family doctor to perform an examination he had just performed while simultaneously denying having performed that examination. The Crown theory invites me to conclude that Dr. Sloka simultaneously covered up and exposed his own misconduct. The more likely conclusion is that Dr. Sloka told the truth: he proposed a breast examination, Ms. A.R.-U. declined one, and he raised the possibility of her obtaining one from her family doctor.

3306The Crown argues that Dr. Sloka provided a vague and uncertain justification for the proposal of a breast examination. I disagree. He explicitly identified the reported armpit tingling as a symptom associated with breast cancer. His understanding of this association was unchallenged by other evidence. He testified that he believed the Royal College required him to understand the causes of irritations in the nerve clusters known as the brachial plexus, which are located in the armpits. The Crown did not challenge him in cross-examination on the correctness of his understanding of the Royal College requirements, nor did the Crown call other evidence to disprove the correctness of his understanding.

3307The Crown contends that Dr. Sloka deviated from his standard practice by offering a breast examination. I disagree. Dr. Sloka testified that he would give his patients options, one of which involved him performing the breast examination, the others involved referrals. On Dr. Sloka’s evidence, the patient declined his offer of a breast examination; so, he brought the issue to the attention of the family doctor. I reject the Crown’s contention that Dr. Sloka did not make an actual referral to the family doctor. He clearly identified the patient’s concern and indicated that the patient might want the family doctor to perform the examination. That, to my mind, is a referral. To suggest otherwise is nitpicking and ignores the idiosyncratic way in which Dr. Bril spoke, Dr. Sloka spoke, and many other doctors in various reporting letters in this case spoke. As a profession, they appeared incapable of speaking plainly.

3308The Crown further argues that Dr. Sloka deviated from his standard practice by charting his decision to eschew an examination. This submission is misplaced once one accepts that Dr. Sloka was flagging the patient’s concern for the family doctor’s consideration. It also ignores Dr. Sloka’s demonstrated pattern of charting the limitations of patient consent.

3309The Crown’s suggestion that Dr. Sloka had a persistent interest in Ms. A.R.-U.’s breasts is a stretch. He charted her concern about breast cancer at the first appointment. And he charted her interest in genetic screening for the BRCA1 gene at the second appointment, which occurred 8 months later. He followed up that second appointment with a letter to Ms. A.R.-U. about the available avenues for that genetic testing. There is no suggestion in any of the evidence of any persistent attempts at conducting a breast examination, or any attempts to conduct a subsequent cardiac examination. The evidence reveals an ongoing respect by Dr. Sloka of Ms. A.R.-U.’s expressed concern about her genetic risk for breast cancer, not a physical interest in her breasts. I fail to see how Dr. Sloka’s responsiveness to his patient’s expressed concern about a deadly disease exposes a prurient interest.

3310The Crown further contends that Dr. Sloka showed a prurient interest in Ms. A.R.-U.’s vagina and sex life. I disagree. Dr. Sloka charted the patient’s expression of concern about her libido. In doing so, he flagged the issue for her family doctor. He also testified how decreased libido can be associated with pathology of the nerves that service the genital region. He explained he would therefore have asked about saddle anesthesia. He denied asking any questions about Ms. A.R.-U.’s sex life. I must repeat here that Ms. A.R.-U. was unable to independently remember this allegation during her evidence. I conclude she was unable to remember it because it did not occur. Dr. Sloka’s evidence that he asked no such questions was not tested by the Crown in cross-examination.

3311The Crown argues that Dr. Sloka’s failure to make handwritten notes of the reported armpit tingling somehow undermines the charting of this symptom in his consultation report. The evidence establishes that Dr. Sloka dictated contemporaneous reporting letters after each appointment, before starting the next appointment. None of his handwritten notes contain everything found in his reporting letters. Indeed, as a rule, much is missing from his handwritten notes. They were clearly a memory aid, not a verbatim draft of his subsequently authored reporting letters. The absence of a symptom in the handwritten notes does not detract at all from the inclusion of that symptom in a dictation that occurs immediately after the appointment.

3312Having reviewed the Crown’s criticisms of Dr. Sloka’s evidence, I have concluded that none have merit. Dr. Sloka evidence withstood cross-examination unscathed.

3313In summary, I found no reason to reject Dr. Sloka’s denial of a breast examination or his denial of prurient inquiries. I also found no reason to reject Dr. Sloka’s testimony that he believed that a breast examination was medically warranted. I similarly found no reason to reject his testimony that he believed he was properly trained and qualified to perform a breast examination.

3314Having rejected Ms. A.R.-U.’s evidence and having accepted Dr. Sloka’s, I conclude that the Crown has failed to prove that Dr. Sloka performed a breast examination on Ms. A.R.-U. The Crown has likewise failed to prove that any other physical contact by Dr. Sloka upon Ms. A.R.-U. constituted sexual activity. Instead, the evidence satisfies me that all physical contact by Dr. Sloka – including the neurological examination, modified cardiac examination, and palpation of the left axillary region – was done for a medical purpose, in accordance with his medical training, and with Ms. A.R.-U.’s expressed consent. The Crown has therefore failed to prove this count.

3315Dr. Sloka will be acquitted on this count.

xi. A.S. (Count 11)

A Summary of Ms. A.S.’s Complaint and Dr. Sloka’s Response to It

3316Ms. A.S. alleged that Dr. Sloka performed a breast examination upon her. She also alleged that during a leg-strength test, Dr. Sloka had her lay on the table and press her feet into his hands as he stood at the end of the table. In addition, she alleged Dr. Sloka had asked her to remove her underwear for her examinations. Her genital region was therefore exposed during the leg-strength examination.

3317Dr. Sloka testified that he performed neurological and cardiac examinations. He denied performing a breast examination. He maintained that any contact with Ms. A.S.’s breasts was incidental to his cardiac examination. He denied performing the leg-strength examination in the manner Ms. A.S. described. He denied that Ms. A.S. was inadequately draped for her examinations.

The Circumstances of Ms. A.S.’s Referral and Treatment History

3318Ms. A.S. was 17 when she obtained her referral to Dr. Sloka. She was 28 when she testified.

3319She believed that her family doctor referred her to Dr. Sloka. She did not believe she had been referred to Dr. Sloka by an ER doctor. Her memory was incorrect. A referral form from the GRH ER indicate that an ER doctor made the referral, asking Dr. Sloka to assess whether Ms. A.S. suffered from complex migraine disorder. Ms. A.S. recalled going to the ER at some point, but even after reviewing the ER records, she did not believe the ER made the referral. Ms. A.S. instead insisted that, after her visit to the ER, she met with her family doctor who then made the referral to Dr. Sloka.

3320According to Dr. Sloka’s consultation report, Ms. A.S. had been experiencing migraines. Her symptoms included dizziness, faintness, pressure headaches, and tingling sensations. The ER record documented reports of headaches, nausea, and numbness in her hands.

3321Ms. A.S. testified that her migraines were so debilitating that she would lie in bed in the fetal position with the lights off. She also testified that she experienced episodes with tingling sensations.

3322ER records indicated that Ms. A.S.’s family doctor had ordered a CT scan prior to both the ER visit and the appointment with Dr. Sloka.

[3323]

The Evidence of Ms. A.S.

[3324] Ms. A.S. attended one appointment with Dr. Sloka.

[3325] Ms. A.S. had difficulty remembering the date of her appointment with Dr. Sloka. Dr. Sloka’s records indicated that the appointment occurred on October 1, 2010. Ms. A.S. didn’t think the date was accurate but agreed it was possible. In her statement to CPSO investigators, she voiced a belief that the appointment occurred in the spring, close to summertime but not yet summer. In her evidence in-chief, she estimated that the appointment occurred in September while it was still warmer outside. Ms. A.S. resisted the suggestion that by telling the police that it was “close to but not summertime yet,” she had indicated to police that the appointment occurred in the spring. She testified that her memory had improved since giving her statement to the police in 2018, three years before her testimony.

[3326] Ms. A.S. alleged that she arrived for the appointment in the afternoon, when no one was around. The waiting room was empty before and after her appointment. She did not see or speak to anyone other than Dr. Sloka. Despite the records indicating a 9 a.m. appointment, she maintained a belief that the appointment was in the afternoon, even though she could not recall the precise time of the appointment. She believed that she had tried to schedule appointments for times when she was not in class. As a result, she remained certain that the appointment could not have occurred at 9:00 a.m., despite what Dr. Sloka’s medical file documented.

[3327] Being alone prior to seeing Dr. Sloka, Ms. A.S. did not believe she filled out a patient information sheet while she waited. She recognized her handwriting on the patient information sheet in her medical records, but she did not recall filling it out. She also recognized someone else’s handwriting on the patient information sheet, but she denied that Dr. Sloka’s secretary handed her the form to fill out. Instead, she posited that Dr. Sloka may have handed her the form and asked her to fill it out when he first met her. That supposition did not correspond to the evidence she gave in-chief about her initial encounter with Dr. Sloka.

[3328] In her evidence, Ms. A.S.’s first memory of Dr. Sloka involves meeting him in the hallway and following him into his office, whereupon he almost immediately instructed her to put on a gown.

[3329] Ms. A.S. alleged that the entire appointment occurred in one room. That room included both a desk and an examination table. She rejected the suggestion that the office was in a room separate from the examination room. When shown photographs of Dr. Sloka’s office, Ms. A.S. denied ever seeing that room. She denied sitting for an interview in Dr. Sloka’s office before walking into an examination room. She seemed genuinely puzzled when looking at photos of Dr. Sloka’s office and examination room. When shown photos of Dr. Sloka’s actual office, Ms. A.S. testified that she had never seen that room before. She denied ever sitting in that room. Likewise, when show photos of Dr. Sloka’s actual examination room, she testified that she did not believe that her examination occurred in that room. She insisted on the accuracy of the diagram she drew for CPSO investigators, which was marked as Exhibit 50 at trial.

[3330] Ms. A.S. denied that Dr. Sloka obtained her history in an office that was distinct from the examination room. She rejected the suggestion that she walked from the office, through a door, and into an examination room. In her memory, the desk was situated across from the examination table. She only remembered one door providing access to the room.

[3331] Ms. A.S. recalled that Dr. Sloka told her that he was going to do a full body exam, “to see what was going on”, to see if her body was reacting in a certain way. He asked her to remove her clothes and get into a hospital gown. She recalled asking if she needed to remove her undergarments. She was certain that he told her to do so. On her recollection, he went into the hallway, not his office, to give her privacy to change.

[3332] In chief, Ms. A.S. testified that, apart from a greeting, she did not recall any conversation occurring before Dr. Sloka proposed a physical examination. In her recollection, he looked at his notes about her and said she was there for migraines, and he was going to check out her body.

[3333] In cross-examination, Ms. A.S. did acknowledge having brief discussions with Dr. Sloka before he conducted an examination. He asked her a few small questions about her health history. There was not a lot of talking. When defense counsel presented her with Dr. Sloka’s consultation letter, she agreed it possible that the detailed information in the first three paragraphs of the letter could have been provided by her to Dr. Sloka during their discussions. However, she believed that much of this information was provided to Dr. Sloka in her referral. That belief was not borne out by the ER record, which contained a fraction of the information documented in the consultation report.

[3334] Ms. A.S. also disagreed with the accuracy of some of the history recorded in the first three paragraphs of Dr. Sloka’s letter. For example, she disagreed that she told Dr. Sloka that she was taking ibuprofen for the pain and that it managed the pain well. She admitted taking ibuprofen on occasion but claimed that she did not take it routinely enough to mention.

[3335] Ms. A.S. testified that while Dr. Sloka waited in the hallway, she got into the hospital gown. She tied it at the back. It was a typical blue hospital gown. Then, Dr. Sloka came into perform the examination.

[3336] Ms. A.S. did not remember much if any conversation occurring before the commencement of the examination. Dr. Sloka might have asked if she had experienced any other symptoms. He asked some simple questions about her migraine. Otherwise, there was a lot of silence for the whole examination.

[3337] Ms. A.S. testified that she lay on the exam table as Dr. Sloka examined her hands and arms. He put pressure on her hands and arms, pressing with his fingers, like a cat pawing.

[3338] Next, according to Ms. A.S., Dr. Sloka conducted a breast examination. He directed her to bring her gown down to her bra-line, so he could perform a breast exam. She brought the gown down, as he had instructed, exposing her whole chest. He applied pressure with his fingers all around her breasts but did not touch her nipples. He examined one breast at a time. It took about two to three minutes to do the breast exam. He did not wear gloves. When he was done, she pulled up the gown.

[3339] Ms. A.S. alleged that the breast exam felt like it took a while. She denied that it was really “quick and done.” However, in her CPSO statement, she told investigators that the exam was “really quick and it was done, so I didn’t think much of it.” Ms. A.S. testified that, still being in denial somewhat, she minimized the breast exam when speaking to CPSO investigators.

[3340] Ms. A.S. believed Dr. Sloka next checked her back. She had little memory of this portion of the exam. She remembered some pressure on her back but was not sure if he actually examined her back. As will be discussed further, below, Ms. A.S. agreed that this feeling of pressure could have come from a stethoscope being pressed up against her back.

[3341] Ms. A.S. testified that Dr. Sloka then checked her knees. She believed he pulled out a reflex hammer to do so. She remembered sitting upright by this point in the examination.

[3342] In her memory, Dr. Sloka then told her to lay down for the leg examination. She complied. Dr. Sloka then stood at the foot of the examination table. He told her to pull her knees up. With one leg at a time, he pushed against her foot as she pushed towards him. It was a strength test. She felt really exposed and uncomfortable for this test, because she was not wearing any underwear. She recalled trying to pull her gown close to her body. She also recalled him telling her that one side of her body was weaker than the other. This portion of the exam took a couple of minutes.

[3343] Ms. A.S. denied that the leg strength test occurred early in the examination, while Dr. Sloka was performing a neurological examination. She did not agree with the suggestion that Dr. Sloka tested her leg strength by pushing against her raised knee from the side of the bed. She maintained he stood at the foot of the bed and pressed her feet.

[3344] Ms. A.S. did not recall much conversation with Dr. Sloka following the examination. She only remembered that Dr. Sloka told her he thought that her brain got into a routine where her headaches were normal. According to Ms. A.S., Dr. Sloka prescribed her Elavil. Dr. Sloka’s consultation report indicated he prescribed Toradol and Maxeran. Despite what Dr. Sloka charted, Ms. A.S. insisted Dr. Sloka prescribed Elavil.

[3345] According to Ms. A.S., after Dr. Sloka prescribed Elavil, he told she could get changed and go. After Dr. Sloka left the room, Ms. A.S. changed into her clothes and left. She did not see him again.

[3346] The defense suggested that Dr. Sloka performed various components of a standard neurological examination. Ms. A.S. was unable to recall whether Dr. Sloka administered all these components.

[3347] The defense also suggested that Dr. Sloka also informed her that he wanted to perform a cardiac examination. While she could not recall him doing a cardiac examination, with prompting, she recalled some things that might be components of a cardiac exam. For example, she recalled him touching her back. She recalled pressure on her back. She accepted that this pressure could have been from a stethoscope. She agreed to a vague memory of him using a stethoscope to listen to her back. She believed it possible he asked her to breath in and out. She could not recall, however, Dr. Sloka using a stethoscope to listen to her chest; although, she ultimately acknowledged that this could have happened. She also maintained that she was laying down when her chest was exposed.

[3348] Ms. A.S. purported to feel uncomfortable during the examination. She likened the examination to a pap-smear. It was uncomfortable, but something she believed she had to soldier through. She believed the examination to be a medical necessity at the time Dr. Sloka performed it. Accordingly, Ms. A.S. did not raise concerns about the examination at any point proximate to the examination. She did not think much about the examination as the years passed, if at all.

[3349] However, Ms. A.S. purportedly felt a need to investigate the discomfort she harbored. She denied that media reports had changed her opinion about Dr. Sloka and the validity of the examination. Having said that, Ms. A.S. agreed that she saw media reports about Dr. Sloka on July 11 or July 12 of 2018. Another person, Ay.B. posted an article on Facebook about Dr. Sloka. The article indicated that Dr. Sloka faced allegations of sexual abuse at the CPSO. Patients claimed they had been inadequately draped. Ms. Ay.B. also posted a comment on Facebook about her own experience with Dr. Sloka while she was his patient. Ms. Ay.B. alleged that Dr. Sloka had performed a breast examination on her.

[3350] After reading the posts by Ms. Ay.B., Ms. A.S. decided to investigate the allegation against Dr. Sloka further. She Googled Dr. Sloka and found a second news article. She also went onto the CPSO website. When on the CPSO website, she saw a Notice of Hearing (probably), which stated that two women had complained about Dr. Sloka. They were alleging that he did unnecessary breast exams. That caught her attention. Up until this time, she had thought the touching of her breasts was medically appropriate. She also read about allegations of inadequate draping. For the first time, she was seriously questioning whether her examination had been proper.

[3351] Ms. A.S. then contacted the CPSO and spoke to an investigator, Pam Greenberg. She then provided a statement to the CPSO on August 17, 2018.

[3352] Before contacting the college, Ms. A.S. had not seen any allegations about strength tests that exposed the vagina.

The Evidence of Dr. Bril

[3353] Apart from Dr. Bril’s evidence regarding the reasonableness of a cardiac examination, Dr. Bril’s evidence was essentially uncontroversial.

[3354] The Crown has not relied upon Dr. Bril’s opinion about the cardiac examination in their submissions. However, I will nevertheless briefly summarize her opinion on this subject. Dr. Bril did not believe that a cardiac examination was justified. She did not believe that the ER records supported a concern that Ms. A.S. suffered from complex migraine disorder. In her view, Ms. A.S. was a 17-year-old patient who had been suffering from headaches. A cardiac examination was not required to investigate those headaches. Ms. A.S.’s young age was one factor in her opinion. Similarly, Dr. Bril did not believe that a cardiac examination was justified on the basis that Dr. Sloka was considering prescribing medications with cardiac contraindications. Again, her position was based on Ms. A.S.’s young age and the fact that she had no reported history of cardiac disease. The possibility of a heart condition was too remote, in Dr. Bril’s opinion.

[3355] In Dr. Bril’s opinion, there existed no reason for Ms. A.S. to remove her underwear for the examinations. This opinion was not controversial: Dr. Sloka denied any conducting any examinations that might have warranted the removal of Ms. A.S.’s underwear.

[3356] Dr. Bril also opined that a skin examination was not necessary in Ms. A.S.’s case. I am confused as to why her opinion on this subject was sought. Ms. A.S. did not allege a skin examination.

[3357] Dr. Bril also considered a breast examination neurologically unreasonable. This opinion was not controversial: Dr. Sloka denied conducting a breast examination.

[3358] Dr. Bril also provided an opinion on the alleged leg-strength examination. She testified that the examination described by Ms. A.S. was improper. Specifically, she testified that the method described would not isolate a single muscle. Accordingly, nothing useful could be learned from an examination performed in this fashion. She testified that neurologists do not perform leg strength examinations in this fashion. She had never heard of one being done this way. She also testified that neurologists must ensure that a patient’s genitalia are properly draped during a leg strength examination. Dr. Sloka agreed with Dr. Bril’s opinion on this subject.

[3359] Ms. A.S. testified that Dr. Sloka had told her that one of her legs was weaker than the other. Dr. Sloka did not record this observation in his consultation report. In Dr. Bril’s opinion, if Dr. Sloka had made this observation, he should have recorded it in his consultation report.

The Evidence of Dr. Sloka

[3360] Dr. Sloka had no independent memory of Ms. A.S. He relied upon the contents of his consultation letter for the truth of its contents and the remained of Ms. A.S.’s chart for context.

[3361] Dr. Sloka testified that he sat with Ms. A.S. in his office to obtain her medical history and presenting complaint. He took this approach with every patient.

[3362] After taking Ms. A.S.’s history, Dr. Sloka proposed neurological and cardiac examinations. He documented both of these examinations in his consultation letter.

[3363] In response to Dr. Bril’s criticism of his decision to propose a cardiac examination, Dr. Sloka provided a thorough rationale. First, he testified that a cardiac examination was part of his standard approach for all headache patients. Second, he noted that Ms. A.S. had reported a change in her headaches leading up to her appointment with him. Also, he prescribed Toradol and Maxeran that day. He also discussed with Ms. A.S. the possibility of using propranolol, amitriptyline, Norvasc, sibelium and topiramate as alternatives. All but topiramate have cardiac contraindications. Rather than rule out a cardiac examination because of Ms. A.S.’s age, Dr. Sloka considered a cardiac examination advisable because of it. Dr. Sloka testified that given her age, he was concerned about the possibility of congenital heart defects. In Dr. Sloka’s experience, congenital heart defects are not always discovered early in life, particularly the less severe ones. If Ms. A.S. had a congenital heart abnormality that was causing change in headaches or stroke-like symptoms, it might explain her symptoms. The medications under consideration might also not be advisable for a patient with a congenital heart defect.

[3364] Dr. Sloka denied asking Ms. A.S. to remove her underwear. While he had no memory of the actual appointment, he professed to have a basis for believing that he would not have required Ms. A.S. to even remove her pants. Dr. Sloka testified that a gown was only required for Ms. A.S.’s appointment because he intended to perform a cardiac examination. The cardiac examination would involve the exposure of Ms. A.S.’s left breast; therefore, a gown would be required. However, Ms. A.S. did not present with neurological symptoms from the neck down. Accordingly, he did not believe he would have required her to remove her pants. He thought it likely that she wore pants for her examination, but he acknowledged that he could not remember one way or the other. Regardless, he had no reason to require her to remove her underwear. He also noted she was 17 years old at the time. On this basis, he felt certain that she would have worn underwear for the examination.

[3365] Dr. Sloka also denied Ms. A.S.’s description of the leg-strength examination. This is not a method he would use to test muscle strength. He referred to this method as “down on the gas pedal.” He was taught to avoid using this method. It lacked utility because it would test multiple muscles at same time. Dr. Sloka agreed with Dr. Bril on this point. Dr. Sloka also noted that neurologists also do not test both legs simultaneously.

[3366] Dr. Sloka agreed, though, that testing leg strength is standard component of his exam. He did perform one on Ms. A.S., just not in the way she described.

[3367] According to Dr. Sloka, he was taught two different methods to test leg strength. One method involves the patient laying on the table, with their knee draw towards their hip (at a 90-degree angle). With this method, he would stand to the right of the patient and push his hand against the patient’s knee as the patient tries to draw their knee towards their head. Dr. Sloka testified that it was possible this was the method he used. He used this method in the first couple of years of his practice. Ultimately, he found that this method was too sensitive and picked up overly subtle differences between the limbs. Consequently, he switched methods after a couple of years.

[3368] Dr. Sloka described his revised leg-strength test as follows: the patient sits upright on the examination table and lifts their knee up as he pushes downward.

[3369] In either version of Dr. Sloka’s leg-strength examination, he did not stand at the foot of the examination table. He stood at the side of the examination table, and the patient would remain draped – he would remain on the “gown side” of the patient.

[3370] Based on his consultation letter, Dr. Sloka believed he performed the cardiac examination in his standard fashion, which involved only the exposure of the left breast and the placement of the stethoscope at various locations. His standard cardiac examination also involves a small modified respiratory examination.

[3371] In his handwritten notes for Ms. A.S.’s appointment, Dr. Sloka wrote the acronym, “FAFG.” In making this note, he documented that he had asked the patient for feedback about the examination: feedback asked feedback given. Dr. Sloka testified that it was his usual practice to ask for feedback from patients when the patient wore a gown and there was any kind of exposure. He would seek this kind of feedback where the appointment involved sensitive/intimate examinations. He would also seek this feedback for cardiac examinations. When he sought patient feedback, he would ask something like, “Was it okay the way we looked at you here today?” Dr. Sloka testified that he was not consistent in documenting this question in his handwritten notes.

Assessment of the Evidence and Analysis

[3372] The Crown reminds me that Ms. A.S. was a child when she testified. As I have observed at other times in this judgement, that submission holds limited weight with a 17-year-old. She was old enough to graduate high school. While she was in grade 12, it is not uncommon to find 17-year-olds in first year university. She was old enough to hold down a job. She was old enough to possess a driver’s license. I am skeptical of the notion that she lacked the maturity and development to accurately observe her experiences, to form accurate perceptions of her experiences, and to form accurate memories of her experiences. I have greater concern about the effects of passage of time on Ms. A.S.’s memory and the impact of media exposure on her memory and perceptions than I do the effects of her age on the quality of her evidence. Nothing in the evidence suggests that Ms. A.S., as a 17-year-old, lacked the capacity to observe, comprehend, and remember the events she testified about as an adult.

[3373] Importantly, some the factual areas where Ms. A.S. has proven herself unreliable were not peripheral areas, in my view. And in other areas, where her inaccuracies were relatively trivial, Ms. A.S. dug in, denying virtually incontrovertible facts, thereby harming her credibility.

[3374] Ms. A.S. appeared to believe that Dr. Sloka had isolated her near the end of the day, when no one else was around, not even secretarial staff. In her memory, there was only her and Dr. Sloka left at the appointment. That professed memory casts a sinister shadow over the appointment and implies that Dr. Sloka possessed improper motives. It is not simply a peripheral memory. It is also a demonstrably false memory. The appointment was at 9:00 a.m., the very beginning of the business day. The evidence established that Dr. Sloka fit many patients into his business day. The evidence also established that she filled out a patient information sheet. According to Dr. Sloka, his secretary provided these sheets to patients and asked that they fill them out in the waiting room before seeing Dr. Sloka. His evidence finds support in the consistency across all the patient data sheets proffered in this trial: Time and again, the patient information sheets in this trial contained a single consistent style of handwriting at the top of the page, where the patient’s name and other basic data (date of appointment, patient age, writing hand, and occupation) were recorded. Logic dictates that Dr. Sloka’s secretary filled out the top portion of the patient data sheet. Time and again, the remainder of the page was filled out by different handwriting. Logic dictates that the patients filled out the remainder of the page. Ms. A.S. acknowledged that her handwriting was on her patient information sheet, as was the handwriting of another person. I infer that Dr. Sloka’s secretary filled out portions of that sheet, which must have been provided to her by the secretary. In my view, the totality of the evidence overwhelmingly establishes that Ms. A.S. was not isolated and alone for the appointment. In the face of this independent and concrete evidence, Ms. A.S. remained unmoved. She suggested the appointment records were wrong. She remained certain that no one else was present but her and Dr. Sloka. The contradiction between the independent evidence and Ms. A.S.’s memory undermines her reliability. Her refusal to bow to concrete, independent, and incontrovertible evidence undermines her credibility.

[3375] Similarly, Ms. A.S.’s evidence regarding the date of the appointment revealed a credibility concern. At trial, she testified that the appointment occurred in September. However, before having an opportunity to review her medical records, she clearly told the police that she believed the appointment occurred in the spring, “close to summertime but not summertime yet.” She denied this obvious fact, insisting that she simply had asserted that it was hot outside. Ms. A.S. also testified that she believed her memory had improved in the three years since she gave her statement to police. Although she acknowledged that she skimmed her medical file in preparation for her testimony, she denied that this caused her to reconsider the date of the appointment and to instead believe that the appointment occurred in September. Moreover, even after being shown the date of the appointment on the consultation letter during cross-examination (October 1st), she held fast to her professed belief that the appointment occurred in September, not October. She testified that she did not think the date recorded on the consultation letter was correct. In doing so, it seemed obvious that she recognized that the timeframe she provided to the police was completely wrong and was trying to neutralize the error by picking a month that could still be warm but was also close to the documented appointment date – a date that would not likely be warm. She was hedging – attempting to reconcile what she told police with reality. Inaccuracy about the date of the appointment would have been entirely understandable, even expected, given the passage of eight years between her appointment and police statement. The date of the appointment was a relatively trivial matter. However, Ms. A.S.’s response to her own inaccuracy causes me concern about her credibility as a witness.

[3376] Ms. A.S. similarly harmed her credibility when insisting that her family doctor made the referral, when medical records indisputably established that the ER doctor made the referral.

[3377] Likewise, Ms. A.S. implausibly maintained that Dr. Sloka asked only a few questions about her situation before commencing the examination. When shown the contents of the consultation letter, she continued to suggest that much of the information may have come from the referral, which is demonstrably not accurate. The referral letter contained far more information that the ER record.

[3378] Ms. A.S. also insisted that her appointment could not have taken place in the office and examination rooms depicted in Exhibit 2. She insisted that the entire appointment occurred in a single room. This memory is closely tied to her memory that Dr. Sloka said very little before jumping straight into an examination. Accordingly, I do not consider it to be a peripheral memory. Nevertheless, it would be entirely understandable that, due to the passage of time, Ms. A.S. misremembered the layout of Dr. Sloka’s clinic. It is understandable that she might not recognize the rooms in which her appointment actually occurred. However, her insistence on the accuracy of her memory, despite evidence proving it to be demonstrably false, causes me concern about her credibility. She simply refused to admit the possibility that her memory might be wrong.

[3379] The same issue arises with Ms. A.S.’s prescription. She insisted Dr. Sloka prescribed Elavil. His records proved otherwise. I keep in mind that Dr. Sloka shared this information with Ms. A.S.’s family doctor, who was responsible for managing Ms. A.S.’s care. I reject as entirely fantastical the possibility that Dr. Sloka recorded one prescription but issued another.

[3380] Ms. A.S. revealed herself to possess an unreliable memory and an intransigence when that memory was shown to be inaccurate. These traits, by themselves, are concerning. A substantial likelihood of media tainting heightens my concern.

[3381] Between 2010 and 2018, Ms. A.S. believed that Dr. Sloka had conducted an appropriate examination. Then, in July of 2018, she read two articles about Dr. Sloka. Those articles recounted allegations of inadequate draping and inappropriate breast touching. Her friend, Ms. Ay.B., had commented in a Facebook post that Dr. Sloka had performed a breast examination on her. Ms. A.S. then read another article and read a publication on the CPSO website which recounted complaints of unnecessary breast examinations.

[3382] In my view, it is plausible that after significant exposure to reports of inappropriate breast examinations, Ms. A.S. has misremembered her cardiac examination as a breast examination. I will explain this conclusion further.

[3383] Ms. A.S. did not think Dr. Sloka performed a cardiac examination. The existence of this examination is absent from her original narrative. Nevertheless, Dr. Sloka’ consultation letter provides compelling evidence that one actually occurred. In his testimony, he provided his rationale for performing one. The Crown did not challenge his rationale in their submissions.

[3384] On Dr. Sloka’s evidence, her left breast would be exposed during the standard cardiac examination he documented. Ms. A.S. did not recall Dr. Sloka using a stethoscope on her chest but allowed for the possibility that he did. Proximate to the alleged breast examination, Ms. A.S. also recalled Dr. Sloka checking her back. She recalled that when he did so she felt pressure on her back. She had a vague memory of him using a stethoscope to listen to her back. This vague memory supports the contention that a cardiac examination occurred, because Dr. Sloka testified that his cardiac examinations include a modified respiratory examination, where a stethoscope is applied to the back to listen to the lung fields. Thus, Ms. A.S.’s vague memory provides support for an alternate explanation for the exposure of her left breast. Only after reading publications of other complaints did Ms. A.S.’s perception about the propriety of her examination change. Those publications alleged unjustified and inappropriate breast exams. In my view, Ms. A.S.’s concession of the possibility of a largely forgotten cardiac examination, in conjunction with her exposure to complaints about other improper breast examinations, raises a substantial likelihood that tainting has caused Ms. A.S. to misremember a documented cardiac examination as a breast examination.

[3385] I have admitted cross-count similar act evidence to support an inference that Dr. Sloka possessed a sexual purpose when conducting the examinations each of the complainants in this case. However, the likelihood of tainting in Ms. A.S.’s case undercuts the probative value of any cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when examining Ms. A.S. and, incidentally, to support the inference that a breast examination occurred. Moreover, as I will discuss momentarily, I have concluded that Dr. Sloka has rebutted an inference of a sexual purpose in relation to the examination of Ms. A.S..

[3386] The Crown also relies upon other specific granular cross-count similarities between the evidence of some other patients and Ms. A.S. in support of her evidence. I have considered those granular similarities and concluded that they lack sufficient probative value. I will discuss each in turn now.

[3387] The Crown argues that Ms. A.S.’s evidence regarding her leg strength examination is sufficient to rebut any concern about tainting, because it resembles the descriptions given by three other patients. I disagree. In doing so, I keep in mind that I have heard evidence from over 50 complainants. Charges against many have since been withdrawn or dismissed at the invitation of the Crown, leaving 48 live counts. Out of those complainants, only four of the complainants described roughly similar leg strength examinations that involved Dr. Sloka standing at the end of the bed. In my view, the general similarity of their descriptions does not provide support for their accuracy. Instead, I conclude that these four patients coincidentally but erroneously recounted their leg strength tests. In coming to this conclusion, I am mindful that each of the four patients had at least one other doctor involved in their care. A plausibility of patients conflating examinations by multiple doctors arises. Furthermore, while these four patients described generally similar examinations, their accounts contained discrepancies. Two of the four complainants did not express any contemporaneous concern about exposure during their leg strength examination. Also, each of the complainants describe their attire differently: one alleged she was naked; one alleged that she was wearing a gown and underwear; one alleged she was wearing a gown and was unsure about underwear, and Ms. A.S. alleged she was wearing a gown without underwear. There was also variability in their memory of the mechanics of their leg-strength examination, with some suggesting a leg press and some suggesting an ankle flex. I therefore conclude that any similarity between Ms. A.S. and three other complainants regarding their leg strength examination lacks enough probative value to be used as cross-count similar fact evidence to either support Ms. A.S.’s evidence or to rebut what I consider to be a real likelihood of tainting. The similarity between these four accounts does not negate the probability of coincidence and lacks sufficient probative value to offer support to Ms. A.S.’s evidence.

[3388] The Crown also argues that Ms. A.S. is like fifteen other complainants who allege that Dr. Sloka did not inform them of the nature of the examination before taking them from his office to the examination room. Ms. A.S.’s evidence differs from those other complainants, though. She did not allege a transition from the office to the examination room. She also alleged that Dr. Sloka specifically identified what he wanted to do: a full-body examination. Like others in this alleged constituency, Ms. A.S. does not belong in it. This purported similarity cannot support Ms. A.S.’s evidence or rebut the likelihood of tainting.

[3389] The Crown also contends that Ms. A.S. belongs to a group of sixteen complainants who testified that Dr. Sloka did not explain the reason for the proposed examinations. Once again, I do not believe she belongs in this purported constituency. First, her recollection about what was said during the appointment was demonstrably incomplete. Second, she testified that Dr. Sloka did in fact provide a reason for the supposed “full body” examination. On her evidence, he told her that he wanted to “look for any area of the body that might be reacting in a certain way.”

[3390] Dr. Sloka has denied performing a breast examination. And he has denied touching Ms. A.S.’s breasts in the manner she described. He maintains that any contact with her breast would have occurred incidentally to a legitimate cardiac examination. He has also denied performing the leg-strength examination in the manner described by Ms. A.S. In my view, his evidence was cogent and compelling. Accordingly, he has rebutted any inference that he possessed a sexual purpose when examining Ms. A.S. He has also compellingly denied Ms. Shell’s allegation that he conducted a breast examination. I accept that he had no reason to perform one and did not perform one. Instead, I accept that he conducted a cardiac examination in accordance with his standard protocol. I conclude that Ms. A.S., as a result of tainting, has misremembered this cardiac examination. I come to this conclusion despite the Crown’s ardent criticisms of Dr. Sloka’s evidence, which I will now address.

[3391] In my view, the Crown’s criticisms of Dr. Sloka’s evidence are unfounded. I also reject the contention that Dr. Sloka’s evidence provided support to Ms. A.S. on any material issue.

[3392] The Crown places significant reliance on Dr. Sloka’s use of the “FAFG” acronym in his working notes. I fail to see how this supports their theory of guilt.

[3393] On the Crown theory, Dr. Sloka recorded “FAFG” because he did an unwarranted breast examination for a sexual purpose. So, on the Crown theory, Dr. Sloka deliberately memorialized a completely inappropriate examination that was medically unnecessary but then covered it up in his consultation letter by reporting a cardiac examination and omitting mention of a breast examination. That is simply non-sensical conspiratorial thinking.

[3394] In support of this theory, the Crown wrongly contends that Dr. Sloka only recorded “FAFG” for breast, skin, rectal, or pelvic examinations. The Crown argues that, since Dr. Sloka did not do a skin, rectal, or pelvic examination, he must therefore have performed a breast examination. However, the Crown mischaracterizes Dr. Sloka’s evidence. Dr. Sloka testified that he asked for feedback and inconsistently recorded it when he did any examinations where his patients were gowned and there was any kind of exposure. On his evidence, a cardiac examination would warrant such an inquiry, because it involved exposure of Ms. A.S.’s breast. Dr. Sloka’s evidence therefore did not provide support for the contention that a breast examination occurred.

[3395] The Crown suggests that Dr. Sloka’s evidence about his leg-strength examinations also supports Ms. A.S.’s. I disagree. While Dr. Sloka acknowledged that Ms. A.S. may have been laying down for her leg-strength test, he denied that he ever had patients push their feet into his palms. He learned in his training that this method would not isolate any single muscle. Dr. Sloka and Ms. A.S. therefore disagreed on the central material issue with respect to the leg strength examination. Dr. Sloka’s evidence did not support her on this material issue.

[3396] The Crown argues that Dr. Sloka’s evidence that Ms. A.S. would have been wearing underwear ought to be disbelieved. The Crown has selected an excerpt from Dr. Sloka’s evidence and alleges that Dr. Sloka acknowledged that patients might not wear underwear for neurological examinations. The Crown has misread that excerpt. Dr. Sloka never testified that he required underwear to be removed for his standard neurological examination. He testified that a patient might be wearing their pants or might be in their underwear for a standard neurological examination, depending upon the nature of their presenting complaint. Indeed, some patients might not even be gowned for his standard neurological examination. He also testified that a patient’s underwear might need to be removed for other examinations, such as skin examination, rectal examination, or pelvic examination, none of which occurred in Ms. A.S.’s case. Dr. Sloka provided a reasoned explanation for why he did not believe Ms. A.S. had removed either her pants or underwear. While he had no independent recollection, and he could certainly not account for Ms. A.S. removing an item of clothing on her own volition, his explanation for his stated belief survived unscathed through cross-examination.

[3397] The Crown also argues that Dr. Sloka misstated Dr. Bril’s evidence, which they argue tells against his credibility. With respect, he did not misstate Dr. Bril’s evidence. As the defence points out in their submissions, the Crown misstated Dr. Bril’s evidence when questioning Dr. Sloka.

[3398] Ultimately, I do not believe the Crown managed to undermine Dr. Sloka’s evidence in any meaningful way during cross-examination.

[3399] I turn, then, to the evidence of Dr. Bril. Given that the Crown has not challenged the appropriateness of the decision to conduct a cardiac examination and given that Dr. Sloka agreed with Dr. Bril’s opinion about the leg-strength examination alleged by Ms. A.S., I do not consider the evidence of Dr. Bril to be of assistance in resolving the material issues in Ms. A.S.’s case.

[3400] Having considered all the evidence, I accept the evidence of Dr. Sloka. I accept that he only performed neurological and cardiac examinations in accordance with his training and standard approach. Specifically, I accept that he did not perform a breast examination on Ms. A.S. or gratuitously touch her breasts. I also accept that he did not perform the leg-strength examination in the manner Ms. A.S. described. I also accept that he performed these examinations for what he believed to be a valid medical purpose. Consequently, I conclude that the Crown has failed to prove that Dr. Sloka engaged in sexual activity. Instead, I conclude that the examinations were medical in nature. Lastly, I conclude that that he performed these examinations with Ms. A.S.’s explicit consent.

[3401] Dr. Sloka proposed a medical examination, Ms. A.S. consented to a medical examination, and Ms. A.S. received a medical examination.

[3402] Dr. Sloka will be acquitted on this count.

xii. J.S. (Count 3)

A Summary of Ms. J.S.’s Complaint and Dr. Sloka’s Response to It

[3403] Ms. J.S. alleged that Dr. Sloka conducted an examination of her skin during an appointment to assess her migraines. She was entirely naked during the skin examination. She also alleged that he asked her to bend over and spread her butt cheeks. She believed he told her that he was looking for six markings like the red birth mark on her nose.

[3404] Dr. Sloka could not recall whether he performed a skin examination. Any skin examination would not have been germane to her migraines. He did not record a skin examination in his consultation letter. However, he conceded he may have performed one in furtherance of an inquiry independent of her referral. The red birthmark on her nose may have inspired him to investigate whether Ms. J.S. suffered from tuberous sclerosis, which is a neurological disorder. The diagnostic criteria for that disease include the presence of red markings/lesions and other skin markings. He denied telling Ms. J.S. that he was looking for six café au lait spots, which are indicative of neurofibromatosis and unrelated to the red mark on her nose. He had no reason to look for neurofibromatosis. He also denied examining Ms. J.S. in his office, examining her while she was completely naked, and asking her to bend over and spread her butt cheeks. Any skin examination would have occurred in his examination room and in accordance with his standard method.

The Circumstances of Ms. J.S.’s Referral and Treatment History

[3405] Ms. J.S. became a patient early in Dr. Sloka’s practice. Her family doctor, Dr. Shireen Saban made the referral on January 6, 2010. The family doctor sought Dr. Sloka’s guidance in dealing with the frequency of Ms. J.S.’s migraines. She had also suffered a recent episode where her arm and face went numb. This episode differed from her usual migraines.

[3406] Ms. J.S. attended her first appointment with Dr. Sloka on January 25, 2010. She attended one additional follow up appointment. By that time, she had changed her migraine medicine and her birth control prescription. Her headache frequency drastically decreased. Dr. Sloka terminated his role in her care.

The Evidence of Ms. J.S.

[3407] Ms. J.S. was 25 years old at the time of her first appointment with Dr. Sloka. She was 36 when she testified.

[3408] She attended her first appointment in the company of her then fiancé, D.S. Mr. D.S. remained in the waiting room throughout the appointment.

[3409] Ms. J.S.’s description of Dr. Sloka’s office plays an important part in her narrative and any assessment of its plausibility. In her recollection, the entire appointment occurred in Dr. Sloka’s office. She never entered the examination room. As she recalled it, Dr. Sloka’s desk was situated beside the windows, on the side opposite the entrance. Dr. Sloka sat in a chair at his rectangular desk when first speaking to Ms. J.S. There were no other chairs in the office, only a stool in the middle of the room, surrounded by open space. Apart from the stool, nothing else occupied the open space between the desk and the office entrance. She sat on the stool for the interview portion of the appointment. Although she did not enter the examination room, she recalled observing the entrance to the examination room on the right wall of the office. The doorway to the examination room remained open for the appointment. Ms. J.S.’s description of the office layout and her diagram bore little resemblance to the actual layout depicted in the photographs in Exhibit 2. Nevertheless, Ms. J.S. agreed in chief that the photographs contained in Exhibit 2 depicted Dr. Sloka’s office.

[3410] In cross-examination, defence counsel presented Ms. J.S. with a diagram she drew for the police. That diagram represented her memory of the layout of the office when she gave her police statement. She had reviewed it when preparing to testify. Her evidence in-chief was consistent with the contents of the diagram. It became Exhibit 116. The diagram depicted a stool in the middle of an open space with a rectangular desk adjacent to the window located on the opposite side of the room from the entrance. Her eventual examination occurred by the stool. Defence counsel also took Ms. J.S. to the photograph of Dr. Sloka’s office, at page 6 in Exhibit 2, which she had identified during her examination in-chief. No stool was depicted in the middle of the room. No rectangular desk was depicted beside the window. It showed a large L-shaped desk along the left wall and extending from it, with three chairs occupying the crowded space along the right wall. When asked about whether she had a current recollection of the shape of the desk, she testified, “Not really. I obviously saw the picture this morning and that is what I remember now.” She elaborated, “Yeah, I didn’t recall the shape of the desk prior to that until the picture triggered my memory.” When asked about the stool, she testified that the stool was situated out of frame. Defence counsel then took Ms. J.S. to page 7 of Exhibit 2, which depicted the narrow space between the L-shaped desk and the main entrance – the out of frame area in which the stool supposedly resided. No stool was present, only one of the chairs also depicted at the bottom of page 6. At that juncture, Ms. J.S. testified that the office depicted in Exhibit 2 was not the office in her memory. She testified that the desk in the exhibit looked much bigger than she remembered. She acknowledged that there did not exist much room in the passage depicted in Exhibit 2. She agreed that there would be very little room for her to stand in that narrow space and be examined. Nevertheless, she denied ever being in the examination room, even after being shown a picture of the examination room from page 8 of Exhibit 2.

[3411] In short, the layout of Dr. Sloka’s office did not accord with Ms. J.S.’s memory of its layout. And Ms. J.S. acknowledged that the layout shown in Dr. Sloka’s office left little room for her to be examined in the manner she ultimately described.

[3412] Ms. J.S. testified that the appointment began with a discussion in Dr. Sloka’s office, in which she provided her personal and medical history. She sat on a stool in the middle of the room for that discussion – not one of the chairs depicted in Exhibit 2. She spoke of arm weakness and garbled speech. She did dot recall if he discussed the possibility of a seizure. She also did not recall whether the possibility of a stroke had been discussed, but she did agree that her family doctor had noted that possibility when writing a referral letter to Dr. Sloka. She also agreed that her family doctor ordered a CT scan of her brain at the time of the referral.

[3413] During the in-office discussion, Dr. Sloka asked her about her birth control medication and any side effects caused by it. Dr. Sloka also asked about a red birth mark on her nose. Ms. J.S. testified that Dr. Sloka told her that six or more of those marks would suggest the possibility of a neurological disease. He asked if she had more elsewhere. She told him “I do not think so.” In cross-examination, Ms. J.S. did not think that that Dr. Sloka expressed an interest in searching for “café au lait” spots but did not outright reject the possibility: “I don’t recall that…. He could have. Café au lait would surprise me because the birthmark on my nose is red.” She repeatedly indicated that she believed he had said he was looking for more markings like the red one on her nose. She did not believe that Dr. Sloka asked about other markings related to neurofibromatosis (axillary/inguinal freckling & lumps). She seemed to recognize the term “café au lait spots”, but I cannot tell if she simply concluded that counsel was referring to the colour of the birth marks or if she had independent knowledge of this type of birth mark. The issue was not explored by counsel.

[3414] After expressing his interest in search for more red birth marks, Dr. Sloka told Ms. J.S. that he would need her to disrobe completely so that he could perform a thorough examination. Ms. J.S. testified that he did not indicate whether the examination would be physical or visual. Ms. J.S. assumed that the proposed examination was proper and required. She did not recall whether Dr. Sloka mentioned a cardiac examination or any other specific types of examination.

[3415] Ms. J.S. testified that Dr. Sloka told her that he would leave a gown out for her to wear. He retrieved the gown from the examination room and brought it into his office. He told her that his office was warmer than his examination room, and for this reason the examination was better performed there. Dr. Sloka then left the office to allow her to get into her gown. She was adamant that she never entered the examination room.

[3416] In contrast to her evidence at trial, Ms. J.S. told the police that the gown was already present on a chair or somewhere else in the office and Dr. Sloka handed it to her. Her memory of Dr. Sloka going into the examination room to retrieve the gown was a new memory.

[3417] According to Ms. J.S., she removed all her clothing and got into the gown. She did so to facilitate the proposed examination. Dr. Sloka then returned to the room. He asked her if the room temperature was satisfactory.

[3418] In Ms. J.S.’s recollection, she stood in the middle of the office for the examination adjacent to the stool – that is, in the open space not depicted in Exhibit 2, beside the stool not depicted in Exhibit 2. He stood too. After reviewing photographs of the office, she acknowledged that there would be very little room to perform the alleged examination in Dr. Sloka’s office. However, she remained adamant that she did not enter the examination room.

[3419] Ms. J.S. testified that Dr. Sloka began the examination by looking at the red birthmark on her nose. Then he looked at her exposed arms, after which he told her that she would need to remove the gown so that he could complete the exam. He told her, “I know this sounds weird but, in order to see if you have these marks, I need to do a full visual examination.” She told him she understood and removed her gown. She rejected any suggestion that she incrementally revealed portions of her body during the skin examination. She insisted that she removed the entire gown at Dr. Sloka’s request.

[3420] While Ms. J.S. insisted that she removed her clothing while inside Dr. Sloka’s office, she had no memory of where she placed her clothes after removing them. She said it would make sense if she put them on a chair or something – despite not remembering the presence of any chairs in the room.

[3421] As for the gown, Ms. J.S. testified that Dr. Sloka retrieved the gown from the examination room. Her account to the police differed. She told police that Dr. Sloka procured the gown from a chair or somewhere else within reach in Dr. Sloka’s office.

[3422] Ms. J.S. testified that, as Dr. Sloka examined her exposed body for the skin examination, he commented at one point that he was not seeing any birthmarks. He was about a foot away from her body as he performed his visual inspection. He crouched as he examined her torso. She recalled facing the window during the examination.

[3423] According to Ms. J.S., as Dr. Sloka examined her front, he cupped her breasts and told her he was checking for lumps. He used two hands, one on each breast, cupping her breasts simultaneously. He then moved his hands further up her breasts, applying light pressure as he went. He cupped her breasts from below with the palm of his hands. As he moved upwards, he applied pressure with his fingers. Ms. J.S. testified that he used two hands, one on each breast, using both simultaneously. His hands were on her breasts for 30 to 60 seconds.

[3424] Ms. J.S. also described Dr. Sloka examining her back. When examining her back, he mentioned seeing more birthmarks. He hinted that they might be indicative of a neurological issue. At one point, he told her he needed to check her buttocks to ensure that there were no hidden marks. Accordingly, he asked her to bend over and spread her cheeks so that he could get a better look. She was bent over for a little less than a minute, during which time both were silent. As he examined her buttocks, he put one hand on each cheek and pressed slightly. He said he was doing so to get a better look. Then, he told her that he was done the examination.

[3425] In Ms. J.S.’s telling, Dr. Sloka revolved around her as she stood stationary for the skin examination. In addition, she testified that Dr. Sloka moved the stool behind her when he went behind her to examine her back. However, in her police statement, she described Dr. Sloka as sitting on the stool during the skin examination while she rotated for him at his request.

[3426] According to Ms. J.S.’s in-chief testimony, Dr. Sloka did not examine any area below her buttocks. However, in cross-examination, she testified that it was her impression that Dr. Sloka checked all her body in search of red birthmarks. In re-examination, she testified that she did not recall the examination of her legs, eyes, and ears. Nevertheless, she continued to be left with the impression that the examination was thorough.

[3427] In cross-examination, the defence asked Ms. J.S. if she recalled various aspects of Dr. Sloka’s standard neurological examination occurring. Ms. J.S. believed she remembered Dr. Sloka using a reflex hammer on her elbow. She also conceded the possibility of Dr. Sloka examining the strength of her arms and legs but then denied the possibility of a leg strength examination that involved her being situated on the examination table. Similarly, she denied reflex testing on her legs. She did not situate the reflex or strength tests within the overall sequence of her narrative. She could not recall any other aspects of Dr. Sloka’s standard neurological examination. As for a cardiac examination or any examination involving the use of a stethoscope, Ms. J.S. said that she believed she would remember the use of a stethoscope, and she did not remember it.

[3428] Regarding the alleged breast examination that occurred during the alleged skin examination, Ms. J.S. acknowledged that her memory had changed since giving her statement to the police. In her police account, Ms. H.J. said, “that he just kind of cupped them too, I think. He said he was looking for lumps.” She did not mention Dr. Sloka palpating the entirety of her breasts, as she did at trial. The complete palpation was an admittedly new memory.

[3429] Ms. J.S. testified that, after the examination, she put her robe back on. She reported feeling very uncomfortable. She had never heard of anyone having an examination like that. Dr. Sloka discussed the examination with her. She testified that he told her that he did not see six of the marks he had been looking for. He did not find evidence of the neurological condition for which he had been searching. Dr. Sloka prescribed her a medication for her headaches. She did not believe that she booked a follow up appointment.

[3430] At the conclusion of the first appointment, Ms. J.S. rejoined her fiancé in the waiting room. According to Ms. J.S., she immediately told him, “Well, that was really weird.” Then outside, she told Mr. D.S. that Dr. Sloka asked her to disrobe completely and to bend over and spread her butt cheeks. Ms. J.S. agreed that she did not tell Mr. D.S. that Dr. Sloka touched her buttocks. She also did not recall telling Mr. D.S. that Dr. Sloka had been touching her breasts. She explained, “I think that the buttocks was the most important thing we talked about.”

[3431] Ms. J.S. testified that both she and Mr. D.S. voiced their belief that the examination “wasn’t right.” He asked her why she would allow that to happen. She replied by telling him that she trusted a medical professional. Ms. J.S. testified that they talked about the visit occasionally over the years but were not sure what to do about it. Ms. J.S. thought, being a doctor, Dr. Sloka must have had some professional reason for conducting the examination in the way that he did.

[3432] Ms. J.S. testified that she suffered a severe reaction to the medication prescribed by Dr. Sloka at the first appointment. She ended up in the ER. Afterwards, she booked a follow-up appointment with Dr. Sloka. Neither the Crown nor the defence asked Ms. J.S. about the follow up appointment. Intriguingly, Dr. Sloka’s reporting letter for the second visit suggests a second examination: “her examination today remains within normal limits.” The possibility of an examination at the second appointment was not raised with Ms. J.S. However, given her purported consternation about the first examination, I would have expected this second examination to have been memorable.

[3433] Ms. J.S. testified that she read an article around April of 2019 in The Record about how patients of Dr. Sloka had filed charges against him. She agreed that the article could have been from May 1, 2019. When asked about the allegations reported in those articles, she could not remember all the details. She could not remember whether Dr. Sloka had been her neurologist but thought it possible. Later, in September of 2019, she saw another article in The Record about more complainants. She agreed that the article was published on September 24, 2019. This article reported the arrest of Dr. Sloka. She did not remember the details of the allegations recounted in the article. She concluded that Dr. Sloka must have been her neurologist, and she told her husband. She also contacted her own doctor to get the name of the neurologist that had treated her, at which point she confirmed that Dr. Sloka had been her neurologist. She then contacted the police on September 25, 2019. She provided her statement to the police on October 15, 2019.

The Evidence of D.S.

[3434] D.S. confirmed accompanying Ms. J.S. to her first appointment with Dr. Sloka. He sat in the waiting room during the appointment. Following the appointment, Ms. J.S. returned to the waiting room. Mr. D.S. described Ms. J.S. as looking off. She quickly said to him something like, “That was a bit weird.” Their conversation continued in the car. As they spoke, she informed him that she had been completely naked for an examination. She said that Dr. Sloka had performed a full visual inspection, which included her butt. He was caught off-guard and was upset by this information. He asked her why a neurologist would be looking at her butt. She told him that Dr. Sloka was looking for brown spots or skin discolorations. Mr. D.S. found this explanation dubious. Ms. J.S. did not mention any physical contact, only a visual inspection. Mr. D.S. was certain that he asked her if there had been any penetration. Her disclosure also did not include mention of a breast examination.

[3435] In cross-examination, defence counsel explored the absence any allegation of physical touching in Ms. J.S.’s disclosure to Mr. D.S. When asked to confirm that Ms. J.S. did not complaint of buttocks-touching, Mr. D.S. responded, “Not that it didn’t happen, it’s just not what came up in that initial conversation.” Defence counsel cautioned Mr. D.S. about making argument in his evidence. Then defence counsel sought twice to confirm that Ms. J.S. had not mentioned buttocks touching. Twice, Mr. D.S. replied, “Not that I remember.” Defence counsel pressed on, seeking his acknowledgement that she never complained of buttocks touching. In doing so, defence counsel suggested that such a disclosure would be memorable. Mr. D.S. then suggested he may have missed hearing some of her complaint, because he was “seeing red” after Ms. J.S. disclosed her complete nudity. The defence continued to press. Mr. D.S. replied at one point, “From all I know, she felt that she had to hold that back because it would make me more angry.” Ultimately, Mr. D.S. acknowledged that Ms. J.S. had never told him at any juncture between the appointment and his testimony that Dr. Sloka had touched her buttocks.

[3436] While Mr. D.S. had suggested he was “seeing red” after Ms. J.S.’s disclosure to him, in his statement to the police, he said, “…and I thought that was kinda strange. At the time we kinda just laughed about it. Not really understanding the seriousness of the situation.”

[3437] Mr. D.S. confirmed in his evidence that he spoke to Ms. J.S. after she provided her police statement and before he provided his police statement a few months later. In that time, they each discussed their memories of Ms. J.S.’s disclosure to Mr. D.S. in the aftermath of the appointment.

The Evidence of Dr. Bril

[3438] Dr. Bril testified that it was not neurologically reasonable to conduct a skin examination or breast examination on Ms. J.S..

[3439] In seeking Dr. Bril’s opinion about the reasonableness of a skin examination, the Crown confined their focus on the reasonableness of a neurofibromatosis investigation. In Dr. Bril’s opinion, given the information provided in the doctor’s referral and the patient’s history, there was no medical reason to associate Ms. J.S.’s headaches with neurofibromatosis. Neurofibromatosis was not at all on the differential diagnosis for Ms. J.S..

[3440] Dr. Bril agreed that it was appropriate for Dr. Sloka to inquire about the birthmark on Ms. J.S.’s nose, even if the birthmark was not directly relevant to the assessment of Ms. J.S.’s headaches. It was appropriate for Dr. Sloka to inquire about whether Ms. J.S. had additional birth marks. If Ms. J.S. had informed Dr. Sloka that she possessed other birthmarks, it might be reasonable for Dr. Sloka to examine her skin to determine their size and quantity. However, Dr. Bril believed that a woman would be aware of all the markings on their skin. She rejected the notion that a woman might be unsure. Nevertheless, in the case of patients who were unsure of whether they possessed additional birth marks, Dr. Bril agreed it might be reasonable to proceed to a skin examination.

[3441] Dr. Bril had little experience with respect to tuberous sclerosis. She had only seen one patient in her career with this disease. In preparation for her testimony, she had to review materials about the disease to refresh her memory about it. In Dr. Bril’s opinion, the disease was “vanishingly rare.” However, she acknowledged that one in six thousand people in the general population have the disease.

[3442] In Dr. Bril’s opinion, it would be infrequently reasonable to screen for tuberous sclerosis. Screening should be considered when a patient suffers seizures and when a brain MRI reveals a specific kind of lesion. When a neurologist suspects tuberous sclerosis, the neurologist should refer the patient to other specialists, including a dermatologist and genetic specialist.

[3443] Dr. Bril testified that tuberous sclerosis patients may possess facial lesions, which can sometimes go unrecognized; they can be mistaken for acne.

The Evidence of Dr. Sloka

[3444] Dr. Sloka had no independent memory of Ms. J.S. He relied upon his reporting letters for the truth of their contents and the rest of Ms. J.S.’s chart for necessary context.

[3445] Dr. Sloka denied performing a breast examination and agreed that one was not warranted in a patient with Ms. J.S.’s history and presentation.

[3446] According to Dr. Sloka’s reporting letter, he performed neurological and cardiac examinations.

[3447] The decision to conduct a neurological examination was not controversial.

[3448] As for the cardiac examination, Dr. Sloka testified that Dr. Sloka testified that this examination was motivated by his standard approach to patients with headaches. In addition, he observed that he was considering prescribing Elavil and Zomig, which have cardiac contraindications.

[3449] Dr. Sloka did not record a skin examination in his reporting letter or handwritten notes. He could not remember whether he performed one. He typically did not record the results of examinations with negative findings. He also did not consistently record performing skin examinations in his handwritten notes.

[3450] Dr. Sloka testified that nothing in Ms. J.S.’s medical file suggested a justification for a skin examination. However, he noted that Ms. J.S. testified that she had a red birth mark on her nose, which she claimed Dr. Sloka noticed during the examination. Her testimony on this point caused him to think that he might have been interested in investigating the possibility that Ms. J.S. suffered from tuberous sclerosis. He further testified that given Ms. J.S.’s symptoms, neurocutaneous disease might be on the list of things he might consider, although it would not be high on that list.

[3451] According to his training and experience, tuberous sclerosis manifests itself in the skin. Patients with that condition may have red dots around the nose area, growths on the sides of their nail beds, small with patches (ash leaf patches), and rough patches (shagreen patches). These are the skin manifestations he would look for when searching for evidence of tuberous sclerosis, which is a neurocutaneous disease. The presence of lumps or masses are not investigated when looking for evidence of tuberous sclerosis. Café au lait spots are not associated with tuberous sclerosis.

[3452] According to his training and experience, he believed that one in every six thousand people suffered from this disease. Dr. Sloka testified that five to ten patients in his practice suffered from tuberous sclerosis. He diagnosed some of them. Unlike Dr. Bril, he did not consider the condition vanishingly rare.

[3453] Dr. Sloka testified that, if he did perform a skin examination, he would have done so in accordance with his standard method, not in the manner described by Ms. J.S..

[3454] Dr. Sloka recorded that the neurological and cardiac examinations were normal.

[3455] At the conclusion of his examinations, Dr. Sloka formed the opinion that Ms. J.S. may have suffered a complex migraine on a single occasion. He was not concerned about the possibility of a seizure. Nevertheless, he ordered a CT scan to ensure no brain abnormalities. Dr. Sloka was also concerned about Ms. J.S. continuing with her contraceptive medication. He advised her to stop and suggested that the family physician discuss alternative means of birth control with her. He then prescribed Elavil and Amerge to help address her migraines. He asked to see Ms. J.S. in follow up in three months time.

[3456] On May 26, 2010, Dr. Sloka met Ms. J.S. in follow up. Ms. J.S. had reported that she had stopped taking oral contraceptive medication and had switched to Depo-Provera. Her migraine frequency had decreased. He conducted a neurological examination on that date. The results were normal. Dr. Sloka concluded that further follow up was unnecessary.

Assessment of the Evidence and Analysis

[3457] Ms. J.S.’s case is a perplexing one. On the one hand, aspects of her evidence reveal her memory to be extremely unreliable. And her husband, due to misplaced loyalty and bias, provided what I consider to be untrustworthy evidence. However, Ms. J.S. also recounted Dr. Sloka mentioning the search for six red birthmarks. That number coincides with requisite the number of café au lait spots needed to meet one of the diagnostic criteria for neurofibromatosis. The Crown asks that I conclude that Dr. Sloka dishonestly used the search for café au lait spots as a pretext for getting Ms. J.S. naked. From that conclusion, the Crown asks that I conclude that the examination was sexual and not medical. For the reasons that follow, I cannot draw that conclusion beyond a reasonable doubt.

[3458] Ms. J.S. was an extremely unreliable historian. There are specific instances in which I am satisfied her recollection is demonstrably wrong. These instances do not involve peripheral matters but instead involve the physical context of the impugned examination. In the result, I cannot conclude as accurate either Ms. J.S.’s description of the examination or her account of what Dr. Sloka said during the examination. I will attempt to elaborate.

[3459] Ms. J.S. was adamant that the examination occurred in Dr. Sloka’s office – in the same room in which Dr. Sloka took her history. Her memory of the layout of the office, including its furnishings, was wholly inaccurate. That inaccurate layout was integral to her description of the skin examination. She placed herself in the middle of the room, sitting on a stool for the consultation. She stood beside the stool for the examination. She was surrounded by open space. Dr. Sloka’s rectangular desk sat adjacent to the windows. None of that recollection was possible. Dr. Sloka’s L-shaped desk dominated the floor space, leaving little room for his chair and the two other chairs reserved for patients. There was no rectangular desk against the window. Dr. Sloka’s office did not contain a stool, only three chairs. She could not have sat on a stool in the middle of the room for her interview and he could not have sat on that stool as she stood before him. Also, Ms. J.S. acknowledged that the passageway that extended across the front of the desk towards the examination-room doorway left very little room for the examination she described. Her memory did not have her in a cramped passageway only a few feet across and immediately adjacent to the door leading to the hallway. Ms. J.S. ultimately acknowledged that the office depicted in Exhibit 2 was not the office in her memory. Nevertheless, I have no doubt that the appointment occurred at Dr. Sloka’s Urgent Neurology Clinic. And I have no doubt that the consultation occurred in the office depicted in Exhibit 2. I am therefore satisfied that the examination she described could not have occurred as she described. Physically speaking, her account is extremely implausible. On its own, this implausibility causes me to conclude that the examination did not occur in Dr. Sloka’s office. However, additional evidence also supports this conclusion.

[3460] Dr. Sloka’s consultation report discloses a neurological examination and a cardiac examination. I consider this contemporaneous report to be highly probative evidence that establishes that Dr. Sloka performed these two examinations. The results of these examinations clearly influenced the impression he ultimately reached and reported. They were highly relevant to his opinion. The notion that he fabricated the performance of these two highly relevant examinations is outlandishly fanciful. I am supported in this conclusion by Ms. J.S.’s acknowledgement that Dr. Sloka conducted at least some reflex and strength tests, indicating that Dr. Sloka performed a neurological examination. Consequently, I am satisfied that Dr. Sloka performed neurological and cardiac examinations. I am also satisfied that Dr. Sloka’s method for conducting both these examinations involves use of the examination table. I am therefore satisfied that Ms. J.S. must have been in the examination room, despite what she believed. Consequently, I am satisfied that her memory of being examined in the middle of Dr. Sloka’s office while standing beside a stool is demonstrably false.

[3461] Physical implausibility is not the only issue arising from Ms. J.S.’s memory of the physical context. Recall that she testified that he provided an explanation for conducting the examination in his office. On her account, he told her that his office was warmer than the examination room. I am skeptical that the temperature between the two adjacent rooms differed appreciably, given that the doorway between the two rooms remained open. Dr. Sloka testified that the temperature was essentially the same in both rooms. I have difficulty rejecting that assertion. That is not my main concern, though. Once I conclude that the examination did not occur in the office, I consequently conclude that Dr. Sloka did not provide the explanation she claims he provided: he did not tell her that his office was warmer than the examination room. In my view, she has a false memory of something Dr. Sloka said to her.

[3462] Other aspects of Ms. J.S.’s testimony raise serious concerns about her reliability. Her testimonial account of the skin examination fundamentally contradicted her police account of that same skin examination. In her testimonial account, she stood facing the window while Dr. Sloka, and perhaps the stool, rotated around her. In her police account, she rotated in front of Dr. Sloka while he sat on the stool. A conflict of this magnitude raises doubt about whether the examination occurred at all.

[3463] The Crown places great reliance on the fact that Ms. J.S. remembered Dr. Sloka saying he wanted to look for six birthmarks. They suggest that Dr. Sloka must have told her that he was looking for six café au lait spots. I can certainly understand the temptation to come to this conclusion. Her memory of the number six raises significant suspicion. However, as noted, Ms. J.S. has shown herself to be someone with a demonstrably inaccurate memory of things said by Dr. Sloka. Also, she said she would be surprised if Dr. Sloka had mentioned café au lait spots. She believed he wanted to look for more red spots like the one on her nose. The presence of six red marks is not a diagnostic criterion for either neurofibromatosis or tuberous sclerosis. I would also note that the use of the term “café au lait spots” by defence counsel did not cause Ms. J.S. to miss a beat. She did not hesitate in answering, which makes me wonder if she is independently familiar with the term. While it is conceivable that she instantly interpreted the term as a reference to the colour of the birthmarks, “café au lait spots” is not an everyday expression. Ms. J.S. also did not recall Dr. Sloka inquiring freckling or lumps – other criteria of neurofibromatosis. All these factors cause me to question the accuracy of Ms. J.S.’s memory about what Dr. Sloka said to her and in what context he said it. In short, Ms. J.S.’s evidence, taken as a whole, does not provide me a sufficient basis for concluding that Dr. Sloka told her that he was investigating neurofibromatosis by looking for six café au lait spots.

[3464] The problem with Ms. J.S. is that her memory is obviously populated by fragments which she has attempted to bind into a cohesive whole. The things and events her memory has assembled from these fragments, in some circumstances, do not conform with reality. I simply cannot trust what Ms. J.S. has attempted to reconstruct from the fragments of her memory.

[3465] Nevertheless, I consider it plausible that Dr. Sloka conducted a skin examination, even if I cannot come to this conclusion beyond a reasonable doubt. However, even assuming he conducted a skin examination, I am unable to draw conclusions about Dr. Sloka’s motivation. It would appear that Ms. J.S.’s red birth mark at least provided a plausible reason to be curious about tuberous sclerosis. Dr. Sloka had diagnosed other patients with it. Somewhere between five to ten patients had this condition, some of which he diagnosed. He was familiar with it. Ms. J.S. seemed equivocal on her awareness of any other similar marks on her body. Dr. Sloka conceded the possibility that he might have been interested in investigating this condition, even if it was unrelated to the reason for Ms. J.S.’s referral. Dr. Bril considered it reasonable to conduct an “incidental” inquiry of this nature. Assuming he was engaged in a bona fides investigation of tuberous sclerosis, that investigation could be medically reasonable if done in a reasonable manner.

[3466] Even assuming Dr. Sloka performed a skin examination, I cannot rely upon the evidence of Ms. J.S. to provide an accurate account of the way it was conducted. Again, I point to her woefully unreliable account of the physical context of the examination. And again, I point to her inadequate and inaccurate memory of the neurological and cardiac examinations. In addition, I note that Ms. J.S.’s testimonial account of the skin examination differed from the account in her police statement. In both accounts, she described breast touching during the skin examination. However, her testimonial account alleged more extensive touching than her police account. Her testimonial account alleged a palpation of the entire breasts after an initial cupping of the bottom of the breasts. She acknowledged that this description of complete palpation was a new memory. In her account to the police, she only alleged that Dr. Sloka “just kind of cupped them.” Had the alleged palpation actually occurred, I think the police would have heard about it.

[3467] I come now to the allegation of buttocks touching. Again, Ms. J.S.’s general reliability is so compromised, that I have doubts about this allegation. Those doubts are enhanced by the omission of this allegation from her allegedly contemporaneous complaint to her fiancé. In Ms. J.S.’s telling, she was disturbed by what transpired in the appointment and told her fiancé about aspects of the appointment that disturbed her. In describing the examination, she complained about having to bend over and having to spread her cheeks. However, she did not complain about breast touching or buttocks touching. Given the purported existence of her motivation to complain, the absence of breast touching and buttocks touching from her complaint suggests those two things did not occur. Her purported memory of these things was either false or dishonest. Her frailty here undermines her evidence generally and, more specifically, undermines her evidence about a naked skin examination.

[3468] I now come to D.S.’s evidence. Mr. D.S. was obviously loyal to his wife and motivated to support her. Unfortunately, he revealed himself to be a biased witness, willing to adapt his testimony to support his wife. The contrast between his police statement and his testimony calls into question both his claim and Ms. J.S.’s claim about what she reported to him following her first appointment. In his account to the police, he told them that, after his wife’s disclosure, “we just kind of laughed about it not really understanding the seriousness of the situation.” At trial, when attempting to explain why he might not have heard certain details – details which his wife conceded were never shared – he testified that he was “seeing red” and may not have heard everything Ms. J.S. had said. His trial version suggests he heard enough to become really angry. His police version suggests otherwise. In addition, his trial version was clearly constructed to provide an excuse for why his police version did not relay more serious accusations. The contrast between his trial version and police version therefore raises concerns about his credibility. His bias was obvious.

[3469] Similarly, Mr. D.S. repeatedly obfuscated when defence counsel sought to have him acknowledge that any allegation of buttocks-touching would be memorable. It was painfully obvious that he knew the true answer to the questions but was not willing to concede that answer to defence counsel. Further, it was obvious that while obfuscating, he took the opportunity to argue his wife’s case: “not that it didn’t happen, it’s just not what came up in that initial conversation.” As a result, I am unable to trust Mr. D.S.’s evidence.

[3470] Mr. D.S. also acknowledged discussing with Ms. J.S. their respective memories of Ms. J.S.’s disclosure in the aftermath of the appointment. These discussions occurred after Ms. J.S.’s police statement and before Mr. D.S.’s a few months later. These conversations give rise to a significant concern that the Crown’s anti-tainting witness has been tainted by the very person his evidence was meant to rehabilitate.

[3471] Given my inability to trust Mr. D.S.’s evidence and given my grave concerns about Ms. J.S.’s reliability, I am unable to determine what if anything Ms. J.S. disclosed to Mr. D.S. in the aftermath of her first appointment.

[3472] I turn now to the media coverage Ms. J.S. reviewed prior to making her complaint to the police. Many aspects of Ms. J.S.’s allegations are mirrored in the two articles she appears to have read on May 1, 2019, and September 24, 2019. The May 1st article contained patient allegations that included “[being] asked to undress completely for an examination or being inadequately draped, touching of their breasts, close skin examinations in the nude, and inserting ungloved fingers into a patient’s vagina and rectum.” It also reported a complaint that Dr. Sloka “felt up” a patient. Many of these reported allegations form the broad-brush strokes of the allegations Ms. J.S. eventually made. The September 24th article repeated the allegations reported in the May 1st article. Ms. J.S. contacted the police one day after reading the September 24th article.

[3473] Given Ms. J.S.’s demonstrably unreliable evidence and given my conclusion that any examination could not have unfolded in the way she describes it unfolding in the office, and given the strong similarity of her allegations to what she read about in The Record, I have serious concerns that her evidence, her memory, and her perception has been influenced by what she read in the media.

[3474] I recognize that the media did not specifically advert to cheek spreading and buttocks touching. Those finer details are not found in the material Ms. J.S. read. But naked skin examinations were reported. Being felt up was reported. Contact with the anus and vagina was reported. Breach touching was reported. There is enough similarity between what Ms. J.S. read and what she complained about 9 years after her appointment to give rise to at least a plausibility of tainting. I am reminded of the game of telephone. As we all know, with each retelling, the message changes slightly – evolution through repetition.

[3475] Given my concerns about Mr. D.S.’s evidence, his evidence is not capable of rebutting the plausibility of tainting. Even if I could rely upon it, and I cannot, it cannot rebut the concern that the breast-touching and buttocks-touching allegations were influenced by media exposure.

[3476] I have permitted the use of cross-count similar fact evidence for the purpose of supporting the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on patients. Having considered Dr. Sloka’s evidence about Ms. J.S. against the totality of the evidence, I am satisfied that he has refuted any available inference of a sexual purpose. The Crown also asks that I consider two granular cross-count similarities to support Ms. J.S.’s evidence on other material issues. In particular, the Crown asks that I consider the similarity of two other complaints to Ms. J.S.’s claim that Dr. Sloka had her bend over and spread her cheeks and that he pressed his hand on each cheek. The Crown also asks that I consider the evidence of other patients who allege breast touching. In my view, these cross-count similarities do not have sufficient probative value to warrant admission in relation to any other material issue. I will deal with each of these cross-count similarities in turn.

[3477] I begin with the cross-count similarity involving buttocks touching. Two other patients testified about buttocks touching, Ms. A.D. and Ms. J.H. However, neither Ms. A.D. nor Ms. J.H. testified that Dr. Sloka had them bend over in the manner described by Ms. J.S. Also, neither of them testified that Dr. Sloka asked them to spread their own cheeks. There are aspects of similarity on a generic level, but also aspects of dissimilarity. Also, these three patients constitute a small minority of the skin-examination patients. I do not see a probative pattern that is unlikely attributable to coincidence. Given the plausibility of media tainting, given the relative infrequency of this specific complaint in cases involving skin examinations and given the insufficient similarity present in the evidence of these three witnesses, I am unable to rule out tainting and I am unable to conclude that the similarities are not attributable to mere coincidence.

[3478] The Crown also asks that I consider the similarity of Ms. J.S.’s breast-cupping allegation to the breast-cupping allegations of other complainants. The Crown argues that this similarity is unlikely attributable to coincidence and therefore supports Ms. J.S.’s allegations. Taken as a whole, though, her allegation of breast touching is unlike the allegations of other complainants. Ms. J.S.’s allegation describes an open-handed cupping from below that progresses to a complete palpation by the fingers. No other complainant describes their breast-touching experience in this way. Ms. J.S. only fits into the Crowns breast-cupping contingency because its criteria for membership is overly broad – so broad as to deprive it of sufficient probative value. I also keep in mind that Ms. J.S.’s breast touching complaint changed considerably from her police complaint to her testimony. The malleability of her memory provides ample reason to be concerned about the prospect of tainting by exposure to media coverage. Importantly, she did not purportedly tell her fiancé about breast touching in the aftermath of her first appointment. Even if accepted, Mr. D.S.’s evidence does not refute the possibility that this allegation is the product of media tainting. However, as noted, I cannot rely upon Mr. D.S.’s evidence.

[3479] Having regard to the frailties in the evidence of Mr. and Ms. J.S., I cannot be satisfied beyond a reasonable doubt that skin and breast examinations occurred. And even if a skin examination occurred, I cannot be satisfied that it occurred in the manner she described.

[3480] The evidence of Dr. Bril does little to assist the Crown. Its probative force rests on the premise that Dr. Sloka told Ms. J.S. that he wanted to search for café au lait spots when such a search was not warranted. It also rests upon the premise that Dr. Sloka conducted a skin examination and palpated Ms. J.S.’s breasts. Given my concerns about the evidence of Ms. J.S., I am unable to conclude that these two factual premises have been established. Dr. Bril’s opinion therefore loses its probative force.

[3481] Dr. Bril’s evidence also concedes the reasonableness of skin investigations “incidental” to the referral. Based upon Ms. J.S.’s description of a red birth mark on her nose, Dr. Sloka speculated that he might have been interested in exploring whether Ms. J.S. suffered from tuberous sclerosis. If a patient had a birth mark and was unsure about the presence of others, Dr. Bril conceded it might be reasonable to examine the skin – even where that examination is not germane to the original referral. While Dr. Sloka had no memory one way or the other, he noted that Ms. J.S.’s testimony about the red birthmark on her nose made him wonder about the possibility of tuberous sclerosis. He had diagnosed this disorder in his clinic before. Five to ten of his patients had this disorder. That evidence was not challenged. Likewise, the statistical incidence of tuberous sclerosis was not in dispute: one in six thousand. Dr. Sloka did not consider that to be vanishingly rare. His subjective opinion was supported by a clinical experience that was not challenged. Dr. Sloka’s speculation offers little assistance other than to introduce the possibility that Dr. Sloka became curious and conducted an incidental examination likely unrelated to the reason for the referral. In her testimony, Dr. Bril could not rule out the reasonableness of an incidental investigation of this nature, provided the patient informed Dr. Sloka of additional birth marks or was unsure about whether she had any more of them.

[3482] To sum up, I cannot be satisfied from the evidence of Ms. J.S. that a skin examination occurred. If it did occur, I am unable to conclude that Dr. Sloka relied upon neurofibromatosis as a justification for that skin examination. There is at least a plausible basis for Dr. Sloka to possess an incidental curiosity about Ms. J.S.’s red birth mark. Dr. Bril does not contest the reasonableness of such incidental inquiries, provided there exists a factual foundation for them. As a result, Dr. Bril’s evidence offers little assistance to the Crown on this count.

[3483] I turn next to the evidence of Dr. Sloka.

[3484] Dr. Sloka acknowledged performing neurological and cardiac examinations. The Crown takes no issue with these examinations, even though they effectively do not feature in Ms. J.S.’s recollection of her examination.

[3485] The Crown, however, takes issue with Dr. Sloka’s decision to conduct a skin examination – a decision he cannot remember making about an examination he cannot remember conducting. In other words, the Crown takes issue with Dr. Sloka’s speculation about his motivation to conduct an examination he did not remember performing. Given my conclusions about the fundamental unreliability of Ms. J.S.’s evidence, I am not sure how profitable such a challenge can be. The issue, in my view is a bit of a red herring. Nevertheless, I will address some of the submissions on the subject.

[3486] I begin by noting that Dr. Sloka conceded that an investigation of neurofibromatosis was not justified by the information contained in Ms. J.S.’s chart. At best, he speculated that a curiosity about tuberous sclerosis may have been at play. Keep in mind, he was invited by counsel from both sides to indulge in that speculation. Keep in mind that Ms. J.S. wore a mask during her evidence and as a result no one saw her red birth mark. And now we find ourselves in a discussion about whether Dr. Sloka’s speculation is logically supportable. I suppose this discussion might inform my assessment of Dr. Sloka’s credibility, but otherwise I think it is of limited value.

[3487] The Crown alleges that Dr. Sloka’s speculation is precluded by Ms. J.S.’s claim that Dr. Sloka told her he wanted to look for six birth marks. They argue that this claim proves that Dr. Sloka claimed to be looking for café au lait spots. From this conclusion, they argue that Dr. Sloka had embarked upon an unreasonable investigation of neurofibromatosis, which supports the conclusion that Dr. Sloka possessed an unlawful motive. All this, they argue supports the contention that the skin examination was sexual in nature. There is a problem with the Crown’s argument, though. The evidence does not suggest Dr. Sloka purported to be investigating neurofibromatosis. Ms. J.S. did not say Dr. Sloka was looking for café au lait spots. She said he was looking for red birth marks. Moreover, as already noted, I am unable to find as a fact that Dr. Sloka said any such thing to her, and I am unable to conclude that a skin examination actually occurred. Even assuming that Dr. Sloka made mention of six marks, the context is far from clear. Dr. Sloka testified that he conducted a standard review of systems when taking the history of his patients. Questions about skin irregularities were a standard part of his review of systems. Without knowing more about the context in which six abnormalities may have mentioned, I am unable to accept the Crown’s submission that her evidence regarding six marks establishes the existence of a skin examination. Ms. J.S.’s account also does not suggest that Dr. Sloka was looking for other skin manifestations of neurofibromatosis, such as inguinal and axillary freckling. Overall, the description of Dr. Sloka’s alleged investigation appears as much inconsistent with an NF1-related skin examination as it does consistent with one. Also, the alleged search for red marks was at least possibly consistent with a search for a manifestation of tuberous sclerosis, even if the magic number 6 has no relevance to an investigation into tuberous sclerosis. Even if I were to accept that a skin examination occurred, I cannot reject the possibility it was related to tuberous sclerosis instead of neurofibromatosis. Finally, Ms. J.S. did provide an exhaustive recounting of the discussions in the office.

[3488] Apart from attacking Dr. Sloka’s speculative grounds for a doing a skin examination he did not remember, and which may not have occurred, the Crown argued that Dr. Sloka’s evidence provided some support for Ms. J.S.’s evidence. In particular, the Crown argued that Dr. Sloka provided some support for Ms. J.S.’s evidence when he acknowledged palpating the breasts of patients in search of neurofibromas. In doing so, the Crown did not accurately describe Dr. Sloka’s evidence. Dr. Sloka could not recall ever palpating for neurofibromas on any part of a patient’s body, but he allowed for the possibility that he might have done so, albeit rarely. Dr. Sloka also specifically denied touching Ms. J.S.’s breasts. His evidence provides no support for Ms. J.S.’s allegation that Dr. Sloka palpated her breasts.

[3489] Having considered the Crown’s arguments regarding Dr. Sloka’s evidence, I do not find that any that raise sufficient concern about Dr. Sloka’s credibility or reliability. I also conclude that Dr. Sloka’s evidence does not meaningfully support or rehabilitate Ms. J.S.’s profoundly unreliable evidence.

[3490] Ultimately, Dr. Sloka could not rule out the possibility that he did a skin examination, but he could not recall doing one. His speculations about the motivation for performing an examination he could neither confirm nor remember offer little assistance to either party. I see nothing in his evidence that supports the conclusion that he performed a skin examination. Given my concerns about the evidence of Ms. J.S. and her husband, I am unable to conclude that the Crown has proven a skin examination and consequent breast touching occurred. In the absence of sufficient proof of a skin examination and breast fondling, there exists insufficient proof that Ms. J.S.’s examination was sexual in nature. The evidence also clearly establishes that Ms. J.S. subjectively consented to a medical examination. In the final analysis, I conclude that the Crown has failed to prove that any examination conducted by Dr. Sloka was sexual in nature. Dr. Sloka must be acquitted on this count.

D. Multiple Sclerosis

i. J.C. (Count 56)

A Summary of Ms. J.C.’s Complaint and Dr. Sloka’s Response to It

[3491] Ms. J.C. had experienced symptoms (vision loss and pain on eye movement) consistent with optic neuritis (inflammation of the optic nerve). An ophthalmologist referred her to Dr. Sloka. She alleged that she was examined once by Dr. Sloka at one of her appointments, she could not remember which one. At that appointment, she alleged that Dr. Sloka performed only one examination, a skin examination. During that skin examination, she wore her gown open to the front at Dr. Sloka’s request. She also alleged that he asked her to expose her entire torso. Lastly, she alleged that he touched some of her moles during this skin examination.

[3492] Dr. Sloka testified that he examined Ms. J.C. at her very first appointment. He testified that he conducted a full neurological examination, a cardiac examination, and likely a skin examination. He also measured her blood pressure and pulse. He denied that he asked her to wear her gown open to the front. Dr. Sloka claimed that any skin examination was performed to look for evidence of diseases and disorders that can mimic optic neuritis. He ordered bloodwork for that same reason. He denied touching any moles during her skin examination.

The Circumstances of Ms. J.C.’s Referrals and Treatment History

[3493] Ms. J.C. saw Dr. Sloka during two related referral periods, which were separated by an 18-month trip to Alberta.

[3494] Ms. J.C. obtained her initial referral from an ophthalmologist, Dr. Toby Chan, on June 3, 2015. She was 19 years old at the time. By the time Ms. J.C. saw the ophthalmologist, she had already been to the ER on multiple occasions due to bouts of partial blindness in one eye. At the direction of an ER doctor, she obtained an MRI of her orbital area and an MRI of her brain. The ophthalmologist noted the presence of multiple lesions in the brain-MRI, which is one of two criteria (called the McDonald’s criteria) for an MS diagnosis. Having identified a concern about MS, the ophthalmologist sought a consultation for the purpose of diagnosing the cause of Ms. J.C.’s symptoms.

[3495] The first appointment of Ms. J.C.’s initial referral period occurred on June 10, 2015. Dr. Sloka did not make an MS diagnosis but ordered various tests. Ms. J.C. attended for a second appointment in the initial referral period on July 17, 2015. Dr. Sloka voiced an intention to order a follow-up MRI in nine months, but Ms. J.C. planned to be away in Alberta for 18 months, which interfered with Dr. Sloka’s desired plan. Meanwhile, Ms. J.C. also remained under the care of her ophthalmologist. Before leaving for Alberta, Ms. J.C. returned to her ophthalmologist on July 30, 2015. Soon afterwards, she departed for Alberta.

[3496] Ms. J.C. emailed Dr. Sloka in February of 2017, hoping Dr. Sloka would requisition the MRI he had previously hoped to obtain. She had been out of Dr. Sloka’s care for over a year. Consequently, he informed her that she would need to obtain a new referral. He also contacted her family doctor to ask the family doctor to consider ordering an MRI.

[3497] Ms. J.C. obtained a new referral to Dr. Sloka and attended her first appointment of this second referral period on March 10, 2017. Ms. J.C. planned to leave for Idaho to attend university in April of 2017. Accordingly, Dr. Sloka urgently scheduled MRIs. He saw Ms. J.C. for a follow up visit on April 11, 2017, the day before her departure to Idaho. At that juncture, Dr. Sloka had not formalized a diagnosis. He posited two alternatives, neuromyelitis optica or MS. Ms. J.C. planned to obtain a neurologist in Idaho to continue with her assessment.

[3498] Once in Idaho, Ms. J.C. scheduled an appointment with a neurologist named Dr. Stephen Vincent on June 5, 2017. Like Dr. Sloka, Dr. Vincent advanced two alternatives: MS or neuromyelitis optica. Like Dr. Sloka, Dr. Vincent expressed a desire for more testing. Given the costs associated with testing, Dr. Vincent raised the possibility that Ms. J.C. might want to obtain additional testing in Ontario. Dr. Vincent sent Dr. Sloka his consultation letter and subsequent test results. However, Ms. J.C. never returned to Dr. Sloka’s care.

The Evidence of Ms. J.C.

[3499] Ms. J.C. was 26 years old when she testified.

[3500] She said her memory of events was foggy because the examination was not particularly memorable and because of the passage of time. She also said that, in preparation for trial, she did not read her medical records in much detail.

[3501] Ms. J.C. alleged a single examination. That alleged examination consisted exclusively of a skin examination. She denied that Dr. Sloka performed any other examination upon her while she was gowned in the examination room. She testified that if Dr. Sloka performed any other examinations on her, those examinations occurred while she wore her street clothes and while she was still in Dr. Sloka’s office. In that regard, she did recall some “minor” neurological tests, but she insisted they occurred in the office, not the examination room. She also maintained that she was only in the examination room for a few minutes, not twenty minutes or more, which would be required for the full array of examinations claimed by Dr. Sloka.

[3502] Ms. J.C. was unable to remember which of her appointments involved the skin examination. Whenever it happened, she said it took place in the context of an hour-long appointment. In-chief, she could not recall whether the skin examination occurred in the 2015 referral period or the 2017 referral period; however, she favoured the possibility that it occurred in the first referral period. A closer scrutiny of her evidence casts doubt on the logic of that belief because she acknowledged no examination occurred at the second of the two appointments in the first referral period and at the same time doubted that the examination occurred at the first appointment.

[3503] Her evidence about the possibility of the skin examination occurring in 2015 can be summarized as follows. She did not think the examination occurred at the very first appointment, because she believed her father was present at the appointment and she did not think her father attended her first appointment. It was also her strong belief that Dr. Sloka did not perform the skin examination until after she finished her course of steroids, which were prescribed at the first appointment. She further denied the suggestion that physical examinations were a necessary precursor to the prescription of the steroids. However, she did not entirely rule out the possibility that the skin examination happened at her very first appointment. In cross-examination, she became more certain that the examination did not occur at her very first appointment. When questioned about the change in her stance, she again left open the possibility that the examination occurred at her first appointment. Meanwhile, Ms. J.C. agreed that Dr. Sloka did not examine her at her second appointment, which was the last appointment of the first referral period. She disagreed with the suggestion that, because he had already examined her at the first appointment, Dr. Sloka did not examine her at the second appointment.

[3504] Ms. J.C. could not recall whether Dr. Sloka examined her at the first appointment of the second referral period, on March 10, 2017. She recalled Dr. Sloka expediting an MRI, so that he could review it prior to her departure to Idaho, but not whether she was examined.

[3505] Ms. J.C. recalled returning to see Dr. Sloka the day before her departure to Idaho, on April 11, 2017. This was her final appointment with Dr. Sloka. In cross-examination, she agreed that that Dr. Sloka discussed with her the results of her two MRIs. He also explained that the cervical MRI showed multiple areas of inflammation (lesions). She agreed that he told her that she could be suffering from either neuromyelitis optica or MS. He ordered bloodwork. Ms. J.C. testified that she went to the lab on the same day to get her bloodwork done. Ms. J.C. then offered up the possibility that Dr. Sloka examined her at this appointment, adding “it was a very rushed appointment, and it was kind of an afterthought when I was asked to go into the room.” This was the first occasion on which Ms. J.C. ever suggested that her skin examination was an “afterthought.” This suggestion was also at odds with her earlier evidence that the skin examination occurred in the context of an hour-long appointment. When questioned further, Ms. J.C. agreed that she had no memory of whether the skin examination occurred on her last ever visit with Dr. Sloka.

[3506] On the day of the skin examination, Ms. J.C. recalled her father being with her in Dr. Sloka’s office. She did not recall many details of their discussion, but she recalled Dr. Sloka mentioning the possibility she may have MS. While still in the office, Dr. Sloka told her that he wanted to conduct a physical examination. She believed he told her that he wanted to do a physical examination to look for moles and marks; however, she could not recall much of an explanation of his reasoning. Defence counsel suggested to Ms. J.C. that Dr. Sloka expressed an interested in locating rashes, birthmarks, or other skin abnormalities. Ms. J.C. agreed that Dr. Sloka may have mentioned birthmarks and skin abnormalities. What ever he said, she had no questions for Dr. Sloka and agreed to the proposed examination. Ms. J.C. testified that Dr. Sloka told her that she would need to get out of her street clothes and put on a gown. She confirmed with him that she would need to remove her underwear. Ms. J.C. also testified that Dr. Sloka told her to wear the gown open to the front. All of this was purportedly discussed in the presence of her father. The Crown did not call her father as a witness. Ms. J.C. and Dr. Sloka then went into the examination room, where he provided her a gown. Dr. Sloka then gave her privacy to change.

[3507] According to Ms. J.C., when Dr. Sloka returned to the examination room, he immediately commenced the skin examination. No other examinations preceded it. She stood in the middle of the room and facing the window for the skin examination. In-chief, Ms. J.C. testified that Dr. Sloka asked her to open the gown and that her entire torso was consequently exposed. In cross-examination, Ms. J.C. agreed that Dr. Sloka may have asked her to sequentially reveal different segments of her body. She also agreed that Dr. Sloka may have asked her to turn to allow an inspection of the skin on her back. Ms. J.C. also testified that Dr. Sloka used his fingers to turn her to allow further inspection. She also testified that Dr. Sloka touched her moles and the skin around her moles, including at locations on her sides and inner thighs. As he examined her, he looked at her skin intently. He pointed at moles and jotted notes down occasionally. She recalled feeling uncomfortable during the skin examination but accepted that it needed to be done.

[3508] Ms. J.C. also testified that Dr. Sloka’s skin examination differed from a skin examination she later received from a dermatologist. She did not provide any elaboration.

[3509] Ms. J.C. testified that no other examination followed the skin examination. She never sat on the examination table for any portion of her examination. At the conclusion of the skin examination, Dr. Sloka gave her privacy to change.

[3510] Ms. J.C. returned to the office for an additional discussion with Dr. Sloka. Her father was present for that discussion. Ms. J.C. agreed that Dr. Sloka may have reported the results of the skin examination in the presence of her father, but she had no independent memory of what was discussed. She could not recall if Dr. Sloka informed her of any plans for future treatment. She also could not recall if she returned for treatment after this visit.

[3511] Ms. J.C. left the skin examination appointment thinking that the skin examination was “very procedural.” She said she “didn’t think anything of it.” As a result, it was not memorable, and she had a hard time remembering the appointment. She felt Dr. Sloka was a personable, friendly, and competent doctor. She did not think the examination was inappropriate until she discovered allegations against Dr. Sloka years later.

[3512] Ms. J.C. first learned about the allegations against Dr. Sloka from her father. He sent her a text, then followed up with a phone call. He informed her that Dr. Sloka was in prison. He provided her with Detective Gilker’s email and suggested she get in touch. Ms. J.C. later sent Detective Gilker an email.

[3513] After hearing from her father and before her police interview, Ms. J.C. looked up some articles about Dr. Sloka. She believed she read one or two articles. In one article, one patient described Dr. Sloka proposing an examination to look for anything like moles and saying that he needed her to undress completely. She described the examination for moles as a “a big connection”, because this was her recollection of her own examination. By that time, she had seen a dermatologist who looked at her moles. She believed that Dr. Sloka had examined her in a different fashion than her dermatologist. However, she did not elaborate on the difference. Previously, Ms. J.C. considered Dr. Sloka charming and understanding of her situation. He made her feel reasonable, as though she was not crazy for experiencing some of her symptoms. He also seemed to have plausible explanations for her condition. After reading the allegations against Dr. Sloka she felt that she had been manipulated. She felt she should come forward to see if she could help with the situation.

[3514] Ms. J.C. contacted Detective Gilker by email on September 27, 2019. She later attended for an interview on October 17, 2019.

The Evidence of Dr. Bril

[3515] Dr. Bril testified that there existed no neurological reason to conduct a skin examination on Ms. J.C. She also testified that there was no neurological reason to examine Ms. J.C. for moles or touch her during the examination. Lastly, Dr. Bril also testified that there was no neurological reason to have Ms. J.C. wear her gown open to the front.

[3516] In her written report, Dr. Bril noted, “Furthermore, the question arises as to why only the anterior aspect of the body and not the posterior aspect was examined if one were truly concerned about skin lesions.” In providing this opinion, Dr. Bril did not confine herself to making comment upon Dr. Sloka’s methodology. Instead, she implied an opinion about an alternative motive for the skin examination. To the extent she did so, she exceeded the permissible scope of her opinion and strayed into the role of sleuth. It would not be the last time.

[3517] Both Crown and defence counsel took Dr. Bril to Dr. Sloka’s medical file in a chronological order. I think it best to summarize Dr. Bril’s evidence in-chief separately from her cross-examination. I will begin with the evidence in-chief.

[3518] Near the beginning of Dr. Bril’s examination in-chief, Crown counsel reviewed with Dr. Bril the reason for the initial referral and the brain and cervical MRI performed before Ms. J.C.’s first appointment. Ms. J.C. had suffered vision loss and was seen in the ER on May 9th. She was diagnosed with optic neuritis in the left eye. MRIs were ordered. Ms. J.C. then saw an ophthalmologist. Dr. Bril explained that optic neuritis is an inflammation of the optic nerve. She testified that optic neuritis occurs with MS. She added that it does not occur with any other condition. The ophthalmologist indicated in the referral that Ms. J.C.’s MRI revealed positive McDonald’s criteria for MS. Dr. Bril described McDonald’s criteria as follows: “The set of rules when you look at the MR brain and the lesions that fit for where they are and how many there are and the nature of the lesions to make a diagnosis of MS.” She added that if one is positive for the McDonald’s criteria, then one has a positive diagnosis of MS. Earlier, when giving evidence about Ms. K.S.-B., Dr. Bril provided a bit more of a cogent explanation about the McDonald’s criteria. She testified that the McDonald’s criteria required dissemination in space (multiple lesions in the brain or spinal cord) and dissemination in time (more than one attack). She added that the criteria have also been revised, so that a previously reported attack coupled with a current MRI showing multiple lesions will satisfy the criteria of dissemination in space and time.

[3519] Crown counsel later took Dr. Bril to the MRI referred to by the ophthalmologist (tab 6). The radiologist indicated “The described findings fulfill McDonald’s MRI dissemination in space criteria for multiple sclerosis.” Dr. Bril testified that there was “no reason” to doubt an MS diagnosis. For Dr. Bril, a diagnosis of MS was a foregone conclusion, even before Ms. J.C. ever met Dr. Sloka.

[3520] Crown counsel took Dr. Bril through Dr. Sloka’s consultation letter for Ms. J.C.’s first appointment, which occurred on June 10th. Dr. Bril recapped the information in the history portion of that letter. Dr. Sloka recounted Ms. J.C.’s two ER visits and her subsequent visit to an ophthalmologist, noting that “optic neuritis was suspected” by the ophthalmologist.

[3521] Dr. Bril later discussed Dr. Sloka’s examinations at this June 10th appointment. Dr. Sloka reported a neurological and cardiac examination. He also took her blood pressure and pulse. Dr. Bril also observed that Dr. Sloka found mild left RAPD (relative pupillary afferent defect) when examining Ms. J.C.’s eyes during the neurological examination. An RAPD finding is made after the neurologist notes an unusual pupil response after shining a light into one pupil at a time. Ordinarily, when the light hits the second pupil, both pupils will constrict even more than they constricted when the light was shone on the first pupil. However, when vision is impaired in the second eye, as in the case of optic neuritis, the pupils expand when the light is shone on the second pupil, because that eye did not respond to the light stimulus. Dr. Bril explained that RAPD “goes along with” optic neuritis.

[3522] Regarding Dr. Sloka’s cardiac examination, Dr. Bril testified that there was no reason to listen to Ms. J.C.’s heart, “because heart disease isn’t going to cause MS.”

[3523] Regarding the skin examination (which is not reported in the consultation letter), Dr. Bril opined that there was no neurological reason to be concerned about any neurocutaneous syndrome. As noted already, she also opined that there was no neurological reason to do a skin examination.

[3524] The Crown took Dr. Bril to the Impression paragraph from Dr. Sloka’s June 10th consultation letter. Curiously, Crown counsel then asked Dr. Bril to opine on what Dr. Sloka was thinking: “Can one infer that he thinks that this is MS?” In doing so, the Crown did not invite Dr. Bril’s medical opinion, but rather invited Dr. Bril to play sleuth. Dr. Bril replied, “No, not yet.” Dr. Sloka had reported in his Impression: “This young lady describes an episode that seems most consistent with optic neuritis. She has no previous symptoms of demyelination in her nervous system, and that is reassuring.” Dr. Sloka went on to describe the various tests he would order. He also prescribed a course of steroid medication. Dr. Bril observed that the steroid treats the inflammation that occurs with optic neuritis and MS “flare-ups”. When asked again if Dr. Sloka was making a diagnosis of MS, Dr. Bril again opined on Dr. Sloka’s state of mind, stating, “I think he’s treating her as if she has MS and an acute flare by giving her high doses of Prednisone for three days. He’s not committed to saying this is what she has. He’s looking for other things that can explain some of her symptoms.”

[3525] Next, the Crown took Dr. Bril to Ms. J.C.’s second appointment, which occurred on July 17, 2015. In his consultation letter, Dr. Sloka noted that the blood work “has been reassuring,” as were her EMG studies. He also observed that the evoked potential studies suggested slowing in the left optic nerve, which he considered consistent with a diagnosis of optic neuritis. Given the blood test results Dr. Sloka did not think secondary causes of Ms. J.C.’s symptoms were likely. Dr. Sloka went on to state that he felt the likelihood of future episodes (which would meet the second McDonald’s criterion for MS – dissemination over time) was low. Here, Dr. Bril disagreed, reaffirming her belief that the MRI had already proven MS: “I think it is very debatable because she had an abnormal MR of her brain. She’s young to have had this. I think it’s not – not a great situation for her to be in.” Ms. J.C. had also reported a history of “cramping or pause in her function associated with movement.” Dr. Sloka wondered whether that might be paroxysmal kinesigenic dyskinesia. Dr. Bril had not heard of that disorder. Dr. Sloka indicated that upon Ms. J.C.’s return from her travels, he wanted to repeat her MRI. Dr. Bril did not think a repeat MRI was necessary unless Ms. J.C. suffered more symptoms. “Well, if she has nothing more, I’m not sure why you would want to do the MR again. I mean, if the lesions have gone away, good. If they haven’t, what are you going to do? It’s – this is- it’s a very interesting kind of conundrum.”

[3526] Dr. Bril then provided her opinion about Ms. J.C.’s next visit, which occurred on March 27, 2017. Almost two years had elapsed since Ms. J.C.’s last visit. Ms. J.C. reported experiencing some episodes of dizziness, knee pain, and transient numbness in her chest. Dr. Sloka requisitioned an urgent MRI but did not appear to report doing any examination. Given the passage of time since her last examination, Dr. Bril felt that a neurological examination would have been appropriate. Apart from the neurological examination, Dr. Bril did not think any other kind of examination would be appropriate.

[3527] The crown next sought Dr. Bril’s opinion about the fourth and final appointment, which occurred on April 11, 2017. Ms. J.C. reported numbness in her hands. Her brain MRI showed tiny and hard to see lesions, but the cervical MRI revealed obvious multiple lesions. Dr. Sloka opined that, given Ms. J.C.’s past optic neuritis, Ms. J.C. may have neuromyelitis optica. He ordered blood work to rule out that possibility, but understood that, because Ms. J.C. was moving to Idaho the next day, she would need to follow up with a neurologist in Idaho. He noted that the other possible diagnosis was MS. At this juncture, Dr. Bril said that Dr. Sloka’s impression was reasonable. Unlike before, she appears to have conceded the possibility of a diagnosis other than MS. She did not reconcile the stance she took here with her earlier stance that there was no reason to doubt an MS diagnosis.

[3528] Now, it is time to review Dr. Bril’s cross-examination.

[3529] Defence counsel took Dr. Bril to Ms. J.C.’s first appointment, from June 10, 2015. Dr. Bril agreed that the ophthalmologist diagnosed Ms. J.C. with optic neuritis and wanted to rule out MS. Dr. Bril agreed that a full neurological examination was “necessary for a comprehensive evaluation of a patient with optic neuritis.” However, Dr. Bril resisted the suggestion that a neurological examination was necessary to rule out or confirm other signs of MS. To that end, she noted, that a patient could have MS lesions but still have a normal neurological examination. Put another way, even though a neurological examination might not confirm an MS diagnosis, Dr. Bril still favoured doing one. So, while favouring a full neurological examination, she never explained its utility in the diagnostic process.

[3530] Defence counsel also suggested that a cardiac examination would be warranted, to rule out an embolism emanating from the heart (an embolic stroke). Due to Ms. J.C.’s young age (19), Dr. Bril considered the chances of an embolic stroke “hugely remote.” In addition, she testified that emboli were more likely to originate from the carotid arteries than the heart, albeit in much older patients. Dr. Bril also rejected the suggestion that a respiratory examination was reasonable. Likewise, she did not consider it neurologically reasonable to measure heartrate and blood pressure.

[3531] Defence counsel later took Dr. Bril to the consultation letter of Dr. Vincent. Dr. Bril agreed that Dr. Vincent purportedly conducted a cardiac examination as part of his neurological consultation. He reportedly found no evidence of heart murmurs or carotid bruits (the whooshing sound made by arteries narrowed by arterial plaque) – both of which signal a potential stroke risk. Dr. Vincent also purportedly conducted a respiratory examination. Just as she opined about Dr. Sloka’s examinations, Dr. Bril did not think Dr. Vincent’s cardiac and respiratory examinations were neurologically reasonable, either. However, she attempted to distinguish Dr. Vincent’s examination from Dr. Sloka’s by proffering a slightly muddled explanation for Dr. Vincent’s examinations, one based on speculation rather than fact. She suggested that Dr. Vincent may have documented those examinations for billing purposes. It is unclear whether she meant that, to render a bill for other services, Dr. Vincent needed to document the examinations even if he did not perform them [a fraud] or if she meant that he had to perform the examinations in order to bill for some other legitimate examination [potentially, a different kind of fraud]. Whatever her intent, it is clear she had no personal knowledge of Dr. Vincent’s reasoning in reporting these two examinations. Her evidence on this point began with,

… in the US where they have different billing parameters. They have to document various examinations so I’m not sure what the status is here but I don’t think it’s directly transferable to the Canadian experience.

Then added,

…about how they do their notes and what they do and what they say in the billing information that they – what they need to do for their billing.

Then defence counsel asked if she was suggesting that doctors may need to perform cardiac and respiratory examinations in order to bill for some other examination. Dr. Bril offered tentative agreement with counsel’s formulation of her position, with a nod and non- verbal utterance.

[3532] Defence counsel then turned to the question of Ms. J.C.’s skin examination. Dr. Bril acknowledged that, generally speaking, the differential diagnosis for patients with suspected optic neuritis is similar to what it would be for patients with suspected MS. In other words, she agreed that the same group of other less likely diagnoses can be considered as possible explanations for both optic neuritis and MS. However, she considered these other plausible explanations to be too remote to be worth considering. The diagnoses on the differential include lupus, sarcoidosis, Sjogren’s Disease, Lyme Disease, Bartonella, and antiphospholipid antibody syndrome. She agreed that these diseases involve skin manifestations. Dr. Bril also acknowledged that Ms. J.C. reported a history of episodic eczema and psoriasis. She agreed that these skin conditions can be indicative of systemic disease; however, she added that discussion of these skin conditions was outside of her field. In Dr. Bril’s view, if Dr. Sloka wanted to rule out these other diagnoses on the differential, he could order blood work. Defence counsel then took Dr. Bril through the bloodwork ordered by Dr. Sloka. She agreed that these blood tests were germane to diseases on the differential diagnosis for Ms. J.C. She agreed that by ordering these tests, Dr. Sloka signalled an interest in exploring the possibility that Ms. J.C.’s symptoms may be explained by one of these diseases.

The Evidence of Dr. Sloka

[3533] Dr. Sloka had no independent memory of Ms. J.C., other than having to expedite her assessment prior to her departure on a mission trip. He relied upon his consultation letters for the truth of their contents. He also relied upon the other contents of Ms. J.C.’s medical file.

[3534] According to Dr. Sloka, he only examined Ms. J.C. at her first appointment. His consultation letters indicate that this physical examination occurred on Ms. J.C.’s very first visit on June 10, 2015. He denied examining Ms. J.C. on subsequent visits.

[3535] Dr. Sloka confirmed that an ophthalmologist referred Ms. J.C. to him. The ophthalmologist reported a decline in her vision which was associated with pain on eye movement. Dr. Sloka agreed that these symptoms are consistent with optic neuritis and that optic neuritis was the most likely explanation for Ms. J.C.’s symptoms. Optic neuritis is an inflammation of the optic nerve and may be a manifestation of multiple sclerosis. Ms. J.C.’s brain MRI revealed obvious and multiple lesions. Dr. Sloka agreed that the McDonald’s criteria for MS required both dissemination in space and in time. In Ms. J.C.’s case, the MRI revealed dissemination in space, but she had not suffered a previous episode or obtained a previous MRI showing different lesions. Dissemination in time had not been established. Consequently, Dr. Sloka believed that an MS diagnosis was premature. His consultation letter reflected that opinion.

[3536] While believing that optic neuritis was the most likely explanation for Ms. J.C.’s symptoms, Dr. Sloka noted that the MRI of Ms. J.C.’s eyes did not show obvious lesions and thus did not suggest optic neuritis. He therefore wanted to investigate the possibility of conditions that can mimic optic neuritis. To do so, he wanted to conduct physical examinations and order various tests. He also intended to keep an eye out for a further episode that would establish the McDonald’s dissemination-in-time criterion for MS.

[3537] Dr. Sloka considered as plausible several conditions. Since she suffered pain on eye movement, he considered any condition that might cause inflammation or infection in the eyes. Consequently, he considered the possibility of a small bleed. He also considered lupus, Sjogren’s disease, Bechet’s disease, syphilis, Bartonella, Lyme disease, sarcoidosis, optic glioma, neuromyelitis optica, acute disseminated encephalomyelitis, and vasculitis. Dr. Sloka testified that he used a standard bloodwork requisition to screen for mimics of optic neuritis. Ms. J.C.’s bloodwork requisition stated, “r/o mimics of M.S.”

[3538] Ms. J.C. attended to give bloodwork on June 11, 2015. The results were printed several days later. He observed that Ms. J.C. tested positive for Bartonella (cat scratch disease). Dr. Sloka was not sure when he read those results, but he emailed Ms. J.C. on September 19, 2015, and told her that her bartonella test came back positive and he suggested she be treated with antibiotics. He drew the inference that he did not receive the Bartonella results until after Ms. J.C.’s departure to Alberta.

[3539] Dr. Sloka testified that he also recommended and conducted neurological and cardiac examinations. He also obtained Ms. J.C.’s blood pressure and pulse. While he did not report it in his consultation letter, he believed he likely recommended and conducted a skin examination.

[3540] The Crown did not cross-examine Dr. Sloka on the reasonableness of his decision to conduct the neurological and cardiac examinations, nor his decision to take Ms. J.C.’s vital signs.

[3541] Regarding the likely skin examination, Dr. Sloka testified that he would conduct a skin examination to look for evidence of mimics of optic neuritis. Some of the diseases on his differential diagnosis have skin manifestations. If he had found evidence of a mimic on Ms. J.C.’s skin, he might have opted against prescribing a high dose of steroids at this appointment. Dr. Sloka testified that he understood from the medical literature that a skin examination can be considered in a patient with a loss of vision to explore alternative diagnoses.

[3542] The Crown questioned Dr. Sloka about some of the bloodwork he ordered, including his requisition of the pituitary hormones, prolactin, and TSH (thyroid stimulating hormone). Dr. Sloka testified that he wanted to look at Ms. J.C.’s prolactin levels because the pituitary gland sits beneath the optic pathways and because prolactinomas (a tumor on the portion of the pituitary that produces prolactin) are the most common type of pituitary adenoma (tumor). He ordered the THS bloodwork because autoimmune thyroid disease often occurs in patients with MS. Dr. Sloka had co-authored a scholarly paper on the co-occurrence of autoimmune thyroid disease in multiple sclerosis patients for the Journal of Autoimmune Diseases. TSH testing was part of his normal MS bloodwork screening. The Crown did not attempt to undermine these explanations during cross-examination, nor did they call evidence to rebut them.

[3543] In cross-examination, Dr. Sloka denied having any interest in and denied asking about the presence of moles on Ms. J.C.’s skin. Instead, Dr. Sloka testified that he would want to tell Ms. J.C. that he was looking for anything unusual on her skin, including birthmarks or rashes.

Assessment of the Evidence and Analysis

[3544] Given Dr. Sloka’s admission of the likelihood of a skin examination and his rationale for performing one with a patient like Ms. J.C., I am prepared to accept that Dr. Sloka did in fact perform one. But the existence of a skin examination does not, in and of itself, prove a sexual assault. More is needed. Proof of the sexual nature of her skin examination turns on details like proof of the timing of the examination within Ms. J.C.’s treatment history, the clinical context in which that examination occurred (including the presence or absence of other examinations, a diagnosis at the time of the examination, or the investigation of other diagnoses at the time of the examination), and the methodology employed. Proof of the sexual nature of any skin examination also turns on proof that there existed no plausible medical reason for a skin examination in Ms. J.C.’s case. All these factors help shed light on Dr. Sloka’s motive at the time of any skin examination, which in turn helps inform whether the examination was of a medical or sexual nature. To one degree or another, Ms. J.C.’s evidence is relevant to many of these factors. Her evidence is relevant to the timing of any skin examination, the clinical context in which that examination occurred, Dr. Sloka’s professed state of mind at the time he conducted any examinations, and Dr. Sloka’s methodology in performing any examinations. Her evidence is critical to the Crown’s case. Dr. Bril’s evidence is also critical to the Crown’s case. Her evidence speaks to the question of the neurological reasonableness of a skin examination. The problem for the Crown is that Ms. J.C.’s evidence was very unreliable, and Dr. Bril provided her evidence in a manner that calls into question her reliability, credibility, and neutrality.

[3545] Ms. J.C. had an admittedly foggy memory of her time as Dr. Sloka’s patient. Ms. J.C. could not situate the examination within the chronology of her treatment. She provided scant insight into the clinical context surrounding her skin examination. She provided contradictory evidence on Dr. Sloka’s methodology. And her evidence was also undermined by the tainting influence of her exposure to news about the allegations made by other patients against Dr. Sloka. I will elaborate on these points below.

[3546] Ms. J.C. admitted that her memory of her treatment by Dr. Sloka was foggy. She attributed her poor memory in part to the passage of time. She also attributed her poor memory to the fact that she did not consider her examination to be memorable. At the time, she considered the examination to be very “procedural” and she “didn’t think anything of it.” She considered Dr. Sloka charming and relatable. There simply was nothing sufficiently noteworthy to provide her much of a motive to remember much about her treatment by Dr. Sloka. Her contemporaneous impression of the examination supports the conclusion it was not sexual in nature. Also, her generally poor memory undermines the reliability of her claims about specific details of her examination.

[3547] Ms. J.C. was unable to identify the appointment at which the skin examination occurred. At one point she preferred to believe the skin examination occurred in her first referral period. However, she did not think it occurred at her first appointment because she believed her father was present at the skin-examination appointment and because she believed that her father did not attend the first appointment. She also believed that the skin examination occurred after she finished her steroid treatment. Dr. Sloka’s records unquestionably establish that he prescribed the steroids at her first appointment. Logically, then, if the skin examination occurred in the first referral period, it must have occurred at the second appointment. However, Ms. J.C. rejected the possibility that the skin examination occurred at her second appointment. She also rejected the possibility that the reason her examination did not occur at the second appointment is that it already occurred at the first. In summary, Ms. J.C.’s evidence here was illogical. At one point in her evidence, Ms. J.C. suggested that the examination occurred at the final appointment of the second referral period, and that it occurred as an “afterthought” during a rushed appointment. This belated assertion conflicted with Ms. J.C.’s earlier assertion that her examination occurred within an hour-long appointment. An appointment of that length was far more likely to be her very first appointment. It seemed here that Ms. J.C. was attempting to construct a narrative that made sense to her, rather than just relaying actual memories. And as soon as the contradiction was pointed out to her, she abandoned her construction.

[3548] Ultimately, despite her belief to the contrary, Ms. J.C. could not outright reject the possibility that her examination occurred on her very first appointment of her very first referral period. This concession aligns with Dr. Sloka’s contemporaneously written consultation letter, in which he reported doing physical examinations. In my view, his contemporaneously written consultation letter establishes beyond any doubt that he conducted at least neurological and cardiac examinations at the first appointment. Importantly, Dr. Sloka’s letter does not report a skin examination, but Dr. Sloka concedes the likelihood he performed one. Also, Ms. J.C. maintained that she was only ever examined once by Dr. Sloka in his examination room. If that is true, then the skin examination must have occurred in conjunction with a neurological and cardiac examination. Moreover, Ms. J.C.’s recollection of the skin examination occurring at an hour-long appointment is consistent with the examination occurring at an appointment that also involved the initial documentation of her history and the conduct of neurological and cardiac examinations. After a close look at Ms. J.C.’s evidence in conjunction with Dr. Sloka’s medical records, I am satisfied that her skin examination must have occurred at her very first appointment. She is either wrong about her father being absent at the first appointment or she is wrong about her father being present for the appointment involving the skin examination. I believe it likely that she is wrong about her father not attending at the first appointment.

[3549] Ms. J.C.’s failure to remember these examinations exemplifies her poor memory. Importantly, Dr. Sloka’s standard cardiac examination involves the exposure of the patient’s left breast. I therefore accept that Ms. J.C.’s breast was exposed in this fashion for the cardiac examination. Obviously, if Ms. J.C. did not remember the breast examination, she did not remember any untoward conduct during that breast examination. The absence of any untoward conduct towards Ms. J.C.’s left breast during a cardiac examination undermines the Crown’s theory that Dr. Sloka possessed an abiding interest in his patients’ breasts and undermines the Crown theory that Dr. Sloka sexualized Ms. J.C.’s examinations.

[3550] The occurrence of a skin examination at the first appointment aligns with Dr. Sloka’s assertion that he conducted his examinations at the outset of his treatment of Ms. J.C. for the purpose of investigating the possibility of mimics. The performance of examinations at subsequent appointments would be much harder to reconcile with Dr. Sloka’s stated purpose. Consequently, Ms. J.C.’s evidence about the timing of the skin examination within the chronology of her treatment provides no support for the Crown’s effort to prove an improper motive.

[3551] Ms. J.C.’s evidence about the substance of her examinations is also unreliable. As I have already indicated, I accept Dr. Sloka’s contemporaneous report of both neurological and cardiac examinations. Dr. Bril agreed that a neurological examination was warranted. With the vast majority of his patients, Dr. Sloka performed neurological examinations at his initial appointment with his patients. He not only reported that examination, but he also reported an unusual result that is consistent with optic neuritis, mild RAPD in the left eye. I have absolutely no doubt that he conducted a neurological examination. Given the specificity of the blood pressure and pulse readings, I am satisfied that Dr. Sloka also took those measurements. With this context in mind, Dr. Sloka’s contemporaneous report of a cardiac examination is unassailable.

[3552] Ms. J.C.’s denial of the neurological and cardiac examinations reveals her unreliability about Dr. Sloka’s methodology. A cardiac examination would require her to be gowned. It would require the exposure of her left breast. She denied being gowned for anything other than her skin examination. Ms. J.C. vaguely recalled some other neurological tests in Dr. Sloka’s office while in her street clothes, but this vague recollection does not accord with Dr. Sloka’s well-established standard practice of conducting neurological examinations in the examination room. Moreover, aspects of his standard neurological and cardiac examinations require the patient to be seated on the examination table. And in all cases where he conducted cardiac examinations, his patients were gowned for their preceding neurological examinations. I therefore conclude that she not only forgot the existence of these examinations, but she also forgot that she was gowned for them and that they occurred in the examination room. Accordingly, I conclude that she was simply mistaken about the skin examination occurring in isolation. Because she was unable to remember being gowned for two examinations that she was also unable to remember, I have little faith in her ability to remember the manner in which she was gowned or the way in which Dr. Sloka performed the skin examination.

[3553] Ms. J.C.’s evidence about the way she was gowned is also undermined by the concessions she made about Dr. Sloka’s methodology during her skin examination. In her evidence in-chief, she alleged that she stood with her gown opened and her whole body exposed as Dr. Sloka examined her skin. In cross-examination, she conceded that Dr. Sloka may have asked her to reveal her skin incrementally, adjusting the gown to reveal one portion at a time. This concession and her initial recollection are mutually incompatible. Importantly, her concession aligns with Dr. Sloka’s stated practice and his denial that he would have asked Ms. J.C. to wear her gown open to the front. It also more closely aligns with a method that Dr. Bril would condone. I am therefore unable to rely upon Ms. J.C.’s assertion that she wore her gown open to the front at Dr. Sloka’s request. The Crown has failed to prove a manner of gowning that might provide some evidence of an improper motive.

[3554] Ms. J.C. also conceded that Dr. Sloka may have reviewed the results of her skin examination while in the office afterwards with her father. In addition, she alleged that Dr. Sloka proposed the skin examination in the presence of her father. The Crown is therefore not able to rely upon any suggestion that Dr. Sloka attempted to conceal the fact of a skin examination from her father.

[3555] Ms. J.C.’s evidence about Dr. Sloka’s explanation for the skin examination was also unreliable. In her evidence in-chief, she believed he told her that he wanted to do a physical examination to look for moles and marks; however, she could not recall much of an explanation of his reasoning. Defence counsel suggested to Ms. J.C. that Dr. Sloka did not express an interest in moles but instead expressed an interested in locating rashes, birthmarks, or other skin abnormalities. In response, Ms. J.C. agreed that Dr. Sloka may have mentioned birthmarks and skin abnormalities, just as she had told the police in her interview. In her review of news about Dr. Sloka, Ms. J.C. read about claims by other patients of Dr. Sloka wanting to examine their moles. She agreed that because of her exposure to news stories that mirror her own subsequent accusations, her views about Dr. Sloka and the propriety of her examination changed. Given the conflict between her examination in-chief and the concessions made in cross-examination, given the admitted exposure to similar allegations, and given the resulting change in her perception of Dr. Sloka and her treatment, I am concerned that exposure to that news coverage likely tainted her memory. I am unable to rely upon Ms. J.C.’s assertion that Dr. Sloka professed any interest in her moles. Ms. J.C. also testified that she subsequently had her moles examined by a dermatologist. I worry that she has conflated aspects of that appointment with the one she had with Dr. Sloka. Given her generally poor memory, given her unreliability about the discussion of moles, given the potential of media tainting, and given the possibility of her conflating her dermatologist examination with Dr. Sloka’s examination, I have difficulty placing any reliance on her assertion that Dr. Sloka touched her moles. Consequently, Ms. J.C.’s description of Dr. Sloka’s methodology offers no support for the claim that her examination was sexual in nature.

[3556] Like Ms. J.C., Dr. Bril’s evidence had significant problems.

[3557] Dr. Bril effectively took the position that a diagnosis of MS was established before Ms. J.C. even walked through Dr. Sloka’s door. Consequently, she disparaged any consideration of any condition on the differential diagnosis. Her evidence in this regard was problematic for several reasons.

[3558] First, Dr. Bril later conceded that Dr. Sloka reasonably narrowed down Ms. J.C.’s diagnosis to two possibilities, neuromyelitis optica and MS. If that impression was reasonable, then her earlier contention that Ms. J.C.’s optic neuritis effectively established MS could not also be reasonable. Moreover, Dr. Bril’s contention about the overwhelming likelihood of an MS diagnosis, based solely upon the patient history and MRI, did not conform with her own opinion about the diagnostic criteria for MS. The McDonald’s criteria for MS require dissemination in both space and time. In other words, there need to be multiple lesions (dissemination in space), and those lesions must evolve spatially over time. A revision of the criteria permits establishment of the dual criteria by proof of a separate episode (dissemination over time) coupled with a single MRI (showing current multiple lesions), but the dual criteria must still be met. At no point did Dr. Bril suggest that the evidence established dissemination over time. This patient only met one of the McDonald’s criteria. Dr. Bril’s initial opinion did not logically conform with her own criteria. Despite this, Dr. Bril clearly indicated her opinion that MS had been established before Ms. J.C. walked through Dr. Sloka’s door. In my view, that flawed opinion coloured her entire assessment of Dr. Sloka’s care for Ms. J.C., including the reasonableness of his consideration of other conditions on the differential diagnosis.

[3559] Given Dr. Bril’s flawed application of the McDonald’s criteria, I place little weight on her opinion about the reasonableness of Dr. Sloka’s considerations of other conditions on the differential diagnosis. As it happens, Ms. J.C. tested positive for Bartonella, which was one of the conditions on Dr. Sloka’s differential diagnosis and which is a condition that may have skin manifestations.

[3560] Second, Dr. Bril’s evidence about the reasonableness of a cardiac examination was very troubling. In chief, she discounted Dr. Sloka’s decision to perform a cardiac examination “because heart disease isn’t going to cause MS.” Here we can see that her premature attachment to an MS diagnosis informed her opinion about the cardiac examination. She similarly rejected the reasonableness of conducting a respiratory examination and taking vital signs. When taken to the consultation letter of Dr. Vincent, Dr. Bril acknowledged that Dr. Vincent, like Dr. Sloka, conducted cardiac and respiratory examinations. Dr. Bril maintained that Dr. Vincent’s decision to do so was unreasonable. She was now faced with the fact that two trained neurologists showed disagreement with her by conducting the same two clinical examinations. Dr. Vincent’s conduct and extremely positive feedback regarding Dr. Sloka’s workup clearly posed a threat to her assessment of Dr. Sloka’s conduct. In response, Dr. Bril engaged in abject speculation and suggested that Dr. Vincent may have either dishonestly recorded an examination he did not conduct or dishonestly performed an unnecessary examination so that he could bill for other services rendered. Given the cavalier way she speculatively cast aspersions upon a professional colleague, I cannot ascertain if she was also implying that Ms. J.C.’s medical insurers were also complicit. In short, she baselessly provided Dr. Vincent an excuse for his unreasonable examinations – one involving financial misconduct but not sexual misconduct – so that she could safeguard her own opinion from criticism – to save face. In doing so, she strayed beyond the scope of her authorized opinion. In my estimation, she severely harmed her credibility in the process.

[3561] Although she disagreed that any of the conditions on the differential diagnosis were worthy of consideration, Dr. Bril acknowledged that many of them involve skin manifestations. Despite this concession, she disputed the reasonableness of a skin examination for three reasons. First, she did not think any of the conditions on the differential were worthy of any serious consideration. I have already addressed my view of her evidence on this point. Second, she believed that those conditions could be investigated by ordering bloodwork. And third, she contended that neurologists do not do skin examinations, because they lack the training and experience to do so. I will address these second and third points now.

[3562] I find the contrast between Dr. Bril’s approach to neurological examinations and her approach to the skin examination puzzling. She provided no real explanation of the utility of a neurological examination. The defence suggested that a doctor might want to look for other clues that might support an MS diagnosis. Dr. Bril essentially discounted that rationale, reasoning that a negative neurological examination does not exclude a diagnosis of MS. Nevertheless, she endorsed doing a neurological examination for unspecified reasons. Contrast that approach to her approach to a skin examination. Here, she stated that a skin examination was not as “sensitive” as bloodwork in detecting the conditions on the differential. Implicitly, she was asserting that a negative skin examination might not rule out the existence of a condition on the differential. This was the same logic she applied when discussing the neurological examination. Yet, unlike her endorsement of a neurological examination, she considered a skin examination unreasonable. Dr. Bril took this position despite acknowledging that Ms. J.C. had a history of intermittent psoriasis and eczema, neither of which are associated with MS or optic neuritis, but both of which could admittedly be indicative of some other systemic disease. To sum up, Dr. Bril appeared to condone bloodwork to investigate the other conditions on the differential diagnosis but did not condone any physical examination that might be logically related to the very same investigation. Meanwhile, she supported a neurological examination, even though other more sensitive examinations (in this case, an MRI) were available and even though a neurological examination may neither exclude nor prove an MS diagnosis. This opinion strikes me as illogical. Dr. Bril did not satisfactorily explain why a skin examination might not reasonably augment subsequent blood tests or might inform interim treatment decisions.

[3563] I deal now with Dr. Bril’s claim that neurologists do not do skin examinations and lack the training and expertise. As I stated in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, Dr. Bril provided profoundly inconsistent evidence on this issue. For all the reasons stated in the general assessment of Dr. Bril’s evidence, I afford no weight to Dr. Bril’s evidence on this issue.

[3564] Dr. Sloka testified that he believed that optic neuritis was the most likely explanation for Ms. J.C.’s presentation. However, the MRI of Ms. J.C.’s eyes did not confirm the diagnosis of optic neuritis. He wanted to look for mimics of optic neuritis. Even if she had optic neuritis, he did not believe Ms. J.C. necessarily had MS, although diagnosis was a distinct possibility. Even with a finding of optic neuritis, he was unable to make a diagnosis of MS because the McDonald’s criterion of dissemination in time had not been established. Dr. Bril’s evidence about the criteria supported this conclusion, even if she believed that MS had been all but established. Without a certain diagnosis of optic neuritis and with no diagnosis of MS, he wanted to perform physical examinations to look for evidence that might point to other explanations for Ms. J.C.’s symptoms. Some of the conditions on the differential diagnosis had skin manifestations. Accordingly, he wanted to look for those skin manifestations. Had he found any, he might not have prescribed a high dose of steroids right away. Unlike Dr. Bril’s position, Dr. Sloka’s justification for his skin examination was logically sound, consistent with his understanding of the McDonald’s criteria, and consistent with the philosophy that motivated him to conduct a neurological examination.

[3565] Contrary to the conclusion I have drawn, the Crown argues that Dr. Sloka’s decision to conduct a skin examination was illogical, because doing so would not rule out any other condition. This submission fails to grasp Dr. Sloka’s stated motivation. He was not attempting to use a skin examination to exclude these other conditions. Instead, he was looking for evidence of other conditions – mimics - that might point him in a different direction, that might point to an alternative to his favoured diagnosis. Had he found the manifestations of other disorders on Ms. J.C.’s skin, he may have delayed prescribing steroids to treat the favoured diagnosis. A similar albeit slightly different philosophy underlay his decision to conduct a neurological examination. He was not necessarily seeking to exclude MS as a diagnosis. Amongst his goals, he was looking for evidence that might support an MS diagnosis. Negative results would not exclude MS. Nevertheless, Dr. Sloka viewed the neurological examination as worthwhile, as did Dr. Bril. The difference between the two is that Dr. Sloka provided a cogent explanation for his approach, Dr. Bril did not. As already noted, Dr. Sloka’s decision to order bloodwork for mimics confirms his desire to investigate the possibility that mimics might explain Ms. J.C.’s symptoms. As it happens, that bloodwork uncovered a mimic (Bartonella). Consequently, I accept Dr. Sloka stated rationale for the skin examination. I accept that he possessed what he believed to be a valid medical motive for the examination.

[3566] The Crown also challenges Dr. Sloka’s reliance upon and understanding of medical literature. In a different context, the Crown asked Dr. Sloka to cite specific authorities that advocated the use of skin examinations when investigating the possibility of neurofibromatosis. The Crown argues that Dr. Sloka’s inability to provide citations on the spot, apart from one comprehensive text (Bradley’s), years after he stopped practicing, detracts from his credibility. Also, the Crown submits that even if an authority indicates that a skin examination “can be considered” to investigate the possibility of mimics, that does not make a skin examination reasonable. Their submissions here lack merit for several reasons. First, I hardly find it surprising that Dr. Sloka could not provide a direct citation on the spot, without any advance notice. Second, Dr. Sloka offered to find and identify the texts; the Crown did not take him up on his offer. Third, the Crown never presented through Dr. Bril (or any other witness) medical authorities that contradicted Dr. Sloka’s claim that medical literature suggests a skin examination can be considered when attempting to investigate mimics of optic neuritis and MS. Fourth, the portion of evidence upon which the Crown relies concerned Dr. Sloka’s knowledge of literature that dealt with the diagnosis of neurofibromatosis. It bore no relevance to Dr. Sloka’s knowledge about literature that touched on the investigation of mimics of optic neuritis and MS. Lastly, assuming Dr. Sloka’s understanding of the literature is accurate, I fail to see how reliance upon it can render a skin examination unreasonable.

[3567] The Crown also takes issue with Dr. Sloka’s interest in Ms. J.C.’s prolactin and TSH levels. The Crown contends that Dr. Sloka failed to adequately explain their diagnostic value, the connection between prolactin levels and optic neuritis, and the connection between thyroiditis and MS. I have summarized Dr. Sloka’s evidence on the subject above. In my view, he drew a logical and reasoned connection between prolactin levels, the possibility of a pituitary tumor, and the possible resulting pressure on the optic nerve. Similarly, he drew a rational connection between TSH, thyroiditis, and MS – a connection about which he had published in the Journal of Autoimmune Diseases. I accept that Dr. Sloka genuinely believed in the diagnostic value of those hormone tests. Dr. Sloka’s evidence on the subject went unchallenged. The Crown tendered no factual foundation to support their claim that these hormone tests were “an example of Dr. Sloka speculating and using loose and non-causal medical associations to justify his actions.”

[3568] The Crown also argues that Dr. Sloka provided support for Ms. J.C.’s evidence and harmed his own credibility by acknowledging that early in his practice he sometimes used the term moles to describe café au lait spots. Dr. Sloka denied doing so in Ms. J.C.’s case. Although the basis for his denial was not explored in cross-examination, his evidence on the use of the term “moles” was explored elsewhere. In his evidence regarding J.D. and J.B., Dr. Sloka testified that he may have used the term “moles” early on in his practice – he was not sure – because patients didn’t know what he meant by the term “café au lait spots.” However, he maintained that he would have qualified his use of the term and explained that he was not interested in what he calls common moles. He would describe what he was after and use pictures to illustrate his meaning. Several patients in this case confirmed Dr. Sloka’s tendency to use pictures and texts to explain concepts to them. Ms. J.C. did not see Dr. Sloka early in his practice. Ms. J.C. had a poor memory of their discussion. Further, as I have already noted, her memory is tainted by exposure to news stories about Dr. Sloka’s interest in moles. Also, by the time of her statement to the police, Ms. J.C. had received a mole check from a dermatologist. Given her generally poor memory, there exists a significant risk she has conflated aspects of her dermatologist’s mole check with Dr. Sloka’s skin examination. Moreover, Ms. J.C. agreed in cross-examination that Dr. Sloka may have spoken about birth marks and other abnormalities. I do not agree that Dr. Sloka’s evidence provides any support for Ms. J.C.’s claim that Dr. Sloka’s skin examination focussed on her moles.

[3569] The Crown also relies upon cross-count similar fact evidence to support Ms. J.C.’s evidence and to challenge Dr. Sloka’s credibility.

[3570] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this case. However, as discussed, I have also concluded that Dr. Sloka has provided compelling evidence of a medical motive which refutes any possible inference of a sexual motive.

[3571] The Crown relies upon other granular cross-count similarities as evidence in support of other material issues. The Crown points to three similarities. First, they argue that Ms. J.C. belongs to a constituency of patients who received a skin examination. Second, they argue that Ms. J.C. belongs to a constituency of patients who allege they wore their gown opened to the front. Third, they argue that Dr. Sloka belongs to a constituency of patients who allege Dr. Sloka wanted to examine their moles. In my view, these cross-count similarities provide insufficient support on any remaining material issue.

[3572] I deal first with the alleged skin-examination similarity. Dr. Sloka does not contest the claim that he performed a skin examination. He concedes he likely performed one. The fact of a skin examination is not a material issue. This cross-count similarity is not sufficiently probative of any material issue other than Dr. Sloka’s motive. The primary material issue here concerns the medical reasonableness of Dr. Sloka’s skin examination. Evidence of skin examinations on other patients is not probative of the reasonableness of the one conducted on Ms. J.C. Moreover, there is insufficient cross-count similarity about Dr. Sloka’s methodology to support Ms. J.C.’s evidence about Dr. Sloka’s methodology in her case.

[3573] I turn next to the constituency of patients who allege that Dr. Sloka asked them to wear their gowns open to the front. Once again, I note that most patients did not make this allegation. Only 11 out of 48 patients alleged that they wore their gown open to the front. Of those patients, only some allege that Dr. Sloka specifically instructed them to wear the gown in this manner. Also, some of these patients described a style of gown not used at Dr. Sloka’s clinic. Many other patients specifically recalled Dr. Sloka directing them to wear their gown open at the back. The gowns supplied to Dr. Sloka’s office could be worn one of two ways: open at the back or open at the front. A person with absolutely no memory about how they wore their gown would have a 50-50 chance of guessing the gown’s orientation correctly. Given the probabilities, I think a ratio of 11:48 is more consistent with coincidental error than it is with any situation specific propensity. Of importance, Ms. J.C. had a very poor memory about when she was gowned and for what reason. She made concessions that supported the contention that she wore the gown opened to the back and that she did not part her gown to expose her entire torso, as originally alleged. I therefore conclude that this cross-count similarity has next to no probative value. It is therefore of no moment that this cross-count similarity was not reported in the media.

[3574] I will pause her to make one other comment about the skin examination. I disagree with the Crown submission that Dr. Sloka helped confirm Ms. J.C.’s allegation by admitting that she would be naked (beneath her gown) for a skin examination. Again, the fact of a skin examination was not in dispute, only Dr. Sloka’s method and purpose. On those material issues, Dr. Sloka did not support Ms. J.C.’s allegation. And, importantly, Ms. J.C. eventually made concessions in cross-examination that either supported Dr. Sloka’s position or at least aligned more closely with it on the question of his methods and purpose.

[3575] And now I will address the purported mole-similarity. As already noted, I have concluded that Ms. J.C.’s memory on the subject was poor, internally inconsistent, possibly consistent with Dr. Sloka’s opposing evidence, and very likely the product of media tainting. I also keep in mind that Ms. J.C. testified about having her moles examined by a dermatologist. In my view, there exists a realistic possibility that she has conflated aspects of two different skin examinations, as I have already discussed. The Crown submits that Dr. Sloka’s concession of a skin examination serves to rebut the likelihood of tainting. That submission has no logic. The existence of the skin examination was not a material issue. Instead, the purpose and method of the skin examination were material issues. The Crown also submits that Ms. J.C.’s claim about wearing her gown open to the front rebuts any concern about tainting, because this allegation was not reported in any news stories. While this submission may be germane – albeit of no use - to the gown aspect of the Crown’s similar fact evidence, it is not germane to the issue of a mole examination. The absence of tainting on one issue does not rebut tainting on another.

[3576] Having considered all the evidence, I reject Ms. J.C.’s evidence that Dr. Sloka examined and touched her moles or any other part of her body during the skin examination. I reject Ms. J.C.’s evidence that Dr. Sloka asked her to wear her gown open to the front. I accept Dr. Sloka’s evidence that Ms. J.C.’s skin examination was motivated by a sincere desire to look for possible mimics of optic neuritis and MS. I reject Dr. Bril’s evidence on the propriety of a skin examination. In my view, her opinion was irreparably tainted by her flawed and premature opinion that MS was the only available diagnosis. Her bias infected her entire critique of Dr. Sloka’s approach. I accept Dr. Sloka’s evidence that he performed that skin examination in accordance with his standard methodical approach, which involves the sequential exposure of segments of her body while other parts of her body remain draped. I accept that Dr. Sloka “was very procedural” in his approach, just as Ms. J.C. initially perceived it. The skin examination was a medical examination to which Ms. J.C. provided her expressed consent. It was not a sexual assault. I similarly conclude that Dr. Sloka conducted his cardiac examination for what he believed to be a valid medical purpose. His stated purpose was based in logic and on an unchallenged understanding of underlying medical principles. I accept that Dr. Sloka performed it in accordance with his standard approach, just as he was trained. I conclude that Ms. J.C. totally forgot about this cardiac examination because Dr. Sloka performed it in a professional manner. I reject Dr. Bril’s evidence on the propriety of the cardiac examination. When confronted with the fact that another neurologist took the same approach as Dr. Sloka, Dr. Bril speculatively impugned the integrity of that neurologist to safeguard her own opinion from criticism. I conclude that the cardiac examination was a medical examination to which Ms. J.C. provided her expressed consent. I infer that she entirely forgot about it because it caused her no concern whatsoever, even though it necessarily involved the exposure of one breast. The cardiac examination was a medical examination, not a sexual assault.

[3577] Dr. Sloka will be acquitted of this count.

ii. M.O. (Count 30)

A Summary of Ms. M.O.’s Complaint and Dr. Sloka’s Response to It

[3578] Ms. M.O.’s ophthalmologist suspected she had optic neuritis and sent her to Dr. Sloka for an assessment. She saw Dr. Sloka several times. She alleged that Dr. Sloka only examined her once, at her final visit, as a last resort to investigate the cause of her difficulties. She alleged that the examination consisted solely of a skin examination. For that skin examination, Dr. Sloka did not provide her a gown, only a cloth sheet for draping. She stood for the skin examination. Dr. Sloka examined the bottom half of her body, then the top half. When examining the bottom half, Dr. Sloka allegedly told her to hold the sheet over her torso. When Dr. Sloka examined the top half, she then wore the sheet like a skirt. Ms. M.O. alleged that Dr. Sloka traced his fingers up and down her limbs as he examined her skin. He lifted both breasts to see the skin beneath them. He did not touch her buttocks or genitals, though.

[3579] Dr. Sloka testified that, while some of Ms. M.O.’s symptoms were consistent with optic neuritis, some aspects of her presentation did not easily fit with that explanation. He searched for evidence of other conditions that mimic the symptoms of MS and optic neuritis. During her time as his patient, he ordered a wide variety of tests and conducted examinations on multiple occasions. According to Dr. Sloka, he performed neurological and cardiac examinations on her first appointment, in addition to taking her vital signs. He conducted neurological and cardiac examinations on her third appointment, in addition to taking her vital signs. He also conducted neurological and possibly skin and joint examinations on her fifth and final appointment. He never found a satisfactory explanation for her vision impairment.

The Circumstances of Ms. M.O.’s Referral and Treatment History

[3580] Ms. M.O. was 24 years old at the time of her referral.

[3581] Her symptoms came on suddenly while she was working on her computer at a dental office. When looking in a certain direction, she began to see a hazy purple dot out of her right eye when looking at bright objects and a hazy green dot when looking in the dark. She went to see an ophthalmologist on September 12, 2012. The ophthalmologist suspected optic neuritis and sent Ms. M.O. to Dr. Sloka the very same day. Her first appointment with Dr. Sloka occurred after hours at 5:30 on September 12, 2012.

The Evidence of Ms. M.O.

[3582] Ms. M.O. was 33 years old when she testified.

[3583] Before testifying, she had the benefit of a review of her medical records, which she believed had refreshed her memory about the chronology and nature of her visits. She did not have the benefit of a review of these records before providing her statement to the police on October 15, 2019. When speaking to the police, she had believed she only attended two appointments, a month apart from each other. Having reviewed her records, she came to believe that she had attended four appointments. In reality, her medical records reveal that she attended for five appointments with Dr. Sloka over ten months.

[3584] According to Ms. M.O., the initial appointments were uneventful. They involved Dr. Sloka obtaining her medical history and ordering a battery of tests. She testified that she expected to learn the results of all this testing on the final visit. On Ms. M.O.’s account, she never entered the examination room and was never examined until her final visit. Likewise, she never got undressed and wore a gown during any of the first four visits. Testing this claim, defence counsel reviewed with Ms. M.O. her medical records. In addition to the examination reported at the final visit, Dr. Sloka’s consultation letter from her first visit reported neurological and cardiac examinations (as well as taking her vital signs). Dr. Sloka’s consultation letter from her third visit also reported neurological and cardiac examinations (as well as taking her vital signs). Despite what was reported in Dr. Sloka’s consultation letters, Ms. M.O. maintained that she did not recall a single component of the exams summarized in the consultation letters from the first and third visits. She continued to maintain that she did not enter the examination room, did not get undressed, and did not wear draping until her final appointment.

[3585] Defence counsel also probed Ms. M.O.’s claim that she did not learn the results of the battery of tests until the final visit. At the time she provided her statement to the police, she believed that she had only attended two appointments with Dr. Sloka: the first appointment where Dr. Sloka ordered a battery of tests and the second appointment where she expected to receive the “final results.” After a review of her medical file, she realized that she attended more than two appointments. Nevertheless, she still testified that she believed she would be getting the “final results” at her final appointment, which his why she brought her boyfriend (now husband) along. Her boyfriend had not come with her to any earlier appointments.

[3586] Still exploring Ms. M.O.’s belief that she only received final test results at the final appointment, defence counsel drew Ms. M.O.’s attention to the consultation letter from her second visit (October 26, 2012). By that point in time, her condition had stabilized, with only some residual visual field changes. Since her last appointment, Ms. M.O. had participated in a variety of tests, including extensive bloodwork, genetic testing, a Holter monitor, a head MRI, an echocardiogram, and a CT angiogram of her neck. All tests had come back as normal. After a review of Dr. Sloka’s consultation letter from October 12th, Ms. M.O. agreed that Dr. Sloka had reviewed her test results with her, that he told her that her tests came back normal, except for an elevated white blood cell count, and that he said he did not have an exact explanation for her condition. She also agreed that Dr. Sloka booked a follow-up appointment in three months and told her to call in the meantime if she experienced any difficulties.

[3587] Defence counsel then took Ms. M.O. to her third appointment. This appointment occurred on November 19, 2012, about three weeks after her second appointment, well ahead of the three-month follow-up. Ms. M.O. booked this appointment. She had been experiencing tingling in both of her hands and the dorsum of her right foot. She did a little online research, which made her anxious about the possibility of MS. She was also anxious because she worked with someone with MS. Ms. M.O. agreed that Dr. Sloka ordered an MRI of her cervical spine and nerve conduction studies in her arms and right foot to investigate her new symptoms, just as Dr. Sloka reported in his consultation letter. However, she did not recall Dr. Sloka measuring her vital signs or conducting neurological and cardiac examinations. She denied going into the examination room at all.

[3588] Defence counsel then took Ms. M.O. to her fourth appointment, which occurred on January 28, 2013. She was doing much better at this appointment, and her sensory symptoms had normalized. She agreed that Dr. Sloka reviewed with her the results of the MRI and nerve conduction studies. He also reviewed with her the remaining blood test results. All her results were normal. By the end of this appointment, she knew that Dr. Sloka had not found anything in any of her many tests to explain her symptoms. Dr. Sloka decided to repeat her head and cervical MRIs in six months to monitor her. No other tests were pending.

[3589] Leaving the fourth appointment, Ms. M.O. knew that the battery of tests ordered by Dr. Sloka did not explain her symptoms. The pending MRI tests were going to be a repetition of earlier negative tests, to ensure no changes had developed. Contrary to Ms. M.O.’s initial assertion, she did not attend the final appointment without knowing the results of the tests ordered at earlier appointments.

[3590] I turn next to Ms. M.O.’s recollection of her final appointment.

[3591] As noted, Ms. M.O. testified that she brought her boyfriend (now husband) to her appointment.

[3592] She testified that, when she went to speak with Dr. Sloka in his office, her boyfriend sat waiting in a chair in the hallway outside Dr. Sloka’s office. Defence counsel showed Ms. M.O. a picture of the hallway outside Dr. Sloka’s office, from Exhibit 2. There are not chairs in the hallway outside Dr. Sloka’s office. Instead, there are chairs in the waiting room located on the other side of the hallway. Ms. M.O. did not recognize the photographs of the waiting room. She maintained that there were chairs in the hallway. Having seen the photographs in Exhibit 2 and having considered the evidence of every other witness in this trial, I conclude that Ms. M.O. was mistaken about her boyfriend waiting on a chair in the hallway. This erroneous purported memory gains significant importance because of what Ms. M.O. told the police and because of what her husband said in his testimony (which will be discussed later). Ms. M.O. told the police that her boyfriend waited in a waiting room or reception area, not a hallway. Faced with this prior inconsistent statement, Ms. M.O. agreed to the possibility that she and her husband sat in a waiting room; however, she maintained that her current memory was that her husband waited in a chair in the hallway. She denied the suggestion that the change in her evidence was the product of collusion with her husband.

[3593] While in the office with Dr. Sloka, Ms. M.O. recalled him telling her that her most recent MRIs were negative. He told her that they might never discover the reason for her vision issues. Ms. M.O. testified that Dr. Sloka proposed a skin examination. In-chief, she claimed he did not explain the justification for the skin examination. He simply stated he wanted to make sure there were no marks. He mentioned quarter-sized marks. In cross-examination, she agreed he in some fashion indicated that he wanted to do a skin examination to see whether he could find any abnormalities of her skin condition that may be explain her condition. She did not know whether he used the term “abnormalities” but commented, “that sounds fair.” This was the term she used in her police statement. She also remembered mention of quarter sized marks. She also agreed it was possible that he mentioned various types of skin markings. Ultimately, she agreed that Dr. Sloka provided her a reason for his interest in doing a skin examination and based on that reason, she agreed to it. She was confused by whatever he told her, but she nevertheless agreed to the examination. She added that she was not arguing against the appropriateness of the decision to conduct a skin examination. Rather, she took issue with the way Dr. Sloka conducted it.

[3594] Ms. M.O. recalled Dr. Sloka taking her into the examination room. Again, to her recollection, this was the one and only occasion on which she entered the examination room. He then told her that she would need to undress completely for the examination. He also told her that he would need her to stand in the middle of the room for the examination. He would provide her a sheet, and she could cover areas that he was not examining. Ms. M.O. said the sheet in question was a thin, white, full-sized, linen sheet that was folded on the examination table. Dr. Sloka then departed the room to allow her privacy to change.

[3595] Ms. M.O. removed all her clothing except her underwear. She testified that she folded the sheet, so that it could cover one half of her body at a time. She testified that she first held the sheet to obscure the upper half of the front of her body. She grasped the top of the folded sheet with her hands, allowing it to hang down from her clasped hands. She held her hands in front of her, a little more than shoulder length apart, her elbows bent. She agreed her arms and hands were held in what defence counsel described as “the robbery position.” She stood with her back to the window, as instructed. Ms. M.O. agreed that the position she assumed was dramatic and bizarre. Consequently, she professed to possess a very distinct memory of this moment.

[3596] Dr. Sloka returned to the room as she stood ready in this purportedly bizarre and memorable position.

[3597] To her recollection, Dr. Sloka examined her lower body first. He crouched down in front of her to inspect her skin. She also described him tracing her body with his finger, beginning at the outside of one leg, then to the inside, then over to the other leg to do the same thing. He began at her front and repeated the process from the back. He did not touch her vagina or buttocks during the examination. Ms. M.O. described Dr. Sloka as being 4 inches away from her while he examined her skin.

[3598] While examining her legs, he stated, “Don’t mind me if I’m blushing. I’m a red head. That’s what we do.” Ms. M.O. also observed that Dr. Sloka did not look comfortable while he performed the examination.

[3599] Ms. M.O. testified that Dr. Sloka then instructed her to wrap the sheet around her bottom half while he examined her upper torso. He again examined her closely. While examining her front, he traced his finger along her arms. He also used the back of an index finger to lift each breast, as if to look at the skin underneath. While examining her back, he also traced his finger along her side, from waist to armpits. After examining her back, he told her that everything looked good and instructed her to get dressed and meet him back in the office. According to Ms. M.O., Dr. Sloka did not perform any other examinations of her during this episode.

[3600] Ms. M.O. testified that as the examination was occurring, she did not believe it was a legitimate examination. She thought Dr. Sloka’s method was bizarre. Dr. Sloka’s mannerisms and his comment about blushing reinforced her opinion. In addition, she alleged that she was struck by the fact that Dr. Sloka never examined her head and neck for any of the skin markings. Later in her evidence, she acknowledged that she believed there was a possibility that the examination was medically appropriate, and she did not feel it was her place to question it.

[3601] In cross-examination, defence counsel took Ms. M.O. to her police statement. In her statement, Ms. M.O.’s description of her draping and examination involved the exact opposite sequence. She told the police that when Dr. Sloka entered the room, she wore the sheet like a skirt, and her entire torso was exposed. She stood with her breasts exposed to Dr. Sloka while he examined her upper body first. She told the police that she then held the sheet in front of her torso as Dr. Sloka examined her lower body. Ms. M.O. agreed that she provided a diametrically opposite chronology. She could not explain why.

[3602] In her statement to police, Ms. M.O. also contradicted her evidence regarding the contact with her breasts. In her police statement, she could not remember how Dr. Sloka made contact with her breasts. She was not sure if he lifted them with his finger or with a pen.

[3603] Ms. M.O. did not recall much about what she and Dr. Sloka discussed back in his office. She believed they discussed having a follow up appointment. She also believed she may have obtained a new appointment date from the secretary, but she wasn’t sure.

[3604] According to Ms. M.O., she spoke to her boyfriend about her concerns when departing the final appointment. On the way out, her boyfriend asked her about the test results. She replied by telling him that she would tell him later. She added, “It was so weird. I need to tell you about this.” When they got to the car, she told her boyfriend, “I didn’t know I was going in for a full body examination.” She also remembered telling her boyfriend that she thought Dr. Sloka was “just getting his jollies.” She went on to describe the skin examination, including the employment of the sheet and Dr. Sloka’s comment about blushing. Ms. M.O. perceived her boyfriend to be nonplussed about her disclosure. He seemed more concerned about the test results and her health.

[3605] Apart from disclosing her allegations to her boyfriend, Ms. M.O. believed that she and her boyfriend also made mention of the incident to another couple, perhaps at dinner and perhaps even that evening. However, she could not identify the people to whom they made any disclosures.

[3606] Ms. M.O. recalled subsequently calling the office and cancelling that follow up appointment, because she was not experiencing any more symptoms, and Dr. Sloka told her that follow-up was optional. She also did not like the anxiety she experienced with ongoing medical appointments and testing.

[3607] Ms. M.O. testified that it was not in her nature to complain about Dr. Sloka, so she kept her concerns quiet for years. However, upon seeing some media coverage about Dr. Sloka facing allegations of sexual misconduct, she decided to come forward.

[3608] Ms. M.O. read some news articles about Dr. Sloka in September of 2019. She recalled the articles mentioning that Dr. Sloka had already lost his license. They also mentioned that he had been charged with sexual assaulting 34 women. The articles also made mention of inappropriate draping. She assumed that women were complaining of being naked. The articles also made mention of inappropriate examinations. And there was mention of penetration. Upon reading the articles, Ms. M.O. felt that they legitimized her feeling that her examination was not above board, even if the other complaints were not identical to hers.

[3609] Ms. M.O. told her husband, A.O. about the news articles. He responded by saying something to the effect of, “That’s crazy. I really … didn’t think much of it.”

[3610] During her police interview, the detective asked her, “Do you feel like this was sexual assault?” Ms. M.O. provided a tentative reply, “Yeah, I guess, yes.” The detective provided this concerning response, “Well, now I’m going to tell you that my belief, that’s exactly what it is, right?” The officer added, “That’s why so many ladies have come forward, including you.” After offering that input, the officer asked Ms. M.O. if she wanted to proceed with a criminal complaint. Ms. M.O. decided to proceed with a criminal complaint because she felt that there was “strength in numbers.” She felt it was her duty to come forward to “corroborate the fact that people have had negative experiences.” She wanted to support the prosecution and other complainants. She testified that if she was the sole complainant, she certainly would not have pushed forward with a complaint.

The Evidence of A.O.

[3611] When he testified, A.O. was Ms. M.O.’s husband. He was Ms. M.O.’s boyfriend when she was Dr. Sloka’s patient.

[3612] His memory of the material events was somewhat limited. Mr. A.O. remembered Ms. M.O. having difficulties with her vision – seeing a purple spot after she had purchased some new glasses. He remembered that Ms. M.O. went to an eye doctor. And he remembered that the eye doctor sent Ms. M.O. to Dr. Sloka.

[3613] Mr. A.O. was not sure about the number of appointments Ms. M.O. had with Dr. Sloka. He believed he accompanied Ms. M.O. once to Dr. Sloka’s office, which he believed occurred on the final appointment. He believed it was the final appointment because he remembered his sense of relief that the medical concern had ended. On his evidence, he was not aware of any test results prior to this final visit. He purported to be anxious about her test results. On his evidence, that was his preoccupation. He agreed that a lot of tests were ordered at her first visit. He agreed that she attended follow-up appointments afterwards. He recalled somebody getting Ms. M.O. worked up about a tumor. But he did not remember knowing about any test results prior to Ms. M.O.’s final visit. This evidence, of course, is at odds with the content of Ms. M.O.’s medical file, which indicated that Ms. M.O. had long since received every pertinent test result before her final appointment. The only pending test results were involved the second round of MRIs, ordered to confirm that the absence of any concerning change. While at odds with Ms. M.O.’s medical file, it happens to precisely track Ms. M.O.’s narrative.

[3614] Mr. A.O. also testified that Dr. Sloka had ordered various tests prior to Ms. M.O.’s final appointment. He thought he likely accompanied Ms. M.O. to some of these tests, but he could not be sure. His memory was admittedly blurry.

[3615] As for the occasion on which he accompanied Ms. M.O. to Dr. Sloka’s office, Mr. A.O. testified that he sat in a chair in the hallway outside Dr. Sloka’s office for the entire visit. He did not accompany Ms. M.O. inside Dr. Sloka’s office. As noted, I have concluded that he could not have waited in the hallway. His mistaken testimony tracks precisely with Ms. M.O.’s mistaken testimony.

[3616] Mr. A.O. testified that when Ms. M.O. came out of Dr. Sloka’s office, she had a look on her face, something between a smirk and an expression of concern. He asked, “What?” She shook her head and told him that she would talk about it outside.

[3617] According to Mr. A.O., once in the car, she said something like, “That was messed up.” She went on to say that she did not know she was going in for a full body examination. According to Mr. A.O., he had little interest in what Ms. M.O. was talking about. Instead, he pressed her about her test results. She kept wanting to talk about the examination and he kept wanting to talk about the test results. Again, this purported memory does not align with the reality that Ms. M.O. had long since learned that her test results had revealed no concerns. Previous test results did not explain her symptoms, which had stabilized. Dr. Sloka’s records reveal that the tests discussed at this visit were a repetition of some previous tests which had produced negative results. In any event, Mr. A.O. remembered Ms. M.O. telling him that the test results were “good” as he pulled onto the road that runs along the hospital. He asked Ms. M.O. about the need for follow-up. She told him that she could book follow-up if she wanted, but she was not going to do it. According to Mr. A.O., she remained focussed on the examination.

[3618] In Mr. A.O.’s telling, Ms. M.O. reported a full body examination. She spoke of awkward touching, tracing his finger up and down her limbs, which did not feel like any examinations she had experienced before. She purportedly told him about poking at her breasts, and Dr. Sloka blushing as he was doing it. She purportedly told him about having to hold a sheet or a towel. She purportedly said that Dr. Sloka was positioned awkwardly close to her, and she made mention of the awkwardness of the touching. He said that she mentioned that Dr. Sloka was either kneeling or squatting as he looked at her lower half. He remembered her asking at one point, “Is this normal?” Then, she reportedly answered her own question, “This isn’t normal. He was doing this for his own pleasure.” Mr. A.O. testified that he did not ask any questions and did not think anything of Ms. M.O.’s description of her examination. He explained that he was focussed on the test results. He reportedly told Ms. M.O., “Well, he’s a doctor.”

[3619] Mr. A.O. also testified that he and Ms. M.O. mentioned the examination when out with friends for dinner the night of the appointment. He could not be sure who they were with. He believed he made a joke of the examination. From time to time, he would talk about the appointment with others, when sharing anecdotes. He testified that Ms. M.O. hated it when he brought up the story.

[3620] Mr. A.O. agreed that he had spoken to Ms. M.O. about their memories of her appointment after learning from the news about the allegations made against Dr. Sloka. He recalled reading a headline about a neurologist facing allegations. At first it didn’t click that the story was about Dr. Sloka. Then, he spoke to Ms. M.O., and it clicked. He read some articles and spoke to Ms. M.O. about them. Ms. M.O. told him, “I told you.” Then, they recapped the recollections from the day of the appointment. He was struck by the similarities between what he was reading and what Ms. M.O. had told him on the day of the appointment. His perception of Ms. M.O.’s examination fundamentally changed after he read about other allegations against Dr. Sloka in the news. In the past, he had joked about Ms. M.O.’s examination. After realizing the similarities between the news reports and Ms. M.O.’s account, he came to feel that he had not taken Ms. M.O.’s concerns seriously enough, and he urged her to call the police.

The Evidence of Dr. Bril

[3621] Dr. Bril took no issue with Dr. Sloka’s approach at Ms. M.O.’s first appointment. She testified that his entire reported Impression was neurologically reasonable. That impression included a decision to investigate MS and MS mimics, such as vascular, rheumatological, and other causes for her symptoms.

[3622] Dr. Bril also took no issue with Dr. Sloka’s decision to conduct any of his other reported neurological examinations. In her mind, they were all neurologically warranted.

[3623] However, she took issue with Dr. Sloka’s decision to conduct a cardiac examination on November 19, 2012. Her evidence on this point was brief and not the subject of either the Crown or defence counsel’s focus.

[3624] In accordance with counsel’s implicit assumption in both direct and cross-examination, Dr. Bril’s evidence about a skin examination was largely tied to the final appointment, July 15, 2013. However, during her direct examination, she made clear her opinion that a skin examination was not warranted at any appointment. Underlying this opinion was Dr. Bril’s view that neurologists should not do skin examinations. Also, once the blood test results had ruled out mimics, she did not believe a skin examination could be justified as a search for mimics.

[3625] In reading Dr. Sloka’s consultation letter from the final appointment (July 15, 2013), Dr. Bril interpreted the second paragraph to be a report of a neurological examination, which was consistent with Dr. Sloka’s interpretation. She agreed a neurological examination was appropriate. In her opinion, Dr. Sloka still needed to be concerned that Ms. M.O. may have MS. He had yet to find an explanation for her vision issue. MS remained a possible explanation. On the other hand, neurologists sometimes do not find out the cause of an isolated loss of vision. Dr. Sloka had suggested yearly MRIs in his July 15th letter, which he would want to do if he too was still concerned about MS.

[3626] As noted, Dr. Bril did not think it reasonable for Dr. Sloka to still consider mimics of MS by July 15th. Relatedly, she did not think a skin examination was neurologically reasonable, because she believed MS mimics had been ruled out. Having said that, she also agreed that Ms. M.O.’s symptom set was unusual and did not neatly fit with a diagnosis of optic neuritis or MS. The unusual features included the lack of pain on eye movement, the abruptness of onset, and the impairment of only a small portion of Ms. M.O.’s visual field. Nevertheless, Dr. Sloka had done bloodwork to investigate mimics of MS. All that bloodwork came back with negative results. In her view, a skin examination in search of the skin manifestations of MS mimics was rendered unnecessary by the bloodwork results. In addition, at this point in her testimony, she did not condone neurologists conducting skin examinations. Meanwhile, MS remained a valid concern, even if her presentation was atypical.

[3627] While Dr. Bril believed that a negative blood test for lupus rendered a skin examination unnecessary, she did not know whether a person with known Lupus could still at some points produce negative blood test results.

[3628] Dr. Bril also did not think it reasonable to search for evidence of any neurocutaneous syndrome, which are genetic disorders for which the bloodwork did not screen. In her view, neurocutaneous syndromes had been ruled out, because by the time of the skin examination (July 15th), Ms. M.O.’s MRIs already failed to disclose any internal plexiform neurofibromas, which are the main concern with neurofibromatosis. Neurofibromas are the things that lead to disability and death, not café au lait spots. She added that, if Dr. Sloka continued to have a concern about neurofibromatosis, he ought to have referred Ms. M.O. to a dermatologist to perform a skin examination.

The Evidence of Dr. Sloka

[3629] Dr. Sloka vaguely remembered Ms. M.O.’s worry about the possibility of having MS. However, he did not remember any of the details of Ms. M.O.’s appointments. He relied upon his consulting letters for the truth of their contents and the remainder of her medical file for context.

[3630] While he could not remember one way or another, Dr. Sloka agreed that he may have done a skin examination at Ms. M.O.’s final appointment to search for evidence of possible mimics of optic neuritis and MS. I want to take a moment here to make an observation about this concession. Ms. M.O. had testified that the skin examination occurred at the appointment in which she received her “final results.” The clear implication of her evidence was that she had thus far not been made aware of any negative results. Her husband provided similar evidence. This evidence left open the possibility that she and her husband were confused about the chronology; put another way, it left open the possibility that the skin examination did not occur on the final visit, but at an earlier visit. However, no one asked Dr. Sloka whether he possibly performed a skin examination at any other of Ms. M.O.’s appointments. The parties appeared to operate on the assumption that any skin examination occurred at the final appointment.

[3631] Before broaching the final visit further, it is important to canvass the full chronology of Ms. M.O.’s care.

[3632] I begin with the first appointment, which occurred on September 12, 2012. Dr. Sloka’s consultation letter summarizes in detail Ms. M.O.’s pertinent history. Of importance, Ms. M.O. had reported a visual change, as already described. The onset was sudden. She had no pain on eye movement. In Dr. Sloka’s view, some features of Ms. M.O.’s presentation were atypical for optic neuritis. Dr. Sloka explained that optic neuritis involves an inflammation of the optic nerve. Usually, this swelling occurs near the eye. Accordingly, patients with this swelling usually experience pain when they move their eye. Usually the onset is gradual, not sudden. She had no prior episodes. While he considered her presentation atypical, he still considered optic neuritis the best explanation for her symptoms. To his understanding, 50% of patients with optic neuritis go on to receive a diagnosis of MS. However, given the atypical presentation, he felt it important to investigate the potential existence of conditions that might mimic the symptoms of optic neuritis and MS. She was a young woman who experienced vision loss. He testified that, if there was a chance that vision loss could progress, he wanted to do as best he could to identify the cause.

[3633] In taking her history, Dr. Sloka recorded “no stigmata of neurocutaneous disease,” suggesting he inquired about skin manifestations of neurocutaneous syndrome. Dr. Sloka testified that optic nerve gliomas are associated with neurofibromatosis and are associated with vision loss. He considered an optic glioma as a possible alternative explanation for her change in vision. An optic nerve glioma is a small tumor on the optic nerve. Dr. Sloka agreed that an optic nerve glioma might be observed on an MRI, but he also stated that an MRI might fail to capture a small tumor. Although she did not report stigmata of neurocutaneous disease, Ms. M.O. did report that she previously had an angioma on her back cauterized. Dr. Sloka believed angiomas can be associated with some neurocutaneous syndromes.

[3634] Dr. Sloka also documented that Ms. M.O. told him that she had no tics on her property, suggesting he possessed an interest in Lyme disease. In addition, he documented that she told him that she had not been scratched by a cat, suggesting he possessed an interest in Bartonella. These are all questions he tried to ask in cases of suspected optic neuritis.

[3635] In his consultation letter for September 12th, Dr. Sloka documented neurological and cardiac examinations. Neither the Crown nor the defence questioned Dr. Sloka about his justification for these examinations.

[3636] At the conclusion of Ms. M.O.’s September 12th appointment, Dr. Sloka ordered a large number of tests for the purpose of ruling out mimics of optic neuritis and MS. The bloodwork he ordered was intended to screen for lupus and other rheumatological conditions, Lyme disease, syphilis, Sjogren’s disease, and sarcoidosis. In addition, he ordered bloodwork to investigate the possibility of thyroid disease. Elsewhere in his testimony he testified about an association between thyroid disease and MS. He also wanted to assess Ms. M.O.’s stroke risk – he had previously testified that strokes can cause lesions that look like MS on an MRI. To that end, he ordered B12, diabetes, a hypercoagulable, and cholesterol bloodwork. To investigate stroke risk, he also ordered a CT angiogram of Ms. M.O.’s neck blood vessels to look for any narrowing. Plus, he ordered a Holter monitor to examine Ms. M.O.’s cardiac functioning. He also ordered MRIs of Ms. M.O.’s brain and eye orbit, which would assist in finding lesions associated with optic neuritis and MS, as well as any evidence of neurofibromatosis (optic nerve gliomas and plexiform neurofibromas were discussed as manifestations of neurofibromatosis that might show up on an MRI).

[3637] Dr. Sloka also prescribed Ms. M.O. steroids to treat the possible optic neuritis.

[3638] Ms. M.O. returned to see Dr. Sloka on October 26, 2012. All of Ms. M.O.’s tests were normal. Dr. Sloka observed that blood tests are not always accurate, but he did not consider ordering another round of bloodwork at this point. By this appointment, Ms. M.O. was back to her usual self with only some residual visual changes.

[3639] Ms. M.O. informed Dr. Sloka that she had resumed use of estrogen-based birth control, which can be associated with stroke risk. He considered stroke as a possible explanation for Ms. M.O.’s episode; so, he prescribed a progestin only birth control pill (Micronor) for her instead. Dr. Sloka acknowledged that he considered a breast examination to be indicated when prescribing Micronor. He did not record in his consultation letter whether Ms. M.O. was up to date on her annual breast examinations. He also did not record whether he performed a breast examination on October 26th.

[3640] Regarding the MRI results, Dr. Sloka agreed that they did not disclose an optic nerve glioma – one of the mimics he was looking for. Similarly, Dr. Sloka agreed that the MRI did not reveal optic neuritis. However, he testified that MRIs are not completely accurate. Things are often easily missed. He did not consider ordering a repeat MRI, though. Instead, he kept an open mind about the possibility of repeating tests later. He explained that this is one reason why doctors follow patients over time.

[3641] At the conclusion of the October 26th appointment, Dr. Sloka had planned to see Ms. M.O. again in three months. However, Ms. M.O. contacted Dr. Sloka’s in the interim and booked an appointment for November 19, 2012. His patient data sheet indicates “anxiety” beside the appointment date.

[3642] In his consultation letter for November 19, 2012, Dr. Sloka reported that Ms. M.O. complained of difficulties in the preceding three weeks: tingling and altered sensation in digits one and two of both of her hands. She also reported tingling on the dorsum of her right food. He reported that Ms. M.O. had become quite anxious about her symptoms, and that she mentioned she worked with someone with MS, which did not help her state of mind.

[3643] Dr. Sloka documented neurological and cardiac examinations on November 19th. He also measured her orthostatic blood pressure and pulse. In his handwritten rough notes, he recorded “feels dizzy and shaking.” Dr. Sloka testified that this description would provide reason to do a cardiac examination and to measure orthostatic vital signs. The Crown did not question him about these examinations.

[3644] Dr. Sloka decided to order an MRI of Ms. M.O.’s cervical spine on November 19th. He also ordered nerve conduction studies on her arms and her right foot.

[3645] Ms. M.O. returned to see Dr. Sloka on January 28th, 2013. Dr. Sloka relied upon his consultation letter to convey the status of Ms. M.O.’s care at that point. By then, Dr. Sloka had received the cervical (neck) MRI results. They were normal. All remaining bloodwork was normal, including negative Lyme and syphilis test results. He also noted that “her vision is stable with her known difficulty” – a strange turn of phrase, which Dr. Sloka could not fully decipher. This was one of many examples of Dr. Sloka’s occasionally unusual deployment of the English language. I think he would call it idiopathic usage. I would call it the idiosyncratic deployment of unnecessarily confusing language. I have concluded that he intended to convey that her vision had not gotten worse, because even by the time of trial, Ms. M.O.’s vision issues remained. But both Dr. Sloka and Dr. Bril resisted such simplicity. Even Dr. Sloka could not be sure what he meant. In any event, Dr. Sloka decided against ordering further bloodwork at this time – on the first pass, everything seemed okay. He decided he would serially follow her and wait and see if her symptoms changed over time. If her clinical situation changed, he might order another round of bloodwork. He testified that he always kept an open mind about future testing. For the moment, he planned to repeat an MRI in six months.

[3646] Dr. Sloka met with Ms. M.O. again on July 15, 2013. According to Dr. Sloka’s consultation letter, Ms. M.O. had no further symptoms since her last appointment. Her latest MRIs were normal, except for a continuing hydromyelia (an enlarged canal in the spinal cord, which was noticed in previous MRIs, too).

[3647] In his July 15th consultation letter, Dr. Sloka reported, “Her examination remains stable. She denies any focal weakness, no sensory disturbance, or hearing vision smell and taste are stable, no chest pain shortness of breath palpitations, no joint or skin concerns, no change in her bowel or bladder, and she has excellent exercise tolerance and ran a half marathon this past month.” He most certainly does not get marks for good grammar here. He also did not adhere to his standard template for reporting a neurological examination. Nevertheless, based on what he reported, Dr. Sloka believed he had reported the conduct of his standard neurological examination. From the report of “no joint or skin concerns” (and at least implicitly accepting Ms. M.O.’s claim that he performed a skin examination), he also believed he may have performed skin and joint examinations. However, he had no memory of doing either a skin or joint examination. His rough notes also did not indicate whether he had done these examinations. Nevertheless, he believed there existed justification for both examinations.

[3648] Despite Dr. Bril’s concession that the neurological examination was reasonable, the Crown suggested that there existed no medical reason to perform any physical examination at this appointment. Dr. Sloka disagreed. He testified that the examination was appropriate, to ensure no objective findings had arisen. While Ms. M.O. did not report anything new, he testified that he sometimes finds things on examination about which patients are unaware.

[3649] Regarding the skin examination, Dr. Sloka testified that medical literature and neurology textbooks indicate a skin examination can be considered as part of the evaluation of a suspected MS or optic neuritis patient. His evidence on this point was never challenged. He also testified that he wanted to look for any evidence of an alternative diagnosis to Ms. M.O.’s idiopathic (disease of unknown origin) optic neuritis. He wanted to find evidence of something that could explain her vision loss. Accordingly, he was looking for evidence of mimics of optic neuritis. Some of those mimics have skin manifestations. Had he found evidence on Ms. M.O.’s skin, he might have intensified his investigation.

[3650] Regarding lupus (one of the mimics with skin manifestations), Dr. Sloka noted that blood work does not test for all eleven criteria that can be considered for a lupus diagnosis, only four. Those four blood tests involve measure anti-double stranded DNA, ANA, antiphospholipid antibodies, and abnormalities with the CBC. A positive lupus diagnosis did not require positive results for any of these blood tests. A positive diagnosis only requires discovery of four out of the eleven lupus criteria. Accordingly, one can have lupus but be seronegative. Had he found evidence of lupus on Ms. M.O.’s skin, he would have continued to explore whether Ms. M.O. met any of the other criteria. As of July 15th, he had accounted for many of the criteria, but not all. To his recollection, in addition to the bloodwork criteria, there are four skin criteria to look for: a rash on the face, discoid rashes on the body, ulcers in the mouth, and sensitivity to sunlight. Lupus patients may also have kidney abnormalities which can be tested through bloodwork or ultrasounds. He had yet to order any ultrasound or renal bloodwork. Joint issues are another criterion. He had not yet examined Ms. M.O.’s joints for inflammation. Inflammation of the lungs and stomach is another criterion. Also, seizures are a criterion. According to Dr. Sloka, a clinical examination is part of the diagnostic investigation of possible lupus.

[3651] Dr. Sloka was less certain about all the diagnostic criteria for sarcoidosis. A long time had passed since he practiced, and his memory had faded. However, he believed that a scaly rash was a skin manifestation of sarcoidosis. He also believed that the condition could be further investigated using a nuclear medicine scan and chest x-rays. In addition, he believed that a skin biopsy could confirm sarcoidosis. If he had found any markings, before proceeding further, he would want to look at images in his office to confirm whether what he saw was consistent with sarcoidosis.

[3652] Dr. Sloka disagreed with Dr. Bril about the reasonableness of investigating for neurofibromatosis. He believed neurofibromatosis to be on the differential diagnosis for patients with suspected optic neuritis. One of the criteria for neurofibromatosis is optic nerve glioma (a tiny tumour in optic nerve). Unlike Dr. Bril, Dr. Sloka did not think the absence of plexiform neurofibromas on Ms. M.O.’s MRIs had ruled out a diagnosis of neurofibromatosis. It was his understanding, possibly from the Ferner book upon which Dr. Bril relied, that plexiform neurofibromas are only present in about 1/3 of patients with neurofibromatosis. In 2/3 of neurofibromatosis patients, the absence of a plexiform neurofibroma would not rule out neurofibromatosis. Also, plexiform neurofibromas can be anywhere in the body. So far, he had only obtained MRIs of Ms. M.O.’s brain and neck. Therefore, these MRIs could not rule out neurofibromatosis. And plexiform neurofibromas are not necessary for a neurofibromatosis diagnosis, in any event.

Assessment of the Evidence and Analysis

[3653] Ms. M.O. saw Dr. Sloka for a total of five appointments.

[3654] I think it important to look at the arc of Dr. Sloka’s care from a high altitude.

[3655] It is obvious that Ms. M.O. presented with a concerning vision issue, which plausibly pointed to optic neuritis and thus plausibly pointed to MS. Dr. Bril agreed that this concern existed. Dr. Sloka clearly reported that this concern existed.

[3656] Yet Ms. M.O.’s presentation was atypical. Dr. Sloka reported this. Dr. Bril conceded this. Accordingly, Dr. Bril agreed that Dr. Sloka’s approach at the conclusion of Ms. M.O.’s first appointment was reasonable. What was that approach?

[3657] At the conclusion of the first appointment, Dr. Sloka investigated a whole host of possible mimics of optic neuritis and MS. He ordered bloodwork to investigate various diseases and conditions. He also ordered a battery of tests aimed at finding evidence of conditions that might explain Ms. M.O.’s symptoms or alternatively might point to optic neuritis and eventually MS.

[3658] Dr. Sloka continued this approach through the entirety of Ms. M.O.’s care, which spanned five appointments over ten months. On the Crown theory, Dr. Sloka restrained himself from acting on any ruse until the final appointment, even though the ruse was available from the outset. On the Crown theory, Dr. Sloka was a patient predator. That seems very implausible.

[3659] It seems far more plausible that, by the time of Ms. M.O.’s final appointment, Dr. Sloka remained in search for an explanation of Ms. M.O.’s ongoing symptoms and opted for a skin examination which might afford evidence of optic neuritis mimics and MS mimics. At that point in time, all her bloodwork had come back negative. All her other tests had also come back essentially normal. Dr. Sloka had not yet found evidence of a mimic, yet he was not fully satisfied with an optic neuritis diagnosis, either, because he had found evidence that pointed away from optic neuritis (the atypical symptoms and the absence of apparent optic neuritis on her MRI).

[3660] Keeping in mind his fruitless efforts to obtain a conclusive diagnosis by her final appointment, Dr. Sloka offered an explanation as to why he might want to perform skin and joint examinations. He was still concerned that her symptoms might be the result of a mimic of optic neuritis or MS. I accept that explanation. Despite all the tests, Ms. M.O.’s symptoms remained unexplained. Dr. Sloka considered bloodwork fallible. Moreover, it was also not capable of entirely ruling out lupus. It seems clear to me that at least some mimics remained on the table – or at least on Dr. Sloka’s table. Skin and joint examinations were investigative tools that might provide evidence of mimics. A skin examination was part of his standard approach to investigating mimics of optic neuritis and MS. His reliance upon that approach can be seen in the case of other possible MS patients, Ms. J.C. and Ms. K.S.-B. In my view, Dr. Sloka showed consistency in his reliance upon that approach. Further, Dr. Sloka testified that the medical literature indicates that a skin examination can be considered as part of the evaluation of a patient with suspected optic neuritis or MS. His evidence on this point was not challenged or rebutted. Meanwhile, Dr. Sloka still considered optic neuritis and MS to be plausible diagnoses, which is why he wanted her to continue to get MRIs on an annual basis. In short, I am satisfied that both mimics and optic neuritis (and MS) remained under consideration. This is what I see when I take a high altitude look at Dr. Sloka’s care for Ms. M.O..

[3661] I therefore accept that Dr. Sloka would have subjectively possessed what he considered a valid medical motive to conduct a skin examination. Had his motive been prurient, I am sure he would have acted on it before the fifth appointment. In coming to this conclusion, I have also considered and rejected Ms. M.O.’s description of the manner of her skin examination, which I will discuss in due course. Before getting there, I wish to deal with some of the Crown’s critiques of Dr. Sloka’s evidence, which were made for the purpose of challenging Dr. Sloka’s credibility, particularly as it concerns his purported motive to conduct a skin examination.

[3662] The Crown suggests that Dr. Sloka’s explanation regrading his reasons for a skin examination is incongruent with his concession that he did not remember whether he performed one. They suggest these two positions, “do not make sense.” In my assessment, the Crown’s submission does not make sense. Dr. Sloka conceded the possibility of a skin examination. He conceded this possibility precisely because, in his view, Ms. M.O.’s situation warranted one. Also, one was possibly implied in the paragraph of his consultation letter devoted to examinations: “no joint or skin concerns.”

[3663] The Crown contends that Dr. Sloka provided inconsistent evidence about his reason for inquiring into stigmata of neurocutaneous disease at Ms. M.O.’s first appointment. They argue that this alleged inconsistency demonstrates that Dr. Sloka was never truly concerned about the possibility of neurofibromatosis. I disagree. There was no inconsistency. He believed that he inquired when asking standard screening questions. He also noted that Ms. M.O. had reported that she had cauterized an angioma on her back, which could possibly have been related to neurofibromatosis. He did not know the order in which these topics were discussed, because he had no memory of the appointment. He only had his consultation letter. I see no inconsistency, just two possible ways in which the topic arose.

[3664] The Crown also challenges the sincerity of Dr. Sloka’s concern about neurofibromatosis because he had documented that Ms. M.O. reported to him that she did not have stigmata of neurocutaneous disease. On many occasions in his evidence, Dr. Sloka testified that he could not tell from a recording of “no stigmata of neurocutaneous disease” whether the patient denied any stigmata or was simply unaware one way or the other. Dr. Sloka’s consultation letters reveal that he asked about the condition of her skin on multiple occasions. The repetition of his inquiry suggests Dr. Sloka harboured some skepticism, rightly or wrongly, about his patient’s self-awareness of skin manifestations of mimics of optic neuritis and MS.

[3665] In challenging Dr. Sloka’s purported interest in neurofibromatosis, the Crown contests the logic of Dr. Sloka’s purported concern about optic nerve gliomas. Optic nerve gliomas are small tumors on the optic nerve, which Dr. Sloka believed could be a manifestation of neurofibromatosis. Dr. Bril had testified that Ms. M.O.’s vision had improved, which would not occur if the visual impairment had been caused by a tumor. The record, however, does not support the conclusion that Ms. M.O.’s vision had improved. Instead, Dr. Sloka’s consultation reports appear to indicate that it had stabilized – not gotten any worse. According to Ms. M.O., her vision issues remained a problem even at the time of her testimony.

[3666] The Crown also argued that Dr. Sloka could not have been concerned about optic nerve gliomas, because Ms. M.O.’s orbital MRI did not reveal any. Dr. Sloka testified, though, that it was not uncommon for MRIs to miss small tumors. The Crown called no evidence to disprove the correctness of Dr. Sloka’s understanding. Also, it is worth noting that neither the Crown nor Dr. Bril took any issue with Dr. Sloka planning to order yearly MRIs to continue to screen Ms. M.O. for MS, even though Ms. M.O.’s previous MRIs failed to disclose any evidence of MS lesions or optic neuritis. Despite the absence of lesions on any existing MRIs, Dr. Bril considered the repetition of MRIs acceptable. In my view, the approval of repeat MRIs in this context seems incongruent with Crown and Dr. Bril’s critique of Dr. Sloka’s unwillingness to believe that Ms. M.O.’s MRI had definitively ruled out optic nerve gliomas.

[3667] I appreciate that, given the absence of any reported stigmata and given the absence of any detection of a tumor on the orbital MRI, the likelihood of Ms. M.O. having neurofibromatosis must have seemed remote to Dr. Sloka. However, I also appreciate that Dr. Sloka had not found an explanation for Ms. M.O.’s ongoing issue. Also, Dr. Sloka was not exclusively concerned about neurofibromatosis. He was concerned about a whole host of mimics that could have skin manifestations. If he was going to examine Ms. M.O.’s skin to look for other mimics, anyway, it makes sense that he would keep neurofibromatosis in mind, even if neurofibromatosis was unlikely.

[3668] The Crown also argues that Dr. Sloka could not have been truly considering sarcoidosis, because he only looked for a rash, not any other evidence of the disorder. The Crown mischaracterizes his evidence here. Dr. Sloka did look for other evidence of the disorder. He ordered bloodwork to screen for sarcoidosis. Again, Dr. Sloka was faced with a mystery ailment. He favoured a diagnosis of optic neuritis, but, as Dr. Bril acknowledged, some of her presentation did not fit with that diagnosis. Dr. Bril took no issue with Dr. Sloka’s initial concern about mimics. If ordering bloodwork to investigate for sarcoidosis was reasonable, if bloodwork is fallible, and if Ms. M.O.’s condition remained unexplained, then it becomes harder to criticize Dr. Sloka’s decision to resort to a skin examination after his exhaustive diagnostic efforts had yet to yield a satisfactory and conclusive answer.

[3669] The Crown challenges the sincerity of Dr. Sloka’s concern about lupus. They argue that this purported concern was a pretext for a skin examination. As I have already noted, the record amply demonstrates that Dr. Sloka was concerned about and ordered a battery of tests to investigate MS mimics from the get-go, including lupus. On the Crown’s theory, the supposed pre-text existed from the get-go, but Dr. Sloka waited ten months, until the fifth appointment, to conduct a skin examination. I consider it very implausible that he possessed a prurient motive and failed to act on it until the final appointment. It is far more plausible that, because he was still unable to identify a cause of Ms. M.O.’s symptoms, he decided to look for physical signs of a disease that was not previously discovered through bloodwork. I keep in mind here Dr. Sloka’s unchallenged evidence that negative bloodwork for lupus does not rule out the condition, because there exist eleven criteria for lupus and only four are required for a diagnosis.

[3670] Nevertheless, the Crown challenges Dr. Sloka’s evidence about the diagnostic criteria for lupus. In particular, the Crown argues that Dr. Sloka changed his evidence about the eleven criteria for lupus. They suggest that he first stated that there was only one blood marker for lupus before stating that there were four. I disagree. The Crown has misread Dr. Sloka’s evidence. Dr. Sloka listed four blood criteria: ANA; anti-DNA; antiphospholipid antibodies; and an abnormal complete blood count. He never suggested only one. Dr. Sloka also listed four skin criteria: a butterfly rash on the face; ulcers in the mouth; discoid lupus on the body (abnormal circular rashes); and sensitivity to light that results in rashes. Dr. Sloka also listed an issue with kidneys that can be detected with an ultrasound and bloodwork. He also listed inflammation of the lining of the lungs, heart, and stomach. Lastly, he listed neurological symptoms: seizures and psychotic episodes. A close look at the transcript reveals he did not change his evidence at all. Based upon his understanding of the criteria, the absence of negative results for the four blood criteria did not exclude lupus as a possibility.

[3671] The Crown also argues that Dr. Sloka did not mention inflammation of the lungs as a criterion for lupus, but he did.

[3672] The Crown argues that, if Dr. Sloka was truly interested in investigating lupus, he would have tested Ms. M.O.’s kidney functioning and searched for inflammation of the lining of the lungs, heart, and stomach. I disagree for several reasons. First, I would note here that Dr. Sloka previously reported conducting two cardiac examinations on Ms. M.O. – cardiac examinations Dr. Bril thought unnecessary. Dr. Sloka’s standard cardiac examination has a respiratory component. He did not report any negative findings. Also, despite Dr. Bril’s view that a cardiac examination was unnecessary, the Crown argues that, if lupus was a concern, a cardiac and respiratory examination ought to have been considered. Their approach seems at odds wit the opinion of their own expert. Also, the Crown makes this submission despite failing to cross-examine Dr. Sloka on this point. Finally, I would note that, assuming a skin examination occurred with negative results, Dr. Sloka would have obtained negative results from four blood tests, four skin criteria, and the neurological criteria. Nine out of eleven criteria would have been ruled out. In short, Lupus would have been excluded. Nevertheless, the Crown argues that Dr. Sloka ought to have performed further unnecessary inquiries – the very thing Dr. Sloka stands accused of doing in this trial. I see no merit in that argument.

[3673] The Crown also challenges Dr. Sloka’s credibility by implying Dr. Sloka either performed a breast examination on Ms. M.O. or he failed to adhere to his standard practice of performing a breast examination when prescribing Micronor. This submission is based entirely upon speculation. Dr. Sloka denied performing a breast examination. He had a sound basis for doing so: Ms. M.O. never alleged that Dr. Sloka suggested or performed a breast examination. Admittedly, Dr. Sloka had no memory of suggesting a breast examination; and he agreed it would be his standard practice to recommend one if the patient was not up to date on their annual breast examination. However, Ms. M.O.’s evidence is silent on this topic. Without such a claim by Ms. M.O. and in the absence of any independent recollection, Dr. Sloka had no basis for knowing whether Ms. M.O. was up to date on her breast examinations. He therefore had no basis for confirming or refuting the possibility that he offered a breast examination. Similarly, he had no basis for confirming or denying that Ms. M.O. refused a breast examination. He could only conclude, given the absence of any claim of a breast examination, that he did not perform one. He did not guess, as the Crown alleges. He refrained from guessing. There is no basis for concluding that Dr. Sloka deviated from his standard practices concerning the prescription of birth control and breast examinations.

[3674] The Crown alleges that Dr. Sloka admitted that he might palpate the breasts of a patient looking for neurofibromas. They suggest that this admission undercuts his denial of the breast examination that Ms. M.O. did not allege. However, the Crown misstates Dr. Sloka’s evidence. Dr. Sloka admitted that he might, on rare occasion, palpate skin for neurofibromas, but he could not remember ever doing so. He never admitted to specifically palpating breasts for neuro fibromas. That proposition was never put to him. Also, he provided this evidence in the context of discussing a different patient, J.H. The issue was never raised in the context of Ms. M.O. Importantly, Ms. M.O. never alleged that Dr. Sloka palpated her breasts. She only alleged that he lifted her breast to look at the skin beneath. Dr. Sloka agreed that he might displace a patient’s breast tissue with his thumb during skin examinations to examine skin covered by breasts. He had no specific memory of doing so with Ms. M.O., but he clearly agreed to the possibility that he displaced her breast. Neither Ms. M.O.’s allegation nor Dr. Sloka’s concession had anything to do with palpations in search of neurofibromas.

[3675] To sum up, I did not find any of the Crown’s critiques of Dr. Sloka’s evidence to be compelling.

[3676] I turn now to Ms. M.O.’s evidence. In my view, Ms. M.O.’s claim that Dr. Sloka performed a skin examination is supported by Dr. Sloka’s concession that one would have been justified and that he may well have done one. However, I nevertheless find Ms. M.O. to be a generally unreliable witness. In addition, I find Ms. M.O.’s evidence about the manner of skin examination to be utterly unreliable. Further, I am concerned about Ms. M.O.’s credibility, because I believe the evidence supports the conclusion that she changed her evidence to align with her husband’s version.

[3677] I begin with Ms. M.O.’s description of her examination.

[3678] Ms. M.O.’s evidence about her draping is bizarre, implausible, inconsistent with independent evidence regarding the draping provided to patients in Dr. Sloka’s office, and completely inconsistent with her prior police statement.

[3679] Ms. M.O. claimed Dr. Sloka gave her an entire bedsheet to use for draping. She did not recognize the standard-issue gowns stocked in Dr. Sloka’s neurology clinic. She stood alone amongst more than 48 complainants in alleging that Dr. Sloka gave her a full-sized bed sheet. I find it completely implausible that Dr. Sloka would offer a bed sheet when his clinic was unquestionably stocked with standard-issue hospital gowns. Ms. M.O. testified that the procedure was bizarre and memorable. Despite this, her evidence regarding the sequence of the examination completely contradicted the sequence she described to the police. She told the police that her torso and breasts were exposed as Dr. Sloka entered the room; he examined her upper body first as she covered her lower body. She told the court that her lower body was exposed as Dr. Sloka entered the room; and he examined her lower body first as she covered her torso. Due to this fundamental contradiction, I have no faith in Ms. M.O.’s evidence about the way Dr. Sloka conducted the skin examination.

[3680] I have additional reason to be concerned about Ms. M.O.’s evidence regarding her draping. On her evidence, she only entered Dr. Sloka’s examination room once. She denied ever going into Dr. Sloka’s office at earlier appointments for examinations. She denied ever wearing a gown at any earlier appointments. However, Dr. Sloka’s contemporaneously authored consultation reports establish – without any doubt -- that he conducted neurological and cardiac examinations on her first and third appointments. The notion that Dr. Sloka failed to do neurological examinations, as a neurologist, when the circumstances clearly warranted them, and when he documented having done so, is so implausible as to be preposterous. Ms. M.O.’s denial of these examinations undermines her reliability. Importantly, because they involved full cardiac examinations, these examinations would require her to be gowned. Despite this, Ms. M.O. had no memory of the gowns in Dr. Sloka’s office. Ms. M.O.’s evidence regarding the draping in Dr. Sloka’s office is completely unreliable. That unreliability in turn undermines the reliability of Ms. M.O.’s evidence about the manner of her skin examination.

[3681] Ms. M.O.’s description of her skin examination also raises concern because elements of her description closely resemble elements of the sensation examination Dr. Sloka employs during a neurological examination. On her evidence he traced his fingers up and down her limbs. However, she denied that Dr. Sloka performed a neurological examination. On her evidence, she went through five appointments over ten months with a neurologist and never received a neurological examination. Meanwhile, Dr. Sloka documented neurological examinations at the first and third appointments. Also, both Dr. Sloka and Dr. Bril interpreted his final consultation letter as indicating a neurological examination occurred. I reject Ms. M.O.’s claim that she did not receive a neurological examination at her final appointment. I conclude that Dr. Sloka performed one and she forgot about it. I also conclude that she forgot that she wore a gown for this neurological examination. Importantly, Dr. Sloka’s standard neurological examination involves tracing his fingers along the limbs to test for sensation, while his patient remains gowned. Accordingly, I conclude that Ms. M.O. has conflated elements of the neurological examination with her subsequent skin examination. She thereby turned her skin examination into something it was not.

[3682] Ms. M.O. provided inconsistent evidence regarding the way Dr. Sloka moved her breast to examine the skin beneath. At trial, she testified that he used his index finger. She denied the suggestion that Dr. Sloka used the back of his thumb, which he said was his standard practice. In her police statement, she could not remember whether Dr. Sloka used his finger or a pen. I reject Ms. M.O.’s testimonial claim of certainty on this issue.

[3683] I would now like to address my conclusion that Ms. M.O. changed her evidence to conform with her husband’s account. In her statement to police, Ms. M.O. said that her husband waited in a waiting room or reception area. At trial, she testified that her husband sat in a chair in the hallway outside Dr. Sloka’s office. The preponderance of the evidence at this trial satisfies me that there were no chairs in the hallway outside Dr. Sloka’s office. Across the hallway from Dr. Sloka’s office sits a waiting room. In that waiting room sit chairs. Ms. M.O.’s initial recollection was correct. Her testimony was wrong. Coincidentally, her husband testified that he waited in a chair in the hallway outside Dr. Sloka’s office. That recollection is unquestionably incorrect. It was also unquestionably identical to his wife’s testimony. I conclude that Ms. M.O. changed her testimony to conform with her husband’s account, either consciously or unconsciously. This stands as compelling evidence that discussions between Ms. M.O. and her husband have tainted their evidence.

[3684] Regarding tainting, I believe there is significant concern that both Ms. M.O. and her husband have been tainted not only by their discussions with each other but also by their exposure to news stories about Dr. Sloka. Both agreed that they reviewed news stories about Dr. Sloka. Both agreed to discussing those news stories with each other. Both agreed that the reports in the news contained some elements that ultimately are found in Ms. M.O.’s account. Mr. A.O. recalled discussing the similarities with Ms. M.O. Both agreed that their perception of Ms. M.O.’s treatment fundamentally changed after they read the news of the other allegations. I have significant concern that both Mr. A.O. and Ms. M.O.’s perceptions and memories have been influenced by the news and their discussions with each other.

[3685] Media tainting had another significant ramification. In my view, Ms. M.O.’s exposure to media compromised her objectivity as a witness and inspired animus against Dr. Sloka. That animus was exacerbated by the unfortunate input of the interviewing officer. When Ms. M.O. read the news stories about Dr. Sloka, she purportedly felt they validated her concerns. Clearly, the news coverage caused her to view Dr. Sloka’s medical care differently. But for her exposure to media coverage, I doubt Ms. M.O. would ever have raised any concerns with the police. Notably, even when she did raise concerns, she remained ambivalent when asked by the interviewing officer if she believed she had been sexually assaulted. Then, she received the officer’s unsolicited opinion that Ms. M.O. had indeed been sexually assaulted. Ms. M.O. decided to proceed with a criminal complaint because she felt that there was “strength in numbers.” This is a phrase which other witness have testified the police concerningly employed when advocating their participation in the prosecution. Ms. M.O. testified that, ultimately, she felt it was her duty to come forward to “corroborate the fact that people have had negative experiences.” In giving this evidence, Ms. M.O. betrayed a lack of objectivity, which impacts negatively upon her reliability.

[3686] It is time now for a brief discussion about A.O. Even absent the concerns about collusion and media tainting, I do not consider Mr. A.O.’s evidence of much value to the Crown’s case. The Crown proffered Mr. A.O.’s evidence to rebut the suggestion that Ms. M.O.’s claim of a skin examination was the product of media tainting. However, Dr. Sloka has conceded the possibility of a skin examination. The real material issues are the manner of the skin examination and its justification. Mr. A.O. offers no assistance on those issues. Indeed, he contradicted his wife on the issue of manner of the examination. Ms. M.O. alleged that only a skin examination occurred. On the other hand, Mr. A.O. testified that Ms. M.O. reported a “full body” examination. Ms. M.O. testified that Dr. Sloka lifted her breasts with his finger. On the other hand, Mr. A.O. testified that she reported that Dr. Sloka poked her breasts. Also, Mr. A.O. makes no mention of Ms. M.O.’s allegation that Dr. Sloka traced his fingers up and down her limbs.

[3687] I have allowed the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this case. However, having regard to Dr. Sloka’s compelling evidence regarding Ms. M.O., and having considered the totality of the evidence, I conclude that he has refuted any possible inference of a sexual motive in Ms. M.O.’s case.

[3688] The Crown also relies upon four discrete cross-count similarities support Ms. M.O.’s evidence. One, she belongs to a constituency of patients who allege a skin examination. Two, she belongs to a constituency of patients who allege that Dr. Sloka failed to identify the nature of the examination he intended to conduct. Three, she belongs to a constituency of patients who allege that Dr. Sloka failed to explain the reason for the proposed examination. Four, she belongs to a constituency of patients who allege that Dr. Sloka said he wanted to look for quarter-sized marks. For the reasons I will now explain, I do not find that these discrete similarities offer any sufficient support for Ms. M.O.’s evidence.

[3689] Because Dr. Sloka concedes the possibility of a skin examination on Ms. M.O., it does not remain a material issue. Apart from the issue of motive, Ms. M.O.’s membership in this cross-count constituency is not probative of any remaining material issue. I emphasise here that I do not believe her membership in this constituency provides probative evidence regarding Dr. Sloka’s methodology. In truth, Ms. M.O. describes a method that is unique to her.

[3690] As for membership in the second alleged cross-count constituency, Ms. M.O. does not belong in it. Dr. Sloka did identify the nature of the examination he intended to conduct: Ms. M.O. testified that Dr. Sloka told her that he wanted to conduct a skin examination. That stated intention was interwoven with his alleged discussion regarding her draping.

[3691] Similarly, Ms. M.O. testified that Dr. Sloka explained the reason for the skin examination. Therefore, she does not belong in the third alleged cross-count similar fact constituency. Specifically, Ms. M.O. testified that Dr. Sloka said he wanted to conduct a skin examination to look for abnormalities on her skin that could be related to her condition. He gave her a reason. Possessed with this explanation, she consented.

[3692] Finally, there simply is no fourth cross-count similar fact constituency. Ms. M.O. is the only patient that alleged that Dr. Sloka mentioned “quarter-sized marks” when inquiring about skin abnormalities. In any event, Dr. Sloka admitted to having a concern about neurofibromatosis, which is a condition for which one criterion involves six or more birthmarks of at least the size of a quarter. He also acknowledged inquiring about skin abnormalities. Dr. Sloka’s inclusion of neurofibromatosis on the differential diagnosis was not a material issue, nor was the fact that he asked screening questions relevant to that possible diagnosis. Again, the material issues were the manner of and purpose behind the skin examination, not its existence.

[3693] I would like now to address the evidence of Dr. Bril.

[3694] Dr. Bril considered a skin examination unwarranted. She did not think it reasonable to search for skin manifestations of mimics of MS and optic neuritis. She thought any concern about neurofibromatosis had been ruled out by the MRIs, which disclosed no neurofibromas. However, the MRIs only examined Ms. M.O.’s head. The rest of her body had not been scanned. Neurofibromas can exist anywhere in the body. NF1 can be diagnosed with two neurofibromas on the skin or one plexiform neurofibroma, anywhere in the body. There are eight criteria for NF1. None of those criteria involve an MRI. Only two of the eight criteria are required for an NF1 diagnosis.

[3695] While Dr. Bril agreed that neurofibromatosis can lead to optic nerve gliomas, she maintained that these small tumors arise in childhood and would show up on the MRI. Dr. Sloka believed optic nerve gliomas to be very small and are sometimes missed on an MRI. His belief that they are sometimes missed in MRI’s was not challenged in cross-examination.

[3696] Dr. Bril testified that once Dr. Sloka obtained negative blood tests for lupus, a skin examination was rendered unnecessary. However, Dr. Bril was unaware of whether a patient who was seronegative could still otherwise be shown to have lupus. Dr. Sloka testified that blood testing for some patients with rheumatological conditions is not always accurate because it takes time for the relevant molecules to emerge in the blood stream. His belief was not challenged in cross-examination nor proven to be incorrect.

[3697] Dr. Bril also testified that, even if a skin examination was warranted, a neurologist ought not to perform it. In her view, the neurologist ought to refer the patient to a dermatologist. This view was based upon her belief that a neurologist is not sufficiently trained or experienced to conduct skin examinations. Dr. Bril had no idea what training or experience Dr. Sloka possessed. Dr. Sloka testified that he possessed the training and experience necessary to conduct a skin examination. His evidence was not challenged in cross-examination. The Crown called no evidence to rebut Dr. Sloka’s assertions regarding his training and experience. Additionally, for the reasons discussed in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on Dr. Bril’s evidence concerning the propriety of neurologists conducting skin examinations on patients where neurofibromatosis is suspected. Indeed, for the reasons discussed in the general assessment of Dr. Bril’s evidence, I place little to no weight on her categorical claims about the permissible scope of a neurologist’s practice.

[3698] Dr. Bril, of course, did not condone the manner of the skin examination alleged by Ms. M.O. This aspect of her evidence was not material. Dr. Sloka agreed. While conceding he may have conducted a skin examination, Dr. Sloka maintained that any skin examination would have adhered to his standard protocol, which is designed to minimize patient exposure and only expose small segments of a patient’s skin in a sequential fashion. For the reasons discussed in the section of the judgment devoted to a general assessment of Dr. Sloka’s evidence, I conclude that Dr. Bril’s evidence does not stand as a rebuke of Dr. Sloka’s standard method of conducting a full-body skin examination.

[3699] In summary, I accept that Dr. Sloka performed a skin examination. Dr. Sloka provided a cogent rationale for the reason for that skin examination, one which was informed by his understanding of the medical literature, his training, and his experience. His evidence withstood challenge during cross-examination. The evidence called by the Crown failed to undermine his evidence. I am therefore satisfied that Dr. Sloka possessed a valid medical motive for the skin examination. I accept that Dr. Sloka explained to Ms. M.O. that he wanted to perform a skin examination to look for abnormalities that might explain her condition. More specifically, I accept that he intended to look for evidence of conditions that are considered mimics of MS and optic neuritis. On any version of the evidence, Ms. M.O. clearly consented to the proposed examination on that basis. I reject Ms. M.O.’s evidence about Dr. Sloka’s methodology in conducting the skin examination. Instead, I accept Dr. Sloka’s assertion that he would have conducted the examination in accordance with his standard methodology. The Crown has failed to prove an improper motive and has failed to prove an improper methodology. The Crown has therefore failed to prove that the skin examination constituted sexual activity. In my view, the evidence establishes that Dr. Sloka conducted a medical examination for a valid medical purpose with his patient’s consent. There was no sexual assault.

[3700] Dr. Sloka will be acquitted on this count.

iii. P.S. (Count 17)

A Summary of Ms. P.S.’s Complaint and Dr. Sloka’s Response to It

[3701] Ms. P.S. alleged that Dr. Sloka placed a hand on each of her breasts, one at a time, and squeezed each of them for at least five minutes. This allegation bore no resemblance to a breast examination. Instead, Ms. P.S. alleged that Dr. Sloka, “felt me up.”

[3702] Dr. Sloka denied groping Ms. P.S. As part of his investigation into suspected vestibular neuritis, Dr. Sloka claimed that he conducted neurological and cardiac examinations, a Dix-Hallpike manoeuvre, and a headshake manoeuvre.

The Circumstances of Ms. P.S.’s Referral and Treatment History

[3703] Ms. P.S. was 32 years old when her family doctor suspected she had vestibular neuritis and referred her to Dr. Sloka for an assessment. Her family doctor, Dr. Erb, made the referral on January 24, 2011. Dr. Erb also ordered an MRI to assist Dr. Sloka’s assessment.

[3704] Dr. Sloka first saw Ms. P.S. on February 24, 2011. He agreed that Ms. P.S. likely had vestibular neuritis, but he had not yet reviewed her MRI results.

[3705] Ms. P.S.’s second appointment occurred on May 10, 2011. By that date, Dr. Sloka had seen the MRI results. He tentatively concluded that she had MS but ordered blood work to rule out the possibility of conditions that could mimic her MS symptoms and MRI results. He also ordered more MRIs to look for interval change (new lesions in different locations) which could confirm an MS diagnosis.

[3706] Ms. P.S. met Dr. Sloka for a third time on December 14, 2011. Her new MRI showed interval change. Dr. Sloka confirmed an MS diagnosis.

[3707] In February of 2012, Ms. P.S. sought a second opinion. Her family doctor referred her to Dr. Mandalfino to obtain that second opinion. Ms. P.S. saw Dr. Mandalfino on a couple of occasions but was not happy with her level of care. Accordingly, she returned to Dr. Sloka’s care.

[3708] When Ms. P.S. returned to Dr. Sloka, he continued to monitor Ms. P.S. and manage her care. Dr. Sloka saw Ms. P.S. twelve more times after diagnosing her with MS. Ms. P.S.’s final appointment occurred on September 29, 2017. On October 24, 2017, Ms. P.S. lodged a complaint with the CPSO.

The Evidence of Ms. P.S.

[3709] Ms. P.S.’s evidence was disorienting.

[3710] She believed she had been referred to Dr. Sloka because she had suffered a pinched nerve in her neck when loading hay, which produced the sensation of shocks from her waist to her toes. Her understanding of the reason for her referral differed from the content of Dr. Erb’s actual referral and Dr. Sloka’s initial consultation letter, which cited a suspicion of vestibular neuritis due to ongoing balance difficulties.

[3711] Ms. P.S. also did not believe that her family doctor order her initial MRI. She thought Dr. Sloka ordered that MRI at her first visit. She believed Dr. Sloka had booked a follow-up visit at the conclusion of her first visit to review the MRI he ordered. In reality, Dr. Sloka’s consultation letter from her first visit indicated that he had not yet received the MRI but that he expected benign results. He did not book a follow up. Circumstances changed after that MRI later showed lesions.

[3712] Ms. P.S.’s recollection of her own referral history was very muddled. She believed that her first appointment with Dr. Sloka occurred in 2008 or 2009, well before when she actually first saw Dr. Sloka.

[3713] Ms. P.S. also testified in-chief that the alleged groping occurred in 2008 or 2009, at her initial visit with Dr. Sloka. The records establish, though, that she did not become Dr. Sloka’s patient until February 24, 2011. She also testified in-chief that the groping occurred before she had received her MS diagnosis.

[3714] In cross-examination, Ms. P.S.’s evidence about the timing of the alleged groping changed. While still maintaining that her initial visit occurred in 2008 or 2009, Ms. P.S. offered as possible dates for the groping 2017, 2011, and 2015, before settling upon 2010.

[3715] Ms. P.S. also emphatically insisted in cross-examination that the groping did not occur at her first appointment with Dr. Sloka, contrary to what she stated in-chief. Indeed, she insisted that Dr. Sloka did not examine her at all at her first appointment. She also denied wearing a gown at her first appointment.

[3716] Ms. P.S. added that she believed that the groping occurred in either the third, fourth, or fifth appointments. To her recollection, she had become established in a routine of seeing Dr. Sloka by the time the groping occurred. She believed that the incident occurred in the fall. She had a visual memory of wearing shorts for the visit. She had a visual memory of taking off her shorts when getting gowned for the examination. She had a visual memory of leaving the appointment and walking outside in her shorts on what she recalled as a warm day. She denied that the groping incident occurred in February.

[3717] When presented with her family doctor’s referral letter from January 24, 2011, Ms. P.S. disputed its accuracy, stating, “I don’t believe that whatsoever.” Subsequently, when taken to the consultation letter from her first appointment on February 24, 2011, Ms. P.S. eventually agreed that this was the date of her first appointment with Dr. Sloka. However, despite the documentation of examinations in Dr. Sloka’s consultation letter for February 24th, she denied being examined at her first appointment. An examination on February 24th ran counter to her memory of her wearing shorts on a warm day on the day of her first examination (which was also the day of the alleged groping). She still insisted that the breast groping occurred on her third, fourth, or fifth visit. Ms. P.S. also insisted that the breast groping occurred on the date of her very first gowned examination.

[3718] Ms. P.S. did not appear to recognize that, if the groping occurred before the appointment on which she received her MS diagnosis, then it could not have occurred on the third, fourth, or fifth appointment, as she claimed. If it occurred before her MS diagnosis, it must have occurred on the first or second appointment, because she received her MS diagnosis on her third appointment. This conclusion runs counter to her belief that she had become established in a routine of seeing Dr. Sloka by the time the groping occurred.

[3719] Ms. P.S. also believed that she obtained a follow-up appointment when departing from the appointment in which Dr. Sloka groped her. This recollection is inconsistent with Dr. Sloka’s consultation letters. Dr. Sloka’s first consultation letter indicates that Dr. Sloka performed physical examinations at the first appointment but had no plans to she her in follow-up. The second consultation letter contains no reference to any physical examination, only a review of her MRI and the elicitation of additional patient history.

[3720] Ms. P.S. also disputed the date of her MS diagnosis. She insisted that she was diagnosed on her birthday, December 8, 2011, not on December 14, 2011. According to Dr. Sloka’s medical file, she did not have an appointment on December 8, 2011. Instead, her appointment occurred on December 14, 2011. In his consultation letter concerning December 14th, Dr. Sloka confirmed his MS diagnosis. Faced with this compelling evidence, she agreed that she might have been wrong about receiving the diagnosis on her birthday.

[3721] Leaving aside the timing of the groping event, I would like to now address Ms. P.S.’s evidence regarding the events at the appointment in which she claimed to have been groped.

[3722] During her examination in-chief, Ms. P.S. testified that she attended the appointment of concern with her mother. She and her mother waited in the waiting room until Dr. Sloka called her name. Then they joined Dr. Sloka in his office. She remembered that they introduced themselves. Ms. P.S. recalled providing Dr. Sloka her medical history, including a description of the tingling, shocking feeling she experienced when bending. This consultation lasted twenty to thirty minutes. It is important here to note that Ms. P.S.’s memories of this consultation are unmistakably ones that would be associated with an initial visit. These memories are thus inconsistent with Ms. P.S.’s later denial that the appointment of concern took place at her very first visit.

[3723] According to Ms. P.S., after Dr. Sloka obtained her medical history, he told her that he wanted to check her breasts for lumps. She purportedly agreed. In Ms. P.S.’s recollection, Dr. Sloka did not propose any other examinations. He also did not conduct any examinations while inside the office.

[3724] Ms. P.S. testified that the two of them went into the examination room, leaving her mother behind in the office. Once in the examination room, Dr. Sloka provided her a hospital gown and instructed her to remove her clothes and put on the gown. He told her she could keep her underwear on, but she needed to remove her bra. He gave her privacy to change.

[3725] Ms. P.S. got undressed and put on the gown. She tied it at the back of her neck and wore it open at the back.

[3726] Dr. Sloka then knocked before returning to the examination room.

[3727] Ms. P.S. next recalled Dr. Sloka testing her reflexes with a reflex hammer as she sat on the examination table. She also recalled him running a vibrating tuning fork along the bottom of her feet. Also, she remembered him pushing the palms of his hand against the bottom of her feet. In addition, she recalled him asking her to touch her finger to her nose. Lastly, she remembered him asking her to follow his finger as he moved it around. Then he asked her to lay down for a breast examination.

[3728] Ms. P.S. purportedly lay down for the breast examination. She testified that Dr. Sloka flopped open her gown, exposing her right breast. She later expressed some uncertainty about whether her left breast may also have been exposed. In cross-examination, she uncertainly stated that her gown was thrown over to the wall, which would expose both her breasts. Her arms remained at her side as Dr. Sloka placed a hand on one breast and squeezed it like a stress ball. He did not palpate her breast at all. On her account, he squeezed her breast for about five minutes. Then, he performed the same action on the other breast. According to Ms. P.S.’s original estimate, the entire breast examination lasted ten to fifteen minutes. Defence counsel suggested that it would be absurd for Dr. Sloka to squeeze one of Ms. P.S.’s breasts for five minutes. She agreed. She then modified her estimate, stating that Dr. Sloka squeezed each breast for two to three minutes, before modifying her estimate to one or two minutes. Defence counsel then asked her to re-enact in her mind the duration of the one breast squeeze, as counsel timed her. The mental re-enactment lasted 18.84 seconds.

[3729] Ms. P.S. initially denied that it was possible that Dr. Sloka performed a Dix-Hallpike manoeuvre or a head shake manoeuvre on her. When defence counsel took her to Dr. Sloka’s consultation letter from February 24, 2011, she conceded that Dr. Sloka may have performed these manoeuvres. Despite what was documented in Dr. Sloka’s consultation letter, though, Ms. P.S. denied that Dr. Sloka performed a cardiac examination and any associated respiratory examination. She specifically denied that Dr. Sloka placed a stethoscope against her exposed left chest and denied the possibility that Dr. Sloka made incidental contact with her breast while listening to her heart.

[3730] Ms. P.S. testified that the examination ended at the conclusion of the breast examination. When he was done, Dr. Sloka got up and returned to the office to allow her privacy to change. She then rejoined him in the office, once changed.

[3731] According to Ms. P.S., there was little discussion in the office, but there was some. When the discussion ended, she shook his hand ad said words to the effect of “Thank you so much, Dr. Sloka.”

[3732] Ms. P.S. could not recall if Dr. Sloka ordered any imaging tests at the conclusion of her appointment of concern. However, she erroneously believed that Dr. Sloka, not her family doctor, had ordered her first MRI. She also erroneously believed that Dr. Sloka scheduled a follow-up appointment for the purpose of reviewing the MRI that he ordered. After a thorough canvassing of the issue by defence counsel, Ms. P.S. eventually agreed that her family doctor had ordered the first MRI before she ever saw Dr. Sloka. She also agreed that Dr. Sloka did not book a follow up visit after her initial appointment. Given the virtual certainty that Ms. P.S.’s initial examination occurred at her first appointment and that she believed the breast fondling occurred during her first examination, logic dictates that Ms. P.S. was alleging that the breast fondling occurred at the very first appointment – even if she failed to realize this.

[3733] Ms. P.S. testified that as she and her mother walked away from Dr. Sloka’s office, she told her mother, “I just got felt up.” Her mother did not respond and did not seek any elaboration. Ms. P.S. believed that her mother did not seek elaboration because her mother was present in the office when Dr. Sloka announced that he wanted to do a breast examination.

[3734] After Ms. P.S. received an MS diagnosis at her third appointment, she decided she wanted a second opinion. Her family doctor at that juncture was Dr. Witmer. She asked Dr. Witmer for a new referral. In seeking this second opinion, Ms. P.S. did not make any complaint about Dr. Sloka’s examination. Her concern lay with the diagnosis, not Dr. Sloka’s methods. Dr. Witmer sent her to Dr. Mandalfino. Ms. P.S. testified that she saw Dr. Mandalfino two or three times but was not satisfied with Dr. Mandalfino’s level of care. Consequently, she asked Dr. Witmer to refer her back to Dr. Sloka.

[3735] Ms. P.S. ultimately attended a total of fifteen appointments, from January 24, 2011, to September 29, 2017. She had no issues with any appointment other than the one involving her first examination.

[3736] Ms. P.S. first learned about allegations against Dr. Sloka when she read a notice posted in his office by the CPSO at her final appointment. Seeing this sign caused flashing lights and alarm bells to go off in her head. Before seeing the notice, she did not consider Dr. Sloka’s “feel-up” to be sexual. Nothing about it struck her as strange. After seeing the notice, her attitude changed. She decided to look up Dr. Sloka on the CPSO website, where she found a Notice of Hearing, which detailed many allegations against Dr. Sloka. The notice recounted complaints of Dr. Sloka doing inappropriate things to the breasts of his patients. Ms. P.S. said to herself, “I’d been there. That was me.” She wanted to “nail” Dr. Sloka by providing a statement to the CPSO and police. She felt she needed to stop Dr. Sloka and protect vulnerable people.

[3737] Ms. P.S. first contacted the CPSO on October 24, 2017. On November 6, 2017, the CPSO contacted Ms. P.S. and asked if she wanted to participate in an interview. Ms. P.S. then attended for an interview on November 15, 2017.

[3738] Later, Ms. P.S. attended Dr. Sloka’s disciplinary hearing and learned more about some of the allegations against Dr. Sloka. The allegations floored her. When Dr. Sloka lost his licence at the CPSO, she was not satisfied. She believed that Dr. Sloka was an animal. She wanted him behind bars. She testified that as long as he was free and walking the streets, she would be scared. She called Dr. Sloka a predator and informed the court that she worried he would rape and kill someone.

[3739] Ms. P.S. testified that between reading the Notice of Hearing on the CPSO website and her interview, she spoke with her mother about what occurred on the day of the appointment of concern. She testified that she spoke with her mother about the breast examination many, many times. Ms. P.S. testified that she, her mother, and her sister are like a tribe – they are very close. She said her mother is very supportive of her.

The Evidence of B.B.

[3740] Ms. B.B. confirmed that she attended the appointment of concern with Ms. P.S. and joined Ms. P.S. in Dr. Sloka’s office for the pre-examination consultation.

[3741] While Ms. B.B. confirmed her attendance at the appointment of concern, she also contradicted Ms. P.S.’s evidence on key issues. Her testimonial position on some factual issues also changed from the position she took in her police statement, suggesting she had altered her evidence to conform with her daughter’s testimony. I will now highlight these problematic areas of Ms. B.B.’s evidence.

[3742] Ms. B.B. testified that the Ms. P.S. complained about the alleged groping occurred at the second or third appointment. In giving this evidence, Ms. B.B.’s evidence ostensibly supported her daughter’s evidence. However, when Ms. B.B. spoke to the police, she told them that the groping complaint occurred at the very first appointment. Once presented with this inconsistency, Ms. B.B. changed her position and alleged that the complaint was made at the first appointment.

[3743] Although she had initially taken the position that the groping occurred at the second or third appointment, Ms. B.B. also provided details in-chief regarding the pre-examination discussion, which supported the conclusion that the examination of concern occurred at Ms. P.S.’s very first appointment. Specifically, Ms. B.B. recalled Ms. P.S. describing her symptoms, which involved issues with sensation and balance. According to Ms. B.B., Ms. P.S. complained of tingling in her legs and fingertips. She also said her vision was off and that she felt like she was walking on a boat. These are historical details provided at Ms. P.S.’s first appointment. Given Ms. B.B.’s later concession that the complaint was made at the first appointment, it ultimately appeared that Ms. B.B. had tweaked one aspect of her evidence (the date of the incident) without thinking to consider the logical implications of that tweak.

[3744] As for the discussion in Dr. Sloka’s office, Ms. B.B. denied that Dr. Sloka informed Ms. P.S. that he intended to examine her breasts. On her account, Dr. Sloka simply stated, “I have to examine you.” Implying that she would have heard and remembered any request for a breast examination, she testified that she would have considered such a request bizarre. According to Ms. B.B., she first heard about the breast examination immediately after the appointment. On the way to the elevator, Ms. P.S. allegedly said, “Well, I just got felt up like the good old days.” She asked for an explanation, and Ms. P.S. allegedly replied, “He gave me a breast exam.” Ms. B.B. then asked, “What for?” Ms. P.S. allegedly replied, “He said he was checking for lumps and that she [Ms. P.S.] was good.” Ms. B.B. purportedly replied, “Well, we have to do everything we can to find out what’s happening.” In this narration, we can see that Ms. B.B. contradicted her daughter in three ways: she denied that Dr. Sloka mentioned a breast examination in Ms. B.B.’s presence, she testified that she sought clarification about Ms. P.S.’s “I just got felt up” declaration, and she declared that Ms. P.S. specifically mentioned a breast examination as they walked towards the elevator.

[3745] Ms. B.B. also contradicted her daughter by alleging that Dr. Sloka conducted some physical examinations on Ms. P.S. in his office in Ms. B.B.’s presence. Specifically, she alleged that Dr. Sloka tested Ms. P.S.’s leg strength and leg reflexes in the office. She recalled Dr. Sloka crouching for these tests.

[3746] According to Ms. B.B., she could not recall having any other discussions about the allegations between the day of the appointment of concern and the day Ms. P.S. showed her the Notice of Hearing. Assuming the examination of concern happened at the first appointment, Ms. B.B. suggested about a seven-year gap between discussions about the examination.

[3747] Ms. B.B. agreed that she and Ms. P.S. are very close and agreed that they are like a tribe. They spoke daily, if not more. Before Ms. B.B. ever provided her statement to the CPSO, Ms. P.S. discussed her allegations with Ms. B.B. In their discussions, Ms. P.S. showed Ms. B.B. the Notice of Hearing. Ms. B.B. saw that at least two other patients were alleging sexual misconduct, including conduct involving the breasts of patients. Ms. B.B. said that they discussed Ms. P.S.’s alleged breast examination. Ms. P.S. also asked Ms. B.B. about the proper method for a breast examination. Ms. B.B. asked Ms. P.S. about Dr. Sloka’s method and whether he used two fingers, whether he palpated her underarms, and how Ms. P.S. was dressed. Contrary to Ms. P.S.’s evidence, Ms. B.B. denied that they had previously discussed their recollections from the appointment of concern. According to Ms. B.B.’s account, if they spoke about the breast examination many times, as Ms. P.S. alleged, this occurred after Ms. P.S. first discovered the Notice of Hearing.

The Evidence of Sherry Witmer

[3748] Ms. Witmer was a nurse in the office of her husband, Dr. Michael Witmer. Dr. Witmer took over Dr. Erb’s practice, presumably upon Dr. Erb’s retirement.

[3749] According to Ms. Witmer, Ms. P.S. once asked Ms. Witmer whether it was normal for a neurologist to conduct a breast examination. Ms. P.S. did not provide any context for her question. She did not indicate whom, if anyone, she was talking about when she asked the question. Ms. Witmer was not sure of the answer. Ms. P.S. did not make any allegation about being “felt up.” Had Ms. P.S. made any complaint of impropriety, Ms. Witmer would have been obliged to inquire further into the complaint.

[3750] Ms. Witmer testified that Ms. P.S. posed her question at an appointment in which Ms. Witmer performed a PAP test on Ms. P.S. Based on Ms. P.S.’s medical file, which indicated that Ms. Witmer did a PAP test on April 16, 2015, Ms. Witmer believed that the question was posed on this date.

[3751] Ms. Witmer also remembered Ms. P.S. mentioning that she was not happy with Dr. Mandalfino. In addition, Ms. Witmer recalled telling Ms. P.S. that she had enjoyed working with Dr. Sloka.

The Evidence of Dr. Bril

[3752] Dr. Bril’s evidence was not controversial, insofar as a breast examination was concerned. In her opinion, there did not exist any neurological reason to examine Ms. P.S.’s breasts, let alone in the way Ms. P.S. described. Dr. Sloka agreed.

[3753] Dr. Bril did not believe a cardiac examination was neurologically warranted. The Crown has not relied upon her opinion about Dr. Sloka’s cardiac examination in their submissions, though. Accordingly, I will only briefly summarize it.

[3754] According to Dr. Bril, dizziness can be caused by abnormal valve functioning in the heart, which can be heard on auscultation. However, she considered this a vary rare occurrence. Abnormal valve functioning can lead to low blood flow to the brain – hypoperfusion – which in turn causes dizziness. Similarly, arrhythmia can lead to hypoperfusion. However, she testified that dizziness that results from hypoperfusion does not result in vertigo that develops and persists for several days, as Ms. P.S. described. She also testified that dizziness is more commonly caused by low blood pressure.

[3755] Dr. Bril also did not think that Ms. P.S.’s symptoms could likely be explained by stroke. Consequently, she did not think an assessment of stroke risk justified a cardiac examination.

[3756] Dr. Bril agreed that it was reasonable for Dr. Sloka to conduct a neurological examination and the Dix-Hallpike and headshake manoeuvres.

The Evidence of Dr. Sloka

[3757] Dr. Sloka had only a limited memory of Ms. P.S. He remembered that she had some cognitive impairment and that she did not want to participate in preventative therapy for MS. He recalled long discussions about this issue. However, he had no memory regarding any other details of any given appointment. He relied upon his consultation letters for the truth of their contents and the rest of his medical file to provide context.

[3758] Dr. Sloka denied ever conducting any breast examination on Ms. P.S. There was no medical reason to conduct a breast examination. Dr. Sloka also denied any intentional touching of Ms. P.S.’s breasts. He stated that any contact with Ms. P.S.’s breast would have been accidental and incidental to a cardiac examination.

[3759] In cross-examination the Crown suggested to Dr. Sloka that he lifted Ms. P.S.’s gown and exposed Ms. P.S. He denied this. The Crown suggested he told Ms. P.S. he wanted to examine her breasts for lumps. He denied this. The Crown further suggested that he squeezed her breasts. Dr. Sloka denied this. The Crown did not suggest to Dr. Sloka that he performed a real breast examination.

[3760] Dr. Sloka testified that Ms. P.S.’s family doctor, Dr. Erb, referred her to him due to a concern she had vestibular neuritis. Alternatively, Dr. Erb wondered whether she had a small tumor on the vestibular nerve.

[3761] Dr. Sloka explained that vestibular neuritis involves the vestibular nerve, which connects the brain stem and inner ear. If the nerve gets irritated or inflamed, the signals from the inner ear can become compromised. People with vestibular neuritis will experience dizziness or vertigo. Dr. Sloka added that sometimes the vestibular organ can itself become inflamed, too.

[3762] Ms. P.S.’s first appointment occurred on February 24, 2011. By that date he had not see Ms. P.S.’s MRI, which her family doctor had ordered.

[3763] After taking her history, he proposed neurological and cardiac examinations. He also proposed the Dix-Hallpike and headshake manoeuvres.

[3764] Dr. Sloka provided a justification for the cardiac examination. According to his understanding of the medical literature and neurology texts, a cardiac exam is part of evaluation of patient who describes dizziness. He also believed that cardiac issues could lead to decreased blood flow to brain and give a feeling of dizziness. Also, he testified that the blood vessels that flow from the heart towards the brain join and become the basilar artery, which services the brain stem. He understood that cardio-embolic stroke can often occur in this location. He listened to the heart to be sure that there was no audible evidence of a stroke risk. He also understood from his education and training that strokes can mimic MS.

[3765] Dr. Sloka also provided a justification for the Dix-Hallpike manoeuvre. With this manoeuvre, the doctor turns the patient 45 degrees and lays the patient down quickly. As this is done, the doctor looks for an abnormal response in the patients eyes to this movement – what is called benign positional vertigo.

[3766] Regarding the headshake manoeuvre, Dr. Sloka explained that it is also aimed at testing the functioning of the vestibular organ. The eyes are yoked to the inner ear, which allows you to fixate on a target as you move your head. He has the patient look into his eyes as he holds the sides the patient’s head. He informs the patient that he is going to move their head. The patient must focus on his nose. Then he shakes the head. The patient should be able to keep focus on his nose. With an abnormal response, the patient’s gaze cannot remain fixed on his nose and the patient jerks their head to compensate. This abnormal response indicates a problem with the inner ear, rendering it unable to stabilize the vision.

Assessment of the Evidence and Analysis

[3767] Ms. P.S. was an abjectly unreliable witness who clearly colluded with her mother. In addition, she displayed an overwhelming animus towards Dr. Sloka which tainted both her reliability and credibility. Ms. Witmer’s evidence offers no meaningful support, nor does any of the purported similar fact evidence. As I will elaborate below, the evidence called by the Crown fails to establish on any standard of proof that a breast examination of any description occurred.

[3768] Ms. P.S.’s evidence about the timing of the examination within the chronology of her treatment was scattered, incoherent, and illogical.

[3769] Listening to Ms. P.S. in-chief, one would be forced to conclude that she had alleged that the breast examination occurred at the first visit. Listening to her in cross-examination, she strenuously denied that the breast examination could ever have occurred at the first visit. Despite denying that it could have occurred at the first visit, she alleged a preceding consultation that could only be consistent with the type of discussions that would occur at the initial consultation: introductions and a description of her pertinent medical history.

[3770] Nevertheless, Ms. P.S. alleged in cross-examination that the breast examination occurred at the third, fourth, or fifth appointment, well after she had become ensconced in Dr. Sloka’s care. She also alleged that the breast examination occurred before the appointment on which she received her diagnosis. Indisputably, she received her MS diagnosis at the third appointment, meaning she could not have received a breast examination both before her MS diagnosis and after her first two appointments.

[3771] Ms. P.S. believed she started seeing Dr. Sloka in 2008 or 2009. She clearly believed that Dr. Sloka’s February 24, 2011, consultation letter was authored long after she had already been in Dr. Sloka’s care. She did not have access to her medical file until well after she had provided her statements. She only began to review them in preparation for trial. Clearly, she did not carefully review the contents of her medical file in preparation for testimony, because she failed to recognize from any review that her tenure as Dr. Sloka’s patient began on February 24, 2011, not two or three years earlier. Accordingly, she did not recognize that any examination reported on February 24th pertained to her first ever visit. She also failed to recognize that it was her family doctor, not Dr. Sloka, who ordered her initial MRI, the results of which were unavailable at the first visit. Further, she didn’t recognize that Dr. Sloka had prematurely concluded that she had vestibular neuritis and did not intend to see her again. He did not think the MRI would yield any contradictory information. Only a belated review of her MRI changed the course of Ms. P.S.’s involvement with Dr. Sloka.

[3772] Ultimately, Ms. P.S. conceded the possibility that February 24, 2011, was her first appointment, but she clung to her assertion that she did not receive a gowned examination on that date. She purportedly had a visual memory of wearing shorts on a warm day on the day of her breast examination, which she also alleged was her first gowned examination. The evidence unquestionably establishes that she received her first gowned examination on February 24, 2011. On this day, she received a cardiac examination, which I accept would necessarily be a gowned examination. Her clear visual memory of wearing shorts on a warm fall day is undoubtedly wrong. It is a false memory.

[3773] February 24th provided Ms. P.S. with a difficulty. On her account, Dr. Sloka’s examination involved only a minor portion of a standard neurological examination plus a breast examination. It did not involve a complete neurological examination, a cardiac examination, a Dix-Hallpike manoeuvre, or a headshake manoeuvre. On her account, the neurological tests of her reflexes and vision occurred as she sat upright. The alleged breast groping occurred as she lay down. She initially denied any other procedures. While she reluctantly agreed to the possibility of the Dix-Hallpike and headshake manoeuvres after a review of the February 24th consultation letter, she steadfastly denied a cardiac examination. Of course, Dr. Sloka’s standard cardiac examination would involve the exposure of her left breast and the placement of a stethoscope on various places around her breast. Somehow, Ms. P.S. remembered the allegedly deliberate cupping of her breasts but steadfastly denied the deployment of a stethoscope all around her exposed left breast. Nevertheless, given the contemporaneous documentation of a cardiac examination, I conclude without hesitation that Dr. Sloka conducted one. Her denial of this examination was therefore not credible or reliable. I am forced to conclude that Ms. P.S. was reluctant to admit any legitimate examination that might plausibly explain the exposure of her left breast and any contact with it.

[3774] Ms. P.S. provided inconsistent evidence on the manner of her breast groping. Initially, she stated that it lasted 10-15 minutes – approximately five to seven minutes for each breast. She did not allege anything remotely resembling a medical procedure. Instead, she alleged manifestly sexual conduct. On her description, he held one breast at a time in his hand and squeezed it. He did not palpate. He did not feel around for lumps, as he supposedly said he would do. He simply squeezed. Even Ms. P.S. admitted that her initial description sounded absurd in retrospect. I reject entirely her contention that she experienced this conduct and considered it plausibly medical. It is far more likely, in my view, that what she alleged never occurred. In support of that conclusion, I rely upon Ms. P.S.’s varying description of the duration of the groping. After agreeing that her initial description sounded absurd, she changed her time estimate to two or three minutes, then to one or two minutes. When asked to re-enact the event, her time estimate went down to about 18 seconds. Ms. P.S.’s willingness to allege an admittedly absurd five-to-seven-minute squeezing of each breast not only calls into question her reliability, but it also calls into question her credibility.

[3775] Interestingly, Ms. P.S. was also inconsistent about the exposure of her breasts during her supposed breast examination. In-chief, she first stated that she believed only her right breast was exposed. When the Crown returned to the issue, Ms. P.S. could not remember if it was just one breast that was exposed. In cross-examination, Ms. P.S. changed her position and tentatively asserted that Dr. Sloka exposed both breasts. Now, I must keep in mind that Dr. Sloka testified that his cardiac examination would only involve the exposure of Ms. P.S.’s left breast. He denied exposing the other breast. If Dr. Sloka groped both of Ms. P.S.’s as she alleged, I do not think she would have experienced any uncertainty whatsoever about whether Dr. Sloka exposed both her breasts. Her failure to clearly recall the exposure of both breasts supports the conclusion that Dr. Sloka performed a cardiac examination, not a breast examination, in which only one breast was exposed. This in turn calls into question the allegation that her breast exposure had anything to do with a search for lumps.

[3776] Ms. P.S. also had a false memory about the date on which she received her MS diagnosis. She vehemently believed that she received the date on her birthday – a memorable day and tragic day to receive such a diagnosis, and a day she would not forget if it truly occurred that day. However, Ms. P.S. did not meet with Dr. Sloka on her birthday. She met with him six days later. Her memory of receiving horrible news on her birthday was a false one. It is deeply concerning that she so fervently believed in this obviously false memory.

[3777] Given the manifest unreliability of Ms. P.S., I am not prepared to rely on any evidence she has provided on any material issue in this case.

[3778] My concerns about her evidence are heightened by her obvious and recently acquired animus towards Dr. Sloka. Until she learned about the allegations against Dr. Sloka, she had no animus. While she did seek a referral for a second opinion, she did not do so out of any concern about Dr. Sloka’s behaviour. The Crown’s contention that Ms. P.S. changed neurologists due to concern about Dr. Sloka’s conduct is simply not supported by the evidence. She sought the referral due to unhappiness with Dr. Sloka’s diagnosis, not with his conduct. Indeed, she returned to Dr. Sloka because of her dissatisfaction with Dr. Mandalfino. I conclude that she returned at that juncture because she had no concerns about any examination conducted by Dr. Sloka in the past. Her lack of concern suggests that the patently sexualized breast examination she subsequently alleged in fact never occurred. I reject any contention that she harboured any concern about her physical safety around Dr. Sloka before she read allegations in the CPSO publication. In my view, the evidence establishes that her attitude towards Dr. Sloka completely changed after she read about allegations being made by other patients. As it happens, elements of those allegations mirror the allegations that Ms. P.S. ultimately made. When she read allegations in the CPSO Notice of Hearing, she said “alarm bells” went off. The evidence strongly supports the conclusion that this is when she came to believe she was sexually assaulted. It was then that she decided that she wanted to “nail him.” Later, when she learned Dr. Sloka lost his licence, she wanted more. She wanted him behind bars. She considered him an animal by that point. Previously, she continued as his patients for a total of 15 appointments, twelve of which occurred after she sought to return to his care. After exposure to the allegations of others, she professed to be scared to walk the streets as long as he was free to walk them too. The evidence of animus gives rise to substantial concern that Ms. P.S.’s perceptions, memory, and evidence have been tainted by her review of other patients’ allegations and by the resulting animus she developed towards Dr. Sloka.

[3779] The Crown argues that Ms. P.S.’s evidence is supported by her mother and Ms. Witmer. They argue that these witnesses rebut any concern about tainting. I disagree.

[3780] Ms. B.B. contradicts Ms. P.S. in important ways. In other ways, Ms. B.B. betrays the existence of collusion between her and Ms. P.S..

[3781] As noted, Ms. B.B. contradicts Ms. P.S. on the following points:

(1) whether Dr. Sloka announced the intention to conduct a breast examination in the office;

(2) whether Ms. P.S. announced after the appointment that Dr. Sloka performed a breast examination;

(3) whether Ms. B.B. sought elaboration in response to Ms. P.S. declaring that she had been felt up;

(4) whether Ms. P.S. and Dr. Bril discussed with each other their memories of the appointment between learning about the CPSO allegations and providing their statements; and

(5) whether Ms. P.S. discussed the breast examination with her mother “many, many, many, many, many times” in the years following the examination.

[3782] Ms. B.B.’s collusion with Ms. P.S. is evident from the change in her testimony about the timing of the breast examination. When she spoke to the police, she unambiguously stated that the examination occurred at the first appointment. At trial, Ms. B.B. testified immediately after Ms. P.S. testified. When she got on the stand, she stated that the breast examination occurred at the second or third appointment. In my view, the shift in Ms. B.B.’s position can only plausibly be explained by collusion. I should note here that there were times in Ms. B.B.’s evidence where she obviously advocated for her daughter rather than answer the questions put to her. While her loyalty to her daughter is admirable, I am afraid the evidence suggests it has compromised her reliability and her credibility.

[3783] Ms. Witmer’s evidence offers little assistance to the Crown, but I can understand why it was proffered. Yes, the mention by Ms. P.S. of a breast examination by a neurologist in 2015 would be consistent with her allegations. However, Ms. Witmer did not document this alleged disclosure. She tied her memory of the disclosure to a memory of a PAP test she performed on Ms. P.S. She documented a PAP test in 2015. However, she testified that she dealt with Ms. P.S. as Ms. P.S.’s nurse on one other occasion, but she did not provide the date and purpose of that visit. I thus have no way of knowing whether that visit also involved a PAP test and no way of knowing whether it preceded Ms. P.S.’s review of CPSO allegations. Further, in the conversation described by Ms. Witmer, Ms. P.S. did not specify whether she had in fact received a breast examination from a neurologist. She also did not specify which neurologist she was speaking about. The evidence confirms that Ms. P.S. had at least two neurologists. Also, Ms. P.S. made no complaint of any impropriety – for example, she made no suggestion that she had been “felt up.” Concerningly, Ms. P.S. mentioned nothing about having this conversation with Ms. Witmer. In other words, the Crown did not proffer this undocumented conversation through the evidence of Ms. P.S. to rebut any concerns about tainting. Given Ms. P.S.’s current stance towards Dr. Sloka, I would expect that she would have remembered – or at least claimed to have remembered – whether she sought any advice from Ms. Witmer about a neurologist performing a breast examination. Consequently, while it is tempting to accept the Crown’s invitation to consider Ms. Witmer’s evidence as supportive, I am unable to do so.

[3784] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this case. However, having regard to the manifest frailties of the evidence of Ms. P.S. and her mother, and having carefully considered the evidence of Dr. Sloka, I conclude that Dr. Sloka has rebutted any possible inference of a sexual purpose in relation to Ms. P.S. I will provide a more in-depth assessment of Dr. Sloka’s evidence momentarily.

[3785] The Crown also relies on two discrete cross-count similarities to support the evidence of Ms. P.S. on other material issues. First, the Crown contends that Ms. P.S. was a member of a cohort of patients which alleged that Dr. Sloka failed to explain the reason for the examinations. Second, the Crown contends that Ms. P.S. belongs to a cohort of patients that alleged that Dr. Sloka cupped their breasts. For reasons I will now discuss, I do not find either of these cross-count similarities to be sufficiently probative to offer any support to Ms. P.S.’s evidence on any other material issue.

[3786] The Crown argues that Ms. P.S. belongs to a cohort in which the patients claim that Dr. Sloka failed to explain the reason for her examination. The evidence does not support this contention. Like many others, Ms. P.S. does not belong in this ostensible cohort. Ms. P.S. testified that Dr. Sloka declared his desire to conduct a breast examination and that he declared the reason for it: a search for lumps.

[3787] The Crown also argues that Ms. P.S. belongs to a cohort who allege that Dr. Sloka cupped their breasts. However, many members of this cohort do not allege cupping. “Cupping” is the Crown’s preferred term, not a description uniformly provided by patients who allege contact with their breasts. Ms. P.S. is a perfect example. She alleged that Dr. Sloka placed his whole hand on top of her breast as she lay down and squeezed. To my mind, she did not describe cupping; at least initially, she described an action akin to squeezing the juice from an orange for five to seven minutes. Her allegation differed significantly from others in this supposed cohort. Further, the criteria for entry into the Crown’s cupping cohort are so broad as to deprive the cohort of any meaningful probative value.

[3788] I do not intend to assess Dr. Bril’s evidence in any detail here. As noted in the section devoted to a general assessment of Dr. Bril’s evidence, I afford little weight to her evidence, generally, and I afford little to no weight to her evidence regarding cardiac examinations. Also, the Crown has placed no reliance on Dr. Bril’s opinion regarding the cardiac examination performed by Dr. Sloka on Ms. P.S. Her evidence concerning the alleged breast squeezing was not controversial.

[3789] Dr. Sloka provided cogent and compelling justifications for the examinations he proposed and performed. I have no basis for rejecting Dr. Sloka’s stated belief in these justifications. I keep in mind here that the Crown did not cross-examine Dr. Sloka regarding his justification for the cardiac examination. The Crown also does not challenge his justifications in their submissions.

[3790] Also, I have no basis for concluding that Dr. Sloka performed his documented examinations in an improper manner. Ms. P.S. remembered very little about her neurological examination. She had no memory of the Dix-Hallpike and headshake manoeuvres. And she denied a cardiac examination. For their part, the Crown does not suggest in their submissions that Dr. Sloka performed the neurological, cardiac, Dix-Hallpike, or headshake examinations in a sexual manner.

[3791] The Crown challenges Dr. Sloka’s evidence solely on the basis that, having no memory of a breast examination, he is in no position to deny one. This submission reverses the onus of proof. Moreover, Dr. Sloka had a very good basis for denying a breast examination: he saw absolutely no reason to conduct one. In addition, Ms. P.S. did not allege a real breast examination. Instead, she alleged a patently sexual groping. She claimed not to recognize this admittedly absurd conduct as being sexual, but she simultaneously alleged that she immediately told her mother that she had been felt up. Dr. Sloka obviously and implicitly denied any prurient motive for any examinations performed on Ms. P.S. His implicit denial of a sexual motive provided him a basis to deny such patently sexualized conduct.

[3792] Having considered Dr. Sloka’s evidence, having considered the content of his contemporaneously authored consultation letters, and having considered the evidence of the other witnesses, I see no valid basis to reject Dr. Sloka’s evidence. I accept that Dr. Sloka performed only the examinations he documented and that he performed them with Ms. P.S.’s consent. I also accept that he performed them in accordance with his training. Additionally, I accept that he performed them for medical not sexual reasons. Further, I reject Ms. P.S.’s allegation that Dr. Sloka groped her breasts at her first appointment or any other appointment. In addition, I reject her allegation that Dr. Sloka exposed both her breasts at any point. I conclude that only her left breast was exposed and that it was exposed during her cardiac examination. Dr. Sloka performed medical examinations with Ms. P.S.’s consent. He did not engage in sexual activity.

[3793] Dr. Sloka will be acquitted on this count.

iv. K.S.-B. (Count 57)

A Summary of Ms. K.S.-B.’s Complaint and Dr. Sloka’s Response to it

[3794] Ms. K.S.-B.’s case and Ms. J.C.’s cases are similar, but with some notable differences. Like Ms. J.C., Ms. K.S.-B. presented with symptoms that suggested a likelihood she may have MS. Like Ms. J.C., Ms. K.S.-B. alleged that Dr. Sloka asked her to drape in a manner contrary to Dr. Sloka’s stated standard practice. But Ms. K.S.-B. alleged that Dr. Sloka provided her with a disposable paper sheet to use as draping. Like Ms. J.C., Ms. K.S.-B. alleged that Dr. Sloka conducted a skin examination as part of his investigation into her diagnosis. She claimed that she did not wear her draping for this skin examination. However, she also claimed to have worn underwear for the skin examination. During the skin examination, Dr. Sloka inspected some skin markings on her neck and chest. While doing so, his body grazed her breast. She believed this occurred accidentally.

[3795] As in Ms. J.C.’s case, Dr. Sloka could not remember whether he performed a skin examination. He failed to document it in his consultation letter. However, Dr. Sloka conceded the likelihood that he performed a skin examination, to look for skin manifestations of conditions that might mimic MS. Any skin examination would have been performed in accordance with his standard methodology. He denied providing Ms. K.S.-B. with a paper drape. He insisted that he provided her with the standard issue hospital gown. He denied that he conducted any skin examination with the gown completely removed.

The Circumstances of Ms. K.S.-B.’s Referral and Treatment History

[3796] Ms. K.S.-B.’s path into Dr. Sloka’s care was somewhat different from the path of most of the patients in this case. Evidence of her referral history comes from Ms. K.S.-B., her ER records, Secondary Stroke Prevention Clinic records, a July 6, 2015, consultation letter from a neurologist in London, Dr. Sloka’s July 8, 2015, consultation letter, and other documents from Dr. Sloka’s file for Ms. K.S.-B..

[3797] Ms. K.S.-B. was a 51-year-old patient with a thirty-year history of headaches. She had seen several neurologists in the past.

[3798] Ms. K.S.-B. went to the ER several times in close succession before being referred to Dr. Sloka. The final ER visit occurred on June 15, 2015.

[3799] On June 15, 2015, she attended the GRH ER suffering from numbness in her lower body and in her right hand. She was discharged on the same day she attended the ER. The ER doctor ordered MRIs of her brain and cervical spine. The doctor also ordered an ultrasound of her carotid arteries. The ER doctor prescribed low-dose ASA (Aspirin) and referred Ms. K.S.-B. to the Secondary Stroke Prevention Clinic. According to Ms. K.S.-B., the ER doctor suspected MS, not a stroke, but he believed he could get Ms. K.S.-B. a faster appointment with Dr. Sloka if he sent her to the stroke clinic. Ms. K.S.-B. attended for her ultrasound and MRIs after she was discharged and before attending the Secondary Stroke Prevention Clinic.

[3800] Dr. Sloka worked once a week at the Secondary Stroke Prevention Clinic. He was on duty when Ms. K.S.-B. attended her first appointment on July 1, 2015. The clinic was closed for the statutory holiday, but Dr. Sloka worked that day anyway. He took Ms. K.S.-B.’s history but did not examine her that day. When providing her history, Ms. K.S.-B. reported that she had experienced numbness in her right arm and left hand, as well as the numbness in her right hand. She also reported a recent change in her bladder. She continued to experience numbness and tingling in her legs. Her brain MRI results showed demyelination. Her cervical MRI suggested transverse myelitis (inflammation of the spinal cord resulting in damage to the myelin sheath around the spinal cord). Dr. Sloka concluded, “This lady has an event that seems most consistent with transverse myelitis, and we gave her a prescription for prednisone 1000 mg daily for four days.” He ordered evoked potential studies and EMG studies for her left ulnar nerve. He also ordered blood work, with the requisition indicating “r/o mimics of MS.” He also charted, “She understands that the likely diagnosis here is multiple sclerosis, but we will rule out other difficulties that might explain her symptoms [emphasis added]. She had an MRI in the past and she will see if she can acquire that to look for interval change.” Dr. Sloka then transferred her care to his Urgent Neurology Clinic. He planned to see her within the next month.

[3801] According to Dr. Sloka’s July 8, 2015, consultation letter, Ms. K.S.-B. phoned Dr. Sloka’s office a few times in the days following her attendance at the stroke clinic. She called with concerns about her symptoms. A note in Dr. Sloka’s file which documented a phone call from Ms. K.S.-B. confirmed Dr. Sloka’s account. Consequently, her first appointment at the neurology clinic took place sooner than planned, on July 8, 2015.

[3802] After seeing Dr. Sloka at the stroke clinic on July 1st, 2015, Ms. K.S.-B. saw Dr. Sloka a total of nine times at his Urgent Neurology Clinic. In total, then, she attended ten appointments with Dr. Sloka. During her time as Dr. Sloka’s patient, her family doctor referred Ms. K.S.-B. to a neurologist named Dr. Paul Cooper at the Dr. John Kreeft Headache Clinic at the London Health Sciences Centre for a neurological consultation. Dr. Sloka later referred Ms. K.S.-B. to fellow neurologist, Dr. Mandalfino, for a second opinion. Dr. Mandalfino had previously been Ms. K.S.-B.’s neurologist. Dr. Sloka continued to provide care for Ms. K.S.-B. after obtaining that second opinion. Dr. Sloka last saw Ms. K.S.-B. on May 7, 2018. He planned to see Ms. K.S.-B. in about a year. A year later, he was no longer practicing as a neurologist.

The Evidence of Ms. K.S.-B.

[3803] Ms. K.S.-B. voiced concern about only one appointment with Dr. Sloka, her second overall appointment and the first one she had at Dr. Sloka’s Urgent Neurology Clinic. Before getting to that appointment, attention must be paid to her account of the first appointment, particularly Dr. Sloka’s tentative conclusions about her diagnosis and his plans to solidify a diagnosis.

[3804] Ms. K.S.-B. recalled seeing Dr. Sloka after hours on July 1, 2015. She brought her husband with her to the appointment, which occurred in a different office (the stroke clinic) than Dr. Sloka’s Urgent Neurology Clinic. The three of them sat around a table. Dr. Sloka discussed her MRI results. He told her she may have transverse myelitis, which has similar symptoms to MS, but is a different condition. He explained that transverse myelitis involved inflammation in the spinal cord, which damages the coating of the nerves. Transverse myelitis explained the numbness she was experiencing. He also mentioned that she could have MS. He prescribed a high dose of steroids to bring down the inflammation and to prevent further damage to her nervous system. He wanted her to come back for another appointment, at which time he would conduct a full examination. At this first appointment, he only measured her blood pressure and heart rate. In-chief, she did not recall him ordering further tests or mentioning any interest in ruling out other conditions that might be responsible for the neural inflammation and resulting symptoms she had been experiencing. In cross-examination, she agreed that Dr. Sloka ordered evoked potential studies, EMG studies, and bloodwork.

[3805] Ms. K.S.-B.’s recollection about Dr. Sloka’s steroid prescription differed from what was documented in his file. In Ms. K.S.-B.’s recollection, she was supposed to take 1000mg doses of steroids over four days and then taper off. Relying on Dr. Sloka’s medical records, defence counsel suggested that Dr. Sloka actually prescribed two rounds of steroid treatment, one at the first appointment and a tapered one at the second appointment. Ms. K.S.-B. resisted this suggestion, maintaining that one cannot immediately stop a high dosage of steroids. She believed her first prescription included tapering doses. She resisted the suggestion that she might be combining a memory of two separate prescriptions into one. Ultimately, she agreed that Dr. Sloka’s records may have accurately documented the true situation.

[3806] In-chief, Ms. K.S.-B. testified that the purpose of her appointment on July 8th was to follow-up on the effectiveness of her steroid treatment. With the aid of notes from a nurse in the stroke clinic, which were reviewed during cross-examination, Ms. K.S.-B. agreed that she called the stroke clinic on July 7th and spoke to a nurse to report some new symptoms. She had experienced a pain shooting down her neck and spine when she tilted her head downwards. She also reported a new pain in her neck and spine that worsened when she laid down. This alarmed her. The nurse booked a follow up appointment for August 5th, 2015. However, Dr. Sloka’s office called her back on July 8th and asked her to come see Dr. Sloka that day.

[3807] Ms. K.S.-B. told Dr. Sloka about her new symptoms when she met with him on July 8th. The appointment began in Dr. Sloka’s office. She agreed with Dr. Sloka’s recounting of her new symptoms in his consultation letter. She had hoped that her steroid prescription would have resulted in a more dramatic improvement of her symptoms. Ms. K.S.-B. agreed that Dr. Sloka may have raised the possibility that something other than MS may be responsible for her symptoms. She recalled Dr. Sloka proposing neurological and cardiac examinations. She could not remember whether Dr. Sloka proposed the cardiac examination while they were still in the office, but she believed Dr. Sloka first mentioned the cardiac examination while they were in the examination room. Ms. K.S.-B. also could not recall but did not dispute that Dr. Sloka may have told her that markings on her skin can provide clues of other conditions that might explain her symptoms. She was under a lot of stress and very emotional at the time. She described herself as being almost robotic during the appointment, suggesting a degree of detachment during their discussions. She did not question any propositions made by Dr. Sloka. She desperately hoped that Dr. Sloka would find something other than MS to explain her symptoms. Despite her evidence about her state of mind and emotional state and despite hoping that Dr. Sloka might find evidence of something other than MS, Ms. K.S.-B. initially denied the suggestion that Dr. Sloka told her that he wanted to conduct the examinations to look for evidence of other conditions to explain her symptoms. She believed that Dr. Sloka explained things as he was doing them. Later in her cross-examination, though, Ms. K.S.-B. conceded that it was possible Dr. Sloka discussed the possibility of investigating other diagnoses.

[3808] Ms. K.S.-B. also testified that Dr. Sloka did not explain to her how she would be attired for the examinations. He simply asked her to come into the examination room for the examinations.

[3809] Ms. K.S.-B. went into the examination room for her examinations. She testified that Dr. Sloka told her to remove all clothing except her underwear, lay on the examination table, and cover herself with a paper sheet which was resting on the end of the examination table. She described the sheet as a white paper sheet.

[3810] Defence counsel took Ms. K.S.-B. to photographs from Exhibit 2, which depicted the hospital-issue gowns used in Dr. Sloka’s neurology clinic. Even after being presented with photographic evidence of the gowns used in Dr. Sloka’s clinic, Ms. K.S.-B. remained certain that Dr. Sloka did not provide her with a gown. Instead, she only allowed that she might be mistaken about the type of sheet provided. To her recollection, though the sheet was textured, thicker than paper, and not crinkly like the role of medical paper used to cover the examination table, which was depicted in photographs of the examination room in Exhibit 2. Ms. K.S.-B. believed her paper-draping was disposable.

[3811] Dr. Sloka left the examination room to allow her privacy to get undressed and lay beneath the paper sheet. Ms. K.S.-B. testified that she then then got undressed and laid down on the examination table beneath her draping, just as Dr. Sloka had asked.

[3812] Ms. K.S.-B. recalled Dr. Sloka knocking on the door and seeking permission to re-enter.

[3813] According to Ms. K.S.-B., Dr. Sloka began to examine her as she lay on the examination table. She could not recall the order in which he did things. She described some things that in some ways were like aspects of Dr. Sloka’s standard neurological examination and some things that were inconsistent with Dr. Sloka’s standard neurological examination. For instance, he ran a tool along the bottom of her feet. She believed he used a pin to prick up her legs to check for sensation. He also used a hammer to test her reflexes. She also recalled him using the hammer on her knee; and she believed he used it on her elbows and the back of her ankles. He raised her legs to tap the backs of her ankles. She could not recall how he tested her elbow reflexes. He pushed on her foot and asked her to push it against his hand, as if pushing on a gas pedal and pulling away from the pedal. She also recalled being asked to push her index finger and pinky finger together as Dr. Sloka tried to push them apart. He also tested the strength of her arms. In addition, she recalled Dr. Sloka testing her Babinski reflex by running a triangular shaped object along the bottom of her foot. To her recollection, he did all these things as she lay down on the table.

[3814] Defence counsel questioned Ms. K.S.-B. about her recollection of Dr. Sloka using a sharp object to assess her sensation abilities. Counsel suggested that Dr. Sloka did not employ a sharp object and that she must be thinking of an examination by a different doctor. Ms. K.S.-B. did not think she was mistaken; however, she conceded the possibility that she might have felt a cold object instead of a sharp one.

[3815] Other things Ms. K.S.-B. described were consistent with a cardiac examination. She believed Dr. Sloka listened to her heart. She believed she lay down as Dr. Sloka listened to her heart. She also believed, but could not be certain, that she sat up and allowed Dr. Sloka to listen to her back. Defence counsel suggested that she sat upright with her legs along the examination table while Dr. Sloka conducted the cardiac examination. Ms. K.S.-B. did not recall this but did not dispute it. Ms. K.S.-B. also agreed that her back may have been exposed, and her chest draped, while Dr. Sloka used the stethoscope. However, she still denied wearing a gown. She also agreed that she may have exposed her left breast at his request to facilitate a cardiac examination and that Dr. Sloka may have applied the stethoscope to multiple places on her chest. However, she had no clear memory of Dr. Sloka’s methodology.

[3816] Ms. K.S.-B. agreed that her skin examination followed her neurological and cardiac examinations. Accordingly, she agreed it was possible that Dr. Sloka had already been able to see portions of her chest and back during the first two examinations.

[3817] Ms. K.S.-B. testified that she stood upright for the skin examination. To her recollection, she did not wear her paper draping. She did not recall what she did with it. She assumed she placed it on the examination table. To her recollection, her underwear remained on, but she was otherwise naked. Defence counsel suggested that Dr. Sloka sequentially moved portions of her draping to expose one area of her skin at a time. Ms. K.S.-B. rejected that suggestion.

[3818] Ms. K.S.-B. had white spots on the side of her neck and discoloration from sun damage on her chest. Dr. Sloka examined these markings. She recalled Dr. Sloka moving closer to her to get a better view of her neck. He also moved her hair to expose her neck. When leaning in, his body contacted her left breast. She did not know what part of his body made contact, but it was not his hand. The contact was brief, a couple of seconds. It did not feel deliberate. It felt like a total accident. She did not even know if Dr. Sloka was aware that he had come into contact with her breast. Dr. Sloka never touched the area of sun damage on her chest.

[3819] Ms. K.S.-B. did not believe Dr. Sloka did a full head to toe examination. However, she recalled Dr. Sloka lifting her arms to get a look at her armpits and down along her sides – confirming that he looked at areas other than her neck and chest. He also turned her by the shoulder to look at the back of her neck and her back. To her recollection, the skin examination took a couple of minutes at most. She did not think the skin examination was strange, bizarre, or unnecessary.

[3820] Ms. K.S.-B. recalled hoping that Dr. Sloka would find evidence of a condition other than MS to explain her symptoms. Defence counsel suggested that she held out this hope because Dr. Sloka had previously explained to her in the office that he wanted to do the skin examination to look for evidence of other conditions that might explain her symptoms. As already noted above, she agreed that this was possible. Whatever the explanation, she agreed to the skin examination.

[3821] After the skin examination, Dr. Sloka went to his office to wait for her to get changed back into her street clothes. Once she changed, she rejoined him in his office. She recalled him telling her that he found some deficits in her neurological examination. She did not recall what he said about her cardiac examination. Regarding the skin examination, he told her that he found nothing on her skin. Then, they discussed the plan moving forward.

[3822] Having returned to Dr. Sloka’s office earlier than originally planned, Ms. K.S.-B. had still not completed the testing that Dr. Sloka had previously ordered. She knew that Dr. Sloka needed to wait for some of that testing to occur before seeing her again. Defence counsel reviewed Dr. Sloka’s consultation letter, which indicated he prescribed a second dose of steroids, with this dose being a tapered dose. Ms. K.S.-B. did not believe that Dr. Sloka prescribed a second dose at this appointment. She believed Dr. Sloka was referring to the initial tapered dose that he prescribed when she saw him at the stroke clinic. However, she eventually said that she would not dispute the notion that he issued a second steroid prescription at this second appointment. Ms. K.S.-B. also agreed that Dr. Sloka planned to see her after she completed her tests and her tapered steroid doses. She knew Dr. Sloka wanted to see if her steroid prescription had any impact on her symptoms. Ms. K.S.-B. booked a follow up appointment with Dr. Sloka’s secretary before leaving for the day. At the time, she had no concerns about Dr. Sloka’s conduct towards her. At the time, she knew she did not yet have a diagnosis, but she also knew that a future MS diagnosis was a possibility.

[3823] Ms. K.S.-B. continued to see Dr. Sloka for a few more years. She had no concerns about any of these appointments. At some juncture, Dr. Sloka sought a second opinion from Dr. Mandalfino. Also, at some juncture, Dr. Sloka diagnosed her with MS. Ms. K.S.-B. could not recall exactly when she saw Dr. Mandalfino, nor could she recall when her MS diagnosis was confirmed. In cross-examination, defence counsel brought her attention to Dr. Sloka’s September 1, 2015, consultation letter and the referral letter written on the same date. By this point, Dr. Sloka had obtained her older MRIs and had compared them to the ones Ms. K.S.-B. had recently obtained. He was able to discern interval change in the brain MRI; however, the older MRI showed an atypical demyelination configuration. Accordingly, Dr. Sloka expressed some uncertainty about an MS diagnosis but felt that the cervical spine MRI disclosed transverse myelitis. He wanted a second opinion from Dr. Mandalfino. Accordingly, he wrote a letter to Dr. Mandalfino, requesting a second opinion on whether Ms. K.S.-B. met the criteria for MS. Ms. K.S.-B. agreed that events transpired in the way Dr. Sloka reported them in his consultation letter and referral letter. She also agreed that she saw Dr. Mandalfino on November 9, 2015.

[3824] After Ms. K.S.-B.’s appointment with Dr. Mandalfino on November 9th, Dr. Mandalfino agreed with Dr. Sloka’s diagnosis of transverse myelitis. She was not yet prepared to make an MS diagnosis. She ordered another MRI of Ms. K.S.-B.’s brain to look for conclusive evidence of the “dissemination in time” criterion for MS.

[3825] Ms. K.S.-B. attended for the MRI ordered by Dr. Mandalfino. She then met with Dr. Mandalfino on April 4, 2016. The brain MRI showed two new lesions. The “dissemination in time” criterion had been met. At that juncture, Dr. Mandalfino confirmed a diagnosis of MS.

[3826] Rather than stay under the care of Dr. Mandalfino (a female neurologist), Ms. K.S.-B. returned to the care of Dr. Sloka. Defence counsel asked Ms. K.S.-B. for an explanation. In response, she testified that Dr. Mandalfino’s office was very rigid and inaccessible. She found it difficult to book an appointment. In comparison, she found Dr. Sloka’s office to be very responsive to her calls and requests. She saw Dr. Sloka seven more times over the next two years for the treatment and management of her MS. She had no concerns or difficulties about Dr. Sloka during that time. In her view, Dr. Sloka was responsive not only to her MS but to other health issues that arose. For example, he sent her for a shoulder ultrasound when she complained about pain in her shoulder. The ultrasound disclosed a rotator cuff tear. He forwarded this information on to her family doctor.

[3827] Prior to seeing media coverage about the investigation into Dr. Sloka, Ms. K.S.-B. did not for a moment question her treatment by Dr. Sloka. She decided to stop seeing Dr. Sloka after seeing the media coverage. She first learned about the investigation from her husband. He called her and told her that he had heard on the radio that Dr. Sloka was being investigated for sexual misconduct. Afterwards, Ms. K.S.-B. looked up an article on the website for 570 News. Then she read coverage from other media outlets. She read that the CPSO was investigating; so, she looked up Dr. Sloka on the CPSO website. She could not remember many details about what was reported in the media and the CPSO publication, but she did recall complaints of inappropriate draping. She concluded that her own examination had been inappropriate, and she decided to contact the CPSO. She did not want what happened to her to happen to anyone else again. She contacted the CPSO either the day her husband mentioned the investigation or the following day.

[3828] As a result of seeing the media, she revisited her visit with Dr. Sloka. She started to question whether Dr. Sloka had her best interests at heart. Prior to that, she never for a moment questioned Dr. Sloka.

The Evidence of Dr. Bril

[3829] In Dr. Bril’s opinion, a skin examination was not neurologically warranted. She came to this conclusion for three reasons. First, she believed that, by the time of Ms. K.S.-B.’s first appointment, the evidence already established that Ms. K.S.-B. had MS. Accordingly, there was no need to explore the possibility that her symptoms were caused by other conditions. Second, even if it was reasonable to consider the possibility of other conditions, she felt that bloodwork, not a skin examination, was the only appropriate way to explore the possibility of those other conditions. Third, she did not condone neurologists performing skin examinations.

[3830] Dr. Bril believed Ms. K.S.-B. had MS even though the evidence had yet to satisfy the two criteria for MS. Dr. Bril testified that there exist two criteria for a diagnosis of MS. These are known as the McDonald’s criteria. The first criterion is dissemination in space, the existence of multiple areas of demyelination in the brain and/or spinal cord. The second criterion is dissemination in time, lesions in different places at different points in time. By the time of Ms. K.S.-B.’s first appointment, Dr. Sloka did not have Ms. K.S.-B.’s older MRIs. Consequently, no evidence of dissemination in time existed.

[3831] Nevertheless, Dr. Bril felt that the presence of transverse myelitis effectively established that Ms. K.S.-B. had MS. “It’s an MS case, yes.” Moreover, she stated, inaccurately, that Dr. Sloka had diagnosed Ms. K.S.-B. with MS on July 1st. After another review of Dr. Sloka’s July 1st letter, Dr. Bril agreed that Dr. Sloka indicated that he considered MS to be the likely diagnosis but was not yet sure and wanted to rule out other difficulties that might explain her symptoms. On the one hand, he prescribed prednisone, which reduces the inflammation that causes MS lesions. On the other hand, he ordered bloodwork and a hypercoagulable screen, which can be useful in the investigation of MS mimics and blood clots, respectively.

[3832] Having regard to the information available by Ms. K.S.-B.’s July 8th appointment, Dr. Bril believed that the evidence established a 99% probability of MS. She did not think there was any merit to the investigation of other conditions on the differential diagnosis. An important question remained unanswered by Dr. Bril’s evidence. If the MRI results established MS to a near certainty, then why were any other diseases on the differential diagnosis at all? For instance, if the lesions seen on the MRI could not be lupus lesions, then why was lupus still admittedly on the differential diagnosis? Conditions on a differential diagnosis are, by definition, possible albeit less likely explanations than the favoured explanation for a symptom set. I was left with the distinct impression that Dr. Bril did not truly accept or agree with the differential diagnosis but grudgingly acknowledged it. This not only placed her approach in conflict with Dr. Sloka’s approach, but it also placed her in conflict with Dr. Mandalfino’s apparent approach.

[3833] Defence counsel took Dr. Bril to Dr. Mandalfino’s consultation letter from November 9, 2015. Like Dr. Sloka, Dr. Mandalfino did not believe the criterion for MS had been satisfied. Dissemination in time had not been established. She ordered a further MRI of Ms. K.S.-B.’s brain. She also ordered bloodwork, which Dr. Bril acknowledged would be relevant to the investigation of mimics. Specifically, Dr. Mandalfino ordered bloodwork to test for lupus, Lyme disease, bone disease, B12 deficiency, and thyroid disease. When counsel suggested that Dr. Mandalfino was holding out hope that Ms. K.S.-B. may have a condition other than MS, Dr. Bril replied, “Yes. Not really, but yes.” As she had done with Dr. Sloka, Dr. Bril professed to know what Dr. Mandalfino was really thinking. Regarding the bloodwork, Dr. Bril declared it a waste of time: “but really, its all going to be negative.” In effect, Dr. Bril opined that Dr. Mandalfino’s apparent investigation into the possibility of MS mimics was also unreasonable. In her view, mimics would not explain the picture seen in the MRIs.

[3834] Dr. Bril did not believe a skin examination was an appropriate component of any investigation into the possibility of MS mimics. While she agreed that some mimics have skin manifestations, she testified that, “… you would not diagnose them [the mimics] by looking at the skin. You would diagnose them by doing bloodwork, lab tests, and in addition you would ask the patient if she has skin lesions.”

[3835] Dr. Bril also did not believe that a cardiac examination was neurologically warranted. She thought an exploration of the patient’s stroke risk was debatable. She explained, “So, really the exploration is debatable because the presentation of transverse myelitis due to a stroke in the spinal cord is extremely rare.” Similarly, she believed the brain MRI showed demyelination, not multiple infarctions (damage from blood clots). Importantly, though, the actual MRI images were not part of the patient file. She only had access to the radiologist’s report. She could not assess the apparent demyelination for herself. Assuming an examination of a patient’s stroke risk was worthwhile, Dr. Bril still did not think a cardiac examination was appropriate. She then began to discuss the appropriate way to investigate heart attacks, which was not a possibility about which the defence expressed any interest. When questioned about the utility of a cardiac examination in assessing stroke risk, Dr. Bril reiterated her position that auscultation of the heart does not provide as much information as an echocardiogram.

The Evidence of Dr. Sloka

[3836] Dr. Sloka did not have an independent recollection of Ms. K.S.-B. He relied upon his consultation letters and notes for the truth of their contents. He also relied upon other documents in his file for context.

[3837] Ms. K.S.-B. came to Dr. Sloka’s stroke clinic on July 1, 2015. Dr. Sloka took her history. He learned that Ms. K.S.-B. obtained MRIs of her brain and spinal cord after her visit to the ER. The cervical MRI revealed a lesion on the spinal cord which looked like transverse myelitis. The brain MRI revealed multiple lesions in the brain and at the top of the spinal cord. The radiologist indicated that MS should be considered. In Dr. Sloka’s view, Ms. K.S.-B.’s symptoms and MRI were most consistent with transverse myelitis. As a result, he believed that MS was the likely diagnosis, but he wanted to explore and rule out other conditions that might explain her symptoms. To that end, he ordered an EMG study, evoked potential studies, and bloodwork. He also wanted to obtain the results of an older set of MRIs to assess whether there had been interval change (dissemination in time) between the old MRIs and her recent ones. He prescribed prednisone for Ms. K.S.-B., which would treat the inflammation associated with transverse myelitis. He deferred Ms. K.S.-B.’s examination to another day.

[3838] The Crown questioned Dr. Sloka regarding the bloodwork he ordered. The results were located at tab 16 of Ms. K.S.-B.’s medical file. The results documented an anti-coagulable screen, as well as testing for Syphilis, Lyme, and ANA (lupus). Dr. Sloka expressed puzzlement that no further results were reported. He stated, “Yes, that’s not a lot of bloodwork. I don’t know – I don’t know how that happened.” Interestingly, the requisition document, found at tab 9 of Ms. K.S.-B.’s file indicates, “R/O Mimics of M.S.” in the “Reasons for Test”. It does not list all the tests requested. It does, however, contain a handwritten addition, under the heading of “Test(s) Requested” – which is written in red and initialled by Dr. Sloka’s secretary. That addition specifies “Hep C and RNA.” Those tests are not reflected in the blood test results found at tab 16. To sum up, the only documented blood test results do not correspond to all the specified tests in requisition. Moreover, the documented test results were fewer than Dr. Sloka expected, and he did not understand the reason for this. The bloodwork results thus appear incomplete. A similar situation also arose in Ms. J.C.’s file. There, the test results were far more comprehensive that Ms. K.S.-B.’s. However, the requisition (seen at tab 3 of Ms. J.C.’s file) only specified Bartonella and Lyme serology. After getting Dr. Sloka to acknowledge that the blood test results were fewer than he expected for Ms. K.S.-B., the Crown did not go on to suggest to him that he actually ordered fewer tests; nor did the Crown suggest that the limited number of tests suggested he was not truly concerned with investigating mimics of MS.

[3839] Dr. Sloka saw Ms. K.S.-B. one week later, on July 8th, following the development of new symptoms and changes to existing symptoms. After taking Ms. K.S.-B.’s history, Dr. Sloka proposed and conducted neurological and cardiac examinations. Dr. Sloka did not record it and did not recall it, but he agreed that he may also have conducted a skin examination.

[3840] Dr. Sloka observed that Ms. K.S.-B. was 51 years old at the time of her apparent attack, which is just outside of the age range for a first multiple sclerosis attack. Also, he only had one set of MRI results available to him; so, both McDonald’s criteria for MS could not be established. In these circumstances, he considered it important to investigate other conditions on the differential diagnosis, even though he believed Ms. K.S.-B. likely had MS.

[3841] Dr. Sloka believed that a cardiac examination was warranted because strokes can give rise to lesions like those seen on Ms. K.S.-B.’s MRI. According to Dr. Sloka, medical literature indicates that a cardiac examination can be part of the evaluation of a patient with potential MS. Elsewhere in his testimony, he testified that structural abnormalities in the heart create a risk of blood clotting, which can create risk of stroke. Those structural abnormalities can be detected during auscultation. He believed himself properly trained and capable of detecting structural problems in the heart through auscultation. The Crown did not cross-examine Dr. Sloka regarding his rationale for conducting a cardiac examination. Instead, the Crown focussed on his rationale for the skin examination.

[3842] Dr. Sloka testified that a skin examination would assist in finding evidence of conditions that can mimic the symptoms of MS. According to Dr. Sloka’s training, the conditions on the differential diagnosis include lupus, Sjogren’s, sarcoidosis, and Lyme disease. All these conditions have skin manifestations. Dr. Sloka testified, “…it’s my understanding of the medical literature that a skin examination can be part of the assessment of someone with potential Multiple Sclerosis to look for alternative diagnoses.” A skin examination was part of his standard approach to patients with potential MS. He believed the medical literature indicated that a skin examination can be part of the assessment of a patient with potential MS. To his understanding, these conditions can produce changes that look like MS on an MRI. Dr. Sloka explained that, in an MRI, MS appears as a bunch of white dots on the central nervous system. Dr. Sloka believed that damage caused by Lupus, Lymes, sarcoidosis, and Sjogren’s disease can all look like MS on an MRI. He believed that there were many conditions that can mimic MS on an MRI.

[3843] On Dr. Sloka’s evidence, all examinations were proposed in the office and then conducted with Ms. K.S.-B.’s consent.

[3844] Dr. Sloka denied providing Ms. K.S.-B. with a disposable paper sheet to use for draping. Dr. Sloka used the standard-issue GRH hospital gowns provided to his office, the ones depicted in Exhibit 2.

[3845] Dr. Sloka addressed Ms. K.S.-B.’s account of his neurological examination. He denied that Ms. K.S.-B. laid down for the entirety of her neurological examination. He conformed with his standard practice. At another portion of his evidence, Dr. Sloka testified that he needs patients to sit upright on the examination table to properly test their knee reflexes. Dr. Sloka also denied using a sharp object to assess Ms. K.S.-B.’s sensation. Instead, in accordance with his standard practice, he employed the cold metal of either his reflex hammer or tuning fork to test her ability to sense temperature. He also used his fingertips to test for sensation. Dr. Sloka also denied asking Ms. K.S.-B. to press her foot against his hand, as if depressing a gas pedal. He did not employ this test in his standard neurological examination.

[3846] Dr. Sloka testified that, in accordance with his standard practice, he would have Ms. K.S.-B. wear a gown for her skin examination. He would instruct her to wear the gown open at the back. He would only expose sections of Ms. K.S.-B.’s skin at any given time. He would not have her stand without her gown completely naked.

[3847] As noted, Dr. Sloka did not remember whether he did a skin examination. He did not report one in his consultation letter or in his notes. He did not tend to report negative results for skin examinations. However, he did not dispute doing one. Mimics of MS can have skin manifestations. Pursuant to his training, skin examinations were a standard part of his assessment of possible MS patients.

[3848] While Dr. Sloka’s standard skin examination involves a full body skin examination, he testified that, depending on the clinical situation and the patient’s input, he might not examine the patient’s whole body. He testified that he would take his cues from the patient and the clinical context. Ms. K.S.-B. had alleged that Dr. Sloka focussed on the sun damage in her neck and chest area. Dr. Sloka did not remember. Dr. Sloka testified that, if he examined that sun damage, it would have been relevant to an inquiry into any potential photosensitivity caused by lupus. Relatedly, he said that sun damage can resemble cutaneous lupus. The Crown inquired about the necessity of examining the legs when investigating the possibility of Sjogren’s disease and sarcoidosis. Dr. Sloka did not remember the degree to which he explored these possible diseases because he could not remember this appointment. He agreed, though, that if considering these diseases, it might be important to examine the legs. He was not asked to comment on Ms. K.S.-B.’s claim that Dr. Sloka looked in the area running from her armpits down to her hips.

[3849] Dr. Sloka testified that some of the findings from his neurological examination were consistent with transverse myelitis. He planned to see her after she completed her tests. He next saw Ms. K.S.-B. on September 1, 2015.

[3850] By the time of Ms. K.S.-B.’s appointment on September 1st, Dr. Sloka had obtained Ms. K.S.-B.’s older MRIs. His reporting letter indicated that he observed interval change on her cervical spine but not in her brain MRI. Dr. Sloka testified that, following Ms. K.S.-B.’s September 1, 2015, appointment, he referred her to Dr. Mandalfino for a second opinion to confirm whether an MS diagnosis was appropriate. To that end, he forwarded his file for Ms. K.S.-B. to Dr. Mandalfino.

[3851] Dr. Mandalfino had done her fellowship in multiple sclerosis. Dr. Sloka considered her an expert on the subject. Also, he knew that Ms. K.S.-B. had previously been Dr. Mandalfino’s patient. He thought Dr. Mandalfino might be aware of a prior clinical event that might point to an MS diagnosis.

[3852] Dr. Mandalfino met with Ms. K.S.-B. on November 9, 2015. In her November 9th consultation letter, Dr. Mandalfino did not confirm an MS diagnosis. Instead, she concurred with Dr. Sloka’s diagnosis of transverse myelitis, writing,

Scott, I completely agree that her presentation is consistent with transverse myelitis and indeed the MRI confirms an inflammatory plaque at C4 and numerous lesions in the brain.

This woman has not however showed evidence for dissemination in time which of course is required for the diagnosis of multiple sclerosis. I would classify her as clinically isolated syndrome.

[3853] Dr. Mandalfino ordered another round of MRIs, evoked potential studies, and bloodwork. The MRIs she ordered revealed two new lesions. When Dr. Sloka became aware of these new lesions, he made a formal MS diagnosis when meeting with Ms. K.S.-B. on June 10, 2016. He recorded that diagnosis in his consultation letter from that date.

Assessment of the Evidence and Analysis

[3854] The Crown contends that Dr. Sloka was not really concerned with investigating mimics of MS. Indeed, the Crown contends that Dr. Sloka had concluded from the outset that Ms. K.S.-B. had MS. On the Crown theory, Dr. Sloka conducted a skin examination for a sexual purpose, not a medical purpose. The skin examination was a ruse, they say, aimed at gaining access to Ms. K.S.-B.’s body. Curiously, the Crown makes no submissions regarding the appropriateness of a cardiac examination and the resulting access to Ms. K.S.-B.’s body.

[3855] As has happened from time to time in this case, the Crown has lost sight of the forest due to their focus on trees. The Crown places undue emphasis on Dr. Sloka’s blood work requisitions; Ms. K.S.-B.’s obviously imperfect recollection of her examinations, and Dr. Sloka’s fair concession that, depending on the circumstances, he might not have done a complete skin examination. While focussing on these details, the Crown ignores the overall trajectory of Ms. K.S.-B.’s assessment and diagnosis.

[3856] In my view, Dr. Sloka’s medical file unquestionably establishes that, from the very first appointment, he viewed MS as the likely diagnosis, but he did not feel the evidence unequivocally established the diagnosis. He was not able to confirm an MS diagnosis by her first, second, or third appointments. He had no evidence of the essential criterion of dissemination in time. He made it clear that he wanted to do tests and bloodwork. He made clear his intention to look for possible MS mimics. He also wanted to get his hands on old MRIs to compare with the new one. In doing so, he made plain his desire to look for interval change that might confirm an MS diagnosis. These stated intentions were documented in medical records that, by their very nature, were inevitably available for review by other medical professionals in Ms. K.S.-B.’s circle of care. Therefore, he had to know that his thoughts and impressions would be subject to scrutiny by a medically educated audience. Dr. Sloka’s July 1st, July 8th, and September 1st consultation letters were all provided to Ms. K.S.-B.’s family doctor and to Dr. Mandalfino, whom Dr. Sloka considered to be an MS specialist. Those letters expressly declare Dr. Sloka’s view about the likely diagnosis but simultaneously disclose Dr. Sloka’s lingering uncertainty and his efforts to explore and rule out mimics of MS.

[3857] I see no merit in the Crown’s contention that Dr. Sloka betrayed a firm diagnosis of MS by prescribing prednisone at Ms. K.S.-B.’s first appointment or by finding abnormalities in Ms. K.S.-B.’s neurological examination at the second appointment. The Crown argues that a high dose prednisone prescription is used to treat a first attack of MS and transverse myelitis. They fail to understand that transverse myelitis and MS are not necessarily synonymous. The former can exist without the latter. As for the abnormal findings in the neurological examination, the Crown did not suggest to Dr. Sloka that they definitively established MS. Dr. Bril never made this claim. Also, Dr. Sloka’s neurological findings were incorporated into his opinion on July 8th. He provided this opinion along with the other contents of his file to Dr. Mandalfino. The obvious implication is that Dr. Sloka did not view the results of the neurological examination to be conclusive. Clearly, Dr. Mandalfino agreed. Upon receipt of her second opinion, Dr. Sloka had every reason to believe his initial reticence was correct.

[3858] The Crown challenges Dr. Sloka’s credibility by suggesting that Dr. Sloka dishonestly claimed he ruled out MS when he first met with Ms. K.S.-B. in July of 2015. Contrary to the Crown’s submission, Dr. Sloka did not testify that he had discarded MS as a diagnosis. Instead, he testified that Ms. K.S.-B. was just outside of the usual age range for a first MS attack. Coupled with the absence of any evidence of dissemination in time, he considered it important to look for evidence of mimics of MS.

[3859] When Dr. Sloka sought a second opinion, his lack of certainty was validated by Dr. Mandalfino. She too was not prepared to make at finding of MS when she first met with Ms. K.S.-B. on November 9, 2015. Like Dr. Sloka, she wanted more evidence. She ordered another MRI and blood tests for certain mimics of MS, in addition to evoked potential studies. I recognize that she was not a witness. She was not qualified to give a medical opinion. I do not rely upon Dr. Mandalfino’s reporting letter as expert opinion evidence. However, I believe it appropriate, when assessing the veracity of Dr. Sloka’s purported concern about mimics, to look at whether other qualified neurologists shared a similar concern. Dr. Sloka was not alone. Someone he considered to be an expert in MS agreed with his assessment – and they told him so. The Crown’s argument ignores the fact that Dr. Sloka’s initial impression aligned with Dr. Bril’s evidence regarding the McDonald’s criterion for MS. Applying those criterion, Dr. Sloka logically and correctly concluded that MS could not be established. Dr. Mandalfino came to the same conclusion for the same reason: the absence of the necessary requirement of dissemination in time. Collectively, these facts support the contention that Dr. Sloka honestly believed that he could not yet make an MS diagnosis on July 1 or July 8, 2015, the dates on which he ordered tests and conducted examinations to explore the possibility of MS mimics.

[3860] Instead of looking at the big picture, the Crown places undue emphasis on the minutiae like the blood test results. The Crown erroneously submits that Dr. Sloka only submitted a requisition for “an ANA screen, but nothing else.” In fact, blood test results show a hypercoagulable screen, a Lyme screen, a syphilis screen, and an ANA (lupus) screen. These tests occurred even though they are not explicitly documented in the requisition. In addition, the requisition documents a request for an RNA screen (another a lupus test) and a Hep C screen, the results of which are not documented in Ms. K.S.-B.’s medical file. The requisition also explicitly states, “R/O mimics of MS” – an express declaration of Dr. Sloka’s intent to investigate mimics of MS. A review of these two documents makes two things abundantly clear: the requisition does not document all the tests Dr. Sloka ordered; and the tests ordered were done for the express purpose of ruling out mimics of MS. Dr. Sloka was puzzled that Ms. K.S.-B.’s file did not contain more test results. Looking at the records currently available, I can understand his puzzlement. The defence posits an explanation for the incompleteness of Dr. Sloka’s file: some results may be accessible from the GRH database. I don’t think it is necessary to go down that speculative road. It is obvious Dr. Sloka ordered more tests than his requisition documents. The same holds true for Ms. J.C.’s file. The evidence is incapable of establishing that Dr. Sloka failed to order a complete array of blood tests aimed at ruling out mimics for MS. Instead, the evidence merely establishes that the requisition records are incomplete.

[3861] The Crown places heavy emphasis on Dr. Sloka’s concession that he may not have conducted a complete skin examination to argue that he was not truly interested in looking for mimics. I think the Crown overplays its hand here for several reasons. First, Dr. Sloka maintained throughout that he did not recall Ms. K.S.-B.’s skin examination at all. He was not able to indicate whether he conducted a full or partial skin examination. He simply allowed for the possibility that Ms. K.S.-B.’s words and symptoms might have narrowed his focus. That is all. Second, as will be discussed soon, I am not at all satisfied that Ms. K.S.-B.’s evidence established that Dr. Sloka completed only a partial skin examination, nor am I satisfied that she reliably recounted all her discussions with Dr. Sloka. The Crown’s comparison of Dr. Sloka’s approach to Ms. K.S.-B. with his approach to Ms. M.O. seems like a bootless errand without a reliable set of contextual facts.

[3862] Based upon Dr. Sloka’s concession that he may only have conducted a partial skin examination, the Crown asks that I conclude he did not have a standard practice of performing skin examinations in cases where MS was suspected. Accordingly, they ask that I disregard his reliance about his standard methodologies. Here, I think the Crown oversimplifies Dr. Sloka’s evidence. Dr. Sloka allowed for the possibility that the specific circumstances of a given case, including the patient’s input and presentation, might narrow his focus during a skin examination. However, he maintained a consistent position about draping. And he maintained a consistent position about the motive behind a skin examination in patients where MS was suspected. His position was supported by the evidence of Ms. K.S.-B., Ms. J.C., and Ms. M.O., who all testified that Dr. Sloka conducted skin examinations when MS was suspected. I want to say one final thing on the topic of Dr. Sloka’s methodology. Ms. K.S.-B. alleged that Dr. Sloka lifted her arms and examined her armpits and down her sides. In doing so, she indicated a concern about more than just the sunspots on her chest and neck. This allegation suggests, at the very least, a concern about the entirety of the torso. It thereby suggests that Dr. Sloka may have performed a more comprehensive skin examination than Ms. K.S.-B. was able to remember.

[3863] The Crown also contends that Dr. Sloka provided insincere testimony regrading the method of his neurological examination. Ms. K.S.-B. testified that Dr. Sloka used a sharp metal object to test for sensation. Dr. Sloka denied this. The Crown argued that Dr. Sloka provided inconsistent evidence about his methods for testing sensation, arguing that his claim of using metal to test for temperature sensitivity flies in the face of his claim that he used his fingers to test for sensation. This submission is misplaced, because the Crown misunderstood Dr. Sloka’s evidence and overstated Ms. K.S.-B.’s evidence. Dr. Sloka testified that he used both a cold metal object and his fingers to test for sensation. He employed both methods because two different sets of nerves were involved. He used his fingers to assess the nerves responsible for sensing pain. He used the metal object to assess the nerves responsible for sensing temperature. As for Ms. K.S.-B., during cross-examination, she backed away from her assertion that Dr. Sloka used a sharp object. Defence counsel suggested to her that Dr. Sloka used a cold blunt metal object to assess her ability to sense cold. She agreed to this possibility and agreed that her memory could be mistaken.

[3864] I would like to turn now to the evidence of Ms. K.S.-B. Given Dr. Sloka’s concession that he may have performed a skin examination to search for evidence of MS mimics, I am prepared to accept that Dr. Sloka conducted a skin examination. However, in my view, Ms. K.S.-B. provided unreliable evidence about important factual issues at the centre of her allegations. Due to her unreliability, I am unable to accept as accurate her account of the details of her skin examination. As a result, I am unable to conclude whether Dr. Sloka performed a full skin examination or a partial one. If he only performed a partial one, I am unable to determine whether there existed a valid reason for that decision. In any case, I am not prepared to conclude from Ms. K.S.-B.’s evidence that Dr. Sloka sexualized any skin examination.

[3865] I begin with Ms. K.S.-B.’s evidence about her draping. Simply put, I reject it. She alleged that Dr. Sloka provided her with a disposable paper drape, different from the paper rolls used to cover the examination table. Overwhelmingly, the evidence establishes that Dr. Sloka’s was not equipped with the draping she describes. The GRH equipped Dr. Sloka’s office with standard cloth gowns. Those gowns are depicted in photographs in Exhibit 2. Ms. K.S.-B. did not recognize the standard-issue gowns depicted in the photographs. In my view, her memory of her draping is obviously incorrect. This is an important error. The manner of her draping goes to the core of her story. How does one stand and wear a sheet? One does not. One gets up and leaves the sheet behind. Where? Ms. K.S.-B. did not remember. I conclude that she did not remember because she was not draped with a sheet. She was draped with a gown, like all of Dr. Sloka’s patients. As a result, I conclude that Ms. K.S.-B. was simply wrong about standing naked at the commencement of her skin examination. It is a short hop from that misapprehension to being wrong about the way her gown was moved to facilitate the skin examination. Given Ms. K.S.-B. evidence about the disposable paper draping, I have no faith in Ms. K.S.-B.’s claims about her attire for the examination, including her claim that she wore underwear throughout.

[3866] Before I move on, I think it important to discuss the potential that media exposure tainted Ms. K.S.-B.’s evidence, particularly as it pertains to the way Dr. Sloka conducted the skin examination. As noted, Ms. K.S.-B.’s husband told her that Dr. Sloka was under investigation for sexual misconduct. She read about allegations in the news and on the CPSO website. She read allegations about Dr. Sloka asking patients to undress completely. She read allegations about inappropriate or inadequate draping. She read an allegation about Dr. Sloka moving a drape or gown to expose a patient’s breast. Ms. K.S.-B. agreed that these allegations caught her attention. She felt they were like her own experience. Until she read these allegations, she had no concerns about her own examination. Her perspective changed entirely after reading the allegations. In my view, there is a serious risk that Ms. K.S.-B.’s memory and perceptions have been impacted by her exposure to the accounts of other patients in the news and on the CPSO website. This tainting further undermines the reliability of Ms. K.S.-B.’s description of Dr. Sloka’s methodology during the skin examination.

[3867] I want to now address Ms. K.S.-B.’s evidence of contact during the skin examination. The only contact of any concern is the contact she said Dr. Sloka made with her breast. On her evidence, the contact was incidental. She was not even sure whether Dr. Sloka was aware of the contact. Given my concerns about Ms. K.S.-B.’s reliability and given her belief that any breast contact was incidental and apparently unintentional, I am not prepared to conclude that the way Dr. Sloka conducted the skin examination rendered any contact with her sexual contact.

[3868] Ms. K.S.-B. also gave unreliable evidence regarding the neurological examination. She initially testified that Dr. Sloka used a sharp object, like a pin, to test sensation. She ultimately agreed she could be mistaken about this. It is important to remember here that Ms. K.S.-B. was also examined by two other neurologists during her time in Dr. Sloka’s care, Dr. Cooper and Dr. Mandalfino. It is quite conceivable that she could be confusing components of their examinations with Dr. Sloka’s. The same may hold true for the foot strength test and finger strength test Ms. K.S.-B. described, neither of which Dr. Sloka employed in his standard neurological examination. Also problematic is Ms. K.S.-B.’s claim that she laid down for the entire neurological examination. Dr. Sloka consistently testified that some portions of his standard neurological examination required the patient to sit upright. There was a clear logic behind his method. I find it highly unlikely that she would lay down for the duration, as she described. I find it concerning that she would insist that she never sat up for any portion of the neurological examination while at the same time conceding she did not remember all of it.

[3869] Ms. K.S.-B.’s evidence regarding the circumstances leading up to her second appointment was also clearly wrong. She believed that her earlier symptoms had subsided by the second appointment, because the steroids prescribed at the first appointment had begun to work. In reality, she brought forward her second appointment because she had reported new symptoms which had concerned her at the time. Rather than attend her second appointment a full month after her first appointment, after all her tests were completed, she booked her second appointment a mere seven days after her first. Ms. K.S.-B. ultimately conceded her erroneous memory.

[3870] However, Ms. K.S.-B. did not concede any error in her recollection of her steroid prescriptions. She believed she received a single tapering prescription at her first appointment. Dr. Sloka’s records showed that he gave her a large four-day prescription at her first appointment and a tapering dose at her second appointment. Initially, Ms. K.S.-B. was not moved. Ultimately, while maintaining her own belief, she conceded the possibility that Dr. Sloka’s records were correct.

[3871] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any patient in this case. However, having considered Dr. Sloka’s compelling evidence against the entirety of the evidence in Ms. K.S.-B.’s case, I am satisfied that he has refuted any possible inference of a sexual motive.

[3872] The Crown also relies two discrete cross-count micro-similarities to support Ms. K.S.-B.’s evidence on other material issues: (1) that she belongs to a constituency of patients who received a skin examination and (2) that Dr. Sloka failed to inform her about the examinations he intended to perform.

[3873] Regarding the first cross-count subcategory, this similarity does not provide meaningful probative value on any other material issue. Dr. Sloka conceded the likelihood of a skin examination. It was not a material issue. Further, his concession of a skin examination was not probative of his methodology. Apart from the issue of motive, this cross-count similarity lacks sufficient probative value.

[3874] Regarding the second cross-count subcategory, I am not satisfied that Ms. K.S.-B. belongs in it. While she initially testified that Dr. Sloka did not identify the examinations he intended to perform, her evidence evolved in cross-examination. She testified in cross-examination that the identification of examinations while in the office would not be memorable. She added that, in her experience, doctors generally explain things as they go – as the examinations are progressing. She was clearly projecting her collective experience upon an incomplete memory of her interaction with Dr. Sloka. Later in cross-examination, she conceded that it was possible Dr. Sloka discussed the skin examination and its rationale while still in the office – it was possible, but she did not remember. Accordingly, I am not satisfied that Ms. K.S.-B. belongs in this cross-count subcategory.

[3875] I now wish to discuss Dr. Bril’s evidence.

[3876] Having concluded that Dr. Sloka subjectively believed in the necessity to explore the potential of MS mimics, Dr. Bril’s evidence assumes lesser importance. Nevertheless, it should be addressed.

[3877] The defence argues that Dr. Bril displayed bias in her opinion on Ms. K.S.-B.’s case. Their submission has merit.

[3878] Dr. Bril was quite adamant throughout her testimony that Ms. K.S.-B.’s diagnosis was clear the moment she stepped into Dr. Sloka’s office at her first visit. In doing so, she overstated her case and failed to remain true to her own evidence about the criteria for an MS diagnosis. Dr. Bril testified that the McDonald’s criteria for MS required both dissemination in time and space. There was no evidence of dissemination in time at either Ms. K.S.-B.’s first or second appointments. By Dr. Bril’s own metrics, a definitive MS diagnosis was impossible at that juncture, even if MS was the most likely explanation for the images seen in Ms. K.S.-B.’s MRIs. Using Dr. Bril’s own metrics, Dr. Mandalfino and Dr. Sloka got it right. So, I am forced to ask, why would she so obviously overstate her case here? Is it the corrupting effect of hindsight? Or has she assumed the role of advocate? I think both explanations may be true. Dr. Bril’s strong position here most certainly infected her views about the appropriateness of considering the possibility of MS mimics.

[3879] Dr. Bril’s evidence about reasonableness of exploring MS mimics raises concerns about her loyalty to her own diagnostic criteria, about her partiality, and about the logic of her evidence regarding the differential diagnosis. Dr. Bril clearly did not think the consideration of mimics to be worthwhile. She considered the possibility of mimics all but ruled out. She professed certainty that other diagnostic tests would inevitably show negative results in a case like Ms. K.S.-B.’s. And, yet she conceded that other conditions existed on the differential diagnosis in Ms. K.S.-B.’s case. How, though? Dr. Bril clearly did not think Lupus or Sjogren’s would result in an MRI like Ms. K.S.-B.’s. To her, these conditions were not a possible explanation of Ms. K.S.-B.’s MRI results. If not, then it logically follows that they ought not to be on the differential diagnosis in Ms. K.S.-B.’s case. Dr. Bril never satisfactorily resolved this paradox. She did not, for example, testify that – in the abstract – lesions in brain and spinal MRIs can have many possible explanations, but these lesions were of such a character that only one explanation existed. No. She testified that in Ms. K.S.-B.’s case several conditions existed on the differential diagnosis. Her contention that lupus both was both included and excluded on the differential diagnosis therefore appeared illogical. I pause here to note that the radiologist who performed Ms. K.S.-B.’s MRI did not declare a foregone conclusion. Instead, the radiologist indicated, “The possibility of multiple sclerosis should be kept in mind.” Implicitly, at least, the radiologist suggested other possibilities ought to be considered. Of all the doctors who looked at Ms. K.S.-B.’s MRI, only Dr. Bril went so far as to suggest MS was the only worthwhile consideration. Moreover, based upon Dr. Bril’s own metrics, dissemination in time had not been established and a diagnosis of MS was premature. In my view, that premature conclusion inevitably tainted Dr. Bril’s opinion about the reasonableness of investigating the possibility of MS mimics. Troublingly, a second qualified neurologist, one who reportedly specialized in MS, ordered tests to rule out mimics that Dr. Bril had already all but ruled out. By her conduct, Dr. Mandalfino agreed with Dr. Sloka’s overall approach, even if she herself did not report or do a skin examination. She agreed an MS diagnosis was premature. She agreed that an investigation into possible mimics was warranted. She ordered tests to investigate those mimics. Just like Dr. Sloka, Dr. Mandalfino did not arrive at an MS diagnosis until the completion of the tests and MRIs that she ordered. Again, Dr. Mandalfino is not a witness. But she counts as the second qualified neurologist who took the same approach to the same MRIs and same medical history for the same patient. Even if the were both wrong, their consensus suggests neither were unreasonable in their approach. Unbowed, Dr. Bril presumed to know what both Dr. Sloka and Dr. Mandalfino were actually thinking about the possibility of mimics: “yes, but not really yes.” Here she showed partiality and a willingness to act as an advocate in her own cause. I am left with little choice but to effectively disregard her opinion on this issue. Having regard to the frailties in Dr. Bril’s evidence, I am not prepared to place reliance on her contention that the investigation of MS mimics was unwarranted.

[3880] Also, for the reasons discussed in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on Dr. Bril’s categorical assertions about the propriety of neurologists conducting skin examinations. As a whole, I afford Dr. Bril’s evidence little weight.

[3881] Dr. Sloka testified that by July 8, 2015, he was unable to definitively diagnose Ms. K.S.-B. with MS. She did not meet both McDonald’s criteria. Her MRI and symptoms were consistent with transverse myelitis. A diagnosis of transverse myelitis meant a diagnosis of MS was likely. However, he wanted to rule out mimics. This approach was faithful to Dr. Bril’s evidence regarding the diagnostic criteria for MS. In addition, Dr. Sloka’s understanding about the differential diagnosis for MS was consistent Dr. Bril’s evidence regarding the differential diagnosis for patients with MRIs like Ms. K.S.-B.’s. He took the same approach as another community-based neurologist and investigated the plausibility of conditions on the differential diagnosis. I am therefore satisfied that Dr. Sloka genuinely believed it appropriate to investigate those possibilities.

[3882] Dr. Sloka testified that he placed reliance upon his training and medical literature, which he understood to indicate that a skin examination can be considered in circumstances like Ms. K.S.-B.’s. Dr. Sloka’s contentions about the medical literature went unchallenged. I accept that Dr. Sloka honestly believed that the medical literature supported his decision to conduct a skin examination to investigate the possibility that Ms. K.S.-B.’s MRI results and symptoms might be explained by mimics of MS. All the Crown’s challenges to Dr. Sloka’s credibility were unpersuasive and at times based upon misapprehensions of the evidence.

[3883] In all the circumstances, I am satisfied that Dr. Sloka’s skin examination was sincerely motivated by a desire to look for evidence of mimics of MS. I am not satisfied that Dr. Sloka sexualized an otherwise properly motivated skin examination. Further, I am not satisfied that any skin examination was conducted in a manner that deviated from the methods Dr. Sloka learned in his training. On the evidence presented, I conclude that the examination conducted was a medical examination, not sexual conduct. Ms. K.S.-B. consented to that medical examination.

[3884] The Crown does not argue that the cardiac examination constituted a sexual assault. I nevertheless feel obliged to address Dr. Bril’s evidence about its reasonableness and Dr. Sloka’s response. Dr. Bril did not think a stroke could explain the MRI results. Dr. Sloka testified that medical literature indicated that the possibility of stroke could be considered as an explanation for lesions seen on MRIs like Ms. K.S.-B.’s MRI. The Crown called no evidence to establish that his understanding of the medical literature was wrong. Dr. Sloka felt confident that his training and experience enabled him to competently auscultate Ms. K.S.-B.’s heart for the purpose of identifying structural irregularities that might give rise to a risk of stroke. He believed the medical literature supported his approach. I have no reason to disbelieve him. As discussed in my general assessment of her evidence, Dr. Bril’s testimony about cardiac examinations was deeply flawed and I place little to no weight upon it. Given the bias she displayed in Ms. K.S.-B.’s case, given that her opinion was provided without a review of the actual MRI imaging, and given the Crown’s lack of reliance on her opinion, I also place no weight on Dr. Bril’s opinion that strokes could not explain Ms. K.S.-B.’s MRI results. Ms. K.S.-B. had no concern about any cardiac examination. It is obvious that she consented to one. In my view, the cardiac examination was a medical procedure to which she consented, not sexual activity. It did not constitute a sexual assault.

[3885] Dr. Sloka will be acquitted on this count.

E. Fasciculations

i. K.K. (Count 27)

A Summary of Ms. K.K.’s Complaint and Dr. Sloka’s response to It

[3886] Ms. K.K. alleged that Dr. Sloka entered her examination room and commenced an examination without first conducting a consultation in his office. She alleged he told her to open her gown. He palpated lymph nodes in her neck. He then began to massage and cup her breasts as she sat on the examination table. He also touched her abdomen and asked her to bend over and touch her toes.

[3887] Dr. Sloka denied palpating Ms. K.K.’s neck, massaging, and groping her breasts, touching her abdomen, and asking her to bend over. He maintained that he conducted an orderly appointment, which began with an initial consultation in his office, where Ms. K.K. described her symptoms and provided her relevant history. He then proposed and conducted neurological, cardiac, and fasciculation examinations, and probably a respiratory examination. The examinations occurred in the examination room after the initial consultation in his office. Any contact with Ms. K.K.’s breast was unintentional and incidental to a cardiac examination.

The Circumstances of Ms. K.K.’s Referral and Treatment History

[3888] Ms. K.K. was 43 years old at the time of her referral. She was 53 when she testified.

[3889] Concerns about her reliability begin with her evidence regarding the circumstances of her referral.

[3890] In her testimony in-chief, Ms. K.K. testified that she began seeing Dr. Sloka because she had contracted a virus, chikungunya, while on a trip to Jamaica.

[3891] In cross-examination, Ms. K.K. elaborated on the illness that led to her referral to Dr. Sloka. She continued to maintain that her medical issues began when she contracted chikungunya on a trip to Jamaica that occurred before she ever met with Dr. Sloka. She believed that the trip to Jamaica occurred in the latter half of 2011, several months before she saw Dr. Sloka. According to Ms. K.K., she initially went to the ER when she came down with symptoms of the virus. They diagnosed her with the virus. She then went to see her family doctor when her symptoms persisted. Her family doctor then sent her to a rheumatologist, who, according to Ms. K.K., confirmed the chikungunya diagnosis. She testified that although the virus subsided, her body’s autoimmune reaction to the virus caused prolonged physical ailments. Accordingly, her doctor ultimately made a referral to Dr. Sloka.

[3892] Defense counsel presented Ms. K.K. with a report from the Centre of Disease Control which indicated that the Chikungunya virus did not reach the Americas until late 2013. Despite the content of the CDC article, Ms. K.K. was initially adamant that there was a well-known outbreak of the virus in 2011 and that her ER doctor quickly diagnosed her with the ailment. However, there was a point during the cross-examination, immediately following defence counsel’s reference to the CDC report where Ms. K.K. voiced uncertainty as to whether she contracted the virus before or after seeing Dr. Sloka. This uncertainty appeared short lived though, as she later was adamant that she remembered getting a mosquito bite and the mosquito bite turning black soon before her trip to the ER, where an ER doctor diagnosed her with the virus. She maintained that her subsequent visits to her family doctor and her rheumatologist all pertained to her infection with the chikungunya virus.

[3893] Aside from the fact that that the CDC claims that the virus had not been seen in the Americas until late 2013, Dr. Sloka’s medical chart for Ms. K.K. raises concern about the reliability of her narrative. While her chart does not include her ER reports, her family doctor’s charts, or the rheumatologist’s records, it does contain the referral by her family doctor and Dr. Sloka’s documentation of the history she provided him at her first appointment.

[3894] The referral by her family doctor mentions nothing about the virus. Instead, in the reasons for referral, Dr. Lang indicated, “2 week history of progressive muscle weakness was exercising regularly prior to that, now patient can hardly lift a light dumbbell… rule out neurodegenerative disease… rule out M.S.” Ms. K.K. agreed that she was experiencing those symptoms at the time of the referral. She also acknowledged that the referral makes no mention of chikungunya.

[3895] Similarly, as will be discussed in more detail later, Dr. Sloka’s contemporaneously written consultation letter mentions nothing about Chikungunya. Instead, it documents a referral regarding the investigation of neurodegenerative disorders, possibly MS.

[3896] Ultimately, medical records from the Tropical Medicine Unit of the University Health Network were obtained through a production order after Ms. K.K.’s testimony. They confirmed that Ms. K.K. tested positive for the virus in June of 2017, about six years after she claimed to have contracted it. In the consultation letter from the UHN, Ms. Kenney purportedly told the tropical disease specialist that her fateful trip to Jamaica occurred in September of 2014 and that she had subsequently tested negative for Chikungunya in 2014, more than two years after her appointment with Dr. Sloka.

[3897] Indisputably, the UHN medical records in combination with the referral and other records in Dr. Sloka’s chart establish that Ms. K.K. had not contracted Chikungunya in 2011 while on a trip to Jamaica, she had not been diagnosed with Chikungunya in 2011, and her family doctor did not refer her to Dr. Sloka for the purpose of addressing the effects of a disease which she had yet to contract.

[3898] On the contrary, the referral from Ms. K.K.’s family doctor indicates as the reason for the referral: two weeks of progressive muscle weakness, mild hand tremor, and decreased muscle mass. The family doctor sought Dr. Sloka’s opinion on whether Ms. K.K. suffered from a neurodegenerative disorder, possibly MS. The referral was dated November 28, 2011. It was marked “urgent.”

[3899] Her family doctor booked an MRI for Ms. K.K. on December 5, 2011. Ms. K.K.’s first appointment with Dr. Sloka was booked for January 13, 2012.

[3900] Ms. K.K. testified that she met Dr. Sloka on January 13, 2012. However, in her statement to the police, she indicated that the appointment occurred in the summertime. In-chief, she explained this erroneous recollection. She testified that it was sunny outside and warmer than usual on the date of her appointment. In cross-examination, she added that she recalled wearing only a light blazer for the appointment, not a winter coat. She purported to have a visual memory of walking to and from the building in her light blazer and feeling the sensations of the mild temperature and sunshine. This vivid account was flatly contradicted by Environment Canada weather records, tendered on consent, which demonstrated that the temperature was minus 4.2 degrees Celsius (minus 12 degrees with the windchill factor taken into account). Confronted with this weather report, Ms. K.K. maintained that the reported temperature constituted a mild day and maintained that she would walk around in only a blazer in such temperatures. I reject this evidence. It defies belief that she would describe something akin to the seasonal average as being a mild day. It defies belief that such temperatures would prompt her to recall the appointment as occurring in the summertime.

[3901] Ms. K.K.’s evidence regarding the circumstances of her appointment severely damaged her credibility and reliability from the get-go.

The Evidence of Ms. K.K.

[3902] Ms. K.K. only attended one appointment with Dr. Sloka, the appointment on January 13, 2012. She alleges that the sexual assault occurred on that date.

[3903] According to Ms. K.K.’s account, she went right from the reception area to Dr. Sloka’s examination room.

[3904] As noted, Dr. Sloka’s contemporaneously written consultation report mentions nothing about chikungunya or its relationship to her physical ailments. Ms. K.K. agreed that she said nothing to Dr. Sloka about having contracted the virus. She explained that, despite her belief that the virus was responsible for all her symptoms, it did not occur to her to mention anything about the virus. She elaborated by testifying that she had been told that the virus had long ago left her system but that the symptoms caused by the virus were persisting.

[3905] Instead of any reference to Chikungunya, Dr. Sloka’s consultation letter contains a lengthy medical history that chronicles Ms. K.K.’s symptom progression from Christmas of 2010 and through the entirety of 2011. According to the report, her headaches began in Christmas of 2010 and lasted three months. They resumed in the summer of 2011. She also reported joint pains for the entire year. In other words, she reported symptoms that began and persisted well before the latter half of 2011, when the supposed trip to Jamaica and resulting viral infection allegedly occurred. Ms. K.K. also reported muscle atrophy in the two months leading up to her visit with Dr. Sloka. The report also contains a detailed description of her personal circumstances which understandably might have been the cause of considerable stress at the time. Ms. K.K. did not dispute that she provided the detailed history contained in Dr. Sloka’s consultation report, nor did she dispute its accuracy. Indeed, she agreed that the contents of the first page of the report were accurate. Despite this concession, she denied providing this history in Dr. Sloka’s office before entering the examination room.

[3906] Upon entering the examination room, Dr. Sloka told her to remove her clothing and put on a gown. When she asked about her underwear and bra, he told her to remove those items too. He also told her to wear the gown open to the front. Ms. K.K. testified that Dr. Sloka did not explain the nature of the examination he was about to perform or the reasons for it. In other words, on her account, he abruptly commenced a physical examination without taking the time to obtain the benefit of a medical history from his patient or to build a rapport with his patient. Ms. K.K. testified that she did not feel right about obeying the instructions, but she complied anyway.

[3907] Ms. K.K. testified that Dr. Sloka gave her privacy to change. He then re-entered the room to conduct the examination.

[3908] According to Ms. K.K., when he re-entered the room, he told her to sit on the examination table. He asked her to open her gown. She felt embarrassed but opened the gown part-way. Dr. Sloka then opened the gown fully, so that her naked torso was exposed. He then felt her lymph nodes in her neck with his fingers. Ms. K.K. testified that, after briefly examining her lymph nodes, Dr. Sloka then moved his hands to her breasts. He massaged one breast at a time, using the whole of both hands. This breast touching differed from breast exams she had experienced previously. Her previous doctors only used their fingertips. Nevertheless, Ms. K.K. testified that this breast massaging was brief. While it was occurring, neither she nor Dr. Sloka spoke. Ms. K.K. testified that, all the while, she knew something was wrong.

[3909] According to Ms. K.K., after the breast exam, Dr. Sloka tested her reflexes on her knees. He then checked her joints, by bending and flexing her arms, legs, wrists, and fingers. He also tested her limb strength.

[3910] While she admitted that he performed some elements of a neurological exam, Ms. K.K. denied that he performed others. As noted, she acknowledged that he tested her reflexes. She also acknowledged that he tested sensation on parts of her exposed arms and legs. However, she denied that he shone an ophthalmoscope into her eyes. She denied that he tested cranial nerves on her face. She denied that he tested reflexes in her elbows.

[3911] Ms. K.K. also denied that Dr. Sloka performed a cardiac examination. She denied he used a stethoscope for any portion of the examination.

[3912] Ms. K.K. also denied that Dr. Sloka conducted a fasciculation examination, in which she lay on the examination table, and he sequentially exposed her limbs to search for muscle twitching. She denied laying down on the examination table whatsoever.

[3913] Ms. K.K. testified that Dr. Sloka next asked her to stand up. He again asked her to open her gown. He again opened it further than she did herself. He then felt her stomach and hips with his fingers. He then asked her to bend and touch her toes. He also asked her to stretch her neck. Afterwards, he told her the examination was over and told her to get dressed and meet him in the adjoining office.

[3914] To sum up, Ms. K.K. alleged Dr. Sloka exposed her chest, then felt lymph nodes in her neck, then fondled her breasts, then touched her abdomen and hips, then did a fraction of his standard neurological examination, then checked her joints, and then had her bend over and touch her toes.

[3915] It is important here to recall Ms. K.K.’s insistence that Dr. Sloka was assessing and treating her for Chikungunya. And it is worth noting here that Dr. Sloka denied conducting an examination of her lymph nodes, abdomen, and joints. While Dr. Sloka denied conducting these examinations, Ms. K.K.’s UHN records indicate that her infectious disease doctor conducted a head and neck examination, an abdominal examination, and an examination of her joints. The UHN records indicate that a lymphadenopathy was discovered during the head and neck examination. These records and Ms. K.K.’s evidence give rise to a significant likelihood that Ms. K.K. has conflated the contents of her treatments by different doctors.

[3916] Moving on, Ms. K.K. testified that she joined Dr. Sloka in his office following the examination. At points, the tenor of her evidence suggests that she did not provide her detailed medical history to Dr. Sloka in the office after the physical examination. For example, she testified at one point that she was in a blur and largely unresponsive, because she was so upset. However, she also testified that Dr. Sloka could see that she was upset and then asked her if she was having trouble at home. She did not recount this purported inquiry in her police statement. This was a new memory. When asked about this new memory in cross-examination, she recalled Dr. Sloka asking her questions and her providing answers, but she could not recall either the content of the questions or the content of her answers. On Ms. K.K.’s evidence, she felt quite violated and could not focus on the discussion. Everything was a blur. She was in a hurry to leave. She could recall that Dr. Sloka spoke of making further appointments and further treatment plans, but she testified that she knew she was never coming back to see him. Nevertheless, she offered the blanket assertion that any of the admittedly correct information contained in the history portion of Dr. Sloka’s consultation letter must have been provided by her during the post-examination discussion in Dr. Sloka’s office. This blanket assertion stands in contrast to her police statement. She told the police that all she could remember was sitting down, looking at results of MRI, and not paying attention because she was upset.

[3917] Despite Ms. K.K.’s assertion that she wanted to leave immediately, and despite her assertion that she knew she was never coming back to see Dr. Sloka, Ms. K.K. testified that she went across the hall to the reception area and procured an appointment card for a follow-up appointment. Her actions in that moment did not match her professed state of mind.

[3918] Ultimately, she did not attend that follow up appointment, nor did she attend any further testing organized by Dr. Sloka.

[3919] Ms. K.K. testified that she was upset after leaving Dr. Sloka’s clinic. Once in her car, she phoned her cousin, C.B., with whom she was very close. According to Ms. K.K., she went on to tell her cousin that Dr. Sloka had touched her breasts during the appointment, in a way that differed from a normal breast examination. She also asked her cousin if she knew anything about what neurologists actually do. Ms. K.K. further testified that Ms. C.B. invited her over to Ms. C.B.’s house. When Ms. K.K. went to Ms. C.B.’s house, they spoke further of the incident. Although she spoke with her cousin about the appointment, she took no further action in response to the examination until seeing media coverage of allegations against Dr. Sloka in 2019.

[3920] Around April 30, 2019, Ms. K.K. saw news coverage of Dr. Sloka on the television. After she saw the newscast, her mother also shared an article with her. The article featured allegations that Dr. Sloka had asked patients to completely undress or were inadequately draped for examinations, that Dr. Sloka touched patients’ breast, and that Dr. Sloka performed examinations without medical justification.

[3921] After seeing the article, Ms. K.K. contacted the CPSO on May 1, 2019. The CPSO told her to call the police.

[3922] Ms. K.K. agreed it was possible she spoke to her cousin, Ms. C.B., after reading news about Dr. Sloka. She agreed it was possible she told Ms. C.B., “Remember the things I told you?” She agreed that her cousin told her, “You have to report this” while the two of them were discussing the media coverage. Her cousin also added, “not just for you but for the other people who have stepped forward before you… validate what they have gone through as well.”

[3923] Ms. C.B. ultimately contacted the police and arranged an interview. Before her police interview, Ms. K.K.’s sister shared, through Facebook, an article about Dr. Sloka with her, which was accompanied by comments from the public. Ms. K.K. read some of those comments.

[3924] Ms. K.K. agreed that seeing the media “validated that that had happened to me after all these years.” Before seeing this media coverage, she had questioned the fact that she had been physically examined and the manner in which the examination occurred. She agreed that her perception of the examinations “was more of a reality to [her] because of what [she] read in the media.”

[3925] She spoke to the police on May 13, 2019.

[3926] By the time of her police interview, she had been exposed to the morning news cast, a news article, and a Facebook message column about Dr. Sloka.

The Evidence of C.B.

[3927] The Crown called Ms. C.B. to support Mr. K.K.’s claim that she had phoned her on the day of Ms. K.K.’s appointment with Dr. Sloka. Ms. C.B. confirmed that a phone call occurred, and that Ms. K.K. did not seem her usual self. Ms. C.B. testified that Ms. K.K. informed her that she had been to a neurologist appointment. Ms. K.K. asked what a neurologist does. She also said that something didn’t feel right because he asked her to remove her clothes and put on a gown. Ms. K.K. also told her that the doctor felt her breasts and that something didn’t seem right for her. According to Ms. C.B., she made a joke about the situation which quickly ended the discussion.

[3928] According to Ms. C.B., Ms. K.K. never came to her home to talk further about Ms. K.K.’s appointment.

[3929] While Ms. C.B. claimed not to have read much if anything in the media about the allegations and while she claimed not to have discussed those allegations with Ms. K.K., she agreed that she told the police that when Ms. K.K. contacted her about the media, Ms. K.K. told her, “Remember that neurologist I told you about…. Well, that was him…. [he had] done the same thing.” The implication of this claim to the police was that Ms. K.K. was referencing the content of the media articles when asserting that she had suffered the same fate as other victims.

[3930] Like Ms. K.K., Ms. C.B. acknowledged that she saw some media coverage about Dr. Sloka. Soon after seeing the media coverage, she and Ms. K.K. spoke about Ms. K.K.’s past involvement with Dr. Sloka. Ms. C.B. could not recall the details of that discussion.

The Evidence of Dr. Bril

[3931] Dr. Bril opined that the alleged breast and abdominal touching was unreasonable and inappropriate. She also opined that it was improper and unreasonable to instruct Ms. K.K. to bend over and touch her toes. This evidence was not contentious. Dr. Sloka denied these allegations and conceded the impropriety of that alleged conduct.

[3932] Dr. Bril agreed that a fasciculation examination of the arms and legs was reasonable and necessary. However, she testified in-chief that it was not reasonable for Dr. Sloka to examine Ms. K.K.’s back for fasciculations. She explained that back fasciculations were not as common, nor easily observable. One needs the muscles to be completely at rest; so, one would require the patient laying on their stomach. She appeared initially to believe that Dr. Sloka was not purporting to have done a back examination: “I know he didn’t do a back examination because you said he didn’t.” This was an apparent confusion between Dr. Sloka’s denial of the alleged bending exercise and the fasciculation examination. In cross-examination, she conceded the possibility of having a patient lay on their stomach to permit an examination of the back for fasciculations but discounted the likelihood of finding any in cases where they were absent on the limbs: “You could but they’re more evident in the arms and legs. That’s why we focus on the arms and legs. And if you don’t see them there, then the chances of seeing them on the back are really remote.”

The Evidence of Dr. Sloka

[3933] Dr. Sloka had no memory of Ms. K.K. He relied on the contents of his consultation letter.

[3934] Dr. Sloka maintained that he met with Ms. K.K. in his office and obtained her medical history and a description of Ms. K.K.’s current symptoms. He recorded the information obtained during that discussion in the history portion of his consultation letter.

[3935] Consistent with the referral from Ms. K.K.’s family doctor, the consultation letter noted that he had been tasked with an assessment of her weakness. Ms. K.K. reported that she began suffering headaches in the previous year. These headaches occurred during a stressful period in her family life which culminated in her moving from home, starting school again, and working full time. She also reported sleep disruption and joint difficulties. In addition, she reported progressive weakness in her legs, a diminished capacity to exercise, tingling in her legs and back, and some rare twitching in her legs. She also reported a loss of muscle mass.

[3936] Dr. Sloka testified that due to the medical history and presenting complaint, he recommended and performed a neurological examination, a cardiac examination, and a fasciculation examination. While he did not specifically record it, he believed he probably would also have performed a respiratory examination, because her presentation indicated one was advisable. Believing he must have performed a respiratory examination, he was uncertain why he had failed to report one. He denied palpating Ms. K.K.’s breasts and abdomen. He maintained that any contact with Ms. K.K.’s breasts would have been incidental (unintentional) contact during a cardiac examination. He denied palpating her neck.

[3937] Dr. Sloka provided medical justifications for the cardiac, respiratory, and fasciculation examinations (his justification for the neurological examination was not in issue).

[3938] To justify the cardiac examination, Dr. Sloka testified that he learned from his training and medical literature that, in some muscle and nerve conditions, the heart muscle may be involved. Also, Ms. K.K. had described a loss of muscle mass and a decreased exercise capacity, which he thought was concerning. Decreased exercise tolerance could be the result of a cardiac condition. For patient safety, he thought a cardiac examination was prudent. Additionally, cardiac examinations form part of his standard approach to the assessment of headache patients. He was not challenged on this justification in cross-examination.

[3939] Dr. Sloka testified that a full respiratory examination was justified on the basis of Ms. K.K.’s decreased exercise tolerance, loss of muscle mass, fasciculations, and decreased energy. He was not seriously challenged on these justifications in cross-examination.

[3940] Regarding the fasciculation examination, Dr. Sloka noted that Ms. K.K. had described rare twitching in her legs. This is a potential description of fasciculations. In the context of loss of muscle mass, decreased exercised tolerance, and overall decreased energy, a search for fasciculations is important. These twitches reveal muscles that are not healthy. They are commonly seen in ALS patients and are also sometimes seen in other neurological conditions where the nerve is damaged. Again, he was not meaningfully challenged on this justification during cross-examination.

[3941] Dr. Sloka testified that, in accordance with his standard practice, he would have told Ms. K.K. to keep her underwear on for the examination. He would also have told Ms. K.K. to wear the gown open to the back. He did not have his patients wear their gowns open to the front.

[3942] The consultation letter noted some abnormal findings in the neurological examination: significant weakness in hip flexion, knee flexion and extension, and leg dorsiflexion bilaterally. He attributed some of this weakness to “give way weakness.”

[3943] He documented a normal cardiac examination.

[3944] He also documented “no fasciculations today.”

[3945] In documenting his impression, he opined that Ms. K.K. had “some tendency for migraine.” He prescribed nortriptyline. He also suggested that her reliance on another headache remedy might be causing rebound headaches.

[3946] To address the joint pain, he ordered bloodwork to rule out rheumatological causes.

[3947] As for her muscle weakness, he noted it was difficult to pinpoint the precise location of the weakness. He noted that the previously ordered MRI of her brain and cervical spine were normal. He decided to order an MRI of her lumbar spine and EMG studies. He planned to see her in follow up once she had completed her tests.

[3948] In closing his consultation letter, he noted the significance of stress in Ms. K.K.’s life. He wanted the family doctor to be aware of this stress “as she may need some extra help for her in this regard.”

[3949] Ms. K.K. never returned for a follow up appointment.

Assessment of the Evidence and Analysis

[3950] Ms. K.K.’s reliability as a witness is catastrophically harmed by her demonstrably false insistence that Chikugunya gave rise to her referral to Dr. Sloka. Her insistence on this point, in the face of a referral letter that categorically contradicted her narrative, severely undercut both her reliability and credibility as a witness.

[3951] Ms. K.K.’s testimony regarding the timing of her appointment also causes concern about both her credibility and reliability. When speaking to the police in 2019, she believed that the appointment occurred five to six years before her police interview – 2013 or 2014. Interestingly, that roughly coincides with what she told the specialist at the UHN about the date of her trip to Jamaica. After a review of her medical records, she agreed that the appointment date was actually January 13, 2012. Her explanation for the mix-up was wholly and utterly unworthy of belief. Despite an extremely spotty memory about many of the details of the appointment, she purportedly had a vivid memory of the warm and sunny weather conditions, and her corresponding decision to wear only a blazer outside. Weather records indicated a seasonal norm of minus four with a windchill of minus twelve. In the face of these records, she held firm. Ms. K.K.’s claim that these conditions constituted unusually warm weather defy belief. She was either being dishonest with herself or dishonest with the court when giving this testimony.

[3952] Ms. K.K.’s insistence that Dr. Sloka did not interview her before conducting examinations also severely undermined her reliability. The consultation letter contained a trove of medical and personal history, all of which would help Dr. Sloka make decisions about the examinations he might recommend. She admitted that she was the source of the information contained in the letter. However, in one breath, she implied that she was a largely absent participant in the post-examination discussion, in a hurry to leave and determined to never come back. In another breath, she posited that the trove of medical and personal history must have been imparted by her in this post-examination interview – after the horse had left the barn; that is, after the examinations had already been performed. Her position was at turns inconsistent and patently illogical. Dr. Sloka testified that appointments invariably began with an in-office consultation in which he elicited a patient’s history and presenting complaint. I accept that evidence. I further note that the Crown never suggested to Dr. Sloka in cross-examination that he skipped this standard portion of his appointment with Ms. K.K. Ms. K.K.’s evidence on this point is one of several examples of her unreliability, and I reject it.

[3953] Another concern arises from the subject of the pre-examination consultation. At the time of her police interview, she had yet to review her medical chart. She did not know about the detailed history recorded in the consultation report. She advised police that the appointment began with the examination. As for the post-examination discussion, she told the police that all she could remember was sitting down and looking at results of MRI; she was not paying attention because she was upset. She did not tell the police that Dr. Sloka noticed she was upset and asked if she had any stress at home. This purported memory was advanced for the first time at trial, after Ms. K.K. had reviewed Dr. Sloka’s consultation report in preparation for trial. I infer that Ms. K.K. gave this evidence to explain the trove of information contained in the history portion of the consultation letter. Her memory is either false or contrived. Neither conclusion is comforting.

[3954] As can be seen from the points just reviewed, Ms. K.K.’s memory regarding her visit with Dr. Sloka was far from perfect. A noted already, she also conceded a very poor memory about the contents of her post examination discussion with Dr. Sloka. Despite these obvious frailties in her memory, Ms. K.K. adamantly insisted that Dr. Sloka did not conduct some portions of his standard neurological examination, even though she agreed that he conducted other portions of it. I consider it highly implausible that Dr. Sloka might perform some but not all his standard examination, particularly in light of the fact he made a contemporaneous record of conducting the whole examination and particularly in light of the fact that he noted some irregularities. I also consider it highly implausible that Dr. Sloka did not do a fasciculation examination but nevertheless recorded the results of one in his consultation letter. Any acknowledgement by Ms. K.K. that the examination progressed from a neurological examination to a respiratory examination, to a cardiac examination, and then to a fasciculation examination would, undeniably, diminish Ms. K.K.’s claim of a sexualized examination, and would require Ms. K.K. to acknowledge an imperfect memory in the process. I infer that Ms. K.K. simply did not want to admit any facts that might undermine the beliefs she had formed about the nature of her experience with Dr. Sloka. At the very least, this made her an unreliable witness.

[3955] Ms. K.K.’s claim that she knew, while sitting in Dr. Sloka’s office, that she did not want to come back is undercut by her evidence that she walked across the hall to obtain an appointment card from Dr. Sloka’s secretary. If she knew sitting in Dr. Sloka’s office that she was never going to come back, there was no need to go back to reception to obtain an appointment card. This contradiction causes me to have serious doubts about her purported state of mind.

[3956] The evidence raises a very real plausibility that Ms. K.K.’s perceptions and memory have been tainted by media exposure. By the time of her police interview, she had been exposed to the morning news cast, a news article, and a Facebook message column about Dr. Sloka. Ms. K.K. agreed that seeing the media “validated that that had happened to me after all thee years.” Before consuming this media, she had questioned whether she had been physically examined and the way in which any examination occurred. She agreed that her perception of the examinations “was more of a reality to [her] because of what [she] read in the media.”

[3957] Ms. C.B.’s evidence was offered to rebut the possibility that Ms. K.K.’s perceptions and memory had been tainted by media exposure. I do not accept the Crown’s contention that Ms. C.B.’s evidence succeeds in rebutting the very real likelihood of tainting.

[3958] I note that on Ms. C.B.’s account, Ms. K.K. did not specify a request to get completely naked, did not specify a direction to wear the gown open to the front, did not specify a lymph node examination, did not specify a breast groping or breast examination, did not specify and abdominal examination, and did not specify a direction to bend and touch the toes. Ms. C.B.’s account of Ms. K.K.’s disclosure was more generalized. She recounted Ms. K.K. telling her that Dr. Sloka told her to remove her clothes and put on a gown, and that Dr. Sloka “touched” her breasts. The nature of the touching was not recounted. Assuming that report was made, that report is consistent with the incidental touching Dr. Sloka concedes may have occurred during a cardiac examination. Whatever the specifics of that conversation, Ms. C.B. purportedly made a joke which ended the conversation. According to Ms. C.B., the phone conversation ended with the two of them laughing and then moving onto other topics. I conclude that Ms. C.B. did not interpret Ms. K.K.’s disclosure in that moment to be a complaint about an overt groping.

[3959] Ms. C.B.’s account of Ms. K.K.’s disclosure also differs from Ms. K.K.’s account.

[3960] Ms. K.K. alleged that she specifically mentioned being directed to wear the gown opened to the front. This feature is absent from Ms. C.B.’s account. Ms. K.K. reported telling Ms. C.B. that the breast touching was different from normal breast examination. Ms. C.B. does not recount a disclosure of a breast examination.

[3961] Ms. K.K. alleged that at the conclusion of her phone conversation with Ms. C.B., Ms. C.B. told her to come over to her house to talk more about the appointment. Ms. C.B. denied that Ms. K.K. ever came over to the house.

[3962] I am also concerned that Ms. C.B.’s recollection of her conversation with Ms. K.K. may be tainted by more recent discussions with Ms. K.K. and by exposure to media coverage of the allegations against Dr. Sloka. In short, I am concerned that the anti-tainting witness may herself be tainted. Both Ms. C.B. and Ms. K.K. acknowledged reading media coverage about Dr. Sloka. They acknowledge speaking to each other about that media coverage and about their memories about Ms. K.K.’s past involvement with Dr. Sloka. Ms. K.K. appears to have invited Ms. C.B. to remember Ms. K.K.’s contemporaneous discussion of the appointment with Dr. Sloka. Ms. K.K. could not recall the contents of those discussions. That concerns me. For one, she could not recall the contents of a more recent discussion but purported to recall the contents of a discussion ten years previously, one which Ms. C.B. purportedly laughed off. Secondly, without knowing the contents of the more recent discussion, it is difficult to know the suggestive impact of any information imparted by Ms. K.K. to Ms. C.B. Furthermore, Ms. C.B.’s exposure to media coverage before rehashing the past with Ms. K.K. raises a realistic prospect of the tainting of her own perceptions and memory.

[3963] I am not satisfied that Ms. C.B.’s evidence can rebut the very real plausibility of tainting.

[3964] I have allowed the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this case. That evidence has the potential to incidentally support Ms. K.K.’s evidence. However, having considered Dr. Sloka’s evidence against the flawed prosecution evidence, I conclude that Dr. Sloka has refuted any possible inference of a sexual purpose. I will delve more deeply into an assessment of Dr. Sloka’s evidence momentarily.

[3965] The Crown also relies upon more granular cross-count similarities to support the evidence of Ms. K.K. on other material issues. First, the Crown contends that Ms. K.K. belongs to a constituency of patients who allege that they wore their gowns opened to the front. Second, they contend that Ms. K.K. belongs to a constituency of patients who allege that Dr. Sloka cupped their breasts. Third, the Crown argues that Ms. K.K. belongs to a constituency of patients who allege that Dr. Sloka failed to explain the nature of the examinations he intended to perform. I will deal with each cross-count similarity in turn.

[3966] I will deal first with the cross-count similarity to other patients who claimed they wore their gown open to the front. In my view, as discussed above, there exists the very real possibility that Ms. K.K. has conflated aspects of her neurological consultation with aspects of her tropical disease consultation. Also, Ms. K.K.’s memory is so unreliable that the assistance of cross-count similarity is virtually futile. I also note that complainants who allege that they wore their gowns open to the front constitute a minority of the patients in this case. The more prevalent pattern was the pattern consistent with Dr. Sloka’s purported standard practice. There are only two possibilities with a gown of this type: open to the front or open to the back. Random guesses amongst patients in a large sample size – 48, for example – should show something approaching a 50/50 split. Instead, a small minority testified that they wore the gown open to the front. I attribute any cross-count similarity to coincidental error, not to a situation specific propensity. In my view, the evidence establishes that Dr. Sloka had a propensity to instruct patients to wear their gowns open to the back, which is the opposite of what Ms. K.K. alleged.

[3967] As for the cross-count similarity of breast cupping, I agree with the defence that the Crown’s conditions of membership in this constituency are so overly broad as to deprive membership in this constituency of any probative value. A minority of complainants allege inappropriate breast touching. Those that do make this allegation do not uniformly describe Dr. Sloka’s hand movements. Due to the relative infrequency of this alleged conduct amongst the complainants and due to the variations in the descriptions of alleged breast touching amongst the minority who allege it and given the unrebutted likelihood that Ms. K.K.’s memory was tainted by media consumption, this cross-count similarity lacks sufficient probative value to be admissible to prove any other material issue.

[3968] That brings me to he cross-count similarity regarding patients who claim they were not told about the nature of the examinations Dr. Sloka intended to perform. Many of the complainants that the Crown places into this category do not belong in it, which shrinks the size of this alleged constituency. Also, Ms. K.K.’s case is an anomaly. Other patients in this alleged constituency typically acknowledge consultations in Dr. Sloka’s office and acknowledged going into the examination room for the purpose of participating in some kind of examination. Ms. K.K. is different. She alleged that the appointment began in the examination room, that Dr. Sloka did not begin by obtaining her history, and that he immediately commenced an examination. Her characterization of her appointment cannot be properly compared to the other patients relied upon by the Crown. Also, for the reasons already discussed, I have soundly rejected Ms. K.K.’s claim about the trajectory of her appointment. This ostensible cross-count similarity cannot rehabilitate Ms. K.K.’s fatally flawed narrative.

[3969] I would now like to take a moment to reflect on the Crown’s theory of guilt in Ms. K.K.’s case. The Crown theory is that Dr. Sloka used otherwise legitimate examinations as an excuse to engage in sexual touching with Ms. K.K. Yet on Ms. K.K.’s evidence, Dr. Sloka deviated almost entirely from the components of his standardized examinations, deviated entirely from the order in which he routinely conducted those examinations, and behaved in a manner that Ms. K.K. purportedly recognized immediately as being sexually inappropriate. In effect, on the Crown theory, Dr. Sloka abandoned nearly all pretense and groped Ms. K.K. while conducting a ludicrous pantomime of a legitimate examination. Ms. K.K. does not allege a ruse as much as she alleges a farce. Having regard to the aforementioned frailties in the Crown’s evidence, that theory seems farfetched in the extreme.

[3970] I turn now to an assessment of Dr. Sloka’s evidence.

[3971] Relying on his consultation letter, Dr. Sloka maintained that he performed neurologist, cardiac, possibly respiratory, and fasciculation examinations. He provided compelling justifications for these examinations which were not seriously challenged in cross-examinations or submissions.

[3972] Dr. Sloka testified that he possessed the training and experience necessary to competently perform these examinations. Again, his evidence here stood unchallenged.

[3973] Dr. Sloka testified that he performed the examinations in accordance with his training and standard methods. And he conducted them in a standardized sequence.

[3974] He denied massaging and cupping Ms. K.K.’s breasts. He denied doing an abdominal examination. He denied having Ms. K.K. bend over.

[3975] In my view, Dr. Sloka’s evidence was cogent and compelling.

[3976] I have considered the Crown’s critiques of Dr. Sloka’s evidence and conclude they have little merit.

[3977] The Crown contends that Dr. Sloka was guessing when he asserted that he did not ask Ms. K.K. to remove her underwear. As noted by the defense, this submission ignores Dr. Sloka’s evidence regarding his standard practice. He did not require removal of her underwear for the examinations performed. Accordingly, he would not have required it.

[3978] The Crown contends that Dr. Sloka gave inconsistent evidence regarding the testing of sensation on Ms. K.K.’s arms. According to the Crown, Dr. Sloka conceded that with some patients he might do sensation testing on top of clothing; and that he might not do sensation testing everywhere. They suggest this evidence contradicts his assertion that he tested sensation directly on Ms. K.K.’s skin. This submission ignores Dr. Sloka’s evidence that Ms. K.K. was gowned, and thus not in street clothing; and that, accordingly, he would not have made contact with her skin during sensation testing. This submission also ignores the fact that Ms. K.K. herself confirmed that Dr. Sloka tested for sensation on different parts of her arms and legs, and that she had no complaints about this sensation testing. The Crown’s submission also ignores Dr. Sloka’s evidence regarding his standardized approach to sensation examinations, which consistently involved the testing of sensation on the arms and legs. Lastly, this submission ignores that this standardized examination was documented in Dr. Sloka’s consultation letter.

[3979] In my view, Dr. Sloka provided logical, clear, and coherent evidence which explained the assertions made in his contemporaneously crafted consultation letter. His evidence withstood cross-examination and remained unscathed. I can find no basis for disbelieving his evidence on this count.

[3980] I conclude that there exists a real likelihood that both the evidence of Ms. K.K. and Ms. C.B. has been tainted by media exposure, which has affected the reliability of their recollections. I conclude that there exists a likelihood that post-media discussions between the two of them has also impacted the reliability of the recollections. I also conclude that Ms. C.B.’s evidence is incapable of rebutting the likelihood that Ms. K.K.’s evidence was tainted by the media. Irrespective of the potential for tainting, I do not accept that the purported similarities between the evidence of other witnesses and Ms. K.K. are sufficiently probative that they may be admissible for the purpose of supporting Ms. K.K.’s evidence. The prospect of tainting further supports my decision to decline to employ the evidence of other complainants in support of Ms. K.K.’s allegations.

[3981] Ms. K.K.’s evidence was so profoundly unreliable that it is wholly unworthy of belief. On every material issue, I reject it.

[3982] I accept Dr. Sloka’s evidence. Accordingly, I accept that he first met with Ms. K.K. in his office to learn about her symptoms and obtain her personal and medical history. I accept that he proposed and conducted neurological, cardiac, and fasciculation examinations, and quite possibly a respiratory examination. I accept that he possessed a valid medical purpose for proposing and conducting these examinations. I accept that he performed these examinations in accordance with his training and standard methods. I also accept that he only performed these examinations after first obtaining Ms. K.K.’s consent. I also accept his denial of Ms. K.K.’s description of her examination. Lastly, I accept that he did not possess any sexual purpose when examining Ms. K.K.

[3983] The Crown has failed to prove that Dr. Sloka engaged in sexual activity and consequently failed to prove a sexual assault

[3984] I acquit Dr. Sloka on this count.

ii. L.M. (Count 35)

A Summary of Ms. L.M.’s Complaint and Dr. Sloka’s Response to It

[3985] Ms. L.M. alleged that Dr. Sloka palpated her lymph nodes, then touched her breasts after opening her gown, which opened to the front. She also alleged that during an examination to investigate suspected fasciculations, Dr. Sloka directed her to wear her gown open to the front and lay fully exposed on the examination table. According to Ms. L.M., he then walked around her exposed body for five to ten minutes.

[3986] Dr. Sloka testified that he performed neurological, cardiac, respiratory, and fasciculation examinations. He denied touching Ms. L.M.’s breasts, except as may have been accidental and incidental to his cardiac examination. He denied conducting the fasciculation examination in the manner Ms. L.M. described. In accordance with his standard practice, she wore her gown open to the back. He looked for fasciculations on her limbs and then on her back.

The Circumstances of Ms. L.M.’s Referral and Treatment History

[3987] Ms. L.M.’s family doctor, Dr. Pannozzo, referred her to Dr. Sloka. Dr. Pannozzo asked Dr. Sloka to assess Ms. L.M.’s muscle twitching, which had been occurring for about eight months. Her first appointment with Dr. Sloka occurred on August 30, 2013. Her second and final appointment occurred on November 27, 2013.

[3988] Ms. L.M. was 29 at the time of the referral.

The Evidence of Ms. L.M.

[3989] Ms. L.M. was 37 years old when she testified.

[3990] Ms. L.M.’s complaint involved her first appointment with Dr. Sloka.

[3991] Ms. L.M. testified that before ever attending her first appointment with Dr. Sloka, she had googled her symptoms. She became anxious and worried that she might be developing ALS or MS.

[3992] Her first appointment occurred on August 30, 2013. She attended alone. To her recollection, she had been experiencing intermittent twitching for about a year.

[3993] She recalled going into a very large waiting room to await Dr. Sloka. She was shown a picture of Dr. Sloka’s waiting room. It did not accord with her memory. She recalled a much more open waiting room, more like one you might find in an ER. In any event, Dr. Sloka retrieved her from the waiting room, and they went into his office.

[3994] Ms. L.M. testified that they spoke for a lengthy period in his office, longer than she had spoken with any other doctor. He listened to her and was empathetic. She recalled him telling her that they will get to the bottom of the issue, and he will do what needs to be done. To that end, he told her that he wanted to do a physical examination. In her evidence in-chief, she did not recall him elaborating upon the type of examination. Having seen other neurologists, she had an expectation of the type of examination he might perform. In cross-examination, she agreed it was possible that Dr. Sloka explained to her that he wanted to conduct a full neurological examination. She also agreed it was possible he informed her that he wanted to perform a cardiac examination, but she did not remember. She also remembered Dr. Sloka telling her that he would like to try to observe the muscle twitching as it was occurring. She did not recall whether he mentioned this in the office or in the examination room. In short, Ms. L.M. could not rule out that Dr. Sloka identified and explained the reason for the examinations he wished to perform.

[3995] Ms. L.M. went into the examination room. She described the examination room as being larger than Dr. Sloka’s office. In cross-examination, photographs of Dr. Sloka’s examination room were presented to her. The photographs did not look familiar to her. She thought the room in the photographs looked too small to be Dr. Sloka’s examination room. She also noted that the photographs in exhibit 2 only depicted one examination table. In her memory, there were two examination tables in the examination room. The location of the examination table in the photographs also differed from her memory of its location within in the room. She was not prepared to concede that her recollection was wrong. She did not think that her examination took place in the examination room depicted in Exhibit 2.

[3996] Ms. L.M. testified that Dr. Sloka asked her to remove all her clothes except her underwear and to get into a gown. He told her to wear the gown open to the front. In cross-examination, she added that, as she walked into the examination room with Dr. Sloka, she sought confirmation that she was supposed to wear the gown open to the front. She did not provide evidence of this inquiry during her evidence in-chief. She also did not mention this inquiry in her police statement. Indeed, in her police statement, Ms. L.M. displayed some uncertainty that she ever received an explicit instruction to wear the gown open to the front. She based her uncertain belief on a vague memory: “I believe that because I can kind of remember trying to close it for when he came in.”

[3997] Ms. L.M. recalled that Dr. Sloka left the room to allow her to get undressed.

[3998] Once she had changed, Dr. Sloka returned to the room.

[3999] According to her testimony, she sat on an examination table that was situated away from any walls. It was situated slightly to the right of the entranceway into the examination room. As noted, this description is at odds with the Exhibit 2 photos of Dr. Sloka’s examination room.

[4000] In her recollection, Dr. Sloka began with strength tests. I would note that her description of the leg strength test accords with Dr. Brill’s description of an appropriate one.

[4001] According to Ms. L.M., Dr. Sloka also tested her reflexes and had her perform some coordination tests.

[4002] Ms. L.M. testified that Dr. Sloka then said he was going to “take a look.” He then applied pressure to the lymph nodes in her neck, after which he moved both hands slowly downwards, pressing his fingertips against her has he moved his hands downward. He also parted the gown open as he moved his hands downward. He then started to examine her breasts. She clarified in cross-examination that he moved a hand down one side at a time and touched one breast at a time. She was not sure about the side on which he began. He applied gentle amounts of pressure to her breasts with his fingertips, mainly on the outside portions. On a couple of occasions, he grazed her nipples as he moved his hand from one side to the other.

[4003] Ms. L.M. pointed out that, although Dr. Sloka spoke during other portions of the examination, he did not speak when examining her breasts. Ms. L.M. denied the suggestion that Dr. Sloka remained quiet for this portion of the examination because, in reality, he was trying to listen to her heart while conducting a cardiac examination with a stethoscope. While she agreed it was possible Dr. Sloka used a stethoscope at some point and conducted a cardiac examination at some point, she maintained that Dr. Sloka performed a separate breast examination.

[4004] In cross-examination, Ms. L.M. agreed that she never mentioned in her police statement that Dr. Sloka palpated the lymph nodes in her neck before moving downwards towards her breasts and gradually parting her gown. Instead, she told police that he opened the gown without notice and began examining her breasts.

[4005] As for other examinations, Ms. L.M. did not specifically recall a cardiac examination in which Dr. Sloka utilized a stethoscope, but she agreed one could have occurred. However, she insisted that Dr. Sloka never asked her to lower only the left side of her gown to facilitate the application of a stethoscope to her chest for a cardiac examination. She denied the possibility that only her left breast was ever exposed during a cardiac examination. She denied conflating a proper cardiac examination with the breast examination she described in court.

[4006] According to Ms. L.M., following the breast examination, something changed. Dr. Sloka asked that she lay on a table for the purpose of allowing him to examine her for signs of muscle twitching. She believed it possible that he asked her to move to a separate table for this examination. He asked her to lay down on the examination table with the gown opened. She professed a vivid memory of this instruction. She denied that he instructed her to remove the gown entirely. However, in her police statement, she told police that she believed that Dr. Sloka may have asked her to remove the gown entirely, or he may have only asked her to leave it open. She wasn’t sure, but she had a stronger belief that Dr. Sloka asked her to remove the gown. She agreed that her memory at trial on this point differed from her memory at the time of her police statement. She did not know why her memory had changed.

[4007] Ms. L.M. testified that Dr. Sloka circled the circumference of the examination table multiple times and watched her exposed body in the supposed search for twitching. She testified that he did laps around the table for 5-10 minutes. She grew so uncomfortable that she crossed her arms and covered her chest. Once she did so, Dr. Sloka finished his final lap and ended the examination. Of note, she estimated in her police statement that Dr. Sloka circled the table for 2-5 minutes.

[4008] Ms. L.M. testified that Dr. Sloka only examined the front side of her body for twitching. She never laid face down on the table.

[4009] Ms. L.M. also denied the suggestion that Dr. Sloka only exposed and examined each limb individually in search for twitches. She also disagreed with the suggestion that Dr. Sloka only exposed her upper chest and clavicle, but not her breasts, when looking for signs of twitching.

[4010] Following the search for twitches, Dr. Sloka told her she could get redressed. On his way out, he turned and asked her, “are you comfortable with everything that has happened here today?” This question disturbed her and gave her a sinking feeling in her gut. She became suspicious of the propriety of the exams.

[4011] Once Ms. L.M. returned to the office to speak with Dr. Sloka, he became the compassionate and empathetic man he had been at the outset of their visit. She did not recall him making comments about the results of his examinations. She did recall him saying that her symptoms were most likely from anxiety or were the aftereffects of a bad illness. He also ordered an EMG study.

[4012] Ms. L.M. recalled telling her husband about the examination in the evening after the examination. She discussed it with him while out at a restaurant for dinner. She liked Dr. Sloka and felt conflicted. She had hoped her husband would put her at ease. She mentioned the breast examination. She also mentioned laying exposed on the table while Dr. Sloka walked around her to look for twitching. She kept the discussion light. Her husband agreed it was weird but suggested that perhaps the examinations were necessary. His feedback reassured her.

[4013] Ms. L.M.’s husband, Cr.M. came with her to her second appointment with Dr. Sloka. She testified that she brought him because of her discomfort from the first appointment, though she did not tell her husband this. She also brought him because of her concern about receiving a bad diagnosis. At this appointment, Dr. Sloka told her that her results were normal. Her twitching was benign.

[4014] Ms. L.M. rejected the suggestion that she showed video footage of her twitching muscles at this second appointment and not at the first appointment. She did so even after being shown the contents of Dr. Sloka’s consultation letter from the second appointment, in which he documented her showing him the video.

[4015] Ms. L.M. testified that her friend, L.G., shared with her a news story from either CTV or The Record about Dr. Sloka, which indicated that Dr. Sloka was being investigated. On her evidence, she read only up to the point that a patient had been inadequately draped. She purportedly did not even read whether the allegations were of a sexual nature. Nevertheless, she stopped reading because she felt gross immediately. Despite not reading its contents, she testified that the article “confirmed that my gut instinct may have been correct.” In cross-examination, defence counsel presented an article contained in Exhibit 8 at tab 15. Ms. L.M. testified she did not recognize it.

[4016] Despite not reading the article, Ms. L.M. testified that she shared this article with her husband and spoke to him about it. Ms. L.M. further testified that, after seeing the news story, she spoke with her husband on an ongoing basis about her experience with Dr. Sloka. She was unable to remember details of the contents of any of these conversations.

[4017] A year later, she spoke of her experience with L.G. and other friends on a girls’ trip.

[4018] Then another year passed, and she spoke to her friends again on another girls’ trip. Her friend, L.G., then assisted her in contacting the police.

[4019] She provided her police statement on October 17, 2019.

The Evidence of Cr.M.

[4020] Mr. Cr.M. confirmed that Ms. L.M. told him about the first appointment in the evening following the appointment. In his testimony, Cr.M. testified that this conversation occurred “over a meal.” His loose description of the circumstances of their discussion allowed his narrative to align with his wife’s. The memory of the conversation occurring “over a meal” was a new memory, though. In his police statement, he claimed that the discussion occurred at home, not while they were out at a restaurant for dinner. He did not tell the police that the discussion occurred “over a meal.” In cross-examination, he denied that he had tailored his evidence to align with his wife’s narrative about her disclosure.

[4021] Cr.M.’s testimony regarding Ms. L.M.’s post-appointment disclosure effectively matched Ms. L.M.’s. According to Cr.M., Ms. L.M. reported that Dr. Sloka told her to undress completely during the examination. She also reported that Dr. Sloka examined her breasts too. He also testified that his wife reported that Dr. Sloka circled the table as he examined her body for twitches, and she covered herself up. The examination ended at this point. She also mentioned that Dr. Sloka asked her if she was okay with the examination. Mr. L.M. reportedly tried to comfort his wife and told her that there was obviously a good reason for the examination. He was not concerned about the examination and assumed it was medically necessary.

[4022] Cr.M. also testified about discussions with Ms. L.M. about Dr. Sloka in the aftermath of learning about news of allegations against Dr. Sloka. He remembered almost nothing about the content of any discussions between them. He also claimed that he did not recall a single detail from the news story Ms. L.M. shared with him, apart from the fact that the allegations were of a sexual nature. He did not remember if he ever read the story himself. Although he agreed it was possible that they spoke about the news coverage, he could not remember.

The Evidence of Dr. Bril

[4023] Dr. Bril testified that it was neurologically reasonable for Dr. Sloka to perform a neurological examination, including an examination for fasciculations.

[4024] She did not believe that a respiratory or cardiac examination was warranted. Although ALS can cause respiratory and consequently cardiac issues, Ms. L.M. had not complained of breathing problems. Absent such a complaint, she did not view these two examinations as necessary or reasonable. In their submissions, the Crown has not relied upon this aspect of Dr. Bril’s opinion. Indeed, they have generally conceded the appropriateness of all Dr. Sloka’s decisions to conduct cardiac examinations.

[4025] As for the fasciculation examination, Dr. Bril agreed that it was reasonable to examine Ms. L.M.’s limbs and not unreasonable to examine her back.

[4026] Like Dr. Sloka, Dr. Bril testified that the fasciculation examination described by Ms. L.M. was inappropriate. That opinion is not controversial.

[4027] Accordingly, Dr. Bril’s opinion does not assist in the resolution of Ms. L.M.’s allegations.

The Evidence of Dr. Sloka

[4028] Dr. Sloka did not have an independent recollection of Ms. L.M. He relied upon his consultation letters for the truth of their contents and the rest of Ms. L.M.’s chart for necessary context.

[4029] In his consultation letter from Ms. L.M.’s first appointment (dated August 30, 2013) Dr. Sloka documented neurological, respiratory, and cardiac examinations. He also implied a fasciculation examination by writing, “We did not see any fasciculations today.”

[4030] Dr. Sloka’s decision to conduct neurological and fasciculation examinations were not controversial.

[4031] In answer to Dr. Bril’s critique of his decision to conduct respiratory and cardiac examinations, Dr. Sloka provided his justifications. Dr. Sloka testified that some patients with fasciculations turn out to have neuromuscular disease, like ALS. Although he believed only 3% of people with ALS begin their presentation with respiratory symptoms, he also believed that he once had a patient with respiratory failure who was later diagnosed with ALS. In addition to reporting fasciculations, Ms. L.M. had reported episodic tiredness. He would want to check her respiratory functioning for safety reasons. Also, if he detected any difficulty breathing, that might assist in a diagnosis of a neuromuscular disorder. If he detected breathing difficulty, he would send the patient to the ER. Similarly, Dr. Sloka testified that cardiac examinations formed part of his standard evaluation of patients with widespread neuromuscular problems. Additionally, a patient’s reported fatigue might have a cardiovascular origin. These justifications went essentially unchallenged in cross-examination.

[4032] The charting of the respiratory examination is notable, because Dr. Sloka did not typically document the respiratory component of his standard cardiac examination. Dr. Sloka testified that it was his practice to conduct respiratory examinations in patients presenting with fasciculations. The circumstances thus suggested that Dr. Sloka conducted a complete respiratory examination in addition to his cardiac examination. The Crown did not suggest otherwise in cross-examination.

[4033] Dr. Sloka denied that Ms. L.M. wore her gown open to the front. He did not ask his patients to wear their gown in this fashion.

[4034] Dr. Sloka also denied that he examined Ms. L.M.’s lymph nodes. Her history and presentation did not require it.

[4035] Dr. Sloka denied any sort of breast examination or breast touching. Her history and presentation did not require a breast examination. He testified that any contact with Ms. L.M.’s breast would have occurred incidentally during the cardiac examination.

[4036] Dr. Sloka denied circling the bed during the fasciculation examination. He also denied that Ms. L.M.’s chest and body were fully exposed during the fasciculation examination. Her gown would have been worn with the opening at the back. Her front would be covered. That was how his patients gowned. Dr. Sloka also testified that the bed in the examination room abutted the wall opposite the entrance from the office, as shown in Exhibit 2. He denied ever pulling out the examination table in the manner Ms. L.M. described. Consequently, it would not be positioned in a way that would allow him to do laps around the table.

[4037] Dr. Sloka testified that for fasciculation examinations, he examined the patient’s limbs and back. To examine the patient’s back, he would have them lay on their stomach. He also testified that it was his practice during fasciculation examinations to manipulate the arms and legs to relax the muscles and view the surface of the limbs. He did not see any reason, though, to touch any visible fasciculations as they were occurring. According to his consultation letter, he was unable to observe any that day.

Assessment of the Evidence and Analysis

[4038] Ms. L.M.’s evidence gives rise to serious concerns about her reliability.

[4039] The first area of concern is Ms. L.M.’s memory of the examination table, or tables. Her description of the location and orientation of the examination table changed between her police statement and her testimony. Her testimony on this subjected also evolved continuously, in concert with her evolving testimony about her own orientation relative to the examination table and the examination room door. Despite multiple attempts to clarify her verbal description of her orientation and that of the table, her verbal descriptions did not align with the diagram she drew. I will now attempt to highlight in more detail some aspects of her confusing testimony on this subject.

[4040] Ms. L.M.’s evidence regarding the examination tables was contradicted by independent evidence and was inherently unreliable. She recalled the table being situated away from the walls, which allowed Dr. Sloka to do laps around the table. The preponderance of evidence, including the evidence of Tammy Tebbutt, the evidence of most of the other complainants, and the evidence of Dr. Sloka, establishes that the standard orientation of the table in Dr. Sloka’s office conformed with the depiction of the examination table seen in Exhibit 2.

[4041] Ms. L.M. also recalled the possibility of two examinations tables – and having to move from one table to a more centrally located second one for the fasciculation examination. The placement of two tables in the examination room would be nearly impossible, without rendering the small room all but unusable. Nevertheless, she considered the possibility of two tables to be more likely than the possibility of one.

[4042] Alternatively, Ms. L.M. posited there was a single table, but Dr. Sloka moved the table further into the centre of the room for the fasciculation examination. Investigators attended the scene for the purpose of taking photographs of the examination table in the middle of the examination room. Those photographs are contained in Exhibit 193. While the photographs establish that the table could be moved away from the wall, they also satisfy me that Ms. L.M.’s description of Dr. Sloka orbiting the table while an arms-length away from her is implausible. It must be remembered here that Ms. L.M. did not recognize the examination room depicted in Exhibit 2. In her mind, the room depicted in Exhibit 2 was too small to be the room in which her examinations occurred. By denying that her examination occurred in Dr. Sloka’s actual examination room, she implicitly acknowledged that what she described could not have occurred there.

[4043] Ms. L.M.’s description of initial placement of her examination table off to the right of the doorway to the room is also impossible because the doorway is situated adjacent to the right wall. There is no room to the right of the door for an examination table.

[4044] Ms. L.M.’s claims about hers and the table’s orientation also changed between her police statement and her testimony, and from one point in her testimony to another. During her testimony, she altered the diagram she drew for the police to conform with her testimonial memory. Puzzlingly, her verbal description of her orientation and that of the table did not conform with her amended diagram, despite repeated attempts to reconcile her verbal descriptions with the diagram. Further, as already noted, Ms. L.M. posited two alternatives about her positioning for the fasciculation: her movement to a second table for this examination, or the movement of a single table to a more central location. She never told the police of either possibility. These appear to have been newly conceived notions.

[4045] All told, Ms. L.M.’s evidence regarding the positioning of the examination table or tables is patently unreliable and I reject it. Ms. L.M.’s highly unreliable memory of her orientation and that of the examination table is no small matter. Her unreliable memory of these things is inextricably intertwined with her memory of what occurred; and it fundamentally undermines the reliability of her allegations. Without the table being positioned away from the walls, her allegation that Dr. Sloka circumnavigated the table becomes impossible.

[4046] Ms. L.M.’s evidence is also undermined by the unreliability of her evidence regarding her gown. At trial, she asserted definitively that Dr. Sloka instructed her to wear the gown open to the front. She also asserted definitively that she complied with that instruction. However, during cross-examination, a new piece of evidence emerged. She alleged that she sought and obtained clarification from Dr. Sloka that he was indeed instructing her to wear the gown open to the front. Her testimony on that point was undermined by her prior statement to the police. In her police statement, she displayed uncertainty about whether Dr. Sloka instructed her to wear the gown open to the front. At that time, she only possessed a tenuous belief. That belief was based upon her “kind of” remembering trying to close the gown when Dr. Sloka re-entered the room. The way Ms. L.M. wore the gown is a central feature of her allegations; indeed, it facilitated the exposure about which she complained. Her evidence on this core feature of her allegations was unreliable.

[4047] Ms. L.M.’s memory about the gown itself was also very vague. She could not recall the type of material from which it was made. She could not recall whether it had anything with which to fasten it closed. She recalled that one side folded over the other, like a bath robe. The evidence of Tammy Tebutt and Dr. Sloka established that the hospital issued standard gowns to Dr. Sloka’s clinic, gowns which fastened at the back. Based on that evidence, I am satisfied that the gown Ms. L.M. described did not exist in Dr. Sloka’s clinic.

[4048] Ms. L.M.’s description of her breast examination also proved unreliable. Her description changed between her police statement and her testimony. At trial, she testified that the examination began with palpating the lymph nodes in her neck, followed by him moving his hands downward to her breasts, and parting her gown along the way. In her police statement, she made no mention of the neck palpation, or the gradual parting of her gown. Instead, she alleged that, after testing her reflexes, Dr. Sloka suddenly opened her gown and began touching her breasts. This inconsistency concerns a core feature of her allegations and causes me significant concern about Ms. L.M.’s reliability.

[4049] Ms. L.M.’s evidence about her fasciculation examination was also unreliable. Her testimony regarding her attire during that examination differed from her police statement. At trial, she testified that she had covered herself up after the alleged breast examination. She further testified that Dr. Sloka instructed her to lay down and to leave her gown open for the fasciculation examination. In her police statement, she provided two alternatives. She was uncertain whether Dr. Sloka asked her to take the gown completely off or only asked her to leave the gown open. At the time, she favoured the belief that Dr. Sloka instructed her to remove the gown entirely. This evolution of her memory raises reliability concerns.

[4050] At trial, Ms. L.M. also professed to be certain that she showed Dr. Sloka a video clip of her muscle twitching at her first appointment. She purportedly felt that a visual inspection of her twitching at the first appointment was unnecessary because she had already shown Dr. Sloka the video. This testimony implies an ulterior motive for the fasciculation examination. However, it is undermined by Dr. Sloka’s consultation letter from the second appointment, held on November 27, 2013. Dr. Sloka documented being shown that video in his consultation letter for this second appointment. Ms. L.M. denied showing the video on that date. She insisted it occurred on the fist visit. I reject her evidence on this point. The contemporaneous reporting of this event on November 27th provides powerful evidence of its timing. It is extraordinarily unlikely Dr. Sloka would have contemporaneously recorded the event as occurring on November 27th if it had not occurred that day.

[4051] The Crown called Cr.M. to rebut any inference that Ms. L.M.’s allegations have been tainted by her exposure to media publications about Dr. Sloka. However, Cr.M.’s evidence does more harm than good to the Crown’s case. Having considered his evidence, I conclude that he likely colluded with Ms. L.M. I say this for three reasons. First, Cr.M.’s evidence about the circumstances of Ms. L.M.’s same-day disclosure changed between his police statement and his testimony. In his statement to the police, he contradicted his wife, stating that the disclosure occurred at home, not while they were out at a restaurant. He was silent on whether it occurred while they were eating. At trial, he testified that the disclosure occurred “over a meal.” This was new information. It appeared to be tailored for the purpose of making his evidence align more closely with Ms. L.M.’s. Second, Cr.M. purportedly remembered Ms. L.M. telling him that Dr. Sloka circled the examination table. As already discussed, the evidence satisfies me that this did not occur. Therefore, Ms. L.M. could not have reported this information on the day of the examination. Cr.M.’s evidence on this point must be the product of collusion. Third, while Cr.M. and Ms. L.M. provided near identical accounts of the same-day disclosure, neither could remember anything about their discussions in the aftermath of reading publications about the allegations against Dr. Sloka. These publications fundamentally changed Ms. L.M.’s perception of her examinations and prompted her police complaint. Yet, astonishingly, neither Cr.M. nor Ms. L.M. could remember what they more recently said to each other during this pivotal and emotional moment. I find it highly implausible that they each could not remember what they discussed in the aftermath of the news publications but could remember in lockstep what was disclosed eight years previously during a conversation that resulted in them mutually concluding that the examination must have been proper. I disbelieve Mr. and Ms. L.M.’s mutually professed inability to remember almost all their discussions at the time Ms. L.M. brought the news article to Mr. L.M.’s attention. In my view, they colluded in their efforts to distance themselves from any suggestion that Ms. L.M.’s complaint was tainted by exposure to media publications about Dr. Sloka. I find neither Ms. L.M. nor her husband credible on that point, which in turn causes me concern about her general credibility.

[4052] Ms. L.M.’s exposure to media causes concern about tainting. Ms. L.M. was admittedly exposed to media which caused her to have a significant emotional reaction. She denied reading almost any of the news article in question, but her husband’s evidence suggests otherwise. Though she would not admit it, Cr.M. testified that she informed him that the allegations were of a sexual nature. And while he professed not to know the details, he testified that Ms. L.M. provided other details – details which he no longer remembered. I disbelieve Ms. L.M.’s claim that she did not read the article shared with her by her friend. The content of the media available at the time most certainly included allegations that mirror some being made by Ms. L.M., including allegations of inadequate draping, breast exposure, and breast touching. The likelihood of media tainting is significant, in my view. That tainting affects the reliability of Ms. L.M.’s evidence. It also affects the reliability of her husband’s evidence, with whom the contents of the news article were shared.

[4053] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this case. However, having considered Dr. Sloka’s evidence against the unreliable and uncredible evidence of Ms. L.M. and her husband (and in the context of the entirety of the evidence), I have concluded that Dr. Sloka has refuted any inference of a sexual motive in Ms. L.M.’s case. I will assess Dr. Sloka’s evidence in more detail momentarily. First, though, I will address the Crown’s reliance upon two specific cross-count similarities to support Ms. L.M.’s evidence on other material issues.

[4054] The Crown relies upon two granular cross-count similarities to buttress Ms. L.M.’s evidence on other material issues. In my view, those cross-count similarities lack sufficient probative value. I will discuss each in turn.

[4055] First, in my view, Ms. L.M. does not belong to a group of patients who allege that Dr. Sloka failed to explain the nature of and the reasons for the examinations he conducted. Ms. L.M. is not the only complainant that the Crown has erroneously placed in that grouping. The constituency of that group is much smaller than the Crown alleges. Ms. L.M. was unable to discount the possibility that Dr. Sloka specifically informed her that he wanted to perform neurological, cardiac, and respiratory examinations. She simply could not remember one way or the other. She also conceded that, having seen other neurologists, she was expecting a neurological examination. I would also note that a significant number of complainants testified that Dr. Sloka explicitly identified and explained the examinations he wished to perform. Some testified that Dr. Sloka used books and other materials in helping to explain things to them. The evidence does not establish a situation specific propensity to keep patients in the dark, nor does it establish that Dr. Sloka conformed with any such alleged propensity in Ms. L.M.’s case.

[4056] Second, the Crown relies upon the fact that Ms. L.M. belongs to a group of patients who allege that he asked them to wear their gowns open to the front. The Crown argues that this similarity buttresses Ms. L.M.’s claim. This submission is ill-founded. As Tammy Tebbutt helpfully confirmed, there are only two ways to wear the standard issue hospital gown shown in Exhibit 2. It can be tied at the front or at the back. The overwhelming majority of complainants allege that they wore the gown opened at the back. A small minority allege the contrary. The more compelling pattern is the pattern alleged by the majority. The similarity in the evidence of the minority is, in my view, more likely the product of those witnesses being coincidentally mistaken. Of equal importance here, Ms. L.M.’s evidence on this point was undermined considerably by her statement to the police, where she revealed uncertainty as to how she wore the gown.

[4057] Given my concerns about the reliability and credibility of both Ms. L.M. and her husband, and having regard to the evidence of Dr. Sloka, I reject Ms. Muller’s evidence that Dr. Sloka engaged in overt breast touching and that Dr. Sloka directed the exposure of her naked body for the performance of the fasciculation examination.

[4058] I turn now to an assessment of Dr. Sloka’s evidence.

[4059] In my view, Dr. Sloka provided cogent and compelling evidence.

[4060] Dr. Sloka’s justifications for the neurological and fascicular examinations were not controversial. In answer to Dr. Bril’s criticism, Dr. Sloka provided compelling and logical justifications for his respiratory and cardiac examinations, which went effectively unchallenged in cross-examination. Moreover, for reasons stated in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little weight on her evidence concerning the propriety of any cardiac examinations in this case.

[4061] Dr. Sloka testified that he conducted all examinations in accordance with his training and standard methods. Dr. Bril took no issue with the method claimed by Dr. Sloka.

[4062] Dr. Sloka denied any kind of overt and intentional breast touching. He admitted only the exposure of the left breast during a cardiac examination. He testified that any contact with Ms. L.M.’s breast would have been incidental to the conduct of his cardiac examination. He denied exposing Ms. L.M.’s entire body for the fasciculation examination.

[4063] Dr. Sloka’s evidence finds support in the independent and objective evidence regarding the layout of the room, as depicted in Exhibits 2 and 193, and confirmed in the evidence of Tammy Tebbutt. It also finds support in L.M.’s concession that Dr. Sloka’s office was too small to be the room in which her allegations occurred.

[4064] The Crown’s critiques of Dr. Sloka’s evidence are not compelling.

[4065] The Crown takes issue with Dr. Sloka’s evidence that he conducted full respiratory examination, and not simply the respiratory component of a cardiac examination. To that end, the Crown argues that Dr. Sloka’s consultation letter does not allow him to distinguish between a full respiratory examination and one conducted incidental to a cardiac examination. In my view this is a minor point, particularly when one considers that the Crown never suggested to Dr. Sloka in cross-examination that he did not perform a full respiratory examination. It is also an unfounded criticism. Dr. Sloka had ample reason to conclude he conducted a full respiratory examination. He did not normally chart the respiratory component of cardiac examinations. The fact he charted a respiratory examination separately from a cardiac examination supported his inference that he conducted a full respiratory examination. Additionally, he testified that he was trained to conduct respiratory examinations as part of his standard assessment of patients with widespread neuromuscular issues like fasciculations. He understood that such conditions can have cardiac and respiratory involvement.

[4066] The crown also suggests that Dr. Sloka gave inconsistent evidence on whether he would touch a fasciculation. I saw no inconsistency in his evidence. I also consider this to be a minor issue. Ms. L.M. never alleged that Dr. Sloka touched any fasciculations. She never suggested that the palpation of her lymph nodes and breasts involved the palpation of muscle twitches.

[4067] The Crown also suggests that Dr. Sloka speculated about whether he spoke during the fasciculation examination. Having reviewed his evidence, I do not agree. He simply did not remember one way or the other.

[4068] In summary, I consider the Crown’s critiques of Dr. Sloka’s evidence to be unfounded critiques regarding minor issues.

[4069] In my view, Dr. Sloka’s evidence was reasoned and compelling. And it was not meaningfully undermined in cross-examination. I accept his evidence.

[4070] Having rejected the evidence of Ms. L.M. and her husband on the material issues and having accepted Dr. Sloka’s evidence on those same issues, I accept that Dr. Sloka performed what he believed were medically justified examinations in a manner consistent with his training. The Crown has failed to prove that Dr. Sloka performed any examination for a sexual purpose. The Crown has also failed to prove that Dr. Sloka performed any examination in a medically improper manner. In my view, the evidence can only establish that Ms. L.M. received medical examinations to which she provided her expressed consent.

[4071] Dr. Sloka will be acquitted on this count.

Cancer

i. F.C. (Count 53)

A Summary of Ms. F.C.’s Complaint and Dr. Sloka’s Response to It

[4072] Ms. F.C. and Dr. Sloka provided similar evidence about the nature of the examinations he performed.

[4073] Initially, Ms. F.C. questioned whether Dr. Sloka provided her any explanation for the examinations he conducted. It was this concern that motivated her to contact the police after learning that Dr. Sloka was under investigation. However, once subjected to cross-examination, Ms. F.C. agreed that she had been referred to Dr. Sloka as a result of an apparent cluster of cysts seen in an MRI of her brain. She also agreed that Dr. Sloka may have informed her that he wished to perform various examinations to search for any cancer that may have spread to her brain thereby giving rise to the apparent cysts seen in her MRI.

[4074] The main areas of disagreement between Ms. F.C. and Dr. Sloka concerned the number of examinations and the order in which he conducted the examinations.

[4075] Ms. F.C. alleged that Dr. Sloka performed fewer examinations than Dr. Sloka acknowledged performing. She alleged that Dr. Sloka performed a neurological examination, a cardiac examination, a rib examination, a pelvic examination, then a breast examination. Ms. F.C. did not allege skin, respiratory, lymph node, thyroid, or abdominal examinations.

[4076] Dr. Sloka testified that he conducted a general examination to search for evidence of cancer. He testified that he performed, in the order now listed, neurological, cardiac, respiratory, thyroid, lymph node, abdominal, breast, skin, and pelvic examinations.

The Circumstances of Ms. F.C.’s Referral and Treatment History

[4077] Ms. F.C. was 21 years old when she received a referral to Dr. Sloka. She was 28 years old when she testified.

[4078] Ms. F.C.’s family doctor referred her to Dr. Sloka on February 27, 2015.

[4079] Ms. F.C. attended her first appointment with Dr. Sloka on March 4, 2015.

[4080] In her evidence in-chief, Ms. F.C. testified that her family doctor made the referral because she had endured repeated concussions and suffered from resulting head pain, memory issues, and blackouts. Ms. F.C. did not remember that that her family doctor referred her to Dr. Sloka because a previously ordered MRI disclosed an apparent cluster of cysts in her brain and that the radiologist provisionally believed that the cysts likely represented a cluster of prominent perivascular spaces, but also considered the following other possibilities on the differential diagnosis: neurocysticercosis (parasitic infection), cystic appearing neoplasm (cancer), or chronic lacunar infarcts (dead tissue from the blockage of blood vessels). When writing the referral to Dr. Sloka, the family doctor said, “I am mainly concerned because she has worked and camped in the wilderness, there is a small possibility of neurocysticercosis (parasitic infection). Could you please see her and offer an opinion of what to do next?” Rather than believing that the MRI prompted her family doctor to make the referral, Ms. F.C. had believed that Dr. Sloka ordered the MRI after her first appointment.

[4081] Ms. F.C.’s memory lapse about the reason for the referral played a prominent role in her decision to contact the CPSO in September of 2018 and later contact the police in June of 2019. In addition to forgetting about the MRI’s role in her referral, Ms. F.C. had forgotten that Dr. Sloka had reviewed the MRI results with her at her first appointment. Consequently, she had forgotten that Dr. Sloka had discussed the possibility that the MRI disclosed the possible presence of a neoplasm or neurocysticercosis. Even though she believed that her examinations had been conducted in a medically appropriate and professional manner, she contacted the CPSO and later the police because she could not remember the medical rationale for the pelvic examination Dr. Sloka conducted. Her failure to recall the reason for the referral persisted in her evidence in-chief. Only after defence counsel took her through her medical chart did Ms. F.C. recall that her referral arose from the concerns raised in the MRI. Following that review of her records in cross-examination, Ms. F.C. agreed that Dr. Sloka may have presented her some options to investigate the possibility that the apparent cyst shown in the MRI was cancer that had spread from elsewhere in her body. She agreed that, when presenting her with options, Dr. Sloka may have proposed a complete physical examination to look for evidence of cancer elsewhere in her body. She had not considered these possibilities before contacting the CPSO, contacting the police, or when giving her evidence in-chief.

The Evidence of Ms. F.C.

[4082] Ms. F.C.’s evidence focussed on her first appointment, which took place on March 4, 2015. This was the only appointment on which any physical examinations took place.

[4083] In total Ms. F.C. attended for eight appointments with Dr. Sloka. After the first appointment, she attended three more follow-up appointments in 2015: March 20, April 17, and December 23. In 2016, she attended a single follow-up appointment on November 10. In 2017, she attended two follow-up appointments on January 27 and October 12. In 2018, she attended her last follow-up appointment on March 15.

[4084] Ms. F.C. attended with her mother at her first appointment.

[4085] In her evidence in-chief, Ms. F.C. recalled that she had been experiencing intense right sided headaches. She could not get out of bed without blacking out. She had previously suffered 3 concussions following blows to the right side of her head on three different occasions. One of those occasions also involved an injury to her ribs. She was very concerned. As already noted, she did not think her family doctor had ordered her MRI and she did not think the issue of neurocysticercosis had been raised by her family doctor. She thought Dr. Sloka ordered the MRI and the contents of the MRI report were reviewed at her follow-up appointment. Accordingly, she did not initially believe that the MRI played any role in Dr. Sloka’s decision to examine her at the first appointment.

[4086] Dr. Sloka came to the waiting room to bring Ms. F.C. and her mother into his office. Ms. F.C. and her mother sat with Dr. Sloka in his office at the outset of the appointment. He inquired about her concerns, her history, her symptoms, and personal life. She recalled him asking about her travel history; and he also asked where she had been tree planting in Canada. She told him about her travels in Europe, the Caribbean, the United States, and across Canada. She also remembered that he asked her about usual freckles, birthmarks, and moles. She had none to report. Ms. F.C. next recalled Dr. Sloka telling her that he wanted to perform some examinations and order some tests. Specifically, Ms. F.C. recalled that Dr. Sloka told her he would perform a neurological examination. In doing so, he elaborated on the components of a neurological exam. According to her, did not mention the prospect of breast, pelvic, or skin examinations at that juncture – at least, not that she could recall.

[4087] As already noted, Ms. F.C.’s memory about the reason for the referral changed during cross-examination. As a result, Ms. F.C.’s position on Dr. Sloka’s examination proposals shifted. Ms. F.C. agreed in cross-examination that she had already received her MRI, that her family doctor had reviewed the MRI, and that her family doctor had asked Dr. Sloka for assistance in addressing the concerns raised in the MRI, most notably, the possibility of neurocysticercosis. Ms. F.C. also agreed that Dr. Sloka reviewed the MRI with her at the first appointment. He told her that she had a lesion on her brain which was between the size of a quarter and a loonie. Even though she could not remember all the details, she recalled him identifying a number of possible causes. Amongst the possible causes, Dr. Sloka discussed the possibility of the lesion being a neoplasm (cancer). Dr. Sloka told her that a tumour was a less likely option than others, unless the tumor was benign. Ms. F.C. also recalled Dr. Sloka telling her that the lesion might be caused by neurocysticercosis, given her travel history. Ms. F.C. also agreed that Dr. Sloka may have raised his interest in exploring the possibility that the apparent cyst shown in the MRI might be cancer that migrated from elsewhere in her body. In that vein, she agreed that Dr. Sloka may have suggested ordering CT scans of her chest, abdomen, and pelvis. She also agreed that he may have suggested a full-body physical examination to search for cancer that may have spread to her brain.

[4088] Ms. F.C. testified that Dr. Sloka asked Ms. F.C. if she wanted her mother to accompany them in the examination room. Ms. F.C. declined the offer. Being twenty-one years old, she did not feel the need to have her mother accompany her.

[4089] Ms. F.C. went with Dr. Sloka to the examination room. She recalled a blue gown on the examination table. He told her to get undressed and get into the gown. He did not provide specific instructions about which clothing to remove. He departed the room to allow her privacy to change. She was not wearing underwear that day. She removed her outer clothing and sports bra. Then she got into the gown and sat on the exam table.

[4090] Once she had changed into her gown, Dr. Sloka returned to the room. He then commenced the neurological examination. Ms. F.C. remembered some components of the neurological examination, but not all. In particular, she remembered that Dr. Sloka asked her to follow his moving finger with her eyes; he asked her to do some balancing; he conducted some muscle contraction examinations, and he used a reflex hammer to test her reflexes.

[4091] She next recalled Dr. Sloka listening to her heart with a stethoscope. In doing so, he slipped the stethoscope underneath the gown and listened to her heart in two places.

[4092] Ms. F.C. next remembered that Dr. Sloka had her lay on the examination table to allow him to examine her ribs. He began by compressing both sides of her ribs. Then, she pulled down her gown, exposing her right breast and right ribcage. He continued to palpate the ribs. He told her she might have a floating rib.

[4093] Ms. F.C. testified that, once he completed the rib examination, Dr. Sloka told her that he wanted to perform a pelvic examination. According to her evidence in-chief, Dr. Sloka did not raise the prospect of a pelvic examination in the office. He mentioned it for the first time in the examination room, as the moment for the pelvic examination arose. She also testified in-chief that he did not explain how the internal examination was related to the reason for her referral. As noted already, Ms. F.C.’s evidence shifted in cross-examination, allowing for the possibility that Dr. Sloka had raised in the office a desire to conduct a full-body examination to search for cancer. Whenever it was broached, Ms. F.C. testified that Dr. Sloka sought her consent to conduct the pelvic examination, and she gave it to him.

[4094] For the pelvic examination, Ms. F.C. lay flat on the examination table, with her knees up, her feet flat on the table, and her legs spread apart. He put lubricant on his gloved hand. He told her it might be cold or uncomfortable. He also told her to advise him if she felt discomfort. He inserted two fingers into her vagina and moved them to one side and then the other. He used his other hand to apply external pressure on the area just above her pubic bone, such that it applied opposing pressure to the fingers inside her vagina. He also asked her to bear down on his finger. She remembered the examination as being very professional. She had no sense that it took any longer than it should. To her recollection, it lasted twenty to thirty seconds.

[4095] According to Ms. F.C., after he completed the pelvic exam, Dr. Sloka told her that he wished to perform a breast exam. As noted, in her evidence in-chief, she did not believe that Dr. Sloka raised the prospect of a breast examination while speaking with her in the office. Her evidence shifted, though, in cross-examination, and she allowed for the possibility that Dr. Sloka proposed in the office a full-body physical examination to search for evidence of cancer.

[4096] Ms. F.C. testified that she remained flat on the table for the breast examination. To her recollection, it resembled previous breast examinations she had received elsewhere. She had no concerns about it. During the examination, he mentioned that she had inverted nipples. He said that if they do not correct in the future, she may want to have her doctor look at them.

[4097] When he concluded the breast examination, Dr. Sloka told her she could bring her robe up. He also told her she could get dressed back into her street clothes. He departed the examination room to allow her to change. On her account, Dr. Sloka conducted no further examinations.

[4098] When she rejoined Dr. Sloka in his office, they discussed his findings. According to her evidence in-chief, he told her that the cranial and neurological examinations were normal. He did not mention any findings in relation to the pelvic or breast exams. In cross-examination, Ms. F.C. testified that Dr. Sloka told her that all her examinations were essentially normal, except for her rib examination. Ms. F.C. testified that Dr. Sloka also told her that he would order an MRI and wanted her to monitor symptoms until the next appointment. In-chief, Ms. F.C. believed that the MRI ordered by Dr. Sloka was the first MRI ordered to investigate her issues. In cross-examination, it became apparent to her that this MRI was in fact a follow-up MRI.

[4099] Ms. F.C. testified that, on her way out of the building, she made mention of the breast and pelvic examinations to her mother. She purportedly told her mother that she thought it odd that Dr. Sloka performed these examinations, though she made this assertion in-chief, before acknowledging that Dr. Sloka informed her of the possibility that her first MRI revealed a cancerous growth. She also testified that she still felt that the examinations had been professional. Her mother purportedly concurred. The Crown did not call Ms. F.C.’s mother to confirm this conversation.

[4100] Ms. F.C.’s memory about her remaining appointments was not very detailed. Her memory about the second appointment was in part tainted by her misconception that Dr. Sloka ordered her first MRI and did not review the results of that MRI until the second appointment. As for the remaining six, Ms. F.C. testified that her memory of these appointments was blurry. Most of the detail from these appointments was elicited with the aid of Dr. Sloka’s consultation letters during her cross-examination.

[4101] Regarding her second appointment on March 20, 2015, Ms. F.C. testified she was still experiencing symptoms, but they had become less frequent. Once shown that Dr. Sloka had reviewed her initial MRI with her at the first appointment, Ms. F.C. had acknowledged that Dr. Sloka ordered a follow-up MRI at the first appointment, which he reviewed with her on March 20th. She believed that she asked about the possibility that an ear infection might be causing her symptoms. Her friend had experienced similar symptoms due to an ear infection. She believed Dr. Sloka examined her ears and took another look at her MRI to address her concern.

[4102] Defence counsel took Ms. F.C. through the remaining appointments. Ms. F.C. acknowledged that Dr. Sloka saw her in follow-up periodically to monitor her symptoms and review successive follow-up MRI’s.

[4103] At the second last appointment, Ms. F.C. noticed that Dr. Sloka was in the company of a nurse. Out of curiosity, she inquired about the nurse. She believed that Dr. Sloka told her that the nurse was in training. She provided a contradictory account in her CPSO statement. She told CPSO investigators that she asked Dr. Sloka if the nurse was a student and Dr. Sloka said she was not a student but would be working in the department now. Ms. F.C. did not notice an CPSO signage posted at the office during this visit. She accepted that the signage may have been present and that she overlooked it.

[4104] At her final appointment on March 15, 2018, Ms. F.C. noticed CPSO signage about Dr. Sloka being under practice supervision. After her appointment, she went on the CPSO website to read about the proceedings against Dr. Sloka. Ms. F.C. had no concern about herself at that juncture. She did not think the patient allegations were similar to her own experience. She did not consider herself to be a victim of sexual assault. She did not feel that she had been treated unprofessionally by Dr. Sloka. She felt that he was a really good doctor for her. Her only concern lay in her inability to recall the rationale for her pelvic examination.

[4105] In the summer of 2018, Ms. F.C. went back to her tree planting job. She agreed that she may have been exposed to media coverage about Dr. Sloka over the course of the summer. The mother of one of her tree-planting friends worked in a neurology clinic. Ms. F.C. discussed with her friend her concern about the pelvic examination’s rationale. Her friend reportedly spoke to her mother about the pelvic examination. Her friend reported that her mother had said that pelvic examinations were not standard in neurology clinics; she suggested that Ms. F.C. consider reporting her pelvic examination.

[4106] When Ms. F.C. returned home from tree planting at the end of the summer, she booked an appointment with her family doctor to discuss her pelvic examination. Her family doctor encouraged her to make a report to the CPSO.

[4107] Ms. F.C. then contacted the CPSO on September 27, 2018. By this point in time, she still thought Dr. Sloka had treated her professionally. However, she wanted to make sure the CPSO had her information, and she wanted them to provide her with feedback on whether a rationale existed for her pelvic examination. She then provided a statement to CPSO investigators on October 4, 2018.

[4108] Ms. F.C. later contacted the police on June 10, 2019. She continued to believe that Dr. Sloka had treated her professionally. She continued to have a positive view about her own experience with Dr. Sloka, but she also continued to wonder about the rationale for her pelvic examination. By that time, Ms. F.C. had already learned that the CPSO had stripped Dr. Sloka of his licence.

The Evidence of Dr. Bril

[4109] Dr. Bril’s evidence on Ms. F.C. evolved somewhat as she testified. In one respect, though, her evidence remained constant: she did not think Dr. Sloka ought to have performed any physical examination to search for the presence of cancer.

[4110] Dr. Bril provided specific opinions about the reasonableness of each of the examinations performed by Dr. Sloka, but I do not place much if any weight on those opinions for two reasons. First, Dr. Bril claimed no expertise in the conduct of general examinations performed for the purpose of identifying metastatic cancer. More specifically, she acknowledged having very little experience in conducting breast and pelvic examinations and lacked the competence to do either. Second, Dr. Bril ultimately agreed that the search for metastatic cancer by resort to a general physical examination might reasonably be conducted by a family doctor. In short, she ultimately took no issue with the medical reasonableness of Ms. F.C.’s physical examinations; she only took issue with Dr. Sloka’s decision to perform those examinations.

[4111] Regarding the cardiac examination, Dr. Bril did not think it reasonable for Dr. Sloka to conduct one. Dr. Bril acknowledged that for Ms. F.C.’s initial MRI, the radiologist opined that the apparent brain cysts might be infarcts – damage caused by blockages of blood vessels in the brain. However, she did not place much faith in the sensitivity of a stethoscope in cardiac examinations to listen for murmurs that might lead to blood clots and stroke. Also, she did not think a lacunar infarct would likely come from the heart or neck. In her view, lacunar infarcts are instead much more likely to come from local vessel occlusions in the brain. Playing sleuth, and thereby exceeding the permissible scope of her opinion, Dr. Bril also did not think Dr. Sloka was truly interested in exploring a cardiac cause for stroke, because he did not follow up the cardiac examination with an echocardiogram and EKG.

The Evidence of Dr. Sloka

[4112] Dr. Sloka had a vague recollection of Ms. F.C. as a patient but did not remember any details of her treatment. He relied upon his consultation letters for the truth of their contents. He also relied upon other documentation in his medical file to provide context.

[4113] Ms. F.C.’s family doctor referred her to Dr. Sloka. According to the referral letter, Ms. F.C. complained of a “pressure sensation that jolts” in her head. The family doctor ordered a CT scan and MRI. The radiologist who performed the MRI identified a cluster four small cysts in medial aspect of the right temporal lobe and right basil ganglia. The radiologist thought the cysts likely represented a cluster of prominent perivascular spaces. Alternatively, the radiologist identified three much less likely possibilities in his differential diagnosis: neurocysticercosis (parasite), cystic appearing neoplasm (cancer), or chronic lacunar infarcts (damage from small strokes). The radiologist had suggested a follow-up MRI in six months. From the radiologist’s recommendation of a follow-up MRI, Dr. Sloka interpreted the radiologist as having “some level of concern” about the possibility of the three diagnoses listed on the differential diagnosis. He believed that the radiologist wanted to look for any “interval change” – change over time – to investigate the plausibility of any of the differential diagnoses.

[4114] Dr. Sloka also noted that the family doctor expressed concern about the possibility that Ms. F.C. might have neurocysticercosis, because of her travel history.

[4115] Dr. Sloka testified that he met with Ms. F.C. in his office and obtained her medical history, in accordance with his standard practice. In his reporting letter, Dr. Sloka noted that, “At the present time she has seen an osteopath, and her pressure symptoms have settled down dramatically, though she still feels that the right side of her head is different than the left side of her head.”

[4116] To the extent that Dr. Bril suggested that the diagnoses on the differential diagnosis were not worth considering, Dr. Sloka disagreed with her. He observed that the family doctor had referred Ms. F.C. to Dr. Sloka for the purpose of ruling out neurocysticercosis, one of the three conditions on the differential diagnosis. The family doctor specifically asked him to “offer an opinion of what to do next.” Moreover, while the likelihood of Ms. F.C. suffering from any of these conditions was considered low, he believed the implications of each of these conditions to be serious. Dr. Sloka did not like to ignore such serious possibilities. In his view, one would want to discover these conditions as soon as possible. He added Ms. F.C.’s appointment onto his calendar two days after the receiving the referral letter (received on March 2nd by fax) and scheduled her appointment after hours – at 6:00 pm – due to his sense of urgency and concern about the possibility of cancer.

[4117] When speaking with Ms. F.C., Dr. Sloka inquired about her medical history, to assess plausibility that Ms. F.C. might have contracted neurocysticercosis. Dr. Sloka explained that neurocysticercosis is a parasitic infection obtained from eating pork. The parasite can cause multiple cysts in the brain. To his knowledge, the areas to which Ms. F.C. travelled were not endemic for the parasite that causes neurocysticercosis.

[4118] Dr. Sloka remained concerned about the possibility of chronic lacunar infarcts and cancer, though.

[4119] As Dr. Bril had done, he explained that there are two types of brain cancer, primary brain cancer and metastatic brain cancer. Primary brain cancer begins in the brain. Metastatic brain cancer begins elsewhere in the body and migrates to the brain. Dr. Sloka had learned that, in adults, brain cancer is ten times more likely to be metastatic brain cancer than it is a primary cancer.

[4120] To Dr. Sloka’s knowledge, the medical literature indicates that, when a doctor suspects metastatic cancer, then a general examination to search for sources of cancer is something the doctor should consider. Dr. Sloka understood from the medical literature that a general examination in search for metastatic cancer ought to include respiratory, thyroid, lymph node, abdominal, breast, skin, and pelvic examinations.

[4121] Dr. Sloka testified that he would have explained to Ms. F.C. that he wanted to look for evidence of cancer elsewhere in her body that could have spread to her brain.

[4122] Dr. Sloka also believed that chronic lacunar infarcts may have a cardiac origin. Dr. Sloka explained that chronic lacunar infarcts are scars left behind from old strokes. Strokes may have a cardiac origin. Dr. Sloka disagreed with Dr. Bril’s opinion that auscultation of the heart using a stethoscope would not be sufficiently sensitive to reveal meaningful information. Dr. Sloka stated that structural abnormalities in the heart can give rise to blood clots which in turn can cause strokes. He believed auscultation during a cardiac examination can reveal structural abnormalities in the heart. He therefore believed that a cardiac examination was warranted in Ms. F.C.’s case.

[4123] Based on Ms. F.C.’s presentation and history, Dr. Sloka believed he would have proposed several options to Ms. F.C. He believed he would have suggested that she repeat the MRI to look for interval change; and/or do more comprehensive radiological tests over brain, abdomen, pelvic and breasts to look for evidence of cancer; and/or perform a comprehensive physical examination that day to look for evidence of cancer and any cardiac abnormalities; and/or send her back to her family doctor for a comprehensive physical examination to look for evidence of cancer and any cardiac abnormalities. Dr. Sloka also believed he would have strongly recommended a repeat MRI, even if Ms. F.C. was not interested in pursuing the other options.

[4124] Dr. Sloka testified that, in describing the proposed examinations, he would have provided his standard description of each examination.

[4125] Dr. Sloka denied the suggestion that he only proposed a pelvic and breast examination once Ms. F.C.’s physical examination was already underway. He maintained his position that he proposed and explained all examinations in his office.

[4126] Based on his reporting letter, Dr. Sloka concluded that Ms. F.C. chose to be examined in his office.

[4127] Dr. Sloka did not agree with the suggestion that he could have referred Ms. F.C. to an oncologist to investigate the possibility of cancer. He testified that, in his experience, an oncologist usually requires some proof of cancer before accepting the referral.

[4128] Dr. Sloka disagreed with the suggestion that a search for cancer lay outside the field of neurology. He testified that he had the requisite training and experience to search for cancers elsewhere in the body that might have metastasized to the brain. He understood that the RCPSC required that he know how to conduct a general examination.

[4129] Dr. Sloka acknowledged that an annual pap-smear can sometimes involve a bimanual pelvic examination. He also acknowledged that Ms. F.C. had received a pap-smear before becoming his patient. However, he noted that Ms. F.C.’s most recent pap-smear occurred 14 months earlier. If the previous pap-smear involved a bimanual pelvic examination, he did not think the results would remain relevant at time of Ms. F.C.’s appointment with him.

[4130] Dr. Sloka testified that he conducted a neurological and general examination. On his evidence, he conducted each examination in accordance with his standard methods.

[4131] Dr. Sloka charted a normal neurological examination but noted in the impression portion of his consultation letter a “mild reflex asymmetry.” Regarding the general examination, he wrote, “General in detail examination was normal today except for a floating rib on the right side.”

[4132] In the Impression portion of his consultation letter, Dr. Sloka informed the family doctor that he believed that the brain lesion disclosed in the MRI was likely a prominent perivascular space. He went on to state that the other possibilities in the differential diagnosis were “concerning,” but he highlighted some things that lessened his concern. First, he noted that Ms. F.C.’s travel history did not involve places that are common for neurocysticercosis. Second, he wrote, “… and there are no symptoms or signs today of any neoplasm.”

[4133] Dr. Sloka was asked about Ms. F.C.’s report of inverted nipples. On her evidence, both her nipples were inverted. As I understand her, this was just the way her nipples were shaped. Ms. F.C. testified that Dr. Sloka noticed her inverted nipples during her breast examination. Dr. Sloka did not remember them. He also did not make any mention of them in his consultation letter or rough notes. He testified that inverted nipples can sometimes be a sign of cancer. He explained that breast cancer can shorten the ligaments connecting breast tissue to the nipples, causing the inversion of the nipples. However, if both nipples were inverted and that inversion were long-standing, he would consider it a benign breast characteristic and not a cause for concern. If he noticed inverted nipples, he would have asked questions about it. If the inversion was longstanding and bilateral, as Ms. F.C. appears to have described, he would consider the inversion a benign phenomenon. However, if the inversion occurred recently, particularly if only in one breast, then it would warrant further investigation.

[4134] Dr. Sloka testified that, after performing the physical examinations, his concern about cancer had been significantly reduced, but not eliminated, which is why he ordered a follow up MRI, to assess whether a follow-up MRI would reveal any interval change. In his mind, the gap between the last MRI and the new one was sufficient to allow for interval change but small enough to avoid too much change. He preferred a two-to-three-month gap rather than the six-month gap preferred by Dr. Bril. Given his reduced level of concern, he did not feel it necessary to requisition CT scans of Ms. F.C.’s chest, abdomen, and pelvis. Similarly, he did not feel it necessary to order bloodwork.

[4135] The Crown took a considerable amount of time questioning Dr. Sloka about the merits of each physical examination performed and also his failure to pursue other tests that might reveal the presence of cancer. In doing so, the Crown suggested that some examinations were not warranted because Ms. F.C. had not made any complaint about symptoms (lumps or skin markings). The Crown also suggested that if Dr. Sloka were really interested in finding evidence of cancer, he would have performed other examinations (e.g. Pap-smear) and ordered other tests (e.g. Analysis of pap-smear and blood work). I have chosen to refrain from summarizing this extensive cross-examination because Dr. Sloka did not agree with any of the suggestions made by the Crown and because the Crown did not introduce any evidence capable of contradicting him.

[4136] Dr. Sloka was also cross-examined about some of Ms. F.C.’s follow-up appointments. In essence, Dr. Sloka maintained that he scheduled each follow-up appointment to monitor Ms. F.C.’s symptoms and to allow for a review of successive MRI’s to look for any changes in the lesions shown in Ms. F.C.’s initial MRI.

Assessment of the Evidence and Analysis

[4137] This count cannot be assessed properly without taking a moment to reflect on Ms. F.C.’s situation from a high altitude.

[4138] As noted at the outset, the Crown’s expert conceded the medical reasonableness of a full-body general examination. This concession neutralizes a large portion of the Crown’s submissions, which are focussed on attacking the medical reasonableness of Dr. Sloka’s decision to conduct a general physical examination to screen for cancer. I see no profit in scrutinizing the Crown’s line-by-line critique of Dr. Sloka’s medical judgement when, ultimately, Dr. Bril conceded the reasonableness of the endeavour but contended that a neurologist ought not to have engaged in that endeavour.

[4139] Given Dr. Bril’s concession, the primary material issue becomes whether Dr. Sloka ought to have been the one to conduct the admittedly medically reasonable general examination.

[4140] The Crown argues that Dr. Sloka was “obliged to confine himself to the practical work of a neurologist.” Relying on Dr. Bril’s opinion, the Crown argues that Dr. Sloka operated outside his neurological lane. The Crown asks that I infer from this departure that Dr. Sloka possessed a sexual motive. From this sexual motive, the Crown asks that I conclude that the examinations were sexual activity.

[4141] In my view, there are fundamental problems with the Crown’s approach. First of all, the Crown’s case depends upon Dr. Bril’s categorical assertions about what all neurologists do and what all neurologists do not do. I have addressed Dr. Bril’s categorical assertions in the section of this judgement devoted to a general assessment of her evidence. I place little to no weight on those categorical assertions.

[4142] Dr. Sloka testified that he had the education, training, and experience necessary to competently perform a general in-detail physical examination for the purpose of detecting signs of metastatic cancer. He testified that according to his education, training, and experience, a general examination could properly be considered in cases where metastatic cancer was suspected. His evidence about his education, training, and experience stood uncontradicted. Also uncontested was his understanding about the medical reasonableness of a general examination when metastatic cancer was suspected. Furthermore, he testified that he was required, as a condition of obtaining his RCPSC certification as a neurologist, to know how to conduct a general physical examination. That evidence stood uncontradicted. He obtained his accreditation. An inevitable inference follows: he satisfied the national regulatory body of his competence to conduct a general physical examination.

[4143] Dr. Sloka testified that he booked Ms. F.C. after hours on top of an already booked day, because he was concerned about the possibility that Ms. F.C. had cancer. Two documents provide overwhelming confirmation of Dr. Sloka’s concern: a handwritten note on the referral fax and the appointment letter sent to the family doctor, which marked the appointment “urgent” and booked it a mere two days after receipt of the referral at 6:00 p.m. (after-hours).

[4144] To sum up, the evidence established (or could not dispute) that a general physical examination was a medically reasonable avenue to investigate the admittedly unlikely possibility that Ms. F.C. had metastatic brain cancer; while it would have been medically reasonable to do so, the family doctor did not perform that medically reasonable screening; instead, the family doctor referred her patient to Dr. Sloka for his guidance and opinion, having herself voiced concern about one of the much less likely differential diagnoses; the evidence unquestionably establishes that Dr. Sloka treated Ms. F.C.’s appointment as an urgent matter; a concern about cancer appears to be the only plausible explanation for Dr. Sloka’s proven sense of urgency; the uncontested evidence established that Dr. Sloka possessed the education, training, and experience necessary to conduct that general physical examination; and the evidence from both Ms. F.C. and Dr. Sloka strongly supports the conclusion that Dr. Sloka performed that general physical examination in a professional manner.

[4145] If, as the Crown contends, Dr. Sloka serially constructed ruses for the purpose of gaining access to his patient’s bodies, then why did he not propose or conduct any more invasive examinations at any of the next seven appointments (four of which were not supervised by a practice monitor)? The only other examination alleged and admitted was an examination of Ms. F.C.’s ear at the second appointment, which was done at her request because she was concerned that her symptoms might be related to an ear infection.

[4146] So, I ask, on what basis can I construe Dr. Sloka’s examination as anything other than one he subjectively believed was medically reasonable and on what basis can I conclude it was conducted in anything other than a medically reasonable fashion? In other words, on what basis can I conclude that the examination was sexual activity and not a medical investigation?

[4147] In spite of what is revealed after a high-altitude review of the evidence, the Crown argues that I can conclude Dr. Sloka engaged in sexual activity to which Ms. F.C. did not consent. I disagree. To explain my conclusion, I must begin with an assessment of Ms. F.C.’s reliability.

[4148] When speaking of Ms. F.C.’s reliability, I want to stress that I found her to be a credible witness. Also, there was significant overlap between her evidence and Dr. Sloka’s. Nevertheless, I do have concern about her reliability, particularly as it pertains to the finer details of her evidence, some of which are relevant to the important issue of motive.

[4149] As noted in the summary of Ms. F.C.’s evidence, she forgot that her family doctor had ordered her initial MRI. She forgot that the results of the MRI are what prompted her family doctor to refer her to Dr. Sloka. Until cross-examination, she forgot that Dr. Sloka reviewed that initial MRI in the office with her at her first appointment. Until cross-examination, she forgot that Dr. Sloka raised with her in the office the possibility of a parasitic infection and the possibility of cancer. Once her memory was refreshed in cross-examination, Ms. F.C. ultimately acknowledged that Dr. Sloka may have informed her of the various options available to investigate the possibility that the lesion on her MRI was metastatic brain cancer. She agreed he may have proposed performing CT scans of her chest, abdomen, and pelvis. She agreed he may have proposed a full-body physical examination to look for evidence of cancer that might be responsible for the lesion seen in her MRI. In other words, she conceded that Dr. Sloka’s competing account might be true. This memory lapse about the in-office MRI discussion and the true reason for her referral is therefore significant. This lapse provided her sole reason for reaching out to the CPSO and later reaching out to the police: she did not know why Dr. Sloka performed a pelvic examination. By the conclusion of her cross-examination, she conceded that Dr. Sloka expressed his concern about cancer and that he may have tied his proposed examinations to that concern. Given the overwhelming independent evidence of Dr. Sloka’s professed concern – as revealed by his scheduling of an urgent appointment – I have no difficulty concluding that Dr. Sloka did in fact propose the general physical examination to investigate the possibility that the lesion seen the MRI was cancer. The evidence therefore satisfies me that Ms. F.C. did at the time of her appointment know of the reason for her pelvic examination and every other examination conducted by Dr. Sloka. The evidence also satisfies me that, due to the passage of time, Ms. F.C. forgot that reason. Her evidence on this key subject was unreliable.

[4150] My conclusion that Dr. Sloka did in fact inform Ms. F.C. of the reason for the proposed full-body examination, causes me to conclude that Ms. F.C. was equally unreliable in her narration of the time and place of Dr. Sloka’s examination proposals. Once she conceded that Dr. Sloka reviewed the MRI with her in the office raised the cancer concern, she effectively conceded the likelihood that Dr. Sloka proposed a general examination in the office. If she knew in the office about Dr. Sloka’s cancer concern and that Dr. Sloka wanted to conduct a full-body screening for cancer, it makes no sense that she only learned of Dr. Sloka’s intention to conduct a pelvic and breast examination once the physical examination was already underway. I reject Ms. F.C.’s claim that Dr. Sloka only broached a pelvic and breast examination once a physical examination was already underway.

[4151] I also consider Ms. F.C.’s memory about the number of examinations to be unreliable. In her evidence in-chief, she alleged some, but not all elements of Dr. Sloka’s standard neurological examination. She also alleged a less extensive cardiac examination than Dr. Sloka’s standard cardiac examination – one which did not involve the exposure of her left breast. She then alleged a rib examination, a breast examination, and a pelvic examination. She did not remember Dr. Sloka performing thyroid, lymph node, skin, or abdominal examinations. She also did not remember a complete respiratory examination. Having said that, she ultimately acknowledged that Dr. Sloka may have conducted his standard full body examination. More specifically, she acknowledged that Dr. Sloka may have conducted lymph node, armpit, and thyroid examinations. In short, Ms. F.C. acknowledged that her memory of her examination was incomplete. Dr. Sloka’s contemporaneously recorded handwritten notes constitute admissions and are admissible for their truth. In his notes, he wrote, “wanted full exam COSE, COBE, and COPE.” Having regard to Ms. F.C.’s admittedly incomplete memory and having regard to Dr. Sloka’s contemporaneously recorded notes, I have no hesitation in concluding that Dr. Sloka conducted a full-body examination, which included neurological, cardiac, respiratory, thyroid, breast, lymph node, abdominal, skin, and pelvic examinations.

[4152] Ms. F.C.’s evidence about the content of any given examination was also unreliable. While she mentioned some components of Dr. Sloka’s standard neurological examination, she did not recall every component. Dr. Sloka’s contemporaneously written consultation letter indicates a complete neurological examination. Despite his failure to record the “mild reflex asymmetry” in the examination portion of his consultation letter, I am satisfied that the report of a complete neurological examination in his consultation letter is accurate. Similarly, I am also satisfied that Dr. Sloka performed a complete cardiac examination, not the minimal one described by Ms. F.C. Given the level of exposure entailed in a full-body examination, it makes no sense for Dr. Sloka to have only conducted a minimal cardiac examination of the kind described by Ms. F.C. Accordingly, I find her recollection of the cardiac examination to be unreliable.

[4153] I turn now to Ms. F.C.’s account of her pelvic examination. According to her memory, Dr. Sloka asked her to clench and bear down on his inserted fingers. Dr. Sloka denied making this request, because it is not pertinent to a search for cancerous masses. The Crown relies upon Ms. F.C.’s account to argue that Dr. Sloka did not conduct the pelvic examination to search for cancerous masses. In my view, Ms. F.C.’s account is unreliable. She testified that the examination was brief, taking no longer than necessary, about twenty to thirty seconds. She also said she had no concerns about the manner in which he conducted the examination. By her description, it was a fast and unmemorable examination. And when she provided this evidence, she did not initially remember the purpose of the pelvic examination. In my view, her failure to recall its purpose undermines her memory of Dr. Sloka’s method during what was, from her perspective, a brief and appropriate examination.

[4154] Ms. F.C. also provided unreliable evidence about the nature of the post-examination discussion in Dr. Sloka’s office. In-chief, she testified that Dr. Sloka did not inform her of the results of the breast and pelvic examinations. However, in cross-examination, after conceding Dr. Sloka’s expressed concern about cancer and conceding the possibility of a full-body examination, Ms. F.C. testified that Dr. Sloka told her that all examinations were essentially normal, except for an apparent floating rib.

[4155] Ms. F.C.’s concession about Dr. Sloka’s cancer concern also throws into doubt her recollection about her post-appointment discussion with her mother. If Dr. Sloka did in fact propose a full-body examination to search for cancer, it makes little sense for her to have expressed puzzlement to her mother about the breast and pelvic examinations. Notably, the Crown did not call Ms. F.C.’s mother to confirm what was discussed in the office before the examination or to confirm what was discussed between Ms. F.C. and her mother as they departed from the appointment.

[4156] Considering all these examples of unreliability, I am not prepared to accept Ms. F.C.’s evidence about the sequence of the examinations. On her account, Dr. Sloka examined her floating rib, before conducting the pelvic examination, which occurred before the breast examination, which was the final examination. Dr. Sloka disputed this. On his account, he conducted the pelvic examination last. Ms. F.C.’s trial evidence differed from her CPSO statement. In her CPSO statement, she said that the floating rib examination could have been the final examination. Ms. F.C. also recalled being given a paper towel to wipe away lubricant after the completion of all the examinations. On her account, Dr. Sloka continued to examine her breasts while her pelvic region was covered in lubricant. I consider this to be implausible. It seems far more plausible that he provided the paper towel immediately after the conclusion of the pelvic examination. Accordingly, it seems far more plausible that Dr. Sloka saved the pelvic examination for last, just as Dr. Sloka testified. Given Ms. F.C.’s inconsistent accounts about the sequence, I accept Dr. Sloka’s more plausible account regarding the sequence of the examinations.

[4157] I turn now to an assessment of Dr. Sloka’s evidence. Generally speaking, I found that Dr. Sloka provided credible and reliable evidence.

[4158] As already noted, I place no credence in the Crown’s challenge to the reasonableness of Dr. Sloka’s professed concern about cancer. Dr. Bril conceded the medical reasonableness of that concern and the medical reasonableness of a general examination to investigate that concern. Dr. Sloka’s records provide powerful confirmation of his contemporaneous concern.

[4159] Similarly, I place no credence in the Crown’s claim that Dr. Sloka’s sexual motive is proven by his willingness to stray beyond his neurological lane. His evidence regarding his training and qualification to perform the general examination stood unchallenged. CPSO guidelines did not preclude his decision. Indeed, the guidelines contemplate that the scope of practice of neurologists will differ from one neurologist to the next, depending on their training, experience, and competence.

[4160] The Crown suggests that by asking Ms. F.C. to clench her vaginal muscles, Dr. Sloka revealed that he was not actually looking for a cancerous mass. As noted, I found Ms. F.C.’s evidence on this point unreliable. In my view, circumstantial evidence, viewed as a whole, strongly supports Dr. Sloka’s claimed concern about cancer. In his evidence in-chief, Dr. Sloka denied asking Ms. F.C. to clench her vaginal muscles, indicating that he would not do so in a search for cancerous masses. Importantly, the Crown never cross-examined Dr. Sloka on the position he took in-chief. I accept Dr. Sloka’s evidence that he would not have asked Ms. F.C. to clench her vaginal muscles. And I accept that Dr. Sloka performed the pelvic examination for the sole purpose of finding obvious masses.

[4161] The Crown also argues that Dr. Sloka betrayed a lack of interest in cancer by failing to follow up on Ms. F.C.’s inverted nipples. This submission ignores aspects of both Ms. F.C.’s evidence and Dr. Sloka’s evidence. It is clear from Ms. F.C. that her inverted nipples were a consistent physical feature, not a newly acquired symptom. It is equally clear from her evidence that both nipples were inverted. Dr. Sloka testified that bilateral and long-standing inversion of the nipples would not raise a cancer concern. The concern arises when one nipple recently inverts. In that circumstance, the inversion suggests the possibility that a ligament connecting the breast tissue to the nipple has been tightened by the presence of a tumor in the affected breast. That concern was not present in Ms. F.C.’s case.

[4162] The Crown argues that Dr. Sloka betrayed a lack of interest in cancer by failing to conduct other avenues of investigation. For example, the Crown cites Dr. Sloka’s failure to order a full body CT scan, his failure to order blood work, his failure to conduct a pap-smear, and his failure to perform a rectal examination. This submission has no merit. Dr. Sloka testified that blood work would not be worthwhile because it would provide non-specific results. This evidence stood uncontradicted: they called no evidence from Dr. Bril on the subject and did not question Dr. Sloka about it in cross-examination. The Crown also called no evidence on the advisability of a rectal examination, and they did not ask Dr. Sloka if rectal examination should have been performed. The Crown also called no evidence to support the contention that a pap-smear was warranted in a full-body search for cancer. Moreover, the evidence fails to establish that Dr. Sloka failed to give Ms. F.C. the option of CT scans. Dr. Sloka testified that he would have offered CT scans as one of Ms. F.C.’s options. He testified that he explained the risks and benefits of all the proposed avenues of investigation, including CT scans of her chest, abdomen, and pelvis. Ms. F.C. agreed that Dr. Sloka may have explained the CT scan option. Neither Dr. Sloka nor Ms. F.C. had a memory of how Ms. F.C. responded to that option. Contrary to the Crown’s contention, Dr. Sloka did not testify that Ms. F.C. declined a CT scan because she was concerned about radiation. One obvious inference flows from the absence of any CT scans in Ms. F.C.’s medical file, though: she declined the option and instead indicated that she “wanted a full exam,” just as Dr. Sloka recorded in his rough notes.

[4163] The Crown similarly contends that Dr. Sloka ought to be disbelieved because he was not aware of the relative statistical likelihood of various forms of cancer giving rise to metastatic brain cancer. The Crown tendered no evidence to support the statistical propositions put to Dr. Sloka during cross-examination. I should note here that the Crown also deliberately refrained from giving Dr. Sloka advance notice of the patient about which he would next be questioned. On the spot, the Crown asked Dr. Sloka to confirm or refute the statistical percentages being claimed. I have no idea where these statistics came from. I have no idea whether they are accurate. I also have no idea as to how a decision to perform a full-body, cancer-screening, physical examination would be informed by knowledge of the relative likelihood of various forms of cancer being the cause of metastatic brain cancer.

[4164] The Crown also challenged Dr. Sloka’s credibility on the basis that he failed to make an oncology referral. The Crown contends that this failure discloses that Dr. Sloka was not truly concerned about cancer. This submission ignores the powerful circumstantial evidence to the contrary, which I have already discussed. Moreover, Dr. Sloka explained that an oncologist usually requires some proof of cancer before accepting a referral. His evidence on this point was not contradicted.

[4165] The Crown also argues that, when ordering the follow up MRI on March 4th, Dr. Sloka did not specifically identify for the radiologist that he was concerned about cancer. There is no evidence to support this contention. Dr. Sloka’s requisition is not in the file, only the resulting follow-up MRI report. Dr. Sloka had no control over the contents of that report. In that report, the radiologist summarized the requisition: “21-year-old female with cystic lesion within the right basal ganglia. Please reassess.” That summary is non-specific. It neither confirms nor denies the nature of Dr. Sloka’s concern. In any event, Dr. Sloka testified that he ordered the MRI to assess whether there was any interval change, because the presence or absence of change would inform his conclusions. As it happens, the follow-MRI disclosed, “no significant interval change to previous [MRI].”

[4166] The Crown further argues that Dr. Sloka deliberately concealed the fact of his examinations, thereby betraying an improper motive rather than a genuine concern about cancer. This submission has no merit. Dr. Sloka specifically reported a general in-depth examination. He also reported, “There are no symptoms and signs today of any neoplasm.” In doing so, he made plain that he searched for signs of cancer during his general examination. Apart from physical palpation, auscultation, and visual observation, I can conceive of no other ways in which Dr. Sloka might search for “symptoms and signs” of “neoplasm” during a physical examination. Dr. Bril and the Crown also took issue with Dr. Sloka’s use of the term “general examination.” The Crown contends that employment of the term was designed to obfuscate the nature of the examinations conducted. While that term might not be one that Dr. Bril might use, Dr. Sloka’s files indicate that other neurologists were known to employ that term: Dr. Paul Cooper (for K.S.-B.) and Dr. Karen Ho (for S.M.). Moreover, Dr. Sloka wrote in his rough notes that Ms. F.C., “wanted a full exam COSE, COBE, COPE.” In doing so, Dr. Sloka memorialized the nature of his general examination. The Crown illogically suggests that by memorializing the examinations, Dr. Sloka concealed them. I fail to see how documenting a “full exam” would assist in any cover-up. Similarly, while Dr. Sloka’s acronyms (COSE, COBE, and COPE) would not be readily decipherable to others, their meaning could be readily obtained from him, which is what occurred during the course of this case. There is simply no merit to the suggestion that Dr. Sloka attempted to hide his full-body examination of Ms. F.C..

[4167] The Crown also contrasts Dr. Sloka’s reporting of Ms. F.C.’s general examination to his reporting of Ms. S.T.’s general examination. Both cases involved purported searches for cancer. Both involved negative results. With Ms. S.T., Dr. Sloka did not make mention of the general examination. With Ms. F.C., he mentioned the general examination and told the family doctor that he found no evidence of cancer. Ms. S.T.’s examination occurred near the outset of Dr. Sloka’s practice. Ms. F.C.’s examination occurred five years later. Dr. Sloka conceded that he should have documented Ms. S.T.’s general examination. He explained that this appointment occurred early in his practice, and he was probably caught off-guard by her unusual case. I accept that explanation.

[4168] The Crown argues that, because Dr. Sloka ordered a CT scan for Ms. S.T. but not for Ms. F.C., he was not interested in searching for cancer in Ms. F.C. This is an unusual submission for several reasons. First, embedded in the submission is the implicit concession that Ms. S.T.’s CT scan was in fact a search for cancer. Of course, the Crown has contended that Dr. Sloka was not searching for cancer when he ordered the CT scan for Ms. S.T. Secondly, the submission assumes that Dr. Sloka has exclusive control over decisions about which tests and procedures occur; it ignores the fact that, without patient consent, no tests and procedures should occur. Ms. F.C. gave no evidence over whether she accepted or rejected the possible recommendation of CT scans, but she did concede that this investigative step may have been offered. In the circumstances, the difference between her treatment and Ms. S.T.’s treatment is of no moment.

[4169] Dr. Sloka testified that he conducted his examinations in accordance with his standard methods and that he did so for a medical purpose. In examining this claim, it is important to remember that Ms. F.C. believed that Dr. Sloka performed the examinations in an appropriate and professional manner. She held that belief when the examinations occurred, when she contacted the CPSO to inquire about the possible rationale for a pelvic examination, and when she later contacted the police. As far as I can tell, she continued to hold that belief at trial. Her subjective response to the examinations supports rather than detracts from Dr. Sloka’s assertion that he performed the examinations in a medically appropriate manner in accordance with his standard methods.

[4170] The Crown relies upon cross-count similar fact evidence to support the evidence of Ms. F.C. I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations on any given patient in this case. However, having considered the entirety of the evidence, including Dr. Sloka’s evidence about his medical purpose, I am fully satisfied that Dr. Sloka has refuted any suggestion that he possessed a sexual purpose when examining Ms. F.C..

[4171] The Crown also relies upon some granular similarities between the evidence of some patients and the evidence of Ms. F.C. In particular, the Crown relies upon on four alleged similarities with other patients: similarities between pelvic examinations, a desire to search for moles and other skin irregularities, a failure to specify the examinations he intended to conduct, and a failure to explain the reason for the intended examinations.

[4172] In my view, the Crown’s reliance upon the first two similar fact categories is misguided, because these similarities are relied upon to prove facts that are not in issue. Dr. Sloka agrees that he performed pelvic and skin examinations. The similarities in body position for pelvic examinations (the most obvious body position imaginable) are therefore of no moment. Likewise, an interest in looking for moles and other skin abnormalities is of no moment: a search for skin cancer obviously involves a search for moles.

[4173] As for the last two alleged categories of similarity, the evidence does not support the Crown’s submission. Ms. F.C. eventually admitted that her family doctor made the referral because of a concern about the MRI. She eventually admitted that Dr. Sloka identified cancer as one of his concerns. And she eventually admitted that Dr. Sloka may have proposed a full-body physical examination to investigate that cancer concern. The evidence does not support the Crown’s contention that Dr. Sloka failed to identify the nature of the purpose of the examinations (“the what”). Similarly, by acknowledging that Dr. Sloka reviewed the MRI and thus reviewed with Ms. F.C. a concern about cancer, and by acknowledging the possibility that Dr. Sloka proposed a full-body examination to look for cancer, Ms. F.C. acknowledged that Dr. Sloka had informed her of the reason for the examinations (“the why”). There is no basis in the evidence for concluding that Ms. F.C. had been left in the dark about the nature of and the reason for the examinations that were ultimately conducted. Ms. F.C. does not belong in any contingency of complainants who claim they were neither told “the what” or “the why” of the examinations. As with many complainants the Crown puts in this category, Ms. F.C. does not belong in it.

[4174] Having considered all the evidence, I am satisfied that Dr. Sloka possessed a genuine concern about the possibility that Ms. F.C. had cancer. As a result, he scheduled an urgent appointment after hours. I am satisfied that he presented Ms. F.C. with options after obtaining her medical history. I am satisfied that amongst those options, Dr. Sloka offered to do a general in-detail physical examination to search for obvious signs of cancer. I am satisfied that he was genuinely motivated by a concern about cancer when he made this offer. I am satisfied that Ms. F.C. informed him that she wanted a full body examination, just as Dr. Sloka reported in his rough notes. I am satisfied that Dr. Sloka possessed the training, experience, and competence to do the examinations he proposed. I am satisfied that he conducted all the examinations he believed were pertinent to a cancer screening physical examination, in accordance with his training. I am satisfied he conducted these examinations in accordance with his standard methods. I am satisfied that, as a result, Ms. F.C. believed that Dr. Sloka performed the examinations in a professional and appropriate manner. I am satisfied that Dr. Sloka saw Ms. F.C. periodically for another seven appointments, so that he might monitor her. I am also satisfied that, had Ms. F.C. remembered the initial MRI and remembered Dr. Sloka’s concern about cancer, she would likely never have contacted the CPSO and never have contacted the police.

[4175] The Crown has failed on any standard of proof to establish that the examinations conducted by Dr. Sloka were sexual in nature. In my view, the evidence overwhelmingly establishes that the examinations were motivated by medical, not sexual, considerations. I have no basis for concluding that Dr. Sloka conducted these examinations in anything other than a medically appropriate manner. The evidence is only capable of establishing that Dr. Sloka proposed medical examinations, that Ms. F.C. consented to medical examinations, and that Ms. F.C. received medical examinations. The Crown has failed to prove that a sexual assault occurred.

[4176] Dr. Sloka will be acquitted on this count.

ii. M.G. (Count 41)

A Summary of Ms. M.G.’s Complaint and Dr. Sloka’s Response to It

[4177] Ms. M.G. alleged that Dr. Sloka touched her breasts during an examination to investigate J.H.’s Syndrome.

[4178] Dr. Sloka denied touching Ms. M.G.’s breasts. He testified that he auscultated the apices of Ms. M.G.’s lungs using a stethoscope to listen for the presence of a tumor that might be compromising a nerve, thereby causing J.H.’s Syndrome. Any contact by his hands with Ms. M.G.’s chest would have occurred incidentally to his use of the stethoscope at the apices of Ms. M.G.’s lungs.

The Circumstances of Ms. M.G.’s Referral and Treatment History

[4179] Ms. M.G. relied upon old calendars and Dr. Sloka’s records to piece together the chronology of her referral to Dr. Sloka.

[4180] In May of 2014, Ms. M.G. was suffering from a cold or a flu. During that time, her left eye was behaving strangely. Her left eye was drooping, and her left pupil was unusually large. Ms. M.G. went to see her family doctor, who sent her on to the Grand River Hospital ER. She attended the ER department on May 2, 2014. Medical records indicate that she received both a CT scan and a chest x-ray at the ER, though she did not remember receiving either. The ER doctor referred Ms. M.G. to Dr. Sloka to investigate the possibility of J.H.’s Syndrome. Ms. M.G. received an appointment for June 10, 2014. Before attending her appointment with Dr. Sloka, Ms. M.G. attended for an MRI on May 8, 2014.

The Evidence of Ms. M.G.

[4181] Ms. M.G. was 46 years old when she was Dr. Sloka’s patient. She was 53 years old when she testified.

[4182] Ms. M.G. admitted to having an extremely limited and incomplete memory of her appointment with Dr. Sloka. In-chief, when she testified about the sequence of her examinations, she stated, “I do not remember specifics. No. I’m remembering feelings.” In cross-examination, she stated, “…I’m trying to recall memories from a long time ago. I’m relying on feelings and bits and pieces.” Her poor memory was evident throughout her evidence as she spoke of her appointment on June 10, 2014, and the possibility of a second appointment on August 29, 2014.

[4183] As noted, Ms. M.G.’s initial visit with Dr. Sloka occurred on June 10, 2014. Dr. Sloka’s consultation letter for that date indicates that he planned to see her in follow up after the June 10th appointment. His records also indicate she attended for a follow up appointment on August 29, 2014. Ms. M.G. adamantly maintained that she only ever attended a single appointment with Dr. Sloka. She testified that instead of a second appointment she received a phone call from Dr. Sloka’s office reporting her test results. Her position at trial differed from what she told CPSO investigators. She told the investigators that she was unsure whether the call about her test results came from Dr. Sloka or another doctor she was seeing at the time. When confronted with the contradiction, Ms. M.G. claimed that she used to have notes from that phone call but had lost them. She continued to insist that she never attended Dr. Sloka’s office for a second appointment.

[4184] Turning to the appointment on June 10th, Ms. M.G. testified that the visit began in the waiting room at Dr. Sloka’s clinic. She testified in-chief that she remembered filling out the patient information sheet, which can be found in the medical records brief for Ms. M.G. However, she could not recall when, during her appointment she filled out the document. Initially, during cross-examination, she continued to claim that she remembered filling out the document. Upon further questioning, though, she admitted she had no memory of filling out the document. She only recognized her handwriting.

[4185] Ms. M.G. recalled that, when Dr. Sloka was ready for her, she walked down the hallway to his office. She drew a diagram for CPSO investigators, which showed Dr. Sloka’s office down the hall from the waiting room. In fact, Dr. Sloka’s office was directly across the hallway from the waiting room.

[4186] Ms. M.G. remembered having a conversation with Dr. Sloka in his office about her history and symptoms. As she recalled it, they spoke about her eye and how her symptoms had changed since her ER visit. By the time of the appointment, her symptoms had almost dissipated. So, she was feeling a bit silly being there. In her evidence in-chief, she also recalled looking at her MRI images on Dr. Sloka’s computer screen. In cross-examination, she was less sure about what she saw on the computer screen. On the question of being shown the MRI images, she stated, “Yes. Yeah. Or something on the screen. I remember looking at images on the screen, yeah.” She followed up, saying, “I can’t say for sure what they were…. I don’t remember specific details.”

[4187] Ms. M.G. testified that, after the initial consultation, Dr. Sloka told her that he would be conducting a physical examination. In her evidence in-chief, she could not recall Dr. Sloka providing details about the type of examinations he was proposing. Similarly, in cross-examination, she testified that she could not remember the specific words Dr. Sloka used. Accordingly, she could not remember whether Dr. Sloka proposed a neurological examination to ascertain whether she suffered from an ongoing neurological injury that might explain her symptoms. Similarly, she could not remember whether Dr. Sloka proposed listening to the arteries in her neck because the nerve associated with J.H.’s Syndrome runs along the carotid artery. She agreed to these possibilities, though. Similarly, she did not remember Dr. Sloka proposing a respiratory examination because certain conditions in the chest may cause J.H.’s Syndrome. However, she offered some resistance to the possibility that Dr. Sloka proposed a respiratory examination, because she purportedly remembered being surprised after her breasts were exposed. Subsequently, she agreed that Dr. Sloka may have provided some information that explained the need for her to remove her clothes from the waist up for her physical examination, but she could not remember the reason provided, or if it was ever provided. Later in Ms. M.G.’s cross-examination, her claim that she was surprised at the exposure of her breasts was shown to be contradicted by her CPSO statement. In her statement to CPSO investigators, Ms. M.G. told investigators, “So, that part wasn’t alarming to me at all. And I know that doctors have to do things that are uncomfortable [when] doing exams.” Initially, when confronted with this inconsistency, Ms. M.G. changed the subject, testifying that she did not think that anyone disputed the fact that Dr. Sloka conducted an examination. Ultimately, though, she conceded she was not surprised, retreating from her initial testimonial position. This inconsistency called into question Ms. M.G.’s basis for doubting that Dr. Sloka proposed and explained a respiratory examination.

[4188] After proposing an examination, Dr. Sloka asked her to go into the adjoining examination room, remove her clothing from the waist up, and put on a covering of some sort. She could not recall whether the covering was a paper sheet/covering or a hospital gown. Initially, she testified that whatever the type of draping, it opened at the front. However, in her CPSO statement, she old investigators that she could not remember whether the gown fastened at the back or the front.

[4189] Dr. Sloka remained outside the exam room while she got undressed and covered. He then came in for the examination.

[4190] Regarding the examination, Ms. M.G. testified that she did not remember a lot of the specifics about the examination. At times she referred to her memory as vague. She recalled Dr. Sloka performing tests on her eyes “with lights and equipment.” She thought she sat on the examination table for this portion of the examination, but she was not sure whether she may have been laying down for some portions.

[4191] Elsewhere, Ms. M.G. remembered laying down on the examination table at some point. She had the covering over top of her. She testified that Dr. Sloka then said, “Now I’m just going to check here [referring to her breasts]” and said something about how “… it could all be connected.” He never specifically told her he would be performing a breast examination.

[4192] According to Ms. M.G., Dr. Sloka then pulled open her covering to expose her breasts. In giving this evidence, she provided a demonstration, pulling both hands apart from the centre of the chest outwards. In doing so, she indicated both breasts were exposed simultaneously. This demonstration was curious, given Ms. M.G.’s inability to remember whether she wore a gown or a paper sheet. Moments later, she testified he exposed one side, checked around, then exposed the other side. As noted already, Ms. M.G. initially testified that she was surprised when Dr. Sloka pulled down her covering. However, once presented with her CPSO statement to the contrary, Ms. M.G. agreed that she was not surprised, that Dr. Sloka told her that he was going to expose her breasts, and that Dr. Sloka was “very doctor-like” when explaining the need to pull down her covering. Indeed, upon reflection, she recognized that Dr. Sloka would be doing an examination of her chest at some point, because she disrobed from the waist up.

[4193] Ms. M.G. agreed that Dr. Sloka pulled open the draping in a professional manner. And she was not alarmed when he removed the covering. She allowed him to do this, explaining that she disengaged, looked up at the ceiling, and allowed the doctor to do what is necessary. She did not watch or see what Dr. Sloka did next.

[4194] According to Ms. M.G., she could then feel Dr. Sloka press around the area of her breasts. She could not recall if she was sitting up or standing as this occurred. She was uncertain as to what contacted her chest, because she didn’t look. In her evidence in-chief, she speculated that Dr. Sloka “probably” used his fingers, but she did not purport to know for certain the sensation she felt. According to Ms. M.G., Dr. Sloka examined one side at a time, pressing down in a similar way on each side. Ms. M.G. did not provide much more detail about the precise locations in which pressure was applied. The most detail she was able to provide was, “He was using his hand and pressing around my breast.”

[4195] Ms. M.G. agreed that whatever Dr. Sloka did, it was not a breast examination as she knew one. She agreed it was different than the breast examination performed by her family doctor. She agreed it did not involve her raising her arms. It also did not involve the palpation of the lymph nodes in her armpits. She told the CPSO investigators, “…it just seemed like … as if he actually was looking for something… connections for nerves … or something going to my brain… as opposed to looking for lumps in my breasts.”

[4196] Defence counsel suggested to Ms. M.G. that Dr. Sloka was using a stethoscope on various places on her back and chest to listen to her lung fields. Regarding the possibility he listened to her back as she sat upright, Ms. M.G. testified, “It’s possible and I don’t recall those specific details.” Regarding the use of the stethoscope on her chest as she lay down on the examination table, Ms. M.G. testified, “I suppose it’s possible but again I don’t recall those specific details so this is all very hypothetical and I’m sorry, I can’t remember those exact details.” She went on to say, “Well, yeah, it’s obviously very clear even when I made my statement in 2018 that I didn’t recall the specifics of every small detail that occurred.” Ms. M.G. then pushed back, stating, “I don’t recall those specific details, but I will tell you my memory is that it was fingers feeling around on my breast.” Ms. M.G. went on to argue, “I think I would have noticed though the difference between fingers and a cold stethoscope and I can tell you it wasn’t a cold instrument that were touching my breasts.” This was the first time she ever purported to have a memory the temperature of the thing contacting her chest. When asked if she was reporting an actual memory, Ms. M.G. maintained that she did not feel a medical instrument on her chest, thereby implying she felt Dr. Sloka’s fingers. Ms. M.G.’s newfound certainty about feeling fingers around her chest contradicted the uncertainty she expressed in-chief and the uncertainty she expressed to CPSO investigators. She agreed that she told CPSO investigators that she didn’t know what contacted her chest and that she could only guess that it was his fingers that made contact. She confirmed that what she told the CPSO was true and accurate. Nevertheless, she still felt as though Dr. Sloka used some part of his hands, and not an instrument to press down on her chest, despite what she told the CPSO.

[4197] Ms. M.G. had testified that as Dr. Sloka examined her chest, he told her “Everything is connected.” She had told CPSO investigators, “… it just seemed like he – if he actually was looking for something, he was looking for connections to – I don’t know, nerves or something going to the brain versus looking for lumps in my breast.” Following up on what Ms. M.G. told CPSO investigators, defence counsel suggested to Ms. M.G. that Dr. Sloka told her that he was looking for physical causes that might be affecting the nerve that runs from her affected eye, down the carotid artery, and into the chest over the lungs.” Ms. M.G. responded, “That’s not what I remember. I remember the words ‘it may all be connected’.” She had no memory of the explanation suggested by counsel but conceded, “Anything is possible, but I don’t recall ever hearing those words.” She agreed, though, that, “There’s a lot of specific details I do not recall. It was seven years ago. And when I made the statement [to CPSO investigators] it was four years had passed.”

[4198] In cross-examination, defence counsel suggested to Ms. M.G. that Dr. Sloka performed a full neurological examination before listening to her lung fields. Ms. M.G. did not recall whether Dr. Sloka performed all the components of a standard neurological examination, but she conceded the possibility that he did so. She also could not specifically recall whether Dr. Sloka examined her neck and torso with a stethoscope but conceded the possibility that he did so. Despite the vagueness of her description of the examination, she still felt that Dr. Sloka pressed down on her breasts with some portion of his hands. She also testified that the chest examination felt it was not done in a scientifically medical approach - and felt strange and “undoctor-like.” Repeatedly, Ms. M.G. asserted that what she recalled were “feelings” and “bits and pieces”, snippets.

[4199] According to Ms. M.G., the examination ended after the examination of her breast area. After she got dressed, she met Dr. Sloka back in his office. According to Ms. M.G., he told her that he would go over his findings and get back to her. The post-examination discussion was quite brief. She did not recall him reporting to her that he was unable to hear any carotid “bruits” [sounds] or abnormal sounds at the apex of her lungs, findings which were recorded in Dr. Sloka’s consultation letter to her doctor.

[4200] Ms. M.G. testified that she spoke to her husband about the appointment that night. She recalled being in the kitchen, leaning into her husband, and whispering “it was a little weird.” She explained that she whispered because the children were home. Interestingly, in her CPSO statement, she reported that she discussed this topic with her husband four years later when informing him that she had contacted the CPSO. She told the CPSO investigators that, during that later conversation, she told her husband that she could not recall whether she told him her concerns about the examination in its immediate aftermath. She told CPSO investigators that, in response to the uncertainty she expressed to her husband, her husband told her “I kind of vaguely remember you saying something that ‘it was really weird’.” To sum up, before discussing the issue with her husband four years after the appointment, Ms. M.G. could not remember she discussed the examination in its immediate aftermath. Having received her husband’s feedback, she testified to having a memory of contemporaneously discussing the examination with her husband. The evolution of her evidence on this point raises the prospect that Ms. M.G.’s current memory about her conversation with her husband is not a true memory, but rather the product of suggestion.

[4201] Ms. M.G. testified that she only attended one single visit with Dr. Sloka. She did recall that Dr. Sloka arranged for more testing on her, including an MRI, and she did not recall Dr. Sloka’s office arranging a follow-up visit to review the results of her tests. Instead, she testified that at some point after her one and only appointment, she received a phone call from someone at Dr. Sloka’s office. The person who called told her that her tests were “clear” and that she had nothing to worry about. She was certain that she never re-attended Dr. Sloka’s office. Unfortunately, Ms. M.G.’s medical records suggest otherwise. According to a consultation letter written by Dr. Sloka and according to the patient data sheet from Dr. Sloka’s office, she did in fact re-attend Dr. Sloka’s office, whereupon they discussed her test results. Indeed, Dr. Sloka’s consultation letter indicates that he examined Ms. M.G.’s eyes with the room lights off and then with the room lights on during this follow up appointment. Despite what was written in Dr. Sloka’s consultation letter to her doctor, Ms. M.G. was adamant that she never attended a follow up visit with Dr. Sloka.

[4202] I turn now to Ms. M.G.’s decision to come forward with a complaint. This decision was made after Ms. M.G. read a news story on July 11, 2018. The article talked about someone claiming that Dr. Sloka unnecessarily checked her breasts during a medical appointment. She testified, “I had this feeling of ‘Oh my god. That is exactly what happened to me when I was there.’” She stewed on her discovery for a little while. Then, in the afternoon, she contacted the CPSO. That night, after watching a story about Dr. Sloka which aired on the local evening news, she told her family that she had contacted the CPSO. It was then that she and her husband spoke about their recollections of her appointment years ago.

[4203] Ms. M.G. was a daily subscriber to The Record and received news feeds from CBC and CTV. She read news daily.

The Evidence of Dr. Bril

[4204] Dr. Bril testified that a breast examination was not neurologically warranted. Intentional breast touching was inappropriate. That evidence was not controversial.

[4205] Dr. Bril testified that the nerve implicated in J.H.’s Syndrome travels from both sides of the spinal cord to the inner side of the lungs, up to the apices of the lungs, along the carotid arteries, and into the skull through the bottom of the skull. Damage at any point along the nerve can cause the symptoms of J.H.’s Syndrome. J.H.’s Syndrome can involve constriction of the pupil, drooping of the eye, and decreased sweating on the side of the face affected. The symptoms experienced will depend upon the location and extent of the damage to the nerve. Cancer at the apex of a lung can cause J.H.’s Syndrome.

[4206] In her testimony in-chief, Dr. Bril testified that you would not hear a noise from the tumor at the top of lungs by auscultating with a stethoscope. She testified that, “You should do a chest x-ray of the area. You’re looking for a tumor up there that might be causing this – getting the nerve fibres up there but you don’t hear a noise over the tumor.” She noted that Ms. M.G. had already received a chest x-ray at the ER, which was normal.

[4207] Dr. Bril’s testimony on the subject eventually changed in cross-examination. At first, she maintained the need for a chest x-ray. And she again noted that the hospital chest x-ray was normal. She also noted that “listening is extremely insensitive.” She believed that any mass at the top of the lungs would be too small to cause audible decreased airflow. She also noted that the patient’s symptoms had subsided to a degree: the drooping went away, and the constriction of the pupil had gone from being constant to intermittent. She believed that, if Ms. M.G. had a tumor, the symptoms would persist, unless the tumor shrunk. She added, “A tumor is not going to get any better by itself.” Dr. Bril was not qualified as an oncologist. Dr. Bril’s testified that auscultation with a stethoscope was an insensitive method in which to search for a cancerous mass at the apices of the lungs. Dr. Bril then testified that a chest x-ray would also be insufficient, altering her original position. A CT scan would be required to get a proper look at the apices of the lungs; a chest x-ray might not detect a tumor. Dr. Bril then agreed that it was possible for a small tumor to cause intermittent J.H.’s symptoms, but she considered it a “very remote possibility.”

[4208] On the general topic of neurologists using stethoscopes, Dr. Bril believed that “a lot of neurologists” were not using stethoscopes anymore to listen to the heart and had not been doing so since approximately the early 2000’s. Dr. Bril did not hold that belief before preparing her opinion for this case. She came to hold that belief after speaking to a stroke colleague at the University Health Network in Toronto. She was surprised to learn that neurologist’s do not use stethoscopes anymore to listen to the heart. Given the specialized nature of her practice, she herself had not done so after the first 10 years of her practice. Her skills with a stethoscope had dramatically declined as a result, to the point where she had admittedly lost confidence in her ability to perform a cardiac examination. That was one reason she consulted her stroke colleague. None of this evidence constituted anything remotely resembling a peer reviewed collection of data about the statistical prevalence of a particular practice in the neurological community. It more closely resembled water-cooler talk being passed off as an expert opinion based upon the proper application of the scientific method. It lacked almost any foundation. It was an extreme example of anecdotal evidence. As discussed in my general assessment of Dr. Bril’s evidence, I afford no weight to it whatsoever, other than to conclude that Dr. Bril had no confidence in her own ability to properly conduct auscultation with a stethoscope.

[4209] Dr. Bril explained the purpose of auscultating the carotid artery in a patient with J.H.’s Syndrome. She testified that carotid bruits are sounds made as blood passes through a narrowed carotid artery. She noted that the nerve associated with J.H.’s Syndrome passes along the carotid artery. Implicitly, she indicated that the cause of the carotid narrowing might also compromise the nerve passing along the carotid artery.

[4210] Despite Dr. Bril’s skepticism about the utility of using a stethoscope to listen for the presence of a tumor at the apices of the lungs, Dr. Bril considered Dr. Sloka’s decision to listen for carotid bruits to be neurologically reasonable, at the time. She added that currently, “We would now do ultrasounds of the carotids, but it was reasonable [at the time].” Then she said, “So, we don’t do it as much, but it was reasonable then to do it.” She explained that auscultation of the carotid artery created a risk of dislodging arterial plaques that might cause a stroke. Earlier in her evidence she spoke of there being a debate about palpating the carotid artery and auscultating it, due to the risk of dislodging plaques. In giving this evidence, she betrayed a lack of consensus in her profession. So, even at trial, Dr. Bril appeared to allow for the possibility that some neurologists would still consider auscultation of the carotid artery to be reasonable.

The Evidence of Dr. Sloka

[4211] Dr. Sloka had no independent memory of Ms. M.G. He relied upon his consultation letters for the truth of their contents and the rest of her chart for necessary context.

[4212] In reviewing his consultation letter from Ms. M.G.’s June 10, 2014, Dr. Sloka noted a dictation error. In the examination section, he reported, “I can find no carotid treats and no abnormal sounds and a pack several months.” He testified that this passage should have read, “I can find no carotid bruits and no abnormal sounds at the apex of the lung.” I should note that, during Dr. Bril’s evidence, the defense notified the Crown of the dictation error and the correction. At the time, the Crown indicated, “that makes sense.” Dr. Bril’s opinion was based upon the correction. Similarly, the corrected dictation was put to Ms. M.G. during her cross-examination.

[4213] Relying on his medical file, Dr. Sloka testified that Ms. M.G. was referred by the GRH ER with a request to rule out J.H.’s Syndrome.

[4214] To his knowledge, J.H.’s Syndrome has three symptoms: a droopy eye, a constricted pupil, and decreased sweating on the affected side of the face. Not all three symptoms need to be present. One can have a partial syndrome. Dr. Sloka noted that the eyeball appears to sink, but it does not actually do so.

[4215] Dr. Sloka had access to Ms. M.G.’s CT scan and MRI results at the time of Ms. M.G.’s appointment. It was not uncommon for him to show imaging to a patient from his computer.

[4216] After obtaining Ms. M.G.’s history, which was reported in his consultation letter, Dr. Sloka proposed and then performed a neurological, respiratory, and carotid artery examination.

[4217] Dr. Sloka used a stethoscope for the respiratory and carotid artery examinations.

[4218] Dr. Sloka explained the reasoning for the respiratory examination. He was listening for decreased airflow in the lungs that might indicate the presence of a tumor. Cancer at the apices of the lungs could affect the nerve associated with J.H.’s Syndrome. Dr. Sloka disagreed with Dr. Bril’s claim that one could not hear a tumor by auscultation. He testified that if a tumor was present, you would hear less air flow in that location. Dr. Sloka also disagreed with Dr. Bril’s opinion that there was no reason to be concerned about a tumor because Ms. M.G.’s symptoms had partially dissipated.

[4219] Dr. Sloka testified that he understood the medical literature to indicate that it is important to listen to the lungs because it could be ominous for any prognosis if a tumor is missed.

[4220] Dr. Sloka agreed that in explaining the respiratory examination to Ms. M.G., he would have told her something “close to” what Ms. M.G. described to CPSO investigators: looking for connections to nerves or something going to her brain. Dr. Sloka rejected the suggestion that he simply told Ms. M.G. that “it may be all connected.” He testified he would have been more specific in explaining what he was looking for.

[4221] Dr. Sloka testified that Ms. M.G. would have removed her clothing from the waist up and worn a gown for the examinations. While he had no memory of it, he believed she would probably have worn her pants, or at least her underwear. He directed all his patients to wear their gown open at the back.

[4222] The neurological examination yielded normal results.

[4223] Dr. Sloka described his procedure for a respiratory examination. He testified that he would listen using the stethoscope on various locations on Ms. M.G.’s back and chest, comparing one side to the other. In his description, a normal respiratory examination includes auscultation at the apices (the top) of the lungs. The movement of the stethoscope would follow the anatomy of the lungs.

[4224] In Ms. M.G.’s case, he was not sure if he did a complete respiratory examination, or he only listened at the apices of the lungs. His consultation letter did not inform him one way or the other. In his handwritten rough notes, he recorded the presence of good air entry bilaterally at back and apices. This notation did not clarify things.

[4225] Dr. Sloka testified that, if he did a full respiratory exam, he might listen to the side of the rib cage/ chest wall. He was taught to listen to the chest wall while listening to the front of the chest. He further testified that one can do a full respiratory examination without fully exposing the breasts. The patient’s gown would stay in place the entire time.

[4226] Dr. Sloka denied touching Ms. M.G.’s exposed breasts.

[4227] Dr. Sloka recorded “FAFG” in his handwritten notes. Dr. Sloka testified that it was his usual practice to ask for feedback from patients when the patient wore a gown and there was any kind of exposure. He would seek this kind of feedback where the appointment involved sensitive/intimate examinations. He would also seek this feedback for cardiac examinations. When he sought patient feedback, he would ask something like, “was it okay the way we looked at you here today?” Dr. Sloka’s practice of seeking feedback was not limited to breast examinations.

[4228] At the conclusion of the examinations, Dr. Sloka formed his impression and reported it in his contemporaneously dictated consultation letter.

[4229] Dr. Sloka reported that Ms. M.G. described a fairly acute onset of J.H.’s Syndrome. He noted that it was difficult to discern whether her pupil contraction was related to migraine or something concerning in the left cavernous sinus (behind the eye). He ordered an MRI of the cavernous sinus and an MRI of the neck blood vessels “to assure there is no obvious lesion” in those locations. These locations are ones in which the nerve associated with J.H.’s syndrome travels. At the conclusion of his impression, he wrote, “I am assured that the chest x-ray that I see now that has been normal in the emergency department.” Dr. Sloka reported that he wanted to see Ms. M.G. in follow-up, in a month or two.

[4230] Ms. M.G. attended for the MRI of her cavernous sinus and neck blood vessels. Dr. Sloka had the results in his medical file.

[4231] According to Dr. Sloka’s patient data sheet and his consultation letter for August 29, 2014, Ms. M.G. attended for a follow up appointment. Dr. Sloka noted that Ms. M.G.’s MRIs did not disclose any ongoing lesion. Ms. M.G. had reported that she was no longer experiencing anisocoria. He examined her pupils and did not observe anisocoria in either dark or light conditions. He left follow-up open.

Assessment of the Evidence and Analysis

[4232] Ms. M.G. was a woefully unreliable witness with a palpably poor memory which was populated by snippets, bits and pieces, and feelings. Her recollection was devoid of sufficient detail to enable conclusive factual findings regarding what transpired at her appointments. Despite her poor recollection, she became convinced that she was the victim of a sexual offence after being exposed to media coverage about Dr. Sloka. Her willingness to make a criminal complaint based on a patently deficient memory is concerning. Ms. M.G. also gave inconsistent evidence on material facts and gave evidence inconsistent with statements made to CPSO investigators. Ms. M.G. was also prepared to claim as her own memories that she clearly did not possess. Having regard to the manifest frailties in Ms. M.G.’s evidence, I am unable to rely upon it. I will now attempt to explain this conclusion.

[4233] As noted, Ms. M.G. repeatedly professed to have a poor memory of her first appointment with Dr. Sloka. She admitted to recalling only snippets, bits and pieces, and feelings. Her use of the term “feelings” raises serious concern that Ms. M.G.’s purported memory arises not from objective facts actually remembered, but rather from an emotional response to reading and hearing about the allegations being made by other patients.

[4234] Ms. M.G. could not remember whether she wore a paper sheet or a cloth gown. This is no small detail, because her narration of her exposure turns on the type of garment she wore, as I will discuss later.

[4235] Ms. M.G. also remembered very little about the details of the examination that involved contact with her chest. She agreed it was not a breast examination as she knows one. She agreed it involved pressure on some places around her breasts, but she could not recall with any precision the locations in which contact was made. She agreed she did not see the contact occurring, she could only feel it. She agreed that she previously reported uncertainty about whether the pressure she felt came from Dr. Sloka’s fingers. That uncertainty remained during her evidence in-chief, where she was uncertain what contacted her chest.

[4236] Ms. M.G. could not recall the sequence of the examinations Dr. Sloka performed. She agreed Dr. Sloka may have conducted a complete neurological examination, but she could not recall significant aspects of it. She also could not recall whether she was sitting or standing for her neurological examination. Likewise, she could not recall whether some aspects of it might involve her laying down on the table.

[4237] Based upon Ms. M.G.’s sparse memory, the pressure she recalled feeling on her chest sounded as much, if not more, like a respiratory examination than a breast examination. That prospect seems even more likely when one considers what she reported to CPSO investigators: “… it just seemed like he – if he actually was looking for something, he was looking for connections to – I don’t know, nerves or something going to the brain versus looking for lumps in my breast.” Auscultation at the apices of the lungs fits that description. I note here that she agreed that Dr. Sloka did not palpate her lymph nodes and he did not ask her to raise her arms. He also did not tell her he was performing a breast examination. Those words were never used.

[4238] Not only did Ms. M.G. have trouble remembering what Dr. Sloka did, she had difficulty remembering what Dr. Sloka said. She could not remember but she agreed it was possible that Dr. Sloka proposed and explained a neurological examination and an auscultation of her carotid arteries. She resisted the suggestion that Dr. Sloka proposed and explained a respiratory examination, but her rationale for this resistance was contradicted by her earlier statement to CPSO investigators.

[4239] Ms. M.G. also failed to remember attending for a second visit at Dr. Sloka’s office. Indeed, she not only forgot this visit, but she adamantly rejected the possibility. Dr. Sloka’s medical file indisputably establishes that Ms. M.G. did in fact attend for a second visit. Ms. M.G.’s intransigence in the face of objective evidence to the contrary raises concerns about her credibility in addition to the obvious concerns about her reliability.

[4240] Ms. M.G. also showed herself to be an inconsistent witness. She rejected the possibility that Dr. Sloka proposed a respiratory examination because she purportedly recalled being surprised when he removed her gown. Her claim of surprise was directly contradicted by her earlier statement to CPSO investigators, indicating she wasn’t alarmed at all. She also provided an inconsistent description of the exposure of her breasts. At one point she described both sides of the gown being pulled apart from the center simultaneously. At another point she described her breasts being exposed sequentially. At other points she appeared to agree with a description of the gown being pulled down. Her mixed memory of the draping was also potentially inconsistent with the manner of her exposure. A paper sheet can be pulled down, but it cannot be pulled apart from the center. A cloth gown can be pulled apart from the center, but only if warn backwards. Ms. M.G.’s narration repeatedly became entangled in conflicting details. The devil, as they say, is in the details.

[4241] One of the most notable inconsistencies in Ms. M.G.’s evidence concerns her purported memory of speaking to her husband about the appointment in her kitchen on the evening of the appointment. At trial, she presented this event as a clear memory, but that was not always the case. Worryingly, her account at trial was replete with detail. The conversation occurred in the kitchen; she whispered her concern, stating the appointment was, “a little weird.” However, when speaking to CPSO investigators three years before testifying, she did not remember if she ever spoke to her husband at all about the appointment. She also told investigators that her husband told her that he vaguely remembered her saying something about the appointment being really weird. Then she told the investigators that she probably would have whispered to her husband that Dr. Sloka performed a breast examination and that it was weird. Faced with the evolution from having no memory at all, to believing her husband’s account being probable, to purportedly remembering her own whispers, Ms. M.G. responded, in part, “Well, I’m trying to be as honest as possible, sir, and I’m trying to recall memories from a long time ago. I’m relying on feelings and bits and pieces. I had a conversation with my husband that night after the appointment.” It is obvious, in my view, that she did not actually recall telling her husband anything. Instead, she adopted another report as her own, then embellished upon it. I reject her claims to the contrary. Unfortunately, this was not the only occasion on which she adopted memories from external accounts.

[4242] In her evidence in-chief, Ms. M.G. testified that she had a memory of filling her patient information sheet at some point in the early stages of the appointment. In cross-examination, she agreed that she told CPSO investigators that she had no memory of filling it out. Presented with this contradiction, she replied, “I can see it right in front of me [the information sheet] and it has my writing on it so, yes, I recall filling out that form.” Defense counsel then drew for her the distinction between agreeing something must have occurred and actually remembering that it occurred. Ms. M.G. then replied, in part, “I – I filled out this form when I – I don’t have a specific memory of doing it. I obviously did it.” From this example, Ms. M.G. demonstrated that she was prepared to falsely adopt as actual memories facts asserted by an external source. That is a very troublesome trait for a witness to possess, particularly when that witness consumed copious amounts of news coverage about other patients alleging inappropriate breast examinations, breast exposure, and improper draping.

[4243] There exists a serious and plausible concern here that Ms. M.G.’s perceptions and sparsely populated memory have been tainted by her consumption of media coverage about Dr. Sloka. Before seeing and reading news about Dr. Sloka on July 11, 2018, and onwards, Ms. M.G. had absolutely no concern about her visit with Dr. Sloka. The news she reviewed referred to allegations by other patients that Dr. Sloka unnecessarily touched patients’ breasts during a medical appointment. News available at the time also referred to inadequate draping. Seeing this news left Ms. M.G. “feeling” – there is that word “feeling” again – “Oh, my god, that’s exactly what happened to me when I was there.” She considered the reports in the media to be “very similar to my experience.” Given Ms. M.G.’s demonstrated propensity to adopt external factual reports as her own memories, I am deeply concerned that Ms. M.G.’s memories and perceptions have been tainted by her media consumption. That concern is heightened by Ms. M.G.’s willingness to construct from extremely sparse details – details at least potentially consistent with Dr. Sloka’s claim of a respiratory examination – a belief that a sexual assault occurred.

[4244] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting a sensitive examination on any given patient in this case. However, having regard to Dr. Sloka’s cogent evidence regarding his justifications and methods in Ms. M.G.’s case, I am satisfied that he has refuted any possible inference of a sexual motive.

[4245] The Crown also relies upon three discrete cross-count similarities to support the evidence of Ms. M.G. on other material issues. First, the Crown contends that Ms. M.G. belongs to a constituency of patients who alleged that Dr. Sloka told them that “everything is connected” when proposing or conducting a breast examination. Second, the Crown contends that Ms. M.G. belongs to a constituency of patients who alleged that Dr. Sloka did not identify the examinations he intended to conduct. Third, the Crown contends that Ms. Gload belongs to a constituency of patients who alleged that Dr. Sloka had them wear their gowns open to the front. For the reasons that follow, I do not find any of these ostensible cross-count similarities to be sufficiently probative of any other material issue.

[4246] I begin with the “everything is connected” constituency. The Crown groups three patients in this constituency, Ms. M.G., Ms. H.J., and Ms. Am.E. Apart from the issue of Dr. Sloka’s sexual purpose, I cannot conceive of how this evidence is probative of any material issue. Further, neither Ms. M.G. nor Ms. H.J. alleged that Dr. Sloka proposed or conducted an actual breast examination. Also, all three patients had incomplete and unreliable memories about what was said to them when Dr. Sloka proposed his examinations. Both Ms. H.J. and Ms. Am.E. allowed for the possibility of a much more expansive explanation than originally alleged. A collection of three vague, unreliable, and incomplete recollections does not constitute a compelling pattern that renders innocent coincidence unlikely. Indeed, I consider it highly likely that any resemblance between their accounts is the product of their poor memories about what transpired.

[4247] The Crown also contents that Ms. M.G. belongs to the constituency of patients who allege that they were not told the precise nature of the examinations Dr. Sloka planned to conduct. As with many complainants in this alleged constituency, Ms. M.G.’s recollection about Dr. Sloka’s proposals proved to be vague, unreliable, and incomplete. Apart from the respiratory examination, she agreed to the possibility that Dr. Sloka proposed and explained all the examinations reported in his consultation letter. Her lone rationale for her resistance to the suggestion that Dr. Sloka proposed an explained a respiratory examination was utterly discredited by her own prior inconsistent statement. She acknowledged that whatever the reasons provided, they explained the need for her to remove her clothing for a physical examination. The evidence does not support the contention that Dr. Sloka failed to fully identify and explain the examinations he conducted.

[4248] The Crown also contends that Ms. M.G. belongs to the constituency of patients who alleged that Dr. Sloka had them wear their gowns open to the front. Ms. M.G. does not belong in this constituency. She did not even remember if she wore a gown. It may have been a paper sheet. She also gave inconsistent evidence on the method of her exposure, which was closely tied to her inconsistent evidence on the nature of the garment she wore. The Crown also never suggested to Dr. Sloka that Ms. M.G. wore her gown open to the front or that Ms. M.G. wore a paper sheet. This supposed similarity lacks probative value on any material issue.

[4249] For all the reasons thus far discussed, I place no weight on Ms. M.G.’s evidence about what transpired at her first appointment. I cannot conclude, on the basis of her evidence, that Dr. Sloka engaged in any sexual activity.

[4250] Dr. Bril’s evidence does little if anything to assist the Crown’s case. She agreed a neurological examination was reasonable. She agreed auscultation of the carotid artery was reasonable. She opined that a breast examination was unreasonable, but Ms. M.G. did not allege an actual breast examination and Dr. Sloka denied performing one.

[4251] Dr. Bril also opined that intentional breast touching was neurologically unreasonable. Dr. Sloka agreed. That opinion was not material.

[4252] Dr. Bril’s opinion only provided potential assistance in resolving one material fact: the reasonableness of a respiratory examination. Dr. Bril did not think it neurologically reasonable for Dr. Sloka to conduct one.

[4253] The Crown asks that I conclude that Dr. Sloka’s decision to conduct either a full or partial respiratory examination was the product of an improper motive: the desire to gratuitously expose Ms. M.G.’s breasts. From that alleged motive, the Crown asks that I conclude that Dr. Sloka engaged in sexual activity. The Crown argues that Dr. Bril’s evidence and the inference that flows from it support Ms. M.G.’s evidence and ought to result in the conclusion that the examination constituted sexual activity. However, for the reasons that follow, I am unable to accept Dr. Bril’s opinion, and I am unable to draw the inferences that the Crown asks me to draw.

[4254] Dr. Bril’s opinion about the utility of auscultation was undermined by her own admittedly degraded skills with a stethoscope.

[4255] For the reasons discussed in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I am also concerned by Dr. Bril’s willingness to rely upon insufficient anecdotal evidence as a basis for forming her opinion about the prevalence of cardiac examinations and the use of stethoscopes in the neurological profession.

[4256] Additionally, Dr. Bril provided inconsistent evidence about the proper approach to searching for cancer at the apex of the lungs. To be clear, she agreed the search for cancer was appropriate. She only took issue with Dr. Sloka’s method. In-chief, Dr. Bril testified that Dr. Sloka ought to have relied upon a chest x-ray. In cross-examination, she testified that a chest x-ray would be insufficient and that a CT scan would be required. With each variation in her evidence, she testified with utter confidence. Her consistent confidence in her inconsistent evidence was not reassuring, it was alarming.

[4257] While Dr. Bril’s opinion about auscultation for carotid bruits did not pertain to the reasonableness of auscultation for a tumor at the apex of the lung, I am concerned about her inconsistency on this subject, too, and its implications for her evidence regarding the respiratory examination. At one point in her evidence, she testified that palpation of the carotid artery (to feel the pulse) was currently matter of debate. She later testified that neurologists no longer apply a stethoscope at the carotid artery (to listen to the blood flow/pulse). The debate concerned whether pressure might dislodge arterial plaques, thereby causing a stroke. The notion of a debate suggests an acknowledgement that some in her field still view applying pressure as reasonable. And yet, she subsequently alleged that her profession no longer applies pressure on the carotid artery with a stethoscope – or, alternatively, they do not do it “as much” – due to the very same concern.

[4258] I also have concerns about Dr. Bril’s evidence questioning the validity of Dr. Sloka’s concern about a tumor. Dr. Bril also testified that she would not expect a tumor to be the cause of Ms. M.G.’s symptoms, because her symptoms had started to improve. She opined that tumors do not shrink. Accordingly, J.H.’s Syndrome caused by a tumor would not improve. Dr. Bril was not qualified as an oncologist and more specifically as an expert in tumors. Her opinion about changes in tumors exceeded the scope of her expertise. Moreover, if the concern about a tumor was unfounded, then auscultation at the carotid artery would also have been unreasonable. Yet, Dr. Bril had no concern about auscultation at that location. Her opinion therefore seemed inconsistent. Dr. Bril also conceded the “highly unlikely” possibility that Ms. M.G.’s symptoms may have caused by a small tumor. She therefore seemed to grudgingly concede the plausibility of Dr. Sloka’s professed concern.

[4259] If, as Dr. Bril conceded, Dr. Sloka was reasonably concerned about a tumor impinging the nerve in the area passing along the carotid artery in the neck, and if auscultation in that location was accordingly appropriate, then Dr. Bril has not convinced me on any standard of proof that Dr. Sloka’s auscultation in search for a tumor further down, at the apices of the lungs, was unreasonable.

[4260] For all the above noted reasons, I am not prepared to place reliance on Dr. Bril’s opinion that auscultation of the apices of the lungs would be an ineffective method or unreasonable step in the search for tumors at the apices of the lungs.

[4261] I turn now to an assessment of Dr. Sloka’s evidence.

[4262] Dr. Sloka provided a logical and compelling explanation of his justification for the respiratory examination he conducted on Ms. M.G. He also provided a similarly compelling justification for his decision to listen for carotid bruits in Ms. M.G.’s neck. I accept that Dr. Sloka believed himself thoroughly trained and competent to perform these examinations and that he believed they would provide important diagnostic information regarding the presence or absence of tumors that might explain Ms. M.G.’s J.H.’s Syndrome. I am also satisfied that he honestly believed that auscultation might detect information not gleaned from the x-ray Ms. M.G. obtained at the ER. I note here that the way in which Dr. Sloka referred to the x-ray at the end of his consultation letter suggests that he may not have possessed it at the time he conducted the examinations. However, even if he did possess it, I accept Dr. Sloka’s evidence that an x-ray might not pick up some masses. Dr. Bril ultimately conceded this point. I also note that Dr. Sloka was prepared to disclose in his consultation letter (which, of course, is addressed to another medical professional) his interest in auscultating for carotid bruits and the sounds caused by tumors at the apices of the lungs. The fact that he was prepared to do so supports the conclusion that he possessed a contemporaneous belief in the appropriateness of his examinations. For all these reasons, I accept that Dr. Sloka possessed a well-founded subjective belief in the reasonableness of the examinations he conducted and reported.

[4263] I also accept Dr. Sloka’s denial of any inappropriate breast touching.

[4264] In my view, the Crown’s critiques of Dr. Sloka’s evidence are unfounded.

[4265] The Crown argues that by recording FAFG in his rough notes, Dr. Sloka disclosed that he performed a breast examination. In addition, the Crown argues that Dr. Sloka’s denial of a breast examination was a guess. In making these arguments, the Crown claims that that Dr. Sloka only recorded FAFG for breast examinations. In doing so, the Crown misapprehends Dr. Sloka’s evidence and the trial record. As discussed elsewhere in this judgement, Dr. Sloka provided evidence that he sought feedback for when patients were gowned and there was any kind of exposure. The trial record amply supports his evidence and does not support the Crown’s contention. Moreover, in making their submission, the Crown ignores the fact that Ms. M.G. did not claim that Dr. Sloka performed a breast examination. She testified that Dr. Sloka’s examination was not like breast examination as she knew one. Likewise, he did not use the words “breast examination.” When speaking to CPSO investigators, she stated, “…it just seemed like … as if he actually was looking for something… connections for nerves … or something going to my brain… as opposed to looking for lumps in my breasts.” Her description sounds potentially consistent to Dr. Sloka’s assertion that he performed a respiratory examination in search of masses that might interfere with the nerve associated with J.H.’s Syndrome. It also sounds patently inconsistent with the Crown’s assertion that a breast examination occurred. Moreover, Dr. Sloka’s denial of a breast examination was not a guess. He testified that a breast examination was not warranted for Ms. M.G. He recorded and reported the examinations that he believed were warranted. His denial was based upon the irrelevance of a breast examination to Ms. M.G.’s presentation and upon his contemporaneous reports of the examinations he did perform.

[4266] The Crown takes issue with Dr. Sloka’s dictation errors concerning his auscultation for carotid bruits and tumors at the apices of the lungs. This is somewhat surprising, given the Crown’s concession during the trial that Dr. Sloka’s correction “makes sense.” It is also surprising given that the evidence elicited from Dr. Bril was based upon the corrections made on the record by counsel. Further, it is also surprising, because the Crown did not challenge Dr. Sloka on the accuracy of his corrections. Lastly, the dictation error is patently obvious. I fail to see how a voice recognition error in dictation can have any impact upon Dr. Sloka’s reliability or credibility as a witness.

[4267] The Crown raises concern about Dr. Sloka noting a normal neurological examination in his rough hand-written notes. This was an anomaly. He did not normally make any mention of normal neurological examinations in his handwritten notes. What of it? The Crown did not challenge Dr. Sloka’s claim that he did a neurological examination, nor did they challenge the results. I fail to see how Dr. Sloka jotting down an uncontested examination and its results in his rough notes has any bearing on his evidence or his methodologies as a physician.

[4268] The Crown also argues that Dr. Sloka provided inconsistent evidence on whether he conducted a complete or partial respiratory examination. I disagree. Dr. Sloka’s notes and consultation letter could only confirm he listened to the apices of the lungs, front and back. He was uncertain as to whether he did a complete examination. He did not provide inconsistent evidence on this point.

[4269] The Crown states that Dr. Sloka gave inconsistent evidence on whether a limited respiratory examination at the apices would differ from a full examination. A proper reading of the record shows this submission to be wrong. Both in-chief and in-cross, Dr. Sloka testified that both methods would involve listening at the top of the lungs, the apices, above the collar bone.

[4270] The Crown argues that Dr. Sloka gave inconsistent evidence on whether he told Ms. M.G. that “it may be all connected.” The Crown misapprehends the evidence when making this submission. In response to the Crown’s suggestion that Ms. M.G. was correct when testifying that he told her he was “looking for connections to nerves or something going to her brain,” Dr. Sloka said, “I guess that could be close to it, yes.” There is nothing inconsistent between that qualified admission and his assertion that he was looking for anything, such as cancer, interfering with the nerve that went from her spinal cord, over her lungs, and up to her head. The Crown never challenged Dr. Sloka’s denial that he ever told Ms. M.G. that “everything was connected.”

[4271] The Crown contends that Dr. Sloka was not really interested in looking for evidence of a tumor when auscultating Ms. M.G.’s chest and neck. They note that the x-ray from the hospital showed no tumor. This submission ignores Dr. Bril’s evidence that x-rays may not reveal an existing tumor. Moreover, Dr. Sloka did not make mention of the hospital x-ray in the history portion of his consultation letter and thereby admit to seeing it before any examination. Rather, he made mention of the hospital x-ray in the impression section of the letter. At the time of dictation, he stated, “I am reassured that the chest x-ray that I see now has been normal in the emergency department.” The wording in his letter supports the conclusion he only looked at the x-ray after the examinations, at some point before or while he was dictating his consultation letter.

[4272] In support of its argument that Dr. Sloka was not truly interested in searching for signs of cancer, the Crown notes that Dr. Sloka did not order a CT scan of Ms. M.G.’s chest. However, Dr. Sloka ordered an MRI of Ms. M.G.’s neck and cavernous sinus, specifically informing the family doctor that he was searching for lesions. Each MRI report noted J.H.’s Syndrome as the rational for the requisition. It is obvious that the MRI’s were ordered, at least in part, for the purpose of finding lesions or masses. The most obvious inference to be drawn from Dr. Sloka’s failure to order a CT scan is that Dr. Sloka concluded from his clinical examination and the hospital chest x-ray that a CT scan was not necessary at that point.

[4273] On the basis of the evidence called, I am not prepared to conclude that anything other than medical examinations took place. I am not prepared to conclude that Dr. Sloka possessed anything other than honest belief in the medical appropriateness of the examinations he conducted. He reported the results of those investigations to Ms. M.G.’s family doctor. He ordered tests in furtherance of a continued desire to look for signs of cancer that might be impinging a nerve and causing J.H.’s Syndrome in Ms. M.G. I see no basis for concluding that any examination was sexual in nature. Neither Ms. M.G.’s extremely unreliable evidence, Dr. Bril’s evidence, nor Dr. Sloka’s evidence provides anything close to an evidentiary foundation for that inference.

[4274] Dr. Sloka will be acquitted on this count.

iii. R.P. (Count 16)

A Summary of Ms. R.P.’s Complaint and Dr. Sloka’s Response to It

[4275] It is difficult to pin down Ms. R.P.’s complaint with precision. Initially, after seeing CPSO publications about Dr. Sloka’s disciplinary proceedings, her concern focussed on a skin sensation examination conducted to investigate her complaint of an unusual sensation in her thigh. During this leg-sensation examination, Dr. Sloka asked her if she wanted him to perform a vaginal examination. She alleged that this leg-sensation examination occurred during her final examination by Dr. Sloka. Ms. R.P.’s concern appears to have broadened to include two or three breast examinations conducted by Dr. Sloka, one of which was specifically requested by her. During this examination, Dr. Sloka only examined her right breast, the one that contained the lump she complained about. Apart from the breast examination she requested, she had little to no memory of the specifics of the other alleged breast examinations: she was unsure of their precise number; she provided no details about Dr. Sloka’s methods; and she could provide no meaningful insight about when Dr. Sloka conducted them, except to say that they occurred before the one she recalled and during the course of a larger “general” or “full” examination. The Crown also raised concern about an examination of Ms. R.P.’s skin. Ms. R.P. alleged that Dr. Sloka looked at a birthmark on her clavicle. She did not allege he touched her while examining the birthmark. She also did not allege that he asked her to remove her robe to facilitate his inspection of this birthmark. She also did not allege that Dr. Sloka examined any other areas on her body when examining her birthmark.

[4276] Dr. Sloka agreed that he performed a leg-sensation examination on Ms. R.P. during a standard neurological examination. Leg sensation examinations were part of his standard neurological examination. His records revealed a neurological examination during each of Ms. R.P.’s three referral periods. Given Ms. R.P.’s evidence about the timing of the problematic leg-sensation examination, Dr. Sloka’s evidence focussed on the last of the three neurological examinations he conducted. He agreed that he probably paid some added attention to the leg-sensation examination on that occasion, due to Ms. R.P.’s complaints that day. He disagreed, though, about the nature of the presenting complaint made by Ms. R.P. He recorded a complaint about tingling in the feet and shins, not a sensation of warm coffee on the thigh. He also denied Ms. R.P.’s allegation that he touched the inside of her leg near her underwear line. Likewise, he denied seeking Ms. R.P.’s consent to perform a vaginal examination when testing her leg-sensation. Dr. Sloka also agreed that he performed a single breast examination on Ms. R.P. at her request to investigate her complaint of a lump. After performing that breast examination, he referred Ms. R.P. to a surgeon. Dr. Sloka denied conducting any other breast examinations on Ms. R.P..

The Circumstances of Ms. R.P.’s Referral and Treatment History

[4277] Ms. R.P. had many medical issues. Numerous specialists participated in her care over the years, which included a rheumatologist, a psychologist, and multiple neurologists. The initial referral letter from Ms. R.P.’s family doctor revealed that Ms. R.P. suffered from systemic lupus. Relatedly, she had a lengthy history of epilepsy and a history of migraine headaches. A review of the consultation letters sent by Ms. R.P.’s rheumatologist to Dr. Sloka disclosed that Ms. R.P. presented with a myriad of issues and symptoms over a sustained period. In a February 11, 2013, consultation letter, Dr. Boulos (the rheumatologist) reported a history that included long standing lupus. More particularly, she reported a history that included stiff joints, painful joints, palpitations, an episode of loss of consciousness, mood difficulties, negative reactions to her Champix medication, and a history of complex partial seizures. In a November 20, 2013, letter Dr. Boulos reported a recent episode of pneumonia and a corresponding admission to the ER. She also reported continuing fatigue, benign thyroid cysts, headaches, sicca symptoms, Raynaud’s disease, cough, shortness of breath, angina, and fever. In addition, she reported an opinion that Ms. R.P.’s lupus symptoms were “mostly psychological – she likely has a component of fibromyalgia vs neuropsychiatric lupus.” The rheumatologist queried the possibility of neuropsychiatric testing. In a September 15, 2015, consultation letter, Dr. Boulos reported a tear in Ms. R.P.’s labrum, a kidney infection, restless leg syndrome, and an impression that Ms. R.P.’s overall symptoms suggest an overlap between Lupus, rheumatoid arthritis, and Sjogren’s disease. Dr. Boulos also reported that a Dr. Teschke was following Ms. R.P.’s multinodular goiter, while Dr. Sloka was monitoring Ms. R.P.’s bladder incontinence. In sum, Ms. R.P. was not a simple patient, by any stretch of the imagination.

[4278] Ms. R.P. had seen two different neurologists before seeing Dr. Sloka. Ms. R.P. obtained referrals to Dr. Sloka on three separate occasions. Each referral resulted in multiple visits. Ms. R.P. saw Dr. Sloka a total of 19 times over the course of these three referral periods. Not surprisingly, she got some details about the timing of and reasons for her referrals wrong, even after reviewing her voluminous medical records in preparation for trial.

[4279] Ms. R.P. thought the first referral occurred shortly after the birth of her first child. In fact, her first referral occurred while she was still pregnant. Having reoriented herself, she then thought her initial referral involved getting advice about whether to continue using Topamax, an anti-seizure medication, during her pregnancy. In fact, she had already ceased taking Topamax before ever seeing Dr. Sloka.

[4280] Ms. R.P.’s family doctor made her first referral on December 10, 2010. She was 31 years old at the time. At the time of the referral, her family doctor did not know Ms. R.P. was pregnant. He sought advice about whether Ms. R.P. ought to use Topamax (a medication used to prevent/treat seizures and migraines) while trying to get pregnant. The referral letter implied a more expansive consultation, too: “I thank you kindly for helping with this somewhat complicated patient. Any thoughts you have would be greatly appreciated.” According to Dr. Sloka’s consultation letter, by the time of her first appointment on January 12, 2011, Ms. R.P. knew she was pregnant and had ceased taking Topamax about three weeks before her appointment. During this referral period, Dr. Sloka monitored her headaches and seizure activity, while she remained off the medications previously used to treat those issues when she was not pregnant. Dr. Sloka saw her one final time after the delivery of her baby, at which time he provided some advice about holding off on the resumption of her anti-seizure medication. In total, Dr. Sloka saw her 4 times in that referral period. He did not plan to see her further.

[4281] Ms. R.P.’s rheumatologist (Dr. Boulos) made the next referral to Dr. Sloka. Dr. Boulos made the referral in February of 2013. The referral concerned a recent seizure. The reason for the referral was stated as follows: “Can you please assess [R.P.] urgently who is a formal [sic] patient of yours with partial complex seizures in past and lupus. She had an episode of LOC 3 weeks ago and at the time she had palpitations. She said this episode is not like her usual previous seizures. I would like your opinion.” Dr. Sloka saw her a total of three times in this referral period, following which, he indicated he did not need to see her again. Of note, on the final visit of this referral period, Dr. Sloka reported to Ms. R.P.’s family doctor that Ms. R.P. had reported a breast lump and that he made a referral to a surgeon, Dr. Judges.

[4282] Ms. R.P.’s family doctor, Dr. Oh, made the third referral to Dr. Sloka on December 5, 2014. Dr. Oh reported that Ms. R.P. had “presented to my office with a vague history of involuntary left arm spasms and transient blurry vision in her right eye.” In the referral letter, Dr. Oh said to Dr. Sloka, “I would appreciate your advice regarding further workup and management.” The first appointment for this referral period occurred on January 28, 2015. During this referral period, Ms. R.P. reported a variety of symptoms, some of which were persistent to one degree or another, and some of which were not. At times, Ms. R.P. presented with multiple concurrent symptoms. Ms. R.P. saw Dr. Sloka a total of 12 times over this referral period. Ms. R.P. believed that at one of the visits, Dr. Sloka tested her leg for sensation, to investigate her report about experiencing a strange sensation in her leg that felt like warm coffee being spilled onto her leg. This presenting complaint is not recorded anywhere in Dr. Sloka’s consultation letters or rough notes from this referral period.

[4283] The presenting complaints summarized in Dr. Sloka’s consultation letters during the third referral period can be summarized as follows:

(1) January 28, 2015: A few episodes of arm shaking, most in the left arm and usually when she is just falling asleep. Dr. Sloka planned to see her in three months, after completion of EMG studies (of her arms) and three months of increased anti-seizure medication.

(2) April 28, 2015: Her left arm events have settled down. No seizure events for the last two months. Her restless leg syndrome has increased. She also noticed an increase in her bruising. She describes episodic bladder incontinence post partum which has not settled down. Dr. Sloka planned to see her in follow-up after she completed EMG studies (of her lumbar spine), a bladder ultrasound, and an MRI of her lumbar spine.

(3) July 14, 2015: She continues to have episodic bladder incontinence. She describes some symptoms in her thorax, possibly referrable to her minor disc bulge. Dr. Sloka planned to see her after completion of an MRI to rule out transverse myelitis.

(4) July 30, 2015: She continues to have mid back pain that radiates down to her hip. She has a mild disc bulge. She expressed concern about Von Willebrand’s disease. Dr. Sloka left follow-up “open”, making no plans to see her again.

(5) November 9, 2015: She was having some difficulties with her right ear. She developed headaches a month after returning to work. They occur several times a week. They are right sided throbbing headaches with photophobia and phonophobia. She reported 14 lbs of weight loss over the last month or two, along with a loss of appetite. She noticed a lump in her right axillary region. She was taken off methotrexate 3 weeks ago and has been sleeping more. She has night sweats. She has seen blood in her bowel movements for a few days, but it settled down. She reported a cough and cold for the past month. Dr. Sloka planned to see her in three weeks, after completion of a chest x-ray, abdominal ultrasound, and course of antibiotic treatment.

(6) December 1, 2015: Her sinus infection was treated with antibiotics, but her inner deep chest pain did not resolve. She continues to have pressure and pain on her right rib area. He planned to see her in three weeks after completion of a bone scan.

(7) December 23, 2015: She has been doing better and continues to get better. She feels the increase in prednisone helped. Her headaches have improved. Dr. Sloka planned to see her in follow-up in two months to see if she continues to improve.

(8) April 13, 2016: She is doing well, but had a sudden need for right hip surgery, to treat a torn labrum. She is asymptomatic with no ongoing concerns other than restless leg syndrome. Dr. Sloka left follow-up “open” – he made no plans to see her in follow-up.

(9) September 2, 2016: Over the last two or three weeks, she has experienced muscle pain in her legs with fatiguability, a generalized sleepiness, tingling in her feet bilaterally up to her mid-shins, and a fairly persistent headache. She has suffered diarrhea for a month and a half and a change in her menstrual cycle in the past few months. She is also experiencing lumbar back pain. She does not feel it is her usual Lupus flair-up. Dr. Sloka planned to see her in follow-up after she completed some tests.

(10) October 17, 2016: She still has episodic pain in her pelvis and back and numbness and tingling in her legs. Dr. Sloka made no plans to see her in follow-up.

(11) March 20, 2017: She is having night sweats, anxiety, and unusual smells. There is no obvious seizure activity. Dr. Sloka made no plans to see her in follow-up.

(12) March 20, 2018: Over the last three months, she has been experiencing increased irritability and difficulties with finding words. She sometimes loses her train of thought. These difficulties do not appear seizure related.

The Evidence of Ms. R.P.

[4284] I found it very difficult to follow Ms. R.P.’s evidence. By her own admission, she had a poor memory of her treatment history with Dr. Sloka. She testified that, “I remember how I feel”, not details like chronology. Even with the assistance of her medical records, Ms. R.P. could not pinpoint the timing of any particular examination of concern. Ultimately, Ms. R.P. proved incapable of providing her evidence in a chronological fashion. Instead, she tethered the examinations of concern to other mental signposts. One signpost involved her memory of feeling the sensation of warm coffee on her leg. She tethered a leg-sensation examination to this symptom. One signpost involved her concern over a breast lump. She tethered a breast examination to that concern. Ms. R.P. could not definitively identify the number of additional breast examinations she may have received, or when they occurred, or what they entailed. She simply vaguely recalled breast examinations being “tucked into the middle” of other broader, general examinations. As for the examination of her skin, Ms. R.P. testified that she showed Dr. Sloka a birthmark on her left clavicle after Dr. Sloka asked her if she had any “unique skin markings.” Dr. Sloka looked at the birthmark she showed him. Her gown remained on. He did not examine beneath the gown, and he did not touch her. To her recollection, the examination of this birthmark occurred “very early on” in her treatment by Dr. Sloka.

[4285] Following Ms. R.P.’s lead, I will not attempt a chronological review of her evidence. I will begin with her initial concern, the leg-sensation examination.

[4286] I begin the summary of Ms. R.P.’s leg-sensation examination, by summarizing the events that led to her coming forward. Until seeing a CPSO posting in Dr. Sloka’s office at her final appointment, Ms. R.P. had no concern about Dr. Sloka. Indeed, she was pleased with Dr. Sloka’s comprehensive care. She trusted him. He listened to her. He would not cut her off when she spoke about her issues. He would bring out textbooks and pamphlets to explain concepts to her. He would also often draw little diagrams for her in an effort to explain his diagnosis or to explain the nature of his investigations. She relayed that she had gone “through hell” before Dr. Sloka had become her doctor. When she began to see Dr. Sloka, she appreciated his patience, and his ability to listen. He would look at every concern in its totality. He would examine her whole range of symptoms in totality, rather than look at each issue in isolation. She thought she struck gold when she began seeing him. In her view, she finally had someone who would listen to her and told her she was not crazy. Then, she saw the CPSO posting March 20, 2018. Promptly, her attitude about Dr. Sloka changed. She monitored CPSO proceedings for a year. In the CPSO decision released in the spring of 2019, she read about a patient who presented with leg tingling. This patient alleged a gowned examination that included vaginal contact and digital penetration. This allegation “really resonated” with Ms. R.P. She recalled and revisited her recollection of her own leg-sensation examination, which was allegedly performed to investigate her report of a strange sensation in her leg. Initially, this was the only examination about which Ms. R.P. had any concern.

[4287] While Ms. R.P. could not recall the date of the problematic leg-sensation test, she testified that this test occurred on the last appointment in which she received a physical examination. She also recalled that, following the appointment, she attended for an EMG test. In a review of her medical records, she agreed that Dr. Sloka ordered an EMG study on September 2, 2016. This was also the last date on which Dr. Sloka recorded doing a physical examination. However, Dr. Sloka’s consultation letter did not refresh her memory about whether the problematic leg-sensation examination occurred on this date. Indeed, Ms. R.P. testified that if the leg-sensation examination occurred on September 2, 2016, then Dr. Sloka’s consultation letter contained incorrect information and information she could “not relate to.” Ms. R.P. explained:

I did not have tingling in my feet or my mid-shins. I always have headaches. Menstrual cycle has always been an issue. I don’t remember him checking my eyes. I don’t remember him checking my upper extremities. I don’t remember going in for muscle aches. Like there’s a lot of information in here that I don’t – I don’t understand or rather I can’t relate to.

[4288] Ms. R.P. further testified that on the date of the leg-sensation examination, Dr. Sloka did not perform a full neurological examinatoshion. Instead, Ms. R.P. alleged that the leg-sensation examination was confined to the specific location of her body about which she made a specific complaint. It was situational and focussed. Having said that, Ms. R.P. was not prepared to entirely rule out the possibility that the leg-sensation examination occurred on September 2, 2016. She simply disputed that it could have occurred in conjunction with the history, symptoms, and examinations reported by Dr. Sloka on September 2, 2016. Ms. R.P. testified that if it did not occur on September 2, 2016, it must have occurred before that date. Of note, none of Dr. Sloka’s consultation letters documented Ms. R.P.’s complaint of a warm coffee sensation on her leg. Likewise, none of Dr. Sloka’s consultation letters documented a situational and focussed leg-sensation examination. Accordingly, they provided Ms. R.P. no assistance in pinpointing the date or broader treatment context in which the alleged leg-sensation examination occurred.

[4289] According to Ms. R.P., she had on multiple occasions experienced a sensation like warm coffee being spilled on her leg. She purportedly brought this issue to Dr. Sloka’s attention. She testified that the recurrence of the sensation was concerning to her. She felt that this was a neurological issue. He was her neurologist; so, she reported it to him.

[4290] As noted, Ms. R.P. testified that Dr. Sloka conducted an examination to investigate her warm coffee complaint. It did not involve a full neurological examination. To facilitate the examination, he asked her to put on a gown. As with other appointments, she undressed but kept her underwear on. She laid on the table for this examination, facing the window, which is in the opposite direction of the standard orientation as disclosed in the Exhibit 2 photographs of the examination table and as reported in Dr. Sloka’s evidence. Ms. R.P. testified that Dr. Sloka used two fingers to test sensation on both legs, using those two fingers to gently swipe her skin. He tested one leg completely, then tested the next leg – a bilateral examination, which made sense to her. Dr. Sloka also asked about bladder and bowel incontinence. Dr. Sloka also allegedly asked her if she was experiencing tingling sensations in or on her vagina. She denied anything of the sort. According to Ms. R.P., Dr. Sloka touched close to her underwear line, which she said made her feel uncomfortable. He asked her if she wanted him to check. She declined. Ms. R.P. testified that Dr. Sloka also touched near her bum cheeks as he swiped on the inside of her thigh. She did not provide much detail to explain how this was possible while she lay on her back.

[4291] Defense counsel suggested to Ms. R.P. that, on the day of the examination, she did not think the examination went beyond the bounds of medically appropriate care; she was uncomfortable, but she trusted him. Ms. R.P. did not provide a fully responsive answer. She only allowed that she trusted Dr. Sloka. Then defence counsel took her to her police statement, where she said, “I really didn’t question it. I didn’t think it was anything outside of medically appropriate.” Ms. R.P. then agreed with the truth of that statement.

[4292] I turn now to Ms. R.P.’s evidence regarding breast examinations. As mentioned, Ms. R.P. could only remember the details of one breast examination. On her account, this one was the last of her breast examinations. She could not recall the date on which this examination occurred. In her evidence in-chief, she indicated that the examination occurred in either 2014 or 2015. Dr. Sloka’s medical records disclosed that she was not in Dr. Sloka’s care in 2014. Her evidence thus initially implied that the one breast examination she recalled occurred in 2015. Ms. R.P. also testified that this breast examination occurred before her leg-sensation examination, which occurred at a later appointment.

[4293] Ms. R.P. testified that her husband was present on the date of the impugned breast-lump examination. At the conclusion of other examinations conducted that day, she mentioned that she had a lump in her breast. Ms. R.P. was in a gown at the time. The lump was in her right breast. To facilitate the examination of the lump, her right arm was removed from its sleeve. She could not recall whether she or Dr. Sloka removed it. He right breast was exposed, but her left breast remained covered. She could not recall whether she was sitting or standing. According to Ms. R.P., Dr. Sloka used a very light touch to examine her breast. He used his bare hand. Ms. R.P. used various gestures but settled on demonstrating a gentle rolling compression, utilising three fingers [index, middle, and ring] from the second knuckle to the tip. She testified that Dr. Sloka compressed around the outer half of her right breast, in the area where the lump was located. She looked straight ahead and talked to him as he examined her breast, telling him what she felt and the location of the lump. Ms. R.P. testified that Dr. Sloka often closed his eyes during contact examinations, as if he was concentrating on what he felt. She was not sure whether he did so on this occasion. According to Ms. R.P., when the examination ended, Dr. Sloka told her that she should get her lump checked out. In her recollection, Dr. Sloka did not make a referral to anyone. Indeed, she recalled being disappointed that he did not make a referral. Instead, Ms. R.P. believed that her family doctor made a referral to her surgeon, Dr. Judges.

[4294] Ms. R.P. provided inconsistent and confusing evidence about the timing of the breast-lump examination.

[4295] In-chief, Ms. R.P. testified that she had noticed a lump shortly before seeing Dr. Sloka, so she decided to raise it with him first. Later, in her evidence in-chief, Crown counsel drew Ms. R.P.’s attention to breast imaging conducted on November 1, 5, and 13, of 2013, which revealed the presence of a benign lump. Ms. R.P. vaguely remembered going for that imaging. She believed she arranged that imaging by herself. Similarly, the Crown drew Ms. R.P.’s attention to her rheumatologist’s consultation letter from November 20, 2013, wherein she reported a cyst in her right breast and benign imaging results. While the Crown did draw this to Ms. R.P.’s attention, the rheumatologist’s letter contradicted Ms. R.P.’s assertion that she raised the lump with Dr. Sloka first.

[4296] In cross-examination, defence counsel questioned Ms. R.P. further about the timing of her breast lump examination. Ms. R.P. agreed that her medical records suggested that Dr. Sloka performed a breast-lump examination in 2013 and made a referral to Dr. Judges (the surgeon) on November 22, 2013. However, Ms. R.P. testified that the 2013 breast-lump examination was not the examination she testified about in-chief. She stated that she had forgotten about the 2013 breast-lump examination. Soon afterwards, Ms. R.P. testified that she could not 100% recall if Dr. Sloka did an examination of her right breast on November 22, 2013. She testified that he may or may not have examined her breast that day, but she acknowledged that he did make a referral to Dr. Judges that day. In giving this evidence, Ms. R.P. alleged for the first time that Dr. Sloka conducted two breast-lump examinations: the first in 2013 and the second in 2015. Similarly, for the first time, during cross-examination, Ms. R.P. alleged that she received two separate referrals to the surgeon, stating, “I want to say that I saw Dr. Judges twice.” While she conceded that Dr. Sloka made a referral after the first breast-lump examination, she testified that Dr. Sloka did not make a referral to the surgeon after this alleged second breast-lump examination. Instead, she testified that her family doctor made the referral to Dr. Judges in 2015.

[4297] Ms. R.P.’s confusion and inconsistency about the timing of her breast-lump examination was accompanied by confusion and inconsistency about the presence of her husband for her breast-lump examination. At trial, she testified that her husband was present for her breast-lump examination: she had recently felt a lump and raised that with Dr. Sloka first, in the presence of her husband. She testified that her husband was not happy about the fact Dr. Sloka performed this breast examination. She added that she defended Dr. Sloka in response to her husband’s concern. However, in her statement to the police, Ms. R.P. told investigators that she informed her husband about the breast-lump examination after she got home – he was not present for the breast-lump examination. Ms. R.P. acknowledged the obvious inconsistency and advanced the possibility of a second breast-lump examination, adding, “I know. It’s confusing.” Ultimately, though, she could not remember a breast lump examination for which her husband was absent and about which she spoke to her husband when she arrived at home. That is, she could not remember the examination she described to the police. She only remembered a breast-lump examination in which her husband was present.

[4298] Ms. R.P. agreed in cross-examination that she spoke to her husband after her police interview about the police interview and, generally speaking, about what she told the police. Ms. R.P. also accepted that she may have spoken to the investigating officer two days after providing her initial police statement. However, she did not recall informing the officer that her husband had informed her that he had in fact been present for the breast lump examination. When asked if she spoke to her husband about the breast examinations, she replied, “I don’t recall. I’m sure I did because as I said, it was a very – it was a big moment connecting the dots for me.” Ms. R.P. denied the suggestion, though, that any conversations with her husband altered her memory about her husband’s presence for the breast examination.

[4299] As already noted, Ms. R.P. was unable to provide any details about any other breast examinations. At one point in cross-examination, she testified that breast examinations were a regular, normal part of Dr. Sloka’s examinations. Dr. Sloka conducted them often. After a review of her police statement, Ms. R.P. ultimately conceded that she told the police that Dr. Sloka conducted between two and three breast examinations, which became her final position on the matter.

[4300] Ms. R.P. also described an occasion in which Dr. Sloka examined a birthmark on her clavicle. Her evidence about the timing of this examination was vague at first and became more specific. She described this as occurring at one of the first examinations. She then narrowed the timing, indicating that it occurred at the first examination. She testified that he asked about unique skin markings. She mentioned a birth mark on her clavicle. For the examinations that day, she wore a gown tied at the top and opened at the back. She had removed her clothes but wore underwear beneath her gown. Once in a gown for her examinations, she showed Dr. Sloka the birthmark on her clavicle. He looked at it closely. He also looked at the exposed portion of her back. She recalled standing close to the examination bed, having walked in the middle of the examination room. In my estimation, she indicated that he examined her skin after he observed her gait and around when he tested resistance in her arms:

I would’ve been – I wasn’t on the bed. I would’ve been close to the bed because we would’ve been going through the – the resistance, you know, close your eyes, so you’re I guess kind of in the middle of the room. Because you’re – you’ve used it as like a walkway when you’re walking and he would watch you walk and then, you know, walk straight. Okay, turn around. Walk on your – I can’t remember if it was like walk on your heels. Walk on your toes. You know, stand. Please put your hands – arms out. So, it would’ve been in the middle area of the exam room.[25]

[4301] On Ms. R.P.’s account, she never removed her gown, and Dr. Sloka never examined beneath her gown. She also did not allege that Dr. Sloka touched her when looking at her skin.

The Evidence of G.P.

[4302] While the Crown called Mr. G.P. as a witness, they did not rely upon his evidence in submissions. The defence, however, relies upon aspects of his evidence.

[4303] Mr. G.P. testified that he was with Ms. R.P. on the day of her breast-lump examination. To his recollection, the visit was focussed on Ms. R.P.’s twitchy legs, nothing more. In discussions, Dr. Sloka asked if there was “anything else.” According to Mr. G.P., Ms. R.P. raised the breast lump. He recalled Dr. Sloka leaving the examination room to allow Ms. R.P. to get into a gown. Dr. Sloka then performed a breast examination in Mr. G.P.’s presence. After the examination, Dr. Sloka recommended magnesium for her twitchy legs. To his recollection, the only thing he said about the lump was, “You should keep an eye on it. If it grows, you should get it looked at.”

[4304] Mr. G.P. was not aware about Dr. Sloka making a referral to a surgeon.

[4305] R.P. was interviewed by the police on May 15, 2019. G.P. was interviewed by the police on May 24, 2019. According to Mr. G.P., both he and his wife agreed that he was present for the breast-lump examination. He did not explain how he knew that his wife’s recollection accorded with his. He did not agree with the suggestion that, following her police interview, he told her about his presence for the beast-lump examination.

[4306] At some point after Ms. R.P. read the notice about Dr. Sloka in Dr. Sloka’s office, Ms. R.P. also informed Mr. G.P. about an offer of some form of vaginal examination. He could not provide details about the offer. He also could not provide more information about the timing of this disclosure, particularly about whether it occurred before or after Ms. R.P. had read about similar allegations in CPSO materials.

The Evidence of Dr. Bril

[4307] During Dr. Bril’s examination in-chief, the Crown asked Dr. Bril to conduct an exhaustive review of each and every one of Ms. R.P.’s 19 appointments. While a detailed examination of some portions of her evidence is warranted, elsewhere a more general summation of her evidence will suffice.

[4308] When her evidence is viewed in its entirety, it becomes apparent that Dr. Bril considered Ms. R.P. to be a longstanding lupus and epilepsy patient with a broad array of symptoms and medical issues at various points during her time as Dr. Sloka’s patient. Over time, Ms. R.P.’s symptoms and medical issues included migraines, seizures, arthritis, rashes, arm shaking, restless leg syndrome, episodic bladder incontinence, pregnancy, mid-back pains, a mild bulging disc, von Willebrand’s disease (a blood clotting disorder), weight loss, a breast lump, a lump in her axillary region, a torn labrum, muscle fatigue, tingling in her feet and shins, night sweats, anxiety, unusual olfactory sensation, irritability, and difficulty finding words.

[4309] Dr. Bril testified that Lupus is a rheumatological disorder that may give rise to neurological symptoms. A neurologist may work in conjunction with a rheumatologist in managing those symptoms.

[4310] In the original referral, Ms. R.P.’s family doctor sought an opinion about the appropriate types of seizure and migraine medication for Ms. R.P. as she sought to get pregnant. Over time, Dr. Sloka addressed other issues, conducted other investigations, and, rightly or wrongly, took steps to address issues that arose.

[4311] As the Crown took Dr. Bril through Ms. R.P.’s medical chart, Dr. Bril observed that Ms. R.P. was in a circle of care that included her family doctor, a rheumatologist, a neurologist, and a surgeon. Dr. Bril also observed that, on one occasion, Ms. R.P.’s symptoms were thought to have been psychological, not neurological. A psychologist was in Ms. R.P.’s circle of care at one point, too.

[4312] In reviewing Ms. R.P.’s records, Dr. Bril observed that on some occasions Ms. R.P.’s issues and symptoms rightly invited neurological investigation, even if rheumatological considerations or other medical considerations were also germane. Accordingly, Dr. Bril often agreed with the neurological appropriateness of Dr. Sloka’s involvement. On one occasion (Ms. R.P.’s final visit), Dr. Bril even opined that Dr. Sloka erred by failing to conduct a neurological examination when one was warranted.

[4313] However, Dr. Bril opined that on several occasions, Dr. Sloka stepped outside of what she considered to be the appropriate boundaries of Dr. Sloka’s neurological lane by conducting investigations and taking action that ought to have been conducted by others. In Dr. Bril’s opinion, Dr. Sloka at times strayed into the field of rheumatology. At times, he entered the domain of Ms. R.P.’s family doctor. Dr. Bril considered these forays neurologically unreasonable.

[4314] As for the one clearly identifiable breast examination recorded in Dr. Sloka’s medical file, Dr. Bril opined that Dr. Sloka strayed beyond his neurological lane by conducting a breast examination. In her view, even if the patient asked Dr. Sloka to examine a breast lump, Dr. Sloka ought to have referred Ms. R.P. elsewhere. Dr. Bril testified that breast examinations are not part of a neurologist’s training and expertise, nor part of a neurologist’s practice. She said neurologists do not do breast examinations. Dr. Bril also testified that, even if Dr. Sloka had some significant training in breast examinations and was competent to perform them, he ought not to have performed one. In her view, Dr. Sloka was too accommodating of his patient. He ought to have referred her to a surgeon, or ordered a mammogram or ultrasound, or referred Ms. R.P. to her family doctor. It is clear from Dr. Bril’s evidence that she would not have condoned Dr. Sloka doing a breast examination at any of Ms. R.P.’s appointments. Dr. Bril acknowledged, though, that she once performed a breast examination at the request of a neurology patient in circumstances similar to that of Ms. R.P. Dr. Bril also agreed that it was ultimately reasonable for Dr. Sloka to send Ms. R.P. to a surgeon (Dr. Judges) to further investigate Ms. R.P.’s breast lump.

[4315] While Ms. R.P. did not allege a full skin examination, the Crown nevertheless sought Dr. Bril’s opinion on the appropriateness of one at Ms. R.P.’s first appointment. In Dr. Bril’s opinion there was no neurological reason to conduct a skin examination. She was not asked specifically about looking at Ms. R.P.’s birth mark on her clavicle when she showed it to him. She was also not asked about any incidental observations of the skin on Ms. R.P.’s back visible in the space between the two halves of Ms. R.P.’s gown. Elsewhere in her evidence, though, Dr. Bril did not take issue with incidental observations of the skin, nor did she take issue with observing birth marks shown by patients when in response to standard screening questions about the presence of any unusual skin markings.

[4316] The Crown also sought Dr. Bril’s opinion about doing a leg sensation examination in response to Ms. R.P.’s purported complaint of feeling a warm liquid sensation on her leg. This line of questioning posed some difficulty for the Crown, because Ms. R.P. had not definitively identified the occasion on which this leg-sensation examination occurred. While Ms. R.P. had testified to a belief that the leg-sensation examination occurred at or close to her final examination (September 2, 2016) right before her final EMG study (ordered on September 2nd and conducted on October 3, 2016), the Crown’s inquiry focussed on a much earlier appointment. Despite Ms. R.P.’s evidence to the contrary, the Crown appears to have operated on the assumption that the leg-sensation examination occurred on November 22, 2013. Ms. R.P. was examined at least three more times after November 22, 2013, according to Dr. Sloka’s medical records: November 9, 2015; December 23, 2015; and September 2, 2016). In any event, the Crown sought Dr. Bril’s opinion about the appropriateness of a leg-sensation examination and the appropriate methodology for that examination in relation to Ms. R.P.’s report of an “unusual sensation in her left thigh” at her November 22, 2013, appointment. Curiously, this is the appointment at which Dr. Sloka reported a breast lump and made a referral to the surgeon, suggesting that this was the date on which the breast-lump examination occurred. Ms. R.P. did not testify that the leg-sensation examination and breast-lump examination occurred on the same visit. On her evidence, they occurred at separate appointments. With all of that said, I will now attempt to summarize Dr. Bril’s evidence regarding the alleged leg-sensation examination.

[4317] In the history portion of Dr. Sloka’s November 22, 2013, consultation letter, Dr. Sloka wrote, “Her rheumatologist has suggested Lyrica and that might be okay for her to try although the unusual sensation in her left thigh is likely to be a focal sensory neuropathy of some sort given the repeatable nature of it. Her EMG[26] tests were normal in that leg but if it progresses, or if it becomes more persistent, or if she develops weakness then we should repeat the EMG studies.” Dr. Bril was not sure what to make of this passage, because Dr. Sloka’s summary was so terse. However, she speculated that the complaint may have pertained to a pinching of the lateral cutaneous nerve by the inguinal ligament, which can cause numbness in the thigh. Dr. Bril concluded that it would have been appropriate to conduct a full neurological examination of Ms. R.P. at this appointment. In addition to a full neurological examination, she opined that it would have been appropriate to map out the area in which the patient had experienced abnormal sensation.

[4318] Dr. Bril provided evidence about the appropriate area to investigate when investigating impingement of the lateral cutaneous nerve. When mapping out the area of unusual sensation, a physician should expose the thigh but drape the genitalia. Then, starting at the numb area, the neurologist should apply either a sharp object or a cotton whisp to the skin to compare the patient’s sensation to a control area (such as the forehead or sternum). The neurologist should radiate outwards from the centre of the numb area until finding an area of normal sensation. Unlike the normal full neurological examination, this focal examination would not begin at the toes and go up the length of the leg. Assuming the complaint pertained to numbness on the outer thigh (and thus a possible pinching of the lateral cutaneous nerve), the outer boundaries of the area tested would extend to the knee, the outside of the thigh (not the back or inside), and upwards towards the inguinal ligament (but shouldn’t go all the way to the inguinal ligament – the numbness would not likely go that far). In general, leg-sensation testing would not involve the inner thigh. Dr. Bril acknowledged, though, that the area of the leg enervated by the lateral cutaneous nerve can vary from person to person. The diagram referenced in Dr. Bril’s evidence about the areas enervated by that nerve was just one example.

[4319] Dr. Bril also testified about the appropriate method to use when determining the extent of any compromised leg sensation. She opined that it was not neurologically reasonable to check sensation by gently swiping with two fingers. The wrong nerve endings may be stimulated by applying pressure in this manner. Having said that, she recognized that this was a shortcut commonly employed by some neurologists, even if ill advised.

[4320] Dr. Bril also opined that it would be reasonable, in the context of a complaint about an unusual sensation in the thigh, to inquire about incontinence, which may have a neurological cause. Similarly, if a patient reports incontinence of the bladder or bowel, it would be neurologically reasonable to ask about saddle anesthesia. However, she would not be more specific and ask the patient if she can feel sensation in her vagina – but doing so would not be completely unreasonable.

[4321] The Crown also sought Dr. Bril’s opinion on the appropriateness of cardiac examinations performed by Dr. Sloka. However, the Crown also stated in their written submissions that they were not challenging the reasonableness of decision to conduct a cardiac examination, only his methods. I will nevertheless summarize Dr. Bril’s evidence on the reasonableness of the two cardiac examinations charted by Dr. Sloka. Dr. Bril did not believe it neurologically reasonable to conduct a cardiac examination at Ms. R.P.’s first appointment on January 12, 2011. In her view, a cardiac examination would not inform the appropriate treatment of Ms. R.P.’s seizures. Similarly, she did not think it neurologically reasonable to conduct a respiratory examination on this date. Dr. Sloka also charted a minimal cardiac examination on March 25, 2013. Two months prior to that visit, Ms. R.P. suffered an episode where she blacked out and was found on the couch by her husband. Dr. Bril did not think it appropriate to conduct a cardiac examination because, Ms. R.P. had recently worn a Holter monitor to assess her heart rhythm. If the heart is implicated in a loss of consciousness, usually an abnormal rhythm is the cause. The Holter monitor indicated a recent normal rhythm. Consequently, Dr. Bril did not think a cardiac examination would provide any useful additional information.

The Evidence of Dr. Sloka

[4322] On a general level, Dr. Sloka remembered Ms. R.P., because of the sheer number of appointments she had with him. She saw him over three referral periods for a total of 19 appointments, between 2011 and 2018. However, when it came to the specific events at any visit, he had little to no memory. He relied upon his consultation letters for the truth of their contents.

[4323] During the examination in-chief, defence counsel focussed on the appointments for which he reported doing examinations in his consultation letters. In doing so, Dr. Sloka explained his rationale for the examinations conducted and he also addressed Dr. Bril’s critiques of some examinations.

[4324] The Crown’s cross-examination of Dr. Sloka was extensive. Given the number of appointments and the length of the evidence, I have chosen to summarize the examination in-chief and the cross-examination separately. Summarizing the evidence in this fashion will also assist with tracking the Crown’s submissions about Dr. Sloka’s evidence.

[4325] I will begin with the examination in-chief, starting with Ms. R.P.’s first appointment.

[4326] Dr. Sloka first met Ms. R.P. on January 12, 2011. She was referred by her family doctor. He described her as an epileptic with other issues. At the time of the referral, she was planning on getting pregnant. Her family doctor wanted pre-conception counselling about the appropriate medication to be used while pregnant.

[4327] By the time of her appointment on January 12, 2011, Ms. R.P. was already nine weeks pregnant. She stopped taking seizure medications when found out she was pregnant. She was 31 years old at the time. She had suffered migraines since she was 20 years old. She also experienced seizures. She had seen three neurologists before seeing Dr. Sloka, who had investigated her with MRIs and EEGs. Ms. R.P. believed the past tests yielded normal results. Ms. R.P. also had a prior diagnosis of lupus. Dr. Sloka observed that seizures are a possible manifestation of lupus. Her last seizure was about seven months before her appointment with Dr. Sloka.

[4328] Dr. Sloka recommended and performed a neurological, cardiac, and respiratory examination for Ms. R.P. Dr. Sloka denied performing a breast examination at this appointment.

[4329] Dr. Sloka’s reasoning for a neurological examination was not controversial.

[4330] Dr. Sloka disagreed with Dr. Bril’s opinion about the utility of a cardiac examination. He noted that Ms. R.P. described atypical seizure features. He did not know for sure whether her past EEG results disclosed unusual brain activity. According to his training, a cardiac examination was indicated in patients with epilepsy. He also testified that cardiac examinations formed part of his standard approach to headache patients. Moreover, lupus patients can have cardiac abnormalities. Indeed, in providing her history, Ms. R.P. had reported a past episode of pericarditis – a condition which can be detected upon auscultation of the heart. He also believed it necessary to write to the MTO, because she had ceased taking seizure medication. A cardiac examination would usually inform any recommendation he made to the MTO.

[4331] Dr. Sloka testified that a partial respiratory examination would form a component of his cardiac examination. He was unsure about whether he performed a complete respiratory examination. However, because lupus could have respiratory manifestations, he believed it possible that he did a full respiratory examination.

[4332] Following the January 12, 2011, appointment, Dr. Sloka wrote the MTO. He noted her past seizure history, her cessation of medication, and her consistent history of a five-minute warning before the onset of symptoms. He took no position on the revocation of her licence.

[4333] Dr. Sloka saw Ms. R.P. three more times during this first referral period. He did not conduct any examinations in those three appointments. At the end of that referral period, Ms. R.P. had delivered her baby. She had not been experiencing seizures while off her medication. He did not recommend the resumption of seizure medication while she was breast feeding. He also did not require to see her again.

[4334] The second referral period began with Ms. R.P.’s appointment on March 25, 2013. She had been referred to Dr. Sloka after a loss of consciousness and heart palpitations in January. She saw her rheumatologist, Dr. Boulos, in February. Dr. Boulos referred her to Dr. Sloka. Dr. Boulos requested an urgent referral because unlike her usual seizures, she lost consciousness and was also experiencing heart palpitations. Dr. Boulos reported that Ms. R.P. had not experienced a recurrence of her usual seizures.

[4335] At the outset of the March 25th appointment, Dr. Sloka obtained Ms. R.P.’s history. She described her loss of consciousness episode. She told him that she was at home and feeling unwell. She made a coffee and climbed the stairs, spilling coffee as she went. She next remembered her husband finding her on the couch. She had difficulty speaking but did not have her usual headache and was not exhausted. Her usual seizures included confusion, exhaustion, and a headache in their aftermath. This one was different. Since the episode, she suffered two migraines a week.

[4336] In light of this history, Dr. Sloka proposed obtaining Ms. R.P.’s vital signs, doing a neurological examination, and doing a minimal cardiac examination.

[4337] His decision to perform a neurological examination was not controversial. He explained that it had been a couple years since he had last seen Ms. R.P. and she experienced a different seizure than her usual ones.

[4338] Dr. Sloka testified that, as part of his standard neurological examination, he tested sensation on Ms. R.P.’s legs. He reported doing so in the summary of his neurological examination in his consultation letter.

[4339] Dr. Sloka believed a cardiac examination was justified because Ms. R.P. had experienced a different seizure than her usual ones. It was his understanding that a cardiac examination was justified to evaluate the likelihood of seizures or possible seizure mimics. Dr. Sloka disagreed with Dr. Bril’s opinion that recent observation with a Holter monitor made a cardiac examination unnecessary. He testified that a Holter monitor is an electrical measurement which measures electrical impulses in the heart. It would not reveal sufficient information about the structure of the heart, which is more thoroughly revealed by sounds.

[4340] Dr. Sloka did not conduct his standard cardiac examination, only a “limited cardiac examination.” Employing this method, he placed the stethoscope over Ms. R.P.’s garment, rather than placing it on her exposed chest. He made record of this method in his consultation letter. Dr. Sloka believed that Ms. R.P. would likely have been wearing street clothes but also considered it possible that she was gowned. He had no memory one way or the other.

[4341] Dr. Sloka denied examining Ms. R.P.’s breasts on this occasion.

[4342] All the examinations yielded normal results.

[4343] Having taken Ms. R.P.’s history and having obtained normal examination results, Dr. Sloka found it difficult to categorize Ms. R.P.’s loss-of-consciousness episode. Accordingly, he ordered an MRI of her head, MRA (an MRI of the arteries in her head and neck), MRV (an MRI of the veins in the head and neck), as well as an EEG. By ordering these tests, he was attempting to characterize any brain contribution to her spells.

[4344] Dr. Sloka also ordered an exercise stress test and an ultrasound of her heart. He did so, because Ms. R.P. had described foggy thinking, episodes which she thought were provoked by exercise. He was exploring the possibility that her spell had a cardiovascular cause.

[4345] Dr. Sloka also ordered bloodwork to rule out metabolic pathologies.

[4346] In short, unable to form an opinion about the nature of Ms. R.P.’s loss of consciousness, Dr. Sloka ordered a broad array of tests in the hopes of finding an explanation. Dr. Sloka planned to see Ms. R.P. once she had completed these tests. Ms. R.P. decided against using Topiramate, for the time being. Dr. Sloka also told her not to drive for the time being.

[4347] Dr. Sloka next saw Ms. R.P. on May 21, 2013. All her test results had been normal. Dr. Sloka did not conduct any examinations on this date. He prescribed Keppra, an anti-seizure medication. He planned to see her in six months and at that time assess the efficacy of her medication.

[4348] Dr. Sloka next saw Ms. R.P. on November 22, 2013.

[4349] At the outset of the appointment, Dr. Sloka questioned Ms. R.P. about her recent medical history. She reported that she had not suffered any additional seizures, which he described euphemistically as “unusual events.” She told him about benign thyroid cysts. She also told him that her rheumatologist had suggested prescribing Lyrica to treat her symptoms. I should note here that the rheumatologist saw Ms. R.P. two days earlier and had faxed Dr. Sloka a consultation letter. In that consultation letter, Dr. Boulos reported that she had prescribed Lyrica but “told her to okay with Dr. Sloka who she is seeing this Friday.” In writing about this, Dr. Sloka reported, “Her rheumatologist has suggested Lyrica and that might be okay for her to try although the unusual sensation in her left thigh is likely to be a focal sensory neuropathy of some sort given the repeatable nature of it.”

[4350] Ms. R.P. also informed Dr. Sloka of a breast lump at this November 22, 2013, appointment. Dr. Sloka testified that this disclosure would have occurred while speaking to Ms. R.P. in his office. When taking a patient’s history and asking screening questions in a review of their “systems”, he asks patient if they have any ongoing concerns about their health.

[4351] Dr. Sloka testified that he took reports of breast lumps seriously. In such circumstances, it was his standard practice to provide the patient options: a referral to their family doctor for a breast examination, a referral to a breast clinic (locally, that clinic is at Freeport Hospital), a referral to a surgeon, or a breast examination by him at his office.

[4352] Dr. Sloka agreed that the breast examination was not a neurological issue, but rather a problem she brought to his attention. He agreed that he was not conducting a neurological investigation here. However, he believed there existed a medical reason for the breast examination. He testified that he conducted breast examination, because it was part of the overall care of the patient, because he wanted to address the patient’s concern, and because he wanted to address patient safety. To his knowledge, one out of every eight or nine women will have breast cancer in their lifetime. He recalled a patient who was in her twenties while he was training. He saw her for a pre-operation assessment. She had reported a breast lump to her family doctor multiple times. By time that lump was investigated, she had stage-3 breast cancer. Dr. Sloka believed that it probably took a lot for Ms. R.P. to raise this concern with her neurologist. Dr. Sloka did not want to ignore his patient’s concern. If there was a chance she had breast cancer, then he felt he should oblige his patient’s request for an examination.

[4353] Dr. Sloka did not record performing a breast examination and he had no independent memory, but he believed he performed one. Implicitly, at least, that belief was informed by Ms. R.P.’s claim that she asked him to examine her breast lump and that he complied with that request. It was also informed by the subsequent contents of Dr. Sloka’s referral letter to the surgeon.

[4354] Dr. Sloka disagreed with Dr. Bril’s opinion that he ought not to have performed a breast examination, even if he possessed sufficient training, experience, and competence to do so. Dr. Sloka testified that he possessed the training and experience necessary to competently perform a breast examination. He believed that to obtain his licence, the RCPSC required him to be competent to perform a general examination, which includes a breast examination. Given Ms. R.P.’s concern, he would not want to ignore it.

[4355] Dr. Sloka testified that he did not perform any examination other than a breast examination on the November 22, 2013, visit.

[4356] At the conclusion of this visit, Dr. Sloka referred Ms. R.P. to a surgeon, Dr. Judges. He made note of the referral in his consultation letter to Ms. R.P.’s family doctor. Dr. Sloka believed that the family doctor was already aware of the breast lump. He drew that inference from the fact that he noted for the family doctor Ms. R.P.’s “continuing concern” when explaining his referral to the surgeon. He believed Ms. R.P. was not satisfied with the family doctor’s approach to this breast lump.

[4357] In the referral letter to Dr. Judges, Dr. Sloka made note of the breast lump. He also observed that “there was some lymphadenopathy associated with this.” This notation confirmed for Dr. Sloka that he palpated the lump in Ms. R.P.’s breast and that he palpated the lymph nodes in her armpit and located swelling. In his referral to Dr. Judges, he made a point of observing that Ms. R.P. was “very concerned.” He asked Dr. Judges to rule out any concerning pathology.

[4358] At the conclusion of the November 22, 2013, appointment, Dr. Sloka told Ms. R.P.’s family doctor that he did not plan to see Ms. R.P. in follow-up. He also reported that he would write to the MTO to advocate for Ms. R.P.’s licence reinstatement.

[4359] The next referral period began when Ms. R.P.’s family doctor made a referral on December 5, 2014. Dr. Oh reported that Ms. R.P. described a vague history of involuntary left arm spasms and transient blurry vision in her right eye. An optometrist was going to examine her eye.

[4360] The first appointment in this third referral period occurred on January 28, 2015. According to Dr. Sloka, he took her history, but he did not conduct any physical examinations. Based upon her description of her arm twitching, he did not think she was describing a whole-body twitch like one would expect with a hypnic jerk when falling asleep. He also noted that she maintained consciousness throughout the twitching and remembers everything that occurred. She reported lightheaded spells, but these were orthostatic (occurred when standing). She also reported some headaches. Based on what Ms. R.P. told him, Dr. Sloka decided to increase her Keppra dosage and order an EMG study of her left arm. He did not think seizures were responsible for the arm twitching, given their regular association with falling asleep. Seizures tend to be random events. He planned to see her in three months.

[4361] Dr. Sloka did not testify in chief about the next three appointments. He simply implied that no examinations occurred during these follow-up appointments. On his evidence, for this referral period, he only examined Ms. R.P. on November 9 and December 1, 2015.

[4362] In Dr. Sloka’s consultation letters from April 28, July 14, and July 30, 2015, Dr. Sloka summarized developments as he followed Ms. R.P., ordered tests, and made recommendations.

[4363] On April 28, 2015, he noted that Ms. R.P.’s arm twitching had subsided. There had been no events for two months. He attributed the improvement to the increase in her Keppra dose. Her restless leg syndrome had increased; so, he ordered blood work to investigate it. He wondered whether her use of Celexa was contributing to her restless legs. She also reported an increase in bruising; so, he ordered bloodwork to investigate. She also reported episodic bladder incontinence since giving birth; so, he ordered EMG studies, a bladder ultrasound, and an MRI of her lumbar spine. He planned to see her in follow-up.

[4364] On July 14, 2015, he reported that Ms. R.P. continued to experience episodic bladder incontinence. However, the MRI and ultrasound did not disclose any issues. She reported no saddle anesthesia. Her bowels functioned without difficulty. She reported pain in her torso, which he thought might be related to a bulging disc. However, given her lupus diagnosis, he ordered an MRI of her thoracic spine to rule out transverse myelitis. To address her bladder incontinence, he referred her to a bladder physiotherapist. If that referral proved unhelpful, he planned to refer her to a gynecologist or urologist. He planned to see her after obtaining the results of her thoracic MRI.

[4365] On July 30, 2015, he reported that Ms. R.P. continued to experience mid-back pain. The thoracic MRI did not reveal anything other than a mild disc bulge that likely explained her mid-back pain. He referred her to a massage therapist and physiotherapy. They discussed her concern about passing on von Willebrand’s disease to her children, noting that the rheumatologist knows a hematologist that might assist with her concern. Dr. Sloka did not require Ms. R.P. to return. He left follow-up open.

[4366] Ms. R.P. next came to see Dr. Sloka on November 9, 2015. According to his consultation letter, Ms. R.P. had left a message, reporting difficulties with her right arm. She also reported a recent history of headaches, which were occurring several times a week. In addition, she reported weight loss and a loss of appetite. Ms. R.P. also reported a lump in her axillary region (armpit). An ultrasound had reportedly revealed some swelling in those lymph nodes. Ms. R.P. had also reported suffering from a cough and cold for the past month. She also reported night sweats and blood with her bowel movements. Dr. Sloka testified that he recommended and performed a respiratory examination, an abdominal examination, at least a partial lymph node examination, and a partial skin examination.

[4367] Dr. Sloka provided an explanation for his decision to conduct a respiratory examination. He said that some of Ms. R.P.’s symptoms (headaches, exhaustion, night sweats) were suggestive of pneumonia. The pneumonia might explain the recent development of her headaches.

[4368] Dr. Sloka also explained the rational behind his abdominal examination. Some of the symptoms described by Ms. R.P. (weight loss, loss of appetite, headaches, and night sweats) made Dr. Sloka consider the possibility of lymphoma. He wanted to palpate the abdomen to look for any masses arising from lymphoma. He also wanted to listen to her bowel sounds. Dr. Sloka noted that lymphoma might explain Ms. R.P.’s recent headaches.

[4369] Dr. Sloka also testified about his reason for palpating Ms. R.P.’s lymph nodes. Ms. R.P. had described swelling in her right axillary region; and she reported that an ultrasound had disclosed swollen lymph nodes.

[4370] As for any skin examination, Dr. Sloka did not believe he performed a full skin examination, though he could not entirely rule out the possibility. Instead, he believed he may have observed Ms. R.P.’s skin when conducting the other examinations. In his consultation letter, he commented that Ms. R.P. had possible cutaneous lupus (skin lesions associated with lupus) on her right chest and neck area along with poikiloderma (sun damage). He inferred that he might have made this observation during the respiratory examination, which would have involved her neck and some of her chest being exposed.

[4371] Dr. Sloka denied any leg-sensation examination and any breast examination at this appointment.

[4372] During his examinations, Dr. Sloka detected decreased air entry in Ms. R.P.’s right lung. He also detected tenderness in Ms. R.P.’s axillary region. He did not find any masses or abnormalities during the abdominal examination.

[4373] After completing his examinations, Dr. Sloka considered the possibility of a chest infection. Accordingly, he ordered a chest x-ray and prescribed antibiotics. He also ordered an ultrasound of Ms. R.P.’s abdomen to further investigate the change in her bowel movements and her night sweats. He planned to see Ms. R.P. in three weeks.

[4374] Dr. Sloka next saw Ms. R.P. on December 1, 2015. Again, he provided testimonial evidence about this appointment during his evidence in-chief. In the history portion of his consultation letter, he noted that antibiotics helped with Ms. R.P.’s sinus infection, but her chest pain persisted. In reference to Dr. Boulos’s consultation letter from November 18, 2015, Dr. Sloka acknowledged the CT scan ordered by Dr. Boulos to rule out a pulmonary embolism. He also noted that Ms. R.P.’s bloodwork was normal. Nevertheless, Ms. R.P. continued to complain of pressure and pain in her right rib area.

[4375] Dr. Sloka testified that he conducted a respiratory examination and that he palpated Ms. R.P.’s chest wall in search for tenderness.

[4376] Dr. Sloka testified that he conducted the respiratory examination because of Ms. R.P.’s complaint of an inner deep pain and pressure in her right rib area. His consultation letter indicated the absence of a pleural rub. Dr. Sloka explained that the lungs sit in a fibrous envelope, called the pleura. If there is inflammation of the pleura, one can hear a rubbing sound when auscultating the lungs.

[4377] Dr. Sloka testified that Ms. R.P. would wear a gown for the respiratory examination, with no clothing from the waist up. His patients wore their gowns tied at the top and open at the back. Dr. Sloka wen on to testify that he would expose one side of the chest at a time when auscultating the lungs.

[4378] Dr. Sloka also explained his rationale behind the palpation of Ms. R.P.’s chest wall. He explained that on some occasions, chest pain is just chest wall pain, which is usually benign. If one can reproduce the pain at other locations, then the reported pain is likely just chest wall pain. Dr. Sloka reported finding no “outside tenderness” on the chest wall.

[4379] Dr. Sloka denied any breast examination or other intentional contact with Ms. R.P.’s breasts. According to Dr. Sloka any contact would have been incidental to the examinations he performed. Dr. Sloka also denied performing a leg-sensation examination.

[4380] Dr. Sloka decided to give Ms. R.P. prescriptions for her headaches. He also decided to send Ms. R.P. for a bone scan to further investigate her chest pain. He planned to see her in three weeks.

[4381] Dr. Sloka next saw Ms. R.P. on December 23, 2015. During examination in-chief, he did not provide testimonial evidence about this visit, other than to assert that no examinations took place here. His consultation letter revealed that Ms. R.P. had improved. Her test results were largely reassuring. She felt the increase in her prednisone (prescribed by the rheumatologist) had helped. Dr. Sloka planned to see her in two months.

[4382] Dr. Sloka next saw Ms. R.P. on April 13, 2016. Again, Dr. Sloka did not provide testimonial evidence about this visit, other than to deny any examinations on this date. In his consultation letter, he commented on her recovery from hip surgery. He also noted that Ms. R.P. seemed to be asymptomatic at the moment, except for an exacerbation of her restless leg syndrome. He ordered some bloodwork to investigate the restless leg syndrome. He also told the family doctor, “We will leave follow-up open strategically, but she knows she can call if she has difficulties and I am happy to see her at any time.”

[4383] Five months later, Ms. R.P. came to see Dr. Sloka again. The visit occurred on September 2, 2016. Dr. Sloka provided testimonial evidence about this visit during his examination in-chief.

[4384] At this visit, Ms. R.P. reported muscle pain in her legs coupled with fatigue. She also reported a generalized sleepiness, tingling in both feet, up to her shins, a persistent headache, diarrhea for a month and a half, a change in menstrual cycle, and localized pain in the lumbar spine region. Having received this history, Dr. Sloka decided to conduct a neurological examination.

[4385] According to Dr. Sloka, a neurological examination was warranted. She suffered from lupus, which can be associated with joint pain and transverse myelitis (spinal cord inflammation). Transverse myelitis can cause symptoms like numbness, weakness, a change in bowel and bladder function, and walking ability. In this instance, Ms. R.P. had reported tingling in her feet and shins, as well as diarrhea, all of which might be associated with transverse myelitis.

[4386] According to Dr. Sloka, in this situation, he would ask Ms. R.P. to wear a gown after removing all clothing except her underwear. He was confident that he would have Ms. R.P. remove her pants, because of the specific need to examine Ms. R.P.’s legs for sensation. In keeping with his standard approach, he would ask Ms. R.P. to wear her gown tied at the top and opened at the back.

[4387] Dr. Sloka testified that he conducted the neurological examination in accordance with his standard protocol. Dr. Sloka testified here and elsewhere that a component of his neurological exam involves a test of the patient’s leg sensation. He believed he probably gave some added attention to this portion of the neurological examination, because of Ms. R.P.’s presentation. Dr. Sloka believed that Ms. R.P. would most likely be sitting down for the leg sensation examination. He did not think she would have laid down as she described. This is not his usual approach for leg-sensation examinations. However, he could not completely rule out the possibility. If she were laying down, her feet would be pointed towards the hallway door, not towards the window as she had described. Dr. Sloka noted, though, that in a nearby room, an EMG technician has patients lay down with their feet towards the window for the EMG studies. Dr. Sloka ordered EMG studies at the conclusion of this September 2nd visit.

[4388] Dr. Sloka testified about his standard approach to a leg-sensation examination, which is the approach he purportedly employed with Ms. R.P. Using two fingertips and alternating from one side to the next, he uses light touch to swipe at the patient’s skin, starting at patient’s feet and working his way up. He stated that each nerve has its own specific territory. He moves from one territory to the next and apply light touch at the mid-point of each territory. He proceeds all the way up the leg until he got 4-6 inches from the inguinal area. He applies touch to outside and top [front] of the legs. He does not apply touch to the inside of the legs. Then, he applies a vibrating tuning fork at the toes to check sensation. He then uses a tuning fork or reflex hammer to check temperature sensitivity. This was his standard approach, and this was the approach he purportedly took with Ms. R.P.

[4389] Dr. Sloka denied that, during the neurological examination, he would have asked questions about bowel or bladder incontinence. He also denied asking about numbness or tingling in the groin region while performing the neurological examination. Similarly, he denied asking to check her groin area.

[4390] Dr. Sloka also denied touching Ms. R.P.’s inner thighs close to the underwear line. Similarly, Dr. Sloka denied examining or touching anywhere in the area of Ms. R.P.’s buttocks.

[4391] Addressing Ms. R.P.’s claim that his physical examination consisted solely of a leg-sensation examination, Dr. Sloka denied that he conducted a leg-sensation examination in isolation. He maintained that all his neurological examinations for Ms. R.P. were complete neurological examinations. His consultation letter from September 2, 2016, documented a complete neurological examination. In that letter, he noted decreased sensation in the fourth and fifth digits of Ms. R.P.’s hands, positive Tinel’s at the elbow, and decreased sensation in the lateral shin and dorsum of the foot, bilaterally. He did not make any record of any unusual sensation in Ms. R.P.’s thigh.

[4392] Having examined Ms. R.P., Dr. Sloka did not think Ms. R.P. was experiencing her usual lupus flareup. He concluded that she had multi-system problems. That said, some of her symptoms were consistent with lupus. Consequently, he prescribed her prednisone (an anti-inflammatory steroid) for a five-day period. To investigate her lower back pain and leg symptoms, he ordered an MRI of the lumbar spine. He also ordered an EMG study of her legs. Dr. Sloka testified that this was the last occasion on which he ordered an EMG study. He planned to meet Ms. R.P. in follow-up.

[4393] According to Dr. Sloka, he did not perform any examinations after September 2, 2016.

[4394] I will now turn to the Crown’s cross-examination of Dr. Sloka.

[4395] I begin with Ms. R.P.’s first ever appointment with Dr. Sloka on January 12, 2011. The Crown questioned Dr. Sloka about why he did not conduct a skin examination, given Ms. R.P.’s description of a rash and given her reported history of lupus and seizures. The questioning in this area was a bit protracted. And frankly, I wonder about its importance, because Ms. R.P. did not allege that Dr. Sloka performed a skin examination. Consequently, I question the importance of scrutinizing Dr. Sloka’s explanation for refraining from doing an examination that Ms. R.P. never alleged he performed. Succinctly put, the main points are as follows. Dr. Sloka maintained in his cross-examination, “I do not think I did a skin examination on this patient.” Dr. Sloka noted that the original referral involved a request for a pre-pregnancy consultation about the appropriate medication to prescribe for Ms. R.P.’s seizures and migraines. By the time of the appointment, her situation had already changed. She was now pregnant. She had ceased taking he former medication, once she discovered her pregnancy, but had taken the medication in the first several weeks of her pregnancy, which exposed her baby to a risk of birth defects. He discussed this issue with her. Dr. Sloka acknowledged that she had a long-standing lupus diagnosis. He recognized that seizures could be an element of lupus. He also acknowledged that discoid lesions could be an element of lupus. He noted that Ms. R.P.’s seizures seemed a bit atypical for lupus-associated seizures. He noted that Ms. R.P.’s description of her rashes did not completely fit the classic description of discoid lupus lesions. As a result, he said, “I'm not certain how I felt about how that [prior] diagnosis had arrived. I didn't have any information on it.” He went on to note that the lupus diagnosis was not really relevant to the purpose of the appointment, adding, “It's – it's a dense appointment and it just wasn't the focus of – of the appointment. I had to deal with pregnancy, I had to deal with birth defects [caused by some anti-seizure medications.” While he agreed that a skin examination, to explore the possibility of neurofibromatosis, was part of his standard approach to assessing a seizure patient, he added, “…there was nothing standard about this appointment. It was just a complicated appointment and is unexpected and then I had to deal with multiple aspects and a lot of uncertainty.” In short, diagnosing the underlying causes of Ms. R.P.’s seizures was not his focus at this appointment. The Crown made repeated attempts at suggesting Ms. R.P.’s history of seizures and rashes would prompt him to recommend a skin examination. Repeatedly, albeit awkwardly, Dr. Sloka maintained that the diagnosis of underlying conditions was not his focus at this appointment. Managing a complicated patient during his pregnancy was his focus. As noted in the impression portion of his consultation letter, “This young lady describes quite a complicated medical history, and I am very happy to see her here today to help guide her through her pregnancy.” Referring to his consultation letter, Dr. Sloka also noted that it did not appear that he asked Ms. R.P. any standard screening questions about skin abnormalities associated with neurofibromatosis. The contents of his consultation letter indicate a focus on safely navigating Ms. R.P.’s pregnancy, a focus consistent with his persistent testimonial assertions. Ultimately, Dr. Sloka informed Ms. R.P.’s family doctor that, given the nature of her seizures, which sounded like partial complex seizures (absence seizures) and not tonic clonic (convulsive) seizures, he considered it satisfactory for Ms. R.P. to remain off her seizure medication during pregnancy. If her seizures changed, he recommended that she resume taking her anti-seizure medication, because her pregnancy had progressed beyond the stage where the use of the medicine risked birth defects. He thought it likely that her headache frequency would improve during pregnancy. If not, resuming her topiramate (anti-seizure medication) was an option. He planned to see her in two months.

[4396] The Crown did not cross-examine Dr. Sloka about the reasonableness of his decision to conduct a cardiac or respiratory examination at the first appointment on January 12, 2011.

[4397] Of note, the Crown did not suggest to Dr. Sloka that he performed a breast examination on the January 12th appointment; neither did the Crown suggest that Dr. Sloka performed any inappropriate leg-sensation examination at this appointment.

[4398] The Crown also did no cross-examine Dr. Sloka about the other three appointments in this first referral period.

[4399] In short, the Crown did not suggest to Dr. Sloka that he performed a breast examination or any inappropriate leg-sensation examination at any point during the first referral period. According to the apparent Crown theory, the alleged two or three breast examinations and inappropriate leg-sensation examination occurred later.

[4400] The Crown next turned their attention to the second referral period.

[4401] Cross-examination about the second referral period began with the first appointment on March 25, 2013. A recapitulation of the history: Ms. R.P. had spilled coffee on the stairs, blacked out, and was later found by her husband on the couch; she had a gap in her memory about the episode. During Cross-examination, Dr. Sloka denied performing a breast examination at this appointment. He maintained that he conducted a neurological and minimal cardiac examination. He also measured Ms. R.P.’s pulse and blood pressure. This was the last occasion on which Dr. Sloka listened to Ms. R.P.’s heart. He maintained that the cardiac contraindications of Ms. R.P.’s medication provided a justification for cardiac examinations. He also ordered an echocardiogram, which was later conducted on May 13, 2013. Dr. Sloka explained that an echocardiogram provides more information on the structure of the heart than auscultation during a cardiac examination. However, he maintained that a cardiac examination was still clinically appropriate. It provided immediate reassurance in the clinical setting. He considered an echocardiogram an adjunct to a clinical cardiac examination and ordered them on occasion when he deemed it necessary.

[4402] The remainder of the questioning about March 25th focussed on Dr. Sloka’s decision to order bloodwork. Dr. Sloka testified that he ordered various tests and blood work to rule out metabolic “derangements.” Amongst the bloodwork, Dr. Sloka sought information about various pituitary hormones, including prolactin. Dr. Sloka testified that if he ordered testing for two or more pituitary hormone levels, he typically included a request for prolactin levels. He said that prolactin is more commonly the hormone that becomes abnormal. He also stated that prolactinomas (tumors on the area of the pituitary that produces prolactin) are the more common adenoma. In ordering this blood work, he was considering the possible mass effect of a prolactinoma on production of other pituitary hormones. He stated that he learned this in his training. He also testified that, prolactin sometimes elevated after a seizure. Bloodwork would give him a baseline for future bloodwork. In hindsight, he realized that, practically speaking, this was not a great approach, because prolactin levels vary from day to day. He ultimately did not think he properly understood how to use that bloodwork information.

[4403] The Crown did not question Dr. Sloka about the propriety of Dr. Sloka’s “minimal cardiac examination” or the manner of his neurological examination conducted on March 25^, 2013.

[4404] The Crown asked no questions of Dr. Sloka about Ms. R.P.’s next appointment on May 21, 2013. It would therefore appear that the Crown theory does contemplate either a breast examination, skin examination, or leg-sensation examination on this date.

[4405] The Crown next turned their attention to the November 22, 2013, appointment.

[4406] The Crown drew Dr. Sloka’s attention to the mammograms Ms. R.P. had obtained prior to her November 22, 2013, appointment. Consistent with Ms. R.P.’s evidence, Dr. Sloka testified that he did not order those. He was not sure how they got into his medical file for Ms. R.P. He was also not sure that he read them, noting that he typically initialled reports that he had read, and these reports were not initialled.

[4407] Dr. Sloka confirmed his belief that he performed a breast examination on Ms. R.P. at this November 22, 2013, appointment. He did not specifically record in his consultation letter to the family doctor that he had performed one. Instead, he recorded that Ms. R.P. “tells me of a breast lump” about which “she has continued concern.” Based on this report, he believed the family doctor already knew of the breast lump. Dr. Sloka relied in part upon the contents of his referral to the surgeon that day to conclude that he performed a breast examination, even though he also did not specifically indicate the performance of a breast examination in that referral. While not mentioning a breast examination in his letter to the surgeon, Dr. Sloka mentioned finding lymphadenopathy in addition to the presence of breast lump. The mention of lymphadenopathy led him to conclude that he must have palpated the lymph nodes in Ms. R.P.’s axillary region. He would not have known about the swollen nodes if he did not palpate them. Palpation of these nodes is part of a standard breast examination. Consequently, Dr. Sloka concluded that he did perform a breast examination.

[4408] The Crown questioned Dr. Sloka about the fact that he said “with apologies to you” when telling the family doctor about the referral to the surgeon. The Crown had suggested that in using this phrase, Dr. Sloka knew he had stepped outside of his neurological lane and had encroached upon the family doctor’s lane. Dr. Sloka testified that he inferred that Ms. R.P. was not happy with the family doctor’s attention to her breast lump. She had “continued concern.” So, he decided to make the referral himself. This was an inference from the contents of the consultation letter. Dr. Sloka had no actual memory of the reason he wrote that “with apologies to you” phrase.

[4409] Dr. Sloka again agreed that a breast examination was not part of neurology, but he maintained that addressing Ms. R.P.’s concern about her breast lump was part of patient care and safe practices. He did not want to ignore his patient’s concern, especially with something like this.

[4410] The Crown next turned their attention to Dr. Sloka’s mention, in the history portion of his November 22, 2013, consultation letter, of Ms. R.P.’s complaint of an “unusual sensation in her left thigh.” The Crown suggested that Dr. Sloka’s description of the “repeatable nature” of this sensation indicated that Dr. Sloka had performed a leg-sensation examination on Ms. R.P. Dr. Sloka maintained that in writing “repeatable nature” he had been indicating to the family doctor that Ms. R.P. had reported that the sensation was episodic. I would observe here that the term “repeatable nature” is used in the history portion of the consultation letter when describing what the patient had told him. Nothing about the context in which that phrase is used suggests that Dr. Sloka was reporting an examination. The Crown’s suggestion to the contrary was speculation. The very next sentence suggests the intermittent nature of the reported symptom: “… if it becomes more persistent….” While it naturally followed from his denial of a leg-sensation examination, Dr. Sloka also denied running his finger up to Ms. R.P.’s underwear line or near the cheeks of her buttocks. As for the general topic of investigating saddle anesthesia, Dr. Sloka testified that he would normally employ vague language when broaching the topic, like asking if the patient has numbness “down below” or in the bum area. He did not think he would be more specific.

[4411] The Crown then moved on to the third referral period. The first appointment of this period occurred on January 28, 2015, one year and two months after Ms. R.P.’s last appointment with Dr. Sloka. Dr. Sloka reported no examinations for this appointment. Consequently, he did not think he conducted any. The Crown strategy involved suggesting to Dr. Sloka that his standard approach to headache and seizure patients would dictate he conduct a neurological examination and a cardiac examination. At the outset of this line of questioning, Dr. Sloka pointed out that “nothing had changed” since he last saw Ms. R.P. He denied doing a neurological examination and he denied performing a cardiac examination. He also denied performing a breast examination. Dr. Sloka confirmed that a cardiac examination was part of his standard approach to headache patients, but he did not agree that he deviated from his standard approach. In his answer, he alluded to the fact that he had already conducted cardiac examinations on Ms. R.P.: “I just agree that I didn’t repeat the cardiac examination at this appointment.” However, Dr. Sloka agreed that he deviated from his standard approach to patients who experience “orthostatic light-headedness” (light-headedness when standing up). Normally, he would take the patient’s orthostatic blood pressure. He did not record doing so. He could not remember the appointment, so could not explain why this measurement was either not recorded or not performed.

[4412] The Crown did not ask questions about Ms. R.P.’s next appointment, which occurred on April 28, 2015. It would therefore appear that the Crown theory does contemplate either a breast examination, skin examination, or leg-sensation examination on this date.

[4413] The Crown skipped ahead to the appointment on July 14, 2015. At this appointment, Ms. R.P. had reported episodic bladder incontinence. She had received an MRI of her lumbar spine and an ultrasound of her bladder, neither of which shed light on the cause of her incontinence. Dr. Sloka noted, though, that the incontinence arose post-partum, which he considered not uncommon. Referring to his consultation letter, Dr. Sloka agreed that he asked Ms. R.P. if she had any saddle anesthesia, any difficulty with her bowels, any issues of urgency to urinate, and any issues with frequent urination. Regarding saddle anesthesia, Dr. Sloka denied that he would have asked about tingling in the vagina. He maintained that he would have been vaguer, asking something like, “Do you have any numbness down below?” If clarification was required, he would usually say, “Do you have any numbness in your bum area?” Dr. Sloka denied asking Ms. R.P. for permission to check her vaginal and perineal area for sensation at this appointment. Dr. Sloka referred Ms. R.P. to a pelvic floor physiotherapist. He also ordered an MRI of her thorax to rule out transverse myelitis – which can arise in lupus patients. While he considered childbirth to be the usual explanation for bladder incontinence, he also decided to investigate whether this lupus patient had transverse myelitis which might be contributing to her bladder incontinence. He did not consider a physical examination necessary, because he considered childbirth the likely explanation for her incontinence. Dr. Sloka did not feel that he was operating outside of his neurological lane, because one possible explanation for the incontinence was a neurological issue, even if the explanation was more likely gynecological. He ordered the neurological testing (the thoracic MRI) because he “was just being cautious.” He made the referral to the pelvic floor physiotherapist to deal with the likely gynecological explanation for the incontinence.

[4414] The Crown did not address Ms. R.P.’s next appointment on July 30, 2015. Of note, Dr. Sloka had left follow-up open (he did not need to see her again) at the conclusion of the July 30, 2015, visit.

[4415] The Crown turned their attention to the November 9, 2015, appointment. Leading up to this appointment, Ms. R.P. began to experience a range of issues. She began having difficulties with her right arm. She also reported developing throbbing headaches, associated with photophobia and phonophobia. She also found a lump in right axillary region. An ultrasound revealed swollen lymph nodes. In addition, she suffered from night sweats. Also, she reported recent blood and pain associated with her bowel movements, which had since dissipated. In addition, she reported significant weight loss and a loss of appetite. Dr. Sloka confirmed that he conducted a respiratory and abdominal examination. He also palpated her right axillary region and her right rib area, where she reported feeling pain. He knew Ms. R.P. was seeing the surgeon in two weeks time; so, he did not think it necessary to conduct a breast examination. He denied performing one.

[4416] In his consultation letter for November 9, 2015, Dr. Sloka documented the presence of “possible cutaneous lupus on her right chest and neck with poikiloderma.” He testified that he would have noticed these observations during his respiratory examination. He denied examining her skin. Ms. R.P., of course, did not allege that he examined her skin at this appointment.

[4417] It was not clear to Dr. Sloka why Ms. R.P. came to see him on November 9, 2015. Dr. Sloka observed that Ms. R.P. had seen her family doctor three days before her appointment with him. Nine days after seeing him, she also saw her rheumatologist “and gave … a similar story.” Yet, for some reason she decided to book an appointment with him, too. November 9, 2015, was not a follow-up appointment scheduled by his office. Dr. Sloka observed that Ms. R.P. “came to me with increased headaches and some overall illness including a cough and cold, which would increase headaches, and then a bunch of other systemic symptoms.”

[4418] The Crown suggested to Dr. Sloka that the examinations he conducted and the tests he ordered on November 9th strayed outside of the field of neurology. Dr. Sloka disagreed. He believed that her illness could be causing her headaches, which were a neurological symptom. When his evidence here is viewed as whole, it appears that he considered the possibility that her various symptoms could be related to illnesses which in turn could explain her headaches. He ordered a broad array of bloodwork and tests to investigate ailments that might explain her headaches, swollen lymph nodes, exhaustion, and other systemic symptoms. He considered these tests and his physical examinations as related to neurology, because the results might explain her headaches.

[4419] The Crown then turned to Ms. R.P.’s next appointment on December 1, 2015. Ms. R.P. reported that her sinus infection was helped with antibiotics. He agreed that sinus infections are not in the realm of neurology unless the infections cause headaches. Ms. R.P.’s chest pain was still present. Dr. Sloka agreed that he performed a respiratory examination. Ms. R.P. would have worn a gown for the examination. He also agreed that he may have palpated the area of tenderness on Ms. R.P.’s chest. However, he denied performing a breast examination.

[4420] Dr. Sloka ordered a bone scan on December 1, 2015, to investigate the right rib pain. He agreed that in doing so he went beyond the field of neurology.

[4421] The Crown suggested to Dr. Sloka that he performed a cardiac examination on Ms. R.P. on December 1, 2015. Dr. Sloka denied this. Dr. Sloka agreed that he prescribed nortriptyline on this date, which has cardiac contraindications. His standard approach when prescribing a drug with cardiac contraindications involves a cardiac examination. However, he pointed out that he had previously performed cardiac examinations on Ms. R.P., the last one occurring on March 25, 2013. He also ordered an echocardiogram on March 25, 2013, which occurred on May 21, 2013, with normal results. Nevertheless, he had no specific memory of his thinking at this appointment, so he could not testify about his thought process back then, only his thought process at trial.

[4422] The Crown did not ask questions about the next two appointments, December 23, 2015, and April 13, 2016. Once again, the Crown theory does not appear to contemplate Dr. Sloka performing a breast examination or inappropriate leg-sensation examination on these dates.

[4423] The next area of cross-examination concerned the September 2, 2016, appointment. The cross-examination was perfunctory, lasting about two pages of transcript. Ms. R.P. had presented with complaints about muscle pain in her legs, general sleepiness, tingling in her feet, persistent headaches, diarrhea, menstrual changes, and back pain. He conducted a full neurological examination. He believed that she was likely gowned for this examination. He agreed that he examined her gait and tested her reflexes. He agreed that his neurological examination included an examination of her complete sensory system, including her upper and lower extremities. He believed he assessed sensation on Ms. R.P.’s bare skin. He denied performing a breast examination an denied performing a cardiac examination. The Crown did not suggest to Dr. Sloka that he performed his sensory examination in an inappropriate manner.

[4424] The Crown asked no questions about Ms. R.P.’s next appointment, October 17, 2017. It would therefore appear that the Crown theory did not contemplate a breast examination or inappropriate leg-sensation examination at this appointment.

[4425] The Crown asked no questions about Ms. R.P.’s next appointment, March 17, 2017. It would therefore appear that the Crown theory did not contemplate a breast examination or inappropriate leg-sensation examination at this appointment.

[4426] The Crown turned next to the March 20, 2018, appointment. At this appointment, Ms. R.P. had complained of increased irritability and a difficulty in finding words when speaking. She was having cognitive issues. However, she felt her lupus was stable. Dr. Sloka did not believe her difficulties were seizure related. He did not perform any examinations. Ms. R.P. had been taking an antidepressant, Effexor. Dr. Sloka was familiar with that drug, having prescribed it himself before. Dr. Sloka disagreed with the suggestion that prescribing antidepressants is not part of neurology. At this appointment, Dr. Sloka suggested to Ms. R.P.’s family doctor that she consider changing Ms. R.P.’s Effexor prescription to a different drug. He denied the suggestion that he refrained from changing the prescription himself because by this point in time a nurse had been assigned to monitor his practice. Similarly, although he informed the family doctor that her birth control medication might be affecting her mood, he did not prescribe a different birth control for Ms. R.P. While Dr. Sloka considered prescribing birth control to be within the realm of his neurology practice, he left the issue for the family doctor to consider. He denied he was influenced by the presence of the nurse monitor.

Assessment of the Evidence and Analysis

[4427] In both their approach to the cross-examination of Dr. Sloka and in their ultimate submissions, I fear the Crown has lost the forest for the trees. Their approach also lacked coherence and cohesion. Perhaps this inevitably flows from the fact that Ms. R.P. provided little assurance about the number of breast examinations that occurred, the timing of any alleged breast examinations, and the timing of any leg sensation examination. The Crown theory ultimately required the Crown to guess. In making their guesses, the Crown theory proved itself at odds with the few signposts left by Ms. R.P. As a result, their theory at times lacked coherence and asked the Court to reject fundamental components of the evidence of the very witness upon whom their case depended.

[4428] Moreover, in their microscopic critique of Dr. Sloka’s care for Ms. R.P. over seven years, the Crown took an overly simplistic view of Dr. Sloka’s standard practices, failing to recognize that Dr. Sloka’s application of these practices was inevitably informed by the clinical circumstances on any given occasion.

[4429] The Crown also took contradictory approaches to the assessment of Dr. Sloka’s evidence. For instance, sometimes, the Crown relied on Dr. Sloka’s standard practices when it suited their purposes. At other times, the Crown argued that Dr. Sloka’s reliance on standard practices could not be trusted. At times, the Crown relied upon the absence of a report to prove something did not occur. At other times, the Crown argued that something did occur, despite the absence of a report.

[4430] Despite Dr. Sloka’s admitted lack of memory and proven history of occasionally incomplete records, the Crown would ask Dr. Sloka to confirm that the absence of a record proved that something did not occur, then ask him to speculate as to why he might not have done the thing about which he had no memory.

[4431] At times, the Crown also mischaracterized the evidence. I note, for example, their claim that Ms. R.P. alleged a skin examination, when she most certainly did not. I note as another example their submission that the Court asked Dr. Sloka whether a cardiac examination influenced treatment decisions, when the court made no such inquiry – the court simply sought clarification of defence counsel’s line of inquiry.[27] At other times, the Crown inaccurately characterized resistance or disagreements with suggestions as evasive.

[4432] In addition, the Crown engaged in their appointment-by-appointment dissection of Dr. Sloka’s care for Ms. R.P. irrespective of whether any individual action or decision could be probative of any improper motive or otherwise be probative of any of the alleged sexual offences. In taking this approach, the Crown attempted to demonstrate Dr. Sloka’s tendency to practice outside of his neurological lane at various points in Ms. R.P.’s care. However, the Crown for the most part failed to identify how such forays were probative of a sexual motive, rather merely a more expansive, holistic, or interdisciplinary approach frowned upon by the Crown’s neurological expert. While the Crown’s expert could opine on the neurological reasonableness of Dr. Sloka’s care, she was not qualified to testify about the broader medical reasonableness of Dr. Sloka’s care. Ms. R.P. presented as an extremely complex patient with many issues, many needs, and many doctors.

[4433] For the most part, Dr. Sloka was able to explain his individualized approach to Ms. R.P. yet also show a general adherence to standard practices. To the extent that there were unanswered deviations, I did not find them to be of much assistance to the Crown in proving an improper motive or the sexual nature of any given examination. I make these observations after having spent a considerable amount of time pouring over the Crown submissions about each and every appointment, pouring over the transcripts, and reviewing the defence submissions.

[4434] I do not intend to address each and every critique leveled by the Crown in their dissection of Dr. Sloka’s care for Ms. R.P. over the course of seven years. I see no profit in that approach. Instead, I think it important to begin the analysis by taking stock of the Crown theory and then comparing that theory to the evidence tendered in support of it. In taking this approach, it becomes apparent that Ms. R.P.’s evidence is fundamentally flawed and that the Crown’s theories and submissions show insufficient fidelity to the flawed evidence of Ms. R.P..

[4435] According to the Crown theory, Dr. Sloka performed two or three breast examinations, an inappropriate leg-sensation examination, and an unwarranted skin examination.

[4436] I will deal first with the Crown theory of a skin examination. Quite simply, Ms. R.P. did not allege a full skin examination. What allegedly occurred here bears no resemblance to an exhaustive skin examination in search of neurocutaneous disease or any other disease (cutaneous lupus, for example). The evidence of other patients who allege comprehensive skin examinations therefore bear no similarity to Ms. R.P.’s evidence and cannot, in my view, offer any probative value in support of Ms. R.P.’s evidence. Ms. R.P.’s evidence on the chronological timing of the inspection of her birthmark was initially somewhat vague. At first, she seemed uncertain about which of the early appointments this occurred on. As she spoke, she seemed to convince herself that it must have occurred at the first appointment, which frankly, makes the most sense, because she placed the inspection in the context of a neurological examination. This stance aligns with Dr. Sloka’s consultation letters, which indicate a neurological examination at the first appointment, but not at any other appointments in the first referral period. Ms. R.P. alleged that she showed Dr. Sloka a birth mark on her clavicle at some point after Dr. Sloka asked some basic screening questions. Given the nature of the gowns in Dr. Sloka’s office, I consider it very likely that this birth mark was in plain view when Ms. R.P. showed it to Dr. Sloka. Ms. R.P.’s evidence on the subject was so perfunctory that I cannot readily discern whether she had to move her clothing or gown to reveal the mark to Dr. Sloka. I also cannot readily discern whether she showed this birthmark in Dr. Sloka’s office or in his examination room. She tethered this display to the discussion in Dr. Sloka’s office, but she also seemed to place it near the outset of the examinations. Ms. R.P. also alleged that Dr. Sloka looked at the exposed skin on her back. According to her, this occurred after she had finished showing him her gait by walking in the middle of the room. She wore her gown tied at the back. Accordingly, she implied that Dr. Sloka looked closely at the area of skin on her back not covered by the two halves of her gown. She appeared to place this inspection proximate to an examination of the strength in her hands/arms. While she described herself walking in the middle of the room for the examination of her gait, she appeared to place herself near the table when the inspection and strength testing occurred. Ms. R.P. did not allege that Dr. Sloka told her to stand in the middle of the room for the sole purpose of examining her skin. And she most certainly did not allege and exhaustive skin examination. He did not move the gown. She remained fully draped. He did not expose her body to look at her skin. He did not seek access to intimate areas of her body. He looked at what was already in plain view. Ms. R.P. also did not allege that Dr. Sloka made any physical contact with her while inspecting her skin. In sum, Ms. R.P. describes the inspection of the exposed skin on her back as an incidental to a neurological examination. I cannot fathom how the incidental observations of Ms. R.P.’s skin in this clinical context can possibly constitute sexual activity or evidence of a sexual motive that informed other actions at this appointment. Moreover, these observations do not involve any application of force by Dr. Sloka on the body of Ms. R.P. Lastly, Ms. R.P.’s evidence strongly supports the conclusion that she consented to Dr. Sloka visualizing the portions of her skin that she showed him or were in plain view. Consequently, I cannot fathom how these incidental observations can independently constitute a sexual assault.

[4437] I would now like to discuss the alleged breast examinations.

[4438] I will begin by making a general observation that the Crown theory about the breast examinations lacks coherence and cohesion. On the one hand, the Crown alleges that Dr. Sloka possessed an abiding interest in Ms. R.P.’s breasts. On the other hand, with the vast majority of the 19 appointments, the Crown did not suggest to Dr. Sloka that he conducted a breast examination. In addition, Dr. Sloka’s records only disclose a total of six examinations scattered over seven years and three referral periods, only one of which involves a breast examination. And, over the course of three referral periods and 19 appointments, Dr. Sloka indicated a total of six times in his consultation letters that he would leave follow-up open – that is, that he told her that he did not need to see her again. He ended the first referral period by leaving follow-up open. He ended the second referral period by leaving follow-up open. Then, four times in the third referral period, he left follow-up open. That is not the conduct of a man looking for excuses to explore his patient’s breasts again and again. As a result, I am left puzzled by the Crown’s suggestion in their submissions that Dr. Sloka betrayed an abiding interest in Ms. R.P.’s breasts. In support of that contention, the Crown points to Dr. Sloka’s requisition for pituitary blood work on March 25, 2013. They argue that by checking Ms. R.P.’s prolactin levels, Dr. Sloka betrayed an interest in Ms. R.P.’s breasts and a desire to examine them. However, the Crown did not suggest to Dr. Sloka that he conducted a breast examination in the follow-up appointment where the blood results were discussed. And the Crown makes no specific allegation in their submissions that a breast examination occurred at that follow-up appointment. Instead, the Crown argues that Dr. Sloka ordered this bloodwork after a breast examination had already occurred on March 25th. In other words, the Crown argues that the pretext came after the examination, not before it – an after-text, if you will. This makes little sense, especially when one considers that Ms. R.P. never alleged that Dr. Sloka used a concern about prolactin levels as an excuse to examine her breasts. Furthermore, the Crown argues that breast examinations occurred at various points in time (November 9 and December 1, 2015) after which Ms. R.P. effectively conceded that they had already ended. She testified that the breast lump examination was the last breast examination. This is the one examination she actually remembered with any clarity. Based upon the referral to the surgeon, I conclude that that examination must have occurred on November 22, 2013 – a full two years before November 9^th and December 1^st, 2015. Yet the Crown argues that Dr. Sloka conducted breast examinations on those dates anyway. For the Crown theory to make any sense, the court would have to accept Ms. R.P.’s spurious, belated, and spontaneous suggestions that Dr. Sloka performed two breast lump examinations and that she obtained two separate referrals to the surgeon. In sum, the Crown theory about the timing of the breast examinations does not align with the evidence of Ms. R.P., once one considers her evidence in light of Dr. Sloka’s medical records. To accept the Crown theory, I must find their essential witness fundamentally unreliable. Having made these general observations, I will now discuss in more detail the question of the timing of any breast examinations.

[4439] Ms. R.P. was not sure about the time or the frequency of the alleged breast examinations. She also could only provide details about one. The timing of that one remembered breast examination has direct implications on the plausibility of others occurring.

[4440] I will begin with an assessment of the plausibility of a breast examination during the first referral period. The Crown did not suggest to Dr. Sloka that he performed a breast examination during the entire first referral period. His evidence about the examinations conducted in the first referral period went unchallenged. And on his evidence, the examinations did not include a breast examination.

[4441] Ms. R.P., for her part, did not specifically allege a breast examination in the first referral period, either. True, at one point, she testified that breast examinations were a regular normal part of her examinations, leaving vaguely open the possibility that one may have occurred at the first appointment in the first referral period. However, she soon adopted what she told the police, which was that Dr. Sloka conducted breast examinations on two or three occasions. The timing of those “two or three” occasions was tethered to the sole examination she specifically remembered, the breast lump examination.

[4442] Ms. R.P. testified that the breast lump examination was the last breast examination Dr. Sloka performed. This evidence poses a difficulty for both Ms. R.P. and for the Crown theory. The evidence overwhelmingly supports the conclusion that Ms. R.P. raised a concern about a breast lump on November 22, 2013 – the third appointment of Ms. R.P.’s second referral period. Dr. Sloka documented the concern in his consultation letter from that date. He made a referral to a surgeon on that date. In that referral he made note of axillary swelling (a swollen lymph node in the armpit) associated with the lump. This circumstantial evidence satisfies me that Dr. Sloka examined the lump at Ms. R.P.’s request on November 22, 2013. I reject Ms. R.P.’s evidence to the contrary. It is simply unreliable. When shown that it was Dr. Sloka who made the referral to her surgeon and not her family doctor, as she believed, she then posited for the first time that she had actually received two separate referrals to the surgeon two years apart. Her claim that she first raised her concern about the lump to Dr. Sloka was contradicted by previous imaging, biopsies, and by a previous consultation letter from her rheumatologist, all of which persuasively established that her family doctor must have already known about the breast lump. When taken to Dr. Sloka’s records from November 22, 2013, which provided powerful support for the contention that the breast-lump examination occurred on this date, Ms. R.P. stated that she had forgotten about that breast lump examination and introduced for the first time the possibility that she asked Dr. Sloka to examine her breast lump on two separate occasions in two different referral periods. I reject as insincere Ms. R.P.’s belated suggestions about two breast-lump examinations and two separate referrals to Dr. Judges. I conclude without reservation that Ms. R.P. only asked Dr. Sloka to examine her breast lump on one occasion; and I conclude that examination occurred on November 22, 2013.

[4443] If the last breast examination occurred on November 22, 2013, then the Crown theory that other breast examinations occurred afterwards loses its foundation. To accept the Crown theory that Dr. Sloka performed breast examinations after November 22, 2013, I would need to find Ms. R.P. even more fundamentally unreliable than I already do, and in particular, I would need to reject her assertion that her last breast examination occurred when she asked Dr. Sloka to examine a lump in her chest. Simultaneously, I would need to accept Ms. R.P.’s allegation of multiple examinations, despite her vague uncertainty about the number of examinations, their sequence, and, for all but one, a lack of any specific memory about what the examinations entailed.

[4444] Once I conclude that the breast-lump examination occurred on November 22, 2013, I am forced to conclude that there are only six other possible occasions on which Dr. Sloka could have performed any other breast examinations: the four appointments of the first referral period and the two appointments in 2013 that preceded November 22, 2013.

[4445] I see no basis for concluding that a breast examination occurred in the first referral period (January 11 to September 14, 2011). If a breast examination occurred on her very first appointment with Dr. Sloka, I would think that Ms. R.P. would have been able to tell me so. She did not. Moreover, if the Crown theory contemplated a breast examination at any point in the first referral period, fundamental notions of fairness would dictate that the Crown suggest that possibility to Dr. Sloka. The Crown did not. That failure is notable, given the Crown’s theory that Dr. Sloka supposedly possessed an overriding obsession with the breasts of Ms. R.P. and other patients. Given the vagueness of Ms. R.P.’s evidence about the number and timing of any breast examinations, given the vagueness of Ms. R.P.’s evidence about the features of all but one alleged breast examination, given the existence of only one documented patient examination in the first referral period, and given that the Crown never suggested to Dr. Sloka the occurrence of a breast examination in the first referral period, I am not prepared to conclude that a breast examination occurred at any of Ms. R.P.’s four appointments in the first referral period.

[4446] I also see no basis for concluding that more than one breast examination occurred in the second referral period (March 25 to November 22, 2013). There exists only one other documented examination apart from the examination I have concluded occurred November 22, 2013. That examination occurred on March 25, 2013. Dr. Sloka recorded performing a neurological examination and a minimal cardiac examination. He also recorded taking Ms. R.P.’s vital signs. He denied a breast examination. Ms. R.P. did not specifically allege a breast examination at this appointment. Again, her evidence was vague. She also did not specifically allege a breast examination, or any examination, at the next appointment on May 21, 2013. The November 22, 2013, appointment followed the May 21st appointment. So, if no breast examinations occurred before March 25, 2013, none occurred after November 22, 2013, and none occurred in between, then the Ms. R.P. could only have received a maximum of two breast examinations – one on March 25, 2013, and one on November 22, 2013.

[4447] The March 25, 2013, appointment was the first appointment of a brand-new referral period. Ms. R.P. had not seen Dr. Sloka in about a year and half. It again strikes me as odd that Ms. R.P. would not specifically recall a breast examination at the very outset of a brand-new referral period. The notion that they all just blended together in her memory seems a dubious one when there could only have been two breast examinations in total – one at the beginning of the referral period and one at the end. The notion seems even more dubious when one recalls that one out of the two examinations was a targeted one, done admittedly at Ms. R.P.’s own request because of a cancer concern at the last appointment of this referral period. Upon close examination, the notion that Dr. Sloka routinely examined her breasts at every examination just simply does not stand up to any scrutiny.

[4448] As already noted above, the Crown suggests that by ordering hormonal bloodwork (including prolactin levels) after the March 25, 2013, appointment, Dr. Sloka “became interested in the functioning of her breasts early on in the second referral period.” They also suggest that this bloodwork supports the contention that a breast examination occurred on March 25th, 2013. I disagree. The trial record does not support this argument. The bloodwork followed the alleged breast examination. It did not precede it. It could not have served as an excuse for any breast examination on March 25^th. Also, Ms. R.P. never suggested that Dr. Sloka connected any breast examination to bloodwork. Moreover, the Crown did not suggest to Dr. Sloka that he conducted a breast examination at the follow-up appointment on May 21, 2013, after the bloodwork had come in. The next appointment after May 21^st is the one on which Ms. R.P. must have, by her own admission, asked Dr. Sloka to examine her breast lump. The November 22, 2013, breast examination had nothing to do with the bloodwork. At the conclusion of this appointment, Dr. Sloka indicated that he did not need to see Ms. R.P. in follow-up. He had no reason to believe he would ever see her again. When the complete context is considered, the ordering of pituitary bloodwork does not support the conclusion that Dr. Sloka became interested in the functioning of Ms. R.P.’s breasts. Dr. Sloka’s explanation for ordering the pituitary bloodwork seems far more plausible.

[4449] The Crown also argues that Dr. Sloka performed a breast examination on November 9, 2015. As noted, I have concluded that Ms. R.P. requested a breast lump examination on November 22, 2013. Ms. R.P. testified that her breast-lump examination was her final breast examination. To accept the Crown’s submission that a breast examination occurred on November 9, 2015, I must conclude that Ms. R.P. is wrong about a fundamental aspect of her evidence. In doing so, I would have to find her fundamentally unreliable. Moreover, the Crown asks that I make a finding of fact despite the fact that Ms. R.P. never specifically alleged that Dr. Sloka examined her breasts on November 9, 2015. I would have to also make that finding of fact in the face of Dr. Sloka’s denial. The Crown argues that Dr. Sloka’s denial amounts to speculation. Frankly, I consider the Crown theory speculative, in addition to being incongruent with the details of Ms. R.P.’s evidence. Yes, Dr. Sloka had a reason to conduct a breast examination: the presence of axillary swelling. However, he also had a reason to refrain from one: the fast-approaching appointment with the surgeon. The Crown also bases their theory on Dr. Sloka’s observation of “possible cutaneous lupus on her right chest and neck area with poikiloderma.” However, these observations could easily have been made during the respiratory examination Dr. Sloka testified about.

[4450] The Crown also argues that a breast examination occurred on December 1, 2015. Again, that submission runs contrary to my conclusion that the lone breast-lump examination occurred on November 22, 2013. If the breast-lump examination was the final examination, then there could not have been a breast examination on December 1, 2015. The Crown again suggests that Dr. Sloka’s denial of a breast examination was speculative. This submission ignores Dr. Sloka’s evidence that he had no reason to perform one: she was already under the care of Dr. Judges, who had just seen her in late November. Ms. R.P. did not specifically allege a breast examination on this date. Dr. Sloka’s consultation letter only alluded to an examination of Ms. R.P.’s rib tenderness and a respiratory examination. The suggestion of a breast examination was at least as speculative as the denial of one.

[4451] The Crown also argues that Dr. Sloka deliberately failed to explicitly report performing a breast examination in his consultation letter on November 22, 2105, because he knew doing so was improper. The Crown asks that I disbelieve Dr. Sloka’s evidence that he believed that the family doctor already knew about the breast lump. In my view, the Crown’s argument fails to consider all the contextual evidence. The rheumatologist’s letter from days before discloses an awareness of the lump. The imaging results suggest that they had been requisitioned by someone other than Dr. Sloka, before the appointment on November 22nd. Dr. Sloka not only informed the family doctor of the breast lump, but he highlighted the Ms. R.P.’s “continued concern,” implying that her concern was not new. After having her memory refreshed by her chart, during her examination in-chief, Ms. R.P. departed from her initial position and also agreed that she had made her family doctor aware of the lump before raising the lump with Dr. Sloka. Dr. Sloka’s letter to the surgeon on November 22, 2013, informed the surgeon of the discovery of some lymphadenopathy. In doing so, Dr. Sloka at least implied the performance of a breast examination. Placing myself in the shoes of the surgeon, I cannot imagine receiving that referral letter and not concluding that the referring doctor had performed a breast examination.

[4452] Given the vagueness of Ms. R.P.’s allegations about all but one alleged breast examination, given my overall concerns about Ms. R.P.’s reliability (which will be discussed in due course), given my concerns about tainting (which will be discussed in due course), and given my concerns about Ms. R.P.’s collusion with her husband (which will be discussed in due course), I simply cannot accept on any standard of proof that Dr. Sloka performed any more than one breast examination.

[4453] I am therefore left to conclude that Dr. Sloka performed a single breast examination at Ms. R.P.’s request, because she was concerned that a breast lump might be cancer. Dr. Bril found herself in a similar situation in her own practice once. Like Dr. Sloka, she agreed and performed a breast examination on her patient. Unlike Dr. Bril, Dr. Sloka believed he possessed sufficient training, experience, and competence to perform a breast examination on Ms. R.P. His evidence on this point was not challenged or contradicted. Having confirmed the presence of a breast lump and having also identified axillary swelling, Dr. Sloka referred Ms. R.P. to a surgeon for follow-up. According to Ms. R.P., Dr. Sloka only examined the breast in which Ms. R.P. identified a lump. She did not allege any concerning or inappropriate use of the hands. She did not allege any inappropriate draping. Her husband was allowed to watch the procedure. The Crown asks that I conclude that by omitting mention of the breast examination in his letter to the family doctor, Dr. Sloka disclosed an awareness that performing a breast examination was wrong. I am not prepared to do that. Dr. Sloka testified that he believed from the circumstances that the family doctor already knew of a lump. This conclusion is reasonable, considering the medical records, including prior imaging and a previous mention of the lump by the rheumatologist. Despite the lump already obviously being on the radar, Ms. R.P. nevertheless asked Dr. Sloka to examine the lump. Thus, the records support the conclusion that Ms. R.P. was not happy with her family doctor’s attention to this lump. Dr. Sloka inferred that Ms. R.P. was unhappy about her family doctor’s care, which is why he wrote “with apologies to you” when referring Ms. R.P. to the surgeon. That inference is entirely logical and supported by the record. I should note here that Ms. R.P. saw multiple doctors and seemed to tread the same ground with more than one of them at a time, something Dr. Sloka observed when giving his evidence. The upshot appears simple: Dr. Sloka was prepared to make a referral to Dr. Judges when her family doctor did not. In reporting that referral to the family doctor, Dr. Sloka consequently said, “with apologies to you.” These circumstances do not support the conclusion that Dr. Sloka knew a breast examination was sexually inappropriate. They do nothing more than support the conclusion that Dr. Sloka recognized his response to the Ms. R.P.’s concern differed from that of her family doctor. I cannot fathom, in these circumstances, that a breast examination performed by a trained doctor at the patient’s request, in the presence of a spouse, followed by a referral to a surgeon can possibly constitute sexualized conduct.

[4454] The Crown argues that Dr. Sloka disclosed an awareness of the inappropriateness of his breast examination through his decision to refrain from prescribing birth control medication to Ms. R.P. at her final appointment on March 20, 2018. According to his standard practice, the prescription of birth control would require a breast examination, unless Ms. R.P. had already received one in the preceding year. Dr. Sloka testified that he decided to leave the issue of birth control, which might be responsible for her mood issues, to her family doctor. It is important to remember, here, that Ms. R.P. was not referred to Dr. Sloka for a birth control consultation. Ms. R.P. differed from J.V. in that respect. Dr. Sloka was part of an interdisciplinary team attempting to manage the symptoms associated with Ms. R.P.’s lupus and other medical conditions. The involvement of each doctor appeared to overlap. In his consultation letter, he mentioned the possibility of a change in birth control when alerting the family doctor to Ms. R.P.’s increased irritability and depressed mood. He also asked her family doctor to consider changing anti-depressant medication. The family doctor was already involved in managing those issues. Given the restrictions on intimate examinations that were in place at the time and given the pending accusations about improper breast examinations, it is hardly surprising that Dr. Sloka would eschew a breast examination and leave birth control prescriptions and anti-depressant medications to a doctor who had already assumed carriage of those issues. In the circumstances, I am not prepared to draw the inference that Dr. Sloka knew it was inappropriate for a neurologist to prescribe birth control medication and perform breast examinations in furtherance of those prescriptions.

[4455] I would now like to discuss Ms. R.P.’s allegation of an inappropriate leg-sensation examination.

[4456] Here again, the Crown’s theory about timing seems unmoored from the evidence. On the Crown theory, judging by their cross-examination of Dr. Sloka, the leg-sensation examination occurred on November 22, 2013, the very same appointment as the breast-lump examination. The Crown bases this theory upon Dr. Sloka’s reference to report an unusual sensation in Ms. R.P.’s left thigh. However, Dr. Sloka did not report performing a neurological examination on this date. The reference to the thigh-sensation came up in the history portion of the letter, as did its “repeatable” nature. Also, Dr. Sloka raised in the history portion of the letter the possibility of that sensation being “more persistent” in the future. Taken together, this language suggests that this reported sensation was intermittent. The Crown suggests Dr. Sloka’s interpretation of the term “repeatable” lacked credibility, is speculative, and makes no sense. The Crown argues that the wording employed by Dr. Sloka establishes that Dr. Sloka repeatedly performed a leg-sensation examination and concluded that results were repeated each time. This submission ignores Dr. Bril’s evidence, which did not suggest the need for “repeatable” results. This submission also ignores that Dr. Sloka documented the description of the leg-sensation symptom in the history portion of the consultation letter, when commenting upon the rheumatologist’s decision to prescribe Lyrica. It follows that Dr. Sloka was documenting what Ms. R.P. had reported to him, not what he had discovered during any examination. The Crown’s submission also ignores the next sentence where Dr. Sloka suggests his view might change if the symptom becomes “more persistent,” thereby suggesting that Ms. R.P. told him that the symptom was not always present – that it was intermittent. The Crown’s submission also ignores Dr. Sloka’s idiosyncratic use (misuse) of the English language, which repeatedly employed strange uses of diction. One common one seen during the trial was Dr. Sloka’s reference to tests being “reassuring,” by which he meant the results were negative. Another example is found in Dr. Sloka’s report that Ms. R.P. had “lymph nodes” – of course she did; we all do; he clearly meant swollen lymph nodes. In listening to both Dr. Sloka and Dr. Bril, I frequently wondered why such well educated people would choose to employ such impenetrable and at times inept language. I certainly agree that the deployment of the term “repeatable” was a malapropism, but malapropisms found a comfortable home in Dr. Sloka’s diction. Dr. Sloka’s poor word choice does not, in this instance, reflect poorly on his credibility. I add here that Ms. R.P. testified that the breast-lump examination and the leg-sensation examination occurred at different appointments. Ms. R.P. specifically testified that the leg-sensation examination occurred at an appointment after the breast-lump examination. And the evidence strongly supports the conclusion that the breast-lump examination occurred on November 22, 2013, thus ruling out this date as the date on which any leg-sensation examination could have occurred. In addition, she testified that she was never examined again after the leg-sensation examination. Dr. Sloka’s records reveal that Dr. Sloka examined Ms. R.P. three times after November 22, 2013. According to Dr. Sloka’s records, the last physical examination occurred on September 2, 2016. Lastly, she tied the leg-sensation examination to her last EMG study, which was ordered in the aftermath of her September 2, 2016, appointment. No EMG study was ordered after the November 22, 2013, appointment. Both Ms. R.P.’s evidence and Dr. Sloka’s medical file tend to link any leg sensation examination with Ms. R.P.’s September 2, 2016, appointment, not her November 22, 2013, appointment. Consequently, the Crown theory is at odds with the evidence of both Ms. R.P. and Dr. Sloka.

[4457] Dr. Sloka agreed he performed a neurological examination on September 2, 2016, during which he tested Ms. R.P.’s limbs for sensation. This is the last examination documented in his medical file. His evidence finds partial support in the evidence of Ms. R.P., but Ms. R.P. also gave evidence suggesting that the alleged examination could not have occurred on this date. However, she was unable to offer any plausible alternative to September 2, 2016.

[4458] Before delving further into September 2, 2016, I want to take a step back. Ms. R.P. alleged that this examination occurred in response to a complaint that she felt the sensation of warm coffee being spilled on her leg. There is no reference anywhere in Dr. Sloka’s medical records to such an interesting and specific complaint. Nowhere. Given the detailed nature of the histories reported in Dr. Sloka’s file for Ms. R.P., I would have expected this type of specific complaint to have been recorded by Dr. Sloka if it had in fact been made. As a result, I have concern that she did not make this specific complaint to this specific doctor. Interestingly, Dr. Sloka did document that Ms. R.P. reported at her March 25, 2013, appointment that she spilled coffee when coming up the stairs, just before losing consciousness. She does not allege any leg-sensation examination on this date. However, I think it plausible she has erroneously incorporated memories from that episode into her leg-sensation allegation.

[4459] Next, I want to look at the evidence used by Ms. R.P. in her attempt to identify the date on which the allegedly improper leg-sensation examination occurred. A close examination of the signposts causes me to wonder whether the examination she complained of ever occurred.

[4460] Ms. R.P. testified that the leg-sensation examination was the last examination she ever received. She also testified that Dr. Sloka ordered EMG studies of her legs in response to the reported symptom. As it happens, the September 2^nd appointment is the last appointment for which Dr. Sloka recorded a physical examination. It is also the last time Dr. Sloka ordered an EMG study for her. The records disclose that Ms. R.P. attended for the EMG studies. At her follow-up appointment (on October 17, 2016), Dr. Sloka reported a discussion with her about those EMG studies. There is a problem, though. The history and examinations recorded in Dr. Sloka’s September 2, 2016, consultation letter do not align with Ms. R.P.’s evidence about her presenting medical complaint and the resulting examination. According to Dr. Sloka’s letter, she reported muscle pain and fatiguability in her legs and tingling in her feet and shins, amongst other things. Dr. Sloka was detailed in chronicling Ms. R.P.’s reported history. That history mentioned nothing about any complaint of a sensation of warm liquid on the thigh. Moreover, Dr. Sloka reported a full neurological examination, not a focussed examination of her thigh, as she alleged. In recording that neurological examination, he noted some irregular findings: decreased sensation in her digits, Tinel’s at the elbow, and decreased sensation in her shins and feet. There is no mention whatsoever of any sensation issues with Ms. R.P.’s thigh. Not surprisingly, the contents of Dr. Sloka’s consultation letter did not make sense to Ms. R.P., even as she recognized that the ensuing EMG study pointed to September 2 as the date of her last sensation examination. Ms. R.P. also did not recall the follow-up appointment on October 17 at which the EMG results were reviewed. Prior to September 2, 2016, Dr. Sloka had not ordered an EMG study since April 28, 2015 – and that EMG study concerned her bladder function, not her legs. Before April 28^th, Dr. Sloka ordered EMG studies of Ms. R.P.’s arms, not her legs, on January 28, 2015. What is more, he did not order EMG studies in the aftermath of the November 22, 2013, appointment – which, according to the Crown theory, is the appointment in which the improper leg-sensation examination occurred. September 2, 2016, is the only occasion on which Dr. Sloka ordered EMG studies of Ms. R.P.’s legs, and it was for an obviously different symptom set than the one she described: pain and weakness in the thighs and tingling in the feet and shins. To sum up, Ms. R.P.’s evidence about the timing and context of her problematic leg-sensation examination does not align with certain indisputable facts or Dr. Sloka’s contemporaneously recorded medical records.

[4461] In the final analysis, Ms. R.P. doubted that her improper leg-sensation examination occurred on September 2, 2016, but she left open the possibility that it did. She also left open the possibility that it occurred earlier, but in doing so, she untethered that alleged examination from the only EMG studies of her legs documented in Dr. Sloka’s chart, which could only harm the logic and cohesion of her narrative. When all was said and done, she offered no plausible alternative to September 2, 2016. The content of Dr. Sloka’s consultation letter from September 2, 2016, indicates that her complaint had nothing to do with a complaint by Ms. R.P. about feeling a sensation of warm coffee on her thigh. It concerned tingling in her feet and shins. The follow-up EMG requisition also highlighted Ms. R.P.’s concern about her feet and shins. These records undermine Ms. R.P.’s contention that she raised a concern about a sensation in her thigh. Having regard to the entirety of Ms. R.P.’s treatment history; having regard to the specific records pertaining to September 2, 2016; having regard to Ms. R.P.’s general unreliability (discussed below); having regard to the significant likelihood of tainting (discussed below); and having regard to Dr. Sloka’s denial of any improper conduct during any sensation examinations, I have no confidence that Ms. R.P. asked Dr. Sloka to address any complaint of a warm sensation in her thigh. I also have no confidence that Dr. Sloka performed a sensory examination in furtherance of that complaint. I am only able to conclude that Dr. Sloka performed his standard neurological examination, during which he bilaterally tested all extremities for sensation. I reject Ms. R.P.’s assertions that Dr. Sloka touched near her underwear line. Likewise, I reject her assertion that he inquired about testing her genital region for sensation.

[4462] Given what was reported in Dr. Sloka’s September 2, 2016, consultation letter, given the contents of the EMG requisition, given Dr. Sloka’s sworn denial of the improper leg-sensation examination Ms. R.P. alleges and given my general concerns about Ms. R.P.’s reliability, I am not satisfied that what she alleged occurred.

[4463] Now is an appropriate time to discuss my general concerns about Ms. R.P.’s reliability.

[4464] Numerous areas of Ms. R.P.’s evidence about the breast examinations showed her to be an unreliable witness. As noted, Ms. R.P. could only describe one breast examination in any kind of detail. She alleged the others were fairly frequent and “tucked into the middle” of other examinations. She then retreated and confined her allegation to two or three breast examinations, as she had told the police. Having reviewed her evidence, I conclude that she inflated the number of breast examinations by the time she got into the witness box. I am unable to ascertain whether she intentionally inflated her account or simply convinced herself over time about an inflated number of examinations. Neither conclusion is comforting. Ms. R.P. also gave inconsistent testimony about the presence of her husband at the breast examination. She told the police that he was not present, and she informed him about it at home. Ms. R.P. admitted speaking to her husband in the aftermath of giving her own statement. Mr. G.P. provided his police statement a few days after Ms. R.P. He testified that he was present for his wife’s breast examination. By the time she testified, Ms. R.P. also testified her husband was present for the breast examination. In these circumstances, I conclude that Ms. R.P.’s account was influenced by her husband’s, despite any assertions by either of them to the contrary. Given the irreconcilable contradiction between her police statement and her testimony, I conclude that Ms. R.P. consciously and deliberately changed her evidence to confirm with her husband’s anticipated evidence. Ms. R.P.’s credibility suffers greatly as a result.

[4465] Ms. R.P.’s evidence about the allegedly improper leg-sensation examination also reveals concern about her reliability. As noted, her evidence regarding its timing lacks cohesion and is at odds with the clinical context chronicled in Dr. Sloka’s medical chart. On the date mostly likely to be the one on which any kind of leg sensation examination occurred, the concern reported was a tingling in the feet and shins, not the thigh. Similarly, the EMG report did not advert to any concerns about strange sensation in the thighs. While Ms. R.P. alleged an isolated examination of her thigh, the consultation letter indicates a full neurological examination with positive findings on the arms and hands. Also, with some reluctance, Ms. R.P. admitted and adopted what she previously told the police: at the time, she did not think that Dr. Sloka did anything outside what was medically appropriate.

[4466] Prior to her exposure to CPSO and media reports about Dr. Sloka, Ms. R.P. had thought she struck gold. The record revealed that she was in a circle of care that included numerous doctors and many medical appointments. She finally found a doctor with whom she could discuss and address a multitude of complaints in one sitting. Upon seeing a Notice posted in Dr. Sloka’s office on March 18, 2019, Ms. R.P. investigated Dr. Sloka’s standing with the CPSO. She followed the CPSO proceedings for a year. Then, in May of 2019, Ms. R.P. read the CPSO decision regarding Dr. Sloka’s disciplinary proceedings. In that decision, she read about a patient who presented with leg tingling. That patient complained of vaginal touching and digital penetration. It was at that juncture that Ms. R.P. revisited her own leg sensation examination and concluded that it was in fact medically inappropriate. The material to which Ms. R.P. was exposed also included allegations of inappropriate breast touching, breast examinations, skin examinations, and investigation of other skin irregularities. Having read the CPSO materials, Ms. R.P.’s feelings about Dr. Sloka completely reversed. She decided that he was an organized sexual offender. She questioned nearly everything about her time with Dr. Sloka, even occasions when he checked her vital signs. Having regard to the manifest unreliability of Ms. R.P.’s evidence and having regard to the collusion with her husband, I consider it highly likely that Ms. R.P.’s attitude, perception, and memory of her treatment history with Dr. Sloka has been influenced by her review of the CPSO disciplinary ruling against Dr. Sloka.

[4467] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient. However, having considered the profound frailties of Ms. R.P.’s evidence and having considered Dr. Sloka’s compelling and cogent evidence, I conclude that he has rebutted any possible inference of a sexual motive in his treatment of Ms. R.P.

[4468] The Crown also relies upon three specific cross-count similarities to support the evidence of Ms. R.P. on other material issues. First, the Crown alleges that Ms. R.P. belongs to a constituency of patients who alleged that they were naked or in a state of undress when Dr. Sloka examined their skin. Second, the Crown contends that Ms. R.P. belongs to a cohort of patients who allege that Dr. Sloka did not explain the examinations he conducted. Third, the Crown argues that Ms. R.P. belonged to a constituency of patients who alleged that Dr. Sloka wanted to examine them for moles. For the reasons that follow, I do not find sufficient probative value in these cross-count similarities.

[4469] The Crown argues that Ms. R.P. belongs to a constituency of patients who allege that they were naked or in a state of undress when Dr. Sloka examined their skin. However, Ms. R.P. alleged nothing of the sort. She did not allege a skin examination. She alleged that he looked at birthmark and he visualized the part of her back that was exposed by the gap at the back of her gown. She was gowned when he made these observations. She does not fit in this category.

[4470] Second, the Crown argues that Ms. R.P. belongs to a constituency of patients who alleged that they were not told of the reason for their examinations. Ms. R.P. alleged nothing of the sort. Ms. R.P. testified that Dr. Sloka was very thorough. She said that he would bring out textbooks and pamphlets to explain things to her. He would often draw little diagrams, too, to explain his diagnosis or to explain the nature of his investigation. He used materials to give Ms. R.P. a visual understanding about the topics of discussion. Regarding the allegedly improper leg-sensation examination, she testified that she understood that Dr. Sloka was testing to see whether she had lost sensation in her leg. In my view, Ms. R.P.’s evidence directly contradicts the Crown’s theory that Dr. Sloka left his patients in the dark as he proceeded to examine their bodies.

[4471] Third, the Crown alleges that Ms. R.P. belongs to a constituency of patients who alleged that Dr. Sloka purportedly wanted to examine their skin for moles. Ms. R.P. does not belong in this constituency. She did not allege a full skin examination. She alleged that Dr. Sloka inquired about “unique skin markings.” Moreover, by the time she made her complaint, she had been exposed to publications which reported complaints regarding Dr. Sloka searching for moles and other skin irregularities. The Crown has failed to rebut the substantial likelihood that her evidence was tainted.

[4472] Having regard to my concerns about the reliability and credibility of Ms. R.P., I place no reliance on Ms. R.P.’s evidence regarding the material issues in this count.

[4473] I will now assess Dr. Bril’s evidence regarding Ms. R.P.

[4474] On the whole, I do not think Dr. Bril’s evidence provides much assistance to the Crown.

[4475] Dr. Bril’s opinion about the inappropriateness of a full body skin examination is effectively irrelevant, because Ms. R.P. did not allege a full body skin examination. Instead, she alleged that Dr. Sloka looked at two areas of skin, a birth mark on her collar bone and the space on her back between the two halves of her gown. At its highest, the evidence of Ms. R.P. alleges a targeted inspection of a birthmark and an incidental inspection of the readily observable skin during the course of another examination. At other points in Dr. Bril’s evidence, Dr. Bril condoned such inspections.

[4476] As discussed in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place no weight on her evidence concerning the propriety of neurologists conducting breast examinations.

[4477] Dr. Bril’s evidence about the alleged leg-sensation examination is also of limited assistance because I am not satisfied that Dr. Sloka conducted the improper examination that Ms. R.P. alleged. As already noted, I found Ms. R.P. to be an unreliable witness. I am only prepared to accept the portions of her evidence that find agreement in the evidence of Dr. Sloka. Dr. Sloka denied running his fingers up to Ms. R.P.’s underwear line. He denied seeking permission to test Ms. R.P.’s vagina for sensation during any leg-sensation examination. As already noted, Dr. Sloka’s records suggest that the only appointment on which he investigated a complaint about leg sensation occurred on September 2, 2016. It was at this appointment that he ordered the only EMG study of Ms. R.P.’s legs.[28] At this appointment, Dr. Sloka charted complaint about tingling in her feet and shins, not a complaint about feeling the sensation of warm coffee on her thigh. The EMG he ordered specifically addressed that complaint. Therefore, I am not prepared to conclude that Dr. Sloka’s records provide any basis for concluding that Ms. R.P. ever complained to him about the sensation of warm coffee spilling on her thigh, which he investigated through a physical examination and a follow-up EMG study. While Ms. R.P. complained to Dr. Sloka and her rheumatologist about an intermittent “unusual” sensation in her thigh in 2013, I am not prepared to conclude that this “unusual” sensation was the “coffee” sensation about which she testified in court. As noted above in the discussion of Ms. R.P.’s evidence, this theory does not align with Dr. Sloka’s records or other aspects of Ms. R.P.’s evidence. Apart from Dr. Sloka’s failure to use a cotton whisp (or another suitable alternative) during his standard sensation examinations, Dr. Bril took no issue with Dr. Sloka’s methodology when testing for sensation during a standard neurological examination. Dr. Bril’s evidence about localizing the area of compromised sensation on Ms. R.P.’s thigh is of little import, because I am not prepared to conclude that Dr. Sloka attempted to localize any compromised sensation on Ms. R.P.’s thigh. I am only prepared to conclude that Dr. Sloka performed his standard test for sensation, bilaterally, in accordance with his standard neurological examination.

[4478] Dr. Bril’s also testified that Dr. Sloka strayed out of his neurological lane at various points during his care for Ms. R.P. Dr. Sloka acknowledged that some aspects of his care (for example, the breast examination) had no relevance to any neurological investigation. He disagreed with Dr. Bril about others (for example, the impact of infection on headaches). Assuming for the moment that Dr. Sloka did not stay within his neurological lane at times during his care for Ms. R.P., I have no basis for concluding that Dr. Sloka’s efforts were not medically reasonable. Dr. Bril was not qualified to give such an opinion. Moreover, for the reasons provided in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on her categorical declarations about the permissible scope of any neurologist’s practice. Also, the majority of Dr. Sloka’s alleged lane departures were unconnected to any allegedly improper examinations. In addition, as already noted, Dr. Sloka informed Ms. R.P.’s family doctor a total of six times that he did not need to see Ms. R.P. in follow-up. In my opinion, there is no basis for concluding that Dr. Sloka used any out-of-bounds medical investigations to keep Ms. R.P. in his sphere of influence for the purpose providing an opportunity to commit sexual offences against Ms. R.P. The evidence merely supports the conclusion that, when called upon to assist Ms. R.P., Dr. Sloka took a more holistic approach to the care of Ms. R.P. than Dr. Bril was prepared to condone. Consequently, I am not prepared to conclude that Dr. Sloka’s alleged lane departures provide a basis for me to infer that he possessed a sexual motive when conducting any examination on Ms. R.P.

[4479] This brings me to an assessment of the evidence of Dr. Sloka. As with the Crown’s cross-examination of Dr. Sloka, their submissions on his evidence were extensive. However, as I have already observed, I fear they failed to see the forest for the trees.

[4480] A large proportion of the Crown’s submissions about Dr. Sloka’s evidence focusses on his alleged deviations from his standard practices. From these deviations, the Crown is clearly asking that I infer that Dr. Sloka conducted examinations on occasions where Dr. Sloka denied conducting them. There are fundamental problems with their approach, though. They suggest examinations that Ms. R.P. has not complained about. They argue that Dr. Sloka’s denial of examinations is speculative without recognizing that their own submissions invite speculation. In then end, the Crown asks that I reject Dr. Sloka’s denial of things that the complainant has not specifically alleged and that the Crown cannot specifically prove. I will provide some examples to illustrate the point.

[4481] The Crown argues that Dr. Sloka deviated from his standard practice by not performing a full-body skin examination at Ms. R.P.’s very first appointment. In doing so, the Crown suggests that he did in fact perform a skin examination at that appointment. Leaving aside Dr. Sloka’s cogent explanation for this supposed deviation, the Crown ignores the fact that Ms. R.P. did not allege a full-body skin examination. Ms. R.P. effectively only alleged that Dr. Sloka made incidental observations of visible portions of her body during a neurological examination. His denial of a full body skin examination was confirmed by the evidence of Ms. R.P. Dr. Sloka’s explanation for refraining from a skin examination was cogent. He testified that Ms. R.P. was a very complex patient. The medical file amply supports this contention. He was not diagnosing this patient. He was managing her pregnancy. His consultation letter clearly identifies this focus.

[4482] The Crown also alleges that Dr. Sloka deviated from his standard practice by failing to conduct cardiac examinations on two occasions – and thereby suggests that he did in fact perform cardiac examinations on those occasions. Once again, Ms. R.P. does not provide any evidence to contradict Dr. Sloka’s denial of cardiac examinations on these two occasions. Indeed, she did not allege any cardiac examinations. Moreover, the failure to perform an examination that would involve the exposure of his patient’s left breast is hardly probative of a sexual motive and sexual interest in that patient’s breasts. Indeed, it would suggest the opposite. Finally, neither Ms. R.P. nor the Crown suggest that Dr. Sloka committed a sexual assault by performing a cardiac examination. The alleged deviations therefore have no import, in my view.

[4483] The Crown also alleges that Dr. Sloka stepped out of his neurological lane on numerous occasions. This submission has already been largely dealt with in addressing Dr. Bril’s evidence; so, I will attempt to be concise here. In arguing that Dr. Sloka stepped out of his neurological lane, the Crown is attempting to prove a sexual motive. Through that sexual motive, the Crown is attempting to prove the sexual nature of the alleged skin examination, breast examinations, and leg-sensation examination. I have already concluded that no full skin examination occurred. I am also not satisfied that the allegedly improper leg-sensation occurred in the way Ms. R.P. describes it and for the reason Ms. R.P. claims. Moreover, I am only able to conclude that one breast examination occurred – and it occurred at the specific request of Ms. R.P. to investigate a concern about cancer, a concern unrelated to her visit. In my view, Dr. Sloka’s alleged forays into other medical fields are largely irrelevant to the allegedly improper examinations and have no bearing on any sexual motive connected to those allegedly improper examinations. The breast-lump examination stands as the one obvious exception. Ms. R.P. requested that examination. She did so for the purpose of investigating a complaint she knew was not neurological. She was concerned about breast cancer. At the time, she thought she had struck gold with Dr. Sloka. As she put it, for the first time, she could go in with a load of issues and Dr. Sloka would listen to them all; she didn’t have to make 20 appointments with 20 different specialists. She wanted Dr. Sloka to investigate her breast lump. He did exactly as she asked. He did so because he had received the appropriate training do perform a breast examination. He possessed sufficient experience and skill at performing breast examinations. His evidence regarding his training and experience was not challenged. I accept that Dr. Sloka took a more expansive approach in his neurological practice than Dr. Bril condoned. As noted, I place little to no weight on Dr. Bril’s evidence regarding this issue. Also, I do not have any evidence before me capable of establishing that Dr. Sloka’s investigations and examinations were medically unwarranted. Similarly, I do not have sufficient evidence to conclude that Dr. Sloka lacked the training and experience to conduct any of the inquiries and treatment he performed. The Crown has failed to prove that any alleged lane departures prove that Dr. Sloka possessed a sexual motive.

[4484] In the final analysis, the Crown has failed to satisfy me that any the alleged frailties in Dr. Sloka’s evidence made it more likely that he performed a full-body skin examination, an inappropriate leg-sensation examination, or any breast examinations, other than the breast-lump examination Ms. R.P. requested and received. Overall, I am satisfied that Dr. Sloka provided a reasoned interpretation and explanation of the medical care he provided to Ms. R.P. over the course of seven years.

[4485] Having considered all the evidence and the exhaustive submissions about that evidence, I am unable to accept any allegations by Ms. R.P. that do not align with the evidence of Dr. Sloka. Ultimately, I find as follows:

(1) That Dr. Sloka performed a single breast examination, that was limited to the exposure and examination of only her right breast. This examination occurred on November 22, 2013. It was done at her request because she was concerned about breast cancer. Her husband was present. Dr. Sloka palpated the lump. He also palpated her right lymph nodes. Having felt a breast lump and axillary swelling, Dr. Sloka made a referral to a surgeon. Ms. R.P. was fully aware of what she asked Dr. Sloka to do. Dr. Sloka did what was asked of him. I am unable to conclude that by complying with Ms. R.P.’s request, Dr. Sloka engaged in sexual activity. Instead, he engaged in a specific medical activity at the specific request of Ms. R.P. I accept his evidence that he had the training and competence necessary to perform the examination. No sexual assault occurred.

(2) Dr. Sloka only performed three neurological examinations on Ms. R.P. – one for each referral period. None of these neurological examinations were done in response to a complaint by Ms. R.P. about the feeling of a warm sensation on her thigh. Only the final neurological examination involved a complaint by Ms. R.P. about sensory issues in her legs. Those sensory issues involved tingling in her feet and shins, not a warm coffee sensation on her thigh. The ensuing examination was conducted in accordance with Dr. Sloka’s standard methods and did not involve touching proximate to Ms. R.P.’s underwear line. It also did not involve a request to touch Ms. R.P.’s vagina. Likewise, the other two neurological examinations were done in accordance with Dr. Sloka’s training and standard method. The neurological examinations were medical, not sexual. They were done with Ms. R.P.’s consent. There was no sexual assault during any of them.

(3) Dr. Sloka never conducted a full body skin examination on Ms. R.P. None was ever alleged. At worst, Dr. Sloka inspected a birthmark shown to him by Ms. R.P. in response to general screening questions. At worst, Dr. Sloka incidentally inspected exposed skin on Ms. R.P.’s back which was seen incidentally during a neurological examination. Assuming these two observations occurred (which is a big leap, given my concerns about tainting and Ms. R.P.’s general unreliability) I am not prepared to conclude that they constituted sexual conduct.

[4486] The Crown has failed to establish on any standard of proof that any sexual activity occurred. Dr. Sloka will be acquitted on this count.

iv. S.T. (Count 54)

A Summary of Ms. S.T.’s Complaint and Dr. Sloka’s Response to It

[4487] There was not a lot of daylight between Ms. S.T.’s evidence and Dr. Sloka’s evidence.

[4488] In August of 2010, the ER at St. Mary’s General Hospital referred Ms. S.T. to Dr. Sloka for an investigation of her twitching eyes and vertigo, which began after the onset of a viral infection. At her appointment with Dr. Sloka, he discussed the potential that she was suffering from opsoclonus myoclonus syndrome (OMS). OMS involves rapid and involuntary eye movements or jerks (opsoclonus) and involuntary muscle jerks (myoclonus). Dr. Sloka wanted to perform examinations to investigate her condition further. While he did not specifically state it, she believed he was searching for evidence of cancer. Ms. S.T. alleged that Dr. Sloka performed a neurological examination, a skin examination, and a pelvic examination. He then ordered a battery of tests. Ms. S.T. alleged that at her follow up appointment, Dr. Sloka conducted a second, shorter skin examination. By this point in time, Ms. S.T. believed her condition was non-cancerous. She attended some additional testing but never returned to see Dr. Sloka. Years later, in 2019, Ms. S.T.’s perception of her treatment changed after seeing news coverage of Dr. Sloka.

[4489] Dr. Sloka agreed that Ms. S.T. displayed OMS at her appointment. He also agreed that he was concerned about the association between OMS and cancer. He performed a “general examination” on Ms. S.T. for the purpose of screening Ms. S.T. for cancer. To that end, he conducted a neurological examination, a skin examination, a pelvic examination, a respiratory examination, a breast examination, an abdominal examination, and thyroid and lymph node examinations. As can be seen, Dr. Sloka admitted to conducting more examinations than Ms. S.T. alleged. He also requisitioned CT scans for the purpose of screening for cancer. Dr. Sloka also performed a second neurological examination at Ms. S.T.’s follow up appointment, by which time her symptoms had largely but not completely resolved. He denied conducting a second skin examination. He concluded her OMS was likely the product of a viral insult but ordered more tests and planned to see her in follow up, to be certain. She never returned. Well after the anticipated follow-up appointment, after occasionally seeing Ms. S.T.’s mother (an oncology nurse) at the hospital, he wrote to Ms. S.T. to remind her of the availability of a follow up appointment. Ms. S.T. never returned.

The Circumstances of Ms. S.T.’s Referral and Treatment History

[4490] Ms. S.T. became sick at the end of July or the beginning of August of 2010. She was 20 years old. The illness persisted through the month. She went to the ER a few times. The last visit occurred on August 23, 2010. By that date, Ms. S.T. had been throwing up, had lost a lot of weight, was unable to walk well, was unable to shower, was experiencing fatigue, and had been experiencing uncontrollable eye-twitching and vertigo. As part of the medical investigation, the ER doctor ordered a CT scan of her head and bloodwork, which yielded normal results. The ER doctor diagnosed her with pneumonia. The ER doctor also referred her to Dr. Sloka to investigate her vertigo.

The Evidence of Ms. S.T.

[4491] Ms. S.T. obtained an appointment quickly. Her first appointment with Dr. Sloka occurred on August 31, 2010.

[4492] Ms. S.T. acknowledged that she did not recall a lot of details of this appointment, only the main events. She attributed her limited memory to the severity of her illness and the passage of time.

[4493] At the time of her appointment, Ms. S.T. was still extremely weak. She needed mother’s assistance to walk. Her mother drove her to Dr. Sloka’s office and came inside with her. Ms. S.T.’s mother was an oncology nurse at GRH. Ms. S.T. did not fill out the patient information sheet; she believed her mother did. Her medical conditions reported at the time were: nauseous, dizzy, pupils twitching, weakness, and vomiting.

[4494] Ms. S.T.’s mother joined her for the initial consultation in Dr. Sloka’s office. Ms. S.T. believed she relayed much of the history reported in Dr. Sloka’s consultation letter, though her mother may also have provided some information. She agreed that the summary of her history in Dr. Sloka’s consultation letter was accurate. She did not recall (but did not dispute) that Dr. Sloka asked the screening questions reported in the third paragraph of his consultation letter.

[4495] In her evidence in-chief, Ms. S.T. testified that after obtaining her medical history, Dr. Sloka told her that he wanted to go into the other room, “… so that he could do his analysis or make his diagnosis….” She added that that Dr. Sloka did not provide any explanation about the examinations he wished to perform: “nothing.”

[4496] Ms. S.T.’s evidence eventually changed in cross-examination as defence counsel probed her memory. Ms. S.T. acknowledged that, while in the office during the initial consultation, her body was doing weird things. She agreed Dr. Sloka probably noticed her eyes darting all over the place. She agreed that her body was exhibiting jerky movements. And she ultimately agreed that Dr. Sloka told her that he believed she had OMS. She also recalled that Dr. Sloka told her that he wanted to do some examinations to confirm that his diagnosis was correct. She added, “I figured that he would need to conduct some sort of an examination on my movement, how my neurological symptoms are presenting.” When prompted, she agreed that the whole purpose of any examination was to investigate the underlying cause of her OMS. She believed that Dr. Sloka was looking for cancer when Dr. Sloka took her into the examination room. Even before attending the appointment, she considered the possibility that cancer might be the underlying cause of her symptoms. When going into the examination room, she believed that cancer “was the obvious thing he was looking for.” She also testified that, she thought Dr. Sloka was trying to say that her symptoms might be caused by an immune response to something else in her body, but she did not understand what he was telling her. Despite all these acknowledgments, Ms. S.T. testified, “I was kind of surprised at first that he asked me to put on a gown because I thought it would just be kind of the walking test, you know, reflexes, things like that. Just pure neurological tests.” When defence counsel suggested that she was aware that Dr. Sloka wanted to conduct a full head to toe examination, Ms. S.T. disagreed. Her reason? She stated that her mother was not aware of any of that – implying that her mother told her that she had not expected a full head to toe examination.

[4497] Ms. S.T. recalled that her mother stood up as she and Dr. Sloka were about to go to the examination room. Ms. S.T. believed that her mother intended to join them. Dr. Sloka told her mother, “Oh, you can wait here,” or something to that effect. Ms. S.T. was not concerned about having her mother joining her. She was twenty years old. Neither Ms. S.T. nor her mother asked that her mother join them in the examination room. At some juncture prior to her testimony, Ms. S.T. spoke to her mother about this subject. She believed her mother wanted to join her in the examination room, even though her mother never expressly said so at the time. Ms. S.T.’s mother remained in the office during the examination.

[4498] Once Ms. S.T. entered the examination room, Dr. Sloka handed her a gown and asked that she remove her clothing and put on the gown, with the gown open at the back. He then left the room to give her privacy to get changed.

[4499] Ms. S.T. recalled that, upon his return, Dr. Sloka had her perform some typical neurological assessments. She recalled Dr. Sloka examining her gait, for example. Defence counsel took Ms. S.T. through the various components of Dr. Sloka’s standard neurological examination. She could not recall but could not dispute that Dr. Sloka completed all the components of his standard neurological examination. Apart from the observation of her gait, she recalled Dr. Sloka asking her to hold out her arms straight in front of her. She agreed that he might have pressed down on her arms to test her resistance, but she could not remember. She remembered, though, that Dr. Sloka mentioned something about her being predominantly one-sided. She thought he had been referring to her shakiness – that one side may be shakier than the other – but she couldn’t remember for sure. She did not remember the details of the arm test.

[4500] Ms. S.T. could not remember whether Dr. Sloka used a stethoscope to perform a respiratory examination but agreed that he might have done so.

[4501] Ms. S.T. could not remember but also agreed that Dr. Sloka may have palpated her abdomen for masses. She agreed that this would not have surprised her because she knew he was looking for cancer. She then agreed that, at the time, the examinations made sense to her, but it now seemed “a little bit off” in retrospect.

[4502] Ms. S.T. denied that Dr. Sloka palpated her breasts in search for lumps. She was adamant, “That didn’t happen.”

[4503] The next examination remembered by Ms. S.T. was the skin examination. Before Dr. Sloka conducted this examination, he explained its rationale to Ms. S.T. Ms. S.T. could not recall the details of the explanation, but she understood that Dr. Sloka would be looking for evidence on her skin that might explain the cause of her symptoms. In her mind, he was looking for skin cancer.

[4504] Defence counsel asked Ms. S.T., “Do you recall if either at this point or at any point during the examination or even the meeting before hand whether you were asking many questions of Dr. Sloka to try and better understand what he was explaining?” Ms. S.T. replied, “No. I just kind of wanted the appointment to go faster. Like, I did want to know what was going on but, yeah, I’m not one to ask a lot of questions and I kind of just wanted to go home.”

[4505] Regarding the skin examination, Ms. S.T. testified, “He gave me some sort of explanation or else I wouldn’t have done it.” Having received an explanation, she agreed to the skin examination.

[4506] Ms. S.T. stood in the middle of the room for the skin examination. Ms. S.T. testified that Dr. Sloka never touched her during the skin examination. She stood stationary for the examination. Dr. Sloka moved around her as needed. According to her, she moved the gown to expose, in a piecemeal fashion, parts of her body to facilitate the skin examination. She did not remember how she knew which parts to expose. Details like that were lost to her memory. For a portion of the examination, she moved parts of her gown while her arms were still in the sleeves. At other times, she exposed portions of her skin while only one arm was in its sleeve. Ms. S.T. agreed that, at all times during the skin examination, the gown was at least covering some portions of her body. When examining her front, he examined one half at a time. When he examined the front of her body, the gown covered at least some of her body. When he examined her back, the back part of her body was exposed while she held the gown against her waist. She could have held the gown over her breasts, but she chose to hold it at her waist. Her breasts were exposed at that point, but she had her back to him. As she held the gown against her waist, her arms remained inside the sleeves of the gown. When he told her that he was done, she slipped the gown back on before facing him. While Dr. Sloka conducted the skin examination, he visually scanned her skin. His face was a foot or two away from her body. The entire examination was brief. Ms. S.T. estimated that it lasted “a minute or so.”

[4507] Ms. S.T. testified that Dr. Sloka performed a pelvic examination following the skin examination. Before commencing the pelvic examination, Dr. Sloka explained to her that he would feel inside her vaginal canal for any abnormalities. She also remembered him saying that he would be feeling up to the back of the vaginal canal. She also assumed he said something about wanting to assess if it had spread, but she could not remember what he said: “I think that’s what I filled in…. Assuming that it spread. Because I don’t know what his explanation was. I don’t remember what he said.” She later added, “I think I filled in the blanks with that.” She believed he was looking for cancer. She believed Dr. Sloka was being thorough. She agreed to the pelvic examination. She communicated that consent.

[4508] Ms. S.T. laid down on the examination table to facilitate the pelvic examination. She was still wearing her gown. Her feet were flat on the table, her knees were bent, and her legs were spread apart. She described her position as like one that would be assumed during a pap-smear or delivery. Dr. Sloka wore gloves for the examination. Dr. Sloka lubricated his gloved fingers before commencing the pelvic examination. During the pelvic examination, Dr. Sloka applied pressure with two fingers to the inside of Ms. S.T.’s vaginal canal. She could not recall if Dr. Sloka also applied opposing pressure from the outside of her abdomen. The pelvic examination went quickly. By her estimate, it lasted thirty seconds. When Dr. Sloka removed his fingers, he looked at his hand. Ms. S.T. described this as an awkward moment.

[4509] Following the pelvic examination, Dr. Sloka departed the room to permit Ms. S.T. to change back into her street clothing.

[4510] Once Ms. S.T. got changed, she joined Dr. Sloka and her mother in Dr. Sloka’s office, where Dr. Sloka discussed his findings and recommendations.

[4511] Defence counsel took Ms. S.T. to a hand-drawn diagram in Dr. Sloka’s medical file. Ms. S.T. recalled Dr. Sloka drawing the diagram but could not recall what it represented. She agreed that Dr. Sloka may have drawn a diagram of the inner ear to explain her symptoms. Ms. S.T. also agreed that Dr. Sloka ordered an MRI of her brain and a CT scan of her chest, abdomen, and pelvis.

[4512] Ms. S.T. described Dr. Sloka as being a “weird character.” She thought him odd. He had an awkward way about him. She viewed him as an academic who was socially inept.[29] She did not think he communicated anything clearly to her. Accordingly, when she left the appointment, she was really confused. She was only certain about one thing: she had OMS. However, she did not think he properly explained that condition to her. Having said that, she also knew there was more testing to do.

[4513] Defence counsel took Ms. S.T. to the Impression portion of Dr. Sloka’s consultation letter. In that portion, Dr. Sloka had concluded that her OMS was likely the result of a viral insult but observed that OMS is more commonly associated with a paraneoplastic syndrome (an abnormal immune response to cancer) in adults. In the consultation letter, Dr. Sloka had underscored the fact that Ms. S.T. did not know of this association. After reviewing Dr. Sloka’s Impression paragraph at trial, Ms. S.T. recalled having the impression that Dr. Sloka did not want to stress her out and disrupt her schooling. She did not think Dr. Sloka specifically highlighted cancer as a concern, even though she herself had a concern about cancer. In other words, she felt that he was withholding the worst-case scenario from her. In her mind, though, Dr. Sloka ordered the additional imaging to search for signs of cancer. Having reviewed the trial transcript, I am not certain whether Ms. S.T. acknowledged that Dr. Sloka had at least informed her that he had concluded that her OMS was likely the result of a viral insult.

[4514] Ms. S.T. attended for a follow-up appointment on October 1, 2010. Her mother accompanied her once again.

[4515] By the time of her second visit, she was starting to feel much better. She was less concerned about her health than she had been previously.

[4516] The second visit was less memorable for Ms. S.T. When she initially spoke to the police, she did not remember much about this visit. It was also a shorter visit than the first.

[4517] Defence counsel took Ms. S.T. to Dr. Sloka’s consultation letter from October 1, 2010. Ms. S.T. agreed that the history documented in the first paragraph was accurate.

[4518] The second paragraph of the October 1^st consultation letter described Dr. Sloka’s discussion with Ms. S.T. about OMS. In that paragraph, Dr. Sloka mentioned showing Ms. S.T. a video of a person suffering from OMS. Ms. S.T. recalled seeing a video at some point but was not sure if Dr. Sloka had been the one to show her. This paragraph also mentioned the negative MRI and CT scan results. Ms. S.T. did not believe that Dr. Sloka reviewed the results of the MRI and CT scans with her, but she later agreed that “He may have said it very briefly to say things are normal… but there was no discussion on, you know, the details.” At some point, Ms. S.T. became aware that the CT disclosed an ovarian cyst. Ms. S.T. also had a vague memory of a woman, perhaps the original CT technician, telling her that one of her ovaries was not visualized in the first ultrasound. The third paragraph also mentioned a 20% chance of OMS being associated with cancer. Ms. S.T. did not remember Dr. Sloka informing her of this risk. By that point in time, Ms. S.T. had already done her own research and believed there to be significant correlation between OMS and cancer. However, Ms. S.T. was feeling better; consequently, she believed that her OMS was associated with a viral insult. Ms. S.T. thought there existed a “low percent chance” that her OMS was associated with cancer. She considered herself “good to go.”

[4519] When Ms. S.T. first spoke with the police, she did not know whether Dr. Sloka conducted another examination at her follow-up appointment on October 1, 2010. She told police, “And that like, I’m not sure if he did another assessment. I feel like he did, and if so, it was just like a whole nother [sic] undressing and just looking for skin type of… manifestation.” Ms. S.T. subsequently became certain that Dr. Sloka performed a second skin examination at this second appointment. Despite being certain at trial that a second skin examination occurred, she offered few details about it. She explained, “… I don’t remember the transition to it and transition out of it.” Although she alleged a second skin examination, Ms. S.T. did not believe that Dr. Sloka performed a second neurological examination – at least, she was 80% sure.

[4520] Ms. S.T. also recalled that, at the conclusion of her October 1^st appointment, Dr. Sloka briefly mentioned that he wanted to follow up with her to ensure she continued to improve. He also ordered another pelvic scan.

[4521] Defence counsel took Ms. S.T. to the follow-up pelvic CT scan, which showed that the earlier cyst had resolved. Ms. S.T. did not remember whether he ever saw that follow-up CT scan, because she was never concerned about the cyst.

[4522] Ms. S.T. never attended for a follow-up visit with Dr. Sloka. At the conclusion of her treatment with Dr. Sloka, Ms. S.T. thought that all of Dr. Sloka’s actions were conducted for her benefit. She had no concerns.

[4523] In 2019, Ms. S.T.’s mother sent her a text message. Ms. S.T. was upstairs in the house at the time; her mother was downstairs. The text contained an image of Dr. Sloka in an article from the newspaper. Her mother asked, “was this your neurologist?” Ms. S.T. recognized Dr. Sloka. She went downstairs to talk to her mother about it. Her brother and sister-in-law were also present. They told her about the article, and the reason Dr. Sloka had been reported about in the newspaper. Her mother then asked if Dr. Sloka had done anything to her. Ms. S.T. reviewed what she could recall about her treatment. At the time, Ms. S.T. could not remember the purpose of her examinations. Her sister-in-law is a doctor of internal medicine, who practiced in South Africa. With the limited information provided, her sister-in-law thought that a skin examination was plausible but could not think of a justification for the pelvic examination. After the discussion with her family, Ms. S.T. searched the internet for media articles about Dr. Sloka. She found some articles, one or two at most. Ms. S.T.’s evidence here is confusing. On the one hand, she testified that she obtained the investigating officer’s phone number from the article her mother showed her, an article she did not read. On the other hand, she testified that she looked up and read one or two articles. Regarding the articles she read, Ms. S.T. said she found their content disturbing. They described “what happened to other girls.” She no longer remembered the details of those articles, except that one mentioned Dr. Sloka placing “his hands on one of the girls.” Ms. S.T. believed that she read the articles on the same day her mother texted her. However, Ms. S.T. also was not sure whether she read the articles before or after she contacted the investigating officer. On her account, though, she contacted the investigating officer about a week after first speaking with her mother. In any event, she certainly read the articles before providing her statement at her scheduled interview with the police.

The Evidence of Dr. Bril

[4524] Dr. Bril’s evidence in-chief was a bit muddled. She appeared to suggest that some of the examinations performed by Dr. Sloka were not reasonable, no matter whether they were performed by Dr. Sloka or a differently qualified physician. She did not maintain that position in cross-examination. A better understanding of her position is gained from cross-examination.

[4525] Dr. Bril testified that OMS gives rise to jerky eye movements and muscle movements in the body. She added that OMS is more than likely caused by lesions in the cerebellum or brainstem. The lesions are thought to cause dysfunction in neural pathways of the cerebellum or brainstem, which gives rise to the jerky eye movements and muscle movements. OMS may arise from a viral insult or from paraneoplastic syndrome. Paraneoplastic syndrome is thought to be an immune response to the presence of cancer in the body. Dr. Bril did not know the proportion of patients whose OMS was caused by paraneoplastic syndrome. She believed OMS was often associated with ovarian cancer and less frequently with other forms of cancer.

[4526] Given Ms. S.T.’s presentation, Dr. Bril believed that Dr. Sloka was correct to believe that Ms. S.T. had OMS. She also agreed with his assessment that the OMS likely arose from a viral insult.

[4527] In addition, Dr. Bril considered it reasonable for Dr. Sloka to consider cancer as the source of Ms. S.T.’s OMS. Consequently, she considered it medically reasonable to screen for cancer by resort to physical examination. However, Dr. Bril did not think it appropriate for a neurologist to perform that screening. Dr. Bril instead believed that the family doctor ought to conduct any physical examination to screen for cancer. To investigate paraneoplastic syndrome, a family doctor could reasonably conduct pelvic, breast, lymph, thyroid, abdominal, and skin examinations. In her opinion, it was not neurologically reasonable for Dr. Sloka to conduct the cancer screening examination.

[4528] Dr. Bril observed that Dr. Sloka ordered an MRI of Ms. S.T.’s brain and CT scans of her chest, abdomen, and pelvis. She inferred that these scans were ordered to search for possible cancers. Dr. Bril agreed with the reasonableness of this avenue of investigation.

[4529] Dr. Bril noted that the pelvic CT scan revealed a small adnexal cyst, which was likely an ovarian cyst, which she did not consider serious. All other imaging produced normal results.

[4530] By the time Ms. S.T. returned to see Dr. Sloka on October 1, 2010, Ms. S.T. reported great improvement. As a result, Dr. Bril did not think cancer to be a likely cause of the OMS. If Ms. S.T. had cancer, her symptoms would not improve.

[4531] Dr. Bril noted that Dr. Sloka reported doing another examination on October 1st, but he did not specify the type of examination performed. Dr. Bril did not think it reasonable to conduct a second skin examination, if that was the examination performed. She also did not think a full neurological examination was warranted. However, a focused examination of Ms. S.T.’s eyes would be neurologically reasonable.

[4532] Dr. Bril commented on Dr. Sloka’s decision on October 1st to order a pelvic ultrasound to investigate the possible cyst. She believed that this investigation ought to have been left to Ms. S.T.’s family doctor.

[4533] Dr. Sloka’s medical file revealed that Ms. S.T. attended for the follow-up pelvic ultrasound, which did not reveal any cyst.

[4534] Dr. Bril commented on Dr. Sloka’s letter to Ms. S.T. on July 15, 2010, written nine months after Ms. S.T. had attended for the follow-up pelvic ultrasound and nine and a half months after Ms. S.T.’s October 1, 2010, visit. In her opinion, it was not appropriate for Dr. Sloka to write directly to Ms. S.T. Speaking on behalf of all neurologists, she said that neurologists do not write directly to patients; when neurologists see a patient, they discuss follow up plans in the office; if a patient fails to return for follow up, that is their choice. For the reasons articulated in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place no weight on Dr. Bril’s categorical claims about what all neurologists do or do not do.

The Evidence of Dr. Sloka

[4535] Dr. Sloka remembered Ms. S.T., because her OMS was memorable.

[4536] Dr. Sloka testified that, when he met Ms. S.T. in the waiting room, he could see her jerky eye movements. He could see right away that she had OMS.

[4537] Dr. Sloka believed that OMS had two main causes, viral illness and cancer.

[4538] Dr. Sloka believed that paraneoplastic syndrome arose from cancer. In his understanding, the human body recognises itself and foreign bodies. Cancer is an abnormal accelerated growth of human cells in a disordered way. When cancer occurs, the cancer cells can appear foreign to a person’s immune system. The immune system attacks these cells. In doing so, it can cause neurological damage leading to OMS.

[4539] In his first consultation letter to the family doctor (on August 31, 2010) Dr. Sloka reported that adult OMS is more commonly associated with paraneoplastic syndrome (cancer) than it is with viral insult. Later, in his October 1^st consultation letter, Dr. Sloka reported to the family physician that 20% of adult OMS cases are associated with cancer. Dr. Sloka inferred that, through subsequent study, his understanding of the prevalence of the underlying causes had changed between the first appointment and the second appointment.

[4540] In any event, at the time of Ms. S.T.’s first appointment, he was concerned about the possibility that cancer might be causing Ms. S.T.’s OMS. He conducted physical examinations for the purpose of screening for cancer. To his mind, the most common cancers associated with OMS are lung, breast, and ovarian cancer. Dr. Sloka did not think he knew the relatively likelihood of each type of cancer at the time of Ms. S.T.’s appointment. In preparation for trial, he learned that the proportionate likelihood broke down as follows: 1/3 for lung cancer, 1/6 for breast cancer, 1/6 for ovarian cancer, and 1/3 for everything else.

[4541] Dr. Sloka recommended neurological, respiratory, thyroid, abdominal, lymph, skin, breast, and pelvic examinations. He recommended the neurological examination to rule out any other neurological condition. He wanted to perform the other examinations to screen for the presence of cancer. He was looking for masses, lymphatic swelling, skin lesions, and any audible evidence of cancer in the lungs. One cancer was of particular interest, because of its association with OMS: ovarian teratoma. That cancer involves an abnormal growth or germination cells into a mass that contains malformed or partially formed hair or teeth. He wanted to search for teratomas on the ovaries, where an abnormal egg might grow in an abnormal way. Dr. Sloka understood an ovarian teratoma is different than ovarian cancer. Searching for a teratoma involves a bimanual pelvic examination. Based on his training and education, Dr. Sloka believed that a physical examination was a standard component of an investigation into paraneoplastic syndrome. Had he ultimately discovered evidence of cancer, he would have sent Ms. S.T. to the ER immediately.

[4542] Dr. Sloka testified that he would have identified and explained the proposed examinations in his office, as was his practice.

[4543] Dr. Sloka disagreed with Dr. Bril’s opinion that he ought to have left cancer screening examinations to the family doctor. He observed that, as a condition of is certification as a neurologist, the RCPSC required him to know how to perform a general examination. He also testified that he felt he had the training, experience, and expertise to do the examinations he proposed. He wanted to do the tests quickly so that he could begin to rule out cancer.

[4544] Having regard to the content of his August 31st reporting letter, Dr. Sloka agreed that he might not have explicitly told Ms. S.T. that he was searching for cancer. Instead, he might have explained that he was looking for evidence of an “immune attack” somewhere in her body. This position aligned with Ms. S.T.’s vague memory, which included her sense that he was trying to say that her symptoms might be caused by an immune response to something else in her body. Dr. Sloka interpreted his use of the phrase “which she does not know” as an indication that he probably did not use the word cancer but instead described the immune process in some detail.

[4545] Dr. Sloka denied Ms. S.T.’s claim that he did not reveal the need for her to wear a gown until she was already in the examination room. On his evidence, discussion of the need for a gown arose when outlining the examinations he proposed.

[4546] Dr. Sloka had no recollection about Ms. S.T.’s mother being present at the appointment. He did not document her presence in his consultation letter. However, he did not dispute the possibility that he told Ms. S.T.’s mother that she could wait in the office. If he said such a thing, it would have been for the purpose of informing her that she did not need to go back to the waiting room. He denied any intention to exclude Ms. S.T.’s mother from the examination room.

[4547] Dr. Sloka believed he performed all the recommended examinations in accordance with his standard methods.

[4548] In conducting these examinations, Dr. Sloka found no physical evidence of cancer.

[4549] Based upon the information learned up to the conclusion of his examinations, Dr. Sloka believed that Ms. S.T. had OMS which arose secondarily from a viral infection. However, he wanted to make sure to rule out cancer. He ordered an MRI of Ms. S.T.’s brain stem and CT scans of her chest, abdomen, and pelvis to look for any obvious cancers missed on examination. Based on the records, Dr. Sloka believed that he ordered expedited testing. In particular, he noted that the MRI was conducted quickly, only a few weeks after Ms. S.T.’s appointment.

[4550] Dr. Sloka acknowledged that he did not record the fact of his general cancer screening examination or the results. He testified that he tends not to report negative results but acknowledged that in this instance he ought to have documented his cancer screening examination. He explained that this appointment occurred early in his practice, and he was probably caught off-guard by this unusual case.

[4551] The pelvic CT scan revealed the presence of a small cyst, likely an ovarian cyst. The radiologist indicated, “if there is clinical concern, ultrasound of pelvis would be of value for further evaluation.”

[4552] At Ms. S.T.’s follow-up appointment on October 1st, Ms. S.T. had reported improvement and was doing well. Dr. Sloka charted another examination, stating, “I re-examined her here today and her examination is completely normal.” Dr. Sloka testified that this examination consisted of a second neurological examination, nothing more. He denied performing any other examination, including the skin examination alleged by Ms. S.T. Dr. Sloka explained that Ms. S.T.’s symptoms had resolved her imaging results (with the exception of the cyst disclosed in the pelvic CT scan) were all negative. He had no reason to perform another cancer screening examination.

[4553] Dr. Sloka disagreed with Dr. Bril’s opinion that he did not need to conduct another neurological examination. OMS is an insult to the brain stem. He wanted to make sure that the insult had fully resolved.

[4554] Considering Ms. S.T.’s negative test and examination results, Dr. Sloka concluded that her OMS had likely been caused by a viral infection. There was no obvious sign of cancer. Nevertheless, as charted in his consultation letter, he discussed with Ms. S.T. the association of OMS with cancer. He wanted to see her in follow up, in about a month. He wanted to be careful.

[4555] Dr. Sloka also ordered pelvic ultrasound on October 1st. That follow-up ultrasound revealed no cyst. Dr. Sloka believed that the presence of a cyst in the pelvic CT scan was likely a transient physiological cyst associated with ovulation, which likely disappeared by the time of the pelvic ultrasound.

[4556] Ms. S.T. never returned for a follow up appointment.

[4557] Many months later, Dr. Sloka wrote a letter to Ms. S.T., because she had not attended for the follow up appointment. He wanted to make sure she followed up with her family doctor. A copy of his letter was faxed to Ms. S.T.’s family doctor. Her family doctor was also copied on the pelvic ultrasound results.

Assessment of the Evidence and Analysis

[4558] The evidence of Ms. S.T. and Dr. Sloka largely aligned, but they diverged on a few important points. Ms. S.T. alleged that, while they were both still inside his office, Dr. Sloka did not identify and justify the examinations he planned to perform in the examination room. Relatedly, she also alleged that, while still in the office, he did not tell her that he would require her to wear a gown for the examinations conducted in the examination room. Ms. S.T. also denied that Dr. Sloka performed a breast examination. Most importantly, Ms. S.T. alleged that Dr. Sloka performed a second skin examination at the second appointment, on October 1^st. Dr. Sloka disputed Ms. S.T.’s evidence about each of these factual issues. For reasons which I will now explain, I do not accept Ms. S.T.’s evidence on these points of disagreement.

[4559] Ms. S.T. admittedly had limited memory of the details of her time as Dr. Sloka’s patient. Regarding her first appointment, she attributed her limited memory to the severity of her illness and the passage of time. I infer that her limited memory of her second appointment was simply the product of the passage of time.

[4560] As a result of her condition and limited memory, I am not prepared to place much weight on Ms. S.T.’s testimony about what Dr. Sloka said and when he said it during her first appointment.

[4561] In rejecting Ms. S.T.’s evidence about what Dr. Sloka said or failed to say, I also note that incongruencies exist in Ms. S.T.’s evidence about her first appointment. I also take into account the tainting effect of discussions between Ms. S.T. and her mother.

[4562] In her examination in-chief, Ms. S.T. testified that Dr. Sloka said “nothing” in the office about the examinations he planned to conduct. In cross-examination, a different picture arose. She agreed for the first time that, while in the office, Dr. Sloka mentioned his belief that she had OMS. She agreed Dr. Sloka told her that he wanted to perform some examinations to confirm the correctness of his diagnosis. She agreed, even before attending the appointment, she believed that cancer might possibly be the cause of her symptoms. She stated that cancer “was the obvious thing that he was looking for.” She also testified that she thought Dr. Sloka was trying to say that her symptoms might be caused by an immune response to something else in her body, but she did not understand what he was telling her. All these concessions point to a much more thorough discussion in Dr. Sloka’s office, just as he claimed. Of great importance, she testified that Dr. Sloka seemed to draw a connection between her symptoms and an immune response to something else in her body. Both Dr. Sloka and Dr. Bril testified about paraneoplastic syndrome being an immune response to the presence of cancer in the body. I cannot chalk up to coincidence the similarity between Ms. S.T.’s vague recollection and the evidence of Dr. Sloka and Dr. Bril. Ms. S.T. did not pull that concept out of thin air. In my mind, Ms. S.T. ultimately confirms Dr. Sloka’s assertion that he alluded to a search for things that might be creating an immune response, even if he did not specifically mention cancer.

[4563] I also infer that Ms. S.T.’s memory about the in-office discussions was influenced by later discussions Ms. S.T. had with her mother. In denying that Dr. Sloka spoke of the need to perform a head-to-toe examination, she stated that her mother was not aware of any of that, implying that her mother had told her that Dr. Sloka provided no explanations in the office. Given the contrast between Ms. S.T.’s testimony in-chief and what she ultimately acknowledged in cross-examination, I infer that mother’s alleged input likely tainted Ms. S.T.’s memory about what was said in the office.

[4564] In all the circumstances, I reject Ms. S.T.’s initial assertion that Dr. Sloka told her nothing about the nature of or reason for the examinations. I accept Dr. Sloka’s evidence that he told her about the examinations he wished to perform and that he at least explained that he was looking for things in her body that might explain an immune response that might be causing her OMS. It follows that I also reject Ms. S.T.’s evidence that she was surprised of the need to wear a gown for her examinations. She believed Dr. Sloka would be screening for cancer. She was told that he would be searching for things in her body that might be creating an immune response. The examinations which Dr. Sloka proposed self evidently would require the removal of clothing. Further, she wore her gown in a way that suggested she anticipated a pelvic examination. I therefore accept that, while still in the office, Dr. Sloka told Ms. S.T. about the need to wear a gown for the extensive screening examinations he had proposed.

[4565] Given the admitted frailty of Ms. S.T.’s memory, I reject Ms. S.T.’s denial of a breast examination. It simply makes no sense that, during such an exhaustive physical examination, Dr. Sloka would refrain from examining Ms. S.T.’s breasts in his search for evidence of cancer. The Crown relies upon the absence of a breast examination as evidence that Dr. Sloka was not really concerned about the possibility of cancer. The Crown might want to pause and think about the overarching theme of their similar fact application and their submissions regarding numerous patients: time and again, the Crown has alleged that Dr. Sloka has shown an overriding interest in the breasts of his patients. It makes zero sense that, if he was employing a ruse to gain access to Ms. S.T.’s body, he would eschew a breast examination. Meanwhile, Dr. Sloka’s contemporaneously written consultation letter takes pains to highlight his concern about cancer, even if he had already come to the tentative conclusion that a viral insult is the likely explanation for Ms. S.T.’s OMS. Similarly, Dr. Sloka’s requisition of imaging of the brain stem, chest, abdomen, and pelvis all indicate a desire to search for signs of cancer. Dr. Bril conceded as much. While Dr. Sloka did not make a note of the examinations performed, I accept that he knew which examinations were appropriate to properly investigate the possibility of paraneoplastic syndrome. Rather than Dr. Sloka refraining from performing an examination he knew was highly relevant to his investigation, I think it far more likely that Ms. S.T., due to her illness and the passage of time, simply forgot some aspects of her appointment.

[4566] The Crown also relies upon Dr. Sloka’s alleged failure to conduct other investigations to support their contention that Dr. Sloka had no interest in investigating the possibility of cancer. Their submission is without merit. Without the benefit of an expert opinion on this point, the Crown argues that, if Dr. Sloka was truly interested in cancer, he would also have sought imaging of the thyroid gland, cervix, and breasts. That submission is not supported by any evidence from of Dr. Bril. It is a legal argument made in the absence of a qualified opinion. Moreover, the Crown never suggested to Dr. Sloka in cross-examination that he was not concerned about breast cancer or thyroid cancer. As for cervical cancer, Dr. Sloka testified that cervical cancer does not coincide much with neurology, if at all. He never suggested that he suspected a link between cervical cancer and OMS. He only made the vague and general comment that the underlying cancer could come from anywhere in the body. The Crown also argued that Dr. Sloka would have ordered a pap-smear if he was interested in finding cancer. This submission lacks any factual foundation and thus lacks any merit. Dr. Sloka testified that a pap-smear is not part of an investigation into OMS. Dr. Bril offered no evidence on the subject.

[4567] The Crown also argues that Dr. Sloka is precluded from testifying about what he “would have done” when presented with a patient with OMS, because he conducted research about OMS when preparing to testify. In particular, the Crown points to Dr. Sloka’s acknowledgement that he did not think he knew in 2010 the proportionate likelihood of various cancers being the cause of OMS. I reject this submission. Dr. Sloka testified that he received training about the association between OMS and paraneoplastic syndrome arising from cancer in the body. He also received training about the appropriate cancer screening examinations involved in an investigation of paraneoplastic syndrome. His evidence on these points was not contradicted or directly challenged. It is obvious from his consultation letters that he believed in an association between cancer, paraneoplastic syndrome, and OMS, even if his understanding about the proportionate involvement of cancer changed from the first appointment to the second. I am not concerned at all by the fact that Dr. Sloka learned more during trial preparation about the chances of specific cancers being associated with OMS. I keep in mind here that Dr. Bril agreed that Dr. Sloka’s purported concern about cancer was reasonable. Dr. Sloka’s attempt to refresh his memory does not detract from the overwhelming contemporaneous documentation of his concern about the possibility that Ms. S.T.’s OMS may be cancer related. Dr. Sloka was entitled to refresh his memory about medical concepts in preparation for trial. Neither the fact he did so nor the fact he learned something new detracts from his assertion that, in 2010, he knew of the need to do a general examination to screen for cancer. Similarly, his trial preparation does not detract from his assertion that he knew what examinations were involved in a general cancer screening. Evidence of Dr. Sloka’s contemporaneous concern is not only found in his consultation letters, but also in the fact that Dr. Sloka ordered imaging to screen for cancer. That contemporaneous concern provides support for Dr. Sloka’s claim that he performed a full cancer screening physical to assuage his concerns about the possible involvement of cancer. The fact that Ms. S.T. remembers Dr. Sloka performing many of the components of that screening examination further supports Dr. Sloka’s position.

[4568] I turn now to the second appointment and Ms. S.T.’s claim of a second skin examination. I find Ms. S.T.’s evidence on this point to be unreliable. Again, Ms. S.T. admitted to having a poor memory of the details of her appointments. Moreover, her statement to the police contradicted her testimony. When speaking to the police, she was uncertain if Dr. Sloka performed any more examinations. She told the police, “And that like, I’m not sure if he did another assessment. I feel like he did, and if so, it was just like a whole other [sic] undressing and just looking for skin type of… manifestation.” Between her police statement and trial, she reviewed her medical records to prepare for trial, including the consultation letter for the second appointment. Without providing specifics, Dr. Sloka wrote that he re-examined Ms. S.T. By this point in time, multiple media sources had published reports of patients complaining about skin examinations. By the time she got in the witness stand, Ms. S.T.’s previous uncertainty had transformed into a certainty. However, despite her newfound certainty, she was unable to offer any detail about the alleged skin examination. On the other hand, Dr. Sloka denied a second skin examination, explaining that his cancer concerns had been assuaged by the imaging results. In the circumstances, I place no reliance on Ms. S.T.’s claim of a second skin examination.

[4569] Dr. Bril agreed to the reasonableness of a general physical examination of the kind performed by Dr. Sloka. She only took issue with a neurologist performing it. Effectively, she claimed that neurologists do not do those examinations. However, Dr. Sloka testified that he possessed the training, education, and experience necessary to conduct the examinations. His evidence on this point was not contradicted. He also testified that the RCPSC required neurologists to be competent to perform general examinations as a condition of their certification. His evidence on that point was not contradicted. For the reasons provided in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place no weight Dr. Bril’s categorical assertions about the permissible scope of any neurologist’s practice.

[4570] In the circumstances, I accept that Dr. Sloka believed that a general cancer screening examination was medically warranted at Ms. S.T.’s first appointment. I accept that he believed himself to be properly trained and qualified to conduct this examination. I accept that he performed the examinations in accordance with his standard methods. I reject any suggestion that Dr. Sloka possessed an improper sexual motive when conducting these examinations. I also accept that he ordered imaging of Ms. S.T. to be sure that there existed no obvious cancerous masses missed during his general examination.

[4571] I reject the Crown’s contention that Dr. Sloka did not obtain Ms. S.T.’s informed consent for her examinations. As noted, it is clear to me that Dr. Sloka explained to Ms. S.T. that he was searching for things in her body that might give rise to an immune response that might explain her symptoms. Possessed with this information, Ms. S.T. consented to the examinations conducted. She never suggested that she was not consenting to any examination. Dr. Sloka provided Ms. S.T. with sufficient information for her to understand the nature of the examinations and Dr. Sloka’s justification for them. Possessed with this information, Ms. S.T. provided her consent.

[4572] I see nothing nefarious about Dr. Sloka’s later letter to Ms. S.T. on July 15, 2011. Her mother worked at the same hospital. He saw her from time to time. He said so in his letter. It makes absolute sense that he might be reminded of Ms. S.T. and her unusual OMS case upon seeing her mother. It makes total sense that he might recall that she never attended for a follow-up appointment. As already indicated, I place no weight on Dr. Bril’s categorical claim that neurologists do not send reminder letters. The Crown suggests that Dr. Sloka attempted to scare Ms. S.T. into returning. That submission ignores the fact that Dr. Sloka waited nine and a half months from Ms. S.T.’s last visit to write the letter. It also ignores the fact that Dr. Sloka made it clear in his letter that he considered a virus “most likely” responsible for her OMS and that OMS is “usually a benign and self-limiting condition.” It also ignores the fact that, although he mentioned Ms. S.T.’s cyst, un-visualized ovary, and bulky uterus, he also stated “these are quite likely to be benign.” True, Dr. Sloka stated he was “a little bit concerned” about the lack of follow up given the relatively small chance of cancer and the pelvic imaging, but I am not prepared to conclude any nefarious intent. I infer that the writing of this letter was in part triggered by the sighting of Ms. S.T.’s mother from time to time at the hospital and in part by the somewhat unusual nature of her ailment.

[4573] I also see nothing nefarious in Dr. Sloka’s failure to document his general cancer screening. His patient’s mother was an oncology nurse at the same hospital. She was present in the office prior to the examinations. I have concluded that she was privy to his explanation of the nature of and rationale for the examinations. She was at least a partially educated audience, even if her daughter was not. Dr. Sloka was at the beginning of his practice. He was faced with what he considered a highly unusual case. He agreed that he ought to have explicitly documented the examination. In these circumstances, I am not prepared to conclude that Dr. Sloka was attempting to hide anything.

[4574] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting examinations on any given patient in this case. However, having regard to Dr. Sloka’s cogent and compelling testimony regarding his approach to Ms. S.T.’s diagnosis, and having regard to the totality of the evidence regarding this count, I have concluded that Dr. Sloka has refuted any possible inference of a sexual purpose. I am entirely confident that Dr. Sloka possessed a medical motive when conducting cancer screening examinations upon Ms. S.T..

[4575] The Crown’s also relies upon three cross-count similarities to support the evidence of Ms. S.T. on other material issues. First, the Crown contends that Ms. S.T. belongs to a group of women who alleged a distinctive body position during their pelvic examinations. Second, the Crown contends that Ms. S.T. belongs to a group of women who alleged that they were in a state of undress during skin examinations. Third, the Crown contends that Ms. S.T. belongs to a group of women who were allegedly not told of the reason for any proposed examinations. For the reasons I will now discuss, I conclude that the Crown’s reliance on these cross-count similarities lacks merit.

[4576] The probative value of any similarity in body position between other patients and Ms. S.T.’s body position lies in its ability to prove that a pelvic examination occurred. Dr. Sloka conceded a pelvic examination. It is not a material issue. Moreover, Ms. S.T.’s body position, like that of other patients, was not distinctive. She lay on the table, with knees up, feet down, and legs spread apart. Ms. S.T. testified that it was like the position assumed for a pap-smear and for childbirth. In other words, she described it as anything but distinctive. Without the benefit of stirrups, I’m not sure how else Dr. Sloka would be able to effectively perform a pelvic examination. It seems the most plausible and expected body position possible. This purported similarity is not probative of any remaining material fact. Even if it were, it lacks any probative force.

[4577] The Crown’s contention that Ms. S.T. belongs to a constituency of patients who were not told of the reason for their examinations is completely misplaced. That submission relies upon Ms. S.T.’s position in her evidence in-chief and ignores everything she eventually conceded in cross-examination. As already noted above, it is clear to me that Dr. Sloka provided a thorough explanation, one sufficient for her to understand the nature of the examinations being proposed and the basic reason for them. Like many other alleged members of this alleged constituency, Ms. S.T. does not belong in it.

[4578] I will now briefly summarize my conclusions about Dr. Sloka’s evidence. As already discussed, Dr. Sloka provided a cogent explanation for conducting a comprehensive cancer screening. His concern about the possibility of cancer was supported by Dr. Bril. It was also supported by the follow-up testing he ordered. He testified that he conducted his examinations in accordance with his training and standard methods. While Ms. S.T. could not remember the details of all the examinations, her memory of Dr. Sloka’s methodology during the skin examination supports the conclusion that he did not sexualize the examination but instead took measures to ensure to protect her privacy and provide appropriate draping. In my view, Dr. Sloka survived cross-examination with his reliability and credibility intact.

[4579] Having considered all the evidence, I conclude that Dr. Sloka proposed a comprehensive medical examination to screen for the presence in Ms. S.T.’s body. I accept that he honestly believed the examination was medically warranted. I further accept that he proposed this examination to Ms. S.T. while still in his office. In doing so, he provided what he believed to be a valid medical justification for that examination. Ms. S.T. understood the nature of the medical examination and possessed a general understanding of its justification. Ms. S.T. then consented to it. I accept that Dr. Sloka possessed the training and experience necessary to competently perform this comprehensive examination. I also accept that he performed this medical examination in accordance with his training and standard methods. This comprehensive cancer screening consisted of neurological, respiratory, thyroid, abdominal, lymph, skin, breast, and pelvic examinations. Having considered the entirety of the circumstances, I conclude that the examination was not sexual in nature. It was medical. I also conclude that there was no second skin examination. Dr. Sloka only performed a second neurological examination. He provided a valid reason for doing so. Despite Ms. S.T.’s unreliable claim of a second skin examination, one aspect of her evidence tends to support Dr. Sloka’s evidence: the examination was not memorable. When speaking to police, she was not even sure if Dr. Sloka conducted another examination. I conclude that a review of Dr. Sloka’s consultation letter when preparing to testify changed her mind. However, even then, she proved unable to recall any details of her second alleged skin examination. From this I infer that Dr. Sloka did nothing memorable. This inference supports Dr. Sloka’s claim that he only did a standard neurological examination – which did not require her to expose her body and would consequently be unmemorable. Dr. Sloka’s second neurological examination was a medical examination, not sexual activity. I infer from the circumstances that she consented to this medical examination.

[4580] I therefore conclude that Dr. Sloka did not commit a sexual assault on Ms. S.T.

[4581] He will be acquitted on this count.

G. Birth Control Consultations

i. AM.E. (Count 22)

A Summary Ms. Am.E.’s Complaint and Dr. Sloka’s Response to It

[4582] Ms. Am.E. was a migraine patient sent by her U of W health clinic doctor for an assessment of her migraines and the risk of using estrogen based oral contraceptives. She alleged that Dr. Sloka performed a breast examination. She purportedly felt it strange to be receiving a breast examination in the circumstances. At the time, Dr. Sloka convinced her of the propriety of the examination. Seven years later, after reading news articles about Dr. Sloka in which other patients alleged inappropriate breast examinations, she decided to contact the police and lodge a complaint.

[4583] Dr. Sloka agreed that he performed a breast examination. Ms. Am.E.’s previous use of estrogen based oral contraceptives for eight years heightened her risk of breast cancer. He prescribed a new oral contraceptive medication for her. The product monograph recommended a breast examination. He proposed one and Ms. Am.E. agreed to one. He conducted the examination in accordance with his training and standard method.

The Circumstances of Ms. Am.E.’s Referral and Treatment History

[4584] Ms. Am.E. was 23 years old at the time of the referral.

[4585] Initially, Ms. Am.E. was not sure whether her gynecologist or her family doctor referred her to Dr. Sloka. Ms. Am.E.’s medical records established that Dr. Takacs, Ms. Am.E.’s family practitioner from U of W Health Services, referred Ms. Am.E. to Dr. Sloka on October 31, 2011. Ms. Am.E. ultimately agreed that her family practitioner made the referral.

[4586] In her evidence in-chief, Ms. Am.E. testified that she understood that one of her doctors had referred her to Dr. Sloka for an assessment of her migraines. She also believed that doctor was concerned about her hormonal birth control being related to migraines.

[4587] In cross-examination, defence counsel took her through Dr. Sloka’s file, including the letter of referral. In the referral, Dr. Takacs indicated that Ms. Am.E. suffered from migraines with aura. She had been taking oral contraceptive medication for eight years. At the time of the referral, she was using a combined progestin and estrogen pill, which raised a concern. Estrogen heightens the risk of stroke for migraine sufferers. Accordingly, Ms. Am.E. agreed that her referral to Dr. Sloka involved, in part, the treatment of her migraines and, in part, the assessment of the stroke risk associated with her use of estrogen-based contraceptives.

[4588] In her evidence in-chief, Ms. Am.E. also testified that she was under the care of a gynecologist at the time of her referral to Dr. Sloka. Subsequently, she admitted that she did not know if she was under the care of a gynecologist at the time of the first or second appointments. Her medical records indicated that she saw a gynecologist between her second and third appointments – that is, after Dr. Sloka had performed her breast examination and provided her with a new birth control prescription (Micronor).

The Evidence of Ms. Am.E.

[4589] Am.E. was 33 years old when she testified.

[4590] She recalled seeing Dr. Sloka at least 2 times. After a review of her medical records, she agreed she saw Dr. Sloka three times.

[4591] Only one appointment concerned her. On this appointment, Dr. Sloka did a breast examination. She could not initially recall whether this breast examination occurred on the 1st, 2nd, or 3rd visit. Defence counsel took her to Dr. Sloka’s reporting letter from her first appointment. In that letter, he reported a breast examination. After reading that passage, she agreed that the breast examination occurred on the first visit. The first visit occurred on December 6, 2011.

[4592] The first visit began in Dr. Sloka’s office. There, they discussed her medical history. From their discussion, she understood him to say that he used to be a general practitioner. She testified that he had asked about her work history and that she had inquired about his credentials. She said she is always curious about where professionals get their credentials. She believed Dr. Sloka told her that he got his undergraduate degree at U of W. She also agreed that it was possible that he told her he had held a general medical license and that he received training in general medicine and was thus qualified to do a breast examination.

[4593] At the conclusion of their discussion, Dr. Sloka proposed an examination. She understood him to be proposing a full physical examination but agreed she could not be sure of the wording he employed. She believed him to be proposing an internal examination, amongst other things. This was an assumption, not a recollection. While she could not recall the wording of her response, she recalled declining his proposal. Whatever her response, she recalled him then explaining his desire to do a breast examination. He provided a rationale for that breast examination. That rationale satisfied her at the time. She recalled him telling her that “everything is connected.” She also agreed it was possible, although she could not remember, that Dr. Sloka told her that he wanted to do a breast examination because her oral contraceptive use exposed her to a higher risk of cancer. She also agreed it was possible, but she could not remember, that Dr. Sloka proposed a neurological examination to probe the possible causes of her migraines. Likewise, she agreed it was possible, but she could not remember, that Dr. Sloka proposed a cardiac examination. Whatever was proposed, she recalled that she agreed to the breast examination. Nevertheless, she still felt it strange to be receiving a breast examination when seeking help for her migraines.

[4594] Ms. Am.E. went into the examination room, and Dr. Sloka provided her a gown. He told her to disrobe from the waist up and put on the gown. He left to allow her to change into the gown. Then he returned. Then he performed a breast examination. In her recollection, this breast examination was like other breast examinations she had received in her life. She recalled being seated for at least some of the breast examination. She agreed that she could have been laying down for some of it, too. Nothing about the manner of the breast examination caused her concern. Only the mere fact of the breast examination caused her concern.

[4595] Defence counsel suggested to Ms. Am.E. that her examination began with a standard neurological examination, during which Dr. Sloka performed each component of his standard neurological examination. As defence counsel took her through each step, Ms. Am.E. testified that she could not remember Dr. Sloka performing any of these steps, but she agreed that he may have done so. Likewise, she could not recall Dr. Sloka testing her blood pressure but agreed he might have done so. She also did not recall a Dr. Sloka performing cardiac examination but did not dispute the possibility. Everything that she believed was in the scope of Dr. Sloka’s practice was not memorable to her.

[4596] Ms. Am.E. did not remember if Dr. Sloka asked her “is it okay the way we looked at you today?” Had he asked that question, she would have responded “yes.”

[4597] Defence counsel took Ms. Am.E. to the Impression portion of Dr. Sloka’s reporting letter from her first appointment. After a review, Ms. Am.E. did not recall Dr. Sloka discussing various birth control options with her, as Dr. Sloka reported. However, she did recall starting on Micronor, as reported by Dr. Sloka. Ms. Am.E. also agreed that Dr. Sloka made no plans for any follow-up appointments with her.

[4598] Ms. Am.E. testified that she spoke to her then boyfriend (now husband), B.L., following her first appointment with Dr. Sloka. According to Ms. Am.E., she told Mr. B.L. that she felt it “a little unusual” for a neurologist to be conducting a breast examination. However, she brushed the issue aside. She explained that she places a lot of trust in institutions and experts. She did not purport to be distraught or to feel violated.

[4599] Ms. Am.E. did not see Dr. Sloka again until December 19, 2012, just over a year after her first appointment. At that juncture, Ms. Am.E. was under the care of Dr. Ann Martin. Dr. Sloka’s medical records disclosed that, a week earlier, Ms. Am.E.’s pharmacy had sent a request to Dr. Sloka to refill Ms. Am.E.’s Micronor prescription. She did not recall this. As noted already, Ms. Am.E. did not yet have a gynecologist at this juncture.

[4600] Defence counsel reviewed Dr. Sloka’s December 19, 2012, reporting letter with Ms. Am.E. She agreed with the contents of history contained in that letter. She had only suffered four migraines in the previous year. However, she suffered from moderate headaches about twice a week.

[4601] Ms. Am.E. also agreed that Dr. Sloka discussed the prospect of her trying massage therapy. She had found physiotherapy helpful.

[4602] Dr. Sloka also discussed birth control options with her. In doing so, he discussed the possibility of making a referral to a gynecologist.

[4603] Although Dr. Sloka’s reporting letter indicated that Dr. Sloka checked her blood pressure and examined her liver span, Ms. Am.E. had no recollection of Dr. Sloka doing any examination on this visit.

[4604] Dr. Sloka prescribed Nortriptyline and planned to see her in follow up.

[4605] A follow up appointment was ultimately booked for February 20, 2013. Ms. Am.E. attended that follow-up appointment. She was tolerating her Nortriptyline. No further follow-up was required. Dr. Sloka left it to her family doctor and her new gynecologist to manage her birth control needs.

[4606] In July of 2018, she read news about Dr. Sloka. The news reported that patients of Dr. Sloka’s complained of inappropriate physical exams beyond the scope of Dr. Sloka’s practice, including unwarranted breast examinations. Ms. Am.E. testified that this media coverage vindicated her past concerns. After seeing news, she spoke to her husband (B.L.). She told husband that she previously told him about the breast examination. She did not get into details about the specifics of the examination, because she believed he already knew the specifics. They both discussed the possibility of contacting the CPSO.

[4607] Ms. Am.E. also recalled reading about Dr. Sloka’s CPSO hearing at end of April or the beginning of May 2019. She recalled learning that he lost his license.

[4608] At some point thereafter, she exchanged correspondence with the CPSO. The CPSO informed her that they would not be seeking further prosecution of her complaint, because Dr. Sloka had already lost his license.

[4609] Ms. Am.E. contacted the police after the CPSO told her that they were taking no further action. She wanted to see what her options were. She contacted the investigating officer, Detective Gilker, by email on May 9, 2019. This was her first contact with WRPS. Soon after, she decided she wanted to proceed by pressing charges. On May 22, 2019, she sent email to Detective Gilker to inform her that she wanted to press charges.

The Evidence of B.L.

[4610] Mr. B.L. testified about Ms. Am.E.’s conversation with him after her first appointment with Dr. Sloka.

[4611] According to Mr. B.L., the discussion was “very tense”, and Ms. Am.E. was “upset,” “confused,” and “distraught.” He alleged Ms. Am.E. was crying. She claimed she felt violated. Mr. B.L. testified that Ms. Am.E. also cried about the examination on numerous occasions afterwards.

[4612] Mr. B.L. testified that when Ms. Am.E. made her initial disclosure, he told Ms. Am.E. to refrain from seeing Dr. Sloka again. On his evidence, she followed his advice. He did not think she ever saw Dr. Sloka again. Given her emotional response to the visit, he said it would not make sense to him if she saw Dr. Sloka again. He certainly did not want to her to see him again. If she insisted, he would have wanted to have accompanied her or have someone else go, to make sure nothing improper occurred.

[4613] In July 2018, Mr. B.L. became aware of news about the allegations against Dr. Sloka. Mr. B.L. and Ms. Am.E. discussed the news. According to Mr. B.L., it all clicked together for Ms. Am.E. She concluded that her breast exam must have been improper. She was very angry and upset. She said she felt violated. She was having a rough time dealing with feelings of violation, including regular nightmares.

The Evidence of Dr. Bril

[4614] Dr. Bril testified that there was no neurological reason to conduct a breast examination on Ms. Am.E.

[4615] Dr. Bril testified that “all neurologists I know of” would leave birth control prescriptions to the family doctor rather than prescribing it themselves. In providing this evidence, Dr. Bril at least tacitly acknowledged that some neurologists do in fact prescribe birth control, even if they constitute the minority of neurologists: “And most neurologists would leave prescribing - all neurologists that I know of - would leave prescribing of the particular medication to prevent pregnancy to the family physician.”

[4616] Dr. Bril also testified that neurologists do not do breast examinations, an assertion which is logically and medically connected to her assertion that all the neurologists she knows of leave birth control prescriptions to others. However, Dr. Bril herself conceded that she had done a breast examination in her capacity as a neurologist once. Though admitting that she had done a breast examination once, she also agreed that she operated outside the scope of neurology and outside the scope of her expertise when doing so.

[4617] Dr. Bril also testified about there being no neurological reason to offer a vaginal examination. This evidence was irrelevant, because Ms. Am.E. never alleged that Dr. Sloka offered a vaginal examination. She only assumed that he wanted to perform one.

The Evidence of Dr. Sloka

[4618] Dr. Sloka had no independent memory of Ms. Am.E. He relied upon his reporting letters for the truth of their contents and the remainder of Ms. Am.E.’s chart for context.

[4619] He testified that Ms. Am.E.’s family doctor sought a birth control consultation for Ms. Am.E., a migraine sufferer. Ms. Am.E. had been using estrogen-based birth control medication before the referral. Dr. Sloka understood that these medications came with a risk of stroke. The referral was made with that stroke risk in mind.

[4620] When Dr. Sloka met with Ms. Am.E. on December 6, 2011, he took her medical history and then proposed various examinations: pulse, blood pressure, neurological, cardiac, and breast examinations.

[4621] Dr. Sloka believed that prescribing birth control medications fell within his scope of practice as a neurologist. That was the nature of Ms. Am.E.’s referral. Stroke risk is a neurological concern. Advice about and the prescription of birth control is relevant to stroke risk. He believed the performance of breast examinations to be a medically necessary component of prescribing birth control medications. The prescription of Micronor was amongst the options he considered proposing for Ms. Am.E. Micronor is a progestin-only birth control medication. Dr. Sloka testified that the product monograph for Micronor recommended yearly breast examinations. He understood that this drug could cause existing breast tumors to grow and could also increase the risk of a patient developing breast cancer. In addition, he observed that Ms. Am.E. had been on birth control for eight years by the time she became his patient, which increased her risk of breast cancer. On his evidence, his decision to recommend Micronor turned on the results of the breast examination. He considered it expedient to conduct the breast examination himself. It was also the most convenient for the patient. And it was the reason for the referral. He believed he was amply trained and qualified to do the breast examination.

[4622] Dr. Sloka testified that he would have explained his rationale for proposing a breast examination. He denied that he simply told her, “Everything is connected.” He would not have said that.

[4623] Dr. Sloka agreed it was possible he told Ms. Am.E. that he used to have a licence for general medicine. He did not have a specific recollection of doing so, nor did he remember the context in which he might have shared this information.

[4624] Dr. Sloka denied that he proposed a full body examination. He only proposed specific examinations, as recorded in his reporting letter.

[4625] At the conclusion of the examinations, Dr. Sloka discussed birth control options for Ms. Am.E. Those options included an IUD, Depo-Provera, and Micronor. Ms. Am.E. selected Micronor. He gave her a nine-month prescription. He also discussed with Ms. Am.E. the treatment of her migraines. He did not need to see her again. He reported Ms. Am.E.’s patient history, his examinations, and his impression to Ms. Am.E.’s family doctor.

[4626] Dr. Sloka did not know why he reported the normal results of Ms. Am.E.’s breast examination. He normally does not record examinations with negative results. He agreed he deviated from his standard practice.

[4627] Dr. Sloka was asked to respond to Dr. Bril’s claim that neurologists do not do breast exams. He provided his own anecdotal evidence. When engaging in research during his neurology training in Newfoundland regarding the number of patients in that province with MS, he reviewed the medical records nine out of ten neurologists in the province. He noticed variability in their practices. He noticed that some neurologists would do breast examinations. Clearly, Dr. Sloka was relying upon anecdotal hearsay evidence here. His evidence on the subject is not admissible for the truth of its content, but it is admissible to support Dr. Sloka’s purported subjective belief in the medical reasonableness of his conduct. Dr. Sloka’s evidence here stood uncontradicted and unchallenged in cross-examination.

Assessment of The Evidence and Analysis

[4628] There is no dispute that Dr. Sloka performed a breast examination on Ms. Am.E. There is also no dispute that Dr. Sloka provided Ms. Am.E. a justification when proposing the breast examination. Ms. Am.E. could not recall the entirety of the justification given. She agreed to that Dr. Sloka may have justified the breast examination on the basis of a connection between birth control medication and breast cancer. Therefore, the Crown cannot establish that Dr. Sloka provided a false medical justification for the examination. Whatever Dr. Sloka said, Ms. Am.E. was satisfied with that justification and consented to the examination. Moreover, there exists no dispute that the manner in which Dr. Sloka performed that examination raised no concerns with Ms. Am.E. at the time of the examination. From Ms. Am.E.’s perspective, she noticed no difference between this breast examination and others she had received in her lifetime.

[4629] The Crown argues that Dr. Sloka’s sexual motive transforms an otherwise unremarkable breast examination into sexual activity. Since Ms. Am.E. did not consent to sexual activity, but only a medical examination, the Crown argues that a sexual assault occurred.

[4630] To prove Dr. Sloka’s sexual motive, the Crown relies largely on the fact that Dr. Sloka conducted it, not on the manner in which he conducted it. The Crown urges me to conclude that Dr. Sloka exceeded the scope of his practice when performing a breast examination in anticipation of prescribing birth control medication. The Crown also urges me to conclude that Dr. Sloka exceeded the scope of his practice when eventually prescribing birth control medication. From these excursions outside the permissible scope of his practice, the Crown asks that I infer that Dr. Sloka possessed a sexual motive. They further argue that Dr. Sloka dishonestly withheld his sexual motive from Ms. Am.E. and instead provided a false medical justification.

[4631] In support of their position, the Crown relies upon the evidence of Dr. Bril to argue that neurologists do not do breast examinations and do not prescribe birth control medication. As discussed in the portion of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place no weight on Dr. Bril’s categorical assertions that neurologists do not conduct breast examinations and do not prescribe birth control.

[4632] The Crown also submits that Dr. Sloka ought not to have done the breast examination because Ms. Am.E. was already in the care of a family doctor and gynecologist at the time of the breast examination. They argue that the breast examination ought to have been done by either one of these two physicians, not Dr. Sloka. However, Ms. Am.E. was not in the care of a gynecologist at the time Dr. Sloka performed the breast examination and prescribed the new birth control medication. She did not come under the care of a gynecologist until Dr. Sloka organized a referral much later. Moreover, there exists nothing in the record capable of establishing that the family doctor had done a breast examination within a time period that would exclude the need to conduct one before Dr. Sloka could prescribe a new birth control medication. I keep in mind as well that the referral contemplated Dr. Sloka’s involvement in providing advice about birth control alternatives. I also keep in mind that Dr. Sloka openly reported to the referring physician that he had done a breast examination. I also keep in mind Dr. Sloka’s uncontradicted evidence that he had received a general licence to practice in Newfoundland, that he had practiced briefly in that capacity, and that he believed he possessed the training and experience necessary to conduct breast examinations. Cumulatively, this evidence supports the inference that both the referring physician and Dr. Sloka contemplated that both the breast examination and the prescription of a new birth control medication fell within the scope of the referral.

[4633] Relatedly, the Crown argues that there was no medical reason to perform a breast examination. There is no factual foundation for that submission. Dr. Bril’s was not qualified to opine on the medical reasonableness of the breast examination. Dr. Sloka provided his subjectively held grounds for believing that the breast examination was medically reasonable. He testified that the product monograph for Micronor, which was the drug he prescribed, recommended a breast examination, due to the breast cancer risk associated with the drug. The Crown called no evidence to refute Dr. Sloka’s claim about the product monograph or his understanding of it. He testified that he had been trained to do breast examinations and was competent to do them. Dr. Sloka’s belief in the medical reasonableness of a breast examination stood uncontradicted. Likewise, his evidence about his training and competence to perform a breast examination stood uncontradicted.

[4634] The Crown also places reliance on Ms. Am.E.’s claim that Dr. Sloka proposed other more intrusive examinations which Ms. Am.E. turned down. The Crown asks that I infer that Dr. Sloka possessed a sexual motive when proposing these more intrusive examinations.

[4635] For reasons I am about to explain, I find that Ms. Am.E.’s recollection about what was said to her by Dr. Sloka was unreliable. As a result, I am not prepared to rely upon her account of what Dr. Sloka said to infer that the breast examination was sexual in nature.

[4636] On Ms. Am.E.’s original account, Dr. Sloka proposed a full examination, which she assumed would involve a breast and pelvic examination. She purportedly turned him down. He then specifically proposed a breast examination. Her original memory of the appointment does not allow for the proposal and acceptance of a neurological examination, the proposal and acceptance of a cardiac examination, or the proposal and acceptance of the measurement of her heart rate and blood pressure. Dr. Sloka’s contemporaneous reporting of these examinations in his consultation letter provides powerful proof that these examinations did in fact occur. Consequently, I am satisfied that all those proposals were made, just as I am satisfied that all of those contemporaneously reported examinations occurred. So, what exactly, then, did she turn down? She did not turn down a cardiac examination. She did not turn down a neurological examination. She did not turn down the testing of per pulse and blood pressure. And, of course, she did not turn down a breast examination. Given her acknowledgement that Dr. Sloka never specifically proposed a pelvic examination, I conclude she turned nothing down. I reject as unreliable Ms. Am.E.’s recollection that she turned down any proposed examination. I infer that she has simply forgotten the scope and purpose of her appointment, the resulting proposals made by Dr. Sloka, and the resulting examinations conducted. Of note, Dr. Sloka’s standard cardiac examination involves the exposure of a patient’s left breast. Given Ms. Am.E.’s belated concern about her breast examination, I would expect that examination to have been more memorable. In the circumstances, I think it very plausible that Ms. Am.E.’s memory about what Dr. Sloka proposed has been influenced by exposure to news stories about Dr. Sloka.

[4637] Ms. Am.E.’s recollection that Dr. Sloka said something like “everything is connected” lacks sufficient context, considering the paucity of her recollection about her discussions with Dr. Sloka, and considering the conclusions I have already reached about the alleged “full examination” proposal. It is hard to have confidence about when and why he might have said such a thing. Also, Ms. Am.E.’s evidence changed in cross-examination, during which she conceded the possibility that Dr. Sloka explained the connection between breast examinations and the cancer risks associated with birth control medication. I place no weight on this aspect of her evidence.

[4638] Given Ms. Am.E.’s sparse recollection of the precise reason for her referral and the paucity of her recollection about what Dr. Sloka proposed and his reasons for doing so, I reject as unreliable Ms. Am.E.’s recollection about being puzzled to be receiving a breast examination. Ms. Am.E. could not recall the complete purpose of her initial referral to Dr. Sloka. She didn’t understand that the fundamental concern of her family doctor involved the stroke risk of her birth control medication. She did not remember whether her breast examination occurred on her first, second, or third visit. She had a sparse memory of her discussions with Dr. Sloka. And she could not recall Dr. Sloka drawing a connection between the breast examination and the prescription of her birth control medication, yet she acknowledged that Dr. Sloka may have explained that connection and she acknowledged obtaining the new prescription. The main outcome, really the only outcome, of her appointment with Dr. Sloka was the prescription of a new birth control medication. That fact is incontrovertible. The breast examination was logically and medically relevant to that prescription. If I accept that Dr. Sloka explained that connection between the breast examination and birth control prescription, which I do, then Ms. Am.E.’s purported puzzlement becomes illogical and implausible. I conclude that Ms. Am.E.’s purported bewilderment flows from her failure to recall that the referral involved a request for guidance regarding her birth control medication and stroke risk. Her purported puzzlement also flows from her failure to fully appreciate that the primary outcome of her appointment was the prescription of a birth control medication that posed a lesser stroke risk than her previous birth control medication. Years later, in retrospect, she had reduced her appointment to being an appointment about headaches. I conclude that if any puzzlement ever existed, it did not exist contemporaneously with the examination but instead existed at the time she reconsidered the appropriateness of her examination in the aftermath of reading about Dr. Sloka in the news. I conclude that Ms. Am.E.’s testimonial recollection of her puzzlement is the product of media tainting and the tainting effect of discussions with Mr. B.L..

[4639] The Crown argues that Dr. Sloka led Ms. Am.E. to believe that a breast examination was routine. Ms. Am.E. did not testify that Dr. Sloka said anything like that. She testified about being interested in his credentials and inquiring about them. She was always curious about where professionals got their credentials. She testified he told her he had obtained a general medical licence. From her memory, he had indicated that he was qualified to do breast examinations. Dr. Sloka did not tell Ms. Am.E. that it was routine or typical for a neurologist to do a breast examination.

[4640] The Crown argues that Dr. Sloka fostered her misunderstanding that breast examinations were within his scope of practice as a neurologist. There is no foundation for this submission. He told her that he had previously obtained his general medical licence. As it happens, that claim was true. As it happens, Dr. Sloka maintained that based upon his past training and experience, he believed himself amply qualified to conduct breast examinations. His evidence regarding his training and competency in the performance of breast examinations was never contradicted.

[4641] The Crown argues that Dr. Sloka never informed Ms. Am.E. about how a breast examination was related to her referral. As noted already, that submission is not supported by the facts. Ms. Am.E. acknowledged that Dr. Sloka may have explained the connection between oral contraception and breast cancer.

[4642] Given Ms. Am.E.’s acknowledgement that Dr. Sloka may have explained the connection between birth control medication and cancer and given her generally poor memory of her the details of her time in Dr. Sloka’s care, I place no weight on Ms. Am.E.’s claim that she felt it strange to be receiving a breast examination when seeking help for her migraines. I think it likely that she has belatedly arrived at this perception, due to the tainting effect of media exposure.

[4643] It is time now to talk about the evidence of B.L. In my view, his evidence adds nothing to the Crown’s case. It only succeeds in proving the power of tainting. He provided evidence of a prior disclosure of a breast examination, but the existence of a breast examination is not in dispute here. I also found him to be, at the very least, an unreliable witness that directly contradicted Ms. Am.E. on the issue of her demeanour at the time she made the contemporaneous disclosure of a breast examination. He described her as tense, upset, confused, and crying. He claimed he told her not to see Dr. Sloka again. He said he would be surprised if Ms. Am.E. ever saw Dr. Sloka again. Ms. Am.E. said none of that. According to her, she told Mr. B.L. that she thought it was a little strange that Dr. Sloka did a breast examination during a consultation about her migraines. Then, she brushed it off. And of course, she then saw Dr. Sloka twice more. Mr. B.L. saw news coverage of the allegations against Dr. Sloka in July of 2018. He spoke to Ms. Am.E. about this news coverage. At that time, she was visibly upset and voiced feelings of being violated. She also discussed their long-ago conversation. There exists ample reason to conclude that Mr. B.L.’s perception about his post-examination discussion with Ms. Am.E. has been tainted by his review of news about Dr. Sloka and his discussions with Ms. Am.E. after reviewing that news.

[4644] In my view, Ms. Am.E.’s case provides a profound example of the dangers of media tainting. For nearly seven years she had no concerns about her breast examination. By the time she went to the police – indeed even by the time she testified at trial – she lacked an accurate recollection of the whole reason for her referral. It was, first and foremost, a birth control consultation, not a consultation about the treatment of her migraines. That rationale was lost to her memory. And so, by the time she provided a statement – and later when she testified – she claimed to remember that she thought it strange that a neurologist would do a breast examination during an appointment about her headaches. This supposed thought process reveals that she had forgotten the whole point of the referral: birth control advice having regard to her stroke risk. Of course, before providing her police statement – and before testifying – she came across news coverage of Dr. Sloka in which patients had complained of inappropriate breast examinations. Suddenly, after seven years without any apparent concern, Ms. Am.E. came to believe her breast examination had been improper. For the first time, she experienced feelings of violation. Ms. Am.E. agreed that whatever Dr. Sloka had said to her, she consented to the breast examination based upon his explanation. She agreed it was possible Dr. Sloka explained the relationship between birth control and breast cancer. I simply do not accept her claim that she thought the breast examination was strange, nor do I accept her claim that she expressed this view to her boyfriend. Instead, I conclude that Ms. Am.E.’s perception was heavily influenced by what she read in the news.

[4645] I have admitted cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any patient in this case. However, having considered Dr. Sloka’s innocent explanation for conducting Ms. Am.E.’s breast examination, I have concluded that he has rebutted any available inference of a sexual purpose. I will assess Dr. Sloka’s innocent explanation shorty, but first I would like to address two other discrete cross-count similarities upon which the Crown relies.

[4646] The Crown places reliance two specific areas of similarity.

[4647] First, the Crown places Ms. Am.E. amongst three patients whose breasts were examined and to whom Dr. Sloka explained that everything in the body is connected. As already noted, I conclude that Ms. Am.E.’s provided unreliable evidence about the justification provided to her by Dr. Sloka. Moreover, the other two patients did not allege that Dr. Sloka proposed a breast examination when providing the alleged “everything is connected” justification. They only alleged breast touching during a broader examination. In the case of Ms. M.G., she wasn’t even sure what made contact with her breasts. In the case of H.J. (C.), she testified in-chief, that Dr. Sloka explained when proposing a generic examination that the whole body is connected to the brain. In cross-examination, she testified that she “won’t disagree” that (1) Dr. Sloka said that he wanted to investigate the causes of her headaches; (2) that he wanted to do basic neurological tests to see if they would provide insight into her problem; and (3) that he wanted to do a basic cardiac exam to see if they would provide any insight into her problem. Whatever he said, she was satisfied that the proposed examinations made sense. In the case of M.G., she too could neither confirm nor deny that Dr. Sloka told her that he wanted to do some basic neurological examinations to see if any ongoing neurological injury might explain her symptoms. She could neither confirm nor deny that Dr. Sloka said that he wanted to listen to the arteries in her neck, since the nerve that increases pupil size runs along the carotid artery. She remembered being quite surprised after her breasts were exposed. But she remembered little about their preliminary discussions other than him saying that it was all connected. She testified that she did not remember the exact reason given for the examination and did not remember if it was ever shared. The overarching similarity between Ms. Am.E., Ms. H.J. (C.), and Ms. M.G. is that they each possessed an extremely sparse and incomplete memory of what was said to them. The possibility that Dr. Sloka provided a much more detailed explanation for his proposals was in whole or in part conceded by all of them. I see a significant potential that their vague recollections are entirely the product of coincidence, poor memory, and a poor understanding of the medical concepts at play. With these three witnesses, no probative value arises from any supposed improbability of coincidence.

[4648] Second, the Crown relies upon Ms. Am.E.’s alleged membership in a constituency of complainant’s who alleged breast cupping. Ms. Am.E.’s case illustrates that the Crown’s criteria for membership in this constituency is overly vague and broad. Ms. Am.E. never alleged that Dr. Sloka “cupped” her breasts. She alleged that Dr. Sloka performed a breast examination that appeared like other breast examinations she had received. True, she alleged Dr. Sloka used all his hand. However, when asked for more details in-chief, she expressed uncertainty about Dr. Sloka’s method: “I don’t want to say for sure what the motions were or anything… I don’t remember.” In my view, this alleged cross-count similarity lacks sufficient probative value.

[4649] I have considered the Crown’s challenges to the credibility and reliability of Dr. Sloka and have concluded that they lack merit.

[4650] In challenging Dr. Sloka’s rationale for performing a breast examination, the Crown argues that Dr. Sloka deviated from his standard practice by charting a negative result for the breast examination. The Crown asks the court to conclude from this deviation that Dr. Sloka consciously engaged in a coverup because he knew his breast examination was sexual. That is a highly speculative theory. Indeed, it strikes me as illogical. The Crown would have me conclude that, to hide the existence of an examination, Dr. Sloka drew the family doctor’s attention to it. Moreover, the Crown never suggested this theory to Dr. Sloka in cross-examination. Their reliance upon this theory rests upon Ms. Am.E.’s assertion that Dr. Sloka offered a “full physical”, an assertion which I have already rejected. Their reliance on this theory also seems scattershot. At times in their submissions, they ask that I infer a coverup from the fact Dr. Sloka reported or recorded an examination. At other times, they ask that I infer a coverup from his failure to report an examination. In the end, Dr. Sloka could not explain why he deviated from his standard practice and charted this examination. I am not prepared to draw any negative inference from this deviation or from Dr. Sloka’s inability to explain it. It is at least as consistent with a random deviation as it is with any other speculative theory offered by the Crown.

[4651] The Crown argues that Dr. Sloka was evasive and refused to acknowledge that he recommended a breast examination. That submission seems to run counter to their submission that he tried to hide the breast examination by reporting it. Moreover, the passage in the evidence relied upon by the Crown does not support their position. Dr. Sloka maintained that the product monograph recommended a breast examination, and he conveyed this recommendation to Ms. Am.E. My sense, when listening to the exchange between the Crown and Dr. Sloka, was that Dr. Sloka was resisting the implication that he made this recommendation on his own initiative. In other words, he did not pull the recommendation from thin air, but from the product monograph. The Crown makes a mountain out of this mole hill.

[4652] The Crown argues that Dr. Sloka’s approach to Ms. Am.E. cannot be reconciled with his approach to Ms. C.C. and Ms. J.V. From this inconsistency, the Crown asks that I conclude that Dr. Sloka is not credible. A careful examination of the circumstance of each of these patients does not support the Crown’s position. True, Dr. Sloka did not perform a breast examination on Ms. C.C. before prescribing her a new birth control medication at her first appointment. However, he had two reasons for not proposing one. First, she had attended after hours. Second, she had already received a breast examination within the previous year. Only yearly examinations were recommended. Consequently, he did not feel one was necessary. As for Ms. J.V., Dr. Sloka’s approach to her coincided with his approach to Ms. Am.E. He recommended a breast examination for Ms. J.V. because he was considering prescribing Micronor, a progestin-only pill that could cause tumors to grow and also increase the risk of contracting breast cancer. The product was not recommended for patients with breast cancer. The product monograph recommended yearly breast examinations. He conducted the breast examination because he felt it medically justified and believed it inefficient and inconvenient for Ms. J.V. to be required to do it elsewhere. I see no inconsistency between Dr. Sloka’s approach to Ms. Am.E. and Ms. J.V..

[4653] The Crown also draws a contrast between Dr. Sloka’s approach to Ms. Am.E. and his approach to R.P., insofar as birth control is concerned. Ms. R.P. saw Dr. Sloka 19 times over seven years. Near the end of her care, at an appointment on March 20, 2018, she reported that she was experiencing mood difficulties. Dr. Sloka reported that he thought her mood difficulties might have been associated with her current birth control medication. Rather than prescribe a new birth control medication, he left that issue for her family doctor to sort out. The Crown argues that this decision was unusual. They ask the court to infer that Dr. Sloka refrained providing birth control advice because he was under the supervision of a practice monitor by this point in Ms. R.P.’s care. From this inference, they ask the court to infer that Dr. Sloka knew it was wrong to be prescribing birth control medications to patients. This submission ignores the fact that Dr. Sloka routinely and very openly informed trained medical professionals, including Ms. Am.E.’s family doctor, that he was prescribing birth control medications to their patients. It ignores the fact that these prescriptions were made in circumstances where the primary care physicians were seeking Dr. Sloka’s guidance on birth control options for their patients. If he was hiding, he was hiding in plain sight, which leads me to conclude he wasn’t hiding at all. On the contrary, it would appear that Dr. Sloka was fulfilling the expectations of those who referred patients like Ms. Am.E. The Crown’s submission also ignores a key distinction between Ms. R.P. and other patients like Ms. Am.E. Unlike Ms. Am.E., Ms. R.P.’s doctor did not refer Ms. R.P. to Dr. Sloka for a birth control consultation. Ms. R.P. was a lupus patient who was experiencing seizures, amongst other symptoms. The initial referral sought a pre-pregnancy consultation regarding epilepsy medication. Over time, she presented with a wide range of ailments and issues, including lupus, epilepsy, rheumatoid arthritis, migraines, Raynaud’s disease, Sjogren’s syndrome, breast lumps, and restless leg syndrome. She was under the care of multiple physicians. She was a complex patient. In the circumstances, I am not surprised at all that Dr. Sloka confined himself to merely raising with Ms. R.P.’s primary care physician the possible mood implications of her current birth control pill. I am not prepared to infer from Ms. R.P.’s example that Dr. Sloka knew prescribing birth control medications were wrong.

[4654] Dr. Sloka’s evidence can be briefly summarized as follows: He was asked to provide a consultation about Ms. Am.E.’s migraines and birth control. In furtherance of that consultation, he proposed several examinations: pulse, blood pressure, neurological, cardiac, and breast examinations. He conducted the breast examination because he was considering a new birth control medication, Micronor. The product monograph of that medication recommended a breast examination because of the cancer risks associated with the use of that drug. According to his training, experience, and the product monograph for Micronor, a breast examination was medically warranted. Ms. Am.E. consented to the proposed breast examination as well as the other examinations. He conducted it in accordance with his training and standard practice. He then discussed Ms. Am.E.’s birth control options, and she elected to use Micronor. He reported all of these things to Ms. Am.E.’s family doctor. He did not plan to see her again in follow-up.

[4655] Ms. Am.E. did not contest any of these features of Dr. Sloka’s evidence.

[4656] Having regard to all of the evidence, I accept that Dr. Sloka proposed and conducted a breast examination because he subjectively believed that the referral involved a birth control consultation, because he subjectively believed a breast examination was medically germane to the prescription of a particular birth control recommendation, that he possessed a factual basis for that subjective belief, that he honestly held that belief, that he performed the breast examination in accordance with his training and standard procedure, that his breast examination did not materially differ from any others Ms. Am.E. had received from other doctors, and that Dr. Sloka did not possess a sexual motive when proposing or conducting the breast examination. In all the circumstances, the Crown has failed to establish that the breast examination was sexual in nature. It was a medical examination that Dr. Sloka believed was medically reasonable. It was performed in medically reasonable manner. I conclude that it only became objectionable to Ms. Am.E. after she read news articles about Dr. Sloka nearly seven years later.

[4657] Dr. Sloka was asked to provide a birth control consultation for a migraine patient. In furtherance of that consultation, he measured Ms. Am.E.’s blood pressure and pulse; he performed a neurological examination, a cardiac examination, and a breast examination; he then provided birth control options; Ms. Am.E. selected one of those options; then, Dr. Sloka provided a full update to Ms. Am.E.’s family doctor. There is no evidence that her family doctor took issue with Dr. Sloka’s approach to this consultation. It seems to me that Dr. Sloka did exactly what he was asked to do.

[4658] Dr. Sloka performed a medical examination, not a sexual assault. He will be acquitted on this count.

ii. J.V. (Count 18)

A Summary of Ms. J.V.’s Complaint and Dr. Sloka’s Response to It

[4659] Ms. J.V. alleged that Dr. Sloka conducted a breast examination during a birth control consultation. She also alleged that Dr. Sloka conducted a “mole check” on her upper body during her examination.

[4660] Dr. Sloka conceded that he may have performed a breast examination relevant to and in furtherance of the prescription of birth control medication, but he had no independent memory of doing so. He did not document it in his reporting letter or rough notes. He only documented blood pressure, heart rate, neurological, and cardiac examinations. He testified that any observation of moles on Ms. J.V.’s upper body would have occurred incidental to the examinations he performed.

The Circumstances of Ms. J.V.’s Referral and Treatment History

[4661] Six years passed between Ms. J.V.’s appointment with Dr. Sloka and her decision to contact the police. At the time Ms. J.V. provided her statement to the police, she told police that she had been referred to Dr. Sloka for an assessment of her migraines. She also told the police that her migraines were still occurring at the time of the referral. She made no mention about the referral pertaining to birth control. Between giving her statement and testifying, Ms. J.V. reviewed her medical file. At trial, Ms. J.V. testified that her doctor referred her to Dr. Sloka for a birth control consultation, because she was considering changing her birth control medication. She also acknowledged that her migraines had been in remission for two years, the period that had elapsed since a doctor told her to cease using an estrogen-based birth control medication.

[4662] Ms. J.V.’s doctor at University of Waterloo Health Services made the referral to Dr. Sloka on October 10, 2013. In that referral, her doctor wrote: “This [26] year-old graduate student has a history of Migraine Headaches since age 5. She has tried several birth control options, the last being Evra Patches which caused recurrence of her Migraine Headaches. I shall be obliged if you would see her and I look forward to your recommendations.”

The Evidence of Ms. J.V.

[4663] Ms. J.V. attended one appointment with Dr. Sloka. She was 26 years old at the time. She was 34 years old when she testified.

[4664] Ms. J.V.’s appointment occurred on November 13, 2013. The appointment began in Dr. Sloka’s office. The discussion in the office included small talk. When she told him that she was in engineering, Dr. Sloka shared that he had an engineering background.

[4665] Ms. J.V.’s recollection of the content of her discussions with Dr. Sloka in his office was vague and somewhat muddled. When taken to the contents of the first page of Dr. Sloka’s reporting letter, she agreed that she had provided Dr. Sloka with the information recorded there. She agreed that the information Dr. Sloka recorded was accurate. Similarly, when taken to Dr. Sloka’s rough notes, she agreed that Dr. Sloka discussed stroke risk factors with her, which included a discussion of various birth control options and their effectiveness. Although she originally testified that discussions of her sexual activity and birth control medications occurred in the examination room, she ultimately admitted that it was possible that the majority of the birth control discussions occurred in Dr. Sloka’s office. On the whole, Ms. J.V. believed that the questions asked by Dr. Sloka were similar to those posed by her previous neurologist.

[4666] Ms. J.V. testified that, after obtaining her history, Dr. Sloka told her that they were going to do a physical examination, and he asked her to put on a gown. In-chief, she recalled Dr. Sloka telling her that as part of her neurological assessment, he would shine a light in her eyes, test her reflexes, do breast exam, and check for moles. As her evidence progressed, her evidence became far less clear. In cross-examination, she testified that she did not remember Dr. Sloka providing specifics about the types of examinations being proposed. She only recalled being aware that Dr. Sloka would do some basic tests. She did not recall Dr. Sloka specifically mentioning a neurological examination but agreed that was possible. She also did not recall Dr. Sloka specifically mentioning a cardiac examination but agreed that was possible. She did not recall Dr. Sloka telling her that breast examinations are routinely performed when prescribing birth control, due to the risk of beast cancer associated with birth control. However, she agreed that was possible. She did recall, though, that Dr. Sloka asked her if she had recently received a breast examination. She told him that she had “not done one in a while,” but that she gets them done regularly. Although she remembered this discussion, she did not recall Dr. Sloka specifically offering to do a breast examination. Instead, she believed that a breast examination was “part of the tests that we were doing for my appointment.” Ultimately, she never quite articulated why she purportedly held that belief. Ms. J.V. testified that she would have preferred that her family doctor perform any breast examination, but for her belief that the breast examination was a component of her assessment. However, she trusted Dr. Sloka and, when the time came, consented to the breast examination. As for the “mole check,” Ms. J.V. acknowledged in cross-examination that Dr. Sloka may not have discussed moles with her in his office. She agreed that it was possible that the topic came up when he saw moles on her body during an examination. In making this concession, she acknowledged having a few moles on her arms and back. The moles on her arms would be visible while she wore her gown.

[4667] According to Ms. J.V., Dr. Sloka allowed her privacy to get changed into her gown in the examination room. Before getting into the gown, she removed her street clothing and her bra. She was unsure about whether she removed her underwear. The gown was a standard hospital gown. She wore it opened to the back. She then sat on the table and waited. Dr. Sloka knocked on the door and then entered.

[4668] In her testimony in-chief, Ms. J.V. testified that, when in the examination room with her, Dr. Sloka inquired about her sexual activity and birth control options. As noted already, Ms. J.V. agreed in cross-examination that most of this discussion occurred while Dr. Sloka obtained her history in his office. However, she specifically recalled Dr. Sloka discussing the progestin pill and the IUD in the examination room. She was not sure how the topic may have arisen again in the examination room.

[4669] Ms. J.V.’s evidence about the examinations changed from her evidence in-chief to her evidence in cross-examination.

[4670] In-chief, Ms. J.V. testified that the examination began with a visual inspection for moles. He came close to her as she sat on the examination table. She believed Dr. Sloka mentioned that they would need to bring her gown down. She did not remember the exact conversation. To her recollection, Dr. Sloka assisted with bringing the gown down to her elbows. Her sleeves remained on. She was exposed from neck to navel. She had turned her body to the left, so that her right side faced Dr. Sloka. He was thus able to see both her front and back. Ms. J.V.’s evidence about the mole check then became a little uncertain. She testified that she could not remember if Dr. Sloka actually discussed the mole check. She could not remember the details of about any discussion, and she could not remember why this visual inspection was happening. In any event, she recalled Dr. Sloka performing a visual inspection. He then moved onto the breast examination.

[4671] According to Ms. J.V., she turned to face Dr. Sloka, and she raised one of her arms for the breast examination. Dr. Sloka then palpated a breast, checking for lumps. Ms. J.V. could not remember whether she raised both arms simultaneously, or whether she raised them sequentially. She also could not recall any specifics about Dr. Sloka’s method of palpation. However, she recalled that Dr. Sloka palpated one breast at a time. He palpated all her breast tissue, from her armpit to her mid-chest. The breast examination was brief, five minutes or less. He told her everything looked good.

[4672] After the breast examination, Ms. J.V. pulled up her gown. Dr. Sloka then performed the other elements of the neurological test. Specifically, he shone a light into her eyes, and he tested her reflexes on her knees and elbows.

[4673] In cross-examination, defence counsel took Ms. J.V. to Dr. Sloka’s reporting letter and made some suggestions about the types of examinations performed and their sequence. In response, Ms. J.V. acknowledged that the possibility that the examination progressed differently that she had recalled in her evidence in-chief.

[4674] Ms. J.V. could not remember but acknowledged that Dr. Sloka may have tested her heart rate and blood pressure.

[4675] Ms. J.V. also acknowledged the possibility that Dr. Sloka performed a neurological examination before conducting a breast examination. Defence counsel took Ms. J.V. through the steps of Dr. Sloka’s standard neurological examination. She could recall some portions of Dr. Sloka’s standard examination: an ophthalmoscope examination of her eyes, the testing of her peripheral vision, the testing of her arm and leg reflexes. She did not recall other components of Dr. Sloka’s standard neurological examination but agreed to the possibility that Dr. Sloka conducted them.

[4676] Ms. J.V. had no specific recollection of Dr. Sloka performing a cardiac examination. Similarly, she had no specific recollection of Dr. Sloka employing a stethoscope during her examination. Nevertheless, Ms. J.V. conceded that Dr. Sloka may have conducted a cardiac examination and, in doing so, utilized a stethoscope to listen to her back and chest. Defence counsel suggested to her that she turned to her left and placed her legs along the examination table for the cardiac examination. In response, she answered, “I remember being turned.” Defence counsel suggested and Ms. J.V. agreed that it was possible that Dr. Sloka had her lay on her back for a portion of the cardiac examination. Defence counsel suggested and Ms. J.V. also agreed to the possibility that her left breast was exposed for the cardiac examination. She stated, “I know at one point he had lowered my gown. I don’t know if it was at the stethoscope portion which you’re talking about or if it was at the breast portion.”

[4677] Defence counsel suggested to Ms. J.V. that the topic of moles first came up during her examination, when her torso was exposed. Ms. J.V. agreed to this possibility. Ultimately, she could not remember when the topic of moles first came up. She testified that even without her gown lowered, her moles on her arms would have been visible. She also agreed that if Dr. Sloka used a stethoscope on her back, the moles on her back would have been clearly visible to him. She only remembered Dr. Sloka taking notice of the moles on her back.

[4678] I will turn now to Ms. J.V.’s evidence in-cross regarding the breast examination. Ms. J.V. recalled the breast examination began with a visualization of her breasts. At this stage, her gown was lowered to her elbows, exposing both breasts. She felt uncomfortable for this stage. Then, unlike her evidence in-chief, Ms. J.V. was able to recall that she removed one sleeve and raised one arm at a time to facilitate palpation of her breasts. She denied, though, that the one breast remained covered by her gown while he palpated the other. Ms. J.V. also did not recall laying down for any portion of the breast examination but conceded that this was possible. To her recollection, though, the majority of the breast examination occurred with her sitting upright.

[4679] Ultimately, Ms. J.V. testified that she interpreted the breast examination as being a regular physician breast screening examination. The manner in which Dr. Sloka conducted her breast examination was similar to the one she previously received from her family doctor. She thought Dr. Sloka was thorough. Ms. J.V. testified that she had not received a breast examination from a physician since receiving the breast examination from Dr. Sloka. Instead, she conducted regular self-examinations.

[4680] After performing these examinations, they discussed his findings. They spoke of different birth control options, and he told her that remaining off estrogen-based birth control was the correct course of action. They decided to try her on progestin. They also decided that she would resort to an IUD if the progestin did not work out.

[4681] Ms. J.V. testified that, when the discussion was over, Dr. Sloka departed the examination room and gave her privacy to change. The entire appointment was relatively brief, about 15-30 minutes. Three quarters of the duration of the appointment occurred in the examination room.

[4682] Ms. J.V.’s husband had waited for Ms. J.V. in the car. When she came out of the appointment she remarked to her husband about the thoroughness of the appointment. She made specific mention of breast examination and the mole check. She also told her husband that she wore a gown and had to expose herself. According to Ms. J.V., both she and her husband considered her appointment to be a standard medical appointment.

[4683] Years later, a few days before September 29, 2019, Ms. J.V. saw a news story about Dr. Sloka on television, likely CTV news. She believed the story referred to Dr. Sloka facing 34 charges of sexual assault against female patients. The story mentioned that some charges related to exams being outside the scope of Dr. Sloka’s practice.

[4684] After watching the news story, Ms. J.V. looked for news about Dr. Sloka online. She recalled reading about Dr. Sloka conducting “mole checks” and breast examinations. After reading the news, Ms. J.V. concluded that Dr. Sloka exceeded the scope of his practice when examining her.

[4685] On September 29, 2019, Ms. J.V. contacted the police at the number provided in one of the news articles. After an exchange of emails, she met the police for a video recorded interview on October 27, 2019.

The Evidence of Dr. Bril

[4686] Dr. Bril agreed that it was reasonable to measure Ms. J.V.’s pulse and blood pressure. It was also reasonable to conduct a neurological and cardiac examination.

[4687] However, Dr. Bril testified that there was no medical or neurological reason to examine Ms. J.V.’s skin or search for moles. Elsewhere in her evidence, though, she acknowledged the reasonableness of recording skin findings incidentally observed during other examinations.

[4688] Dr. Bril also opined that there was no medical or neurological reason to examine Ms. J.V.’s breasts.

[4689] Dr. Bril was not qualified to opinion on the general medical reasonableness of a breast examination. Her evidence regarding the general medical reasonableness of Ms. J.V.’s breast examination will receive no weight.

[4690] In discussing Ms. J.V.’s birth control consultation, Dr. Bril also opined that a neurologist ought not to prescribe birth control medications but only provide advice about the neurological risks associated with particular medications. In doing so, she provided a more conservative and restrictive opinion than when giving evidence in relation to Ms. Am.E. In giving evidence about Ms. Am.E., Dr. Bril had testified, “And most neurologists would leave prescribing - all neurologists that I know of - would leave prescribing of the particular medication to prevent pregnancy to the family physician.”

[4691] Dr. Bril also testified that neurologists do not do breast examinations. As discussed in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I afford no weight to this aspect of Dr. Bril’s evidence.

The Evidence of Dr. Sloka

[4692] Dr. Sloka had no independent memory of Ms. J.V. He relied upon his reporting letter for the truth of its contents.

[4693] Dr. Sloka testified that Ms. J.V.’s doctor referred her to him for a birth control consultation, having regard for her history of migraines.

[4694] At her appointment, Dr. Sloka obtained Ms. J.V.’s medical history and recorded the salient features in his reporting letter.

[4695] Dr. Sloka then proposed and conducted several examinations, including heart rate, blood pressure, neurological, and cardiac examinations.

[4696] Dr. Sloka did not report conducting a breast examination. He also had no memory of performing one. However, he agreed that it was possible that he conducted a breast examination. He noted that he recommended a progestin-only birth control medication, like Micronor. The product monograph for Micronor recommended yearly breast examinations for patients using that product. The medication increased the risk of breast cancer and may cause existing tumors to grow. The product was not recommended for patients with existing tumors.

[4697] Dr. Sloka recorded in his reporting letter that Ms. J.V. was, at the time, having yearly breast examinations. Based upon the contents of his reporting letter, he was unable – at the time of trial – to ascertain whether she had received one in the preceding year, was due for an examination, or was overdue. Accordingly, he declined to agree with the Crown’s suggestion that Ms. J.V. had already received a breast examination within the preceding year. Dr. Sloka agreed, though, that if Ms. J.V. had reported a normal breast examination within the preceding year, he would not have recommended one.

[4698] Dr. Sloka disagreed with Dr. Bril’s opinion that neurologists do not do breast examinations. He referred to his own research during his neurology residency in Newfoundland regarding the number of patients in that province with MS. He reviewed the medical records of nine out of ten neurologists in the province. He noticed that some neurologists in that province would do breast examinations. Dr. Sloka considered himself properly trained and competent to perform breast examinations. He considered it inefficient and inconvenient for a patient to go elsewhere for a breast examination if one could be done during his appointment.

[4699] Dr. Sloka also disagreed with Dr. Bril’s assertion that the prescription of birth control medications ought to be left to the family doctor. In Dr. Sloka’s experience, neurologists do in fact prescribe birth control medication. He provided as examples the prescription of birth control medicine for patients with catamenial migraines and menstrual-related seizures.

[4700] Although his reporting letter recommended a progestin-only medication, Dr. Sloka could not ascertain whether he actually prescribed the medication. Having no independent memory, he could not be sure one way or the other.

[4701] Dr. Sloka denied conducting an examination with the specific purpose of locating moles. However, he agreed that he would have made incidental observations of Ms. J.V.’s skin during his neurological, cardiac, and (possibly) breast examinations. He did not propose an independent skin examination.

Assessment of the Evidence and Analysis

[4702] In many ways, the evidence of Ms. J.V. and Dr. Sloka align.

[4703] Ms. J.V. alleged that she received a breast examination. Dr. Sloka agreed he may have performed one.

[4704] Ms. J.V. testified that her breast examination was similar to the one she had previously received from her family doctor. Dr. Sloka testified that, if he performed one, he would have done so in accordance with his training and standard practice. If he performed one, he would have done so because the maker of the medication he recommended advised against prescribing the medication to patients with existing breast tumors and advised yearly breast examinations.

[4705] Dr. Sloka testified that he would not have recommended a breast examination if one had been performed in the previous year. Ms. J.V. testified that she told Dr. Sloka that she had not received one in a while. In fact, despite what was recorded in Dr. Sloka’s reporting letter, she had only ever received one other physician-conducted breast examination. Any other breast examinations were self-conducted.

[4706] Based upon the alignment of their evidence on the question of a breast examination, I am prepared to conclude that Dr. Sloka did in fact perform a breast examination in furtherance of recommending the use of a progestin-only birth control medication. I am also prepared to conclude that Dr. Sloka performed the breast examination in accordance with his training and standard practice.

[4707] While it initially appeared that Ms. J.V. would allege that Dr. Sloka proposed an independent mole check, her evidence on that topic changed by the conclusion of her cross-examination. In the end, I am unable to conclude that Ms. J.V.’s evidence on this subject differs meaningfully from Dr. Sloka’s. By the conclusion of her cross-examination, Ms. J.V. acknowledged that Dr. Sloka may not have discussed moles with her in his office. She agreed that it was possible that the topic came up when he saw moles on her body during an examination. This concession aligns with the evidence of Dr. Sloka. According to Dr. Sloka, he did not propose an independent skin examination but would have incidentally examined her skin while conducting other examinations. Among the examinations Dr. Sloka recorded contemporaneously in his reporting letter was a cardiac examination. His standard cardiac examination involves a respiratory component, where he uses a stethoscope on the patient’s back. Ms. J.V. had moles on her back. She testified that Dr. Sloka spoke about the moles on her back. He did not raise any concern about those moles. He told her everything was fine. Dr. Sloka testified that if he did not notice anything concerning, he would not make note of the moles. Based upon this evidence, I find that Dr. Sloka incidentally observed moles on Ms. J.V.’s back while conducting a cardiac examination. He did not propose and did not perform an independent skin examination.

[4708] Before moving on, I should say one more thing about the “mole check.” Ms. J.V. testified that she told her husband about the mole check. The Crown did not call her husband to support this claim. Assuming, for the moment, that she did mention the “mole check” to her husband, that evidence cannot prove that the mole check was anything other than an incidental observation of moles during her examination. I say this for several reasons. First, that prior report is not admissible for the truth of its contents. Second, Ms. J.V.’s account of her prior report is too vague to support the conclusion that she reported an independent skin examination. Third, Ms. J.V. conceded that the subject of moles may have arisen for the first time during her examination. Fourth, as I will discuss in more detail below, Ms. J.V.’s evidence raises serious concern that her memories and perceptions have been tainted by her review of news articles about Dr. Sloka, which reported on complaints of “mole checks” amongst other things. Only after reviewing news about Dr. Sloka many years after her appointment did Ms. J.V. conclude that something inappropriate may have occurred. The prospect of tainting is in my view significant. The importance of the mole-check to Ms. J.V. clearly became elevated after she read the news. To rebut the prospect of tainting, the Crown relies upon the self-report of the likely tainted witness. While permissible in the abstract, that reliance is untenable. Given the other frailties in Ms. J.V.’s evidence, which will be discussed below, I am not prepared to assign any weight to Ms. J.V.’s self-report of a statement made eight years before her testimony. Accordingly, I continue to conclude that any mention of moles by Dr. Sloka occurred incidentally to his cardiac examination.

[4709] Ms. J.V. and Dr. Sloka part company on issues of lesser importance. On these issues, I am unable to accept the evidence of Ms. J.V., due to my concerns about her reliability.

[4710] Generally speaking, Ms. J.V. showed herself to have a weak memory of her appointment. She could not recall with any precision what Dr. Sloka said when proposing examinations. She did not remember specifics. She ultimately agreed that it was possible that Dr. Sloka proposed and explained the reason for a neurological, cardiac, and breast examination. While initially believing that these discussions occurred in the examination room, she ultimately agreed that most of the discussions may have occurred in Dr. Sloka’s office. Initially, she believed that components of the neurological examination occurred after her breast examination. In cross-examination, she agreed that a full neurological examination may have occurred before her breast examination, although she could not recall some components of Dr. Sloka’s standard neurological examination occurring at all. Ms. J.V. also could not remember Dr. Sloka performing a cardiac examination at all. However, Dr. Sloka made a contemporaneous record of performing one. He did so in accordance with his standard practice with headache patients. Dr. Bril agreed that doing one was reasonable. In the circumstances, I conclude that a cardiac examination did in fact occur, but Ms. J.V. simply forgot about it. This memory lapse is significant, because it involves her forgetting an examination that would have exposed the moles on her back to Dr. Sloka. As already noted, Ms. J.V. also went from believing that Dr. Sloka proposed a “mole check” prior to her examinations to conceding that any discussion of moles may have actually only occurred during an ongoing examination. Ms. J.V.’s recollection of the layout of Dr. Sloka’s office was also inaccurate. Her memory was not refreshed when shown pictures from Exhibit 2. Lastly, I would observe that Ms. J.V.’s appointment with Dr. Sloka assumed no importance in her life in the six years that transpired between the appointment and her first exposure to news about Dr. Sloka. It is entirely understandable that the finer details of her appointment may be lost, degraded, or altered by the passage of time. Accordingly, I conclude that Ms. J.V. has an unreliable memory about the finer details of her appointment.

[4711] I do not accept Ms. J.V.’s evidence about the manner in which Dr. Sloka performed the breast examination. I note that Ms. J.V. had only ever received one other physician-conducted breast examination. All others were routinely self-performed. In my view, there exists the significant potential that Ms. J.V.’s memory of her examination by Dr. Sloka has been influenced by the memory of her own self-examinations. Again, I keep in mind that she had no issues with this breast examination until she saw the news six years later. I also keep in mind that she considered it similar to the one breast examination her family doctor had performed. I also take into account Dr. Sloka’s evidence about the standard manner in which he performs a breast examination. On his account, the inspection portion occurs with the patient sitting up and her breasts exposed. Then the patient lays down for the palpation portion. He examines one side at a time. When examining that side, he pulls down the sleeve on that side and has the patient raise her arm while he palpates. Then he does the same for the other side. Ms. J.V. recalled having her breasts exposed while she sat upright. Ms. J.V. believed that the palpation occurred while she sat upright, but she agreed that she may have laid down on the examination table for a portion of the examination, despite not recalling such a thing occurring. Ms. J.V. also recalled being turned to the side for a portion of the breast examination. Interestingly, Dr. Sloka testified that, during the cardiac examination, he has the patient turn to the side and place her legs lengthwise along the table. It seems highly likely to me that Ms. J.V. has conflated portions of the cardiac examination with her breast examination. I note as well that Ms. J.V. recalled Dr. Sloka removing one sleeve at a time prior to palpating her breasts but maintained that her entire chest was exposed during palpation. And yet, she also concluded that her breast examination was similar to the one performed by her family doctor. Given the general unreliability of her evidence and given the significant potential of media tainting, I am unable to accept Ms. J.V.’s description of her breast examination. Instead, I accept the evidence of Dr. Sloka that any breast examination was performed in accordance with his standard practice.

[4712] For the reasons stated in the section devoted to the general assessment of Dr. Bril’s evidence, I place no reliance on Dr. Bril’s categorical assertion that neurologists do not do breast examinations.

[4713] Dr. Sloka possessed a subjective basis for concluding that other neurologists do in fact perform breast examinations. For example, he relied upon research he conducted in Newfoundland. Also, Dr. Sloka testified that neurologists prescribe birth control medication when treating patients for catamenial migraines and menstrual related seizures. His evidence on that point stood unchallenged and uncontradicted. Dr. Sloka also testified that he had received ample training and possessed ample experience in the performance of breast examinations. That evidence was not challenged. I accept that Dr. Sloka believed it appropriate to perform a breast examination, that a breast examination was medically warranted, and that he performed it in accordance with his training.

[4714] I also note that Dr. Bril’s opinion ignored the whole reason for the referral. Ms. J.V.’s family doctor was clearly seeking advice on birth control recommendations. The evidence adduced at trial established that multiple doctors in Dr. Sloka’s service area sought Dr. Sloka’s advice about birth control prescriptions for migraine patients. The circumstantial evidence supports the conclusion that members of the local medical community sought and received Dr. Sloka’s assistance on issues of birth control with some regularity. The issue of appropriate birth control medication was logically related to an undisputed neurological issue, migraines. The record reveals that he repeatedly openly prescribed birth control medications to patients during birth control referrals. I infer that Dr. Sloka’s inclination to prescribe birth control medication was known and accepted by his local medical community.

[4715] I have allowed the admission of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations on any given patient in this case. However, having considered Dr. Sloka’s evidence within the context of the entirety of the evidence, I am fully satisfied that he has refuted any available inference of a sexual purpose. I turn now to the Crown’s reliance upon three granular cross-count similarities.

[4716] The Crown relies upon three purported similarities between the evidence of other complainants and Ms. J.V. The Crown argues that these similarities cannot be attributed to coincidence. I do not find their submissions persuasive. Their submission fails for two reasons: the likelihood of media tainting and the lack of sufficient similarity. I will discuss each purported granular similarity in turn.

[4717] First, the Crown argues that Ms. J.V. belongs to a constituency of patients whose skin was examined in a state of undress. Ms. J.V. did not allege an independent full skin examination. She ultimately testified that the “mole check” occurred during the course of another examination. In effect, her evidence ultimately aligned with Dr. Sloka’s position that any skin examination was incidental to another examination. Given her description of his identification of moles on her back while her body was turned, I have concluded that the sighting of moles occurred during a cardiac examination. Her case bears no similarity to the complainants who make allegations of independent skin examinations. Moreover, as will be discussed in more detail, I believe Ms. J.V.’s recollection and perception of the mole check has been influenced by her exposure to news coverage of Dr. Sloka.

[4718] Second, the Crown argues that Ms. J.V. belongs to a constituency of patients who claim that Dr. Sloka failed to clearly spell out the nature of the physical examinations he intended to conduct. As has been frequently the case, the Crown erroneously includes Ms. J.V. in this constituency. As already noted, she fundamentally misunderstood the true nature of the referral when first deciding to lodge a criminal complaint after reading about Dr. Sloka in the news. Moreover, by the time her cross-examination ended, Ms. J.V. conceded the possibility that Dr. Sloka identified and explained each examination he intended to perform. If Ms. J.V. shares a similarity with other patients, that similarity is her sparse memory of the nature of the discussions conducted prior to her examinations.

[4719] Third, the Crown argues that Ms. J.V. belongs to a constituency of complainants who alleged that Dr. Sloka told them he wanted to search for moles. Here, I keep in mind Ms. J.V.’s ultimate acknowledgement that the discussion and discovery of moles may have only occurred incidentally to another examination. Accordingly, Ms. J.V. did not ultimately allege that Dr. Sloka prefaced his examinations with a discussion of moles. I also keep in mind that Ms. J.V. actually had moles on her back. In addition, I keep in mind that on Dr. Sloka’s account, he would have viewed her back during a cardiac examination. Next, I keep in mind that Dr. Sloka agreed that he might, as he did from time to time, make comment on moles incidentally observed during other examinations. I also keep in mind that Ms. J.V. testified that Dr. Sloka did not search beyond Ms. J.V.’s torso for moles. All this evidence is consistent with an incidental observation of moles during a cardiac examination. I do not find a compelling similarity to the evidence of some of the other patients. Moreover, I believe that Ms. J.V.’s evidence has been tainted by her exposure to news about Dr. Sloka.

[4720] I turn, then, to the question of media tainting. Ms. J.V. had no concerns between 2013 and 2019. Then, she saw a news story about Dr. Sloka on September 20, 2019, in which she learned that 34 patients had alleged that Dr. Sloka sexually assaulted them. After watching the news, she searched online for more news. In reading about Dr. Sloka, Ms. J.V. learned that patients had complained about improper mole checks and breast examinations. Ms. J.V. testified that, because of reading that news, she came to believe that the examinations performed by Dr. Sloka were outside the scope of his practice. While Ms. J.V. did not specifically recall reading about inadequate draping, news of that allegation was widely available in the media at the time Ms. J.V. did her online research. Now, it must be remembered that Ms. J.V. had believed and still believed at the time of trial that Dr. Sloka’s breast examination was like the one conducted by her family doctor, suggesting the likelihood that there was nothing untoward about the way in which the breast examination was conducted. It must also be remembered that Ms. J.V. had moles present in a location that would be exposed during Dr. Sloka’s cardiac examination. The potential for the innocent discovery and mention of moles was present. It should also be remembered that Ms. J.V. did not recall the true nature of her referral at the time she read the news and made her police complaint. At the time of her complaint, there existed a disconnect between her perception of the nature of the appointment and the conduct of a breast examination. Also, due to the passage of time, Ms. J.V.’s memory about the details of her appointment had significantly diminished – that diminished memory was patently obvious at trial. And now Ms. J.V. was reading about other women complaining about mole checks and breast examinations. In my view, the circumstances gave rise to a significant potential for Ms. J.V. to misperceive and misremember the nature of her appointment. As already discussed above, I do not believe that Ms. J.V.’s account of her discussion with her husband does anything to remove my concerns about tainting.

[4721] I turn now to the Crown’s critiques of Dr. Sloka’s evidence.

[4722] The Crown takes issue with Dr. Sloka’s decision to perform a cardiac examination on Ms. J.V. Their concern is misplaced. Dr. Bril conceded the appropriateness of a cardiac examination. There is no profit in the Crown challenging the appropriateness of the cardiac examination when the Crown’s own expert takes no issue. Dr. Sloka testified that he conducted the cardiac examination as part of his standard approach to headache patients. He also testified that, if he found any cardiac anomaly, he would have advised the family doctor to avoid placing Ms. J.V. back on Imitrex, if her headaches ever returned. Dr. Sloka’s rationale stood uncontested.

[4723] The Crown also argues that Dr. Sloka’s decision to conduct a breast examination was illogical or inconsistent with his standard practice.

[4724] In arguing that a breast examination was illogical, the Crown relies upon Dr. Sloka’s reporting letter in which he did not specifically declare that he prescribed a progestin-only pill, but only recommended it, by saying “she would be a candidate.” The Crown argues that the wording of the reporting letter establishes that Dr. Sloka did not make a prescription for Micronor. The Crown further argues that the justification for a breast examination disappears if Dr. Sloka did not prescribe Micronor. In my view, the Crown’s argument lacks foundation and is illogical. First, the evidence does not establish that Dr. Sloka refrained from prescribing Micronor. The letter is silent on the subject. The fact Dr. Sloka called Ms. J.V. a “candidate” for the drug does not establish that he did not issue a prescription. In asking me to conclude that Dr. Sloka did not issue a prescription, the Crown asks me to speculate. The evidence can neither prove nor disprove that Dr. Sloka issued a prescription. Ms. J.V.’s evidence does not assist the Crown. She did not recall whether she left Dr. Sloka’s office with a prescription. Likewise, Dr. Sloka did not know. Moreover, the absence of a prescription does not logically preclude the advisability or necessity of a breast examination. Dr. Sloka clearly testified that, in furtherance of recommending and prescribing Micronor, he believed a breast examination was indicated, unless the patient informed him that one had already been done in the previous year. Even if he only recommended Micronor, a breast examination would still be indicated. It matters not whether the prescription was made. On Dr. Sloka’s evidence, the examination informed whether he made the recommendation. Following the recommendation, the patient made the decision. Indeed, in Ms. J.V.’s case, as in Ms. Am.E.’s case, multiple options were discussed after the conclusion of examinations. In Ms. Am.E.’s case, she chose the Micronor option. In Ms. J.V.’s case, the trial record is silent on whether Ms. J.V. made a choice in Dr. Sloka’s office. Ultimately, the patient makes the decision after the recommendations are made; and the recommendations are made after the examinations. Once Micronor was being considered, a timely breast examination was indicated. I see nothing illogical about Dr. Sloka’s evidence on this point.

[4725] The Crown also argues that Dr. Sloka’s treatment of Ms. J.V. differed from that of C.C., R.P., K.A.-C., and Am.E..

[4726] In comparing Ms. J.V. to K.A.-C. and Ms. Am.E., the Crown argues that Dr. Sloka deviated from his standard practice by documenting that Ms. J.V. was sexually active. In making this submission, the Crown ignores the distinction between Dr. Sloka asking the question and Dr. Sloka recording information provided to him.

[4727] While Dr. Sloka recorded that Ms. J.V. was sexually active, he did not record how this information was disclosed to him. The trial record provides no insight as to how Dr. Sloka learned that Ms. J.V. was sexually active. It does not establish that Dr. Sloka asked about Ms. J.V.’s sexual activity. Ms. J.V. did not allege that Dr. Sloka inquired into her sex life. Ms. J.V. testified that she discussed past forms of birth control and informed Dr. Sloka that she and her partner were using the barrier method. Dr. Sloka agreed that the topic of Ms. J.V.’s sexual activity arose as they discussed the barrier method and two means of birth control.

[4728] With regard to the evidence of Ms. Am.E., Dr. Sloka agreed that the topic of Ms. Am.E.’s sexual activity arose, but he testified that he did not ask the question. His evidence is regarding Ms. Am.E. is therefore not inconsistent with his evidence about Ms. J.V..

[4729] Similarly, in providing evidence about Ms. K.A.-C., Dr. Sloka denied asking Ms. K.A.-C. whether she was sexually active. Instead, he purportedly asked her whether she was planning on starting a family. He asked the question because he was considering appropriate anti-seizure medications, some of which could potentially cause birth defects. Dr. Sloka’s evidence with respect to Ms. K.A.-C. did not contradict his evidence regarding Ms. J.V..

[4730] The Crown also argues that Dr. Sloka’s approach to R.P. establishes that he knew that the prescription of birth control was not appropriate, and that consequently breast examinations were not appropriate. As noted in the discussion of Ms. Am.E.’s evidence, this submission fails to appreciate the fundamentally different context of Ms. R.P.’s referral. Ms. R.P.’s referral was not a birth control consultation. Ms. R.P. was a lupus patient who was experiencing seizures, amongst other symptoms. The initial referral sought a pre-pregnancy consultation regarding epilepsy medication. Over time, she presented with a wide range of ailments and issues, including lupus, epilepsy, rheumatoid arthritis, migraines, Raynaud’s disease, Sjogren’s syndrome, breast lumps, and restless leg syndrome. She was under the care of multiple physicians. She was a complex patient. Ms. R.P. saw Dr. Sloka 19 times over seven years. Near the end of her care, at an appointment on March 20, 2018, she reported that she was experiencing mood difficulties. Dr. Sloka reported that he thought her mood difficulties might have been associated with her current birth control medication. Rather than prescribe a new birth control medication, he left that issue for her family doctor to sort out. Given the pending allegations against him and the resulting practice restrictions placed upon him, I would have been stunned to hear that he performed a breast examination in the presence of a practice monitor. No adverse inference can be drawn from the failure to do a breast examination. On his evidence, absent an up-to-date breast examination, the prescription of birth control was ill advised. Consequently, no adverse inference can be drawn from the decision against prescribing birth control. In the circumstances, I am not surprised at all that Dr. Sloka confined himself to merely raising with Ms. R.P.’s primary care physician the possible mood implications of her current birth control pill. I am not prepared to infer from Ms. R.P.’s example that Dr. Sloka knew prescribing birth control medications were wrong.

[4731] The Crown argues that Dr. Sloka’s decision to conduct a breast examination was illogical because he had recorded that Ms. J.V. had reported regular yearly breast examinations. That submission ignores Ms. J.V.’s evidence that she told Dr. Sloka that she had not received a breast examination in “a while.” The submission also ignores the fact that Dr. Sloka’s reporting letter did not indicate when Ms. J.V. had last received a breast examination. The notation that Ms. J.V. receives yearly breast examinations could not, as a matter of logic, establish whether Ms. J.V. was up to date on her breast examinations, due for a breast examination, or overdue for a breast examination. In the absence of clarification from Ms. J.V. or Dr. Sloka, the court is not in a position to conclude a breast examination was unwarranted.

[4732] The Crown also argues that Dr. Sloka’s failure to chart a breast examination proves that he concealed the breast examination, thereby proving that he knew a breast examination was improper. This proposition was never put to Dr. Sloka in cross-examination. This submission also directly contradicts the submission the Crown makes with Ms. Am.E., where the Crown argues that, by reporting the breast examination, Dr. Sloka showed that he knew it was wrong and was attempting to cover up its sexual nature by reporting it. In my view, the Crown cannot have it both ways. This submission is one example of many in this case where the Crown betrays a tendency to perceive meaningful connections or patterns in random or meaningless facts. There is a word for that: apophenia.

[4733] That same tendency can be revealed in the Crown’s dueling submissions about Ms. J.V.’s expectations about the examination. On the one hand, the Crown argues that Dr. Sloka “led Ms. J.V. to believe that a breast examination was routine.” On the other hand, the Crown argues that Ms. J.V. was “expecting a neurological assessment, not a breast examination.” Both submissions cannot be true. As it happens, neither are fully true. At the time she made her police statement, she had completely forgotten that she was referred for a birth control consultation. When initially lodging her criminal complaint, she thought the appointment was a migraine consultation. It was not. Only after reviewing her medical records in preparation for trial, did she appreciate the true nature of the referral. By then of course, she had previously committed herself to a perception and narrative. Understandably, then, her perception and narrative evolved during cross-examination. At one point in cross-examination, she testified, “I understood that with the migraines that I was having and experiencing, that hormones play into that and so that potentially could be a test that a neurologist had to do and that was just part of the assessment.” This evidence was inherently problematic, though, because she had already conceded by this point that she had been migraine free for two years. The appointment was not a migraine referral. Ms. J.V.’s perception that the breast examination was tied to a neurological investigation into her headaches was inextricably tethered to her misperception that the appointment was a migraine referral. Ultimately, cross-examination revealed that Ms. J.V. could not recall with precision what Dr. Sloka said to her when proposing and explaining examinations. By the time cross-examination was over, she had conceded the possibility that Dr. Sloka had explained the relationship between birth control recommendations and breast examinations. In effect, she had conceded the possibility that she did in fact expect a breast examination – and a neurological examination, and a cardiac examination. She also conceded the possibility that Dr. Sloka explained the reasons for these examinations. And she conceded the possibility that the proposed breast examination was referral-specific, related to birth control recommendations – not simply a component of a standard neurological examination. Consequently, the evidence does not support the Crown’s contention that Dr. Sloka led Ms. J.V. to believe that a breast examination was a routine part of a neurological examination. Likewise, the evidence does not support the contrary proposition that Ms. J.V. was expecting a neurological examination, not a breast examination.

[4734] When all is said and done, I find the Crown’s critiques of Dr. Sloka’s evidence lack merit.

[4735] Based on the evidence of Dr. Sloka’s reporting letter, Dr. Sloka’s sworn evidence, and the evidence of Ms. J.V., I am satisfied that Dr. Sloka obtained Ms. J.V.’s history, then proposed and explained taking her vital signs and doing neurological, cardiac, and breast examinations in furtherance of his birth control consultation. Ms. J.V.’s evidence gives me no reason to believe otherwise. I am also satisfied that Ms. J.V. consented to these examinations. I accept Dr. Sloka’s evidence that any examinations performed were performed for a valid medical purpose. And I accept Dr. Sloka’s implicit denial of a sexual motive. I am also satisfied that Dr. Sloka conducted his examinations in accordance with his training and experience. In addition, I am satisfied that, at the very least, Dr. Sloka made birth control recommendations that were based upon Ms. J.V.’s history and examination results. In short, I am satisfied that Dr. Sloka accomplished what the referral asked him to accomplish and that he did so through what he believed to be medically appropriate means. I am not satisfied that the Crown has shown Ms. J.V.’s appointment to be anything other than a medical appointment in which Dr. Sloka performed what he considered to be medically warranted examinations in a medically appropriate manner. The Crown has not established that Dr. Sloka engaged in sexual activity. Ms. J.V. was not the victim of a sexual assault. She was the recipient of a medical examination.

[4736] Dr. Sloka will be acquitted on this count.

H. Leg, Bowel and Bladder Issues

i. K.L.G. (Count 48)

A Summary of Ms. K.L.G.’s Complaint and Dr. Sloka’s Response to It

[4737] Ms. K.L.G. was experiencing pain, weakness, and feelings of paralysis in her legs, beginning on the left leg. She also complained about changes in her bowel and bladder. She complained about two incidents. She alleged that at her first appointment, Dr. Sloka instructed her to lower her gown during an examination to test her sensation to touch. He subsequently touched the bottom of her breasts in a swooping motion when testing her torso for sensation. Ms. K.L.G. also alleged that, at her fourth appointment, Dr. Sloka conducted a pelvic examination. She testified that Dr. Sloka pressured her to submit to the pelvic examination, and he made her uncomfortable. She also alleged that Dr. Sloka proposed a rectal examination, which she declined.

[4738] Dr. Sloka agreed he conducted a full neurological examination at Ms. K.L.G.’s first appointment, which he agreed would involve testing for sensation. However, he denied that he asked Ms. K.L.G. to expose her torso for the sensation examination. In addition to the neurological examination, Dr. Sloka conducted a cardiac examination. During the cardiac examination, Ms. K.L.G.’s exposed her left breast. Dr. Sloka admitted to the possibility of incidental accidental contact when performing the cardiac examination. Dr. Sloka also admitted to performing a pelvic examination at a subsequent appointment, but he insisted that this examination occurred at Ms. K.L.G.’s second appointment, not her fourth. He denied exerting any pressure on Ms. K.L.G. He believed he may also have performed a perineal sensation examination, and he may have offered a rectal examination too. On his evidence, these examinations were offered because Dr. Sloka wanted to find evidence of any pathology in the pelvis that might impact the nerves servicing Ms. K.L.G.’s bowel, bladder, and legs.

The Circumstances of Ms. K.L.G.’s Referral and Treatment History

[4739] Ms. K.L.G.’s family doctor, Dr. Klomfass, sought an urgent consultation, writing, “Would you please see this patient who presents with a 10-week history of progressive weakness starting in the L ankle, knee, and hip and now presenting with bilateral symptoms. She has feelings of intermittent paralysis where she ‘cannot move her leg.’” The family doctor wanted Dr. Sloka to assess whether her symptoms were the result of a neurological pathology. By the time of the referral, the family doctor had already ordered bloodwork to explore non-neurological causes and obtained negative/normal results. The family doctor also ordered an MRI in anticipation of the neurological referral. He made the referral to Dr. Sloka on December 1, 2014. Ms. K.L.G. was 23 years old at the time.

[4740] Ms. K.L.G. ultimately saw Dr. Sloka eleven times. The first visit occurred on December 9, 2014. The last visit occurred on March 27, 2018. During that period, Ms. K.L.G.’s circle of care included Dr. Klomfass, Dr. Dittmer (a sports medicine doctor), Dr. Aieny (a pain specialist), and three physiotherapists. Dr. Sloka corresponded with all three doctors at points during Ms. K.L.G.’s care.

The Evidence of Ms. K.L.G.

[4741] Ms. K.L.G.’s fist appointment with Dr. Sloka occurred on December 9, 2019.

[4742] Being an urgent consultation, Ms. K.L.G.’s first appointment occurred after hours, at 5:30 p.m. Dr. Sloka’s secretary was gone for the day. Ms. K.L.G. brought her mother to the appointment.

[4743] Dr. Sloka retrieved Ms. K.L.G. and her mother from the waiting room and brought them into his office. In the office, Dr. Sloka took her medical history. Upon a review of the medical history contained in Dr. Sloka’s consultation letter, Ms. K.L.G. agreed with the accuracy of the history reported by Dr. Sloka. By the time of this appointment, her leg weakness had improved significantly, but she suffered from pain in her left knee and left hip. The hip pain radiated down her leg. The pain worsened with use. Ms. K.L.G. also reported increased stool frequency and increased bladder-voiding frequency, including voiding three times nightly. However, she denied any saddle anesthesia. Ms. K.L.G. also reported a change in her menstrual cycle in the last three months.

[4744] Ms. K.L.G. believed that Dr. Sloka had mentioned the possibility of MS or ALS at either her first or second appointment, but she was prepared to accept that he did not mention this concern at her first appointment.

[4745] Ms. K.L.G. testified that, after taking her history, Dr. Sloka proposed a physical examination. She believed he had mentioned testing for sensitivity and range of motion testing. In cross-examination, Ms. K.L.G. acknowledged that Dr. Sloka may not have conducted range of motion tests at this visit. She had partaken in range of motion tests on many occasions and may have confused another occasion with this appointment. In any event, Ms. K.L.G.’s remembered Dr. Sloka telling her that she would need to remove all clothing but her underwear and get into a gown. He directed both Ms. K.L.G. and her mother into the examination room and he provided her a gown. He had no issue with her mother being present for the examination. After giving her the gown, he gave her privacy to change.

[4746] Ms. K.L.G. wore her gown open to the back. She did not remember Dr. Sloka instructing her to wear it this way, but this is the way she wore it.

[4747] When Dr. Sloka returned to the examination room, he commenced with a neurological examination. Ms. K.L.G. did not remember Dr. Sloka performing every step of his standard neurological examination, but she agreed that he may have done so.

[4748] Ms. K.L.G. purported to specifically remember the sensation examination. As she recalled it, he began with her feet and moved up the outside of her lower leg and thigh, lightly swiping her skin with his fingers as he progressed. When he arrived at her hip bone, he pulled the gown from around the back, exposed her entire torso, and then ran his fingers up the side of her torso. He also swiped from the centre of her upper chest to both sides. He also swiped down the middle of her abdomen. And he also swiped from the centre of her upper abdomen to her sides. When swiping at her upper abdomen, he swiped his fingers beneath her breasts and contacted the bottom of her breasts. As he worked his way up, he identified the point at which she started to have normal sensation, which was around the armpit area [t4-t5 vertebrae].

[4749] Defence counsel suggested to Ms. K.L.G. that her upper body was not exposed during the sensory examination, but during a subsequent stethoscope (cardiac) examination. She disagreed.

[4750] In cross-examination, Ms. K.L.G. agreed that, prior to trial, she had never alleged that Dr. Sloka had exposed her torso or contacted her breasts at her first appointment. She made no mention of improper draping, breast exposure, or breast touching in either her written CPSO complaint or her subsequent audio-recorded oral statement. Indeed, she made no complaint at all about her first appointment. In her audiotaped interview, she failed to mention any concerns about her first appointment, even though she had taken ample time to reflect upon her concerns about Dr. Sloka, even though she was aware of complaints that mirror what she later alleged at trial, even though knew her complaint was a serious matter that could lead to Dr. Sloka losing his licence, and even though she knew it was important to be complete, accurate, and honest.

[4751] To explain the omission of her breast-touching complaint, Ms. K.L.G. testified that no one specifically asked about it. However, CPSO investigators had specifically asked her to mark on a diagram where she had been touched. That diagram was made an exhibit at trial. In that diagram, she did not mark her breasts. Instead, she marked horizontal lines beneath her breasts in the upper area of her abdomen, leaving a clear gap between the marks and her breasts. Ms. K.L.G. acknowledged the omission. To explain, she testified that she thought investigators were asking whether Dr. Sloka had grabbed or groped her breasts, thereby contradicting her earlier position that she was not specifically asked about it and contradicting her admission that investigators had asked her to mark where Dr. Sloka had touched her.

[4752] While Ms. K.L.G. did not remember it, she conceded that Dr. Sloka may have conducted a cardiac examination using a stethoscope. She agreed that Dr. Sloka may have asked her to untie and lower the left side of the gown to facilitate the cardiac examination. She also agreed that Dr. Sloka may have performed a respiratory examination, during which he may have asked her to lower the front of her gown to listen to her chest.

[4753] After her examinations, Dr. Sloka departed to allow her to get dressed. She and her mother then rejoined Dr. Sloka in his office.

[4754] Ms. K.L.G. did not remember many of the specifics of their discussion in the office, but she did not take issue with the information reported in the “Impression” portion of Dr. Sloka’s consultation letter. Dr. Sloka had identified a largely left-sided weakness and pain syndrome associated with spinal cord level T5. Dr. Klomfass had already ordered an MRI of her lumbar spine. Dr. Sloka ordered an additional MRI of her thoracic spine. He also ordered bloodwork, EMG studies, and evoked potential studies. In addition, he ordered a pelvic ultrasound. Ms. K.L.G. did not remember much of this discussion, but she remembered Dr. Sloka ordering an MRI and remembered the discussion of her decreased sensation. Although, Ms. K.L.G. had believed that Dr. Sloka may have mentioned a concern about MS or ALS at this appointment, she agreed in cross-examination that he may not have raised the issue here. Even if he did not mention it at this appointment, Ms. K.L.G. testified that she was terrified about the prospect of having one of these diseases. By the end of the appointment, she remained terrified. Ms. K.L.G. planned to see Dr. Sloka in follow-up once her tests were completed.

[4755] Leaving the appointment, she purportedly felt that her examination had been weird. She had never been exposed for such a long duration. She and her mother both talked about it. She thought Dr. Sloka had perhaps become desensitized to examinations and thought Dr. Sloka appeared very focussed during his examinations. Consequently, she and her mother brushed off their initial misgivings.

[4756] The Crown did not call Ms. K.L.G.’ mother as a witness.

[4757] Ms. K.L.G. believed that she had attended a couple of intervening appointments before receiving a pelvic examination from Dr. Sloka. In her memory, the pelvic examination occurred a few months after the first appointment, in the spring of 2016. She testified that the examination occurred after she had ceased relying on a cane. As she recalled it, in December of 2016 and January of 2016, she could not walk without the assistance of a cane. Afterwards, physiotherapy helped her regain her ability to walk without a cane, albeit poorly. Ms. K.L.G. did not believe that Dr. Sloka examined her at the second and third appointments. With this framing in mind, Crown counsel did not take Ms. K.L.G. through the events of the second and third appointments.

[4758] Defence counsel took Ms. K.L.G. through the events of the second appointment, using Dr. Sloka’s consultation letter to aid in the discussion.

[4759] The second appointment occurred on December 22, 2014. She attended the appointment with her boyfriend. Ms. K.L.G. agreed that the appointment took place in Dr. Sloka’s office. She agreed that Dr. Sloka reviewed all her test results with her. All results were normal. In his consultation letter, Dr. Sloka reported that she had pain on external rotation of her hip. Defence counsel explored Ms. K.L.G.’s memory about discussions with Dr. Sloka about the nerves running through Ms. K.L.G.’s pelvis and lower body. Initially, she was unable to recall specific discussions, but she agreed that it was possible Dr. Sloka discussed the possibility of an issue in her lower body and a discussion of her bladder and bowel functioning. She also did not remember Dr. Sloka suggesting that there could be a pelvic origin for the issues she was experiencing in her legs. However, Ms. K.L.G. eventually remembered Dr. Sloka taking out an anatomy book and showing her how nerves run through the body. She recalled him telling her that nerves group together in the pelvis before branching off. She recalled him saying those nerves control sensation. She agreed it was possible that he mentioned that some of these nerves control bowel and bladder. He mentioned that her issues could all be connected. She agreed it was possible that he told her that damage in the pelvic region can affect the function of the nerves that run through the pelvis. He suggested the possibility that something going on in pelvis that might explain all her symptoms.

[4760] Despite acknowledging a thorough discussion regarding the nerves that run through her pelvis and that service her bladder, her bowels, and her legs, Ms. K.L.G. denied that Dr. Sloka suggested a bimanual pelvic exam to rule out masses or other issues with the nerve bundle that might explain her problems. Ms. K.L.G. did not believe that Dr. Sloka either proposed or conducted a pelvic examination at this appointment. She maintained a belief that the pelvic examination occurred at her fourth appointment.

[4761] When Ms. K.L.G. provided her CPSO statement, she did not have the benefit of her medical records when attempting to pinpoint the timing of the pelvic examination. At that time, she estimated that the pelvic examination occurred in 2015 or 2016. After receiving her medical records to prepare for trial, she reviewed Dr. Sloka’s consultation letters and decided that Dr. Sloka conducted the pelvic examination on the fourth appointment, which occurred on May 21, 2015. In cross-examination, she testified that she chose this date because she believed that the pelvic examination occurred on the last appointment that her boyfriend attended and because she believed that it was one of the last appointments before she saw Dr. Dittmer. She initially saw Dr. Dittmer on July 15, 2015. Neither of these anchors were mentioned in Ms. K.L.G.’s evidence in-chief or her CPSO statement.

[4762] Ms. K.L.G.’ boyfriend attended at her second, third, and fourth appointments, but Ms. K.L.G. was adamant that Dr. Sloka did not examine her at her second appointment. The second appointment was the first one for which her boyfriend attended. She was certain that the examination did not occur during her boyfriend’s first attendance.

[4763] In her CPSO statement, Ms. K.L.G. told investigators that she had already seen Dr. Dittmer by the time the pelvic examination occurred. Seeing this contradiction, Ms. K.L.G. testified that she made an error when speaking to investigators, which a review of the medical records helped rectify. However, Dr. Sloka’s consultation letter from May 21, 2015, makes no mention of any examination whatsoever – indeed, Dr. Sloka wrote that he deferred examination on that date.

[4764] Ms. K.L.G. also testified that she still felt like she was going to die by the time of the pelvic examination. However, Dr. Sloka’s consultation letter from March 6, 2015, noted that she had reported “some improvement” since her appointment in December. Also, Ms. K.L.G. left a message at Dr. Sloka’s office on March 11, 2015, in which stated “… better today, doesn’t feel appt required. She will monitor her symptoms.” This message was reduced to writing by Dr. Sloka’s secretary and included in Ms. K.L.G.’s medical file (tab 18). She did not recall leaving this message but did not dispute it. Further, Dr. Sloka’s consultation letter from May 21, 2015, noted that Ms. K.L.G. had reported, “She has had some more improvement over the past 2 months and that is good news. Her physiotherapist feels that she has plateaued, but she feels that she continues to improve slowly over time.” Ms. K.L.G. did not dispute the accuracy of the reports Dr. Sloka attributed to her. However, she still maintained that she felt like she was going to die at her fourth appointment: “No, I definitely still felt bad at this time. … I definitely still thought I was going to die – at any point.”

[4765] Later in Ms. K.L.G.’s cross-examination, she maintained her belief that the pelvic examination occurred at the fourth appointment, but she ultimately conceded that it may have in fact occurred on another day.

[4766] Leaving aside the timing of the pelvic examination appointment, I will now turn to Ms. K.L.G.’s memory of what transpired during the pelvic examination appointment.

[4767] The appointment began with a discussion in Dr. Sloka’s office. As noted, Ms. K.L.G.’ boyfriend was present for that discussion. In her examination in-chief, she gave little insight into the nature of the discussion. In cross-examination, she confirmed that she did not remember what Dr. Sloka may have said before proposing a pelvic examination. She did not, for example, remember him reviewing any test results with her. She also did not remember him inquiring about bladder incontinence, but she seemed very unsure. However, she stated that she was no longer experiencing bladder incontinence by this appointment.

[4768] Dr. Sloka proposed a pelvic and rectal examination. Ms. K.L.G. did not remember whether he also proposed a perineal examination. Ms. K.L.G. remembered Dr. Sloka explaining that he wanted to examine her for pelvic floor weakness, saying that it can be connected to sciatic pain. She did not remember whether he told her that he wanted to search for masses and any areas of obvious pain, but she agreed it was possible. She denied that Dr. Sloka discussed the nerves that passed through the pelvis. She did not remember him saying that he wanted to check the tone of her anal sphincter.

[4769] Ms. K.L.G. testified that she initially refused both examinations and told him about the basis for her refusal. The Crown explored the basis for her refusal. I quote her stated thought process, because it is important for what it initially leaves out:

For a few reasons. So, I have always have like my PAPs are internal is done like a female practitioner. That’s the only way that I feel comfortable having them done. I also didn’t feel that it was necessary. I had recently just had an examination a few months prior that indicated no problems. And I actually previously discussed with a physiotherapist of mine if, you know, pelvic floor issues could ever – had come up. It’s something that he and I had discussed at his clinic, and he had indicated that that is not something that he thought was connected to what I was experiencing.

[4770] To sum up: Ms. K.L.G. did not want a pelvic examination because she had a female do her PAP tests, she recently had a PAP test, and her physiotherapist had discussed pelvic floor weakness with her and did not think pelvic floor weakness could explain her issues. Nowhere did Ms. K.L.G. suggest MRI results factored into her thought process.

[4771] The Crown then followed up with this leading question: “When you said that you had had an exam earlier that didn’t indicate any problems, were you referring to the pelvic MRI or the PAP smear?” Ms. K.L.G. replied, “Both.”

[4772] As it happens, Ms. K.L.G. attended for her pelvic MRI one month after her second appointment, on January 29, 2015. If the pelvic examination occurred at the second appointment, as suggested in Dr. Sloka’s consultation report from that date, the pelvic MRI results were unavailable and could not have factored into her thought process. Also, as can be seen from Ms. K.L.G.’ quoted answer, at least one other professional raised the topic of pelvic floor weakness with her, giving rise to the potential that she conflated her discussions with different professionals.

[4773] Ms. K.L.G. testified that Dr. Sloka responded by pressuring her to agree to the examination. He purportedly told her that he really believed the examination was necessary to find out what was going on. Ms. K.L.G. reportedly stood her ground.

[4774] According to Ms. K.L.G., Dr. Sloka looked irritated. And he continued to explain why he felt the examination was necessary.

[4775] Ms. K.L.G. testified that she gave into Dr. Sloka’s pressure but told him that she would only agree to the pelvic examination, not the rectal examination. She also insisted that her boyfriend be present. According to Ms. K.L.G., Dr. Sloka again looked irritated. On her evidence, Dr. Sloka refused to agree to her boyfriend being present for the examination. He said that this was not something that they would normally allow. She purportedly told Dr. Sloka that she would not participate in the examination unless her boyfriend was present. At that point, Dr. Sloka agreed to allow her boyfriend to be present. I should note here that, on her evidence, her boyfriend had been present for this entire discussion. I should also note that Crown did not call her boyfriend as a witness.

[4776] Ms. K.L.G. testified that she and her boyfriend then went into the examination room to put on a gown. She testified that she told her boyfriend that she did not really want to participate in the examination. He told her she need not participate. She purportedly replied that she felt she needed to do it. Once again, the Crown did not call the boyfriend.

[4777] Once Ms. K.L.G. got changed into her gown, Dr. Sloka returned and asked her to lay down on the examination table. She complied and he put on gloves for the examination. She drew her knees up with her feet planted on the table, as instructed. He let her know when the examination was about to begin and cautioned that she may feel discomfort. He then inserted two fingers into her vaginal cavity, while applying pressure with his other hand on the surface of her lower abdomen just above her pubic bone. The examination was quick, perhaps lasting a minute.

[4778] When he finished the pelvic examination, Dr. Sloka told her that he did not find anything. He then repeated his request to do a rectal examination.

[4779] Ms. K.L.G. testified that she grew very angry. She told him no. He persisted, though. He tried to explain the medical necessity of the rectal examination, cautioning that something might be missed. Ms. K.L.G. held firm. She testified that she scooted back on the examination table and told him, “Absolutely not.”

[4780] Dr. Sloka then told her she could get dressed, before departing the room to give her privacy.

[4781] After she got dressed, she returned to the office, where Dr. Sloka and her boyfriend were waiting. According to Ms. K.L.G., Dr. Sloka then tried to persuade her and her boyfriend that the pelvic examination was medically necessary and that it was a good thing that he had performed it. Ms. K.L.G. testified that his efforts here raised a red flag in her mind. According to her, he did not discuss his findings. They simply agreed to meet again in a follow-up visit.

[4782] Ms. K.L.G. testified that, as she departed the appointment, she felt violated and spoke to her boyfriend about it. However, she did not make any formal complaint, because she did not know how to make one. She testified that she tried very hard to convince herself that the examination was not improper, and to push it out of her mind.

[4783] According to Ms. K.L.G., she continued to see Dr. Sloka because she did not feel like she had other options. Her family doctor had been very unhelpful to her.

[4784] The Crown asked Ms. K.L.G. to explain why she did not report concerns about Dr. Sloka to someone in her circle of care. Ms. K.L.G. testified that her circle of care at that time only included her family doctor, her physiotherapist and Dr. Sloka. She said that she did not have a good rapport with her family doctor.

[4785] Later in her treatment, a chaperone oversaw Ms. K.L.G.’ appointments with Dr. Sloka. She could not remember when this began. Ms. K.L.G. testified that Dr. Sloka gave no explanation about the woman’s presence. He only asked if Ms. K.L.G.’s was agreeable to her observing the appointment. Ms. K.L.G. assumed the woman was a student or a resident.

[4786] According to Ms. K.L.G., Dr. Sloka never informed her that he had been placed under practice restrictions. She never saw any signage in his office and his office never sent her any written notification.

[4787] On July 11, 2018, Ms. K.L.G.’ mother sent her a news article about Dr. Sloka on the day of its publication, which she identified at tab 1 of the media brief. The article’s headline read, “Grand River Hospital Neurologist Facing Sex Assault Allegations.” The article covered three of the original CPSO complaints against Dr. Sloka. Ms. K.L.G. testified that the article mentioned allegations of improper draping and patients being told to completely undress for examinations. The article also mentioned inappropriate breast touching. The article also mentioned that the CPSO had placed Dr. Sloka under practice restrictions. After reading this article, Ms. K.L.G. visited the CPSO website to read more about Dr. Sloka.

[4788] On the CPSO website, Ms. K.L.G. read the content of Dr. Sloka’s undertaking, which detailed his practice restrictions. The restrictions prohibited Dr. Sloka from being alone with patients, required him to post signage throughout his office, and required a chaperone for patient encounters. Ms. K.L.G. also read the Notice of Hearing, which contained a summary of the allegations made against Dr. Sloka. She agreed that she wanted to obtain as much information as possible about the allegations against Dr. Sloka.

[4789] Ms. K.L.G. also spoke to her mother after reading the allegations in the news. According to Ms. K.L.G., they discussed how the allegations in the media were similar to her own experience. Her mother urged her to lodge a complaint.

[4790] Ms. K.L.G. also spoke to her boyfriend, and they too discussed the similarity of the allegations in the media to her own experience.

[4791] Ms. K.L.G. also read comments on her Facebook feed, made in connection to the news article her mother had sent her, as well as in connection to subsequent articles. After reading the allegations against Dr. Sloka and reading the comments of other patients, Ms. K.L.G. reconsidered the validity of her own examinations.

[4792] Ms. K.L.G. publicly posted her own Facebook comment in connection to a CTV article from July 18, 2018. She immediately deleted the comment, because she realized she should not comment about the case and that commenting “could work against me.” Another Facebook user, Barb Leigh replied to her comment. That reply remained on Ms. K.L.G.’s feed. However, the reply did not fully describe the content of Ms. K.L.G.’ original comment. Ms. K.L.G. purportedly did not remember the content of her comment, including whether she described her own allegations against Dr. Sloka.

[4793] Ms. K.L.G. ultimately did not author her written complaint to the CPSO until August 2, 2018. She testified that she wanted to reflect on whether she wanted to come forward. She maintained that she knew her experience was comparable to that of other complainants, but she did not want to allow herself to believe her experience was sexual abuse. As she reflected over several weeks, she spoke to her mother and her boyfriend. Her boyfriend was supportive. Her mother urged her to lodge a complaint.

[4794] After several weeks, Ms. K.L.G. decided that was ready to write her complaint. She had ample time to formulate her written complaint. When she authored the complaint, she put in what she thought was required, at bare minimum. She made what she thought were the important points. In her written complaint, she identified three areas of concern:

(1) She had not been informed by letter or by posted signage in Dr. Sloka’s office that Dr. Sloka had been placed under practice restrictions.

(2) Dr. Sloka had not been transparent about the reason for the presence of the practice monitor.

(3) “Potential concern for pelvic exam performed before 2017.” Specifically, “I would like clarification if pelvic exams are something typically performed by neurologists and if Dr. Sloka had justified medical reason in this specific instance.”

[4795] In this complaint, Ms. K.L.G. wrote that, at the time of her examination, she thought the pelvic examination was “simply weird and unusual.” This statement contradicted Ms. K.L.G.’s trial testimony that she contemporaneously felt that the examination was traumatic and abnormal. Ms. K.L.G. went on to write that, at the time of the written complaint, she had come to realize that the pelvic examination (as well as her other complaints) now seemed to be linked to “more severe, ongoing incidents experienced by others.” She thereby tied her recent perception to her review of other patient complaints published in the media and on the CPSO website.

[4796] Ms. K.L.G. testified that, even at the time she lodged her written complaint, she was in denial. She was still not sure she had been sexually abused. Nevertheless, she also insisted that she felt from “day one” that Dr. Sloka ought not to have performed the pelvic examination. However, she purportedly downplayed how she was feeling when she wrote her initial complaint to CPSO. She hoped the CPSO would be able to confirm her suspicions.

[4797] Ms. K.L.G.’s written CPSO complaint did not contain any allegation of improper draping, and it did not contain any allegation of breast touching. It mentioned no concern at all about her first appointment.

[4798] On August 23, 2018, a CPSO investigator called Ms. K.L.G. and asked her to participate in an interview. Ms. K.L.G. agreed. The interview took place on September 5, 2018. When Ms. K.L.G. provided her statement, she knew she was participating in a formal investigation, which could lead to professional discipline and the revocation of Dr. Sloka’s licence. She knew it was important to be honest, complete, and accurate. However, she made no allegation that Dr. Sloka touched her breast or exposed her breasts at her first appointment. Indeed, Ms. K.L.G. made no mention of any concerns about her first appointment.

[4799] In advance of Dr. Sloka’s discipline hearing, the CPSO informed her that the matter would be resolved with a no-contest plea and the revocation of Dr. Sloka’s licence.

[4800] On the day of Dr. Sloka’s hearing, April 30, 2019, in a private Facebook post, viewable only to her friends and family, Ms. K.L.G. shared screenshot (or link) of a CTV news article titled, “Kitchener Neurologist Loses Licence Over Sex Assault Allegations.” She posted the same screenshot on her Instagram story that same day. Ms. K.L.G. wanted her family and friends to know what she was going through, to control her own narrative, and to show other people that they could come forward with complaints about what they had experienced.

[4801] Ms. K.L.G. testified about two people who reached out to her because of her post about the results of Dr. Sloka’s disciplinary hearing. One of them was her friend, K.M. K.M. The other was V.S.

[4802] According to Ms. K.L.G., Ms. K.M. told Ms. K.L.G. that one of her own friends had also been a patient of Dr. Sloka’s and had shared with Ms. K.E. details of her allegations. Ms. K.L.G. testified that she was unaware of the details of those allegations.

[4803] In her evidence in-chief, Ms. K.L.G. testified that Ms. V.S. replied to her Instagram post, stating that Dr. Sloka was also her doctor. Ms. K.L.G. claimed that she shared with Ms. V.S. very vague details about her own allegations and that Ms. V.S. alleged that Dr. Sloka touched her breasts. Ms. K.L.G. also testified that they shared news articles about Dr. Sloka and exchanged additional comments about them. Ms. V.S. also sent Ms. K.L.G. a copy of a complaint letter she intended to send to the CPSO.

[4804] In cross-examination, defence counsel took Ms. K.L.G. to records of her Instagram messages, which she had provided to the police. Those messages begin with an undated message from Ms. V.S., showing an image of an envelope addressed to the CPSO, followed by a caption, “just gotta find a stamp and it’s done.” On May 1, 2019, one day after the post that purportedly inspired Ms. V.S. to reach out to Ms. K.L.G., Ms. V.S. informed Ms. K.L.G. that her caseworker called to say that there was nothing more that the CPSO would be doing now that the hearing had concluded. Ms. K.L.G. agreed that it was unlikely that Ms. V.S. could have obtained a caseworker one day after posting a photograph of an envelope she had yet to mail. The obvious implication was that Ms. V.S. did not reach out to Ms. K.L.G. in response to Ms. K.L.G.’s April 30th post but had instead connected with Ms. K.L.G. at some earlier point. However, Ms. K.L.G. insisted that Ms. V.S. first contacted her in response to Ms. K.L.G.’ April 30th post.

[4805] Ms. K.L.G. testified that she was pleased with the revocation of Dr. Sloka’s licence and did not believe she wanted to proceed further with a police complaint. Nevertheless, Ms. K.L.G. had decided to obtain a copy of her medical records from her family doctor and to review them. Upon review of Dr. Sloka’s consultation letters, she concluded that her pelvic examination must have occurred at the fourth appointment. However, Dr. Sloka had reported that he deferred an examination at this appointment. Ms. K.L.G. concluded that Dr. Sloka had lied to cover up the pelvic examination. This conclusion prompted her to lodge her complaint with the police.

[4806] Ms. K.L.G. contacted the police on May 10, 2019. Then, in the summer of 2021, she took part in a trial preparation meeting. At that meeting, Ms. K.L.G. was cautioned against speaking to any other witnesses or complainants. Ms. K.L.G. then disclosed her prior communications with Ms. V.S. At that juncture, she claimed that their discussions were limited to minor details, like confirming contact with the Victim Witness Assistance Program. Ms. K.L.G. then became upset. She was concerned she would get in trouble for speaking to Ms. V.S. and said, “It’s not my fault that I know her.”

[4807] After the witness preparation meeting, Detective Gilker interviewed Ms. K.L.G. on the telephone about Ms. V.S. Ms. K.L.G. told Detective Gilker that Ms. V.S. was a friend and former patient of Dr. Sloka who had also complained about Dr. Sloka’s behaviour. She told Detective Gilker that they met at a “car meet” when Ms. K.L.G. was speaking to a friend about the case. She believed that Ms. V.S. must have overheard her talking about Dr. Sloka. Ms. K.L.G. testified that she was panicked during the interview. She admitted that what she told Detective Gilker was untrue. It was a deliberate lie. Acknowledging this lie at trial, Ms. K.L.G. insisted that her first contact with Ms. V.S. occurred when Ms. V.S. messaged her in response to her April 30th Instagram post.

[4808] During her interview with Detective Gilker, Ms. K.L.G. told the detective that she and Ms. V.S. did not discuss their respective allegations. Instead, they discussed procedural matters, like his arrest and bail. Detective Gilker asked her to pull up their messages. She pulled out her phone during the interview and looked for messages. At the time, she stated, “so far, just two.”

[4809] Ms. K.L.G. subsequently produced 37 screenshots of messages and sent them by email to Detective Gilker. Those screenshots did not include Ms. V.S.’s initial outreach to Ms. K.L.G., her declaration that she too was a patient, or that she too had been a victim of Dr. Sloka. The messages produced obviously do not begin at the commencement of their relationship.

[4810] When questioned about the incompleteness of her messaging history with Ms. V.S., Ms. K.L.G. testified that she had scrolled through the message history quickly and “as much as possible,” but reached a point where additional messages would not load immediately. She failed to wait and allow the remainder of the messages to load.

[4811] After reviewing the screenshots, Detective Gilker emailed Ms. K.L.G. and said that she was having trouble placing the screenshots in order. She asked Ms. K.L.G. to have each screen shot begin with the last line from the previous screenshot, so that the continuity of the messages could be assured. Ms. K.L.G. replied fifteen minutes later, saying that she had excluded messages that were unrelated to the case. Ultimately, she never sent Detective Gilker the complete correspondence between her and Ms. V.S. According to Ms. K.L.G., she accidentally deleted her entire correspondence with Ms. V.S. Ms. K.L.G. testified that, in an extreme state of panic, she decided to delete many of her conversation histories on Instagram. According to Ms. K.L.G., she accidentally deleted Ms. V.S.’s conversation thread when deleting other conversations. She said that she knew this had already occurred when Detective Gilker had emailed to ask for the complete chronological message thread, but she did not tell her. Ms. K.L.G. waited a day to tell Detective Gilker about the deletion because she was scared. She was worried people would question her motives. She was right to worry.

[4812] In a phone call to Detective Gilker the day after deleting the messages, Ms. K.L.G. provided a different explanation for the accidental deletion than the one she provided in her testimony. She told Detective Gilker that she accidentally deleted the messages in the process of trying to get better screen shots of them.

[4813] Defence counsel asked Ms. K.L.G. to explain the process of deleting direct messages from her Instagram account. Ms. K.L.G. explained that one must swipe on the conversation, then click a trash icon, then click on a confirmation prompt to confirm that one indeed intended to delete the conversation. It is a multi-step process intended to reduce the likelihood of accidental deletion.

[4814] As it happens, Ms. K.L.G.’s screen shots contained a gap between May 8 and May 19, where no communications between Ms. K.L.G. and Ms. V.S. were captured. It is in this time period that Ms. K.L.G. initiated contact with the police. Despite Ms. K.L.G.’s testimony that she and Ms. V.S. communicated for the purpose of discussing developments in the case, Ms. K.L.G. screen shots did not capture any discussion by her of her own decision to contact the police. To explain this gap, Ms. K.L.G. implied that she had taken a break from texting during this time-period. Immediately after that gap, Ms. K.L.G.’s first text to Ms. V.S. included the following information, “The detective called me yesterday and told me they’ve assigned a crown prosecutor to the case so that’s some movement in the right direction.” This text clearly assumed Ms. V.S.’s awareness of an earlier revelation that Ms. K.L.G. had contacted the police to lodge her complaint. That earlier revelation was missing from the package of screen shots sent by Ms. K.L.G. to the police.

[4815] There was another gap in the screen shots Ms. K.L.G. sent to the police, between July 1 and September 24, 2019. Ms. K.L.G. testified that the two did not communicate in this time-period. Immediately following that gap Ms. V.S. told Ms. K.L.G. that she received a voicemail from the police about Dr. Sloka’s arrest. This message clearly assumed Ms. K.L.G.’ awareness of Ms. V.S.’s initiation of a police complaint. However, the text messages in the screen captures did not include any prior disclosure by Ms. V.S. that she had lodged her complaint with the police. Once again, it was obvious, despite Ms. K.L.G.’s claims to the contrary, that relevant communications were missing from the screen captures.

[4816] A few hours after notifying Detective Gilker that she had deleted her entire conversation with Ms. V.S., Ms. K.L.G. phoned Detective Gilker. Ms. K.L.G. told Detective Gilker that she should not have provided a statement the previous day about meeting Ms. V.S. at a car meet. She told Detective Gilker that she had been under extreme stress and having memory difficulty. Ms. K.L.G. then told Detective Gilker that Ms. V.S. first contacted her after she posted an article on Facebook, entitled, “It’s Okay to Talk.”

[4817] In the messages that were preserved in Ms. K.L.G.’s screen shots, Ms. K.L.G. displayed animus towards Dr. Sloka. In one message, she stated, “I want his ass to die in jail.” In another, when discussing the assault on Dr. Sloka during his detention, she stated, “Yeah hahaha,” then added, “I honestly smiled when I heard.” She did not display this kind of animus towards Dr. Sloka while his patient, even if she did find him to be weird and creepy at the time. Indeed, even on her chronology, she continued to see Dr. Sloka seven more times over a three-year period after her fourth appointment. She did not voice any animus or concern to any other professional in her circle of care during that time frame. Moreover, after her fourth appointment, she began to attend her appointments unaccompanied. Evidence of animus only arises after two key developments: Ms. K.L.G.’s exposure to publications about Dr. Sloka and Ms. K.L.G.’s engagement in discourse with other patients.

The Evidence of Dr. Bril

[4818] In her evidence in-chief, Dr. Bril testified that Dr. Sloka’s cardiac examination was not neurologically reasonable. She stated that a heart issue was not going to cause decreased sensation at spinal level T5. However, in cross-examination, Dr. Bril contradicted herself. She testified that a cardiac examination was neurologically reasonable, to search for murmurs and abnormal heart sounds that might explain the tightness in Ms. K.L.G.’s chest. Implicitly, she thereby conceded the validity of an assessment of Ms. K.L.G.’s risk for stroke.

[4819] Dr. Bril also conceded that a respiratory examination was medically reasonable, due to Ms. K.L.G.’s complaint of chest tightness. However, while agreeing that Dr. Sloka could reasonably conduct a cardiac examination, she did not agree that he could continue with a respiratory examination immediately thereafter. Listening to Ms. K.L.G.’s heart was permissible, but listening to her lungs in the process was not. Dr. Bril believed that Ms. K.L.G.’s family doctor ought to have conducted the respiratory examination.

[4820] In Dr. Bril’s opinion, there existed no neurological justification for Ms. K.L.G.’s pelvic, rectal, or perineal examinations. In Dr. Bril’s view, by the time he conducted a pelvic examination, Dr. Sloka had excluded the possibility that a spinal cord lesion could explain Ms. K.L.G.’s symptoms. However, she agreed that these examinations may nevertheless have been medically reasonable. In particular, Dr. Bril agreed in cross-examination that Ms. K.L.G.’s increased stool frequency and her increasing frequency of urination raised the possibility of overactive bladder syndrome, which may have non-neurological causes. While the examinations may have been medically reasonable, she believed that Dr. Sloka was exploring possibilities that lay outside the field of neurology. In her view, those endeavours lay in the province of a family doctor or urologist.

The Evidence of Dr. Sloka

[4821] Dr. Sloka had some memory of Ms. K.L.G. due to the duration of her treatment and the number of visits. However, he lacked an independent memory of the details of any given appointment. He relied upon his consultation letters for the truth of their contents. He also relied upon the remainder of Ms. K.L.G.’ medical file to provide him with necessary factual context.

[4822] Dr. Sloka did not normally accept referrals from family doctors. Being an urgent neurology clinic, most of his referrals came from ER departments. However, when he received the referral from Ms. K.L.G.’s family doctor, he believed that her issue looked urgent and concerning. According to her family doctor, Ms. K.L.G. presented with a ten-week history of progressive weakness, starting at her left ankle, knee, and hip. The symptoms had spread to both legs. Ms. K.L.G. reported intermittent paralysis in her legs. The family doctor was uncertain whether the symptoms had a neurological origin and referred Ms. K.L.G. to Dr. Sloka on December 1, 2014.

[4823] In keeping with his sense of urgency, Dr. Sloka first met with Ms. K.L.G. after hours at 5:30 p.m. on December 9, 2014. Ms. K.L.G. attended with her mother. At the outset of the appointment, he obtained from Ms. K.L.G.’ her medical history. Ms. K.L.G. informed him that her troubles began with left ankle pain which progressed to weakness in her left leg, then her left hip, then her right leg. In addition to learning about her leg symptoms, Dr. Sloka learned that Ms. K.L.G. had experienced increased stool frequency and increased urination frequency, particularly at night. In response to his inquiries, she reported no saddle anesthesia and no problems with her joints or skin. Ms. K.L.G. also reported a mild tightness in her chest, but no severe shortness of breath, palpitations, or chest pain.

[4824] Given Ms. K.L.G.’s history, he proposed neurological, cardiac, and respiratory examinations.

[4825] Dr. Sloka proposed a cardiac examination because Ms. K.L.G. had reported tightness in her chest. He considered cardiac issues as a possible contributing factor to her neurological issues. He believed Ms. K.L.G.’s symptoms could be explained by a stroke event. He wanted to investigate the possibility of a cardiac risk factor for stroke.

[4826] Dr. Sloka testified that he believed a respiratory examination was warranted because some inflammatory conditions, like lupus, can give rise to neurological symptoms. Lupus is an autoimmune disease that involves attacks on all systems in the body. It can cause inflammation of the nerves. If lupus attacks lungs, one can hear a “rub” during a respiratory examination. In Dr. Sloka’s opinion, lupus was on the differential diagnosis for Ms. K.L.G..

[4827] Dr. Sloka believed he possessed the training and experience necessary to conduct both the respiratory and cardiac examinations. Dr. Sloka added that, in assessing the possibility of a neurological explanation for Ms. K.L.G.’s symptoms, he believed it necessary to consider non-neurological explanations, too. He testified that in instances where the symptom presentation does not make cohesive sense, he tends to think more broadly, in the event there exists multiple explanations for a symptom presentation.

[4828] Based upon the content of his consultation letter, Dr. Sloka also believed it possible that he proposed a skin examination. In the examination portion of his letter, he wrote, “We saw nothing abnormal on her skin.” Dr. Sloka was not sure if this notation connoted a complete skin examination or simply incidental observations of Ms. K.L.G.’s skin during other examinations. However, he was satisfied that, “…there was at least some component of a skin exam.” In cross-examination, the Crown suggested that Ms. K.L.G.’s presentation might have prompted Dr. Sloka to investigate the possibility of neurocutaneous disease or multiple sclerosis. Dr. Sloka agreed he could not rule out the possibility, but he could not remember. Having said that, Ms. K.L.G. never alleged a full-body skin examination.

[4829] Dr. Sloka testified that he conducted his neurological examination in accordance with his standard method. The examination included an investigation of the “spinal level” of Ms. K.L.G.’s symptoms. This investigation involved an attempt to find where Ms. K.L.G.’s sensation to touch changed from abnormal to normal. Dr. Sloka’s evidence here was somewhat muddled. It appeared as though he had a difficulty understanding the wording of his consultation letter. Cross-examination did little to clarify his evidence here. Unfortunately, no one asked Dr. Sloka to provide a demonstration. Having said that, Ms. K.L.G. did not complain about any improper leg touching during her leg sensation examination; so, not much turns on it. Ultimately, Dr. Sloka testified that he used two fingers and light touches to test sensation beginning at Ms. K.L.G.’s feet and progressing up to a location between her knees and pelvic area. He did not believe he tested Ms. K.L.G.’s upper thighs. He also testified that he employed light touch down each side of Ms. K.L.G.’s back, starting at the shoulder blades. Ms. K.L.G. would remain gowned for the examination, with her back exposed. In his consultation letter, Dr. Sloka reported, “…decreased sensation from around T5 [thoracic vertebrae #5, just below the nipple line] distally on the left not including her inner leg….” Ms. K.L.G.’s had not previously reported decreased sensation in her back when Dr. Sloka took her history. This only became apparent during the examination.

[4830] In cross-examination, the Crown suggested to Dr. Sloka that he ought to have also tested for sensation at the front of Ms. K.L.G.’s torso, when assessing Ms. K.L.G.’s “spinal level.” Dr. Sloka disagreed. He testified that if decreased sensation existed on the back, he would expect a corresponding decrease in the front. He did not consider it necessary to test for sensation on the front of Ms. K.L.G.’s torso. Dr. Bril did not specifically address whether Dr. Sloka ought to have tested for sensation on both the front and back of Ms. K.L.G.’ torso. Accordingly, the foundation for the Crown’s question was not readily apparent. Dr. Sloka’s answer stood unchallenged.

[4831] Dr. Sloka insisted that he did not expose the front of Ms. K.L.G.’s torso for the sensory examination. He also denied touching Ms. K.L.G.’s breast during the sensory examination.

[4832] At the conclusion of Ms. K.L.G.’s first appointment, Dr. Sloka did not have a sense of the cause of her symptoms. Dr. Sloka denied mentioning to Ms. K.L.G. that he suspected MS or ALS. He did not believe her symptoms were consistent with MS or ALS. To identify an underlying cause of Ms. K.L.G.’s symptoms, Dr. Sloka decided to order multiple tests. Her family doctor had already ordered a lumbar MRI. Dr. Sloka ordered cervical and thoracic MRIs, too. He also ordered EMG studies, bloodwork, evoked potential studies, and ultrasound of Ms. K.L.G.’ pelvis. He ordered the pelvic ultrasound because Ms. K.L.G. had reported a change in her menstrual cycle and he wanted to make sure there was no intrapelvic explanation for her symptoms. He planned to see her in follow-up.

[4833] Ms. K.L.G. returned to see Dr. Sloka on December 22, 2014. Ms. K.L.G. attended with her boyfriend. By that date, she had completed some of her tests, but not all of them. All of Ms. K.L.G.’s MRIs were normal. Her pelvic examination was also normal. Yet, Ms. K.L.G. reported pain on rotation of her hip. In his reporting letter, Dr. Sloka wondered whether Ms. K.L.G. might have a pelvic inflammatory syndrome or sacroiliitis.

[4834] Dr. Sloka’s reporting letter for December 22, 2014, did not follow his standard format. The first paragraph blended a report of Ms. K.L.G.’s history with his examination report. After discussing her pelvic pain, he wrote as follows: “I do not know whether she has some sort of pelvic inflammatory syndrome or sacroiliitis. I cannot localize the pain easily here and it does not localize to her sensory changes. She continues to have numbness in the same distribution, however. Her sensory examination is stable, and she has no weakness, and her reflexes are stable.” Based upon the contents of his letter, Dr. Sloka concluded that he repeated some aspects of the neurological examination, including sensation and reflex testing. He also concluded that he conducted a pelvic examination. He also believed that likely conducted a perineal examination. In addition, Dr. Sloka believed that he would have recommended a rectal examination.

[4835] Dr. Sloka denied putting up any resistance to Ms. K.L.G. being joined by her boyfriend for the examinations. On his evidence, a patient may bring whomever they please into the examination room. He was not cross-examined on this point.

[4836] Regarding the neurological examination, Dr. Sloka reported left-sided T4 numbness. In his past letter, he reported T5 numbness. Dr. Sloka was not certain why he described the spinal level differently at this appointment. However, he explained that there is no precise point at which T4 stops and T5 begins. There is overlap between the areas served by the nerves flowing from these two vertebrae. He also stated, “…there’s variability. It’s an estimate when you do this kind of examination.”

[4837] Dr. Sloka provided his justification for recommending a pelvic examination. He reasoned that Ms. K.L.G. continued to have pelvic pain, she still had bladder and bowel disruption. He was therefore questioning whether Ms. K.L.G. might be suffering from overactive bladder syndrome. Dr. Sloka testified that the medical literature suggests that for pelvic pain and overactive bladder syndrome, a pelvic examination can be considered. He testified that he would look to identify any locations of pain felt during palpation. He would also assess whether Ms. K.L.G. experienced any pelvic floor weakness. In addition, he would search for any masses that might interfere with nerve functions.

[4838] As for the perineal examination, Dr. Sloka testified that the nerve that services the perineum also services the bowel and bladder. Considering Ms. K.L.G.’s bladder and bowel difficulties, he wanted to see whether nerve function in the perineum had been compromised.

[4839] Dr. Sloka provided similar evidence to justify the proposition of a rectal examination. Ms. K.L.G.’s rectal tone might provide evidence of compromised nerve function. Dr. Sloka disagreed with Dr. Bril’s opinion that a rectal examination was not warranted because Ms. K.L.G. had not complained of fecal incontinence. He testified that the medical literature recommends a rectal examination as a component of an investigation into possible overactive bladder syndrome, even in absence of fecal incontinence.

[4840] The pelvic, rectal, and perineal examinations were proposed for the purpose of exploring the possibility that all of Ms. K.L.G.’s symptoms were related to an underlying cause. According to Dr. Sloka, he had an anatomy textbook he used to show patients to explain the rationale for his proposed examinations. His evidence here aligned with Ms. K.L.G., who testified about Dr. Sloka showing her images in a book which illustrated the flowing from her back, through her pelvis, and branching off to her legs, bowel, and bladder. While Dr. Sloka did not think he would have mentioned an interest in finding any “sciatic” pain, as Ms. K.L.G. testified, he did agree that he conveyed that pelvic, rectal, and perineal examinations might reveal whether her symptoms originated in her pelvis.

[4841] Dr. Sloka agreed that some of the diagnoses he was considering (pelvic inflammatory syndrome and sacroiliitis) lay outside the field of neurology. However, he testified that those conditions could give rise to neurological symptoms, like pelvic pain and localized nerve irritation. He testified that he possessed the training and experience necessary to conduct pelvic, perineal, and rectal examinations. According to his training and his understanding of medical literature, a pelvic examination can be considered to investigate specific locations of pain, identifying any pelvic floor weakness, detecting any masses, and searching for abnormalities in the region through which the pudendal nerve passes. The pudendal nerve services the bowel, bladder, and sensory function. Palpation in the vaginal vault can reveal points of pain, which may indicate impingement of the pudendal nerve.

[4842] The Crown challenged Dr. Sloka’s claim that there remained any reason to look for potential masses, citing the fact that Ms. K.L.G. had obtained normal pelvic ultrasound results three days before her second appointment with Dr. Sloka. Dr. Sloka disagreed. He testified that a pelvic ultrasound would only be able to detect masses or lesions associated with organs in the pelvis. Masses outside of those organs would not necessarily be detected by a pelvic ultrasound. Moreover, Dr. Sloka testified that an ultrasound cannot identify the location in which a patient feels pain. It also cannot provide information about the nature of any pain.

[4843] Dr. Sloka agreed that Ms. K.L.G. may have declined a rectal examination. He had no memory one way or the other. However, he resisted any suggestion that he pressured Ms. K.L.G. to agree to a pelvic examination after she stated a preference to have any pelvic examination conducted by her female doctor. He similarly resisted any suggestion that he pressured Ms. K.L.G. to participate in a rectal examination. Dr. Sloka testified that if any patient were to suggest a preference for a female doctor, he would have suggested she went to whatever female doctor she normally used, or he could make a referral. Had Ms. K.L.G. sought a referral, he would have facilitated it.

[4844] Dr. Sloka was unable to find any evidence from the pelvic examination that might explain her symptoms. In his reporting letter, he wrote, “I cannot localize the pain easily here and it does not localize to her sensory changes.”

[4845] Dr. Sloka planned to see Ms. K.L.G. in follow-up after she completed the other tests he had ordered. All told, he saw Ms. K.L.G. for an additional nine appointments after the second appointment.

[4846] Dr. Sloka denied conducting a pelvic examination at Ms. K.L.G.’s fourth appointment. According to Dr. Sloka, the second consultation letter supplied enough information to allow him to conclude that he conducted a pelvic examination at the second appointment, even if he failed to be more explicit about it. Moreover, Dr. Sloka had expressly reported that he deferred examinations at the fourth appointment.

Assessment of the Evidence and Analysis

[4847] Both Ms. K.L.G. and Dr. Sloka agree that he performed a pelvic examination. Both also agree that the examination was done in the presence of her boyfriend. Both agree it was a bimanual pelvic examination. And lastly, both agree it was brief. The performance of the pelvic examination, not its manner, is the source of Ms. K.L.G.’ complaint. While Ms. K.L.G. and Dr. Sloka found agreement on these issues, they disputed many others.

[4848] Ms. K.L.G. alleged that Dr. Sloka grazed the bottom of her breasts during a sensation examination at her first appointment. She alleged that her pelvic examination occurred at her fourth appointment, not her second. By her fourth appointment, she had already obtained a pelvic MRI, a fact she relied upon to suggest Dr. Sloka possessed an improper motive. She also initially claimed that Dr. Sloka provided little information about the rationale for the proposed examinations. She also alleged that Dr. Sloka repeatedly pressured her to agree to the proposed pelvic and rectal examinations. According to her, she stated a preference to having the examinations performed by a female doctor, but he persisted. She ultimately capitulated and agreed to a pelvic examination on the condition that her boyfriend be present for it. On her evidence, Dr. Sloka re-raised the prospect of a rectal examination once the pelvic examination was over. She again vehemently refused it. Viewed as a whole, Ms. K.L.G.’s evidence imbues Dr. Sloka’s conduct with sinister tones.

[4849] Dr. Sloka denied touching Ms. K.L.G.’s breasts during her neurological examination at her first appointment. He denied the sensory examination involved the front of her torso. Dr. Sloka insisted that the pelvic examination occurred at the second appointment. He based his claim on the findings reported in his second consultation letter. He denied pressuring Ms. K.L.G. to agree to pelvic and rectal examinations. If she had asked for the examinations to be conducted by a female doctor, he would have facilitated that request. He maintained that he thoroughly explained the rationale for the proposed examinations and often utilized an anatomy book to explain the purpose behind the examinations. Dr. Sloka stood by the medical and neurological rationales for the examinations he conducted.

[4850] Dr. Bril and Dr. Sloka also find much agreement in some aspects of their evidence, but parted ways in others. Dr. Sloka maintained that his proposed examinations were medically and neurologically reasonable. He maintained that he possessed the training and experience to conduct the examinations. He denied touching Ms. K.L.G.’s breasts and at least implicitly agreed that doing so would have been improper. Dr. Bril ultimately agreed that Dr. Sloka’s cardiac examination was neurologically reasonable. She also agreed that his respiratory examination was medically reasonable. In addition, she agreed that pelvic and rectal examinations may have been medically reasonable. However, she maintained that these examinations ought to have been performed by a doctor other than a neurologist. She also believed that Dr. Sloka ought to have referred the respiratory examination to Ms. K.L.G.’s family doctor.

[4851] With the areas of agreement and disagreement delineated, I would now like to turn to an assessment of Ms. K.L.G.’s evidence.

[4852] I found Ms. K.L.G. at times to be an unreliable and insincere witness, corrupted by blatant animus towards Dr. Sloka. Where her evidence conflicts with that of Dr. Sloka, I reject it, for reasons which I will now explain.

[4853] Ms. K.L.G.’s animus was like a cancer that ate at her credibility and reliability. She rejoiced at news of Dr. Sloka being assaulted in custody. She unabashedly declared to Ms. V.S. that, “I want his ass to die in jail.” The evolution of this animus occurred in harmony with the evolution of a more sinister account of her dealings with Dr. Sloka. The evolution of this animus also occurred in harmony with the evolution of Ms. K.L.G.’s relationship with Ms. V.S., a fellow patient who also made complaints about Dr. Sloka. The evolution of this animus also occurred in the aftermath of Ms. K.L.G.’s exposure to media and CPSO publications about Dr. Sloka. By the time Ms. K.L.G. reached the trial preparation stage of her complaint, she was prepared to repeatedly lie about her relationship with Ms. V.S., thereby betraying an awareness that her communications with Ms. V.S. might compromise her integrity as a witness.

[4854] Whether Ms. K.L.G.’ pelvic examination occurred on the second or fourth appointment, it occurred years before Ms. K.L.G. decided to lodge a complaint with the CPSO. The decision to lodge a complaint followed Ms. K.L.G.’ exposure to media and CPSO publications about Dr. Sloka in July of 2018. It is obvious that Ms. K.L.G.’s attitude about her pelvic examination began to change after exposure to those publications. Reading about the complaints of others caused her to reconsider her own experience.

[4855] At the time of her initial CPSO complaint on August 2, 2018, Ms. K.L.G. did not make any complaint about Dr. Sloka touching her breasts, despite reading about allegations of inadequate draping and breast exposure. She had also yet to definitively conclude that her pelvic examination was improper. At that early stage, she only had a “potential concern” about her pelvic examination and wanted to know whether it was proper for a neurologist to be conducting one. Her other two complaints at the time concerned a lack of transparency about the ongoing CPSO investigation. There was no suggestion of Dr. Sloka repeatedly pressing her to agree to pelvic and rectal examinations over her objection. There was no suggestion that she only relented and agreed to a pelvic examination on the condition that her boyfriend be present. There was no suggestion that she grew irate when Dr. Sloka continued to press for a rectal examination after he completed the pelvic examination. She described the examination as “weird and unusual,” not as the product of stubborn persistence in the face of repeated refusals. Her characterization of her dealings with Dr. Sloka grew far more sinister over time.

[4856] Ms. K.L.G.’ allegation of breast touching arose for the first time at trial. Her explanation for the omission lacked sincerity. She testified that no one had specifically asked her about it. However, investigators at the CPSO asked her to mark on a diagram where Dr. Sloka had touched her. She clearly omitted marking her breasts. When challenged on this omission, she stated that she believed she had been asked whether Dr. Sloka had grabbed or groped her. This explanation was refuted by the very diagram she drew, which delineated where she had been touched, not groped. Ms. K.L.G. claimed that her mother was a witness to this breast touching. However, the Crown chose not to call her mother. I infer that Ms. K.L.G.’ mother would not have assisted the Crown on this issue. In my view, there are only two plausible explanations for Ms. K.L.G.’ late-breaking allegation of breast touching. Either she deliberately and dishonestly inflated her complaint to align it with what others had publicly reported about Dr. Sloka or her memory and perceptions have been profoundly altered by exposure to other complaints. Given her dishonest attempt to explain the material omission from her CPSO diagram and given her obvious animus, I conclude it more likely that Ms. K.L.G. has dishonestly inflated her evidence to paint Dr. Sloka in a more sinister light.

[4857] Ms. K.L.G.’ complaint regarding the proposed pelvic and rectal examinations also grew inflated over time. In speaking to the CPSO, Ms. K.L.G. said that she told Dr. Sloka that she replied to the proposition of a pelvic examination by telling him that she already sees a physiotherapist and gets regular PAP tests. She then told CPSO investigators that she asked if a pelvic examination was really necessary, because she was not sure how useful it would be. According to her CPSO statement, Dr. Sloka explained the medical necessity of the examination, which caused her to consent to it. By the time of trial, she described the exchange in a more confrontational tone, testify that she twice told Dr. Sloka “No” in his office and only agreed on the condition that her boyfriend could be present – a proposition she said Dr. Sloka was reluctant to accept.

[4858] Ms. K.L.G. also alleged for the first time at trial that she voiced a desire to have a female practitioner conduct her pelvic examination. On her evidence, Dr. Sloka opposed this choice, though she could not remember his words. She did not make this claim during her CPSO statement.

[4859] Apart from the amplifications in Ms. K.L.G.’s complaint over time, there existed other issues with Ms. K.L.G.’s evidence.

[4860] Ms. K.L.G. initially testified that Dr. Sloka “didn’t give a great reason” for the pelvic examination and merely alluded to the possibility that “something could be missed and that it was important to do it.” In cross-examination, though, she acknowledged that Dr. Sloka provided large amounts of information to her at her second appointment. He explained how nerves travel from the bottom of the spinal column, through the pelvis, and branch off to serve the legs. She agreed he may have also told her that some of the nerves service the bowel and bladder. He discussed the possibility that damage to the nerves in the pelvis could be the cause of her symptoms in her legs. He showed her diagrams in an anatomy textbook to provide a visual explanation of the concepts he discussed. This thorough explanation of the possible cause of her symptoms unquestionably served as a thorough explanation of the rationale for the examinations Dr. Sloka proposed. Ms. K.L.G. even conceded that Dr. Sloka may have told her that he would conduct a bimanual examination to look for obvious masses or areas of pain. However, without any sufficient factual foundation, she insisted that the pelvic examination occurred at the fourth appointment and not the second. In my view, her unyielding and unreasonable insistence about the fourth appointment caused her to reject the obvious and inescapable conclusion that Dr. Sloka had in fact explained the justification for the pelvic examination at the second appointment.

[4861] Ms. K.L.G. did not possess any reasonable grounds for believing the pelvic examination occurred at the fourth appointment. Before reviewing her medical records, she had no idea about the date of the pelvic examination or its place in the sequence of her visits. She purportedly based her belief on her review of her medical records, which is ironic, because Dr. Sloka specifically reported deferring any examination at the fourth appointment (on May 21, 2015). Nevertheless, Ms. K.L.G. concluded that the pelvic examination occurred on this date because this was the last date on which Dr. Sloka reported her boyfriend being present. She also believed that the pelvic examination occurred at one of her last appointments before she saw Dr. Dittmer. She failed to mention either of these grounds in her evidence in-chief or her CPSO statement. Indeed, in speaking to the CPSO, Ms. K.L.G. told investigators that the pelvic examination occurred after she had already met Dr. Dittmer. Ms. K.L.G. tied the pelvic examination to the fourth appointment because she remembered feeling like she was going to die by the time of the date of the pelvic examination. However, Dr. Sloka’s records show that she had reported improvement at successive appointments leading up to and including her fourth appointment. They also show that she cancelled an appointment in March 2015 because she was feeling better. Given Dr. Sloka’s reported but unsuccessful efforts to “localize the pain” in his second consultation letter and given Ms. K.L.G.’s concession about the thorough exposition at the second appointment, I place no weight on Ms. K.L.G.’s evidence that the examination occurred at the fourth appointment.

[4862] Ms. K.L.G.’s evidence regarding her relationship with V.S. is very troubling. She admittedly lied to Detective Gilker about meeting Ms. V.S. at a car meet. She testified that Ms. V.S. first contacted her immediately following her April 30th Instagram post. However, the content of their messages makes plain the reality that Ms. K.L.G. and Ms. V.S. had been in communication well before that. On April 30th, Ms. V.S. needed no introductions. She simply sent a photo an envelope containing her complaint to the CPSO, stating, “Just gotta find a stamp and it’s done.” By May 1st, Ms. K.L.G. was telling Ms. V.S., “SO PROUD OF YOU. Love you girl….” Ms. V.S. was replying, “Thank you… love you too hun….” These two people had obviously formed a strong relationship well before April 30th. Ms. K.L.G.’s claim to the contrary was a fabrication.

[4863] Ms. K.L.G. also lied when testifying about her destruction of the communications between her and Ms. V.S. I do not accept that she deleted the messages by accident. Deletion requires multi-step verification. Her initial screen shots of their message history obviously omitted the commencement of their relationship, the time-period spanning Ms. K.L.G. decision to contact the police, and the time-period spanning Ms. V.S.’s decision to contact the police. When Detective Gilker insisted on receiving an unedited and continuous message stream, Ms. K.L.G. deleted the entire message stream. She provided one explanation to Detective Gilker and a different explanation to the court about the reason for the deletion. From all this I conclude three things: (1) Ms. K.L.G. did not want Detective Gilker to know the whole truth about her relationship and communications with Ms. V.S.; (2) Ms. K.L.G. deliberately destroyed her message stream to avoid anyone learning the whole truth; and (3) Ms. K.L.G. deliberately lied about how the messages were deleted.

[4864] Ms. K.L.G.’ dishonesty in matters concerning Ms. V.S. not only hurts her credibility at large, but it reveals the degree of her animus towards Dr. Sloka. It reveals her willingness to distort the truth to Dr. Sloka’s detriment, a willingness that only began to germinate after Ms. K.L.G.’s exposure to medial and CPSO publications, as well as social media discourse about Dr. Sloka.

[4865] I have allowed the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this case. However, having considered the compelling evidence of Dr. Sloka’s evidence against the totality of the Crown’s case concerning Ms. K.L.G., I conclude that Dr. Sloka has refuted any possible inference of a sexual motive.

[4866] The Crown also relies on two other granular cross-count similarities to support Ms. K.L.G.’s evidence on other material issues: (1) Ms. K.L.G.’s position for the pelvic examination and (2) the testimony of four other patients that also alleged that Dr. Sloka pressured them to participate in additional and more invasive physical examinations. In my view, these cross-count similarities lack sufficient probative value on any remaining material issue. I will deal with each in turn.

[4867] I deal first with the purported similarity between “distinctive body position” reported by Ms. K.L.G. and other patients during their pelvic examinations. In my view, the similarity of body positions is not probative of any remaining material issue. Dr. Sloka conceded that he conducted a pelvic examination. The fact of a pelvic examination was not a material issue. Moreover, there was nothing distinctive about the position. Each woman lay on the table, with knees up, legs apart, and feet planted, to facilitate a bimanual pelvic examination. I believe one described it as the birth position. Absent stirrups, it is the most logical position to assume. This body position is not probative of any remaining material issue.

[4868] Next, I will address the alleged similarity in pressure tactics. Here, I note that I have found Ms. K.L.G. to be an extremely uncredible witness who lied to the police and lied to the court. I also note that the vast majority of patients in this case did not allege any pressure tactics at all. Only a total of five women belong in this alleged constituency. If there exists a situation specific propensity, it is the opposite of what Ms. K.L.G. has alleged. I ascribe any similarity between Ms. K.L.G. claims and those of four other women to mere coincidence. Moreover, as I have discussed in the analysis of the counts concerning Ms. K.A.-C. and Ms. A.R.-U., these two women do not belong in this alleged constituency. The claims of three women out of forty-eight do not make for a compelling situation specific propensity.

[4869] Having considered Ms. K.L.G.’ evidence in the context of the entirety of the evidence, I reject any portion of Ms. K.L.G.’ evidence that is not expressly acknowledged by Dr. Sloka.

[4870] I wish to now discuss Dr. Bril’s evidence. In my opinion, Dr. Bril’s evidence offers only limited assistance to the Crown.

[4871] Dr. Bril’s evidence regarding the proposed pelvic and rectal examinations did not assist in proving that these examinations were sexual in nature, nor did they assist in proving a sexual motive. Dr. Bril conceded that it was reasonable to consider overactive bladder syndrome. She conceded that pelvic, rectal, and perineal examinations may be medically reasonable investigations of overactive bladder syndrome. However, given her belief that a neurological cause of overactive bladder syndrome had been ruled out, she maintained that these examinations ought to have been performed by a family doctor or other specialist. As noted in the section of the judgement devoted to a general assessment of Dr. Bril’s evidence, I afford no weight to Dr. Bril’s evidence on the permissible scope of a neurologist’s practice. Dr. Bril had no knowledge of Dr. Sloka’s training, experience, and competence to perform these examinations. Dr. Sloka testified that he possessed the training and experience necessary to perform these examinations. His evidence about his past training and experience stood unchallenged. Dr. Bril’s proved incapable of refuting Dr. Sloka’s subjective belief in the medical reasonableness of these examinations. It also proved incapable of proving that it was impermissible for Dr. Sloka to conduct these examinations. Accordingly, her evidence does not support the conclusion that Dr. Sloka possessed a sexual purpose when conducting these examinations.

[4872] Given Dr. Sloka’s denial of any breast touching or breast exposure during the sensation examination and given his implicit recognition of the inappropriateness of such conduct, Dr. Bril’s evidence regarding this aspect of the sensation examination is effectively immaterial. As I understand it, the Crown does not allege any other sexual activity during Dr. Sloka’s neurological examination at the first appointment.

[4873] I turn now to Dr. Sloka’s evidence. For the most part, I found his evidence to be coherent, logical, and credible.

[4874] Only one area of Dr. Sloka’s testimony caused me concern, his evidence about testing for Ms. K.L.G.’s spinal cord level at the first appointment. On that point, I had difficulty understanding his evidence about testing for sensation along Ms. K.L.G.’s legs. It seemed odd that he would skip over the upper portion of Ms. K.L.G.’s thigh before continuing on her back. His evidence on this point was confused and muddled. To the degree I felt was permissible, I sought some clarification, but to little avail. Further cross-examination here might have been helpful. Having said that, Ms. K.L.G.’s did not complain about Dr. Sloka’s contact with her thigh and the Crown does not allege that Dr. Sloka committed a sexual assault by testing sensation on her upper thigh. Indeed, if I understand Dr. Bril’s evidence correctly, she endorsed testing from Ms. K.L.G.’s toes all the way to the point at which Ms. K.L.G. could finally feel normal sensation. As a result, this area of confused evidence looks minor in hindsight.

[4875] Dr. Sloka denied touching Ms. K.L.G.’s breast during the sensation examination. Given my rejection of Ms. K.L.G.’s evidence, I see no reason to disbelieve him. He testified that he only tested her back for her spinal level and never exposed the front of her torso for this portion of the examination. Dr. Bril did not comment on the propriety of this purported approach.

[4876] Dr. Sloka testified that he proposed pelvic and likely rectal and perineal examinations because they are medically warranted investigations into the possibility of overactive bladder syndrome. At the time, Ms. K.L.G. continued to experience pain in her hip; she also continued to have disruptions in her bowel and bladder. Dr. Sloka testified to having a concern about overactive bladder syndrome. Dr. Bril conceded that overactive bladder syndrome was a reasonable consideration. She also conceded that these examinations were medically reasonable methods of investigating overactive bladder syndrome. She only took issue with a neurologist conducting the examinations. However, Dr. Sloka claim that he possessed the necessary training and experience to perform these examinations stood unchallenged. Relying on the content of his consultation report from the second appointment, he inferred that he performed the examinations at this appointment. That inference was reasonably drawn and supported by both the clinical context that existed at that time and by Ms. K.L.G.’s acknowledgement that Dr. Sloka provided at the second appointment thorough explanation of the nerves that travel through the pelvis. I accept that the pelvic examination occurred at the second appointment, and I accept that Dr. Sloka performed it for a valid medical purpose. Given the absence of a complaint about Dr. Sloka’s method during the pelvic examination and given Dr. Sloka’s evidence that he conducted the examination in accordance with his training, I accept that Dr. Sloka conducted the examination in what he believed was a medically appropriate manner.

[4877] Having rejected Ms. K.L.G.’s evidence on the subject, I accept Dr. Sloka’s denial that he pressured Ms. K.L.G. to participate in pelvic and rectal examinations. I also accept Dr. Sloka’s denial that he introduced the possibility that Ms. K.L.G. suffered from MS or ALS. It may be that she was worried about these things, but I reject her claim that Dr. Sloka inspired those worries. I also accept that Dr. Sloka explained the justification for his proposed examinations. That evidence found support in Ms. K.L.G.’s concession about the explanations Dr. Sloka provided and visual aids he employed at the second appointment. Having rejected Ms. K.L.G.’s evidence on the subject, I also accept that Dr. Sloka willingly allowed Ms. K.L.G.’s boyfriend to be present for the pelvic examination. This willingness supports the conclusion that Dr. Sloka possessed a valid medical motive, not a sexual one.

[4878] I have considered the Crown’s numerous critiques of Dr. Sloka’s evidence and find them largely unpersuasive.

[4879] The Crown contends that Dr. Sloka was not truly interested in the possibility of overactive bladder syndrome, because he did not exhaustively chart Ms. K.L.G.’s bladder symptoms. Their critique here has some foundation. Dr. Sloka conceded that the reporting of additional detail in the consultation letter is warranted. However, he is not on trial for being perfunctory in his reporting habits. In reading the reporting letter from December 22, 2014, it is clear to me that Dr. Sloka had reported an inability to localize the pain and sensory changes Ms. K.L.G. might be experiencing. Having failed to localize her pain and sensory changes, he wondered whether Ms. K.L.G. suffered from a pelvic inflammatory syndrome (the proper term would be pelvic inflammatory disease, but nothing turns on this malapropism, in my view) or sacroiliitis. Clearly, Ms. K.L.G.’s pelvic region and the functioning of her bowels and bladder were the subject matter of his consultation letter. And this letter was addressed to a medical professional he could expect to be alive to the possible ramifications of bowel and bladder dysfunction. In my view, the clinical context supports the conclusion that Dr. Sloka was sincerely concerned about the possibility of overactive bladder syndrome.

[4880] The Crown contends that Dr. Sloka gave inconsistent evidence about whether he performed a skin examination. This submission seems a red herring for several reasons, foremost of which is the absence of any allegation by Ms. K.L.G. that Dr. Sloka conducted one. Moreover, I see no inconsistency in Dr. Sloka’s evidence. In-chief, he concluded that “there was at least some component of a skin examination” at Ms. K.L.G.’s first appointment. He drew this inference from his report, “We saw nothing abnormal on her skin.” He could not remember whether he had simply incidentally examined Ms. K.L.G.’s skin during other examinations or conducted a full skin examination. Dr. Sloka’s evidence in cross-examination remained consistent on this point. Despite the absence of any allegation of a skin examination, Dr. Sloka left open the possibility that he in fact performed one, because he saw the existence of a medical justification for performing one: the investigation of mimics of MS. The Crown suggests he displayed a willingness to guess to justify an examination that Ms. K.L.G. did not allege. This submission lacks merit. Dr. Sloka was not guessing. In the absence of an independent memory, he was making a fair concession where a concession was not needed. Given the absence of a complaint of a full skin examination, I conclude that he did not perform one. I conclude his comment in his consultation letter likely arose from incidental observations made during the neurological, cardiac, and respiratory examinations.

[4881] The Crown contends that Ms. K.L.G.’s pelvic ultrasound in the days leading up to the second appointment obviated the need for a pelvic examination. From this, the Crown invites the conclusion that Dr. Sloka possessed a sexual and non-medical motive for conducting the examination. However, Dr. Sloka provided a sound basis for proceeding with a pelvic examination. On his evidence, a pelvic ultrasound would not detect masses or lesions outside of the organs in the pelvis. An ultrasound would also not identify the locations in which Ms. K.L.G. felt pain.

[4882] The Crown also argues that Dr. Sloka’s purported concern about overactive bladder syndrome is undermined by his treatment of R.P. and A.D., both of whom had bladder difficulties but neither of whom received a pelvic examination. The Crown did not cross-examine Dr. Sloka about the alleged inconsistency between his approach to Ms. K.L.G. and these two patients. Moreover, the Crown never cross-examined Dr. Sloka on the reason he opted against pelvic, rectal, and perineal examinations for Ms. R.P. and Ms. A.D. As a result, I am unable to assess whether Dr. Sloka possessed a valid reason for his different approach to these two patients. I would note, though, that when testifying about Ms. A.D., Dr. Sloka testified that he understood Ms. A.D.’s bladder issues to be the result of the excessive consumption of fluids. As for Ms. R.P., Dr. Sloka had remarked in a different context about how much of an extremely complex patient she was. She had many issues, many needs, and many doctors. I would also note that, during questioning about Ms. A.D., when the Crown suggested that Dr. Sloka did not have a standard approach to bladder incontinence, he responded by stating, “every clinical situation is different.” Lastly, the examples of Ms. A.D. and Ms. R.P. serve to rebut the theory that Dr. Sloka used a purported concern about bladder incontinence as a ruse to gain access to his patient’s genital and anal regions. The cases of Ms. A.D. and Ms. R.P. provide two clear examples where Dr. Sloka refrained from using bladder incontinence as an excused to perform pelvic and rectal examinations. I therefore do not think the examples of Ms. A.D. and Ms. R.P. undermine Dr. Sloka’s evidence regarding Ms. K.L.G..

[4883] The Crown also argues that Dr. Sloka’s reliability suffers from difficulties he experienced interpreting his own notes. I see no merit in this submission. Dr. Sloka provided an adequate explanation of the variation in reporting of Ms. K.L.G.’s “spinal level.” When asking him to interpret a handwritten rough note which said, “0 localizing signs”, the Crown asked Dr. Sloka to make the interpretation without any additional context. Dr. Sloka’s failure to precisely record and then subsequently remember Ms. K.L.G.’s menstrual changes was of no moment. The use of the malapropism “pelvic inflammatory syndrome” was also of little moment. If Dr. Sloka were being tried for using malapropisms, the information would contain many more counts than it currently contains.

[4884] The Crown also suggests that Dr. Sloka attempted to conceal his improper examinations. In support of this contention, the Crown relies on the fact that Dr. Sloka recorded “COPE” [Consent Obtained for Pelvic Examination] in his rough notes. Respectfully, this submission is illogical. In my view, this record does not prove concealment, it proves the opposite. Moreover, the Crown did not cross-examine Dr. Sloka on this point. Also, the Crown’s contention is undermined by the undisputed fact that Ms. K.L.G.’s boyfriend was present for the pelvic examination. I certainly agree that Dr. Sloka ought to have more explicitly declared that he performed a pelvic examination when writing his consultation letter; however, the content of his report at least implies the fruitless pelvic palpation associated with an investigation of bowel and bladder difficulties. In my view, the evidence does not support the conclusion that Dr. Sloka attempted to conceal the pelvic examination because he knew it was wrong.

[4885] Having considered the entirety of the evidence, I find no reason to reject Dr. Sloka’s evidence. I accept his denial of any breast touching during Ms. K.L.G.’s sensory examination. I accept that he subjectively believed in the existence of a medical justification for a pelvic examination. I accept that he thoroughly explained the medical justification for a pelvic examination. I accept that Ms. K.L.G. agreed to the pelvic examination after Dr. Sloka explained its rationale. I accept that Dr. Sloka performed the pelvic examination in a medically appropriate manner for a valid medical purpose. I also accept that Dr. Sloka believed he possessed the requisite training and experience to conduct the examination. In addition, I accept his implicit denial of any improper motive. In my view, the evidence establishes that Ms. K.L.G. consented to and received a medical examination. I see no basis for concluding that the examination constituted sexual activity.

[4886] Dr. Sloka will be acquitted on this count.

ii. S.S. (Count 55)

A Summary of Ms. S.S.’s Complaint and Dr. Sloka’s Response to It

[4887] Ms. S.S. had for a year experienced bladder difficulty, numbness in her left toes, numbness and compromised sensation in her left leg, and swelling in her left calf and ankle. She testified that at her third and final appointment, Dr. Sloka proposed and conducted a pelvic examination while she lay on her side in an unusual position that made access to her vaginal canal harder than it needed to be – a position more suitable to a rectal examination. She further alleged that, without notice, Dr. Sloka also conducted a rectal examination immediately after he finished her pelvic examination. In addition, she testified that Dr. Sloka never told her about the rationale behind the examinations.

[4888] Dr. Sloka testified that he proposed and conducted pelvic, rectal, and perineal examinations to investigate whether Ms. S.S.’s bladder, leg, and foot symptoms could be traced to pathologies travelling from the base of the spinal cord, through the pelvis, and to the areas in which Ms. S.S. experienced her symptoms. Dr. Sloka testified that he explained his rationale when proposing the examinations. Ms. S.S. consented to these examinations. Dr. Sloka testified that he conducted these examinations at the second appointment, not the final appointment. He documented them as a “general examination.”

The Circumstances of Ms. S.S.’s Referral and Treatment History

[4889] Ms. S.S. was 21 years old at the time of the referral. She attended the University of Waterloo at the time. She obtained the referral from Dr. Dana Quinn at University of Waterloo Health Sciences.

[4890] Ms. S.S. erroneously believed that she obtained the referral at the end of 2015 or in the beginning of 2016., during her final year at U of W, when she was on a work term. In reality, she obtained the referral on February 24, 2015, in the preceding academic year.

[4891] In the referral letter, Dr. Quinn reported that Ms. S.S. had been experiencing numbness in two toes on her left foot for about a year. The numbness occurred intermittently at first, then occurred more often. She also experienced paresthesia (pins and needles) and numbness on the side of her left leg, together with swelling in her ankle.

[4892] Ms. S.S. attended her first visit with Dr. Sloka on March 25, 2015. Dr. Sloka took her history. On this date she reported that her bladder and bowel functions were normal. Dr. Sloka conducted a neurological examination. After examining her, he ordered thoracic and lumbar MRIs and ordered EMG studies. He booked a follow-up visit for September 2, 2015.

[4893] On September 2, 2015, Ms. S.S. reported bladder difficulties to Dr. Sloka for the first time. Dr. Sloka recorded a “general examination” in his reporting letter. Dr. Sloka testified that the documentation of “general examination” meant that he conducted pelvic, rectal, and perineal examinations. Having obtained normal examination results, Dr. Sloka ordered a repeat of Ms. S.S.’s lumbar spine MRI and planned to see her in follow up.

[4894] Dr. Sloka saw Ms. S.S. in follow up on March 31, 2016. Her symptoms were stable, and her test results revealed no issues. Ms. S.S. was also about to leave the country for an extended period of time. Dr. Sloka indicated in his consultation letter that he would be open to ordering a pelvic MRI or providing a urology referral if she returned to the jurisdiction.

[4895] Ms. S.S. did not return to Dr. Sloka’s care after the third appointment.

The Evidence of Ms. S.S.

[4896] Ms. S.S. agreed that before becoming Dr. Sloka’s patient, Dr. Quinn had sent her to GRH to participate in doppler scans of her blood vessels, to ensure that she did not have any blood clots. She also agreed that Dr. Quinn sent her for EMG studies to test the functioning of the nerves that service the muscles in her leg. She also sent her for an ultrasound.

[4897] Ms. S.S. testified that Dr. Quinn referred her to Dr. Sloka to get his opinion about whether her symptoms had a neurological cause. As mentioned, she misremembered the season and academic year of her referral.

[4898] In addition to misremembering the season and academic year in which she became Dr. Sloka’s patient, Ms. S.S. misconstrued the time of day of her initial appointment. She believed that she attended in the middle of the day. She purportedly recalled travelling in light traffic on the 401 to her appointment. The faxed appointment confirmation sheet established that her first appointment took place at 8:00 a.m. on March 25, 2015. Moreover, on that date, Ms. S.S. lived in Waterloo, which means she would not have taken the 401 to her appointment. The GRH is situated about a block from the boundary between the downtown sectors of Kitchener and Waterloo. No route from anywhere in Waterloo would take Ms. S.S. anywhere near the 401. Faced with this reality, Ms. S.S. then testified that her memory about the traffic on the 401 comes from her second appointment.

[4899] Ms. S.S. had turned 22 by the time of her first appointment with Dr. Sloka.

[4900] She went alone to her first appointment on March 25, 2015.

[4901] She recalled Dr. Sloka retrieving her from the waiting room and bringing her into his office.

[4902] Inside his office, they discussed her medical history and the reason for her visit. Although she could not remember precisely what she told Dr. Sloka, she agreed with the accuracy of the history recorded in Dr. Sloka’s March 25th consultation letter, including the fact that she reported no bladder or bowel difficulties. Ms. S.S. testified that Dr. Sloka seemed introverted and odd, but she liked him. He took the time to explain things and was thorough. She appreciated these qualities. She remembered Dr. Sloka showing her an anatomy book and showing her where nerves come down from the back and into the legs. She also recalled him sharing some theories about what was occurring. She also testified that he discussed with her his thoughts on what her issue might be and what he would explore.

[4903] Ms. S.S. did not remember entering Dr. Sloka’s examination room on March 25th. She believed she remained in his office for the duration of the appointment. She also did not think he conducted a full neurological examination. To her recollection, he conducted only a few tests in his office. Specifically, she testified that Dr. Sloka asked her to stand on each leg and jump. He also tested sensation on her legs. In cross-examination, she agreed that Dr. Quinn may have been the person who asked her to do a standing jump from each leg. She also agreed that Dr. Sloka may have done the entirety of his standard neurological examination, and she simply forgot. Defence counsel took her to Dr. Sloka’s findings in his March 25th consultation letter. She agreed that Dr. Sloka reported sensory deficits on her left foot, leg, and thigh.

[4904] Ms. S.S. testified that Dr. Sloka ordered an additional EMG study to test the functioning of the nerves in her leg. She did not recall Dr. Sloka ordering any other tests. She did not remember Dr. Sloka making a requisition for an MRI, but after reading his consultation letter, she agreed that he made a requisition. He sent the requisition to Brampton, which was where she planned to live in the summer and fall.

[4905] Ms. S.S. agreed that she attended for an EMG study on April 20, 2015.

[4906] Ms. S.S. had originally thought that she attended for her MRIs in the fall. She remembered getting the results on a disk, which she believed she brought with her to Dr. Sloka’s office on the third visit. She based this memory on her belief that she was in her work term. After a review of her records, she agreed that she attended for her MRIs in June and July of 2015. As will be discussed now, she also agreed that Dr. Sloka reviewed those results with her at the second visit.

[4907] Ms. S.S.’s second appointment occurred on September 2, 2015. In-chief, she remembered little about this appointment. She agreed that her symptoms had been stable and even improved a little by this date. As she recalled it, there were no definitive answers from whatever tests results were available. She also recalled Dr. Sloka showed her an anatomy book to show where nerves come down from the back. As she recalled it, Dr. Sloka did not perform any examinations. He simply ordered another MRI and planned to see her in follow-up. Ms. S.S.’s memory about this second appointment became more robust in cross-examination.

[4908] In cross-examination, having been shown Dr. Sloka’s consultation letter and her three MRI reports from June and July of 2015, Ms. S.S. agreed that Dr. Sloka reviewed those MRIs with her at this appointment, despite her previous contrary recollection. Dr. Sloka’s consultation letter referred to a syrinx in her spinal cord in the conus area. Defence counsel suggested to Ms. S.S. that Dr. Sloka told her that a syrinx could cause problems in her bowel and bladder and cause numbness in her perineum. Initially, she disputed the suggestion, but she eventually took the position that she could not remember and could not dispute the possibility. She did remember, though, that she told Dr. Sloka about her bladder issues.

[4909] In cross-examination, Ms. S.S. testified that Dr. Sloka thought her bladder issues and leg issues could be related. He showed her some diagrams from a textbook, and he explained to her how the spinal cord runs from the brain and down the back; and that nerves exit off the spinal cord along the way. He further explained that at the very bottom of the spinal cord, where her syrinx was found, the nerves grouped together and pass through the pelvis and branch off from there. She remembered him showing her how the nerves continue to the knee and wrap around and progress further downward. He explained that some of the nerves that branch off from the pelvis are responsible for things like sensation in her legs. He showed her the neural pathways coming down from the pelvis. She didn’t remember him mentioning the cluster of nerves that branches off in the pelvis to control the bladder, but she agreed it was possible. She also did not remember him telling her that some of the nerves control anal sphincter, but agreed it was possible. She also recalled that he explained that leg-sensation problems could be due to a damaged nerve along the neural pathways he had shown her. He explained that one can potentially determine the cause of problems at one end of the nerve by looking for clues at the other end. He also explained that her bowel and leg sensation issues may have a common origin. Ms. S.S. also remembered Dr. Sloka telling her that he proposed to look for the origin of any nerve damage by process of elimination. She also agreed it was possible that he said the origin of the problem may be in the pelvic area. However, she had no present memory of him saying this.

[4910] Despite Ms. S.S.’s acknowledgement that Dr. Sloka provided an extensive explanation of the neural pathways from the spine to the feet, despite her acknowledgement that Dr. Sloka mentioned that problems at one end of a nerve may be caused by problems at the other end, despite her acknowledgement that he may have told her that the problem might originate in the pelvic area, and despite her recollection that he wanted to identify the issue by process of elimination, Ms. S.S. vehemently denied that Dr. Sloka proposed a bi-manual pelvic examination to look for obvious masses, points of pain, or other physical clues. She also denied that he proposed a sensory test of the perineum to assess whether he could find evidence of nerve damage. She also denied that he proposed testing the tone of her sphincter.

[4911] After Ms. S.S. made these denials, defence counsel presented Ms. S.S. with a diagram Dr. Sloka drew for her, which can be found at tab 18 of her medical records. She did not remember it right away, but eventually she remembered that Dr. Sloka drew the diagram and explained the nervous system and its connection to the bladder. The diagram contained a dark oval spot at the base of the spinal cord, in the same location as the syrinx seen on Ms. S.S.’s MRI. After a review of this diagram, Ms. S.S. also remembered Dr. Sloka showing her a picture from a textbook of a canal in a spinal cord, and explaining that, if it enlarges, problems can arise. Despite this revived memory, Ms. S.S. still denied that Dr. Sloka proposed and performed any pelvic, rectal, or perineal examinations on this second appointment. Ms. S.S. continued to insist that her pelvic and rectal examinations occurred on her third appointment.

[4912] Ms. S.S.’s main takeaway from the second appointment was that tests conducted to date had not provided definitive answers about the nature of her problem.

[4913] I turn now to Ms. S.S.’s memory of her third appointment.

[4914] Ms. S.S. agreed that Dr. Sloka began the appointment by asking about her general welfare. Dr. Sloka recorded her responses in his consultation letter. Generally speaking, Ms. S.S. agreed with Dr. Sloka’s summarization of their discussion, though she disputed some details. Her leg swelling had stabilized and become manageable. She had experienced pain in her thigh. She remembered attending for physiotherapy, as Dr. Sloka recorded. He asked about whether she had issues in her pelvic area and she shared her bladder history. She also agreed that Dr. Sloka may have told her that her follow-up MRI showed no change. As noted previously, her memory had initially been that this was the first time he reviewed her MRI results with her. By the end of cross-examination, she agreed that the first round of MRIs had been ordered at the first appointment and reviewed at the second appointment. The MRI reviewed on this third appointment was a follow-up MRI.

[4915] In her evidence in-chief, Ms. S.S. had tied the examinations to the third appointment partly because of her erroneous belief that the first review of her MRIs took place at the third appointment. Ms. S.S. testified that she was curious and hopeful that the MRI images might provide an answer about her issues. She was hopeful they might find a “fix” this time around. She recalled giving Dr. Sloka the disk and watching Dr. Sloka scroll through the images. He told her that he did not see any issues on the images. She said she grew pretty frustrated at that point, and she inquired about her next steps.

[4916] According to Ms. S.S., Dr. Sloka told her that sometimes people just want an answer to make themselves feel better when sometimes there is no answer. He told her that if her symptoms flare up again, they can do more testing. In other words, Ms. S.S. testified that Dr. Sloka was content to walk away without a definitive explanation for her symptoms. Ms. S.S., though, had other ideas. Although she had developed coping strategies and her symptoms were not inhibiting her day-to-day life, her symptoms were still ongoing at that point. She wanted more answers. She told Dr. Sloka that she wasn’t satisfied with just leaving things where they stood. In response, Dr. Sloka said that there was one more thing they could do.

[4917] According to Ms. S.S., without knowing what she was agreeing to, she told Dr. Sloka that she wanted to do that test.

[4918] Dr. Sloka then purportedly told her that they were going to go in the other room and do an examination. He offered no further explanation.

[4919] Dr. Sloka went from being a great communicator and explainer to someone who provided no explanation. Ms. S.S. testified that she thought it weird that he provided no explanation, because in her experience doctors were more specific and did not leave any doubt as to what is going to happen to her body and why.

[4920] Ms. S.S. testified that Dr. Sloka asked her to undress from the waist down and wear one of the gowns provided in the examination room.

[4921] She entered the examination room alone and changed in privacy. To her recollection, this was the first time that she had entered the examination room. Although the standard-issue hospital gown was designed to be worn over the torso and tied at the back, she decided to wrap it around her waist. She explained that she wore the gown in this fashion because this was how she wore it for other examinations where she had removed her pants and underwear, for example, PAP tests and pelvic examinations. She offered this explanation despite taking the position that Dr. Sloka had yet to announce that he wished to perform a pelvic examination. Similarly, she removed her underwear along with the rest of her lower garments but claimed she did not yet know Dr. Sloka would be examining her pelvic or anal region.

[4922] She testified that she sat on the examination bed with part of the gown beneath her, because there was no paper on the examination table. She was certain of this. However, in her police statement Ms. S.S. expressed uncertainty about whether the examination table was covered with any draping. She claimed that her memory had become clearer since she provided her police statement.

[4923] Ms. S.S. also expressed certainty that the examination table was in the centre of the room, not against the wall opposite the entrance from Dr. Sloka’s office. A picture of Dr. Sloka’s office from Exhibit 2 did not change her mind.

[4924] Dr. Sloka knocked on the door and then entered the examination room.

[4925] Ms. S.S. alleged that Dr. Sloka then told her that he was going to conduct a pelvic examination. He instructed her to lay on her side, which struck her as weird. Ms. S.S. testified that Dr. Sloka did not directly ask for her consent, and she never said “okay.” Nevertheless, she lay on her left side for the proposed examination, just as he had asked her to do.

[4926] Despite all of what she acknowledged had been explained to her at the second appointment, she testified that she was extremely curious how a pelvic examination would be related to her lower leg.

[4927] Initially, Ms. S.S. denied that Dr. Sloka told her that he wanted to feel for some things during the pelvic examination. After being shown her earlier police statement, she agreed that Dr. Sloka told her this. However, Ms. S.S. denied that Dr. Sloka had explained that the pelvic examination would consist of various parts: testing sensation in the perineum using a tongue depressor, feeling inside her vagina for abnormalities, feeling for masses, looking for points of pain, and looking for symmetry.

[4928] Ms. S.S. described herself as laying on her side with her legs straight, with the exception of the portion below the knees. Dr. Sloka pushed one thigh out of the way and inserted his gloved fingers into her vagina. He then pushed and palpated in various directions. He did not seek her feedback or speak at all either during the examination or afterwards.

[4929] Ms. S.S. denied that Dr. Sloka used his other hand to apply pressure opposite the fingers that were inside her vagina. She knew that Dr. Sloka’s method was a major deviation from previous bimanual pelvic examinations she had undergone.

[4930] Ms. S.S. also disagreed that Dr. Sloka performed the pelvic examination while she lay on her back with her legs spread and knees bent.

[4931] She further denied that he only asked her to turn on her side for the rectal examination.

[4932] Ms. S.S. also denied that Dr. Sloka performed a perineal sensation examination.

[4933] On her evidence, Dr. Sloka withdrew his fingers from her vagina and inserted a finger into her rectum without warning and without seeking her permission. She testified that the rectal examination was extremely uncomfortable and painful because she was suffering from hemorrhoids. She specifically recalled wondering to herself about whether she should tell Dr. Sloka about her hemorrhoids. However, she agreed that she did not mention her hemorrhoids or this vivid memory in her police statement. In fact, she testified that she deliberately withheld this information from the police, despite being aware that the police required a complete and accurate account. She purportedly did so because the interviewing officer was male. This evidence stands in contradiction to evidence she gave at the outset of cross-examination, where she testified that she did her best to be accurate and honest when providing a statement to police.

[4934] In-chief, Ms. S.S. testified that rectal examination lasted a minute or two. In cross-examination, she agreed it lasted a matter of seconds.

[4935] Ms. S.S. testified that after the rectal examination, she saw Dr. Sloka removing his glove. She testified that, “… his hands were shaking so violently that he could hardly take the glove off.” She provided a demonstration of the violent shaking. In cross-examination, she added that this was a prominent memory. Her evidence here differed markedly from her police statement. In speaking to the police, she suggested a less perceptible shaking, stating, “I could kinda see, like, his hand shaking as he took off his gloves.” Ms. S.S. suggested that her words did not fully capture the demonstration she provided to the police officer. Defence counsel responded by playing the relevant portion of the video recording of her statement. In the video, she demonstrated only mild shaking. At the time, I recorded the following observation about my comparison between her testimonial evidence and her police statement: “There is in my view a gross discrepancy between the demonstrative evidence she gave in court and the demonstrative evidence she gave to police. I agree that she demonstrated a mild tremor on video, not the grossly exaggerated shaking she demonstrated in court.” Ms. S.S. provided a different assessment. She agreed that she did not demonstrate violent shaking to the police, but she insisted that she had provided the same demonstration and suggested that the camera angle may have been to blame for the apparent discrepancy.

[4936] According to Ms. S.S., once the rectal examination ended, Dr. Sloka went back into his office. Once she got back into her clothes, she rejoined him in the office. There, he told her that he didn’t find anything during the examination. In her police statement, Ms. S.S. provided a slightly different sequence. She told the police that while Dr. Sloka was still in the examination room he said, “well, I didn’t feel anything out of the ordinary… I’m not sure what else we can do… okay, you can get dressed.” Ms. S.S. acknowledged the inconsistency, then waffled briefly, then said “No, sorry, I’m not going to go with my statement.” Whatever the sequence, Ms. S.S. testified that at the conclusion of their post-examination discussion, Dr. Sloka provided no diagnosis and no proposals for next steps.

[4937] In pursuing the theory that the pelvic and rectal examinations occurred at the second appointment and not the third, defence counsel suggested to Ms. S.S. that Dr. Sloka did propose further investigative steps. Specifically, defence counsel suggested that Dr. Sloka suggested ordering a further MRI in the spring to look for any changes, and to see her in follow-up after she completed her MRI. Ms. S.S. denied that Dr. Sloka proposed any follow-up MRI after her examination. Indeed, she denied any follow-up appointment after her examination. However, Ms. S.S. agreed that her initial recollection about the timing of her MRIs was wrong; she agreed that she obtained MRIs between her first and second appointment; and she agreed that Dr. Sloka ordered a follow-up MRI after her second appointment, which could possibly have been aimed at looking for any changes from the first MRIs.

[4938] Ms. S.S. intended to visit Cuba then Oxford after the third visit and intended to be away for an extended period of time. However, she disagreed that Dr. Sloka refrained from taking further steps because of her travel. She maintained that she wanted answers. She agreed that Dr. Sloka may have presented her with options to pursue upon her return, but she testified that he framed those options as being contingent upon her symptoms becoming worse.

[4939] Ultimately, Ms. S.S. left the appointment with the impression that sometimes an explanation for a medical problem cannot be found.

[4940] She also claimed to have left the appointment knowing that something was not right. She said did not question the fact that she was examined, but the way she was examined. She also questioned how the examination could be related to her leg. She wondered whether she ought to tell someone about it. However, she told no one, not even her boyfriend (who has since become her husband). She purportedly convinced herself that the examination was normal. She decided to just move on.

[4941] Ms. S.S. read about Dr. Sloka in the news in September of 2019. That was a turning point for her, which prompted her to come forward. She saw an article in the CBC, and she recognized Dr. Sloka’s photograph in the article. She read that there were many complainants, more than 20 or 30. Some patients alleged that Dr. Sloka had exposed their breasts and inappropriately touched them. The article indicated that the police believe there may be more victims and asked anyone with information to contact the police.

[4942] Ms. S.S. testified that she only read that one CBC article. However, in her police statement, she referred to that article as CBC’s third article. She acknowledged the contradiction. She admitted that she had read at least three articles by the time she spoke to the police. She agreed that she may have read about complaints of genital and rectal touching, like the complaints recounted in an article published on May 2, 2019, which relayed allegations of genital and rectal touching in the CPSO proceeding.

[4943] Ms. S.S. testified that the news coverage convinced her that her examinations were not justified. She questioned whether a neurologist should have done a pelvic or rectal examination.

The Evidence of Dr. Bril

[4944] Dr. Bril took issue with Dr. Sloka performing pelvic, rectal, and perineal examinations on Ms. S.S. Her reasons were many. Before addressing those reasons, it is important to address her evidence about the reasonableness of Dr. Sloka’s neurological concerns.

[4945] In his second consultation letter, Dr. Sloka wrote, “Her MRI demonstrates a syrinx in the conus area and this is likely congenital although distracting given her bladder information today. There is no saddle anesthesia.” Dr. Bril interpreted this passage as meaning Dr. Sloka probably thought that the syrinx was congenital and of no clinical significance, but he wondered whether the syrinx might be causing bladder issues. This area of the spine controls bladder functions.

[4946] Dr. Bril went on to agree that Ms. S.S.’s change in bladder functioning could be consistent with overactive bladder syndrome. Overactive bladder syndrome involves change in voiding patterns. There can be an underlying neurological cause of this syndrome. It was reasonable to consider the syrinx seen on the MRI as a possible culprit. However, overactive bladder syndrome may have other causes, such as a bladder infection or the excess consumption of fluids.

[4947] According to Dr. Bril, when a neurologist suspects overactive bladder syndrome, a neurologist can conduct a neurological examination. In her opinion, pelvic, rectal, and perineal examinations were not neurologically appropriate, though. Dr. Bril believed that, if Dr. Sloka suspected this syndrome, he ought to have referred her to her family doctor, who might conduct pelvic and rectal examinations to investigate it, or refer the investigation to a gynecologist or urologist.

[4948] Dr. Bril had repeatedly taken the position that neurologists do not do pelvic examinations. Without knowing Dr. Sloka’s training and experience, she took the position that neurologists at large lack the training and experience necessary to perform pelvic examinations. Relatedly, Dr. Bril testified that neurologists are not trained to palpate the vagina to look for masses that may have neurological implications, because they lack the training and competence to do so. She took the same position regarding searches for points of pain that may reveal a pathology with neurological implications. She also testified that one cannot feel “lesions” on the nerves in the pelvic region that might give rise to pain. She did not elaborate on what she meant by “lesions”, but she used the term independently of her use of the term “masses” (tumors). Instead, she felt a neurologist ought to order an ultrasound or MRI.

[4949] Dr. Bril allowed that neurologists may on occasion do rectal examinations where neurologically indicated. However, she took the position that a neurologist ought only to conduct a rectal examination if the patient complains of fecal incontinence or saddle anesthesia. Ms. S.S. had complained of neither; so, Dr. Bril did not consider a rectal examination neurologically indicated.

[4950] Similarly, Dr. Bril took the position at a perineal examination was not neurologically warranted, because Ms. S.S. had not complained of saddle anesthesia. She took the position that Ms. S.S. would have been aware of any saddle anesthesia and reported it. In other words, if the patient knew the anesthesia was present, the neurologist could search for it. But if the patient was unaware of it, the neurologist could not search for it.

[4951] Despite her insistence that pelvic, rectal, or perineal examinations were not neurologically reasonable in Ms. S.S.’s case, Dr. Bril conceded that Ms. S.S.’s case warranted a pelvic and rectal examination by a gynecologist or family doctor. In other words, it was medically reasonable for a gynecologist and family doctor to perform rectal and pelvic examinations in Ms. S.S.’s case. She also thought Ms. S.S. ought to have seen a urologist, implying her opinion that it was medically reasonable for a urologist to conduct rectal and pelvic examinations in Ms. S.S.’s case. She also believed that a urologist could conduct a bladder functioning test. She did not know whether it would be medically reasonable for a urologist to conduct a perineal examination in Ms. S.S.’s case, though. Dr. Bril was not aware of whether the Canadian Urological Association suggests pelvic, rectal, and saddle anesthesia examinations for patients presenting with changing bladder function.

The Evidence of Dr. Sloka

[4952] Dr. Sloka had no independent memory of Ms. S.S. He relied upon the contents of his consultation letters for the truth of their contents. He also relied upon the other contents of his medical file for Ms. S.S. to provide him context.

[4953] By the time of Ms. S.S.’s first appointment on March 25, 2015, she had been experiencing numbness in her fourth and fifth left toes for about a year. It was intermittent at first but became more frequent over time. She also experienced numbness on the side portion of the front of her left leg. By that point in time, she had completed vascular studies, and no blood clots had been located. EMG studies had also produced normal results, suggesting the nerves serving the portion of her leg below the knees were functioning properly.

[4954] Dr. Sloka decided to conduct a neurological examination at the first appointment. This examination produced normal results, except for the discovery of decreased sensation on the outside of Ms. S.S.’s left foot, the side and front of her lower left leg, and the left lateral thigh. She reported no bladder or bowel difficulties.

[4955] Dr. Sloka did not believe the EMG studies entirely excluded the possibility that problems with her peripheral nerve could be causing her symptoms. He believed it was possible that issues above the knee might be causing the problems she was experiencing distally (at the bottom of her limb). Accordingly, he ordered EMG study of the lateral femoral cutaneous nerve. This neve runs from the spinal cord, through the pelvis, beneath the inguinal ligament and down the leg. The nerve can get impinged between ligament and bone, which can cause numbness in the thigh. The requisition for this test was in Dr. Sloka’s file for Ms. S.S., but the results were not. Dr. Sloka testified that, at some point, the hospital stopped printing them off. Accordingly, he did not have access to any results during the trial to confirm that Ms. S.S. attended for the test or to identify any positive findings. His subsequent consultation letter made no mention of any results.

[4956] Dr. Sloka also ordered MRIs for Ms. S.S.’s thoracic and lumbar spine.

[4957] Ms. S.S. returned to see Dr. Sloka on September 2, 2015. As noted, his consultation report makes no mention of the EMG study he ordered. Her leg symptoms had stabilized and even improved “somewhat.” However, Ms. S.S. reported bladder difficulties for the past year, contradicting what she said at her last appointment. Ms. S.S.’s MRI also showed a small syrinx in the conus (the very bottom) of the spinal cord. A syrinx is a small bulge in the spinal cord. In his consultation letter, Dr. Sloka reported that the syrinx, “is likely congenital although distracting given her bladder information today. There is no saddle anesthesia.” At trial, Dr. Sloka explained that he wanted to investigate whether Ms. S.S.’s bladder issues might be caused by a neurological issue. He thought it possible that her bladder issues and her leg symptoms might have a common cause. The nerves that serve the bladder and the nerves that serve the leg both run from the sacral area of the spin and through the pelvis. These nerves are close together. Some of these nerves innervate the bladder, bowl, and sexual organs. Since he stopped practicing, Dr. Sloka’s memory about precisely which nerves served which areas had declined. In any event, Dr. Sloka believed that injury to the nerves can cause saddle anesthesia, incontinence, loose stools, and overactive bladder syndrome. Injury to the nerve may arise from infection, inflammation, impingement, or a mass.

[4958] Dr. Sloka acknowledged that he did not document a thorough history regarding Ms. S.S.’s bladder functioning, which would be advisable when investigating overactive bladder syndrome. Although he documented when they began (a year ago), he did not specify whether the issue was constant or intermittent, whether her symptoms were disruptive, the frequency of urination when experiencing the issue, the volume of urine voided, whether discharge accompanied urination, whether she was straining to void, whether urine flow was poor, whether she was urinating at night, or her fluid intake. Dr. Sloka agreed all these inquiries were pertinent to the history of a patient whom he suspects may have overactive bladder syndrome. Dr. Sloka had no independent memory of whether he made any of these inquiries.

[4959] Dr. Sloka testified that he recommended and performed pelvic, rectal, and perineal examinations for Ms. S.S..

[4960] Dr. Sloka testified that the medical literature and guidelines indicate that pelvic, rectal, and perineal examinations can be considered when investigating suspected overactive bladder syndrome. He noted that the nerve that serves the bladder also serves the bowel, anal sphincter, and perineum.

[4961] Dr. Sloka believed he proposed and conducted these examinations because he recorded in his reporting letter, “General examination is normal.” He also took into account his belief that the examinations were warranted in a patient with Ms. S.S.’s clinical presentation (according to his understanding of the medical literature and guidelines). In addition, he considered Ms. S.S.’s allegation that he performed pelvic and rectal examinations.

[4962] Dr. Sloka testified that Ms. S.S. would have removed all clothing and worn a gown for her examination.

[4963] According to Dr. Sloka, Ms. S.S. would have lay down on the examination table, with her head towards the hallway door and her pelvis facing the window. The foot of the table would be pulled slightly away from the wall to facilitate the examination. Ms. S.S. lay on her back for the pelvic and perineal examinations. Dr. Sloka denied that he would have conducted the pelvic examination with Ms. S.S. on her side, because that position would render the examination more difficult. However, she lay on her side to facilitate the rectal examination.

[4964] Following the examination, Dr. Sloka decided to order a repeat MRI of Ms. S.S.’s lumbar spine. He wanted to see if the syrinx changed in size. He planned to see her in follow-up once she completed her MRI.

[4965] Ms. S.S. returned to see him on March 31, 2016. Her MRI did not reveal any changes and her leg symptoms had “normalized.” However, Ms. S.S. reported new bladder issues, suggesting that Dr. Sloka had made further inquiries about her bladder. Ms. S.S. told Dr. Sloka that she had difficulties following a surgery seven years earlier. After her surgery, she had difficulty sensing if her bladder was full and will suddenly have to void immediately with urgency. This was the kind of advisable detail that Dr. Sloka did not record in his previous consultation letter. Dr. Sloka denied conducting any examination on this date. Dr. Sloka reported that Ms. S.S. was completing her university education that day and would be travelling to Cuba then to Oxford. Accordingly, Dr. Sloka wrote, “I suggested that if she returns and wishes to have further testing, we can think about an MRI of her pelvis or consider a urology referral….”

Assessment of the Evidence and Analysis

[4966] Ms. S.S. and Dr. Sloka agreed that he performed a pelvic and rectal examination. However, they part company on other important issues. Dr. Sloka maintained that he also conducted a perineal examination, one of the three examinations he would perform in Ms. S.S.’s circumstances. Ms. S.S. denies a perineal examination. Ms. S.S. alleged that Dr. Sloka examined her at her last appointment, as a last resort to unearth the cause of her symptoms. Dr. Sloka insisted that he performed the examinations at her second appointment, upon hearing about her bladder difficulties for the first time. Ms. S.S. alleged that Dr. Sloka never identified the nature of the examinations he wished to perform while he and she were still in his office. She alleged that he belatedly alerted her to the pelvic examination once she was already gowned and in the examination room. She alleged that Dr. Sloka provided virtually no explanation about the rationale for the pelvic examination. She also alleged that Dr. Sloka began the rectal examination without warning and without seeking her consent in advance. Dr. Sloka testified that he proposed all examinations in the office, explained their rationale, and obtained consent for each examination. He denied commencing a rectal examination without notice. Ms. S.S. alleged that she lay on her side for both the pelvic and the rectal examination. Dr. Sloka insisted that Ms. S.S. lay on her back with her knees up in the standard position for a pelvic examination. She remained in this position for the perennial examination. According to Dr. Sloka, Ms. S.S. only lay on her side for the rectal examination, which is the position that best facilitated a rectal examination.

[4967] Regarding the issues on which Ms. S.S.’s evidence conflicts with Dr. Sloka’s, I am unable to accept Ms. S.S.’s evidence, for reasons which I will discuss momentarily. Although she was able to correctly recall the course fact of receiving a pelvic and rectal examination, her recollection about more granular details proved unreliable. While Dr. Sloka had no independent memory of treating Ms. S.S. and his consultation reports were insufficiently detailed, I am satisfied that he proposed pelvic, rectal, and perineal examinations for a valid medical purpose and with Ms. S.S.’s consent. I find support for this conclusion in Dr. Sloka’s rough notes, the other contents of his medical file, his evidence regarding the clinical context, and his evidence regarding his practices, training, and experience. I am also satisfied that he conducted the examinations in accordance with his standard practices. In my view, Ms. S.S. received a medical examination, which was conducted in a professional manner, and with her consent. She was not the victim of a sexual assault. I will now expand upon my reasons for reaching this conclusion.

[4968] I begin with a discussion of my concerns about Ms. S.S.’s evidence.

[4969] Ms. S.S.’s exposure to the media leaves me concerned that Ms. S.S.’s perceptions and memory may have been tainted by reading about the allegations made by other patients. I am also concerned that she attempted to minimize her media exposure.

[4970] Ms. S.S. initially testified that she only read one article in the CBC about Dr. Sloka. She recalled allegations about inappropriate breast exposure and inappropriate touching. She made no mention or reading about genital or rectal touching. However, in her police statement, she admitted to more extensive media exposure. She told the police about reading three articles. Ms. S.S. acknowledged the contradiction and ultimately acknowledged that she may in fact have read about allegations of genital and rectal touching. Ms. S.S.’s credibility sank a little when her minimization of her media exposure became apparent. In addition, she testified that, once she read the news about Dr. Sloka, they made her feel that her examinations were not justified. In my view, her belated acknowledgement of more extensive media exposure raises a concern that her perceptions and memory of her own experience have been impacted by reading what other patients had to say about genital and rectal examinations.

[4971] I am also concerned that Ms. S.S. at times contradicted herself, providing a more inflated account of her examination than she did to the police.

[4972] At trial, she testified that Dr. Sloka’s hand shook violently after the rectal examination. Her evidence contradicted her prior police statement. Her attempt to reconcile the contradiction harmed her credibility further. She suggested that, although her words were not consistent with her prior statement, her demonstration was consistent with her prior statement. A video replay of her prior statement proved that claim false. Undeterred, Ms. S.S. attempted to blame the apparent contradiction on a bad camera angle. Her attempt failed. Her credibility sank further.

[4973] Ms. S.S. testified at trial that she was suffering from painful hemorrhoids at the time of her rectal examination. She claimed that her hemorrhoids made the rectal examination extremely painful. It was a vivid memory, she claimed. However, she had never made this claim to anyone before getting in the witness box. Ms. S.S. attempted to explain her previous omission of this detail by saying that she was uncomfortable revealing the hemorrhoids to a male detective. I do not consider that explanation credible. She had agreed to provide her full and detailed memory to the police when giving her statement. On her account, she deliberately withheld a detail despite agreeing to disclose every detail. Moreover, her statement involved detailed descriptions of intimate examinations involving her vagina and rectum. I simply do not accept that the detail of her hemorrhoids was a bridge too far. It is far more plausible that she did not mention hemorrhoids because they were not present on the day of her examination. I conclude that either Ms. S.S.’s memory has been the victim of inflation, or the court has been the recipient of an embellishment.

[4974] Ms. S.S. also contradicted her prior police statement when alleging that Dr. Sloka did not speak during her pelvic examination. In her statement to the police, she testified that, right before commencing the examination, he stated, “Okay, I’m going to feel around for some things,” to which she replied, “Okay.”

[4975] I would now like to discuss Ms. S.S.’s flawed evidence about the chronology of events and the implications of her flawed chronology on the reliability of her claims about the examinations.

[4976] Ms. S.S. provided confusing evidence regarding the chronology of events, including the timing of her pelvic and rectal examinations. She thought her first appointment occurred in her final year of study, in the fall, when it occurred in the previous school year, in the spring. That erroneous memory was influenced by an erroneous memory that she obtained an MRI in the fall. She believed that she brought the disk from that MRI to the appointment in which the examinations occurred, which she believed to have occurred on March 31, 2016. In reality, she had two separate sets of MRIs, one set in the summer of 2015, which were reviewed at her September 2nd follow-up appointment, and a follow-up MRI which was reviewed in her March 31, 2016, appointment. In my view, Ms. S.S.’s erroneous memory of the sequence of her MRIs played a role in her erroneous belief that the examinations occurred on the final visit.

[4977] Other evidence demonstrates that Ms. S.S. mixed up the chronology of her visits. For example, Ms. S.S. believed that her first appointment occurred in the middle of day. She based that belief on a memory of light traffic on the 401 as she travelled from Toronto to Kitchener. However, she lived in Waterloo at the time. She did not travel along the 401 to get to her appointment. Moreover, her appointment unquestionably occurred at 8:00 a.m. She clearly conflated details of two different appointments.

[4978] Ms. S.S.’s unreliability concerning the chronology of her pelvic and rectal examinations is also revealed by her unreliable denial of other examinations at her first two appointments. Ms. S.S. denied that she was robed for a full neurological examination in Dr. Sloka’s examination room at her first appointment. While she vaguely remembered a small number of neurologist tests in Dr. Sloka’s office, she denied entering the examination room on that first visit and she denied wearing a gown. However, she also acknowledged that she might have conflated what occurred in Dr. Quinn’s office with what subsequently transpired at her first appointment with Dr. Sloka. Ms. S.S. also denied an examination at her second appointment. Moreover, she denied any neurological examination at her final appointment. On her account, she went to see Dr. Sloka for a neurological issue but never received a full neurological examination, which I find extremely implausible. Meanwhile, Dr. Sloka charted a full neurological examination at the first appointment and a general examination at the second appointment. Regarding the neurological examination, he specifically charted sensory deficits in her left leg and foot. The clinical chronology supports Dr. Sloka’s contention that he conducted the pelvic and rectal examinations at her second appointment. It was at this appointment that Ms. S.S. mentioned her bladder difficulties. Coincidentally, her MRI revealed a syrinx at the bottom of her spinal cord. And Dr. Sloka specifically noted for her family doctor that this likely benign syrinx was nevertheless distracting because of her newly reported bladder difficulties. All this contextual evidence supports the contention that, at Ms. S.S.’s second appointment, Dr. Sloka conducted his “general examination” to investigate the bladder difficulties. I have no difficulty coming to this conclusion. I therefore conclude that Ms. S.S. simply forgot about receiving a neurological examination in Dr. Sloka’s examination room at her first appointment. I also conclude that she was simply wrong when denying that she received her general examination (pelvic, rectal, and perineal) at the second appointment. Her credibility suffered when, faced with Dr. Sloka’s consultation letters, she refused to acknowledge these charted examinations at her first two appointments.

[4979] My concerns about Ms. S.S.’s chronological unreliability have implications for my assessment of her claim that Dr. Sloka failed to properly explain and propose the examinations and failed to obtain consent for those examinations while still inside Dr. Sloka’s office. Keeping in mind my conclusion that the general examination occurred at the second appointment, I think it important to highlight what Ms. S.S. does recall about this second appointment. She remembered Dr. Sloka showing her pictures from a textbook and providing a very detailed explanation and description of the nerve pathways from the brain, down the spinal cord, through her pelvis, and down her legs. She eventually remembered the diagram he drew her, where he drew a connection between the brain, the spinal cord, the urinary control centre, and the bladder. He explained that, when the syrinx enlarges, this can create problems. He told her that her urinary problems and leg sensation problems may have the same origin. And he told her that he wanted to identify the origin by process of elimination. Ms. S.S.’s memory here mirrors many aspects of Dr. Sloka’s evidence about the relevance of pelvic, rectal, and perineal examinations to an investigation into her overactive bladder syndrome and leg-sensation issues. These are all the types of things a patient would want to know when being asked to consent to those examinations. As Ms. S.S. remembered it, Dr. Sloka explained things very well. He was a great communicator. He was all these things at the very appointment in which the examination occurred. Given Ms. S.S.’s eventual acknowledgement about all the information imparted by Dr. Sloka, it is patently obvious that Dr. Sloka engaged in a thorough explanation of the rationale for the proposed examinations prior to obtaining her consent to those examinations. I therefore reject Ms. S.S.’s assertion that Dr. Sloka never identified the examinations nor explained their rationale. I similarly reject her contention that he went from being a great communicator at the second appointment to being noncommunicative at the third appointment.

[4980] There are other reasons for rejecting Ms. S.S.’s claim that Dr. Sloka did not explain or identify the examinations he wished to conduct. On Ms. S.S.’s telling, Dr. Sloka did not identify the examination being proposed, yet she readily agreed to it. Then, on her telling, with both her pants and underwear removed, she wore her gown in the same fashion as she had done for previous examinations that involved the penetration her vagina, like PAP tests and pelvic examinations. In my view, the way she wore her gown revealed her expectations about the type of the examinations she would be participating in. Her expectations thus reveal that Dr. Sloka had already proposed these examinations and obtained her consent for them. I do not accept Ms. S.S.’s claim to the contrary.

[4981] I would next like to discuss my concerns about Ms. S.S. evidence regarding the details of her examination.

[4982] Ms. S.S.’s evidence regarding the details of her examination proved unreliable. I begin here with her description of the location of the examination table. On her account, it sat in the middle of the room. Her memory clearly stands in conflict with the standard orientation of Dr. Sloka’s office, in which the table sits along the wall opposite the entrance to Dr. Sloka’s office. While the table could be moved to the middle of the room, it would leave very little space for movement. Moreover, it would be an unusual event. With a few rare exceptions, patients consistently remembered the table against a wall. I believe Ms. S.S.’s memory about the orientation of the table is wrong.

[4983] Ms. S.S.’s description her orientation for her pelvic examination is also highly implausible. She purportedly lay on her side, with her back to Dr. Sloka, and with her thighs extending straight down and her knees bent slightly. This position does not allow access to her vagina. As she recalled it, he used one hand to push her buttocks and thigh away from her vagina, while he slid his fingers from his other hand inside. She specifically denied a bimanual pelvic examination. I consider it highly unlikely that Dr. Sloka attempted to conduct a pelvic examination in such a difficult manner. Again, Ms. S.S. is an outlier here. No other patient alleged that Dr. Sloka attempted to conduct a pelvic examination in this manner. I agree with the defence that Ms. S.S. has conflated her pelvic examination with her rectal examination. I accept Dr. Sloka’s evidence that he conducted the pelvic examination in accordance with his standard method and training.

[4984] Given Ms. S.S.’s unreliable evidence regarding the manner of the pelvic examination, I have no hesitation in rejecting her denial of a perineal examination.

[4985] Given my conclusion that Dr. Sloka did in fact fully propose and explain the examinations, I reject Ms. S.S.’s contention that Dr. Sloka inserted his finger into her rectum without warning or consent. Instead, I conclude that she knew what Dr. Sloka had proposed, she knew why he proposed it, and she consented to it.

[4986] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient in this case. However, having considered Dr. Sloka’s evidence against the entirety of the evidence, I am satisfied that he has refuted any possible inference of a sexual motive. I will address his evidence momentarily. First, though, I will address the Crown’s reliance upon certain specific cross-count similarities, media tainting, and Dr. Bril’s evidence.

[4987] The Crown relies upon two specific and related cross-count similarities to support the evidence of Ms. S.S. The Crown contends that Ms. S.S. belongs to a cohort of patients who alleged they were not told the nature of the examination that would be conducted. Relatedly, the Crown contends that Ms. S.S. belongs to a cohort of patients who alleged they were not told the reason for the examinations that would be conducted. In my view, Ms. S.S. does not belong in either cohort. As I have already observed, Ms. S.S. conceded that Dr. Sloka provided a thorough explication of the neurological principles relevant to her clinical presentation, using textbooks and a hand drawn diagram. It is obvious to me that he explained the rationale for her examinations. It necessarily follows that he also identified the proposed examinations when explaining their rational. These cross-count similar fact cohorts have no probative value in Ms. S.S.’s case.

[4988] In assessing Ms. S.S.’s evidence, I have also considered the potential impact of media tainting. In my view, Ms. S.S.’s perception of her treatment by Dr. Sloka has been tainted by her exposure to media publications about Dr. Sloka. Ms. S.S. agreed in cross-examination that the news coverage she read may have included allegations mirroring her own allegations. She testified that the news coverage shocked her and made her feel that her examinations had not been justified. She agreed that her perception of the propriety of the examinations had changed as a result of reading news coverage about Dr. Sloka. When looking back upon her memories and perceptions, Ms. S.S. first looked through the prism of media coverage. In my view, there exists a significant likelihood that her memories and perceptions have been thereby distorted. Contradictions between Ms. S.S.’s police statement and her testimony support the conclusion that the distortions of Ms. S.S.’s memory have continued over time.

[4989] Next, I would like to address the evidence of Dr. Bril.

[4990] In my view, Dr. Bril’s evidence provided little assistance to the Crown, for the reasons which I will now explain.

[4991] Ultimately, Dr. Bril agreed that both a pelvic and rectal examination was medically reasonable in Ms. S.S.’s case. However, she believed that a family doctor, gynecologist, or urologist ought to be conducting these examinations. She did not believe a neurologist ought to conduct these examinations because, in her view, neurologists do not do pelvic examinations. Moreover, while it she considered it medically reasonable for other doctors to conduct a rectal examination, she did not consider a rectal examination neurologically indicated because Ms. S.S. had not complaint of saddle anesthesia or fecal incontinence. As for perineal examination, she was unsure about whether a urologist might want to perform one in an assessment of Ms. S.S..

[4992] Dr. Bril’s evidence troubles me for several reasons.

[4993] Dr. Bril’s evidence regarding the reasonableness of the rectal examination was intriguing. On the one hand, she agreed that it would be medically reasonable for a family doctor, gynecologist, or urologist to perform one. On the other hand, she insisted that it would only be neurologically reasonable if a patient reported fecal incontinence or saddle anesthesia. I want to first address the ostensible requirement of saddle anesthesia. Here, Dr. Bril states that a neurologist can test for a thing about which the patient is already aware. However, she disapproves of a neurologist testing to discern anesthesia about which the patient is unaware. The logic in this thinking escapes me. It rests upon the assumption that a patient already knows their symptoms when asked - a doctor can take a patient at their word. If so, then why examine the patient at all? Why, for example, test for sensation in the neurological examination when Ms. S.S. had already described her leg sensation issues? Dr. Bril had no problem with testing for sensation during the neurological examination, yet she takes issue here. In doing so, she revealed a fundamental illogical contradiction in her opinion. Moreover, Ms. S.S. proved herself to be an unreliable historian of her symptoms. She denied bladder incontinence at her fist appointment before declaring it at her second. Also, there have been patients in this case who were not aware of decreased sensation until Dr. Sloka conducted a neurological examination.

[4994] Moreover, if it is neurologically unreasonable to conduct pelvic and rectal examination, how do the same examinations become reasonable for the same patient when conducted by other doctors who are investigating the same issue? In my view, Dr. Bril did not provide a satisfactory explanation for her paradoxical opinion. Her opinion regarding Ms. S.S. is also undermined by medical records from the file of J.K. ER records for Ms. J.K. disclose that an ER doctor purported to conduct rectal and perineal examinations to investigate a neurological complaint involving Ms. J.K. tingling and weakness in Ms. J.K.’s lower extremities. Ms. J.K. made no report of saddle anesthesia. She had no changes in her bladder function. However, ER records indicate that the attending physician conducted a perineal examination to check for saddle anesthesia and also a rectal examination. Another physician conducted themselves in the same fashion as Dr. Sloka in similar circumstances. While that physician was not a neurologist, the medical investigation was clearly neurological in nature.

[4995] I would add at this juncture that Dr. Bril did not know whether it would be medically reasonable for a urologist to do a perineal examination as part of an investigation into Ms. S.S.’s bladder incontinence. She did not comment on whether it would be reasonable for a family doctor or neurologist to do so. In the circumstances, I am not prepared to conclude that a perineal examination, conducted in between the pelvic and rectal examinations, would constitute a medically unreasonable endeavour.

[4996] As discussed in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on Dr. Bril’s categorical declarations about the permissible scope of any given neurologist’s practice.

[4997] For his part, Dr. Sloka testified that he had the necessary training to competently conduct these examinations. Dr. Bril could not challenge him on this point. She had no knowledge of Dr. Sloka’s training and experience. Based upon his training and education, Dr. Sloka believed these examinations were medically reasonable and related to his neurological assessment of his patient.

[4998] Given Dr. Bril’s concession regarding the medical reasonableness of the examinations, given my decision to place no weight upon Dr. Bril’s categorical declarations regarding the permissible scope of neurology, and given Dr. Sloka’s unchallenged evidence regarding his training and competence, I am therefore not prepared to rely upon Dr. Bril’s evidence to infer that Dr. Sloka possessed a sexual purpose when conducting the pelvic, perineal, and rectal examinations on Ms. S.S..

[4999] I wish to now turn to an assessment of Dr. Sloka’s evidence.

[5000] I would like to begin by looking at the overall arc of Dr. Sloka’s investigation into Ms. S.S.’s difficulties, as revealed by the contents of his medical file, including the consultation letters he wrote to Ms. S.S.’s family doctor. In my view, Dr. Sloka’s medical file does not reveal any obfuscation. Instead, it reveals that Dr. Sloka communicated to Ms. S.S.’s family doctor a concern about bladder incontinence, its possible connection with Ms. S.S.’s other neurological complaint, and the resulting performance of a general examination performed to investigate that concern. Dr. Sloka’s contemporaneous communications to another medical professional supports the conclusion that Dr. Sloka honestly believed in the medical reasonableness of his investigations and refutes the contention that Dr. Sloka possessed a prurient motive. I reject the contention that the term “general examination” was used to obscure the nature of the examinations conducted and thereby reveals a prurient motive. The presence of a valid medical motive, in the absence of any compelling evidence of improper methods, supports the conclusion that the examinations were medical in nature, not sexual. Let me explain.

[5001] At the first appointment Ms. S.S. provided a detailed description of her leg difficulties. By the time of the appointment, vascular studies had apparently ruled out blood clots as an explanation for Ms. S.S.’s symptoms. EMG studies from the knee down appeared to have ruled out neurological issues from the knee down, but nerve functioning further up the neural pathways had not been tested. In taking Ms. S.S.’s history, Dr. Sloka inquired about bowel and bladder incontinence. It is obvious from his consultation letter and his evidence that he believed that he believed that bowel and bladder incontinence might be neurologically relevant to the leg sensation issues Ms. S.S. had reported. The relevance obviously stems from a concern about nerve damage higher up in Ms. S.S.’s neural pathways, in the pelvic region. Dr. Bril did not dispute the relevance of the incontinence inquiry to the neurological assessment of Ms. S.S. As it happens, Ms. S.S. denied any incontinence – and Dr. Sloka reported her denial to her family doctor, a fellow physician whom he could reasonably expect to understand the significance of that denial. Accordingly, Dr. Sloka did not perform any pelvic, rectal, or perineal examinations at the first appointment. He only conducted a neurological examination, which confirmed the reported leg sensation issues. He then ordered MRIs of Ms. S.S.’s spine, obviously for the purpose of looking for nerve damage in the pathways that service Ms. S.S.’s legs and feet. He also ordered EMG studies related to the nerve functioning of her lateral femoral cutaneous nerve.

[5002] In his consultation letter for the second appointment, Dr. Sloka disclosed that Ms. S.S. had reported bladder incontinence for the previous year, contradicting what she reported at her first appointment. Dr. Sloka explicitly highlighted this contradiction, underscoring the possible importance of this new revelation. As it happens, the duration of the reported bladder incontinence coincided with the duration of the reported foot and leg issues. I infer that the coincidence would not be lost on either Dr. Sloka or the family doctor. I am satisfied that Dr. Sloka flagged for the family doctor the newly reported bladder issue because of its potential neurological significance. He also drew the family doctor’s attention to the syrinx discovered at the base of Ms. S.S.’s spinal cord. He noted that the syrinx was likely congenital (and therefore benign), but he also noted that it was “distracting.” I am therefore satisfied that he flagged the syrinx as possibly being neurologically connected to Ms. S.S.’s bladder issues. He raised all these issues in the context of providing a history relevant to Ms. S.S.’s leg sensation issues. It is therefore obvious, in my view, that Dr. Sloka flagged a possible connection between the syrinx in Ms. S.S.’s spinal cord, her leg-sensation difficulties, and her bladder incontinence. I must stress here that these possible connections were being flagged for Ms. S.S.’s family doctor – the very type of medical professional that Dr. Bril thought possessed the knowledge and training to understand and investigate the implications of what Dr. Sloka had reported – the type of medical professional that might reasonably conduct pelvic and rectal examinations in these circumstances, according to Dr. Bril. Immediately after highlighting these potential connections, Dr. Sloka reported a “general examination.” In my view, Dr. Sloka could reasonably expect the family doctor to understand that the “general examination” pertained to an investigation of the potential connections that he had flagged, particularly since he previously reported a full neurological examination at the previous appointment. In addition, it would most certainly be reasonable for a family doctor to infer that the “general examination” pertained to an investigation of the potential connections between the bladder difficulties, the syrinx, and the leg-sensation issues. I can conceive of no other reasonable inference. Now, what would a family doctor expect to be included in a “general examination” that was performed to investigate bladder difficulties? According to Dr. Bril, a family doctor would reasonably want to conduct pelvic and rectal examinations to investigate those difficulties. Surely, then, a family doctor might reasonably expect Dr. Sloka to do the same, particularly when the family doctor knows that Dr. Sloka had already performed a full neurological examination. I therefore reject the Crown’s contention that the term “general examination” was used to obscure the nature of the examinations conducted and that that use of this term betrayed a prurient motive. I note here that Dr. Sloka testified elsewhere that the Royal College of Physicians and Surgeons required him to know how to conduct a general examination to attain his accreditation as a neurologist. His evidence on this point stood uncontradicted. While Dr. Bril professed to be unfamiliar with the term, Dr. Sloka’s medical files contained consultation letters from other neurologists who employed that same term. Dr. Paul Cooper, a neurologist who assessed K.S.-B. documented that he conducted a “general physical examination” that revealed “no significant abnormalities.” He provided no further elaboration. Similarly, Dr. Karen Ho, S.M.’s prior neurologist documented “general examination unremarkable” at her initial consultation. Like Dr. Sloka, both these neurologists charted more detailed descriptions of the neurological examinations they performed, thus highlighting a distinction between a “general examination” and a neurological examination. In my view, the Crown derives their theory of obfuscation from a premise of wrongdoing and seeks facts to support the premise. They also pursue this theory of obfuscation despite not specifically putting that theory to Dr. Sloka when they cross-examined him about Ms. S.S. Moreover, an examination of the full factual and clinical context supports an inference of relative transparency. Now, I appreciate that Dr. Sloka could have been more specific. And I appreciate that greater specificity would have better assisted both him and Ms. S.S.’s family doctor. But I also appreciate that Dr. Sloka operated in a community legal clinic in a relatively small medical community, compared to the much larger and more anonymous metropolis in which Dr. Bril operated. I infer from the evidence in this trial that Dr. Sloka was reasonably accessible to family doctors, should clarification be needed. I would also add that, in my observation, Dr. Sloka’s medical files revealed many consultation letters from other doctors that could also be criticized for failing to be as thorough as Dr. Bril would expect. Her standards were observed quite frequently in their breach. Also, if Dr. Sloka truly wanted to obfuscate, he could simply have omitted mention of any examination at all. Instead, he drew to her family doctor’s attention the very thing the Crown claims he was trying to hide. I see no obfuscation here. Instead, I see relative transparency, albeit with some laziness.

[5003] Dr. Sloka’s general examination yielded normal results. Accordingly, he told the family doctor that he would order another MRI to ensure that the syrinx did not change in size and could be considered congenital. That follow-up MRI revealed no concerns about the syrinx.

[5004] In my view, Dr. Sloka’s consultation reports reveal a transparent concern about a neurological connection between Ms. S.S.’s leg difficulties, her bladder difficulties, and her syrinx. That concern was conveyed to a medical profession that Dr. Sloka could reasonably expect would understand the issues being flagged. In my view, the consultation letters transparently reveal a genuine neurological concern that provided a genuine, logical, and medical motive for conducting pelvic, perineal, and rectal examinations. Also, Dr. Sloka could take comfort in knowing that an ER doctor for another one of his patients took a similar approach in a similar situation. I see no subterfuge and no improper motive here.

[5005] The Crown takes a different view. In the Crown’s view, Dr. Sloka’s evidence and medical file reveal that Dr. Sloka was not concerned about overactive bladder syndrome and instead possessed an improper motive. In my view, the Crown’s submissions lack merit, as I will now explain.

[5006] The Crown argues that Dr. Sloka did not possess any genuine interest in the investigation of overactive bladder syndrome. In support of this contention, the Crown argues that Dr. Sloka took no steps whatsoever to investigate the syndrome or refer her to a urologist who could do so. In my view, the evidentiary record proves otherwise. Dr. Sloka performed a physical examination that Dr. Bril conceded was a medically reasonable means of investigating overactive bladder syndrome. Dr. Sloka also ordered a follow-up MRI after Ms. S.S.’s second appointment. He specifically informed the family doctor that he would be looking for any interval change in the follow-up MRI. Then, at the third appointment, having found no interval change, Dr. Sloka suggested the possibility of a pelvic MRI or a referral to a urologist upon Ms. S.S.’s return to Canada after her studies abroad. Remember, she was leaving the country that day. Immediate follow-up was not possible. Nevertheless, he made the offer of follow-up upon Ms. S.S.’s return. The evidence provides ample support for the conclusion that Dr. Sloka possessed a genuine interest in the investigation of overactive bladder syndrome.

[5007] In their challenge to Dr. Sloka’s purported concern about overactive bladder syndrome, the Crown also critiques Dr. Sloka for failing to properly explore the prospect that Ms. S.S.’s symptoms were the product of a urinary tract infection. Dr. Sloka conceded that overactive bladder syndrome can be caused by a UTI. However, Dr. Sloka went on to discard the possibility of a bladder infection, because her bladder issues had persisted for a year. During that time, someone ordered a “post-void residual.” He presumed that a urine culture would have been done at that time, or as he put it, “that would have been a consideration.”

[5008] The Crown also points to alleged contrasts between Dr. Sloka’s approach to Ms. S.S. and his approaches to A.D. and R.P. Ms. A.D. repeatedly reported bladder issues to Dr. Sloka. Ms. R.P. had also reported bladder incontinence. Yet Dr. Sloka did not conduct rectal or pelvic examinations for either. However, the Crown never cross-examined Dr. Sloka on the reason he opted against pelvic, rectal, and perineal examinations for these two patients. As a result, I am unable to assess whether Dr. Sloka possessed a valid reason for his different approach to these two patients. I would note, though, that when testifying about Ms. A.D., Dr. Sloka testified that he understood Ms. A.D.’s bladder issues to be the result of the excessive consumption of fluids. I would also note that when the Crown suggested that Dr. Sloka did not have a standard approach to bladder incontinence, he responded by stating, “every clinical situation is different.” I am therefore not prepared to draw the inference from his different approaches that he lacked a genuine concern about overactive bladder syndrome in the case of Ms. S.S. Indeed, as the defence aptly points out, the examples of Ms. A.D. and Ms. R.P. serve to rebut the theory that Dr. Sloka used a purported concern about bladder incontinence as a ruse to gain access to his patient’s genital and anal regions. The cases of Ms. A.D. and Ms. R.P. provide two clear examples where Dr. Sloka refrained from using bladder incontinence as an excuse to perform pelvic and rectal examinations.

[5009] The Crown also submits that Dr. Sloka betrayed an awareness that he was not operating in the realm of neurology because he ordered an MRI of her lumbar spine before deciding on a referral to a urologist, “just to make sure it wasn’t a neurological explanation.” This submission is illogical. He ordered an MRI to look for a neurological explanation in the spinal cord. Inherently, that is a neurological inquiry.

[5010] The Crown also contends that Dr. Sloka had trouble interpreting his own medical records. They challenged his ability to interpret his report of a “general examination.” Similarly, the Crown suggests Dr. Sloka was unsure about his use of the term “anterolateral”. In addition, the Crown points to Dr. Sloka’s evidence that he “might have repeated some components of the neurological examination” on the date of the pelvic, rectal, and perineal examinations. I do not find these submissions convincing. As noted already, the context informed Dr. Sloka’s understanding of the term “general examination.” And, as noted, I believe Dr. Sloka could reasonably expect the family doctor to understand from the context the type of examinations contemplated by that term. Moreover, Ms. S.S. confirmed for him the nature of the examinations conducted. I also saw no uncertainty about Dr. Sloka’s understanding of the term anterolateral (front and side). In addition, I take nothing from Dr. Sloka’s evidence that on the date of the pelvic, rectal, and perineal examinations he might have repeated some components of the neurological examination. I do not see how this evidence is probative of whether Dr. Sloka conducted pelvic, rectal, and perineal examinations on the second appointment. Indeed, during the entire cross-examination, the Crown operated on the obvious assumption that Dr. Sloka had correctly identified the second appointment as being the appointment in which these examinations occurred. The Crown never challenged him on this issue.

[5011] The Crown also argues that, in the absence of any specific memory, Dr. Sloka speculated about having proposed and explained the pelvic, rectal, and perineal examinations. I disagree. Dr. Sloka reported a general examination. Ms. S.S.’s history and presenting complaint provided him with a basis to draw a conclusion about the nature of the examinations performed. Dr. Sloka then relied upon his standard practice to conclude that he would have proposed and explained the examinations in his office. His conclusion was supported by the evidence of Ms. S.S., who spoke about his thorough discussions, his reliance upon textbooks, and his drawing of a diagram. His conclusion was also supported by the diagram he drew, which was preserved in Ms. S.S.’s file. There existed a substantial body of evidence to support the conclusion that Dr. Sloka provided a thorough explanation of the proposed examinations.

[5012] The Crown suggests that Dr. Sloka provided inconsistent evidence regarding the source of his knowledge regarding overactive bladder syndrome. In doing so, the Crown seeks to challenge the credibility of Dr. Sloka’s claim that the medical literature justified his decision to conduct pelvic, rectal, and perineal examinations. I have trouble seeing the merit in this line of argument, because Dr. Bril herself conceded the medical reasonableness of at least the rectal and pelvic examinations. Dr. Sloka’s belief in the medical reasonableness of these examinations stood uncontradicted. Dr. Bril simply believed that these examinations ought to have been performed by someone else. As for the perineal examination, Dr. Bril did not know whether a urologist might conduct one as part of an examination into Ms. S.S.’s bladder difficulties. In addition, I saw no inconsistency in Dr. Sloka’s evidence. In-chief, Dr. Sloka testified that he relied upon his understanding of medical literature and guidelines. In cross-examination, he said he relied upon his medical training and textbooks from his time in practice. While he had since read the Canadian Urological Association guidelines in preparation for trial, he never purported to have relied upon them during his time in practice. I see no inconsistency.

[5013] The Crown also takes issue with Dr. Sloka’s testifying that the medical literature indicated that the medical examinations “can be considered” as part of an investigation into overactive bladder syndrome. The Crown makes two points: (1) the availability of an examination in the abstract does not make an examination on any specific patient reasonable; and (2) use of this language does not provide evidence of Dr. Sloka’s actual subjective motive at the time. I struggle to follow the Crown’s logic here for several reasons. First, I see this was one of many examples of Dr. Sloka’s preference for the deployment of doctor-speak over the deployment of plain language. Dr. Bril was guilty of this too. I recall at one point in the trial that I asked Dr. Bril why she did not make a point more clearly. The upshot of her reply was that it did not sound as fancy. Dr. Sloka appeared to suffer from the same affliction as Dr. Bril, where “fancy” supersedes clarity. Secondly, it is obvious from Dr. Sloka’s evidence that he believed he had conducted the examinations, and he believed that they were justified. Third, the use of the term “can be considered” connotes an element of discretion. Dr. Sloka made it clear elsewhere in his evidence that he was always guided by the specific clinical context. Fourth, the Crown never cross-examined him on this point.

[5014] The Crown also relies upon Dr. Sloka’s failure to request a chaperone, but CPSO guidelines did not require one at the time and Dr. Sloka was not questioned about it.

[5015] The Crown contends that evidence of Dr. Sloka’s sexual motive (and the resulting sexual nature of the examination) can be inferred because, “Dr. Sloka, failed to tell S.S. that both the vaginal and rectal examinations were neurologically unreasonable.” This submission presumes the neurological unreasonableness of the examinations, which Dr. Sloka disputed. Dr. Sloka testified to a belief that the examinations were neurologically and medically reasonable. He believed he was qualified to perform the examinations. And he believed it appropriate for him to perform them. I have accepted his evidence on these points.

[5016] Having considered the Crown’s critiques of Dr. Sloka’s evidence, I found none of them sufficiently compelling to doubt or reject his evidence.

[5017] Having considered all of the evidence, I accept Dr. Sloka’s evidence. I accept that, given the information available to him by Ms. S.S.’s second appointment, Dr. Sloka wanted to investigate whether Ms. S.S. suffered from overactive bladder syndrome and whether that syndrome might be related to Ms. S.S.’s leg difficulties and the syrinx on her MRI. I accept that Dr. Sloka believed that the examinations in question were medically reasonable. I accept that he believed he possessed requisite training, experience, and competence to conduct these examinations. I accept that he conducted the examinations in accordance with his training and standard practices. I therefore conclude that Dr. Sloka possessed a valid medical motive for the examinations and employed valid medical methods during the examinations.

[5018] In the absence of sufficient proof of an improper motive and improper methods, the totality of the evidence does not support the conclusion that Dr. Sloka engaged in sexual activity. Instead, the totality of the evidence supports the conclusion that he engaged in medical activity.

[5019] I also conclude that Dr. Sloka sought and obtained Ms. S.S.’s consent for these medical examinations. Ms. S.S. consented to medical examinations, and she received them.

[5020] Having rejected Ms. S.S.’s evidence and having accepted Dr. Sloka’s, I conclude that the Crown has failed to establish that Ms. S.S.’s examinations constituted sexual activity.

[5021] Dr. Sloka will be acquitted on this count.

I. Pituitary Adenomas

i. A.D. (Count 9)

A Summary of Ms. A.D.’s Complaint and Dr. Sloka’s Response to It

[5022] Summarizing Ms. A.D.’s evidence by recounting what she ultimately conceded would bestow undue consistency and clarity upon Ms. A.D.’s evidence. She began by alleging that Dr. Sloka conducted a skin examination at each appointment following every MRI she received. She estimated somewhere between twelve to fifteen MRIs. Then she downgraded her complaint, alleging eight to ten skin examinations. Then, in accordance with her statement to the police, she agreed that there may have been as few as five skin examinations. Then, when asked if there could have been fewer than five skin examinations, as Dr. Sloka claimed, she said she could not remember the number of skin examinations. However, on her evidence, Dr. Sloka performed each skin examination as part of his efforts to monitor a pituitary adenoma discovered in an MRI ordered by him. Ms. A.D. also alleged that Dr. Sloka performed a breast examination a “couple of times” in conjunction the skin examinations, again as part of the process of monitoring her pituitary adenoma. During the breast examinations, he attempted to express breast milk. In-chief, Ms. A.D. alleged that there was no consent discussion about the skin examinations. In cross-examination, she acknowledged an exhaustive consent discussion before providing explicit consent. Ms. A.D.’s description of Dr. Sloka’s breast examination methods bore a very close resemblance to the methods claimed by him.

[5023] Dr. Sloka admitted that on three occasions he conducted a triad of examinations (skin, breast, and visual fields examinations) for the purpose of monitoring a pituitary adenoma which had been identified on an MRI and confirmed in multiple follow-up MRIs. On his evidence, he explained the purpose of these examinations and obtained Ms. A.D.’s consent.

The Circumstances of Ms. A.D.’s Referral and Treatment History

[5024] Ms. A.D.’s clinic doctors at the University of Waterloo Health Services referred Ms. A.D. to Dr. Sloka twice.

[5025] Ms. A.D. was 18 years old when Dr. Souza made the first referral. He made this referral on September 2, 2010, after Ms. A.D. complained of headaches that recently worsened after Ms. A.D. started taking birth control pills.

[5026] Ms. A.D. saw Dr. Sloka once in relation to her first referral, on September 10, 2010.

[5027] Another UW Health Services doctor, Dr. Takacs, made a second referral to Dr. Sloka on April 18, 2012. Dr. Takacs made the referral after Ms. A.D. presented with a complaint of daily headaches for a period of six months, which were often accompanied by vertigo. Ms. A.D. was 20 years old at the time of this referral. After her fifth appointment in this referral period, a head MRI conducted on February 12, 2013, revealed a pituitary adenoma. Dr. Sloka continued to see Ms. A.D. for nine further appointments. During that time frame, Dr. Sloka ordered multiple MRIs to monitor the adenoma. He also repeatedly ordered pituitary bloodwork, to assess whether Ms. A.D.’s pituitary hormonal production had changed because of the adenoma. Ms. A.D.’s last appointment occurred on August 7, 2015. In total, Ms. A.D. saw Dr. Sloka a total of fourteen times during this second referral period.

The Evidence of Ms. A.D.

[5028] Ms. A.D. did not allege any impropriety at her first appointment. This appointment would not be noteworthy at all except for two things. First, Ms. A.D. testified that she never went into the examination room at this appointment and Dr. Sloka never performed any examination. Dr. Sloka reported neurological and cardiac examinations in his reporting letter for this appointment. Dr. Sloka’s standard cardiac examination involved the exposure of his patient’s left breast. Ms. A.D. agreed that these examinations may have occurred, and she may have forgotten about them because they were unremarkable. Second, Ms. A.D. testified that she believed that Dr. Sloka scheduled an MRI at the conclusion of her first appointment. She believed her second appointment with Dr. Sloka was a follow-up appointment at which Dr. Sloka intended to review her MRI results. Despite having reviewed her medical records in preparation for trial, she failed to remember and realize during her evidence in-chief that her second appointment was the product of a second referral, not a follow-up of the first appointment. As defence counsel took Ms. A.D. through her medical records during cross-examination, Ms. A.D. belatedly realized that Dr. Sloka only ordered MRIs later in her care.

[5029] I now come to Ms. A.D.’s evidence about the second referral period. As already mentioned, Ms. A.D.’s evidence about this referral period changed drastically as Ms. A.D. testified.

[5030] I intend to parse Ms. A.D.’s evidence into various subjects: (1) the timing, frequency, and number of skin examinations; (2) the timing, frequency, and number of breast examinations; (3) evidence regarding the subject of consent; (4) Ms. A.D.’s perception of the propriety of the examinations while she was Dr. Sloka’s patient (5) Ms. A.D.’s discussions with her then boyfriend, now husband; (6) Dr. Sloka’s method during the skin examinations; (7) Dr. Sloka’s method during the breast examinations; and (8) exposure to media publications and its effect on Ms. A.D..

[5031] Originally, Ms. A.D. testified that Dr. Sloka performed his first skin examination on her at the very first appointment of this second referral period. She erroneously characterized this visit as a follow up from the first visit. She also erroneously believed that this second appointment occurred a mere six months from the first. Additionally, she erroneously believed that Dr. Sloka discussed MRI results with her at this visit. Also, she erroneously believed that Dr. Sloka informed her at this visit that her MRI revealed a pituitary adenoma. In cross-examination, having reviewed her medical records, Ms. A.D. agreed that the topic of the discovery of a pituitary adenoma in her MRI did not occur until much later in her treatment with Dr. Sloka. A pituitary adenoma was not observed in an MRI until February 12, 2013. By that time, she had already attended four appointments in her second referral period – five appointments in total. Assuming the first skin examination occurred at the very next appointment after the adenoma’s discovery, it had to have occurred at Ms. A.D.’s sixth appointment, on February 20, 2013, a date on which Dr. Sloka documented a “general examination.” These errors played a significant role in Ms. A.D.’s initial position regarding the number of skin examinations conducted by Dr. Sloka. As she understood it, the skin examinations were performed for the purpose of looking for skin abnormalities arising from her pituitary adenoma. By erroneously tying the discovery of the pituitary MRI to her second visit, Ms. A.D. erroneously labelled the second appointment (May 18, 2012) as the date of her first skin examination.

[5032] Ms. A.D. also initially testified that Dr. Sloka conducted a skin examination after every MRI. She believed that she had received approximately 12-15 MRIs. Thus, her initial estimation of the number of skin examinations far exceeded subsequent estimations. Immediately, Ms. A.D. quickly modified her evidence, stating that the skin examinations occurred “after pretty much every” MRI, estimating a total of eight to ten skin examinations. That estimation would not hold. In cross-examination, Ms. A.D. acknowledged that she provided an estimate of five to six MRIs to the police. She agreed that the number of skin examinations could have been as low as five. Defence counsel then asked, “Could it be lower?” She replied, “I don’t recall.”

[5033] The parties and Ms. A.D. spent less time discussing the timing and frequency of her breast examinations. When the topic first arose in-chief, Ms. A.D. appeared to describe her breast examinations as an unusual component or adjunct of her skin examinations, which happened “a couple of times.” She confirmed her belief later in cross-examination:

A. I don't have a recollection of the – the exact date. I estimate it was the – probably the third follow up for my – so it would have been for like my second MRI. So, the – it would have been like exactly the same type of skin exam. Just with the – the breast exam on top of that.

[5034] Her evidence in cross-examination seemed to suggest that the breast examination occurred after the first MRI that revealed a pituitary adenoma, but her wording, not uncommonly for her, was unclear:

I don't have an exact date. I don't believe it was during – I think it was like after that first appointment that was a follow up for my first MRI. So, I think that was 20 – I think you said 2012 or 2013 for that so it wouldn't have been the first appointment. It was a subsequent appointment.

[5035] That confusing answer in cross-examination did not get clarified, but some clarity comes from Ms. A.D.’s dual assertions that the skin examinations began at the first appointment after the pituitary adenoma was discovered and that the breast examinations were an adjunct to the skin examinations. Clarity is also obtained by looking at the sequence of Ms. A.D.’s MRIs. Ms. A.D.’s first head MRI occurred on August 17, 2012. The results: “Unremarkable brain MRI.” Ten days later, she received a spinal MRI, which produced negative results. It was her second head MRI, third MRI in total, done on February 12, 2013, that revealed a pituitary adenoma. Given this contextual evidence, I am prepared to conclude that she believed the first breast examination occurred after her second head MRI, which is the MRI in which a radiologist first identified an adenoma. If the first skin examination occurred in the appointment after the discovery of the adenoma, then four visits had transpired in the second referral period – and the first skin examination occurred on the fifth appointment of this second referral period. If the breast examination occurred in conjunction with a skin examination (a point on which Ms. A.D. and Dr. Sloka agree), then Ms. A.D.’s estimate about the timing of the first breast examination essentially aligns with Dr. Sloka’s position, albeit with some confusing and distracting details mixed in. At least implicitly in her evidence in-chief, though, Ms. A.D. appeared to take the position that breast examinations did not occur every time a skin examination occurred. I say this because Ms. A.D. appeared to suggest that the first skin examination did not involve a breast examination. However, in cross-examination, she stated she did not know whether she got a breast examination on the first day she got a skin examination. Also, as I have just recounted, she also appeared to suggest at other points in her evidence that the first breast examination occurred at the very same time her first skin examination occurred. Clarity was not Ms. A.D.’s strong suit.

[5036] I come now to Ms. A.D.’s evidence on the topic of her consent to the skin examinations and, by extension, to the breast examinations. In her evidence in-chief, Ms. A.D. alleged that there were no discussions about the existence of her consent prior to the first skin examination. Implicitly, the same held true for the others. On her account, he announced what he was going to do, but did not seek her consent. Given the evidence elicited in cross-examination and even some of the evidence elicited in-chief, I am shocked that the Crown took her down this road. In-chief, Ms. A.D. testified that Dr. Sloka had told her that he wanted to look for discolouration and skin changes. She also testified that Dr. Sloka told her that sometimes a problem in the brain can lead to nipple discharge. In cross-examination, defence counsel suggested to Ms. A.D. that, as part of the treatment and monitoring of her pituitary adenoma, Dr. Sloka advised her that he wanted to conduct skin and breast examinations. Ms. A.D. replied, “I don’t recall that discussion entirely except in – when I was asking questions after I was in a gown.” Soon after, she acknowledged that Dr. Sloka “pulled something up on his computer” and showed her an image to explain that the pituitary microadenoma could cause different conditions in the body, by causing it to produce too many or too few hormones. He also pulled out a textbook to assist in explaining the microadenoma and how it can affect different systems of the body. His computer, of course, was located in his office, not the examination room. This discussion occurred before she got into a gown. She also agreed that Dr. Sloka told her that one of the systems that can be affected is the skin and that Dr. Sloka told her that he wanted to check her skin to make sure that she did not have any anomalies caused by these hormonal imbalances. Having made these concessions, Ms. A.D. agreed that this consent discussion occurred in the office. Ms. A.D. also agreed that she asked Dr. Sloka questions, that he answered her questions, and that he satisfied her that there was a legitimate medical purpose for the examination. Provided with sufficient information, Ms. A.D. testified that she agreed to the examinations. Ms. A.D. also stated in cross-examination that she did not take issue with the examinations because Dr. Sloka provided her with an answer for each and every question she raised. Cross-examination thus revealed that Ms. A.D. acknowledged that she provided her expressed consent only after Dr. Sloka provided her with all the information that she felt necessary to provide her consent. With those concessions having been made, I am astonished that Ms. A.D. ever thought to suggest that there was never a discussion of her consent. I am equally astonished that the Crown thought it advisable to introduce the topic, because cross-examination revealed that Ms. A.D. had mentioned these consent discussions in her police statement. I am also surprised that the Crown would in its submissions assert the absence of consent discussions, knowing what transpired in cross-examination.

[5037] Ms. A.D.’s ultimate admissions about providing informed consent fatally undermined her claim that she felt at the time that Dr. Sloka’s examinations were “largely not appropriate.” In-chief, she claimed that examinations occurred in the absence of any discussion of her consent, that she believed the examinations were inappropriate, and that, as a result, she asked a lot of clarifying questions each time he wanted to do the examinations. She claimed that she felt that the examinations inappropriately violated her personal space and that she did not feel that she could decline the examinations because Dr. Sloka was an authority figure. As already noted, she later reluctantly agreed in cross-examination that a thorough consent discussion occurred, that Dr. Sloka satisfied her of the medical appropriateness of the examinations, and that she consequently consented to the examinations. She also very reluctantly agreed in cross-examination that in her police statement she said she did not feel that there was anything weird about the examinations because Dr. Sloka provided an answer to every question she asked. Ms. A.D.’s determined efforts at evading these concessions significantly harmed her credibility.

[5038] In conceding that she viewed the examinations as medically appropriate, Ms. A.D. undermined her claims about the discussions she had with her then boyfriend, Al.B. According to Ms. A.D. she spoke to Mr. Al.B. about her examinations on a couple of occasions. She recalled an early conversation in which they joked about a skin examination, but she maintained they were not making light of the situation. Rather, she claimed that they laughed uncomfortably about the weirdness of the examination: “… like ha ha, that’s weird, really weird.” By the time she came to alleging this uncomfortable gallows humour, she had already acknowledged that she did not at the time think the examinations were weird. Ms. A.D. also testified that she and Mr. Al.B. thought the skin examination was medically appropriate but nevertheless improper. Ms. A.D.’s evidence regarding the tone of her conversations with Mr. Al.B. was undermined by Ms. A.D.’s concession elsewhere in her evidence that she considered the examinations proper, the product of informed consent, and medically warranted.

[5039] Ms. A.D.’s contemporaneous belief in the propriety of the examinations is supported by the fact that she never felt the need to have anyone accompany her to her appointments or to have anyone act as a chaperone for her examinations. Discomfort did not stop her from being Dr. Sloka’s patient; a move to the state of Washington ended her tenure with Dr. Sloka. Even after her move, she attempted to book another appointment with Dr. Sloka, but she tried too late. To see Dr. Sloka again, she needed a new referral, because more than a year had elapsed since her previous appointment. Before seeking to re-book with Dr. Sloka, she made no attempt to book with a different neurologist in the region. Her claim that she believed Dr. Sloka was her only option lacked credibility, given her awareness of some other options in the region.

[5040] I come now to Ms. A.D.’s evidence about Dr. Sloka’s method in the skin examinations.

[5041] Ms. A.D. testified that Dr. Sloka instructed her to remove all her clothing. She testified that, after she asked how to wear the gown, Dr. Sloka told her the gown could open either at the front or the back. Ms. A.D. wore her gown opened at the back.

[5042] Ms. A.D. testified that the skin examination came after the neurological examination (and on any subsequent appointment that also involved a neurological examination). This claim is confusing, because Dr. Sloka only documented one neurological examination in the reporting letters written after February 12, 2013 (the date of the discovery of the pituitary adenoma). That occurred on June 27, 2014, a date on which he also reported a cardiac examination. He did not report any skin, breast, or visual fields examinations for this appointment, though.

[5043] Ms. A.D. testified that she stood in the middle of the examination room. He started at the top, examining her face, neck, upper chest, and exposed arms – everything not covered by her gown. He lightly touched her arms as he checked her skin. Next, he removed one of her arms from her gown and checked her exposed chest and breast area on that side of her body. Afterwards, he placed her arm back into her gown. He conducted his thorough examination in segments, so that other segments of her body were covered while he was looking at one segment. He then repeated the process with the other side of her body. Having examined her upper front torso, Dr. Sloka next examined the lower part of her body. He lifted the bottom of her gown to look quickly at her lower stomach. Then he proceeded to look in the area of her vulva. Then he inspected her legs and then her feet. Dr. Sloka repeated the same procedure for the back of her body, starting with top and moving down. It was easier for him to examine her back, because he simply moved the gown off to the side to examine covered areas as needed.

[5044] Ms. A.D. testified that Dr. Sloka positioned and moved his head almost like a scanner. She estimated that Dr. Sloka’s remained about four to six inches away from her body as he scanned her skin. In cross-examination, she confirmed that this was merely an estimate. Contrary to the submission made by the Crown, Ms. A.D. never alleged that Dr. Sloka positioned himself more closely when examining Ms. A.D.’s pelvic region.

[5045] Ms. A.D. also testified that Dr. Sloka lightly slid his hand over her skin, briefly grazing it in the process. While she could not recall precisely where he touched, she believed he touched her chest in this fashion. Then she added that she knew for sure that Dr. Sloka grazed her stomach. She asked Dr. Sloka about the grazing of her skin. He told her that he was trying to feel for any changes or abnormalities in her skin.

[5046] Ms. A.D. testified that during her final skin examination, Dr. Sloka parted her buttocks to allow him to see otherwise concealed skin. Ms. A.D. added that she had gained weight since her previous skin examinations. He did this for a second or two. She could not recall whether Dr. Sloka used part of her gown as a barrier between his hand and her buttocks.

[5047] I arrive now at Ms. A.D.’s description of her breast examinations.

[5048] Ms. A.D. testified that the breast examinations occurred immediately after the skin examinations.

[5049] Dr. Sloka began by asking her to lay down on the table. He then asked her to put one arm above her head and remove one sleeve and exposed one breast. He then proceeded to palpate that breast in “a normal breast exam type way,” palpating in a circular motion with his fingertips. Then he attempted to express discharge from her nipple. Ms. A.D.’s description of Dr. Sloka’s method matched Dr. Sloka’s own description. He placed a flattened hand on each side of her nipple and then pressed the sides of his opposing index fingers together, pressing the nipple in the process. On each occasion, Dr. Sloka told her that he was not able to express any discharge. However, on one occasion, he informed her that he found a cyst. He ordered a breast ultrasound to investigate that cyst.

[5050] In 2017, Ms. A.D. saw a neurologist in Seattle. She testified that her experience there caused her to believe that her examinations with Dr. Sloka were inappropriate. However, she did not think she had reason to make any complaint against Dr. Sloka. She said she thought the different methods of the two neurologists might be the product of differences between Canadian and American methodologies.

[5051] Ms. A.D.’s evidence about her perspective in 2017 was cast into doubt by her evidence about her response to reading about Dr. Sloka in the news. She subscribed to The Record on Facebook. At one point she saw an article about Dr. Sloka, which referred to allegations of sexual impropriety with a patient and included mention of a skin examination. Ms. A.D. considered the allegations “ridiculous” because she thought the allegedly improper skin examinations were what a neurological examination was supposed to look like. In other words, she continued to think her examinations had been appropriate. Over time, Ms. A.D. continued to read news about Dr. Sloka, including the fact that his medical licence was suspended. She still did not think her own examinations were improper. Later, one article mentioned that anyone with information about Dr. Sloka could contact police. Even then, Ms. A.D. did not consider herself a victim. However, her concerns had been raised. She decided to contact the police and provide them with all the information about her own experience and see what they would decide to do.

[5052] It is obvious from the tenor of Ms. A.D.’s evidence that her attitude about Dr. Sloka has since changed and that she now views herself as a victim. However, the defence did not explore when or why that attitude changed, no doubt because Ms. A.D.’s ultimate account so closely aligned with Dr. Sloka’s. Nevertheless, I am left with the inescapable conclusion that Ms. A.D.’s perception of her treatment was eventually altered by news of the criminal prosecution against Dr. Sloka. In, my opinion, there exists a real likelihood that the tainting effect of news coverage has tainted Ms. A.D.’s memory and perceptions of her treatment by Dr. Sloka and inflated her recollection about the number and frequency of her pituitary examinations.

The Evidence of Al.B.

[5053] Mr. Al.B. remembered having two conversations with Ms. A.D. about Dr. Sloka. He testified that his memory of these conversations blended together somewhat. In both conversations, they joked about her appointments. In one conversation, he recalled Ms. A.D. commenting on Dr. Sloka’s eccentricity. She also mentioned having to strip down for an examination. They joked about how it would be inappropriate if it had not been performed by a doctor. In the second conversation, Ms. A.D. mentioned that she was “gross and sweaty” for the examination. They both joked about Dr. Sloka’s misfortune in having to examine her when she was in this condition, especially because Dr. Sloka had to part her butt cheeks during the examination.

The Evidence of Dr. Bril

[5054] In Dr. Bril’s opinion, there was no neurological reason for Dr. Sloka to ever conduct a breast or skin examination on Ms. A.D. However, Dr. Bril testified that she was not qualified to offer an opinion about whether these examinations might be a medically reasonable part of the ongoing monitoring of Ms. A.D.’s pituitary adenoma. However, she took the view that an endocrinologist ought to have been treating and following the adenoma. If the adenoma got bigger, Ms. A.D. could see a neurosurgeon to have it removed. She envisioned a more limited role for the neurologist. Specifically, Dr. Bril agreed it was neurologically reasonable for Dr. Sloka to examine Ms. A.D.’s visual fields as part of the monitoring of her pituitary adenoma, to ensure that the adenoma was not interfering with the optic nerve. She agreed that Dr. Sloka’s performance of visual fields examinations reflected a very cautious approach. However, she considered the breast and skin examinations off-limits for a neurologist.

[5055] Previously in her evidence, Dr. Bril had testified that the treatment and monitoring of an adenoma can involve a multidisciplinary team. The assignment of responsibility depended on the size of the tumor. First, one must determine the existence of the tumor and its size. Then one needs to perform blood tests to determine if it is secreting hormones. If the mass was not secreting hormones (which was the case for much of the time for Ms. A.D.) and it was not large, then a neurologist could monitor the patient. If the mass was secreting hormones, she the neurologist ought to refer the patient to an endocrinologist. If the mass was large enough, the neurologist ought to refer the patient to a surgeon. Based upon Dr. Bril’s previous evidence, Ms. A.D.’s case qualified as one suitable for ongoing monitoring by a neurologist.

[5056] Dr. Bril believed that Dr. Sloka strayed out of his neurological lane at times during his treatment of Dr. Sloka. For example, she believed he strayed out of his neurological lane when assisting Ms. A.D. with birth control. On October 24, 2012, Dr. Sloka referred Ms. A.D. to a gynecologist, Dr. Wakim, after changing Ms. A.D.’s birth control pill from Lynessa to a progestin only pill (Micronor), to mitigate stroke risk involved with migraine patients who take estrogen-based birth control medicine. On August 19, 2014, Dr. Wakim switched Ms. A.D.’s birth control pill back to Lynessa. On February 11, 2015, Ms. A.D. reported weight gain following the switch. She spoke to Dr. Sloka about options. He switched her birth control prescription to Alesse, again keeping Ms. A.D.’s stroke risk in mind. Dr. Bril took the position that Dr. Sloka ought to have left the prescription of birth control medication to either the family doctor or the gynecologist. She believed his role ought to have been limited to advising Ms. A.D. about stroke risk. Similarly, she took the view that consultations regarding the negative side effects of some of her birth control prescriptions (weight gain, bowel issues, abdominal issues) fell outside the field of neurology.

[5057] Dr. Bril felt that Dr. Sloka also stepped out of his neurological lane when he performed abdominal examinations on Ms. A.D. in response to complaints of abdominal symptoms. In the same vein, she felt it inappropriate to order a pelvic ultrasound in response to Ms. A.D.’s complaint of lower abdominal pain.

[5058] In the same vein, Dr. Bril thought Dr. Sloka strayed beyond neurology when he ordered an ultrasound of Ms. A.D.’s appendix, right ovary, and right ureter to confirm his belief that pain associated with Ms. A.D.’s menstrual cycle was not the result of appendicitis.

[5059] Dr. Bril also thought it beyond the scope of neurology to discuss with Dr. Sloka her frequent voiding. Dr. Bril stated that Dr. Sloka’s gynecologist was addressing Ms. A.D.’s bladder issues. There was no factual basis for this claim, though. Dr. Sloka did not refer Ms. A.D. for that issue and Dr. Wakim’s consultation letters did not address that issue.

[5060] Dr. Bril also felt Dr. Sloka strayed from his neurological lane when investigating whether Ms. A.D.’s bladder difficulties were caused by something other than MS. Thus, she believed he strayed beyond neurology when ordering an ultrasound of her bladder. According to Dr. Bril, ruling out MS (a neurological issue) required Dr. Sloka to refer Ms. A.D. to a family doctor or urologist for the ultrasound.

[5061] While Dr. Bril did not think it reasonable to do any breast examination, she felt it reasonable for Dr. Sloka to order a breast ultrasound once he located a cyst. It was reasonable to expedite the ultrasound on behalf of the family doctor, even though treating the cyst is not part of the field of neurology.

[5062] Dr. Bril also suggested, albeit not firmly, that Dr. Sloka monitored Ms. A.D.’s pituitary adenoma for longer than was necessary. She testified that by May 14, 2014, “you could argue that” there was no point seeing Ms. A.D. again. She noted that Ms. A.D. did not present with an active neurological disorder; she had normal bloodwork; her headaches were under control; and her apparent tumor had shrunk. Dr. Bril suggested that Ms. A.D. could return to her family doctor at that point and only return to a neurologist if the family doctor came across any concerns.

[5063] The defence has alleged that Dr. Bril displayed bias in her approach to Ms. A.D.’s case. In particular, the defence asks that I pay attention to Dr. Bril’s allegedly unfounded belief that Ms. A.D. did not actually possess a pituitary adenoma. To explore the claim of bias, I must keep in mind that Dr. Sloka’s medical file for Ms. A.D. did not contain the actual MRI images of her brain. Instead, it contained the MRI reports authored by the radiologist(s) who oversaw the MRIs. Despite the conclusion of the radiologist(s) in six MRIs that Ms. A.D. had a pituitary adenoma, of roughly the same size for each MRI, Dr. Bril opined that the apparently small adenoma might be an artifact of the imaging process and not an actual adenoma. In reference to the final MRI, where the radiologist concluded that Ms. A.D. had a “stable left pituitary microadenoma,” Dr. Bril offered her disagreement, stating that the thing seen by the radiologist (and not her) was an artefact and not an adenoma. She later walked that claim back somewhat, referring to it as a “probable artefact.”

The Evidence of Dr. Sloka

[5064] Due to the number of appointments Ms. A.D. attended, Dr. Sloka had a basic recollection of who she was. However, he effectively had no memory of the specifics of any given appointment. He relied upon the content of his consultation letters for the truth of their contents and the remainder of Ms. A.D.’s medical file for context.

[5065] The defence and Crown took contrasting approaches to the presentation of Dr. Sloka’s evidence. In-chief, the defence focussed on the appointments in which Dr. Sloka claimed examinations occurred. The Crown took a more exhaustive approach, taking Dr. Sloka through each appointment and engaging in a granular examination of his ongoing treatment of Ms. A.D. In the interests of brevity and clarity, I intend to focus mostly on summarizing Dr. Sloka’s evidence regarding the appointments on which either Dr. Sloka or the Crown contend that examinations occurred, on conduct which the Crown contends strayed beyond the field of neurology, and on any important factual details relied upon by either party when asking the court to draw inferences on material issues.

[5066] Ms. A.D.’s first referral period is unimportant except for a few small points. Ms. A.D. attended for a single appointment in this referral period, on September 10, 2010. Ms. A.D. had been referred to Dr. Sloka for an assessment of her persistent headaches which worsened after she started using her birth control medication. Dr. Sloka was asked to assess her headaches. Dr. Sloka conducted a neurological and cardiac examination. The results were normal. He suggested discontinuation of her birth control medication. He also prescribed medicine for Ms. A.D.’s migraines. Additionally, he provided advice about use of daily medications to prevent her headaches. He also provided alternative medication options. Ms. A.D. also complained of urinary frequency. Consequently, Dr. Sloka ordered some bloodwork. Given her normal neurological examination, he did not suspect MS to be a factor but noted it “may be a consideration.” Nevertheless, he expected Ms. A.D. to see her family to follow up on the blood test results. He did not make any plans to see Ms. A.D. in follow-up.

[5067] Ms. A.D. obtained a second referral from the UW Health Sciences clinic on April 18, 2012, nineteen months after her first appointment with Dr. Sloka. Her first appointment of this second referral period occurred on May 18, 2012, twenty months after the only appointment from her first referral period. Ms. A.D. had reported a new type of headache. This headache involved stabbing pain on the right side of her head and brief bouts of confusion. Dr. Sloka conducted neurological and cardiac examinations. The results of the neurological examination were normal. Dr. Sloka documented a mild murmur from his cardiac examination. He did not order an echocardiogram, though, which caused her to infer that he was not concerned about the murmur at the time. However, he ordered a brain MRI and EEG because of Ms. A.D.’s report of unusual symptoms in the wake of her headaches. Like the first time she saw Dr. Sloka, Ms. A.D. reported bladder difficulties. Due to her continued bladder difficulties, he ordered a post-void residual ultrasound of her bladder.

[5068] By the time of her next appointment, on August 24, 2012, Ms. A.D. had completed her brain MRI, which was normal. Her ultrasound revealed a cyst, but a follow-up ultrasound showed that the cyst had resolved. Nevertheless, Ms. A.D. continued to report right lower quadrant pain, especially with her menstrual cycle. Also, Ms. A.D. continued to report bladder difficulties. Dr. Sloka ordered bloodwork to rule out causes like diabetes and diabetes insipidus. He also ordered an MRI of her spinal cord to investigate the possibility that her bladder difficulties were a symptom of MS.

[5069] Dr. Sloka next saw Ms. A.D. in follow-up on September 24, 2012. She reported that the frequency of her stabbing headaches had decreased. Ms. A.D. also reported continuing right lower quadrant pain associated with her menstrual cycle. Ms. A.D. also reported concern that she was getting cysts while taking the progestin only pill. Dr. Sloka testified that he conducted an abdominal examination to investigate the abdominal pain. He noted that her pain seemed a little high and closer to her appendix. While he did not think Ms. A.D. suffered from appendicitis, he ordered an ultrasound of her appendix, right ovary, and right ureter. Dr. Sloka disagreed with Dr. Bril’s opinion that he should have left any abdominal examination to Ms. A.D.’s family doctor. Dr. Sloka was potentially having pain associated with her cessation of using of an estrogen-based birth control pill and her commencement of using a progestin-only pill. She had changed her birth control medication to address her headaches. She was describing right lower quadrant pain, which could be the result of her progestin-only pill not controlling her ovarian cysts. In performing the abdominal examination, Dr. Sloka said he was the examining the possible side effects of a new birth control medication prescribed to address Ms. A.D.’s headaches – a neurological issue. Given that she described the right lower quadrant, the possibility of appendicitis also arose. Dr. Sloka testified that patient care and patient safety concerns justified the examination. Had he found appendicitis, he would have sent her directly to the ER.

[5070] By the time of Ms. A.D.’s return on October 24, 2012, her ultrasound was normal. However, Ms. A.D. continued to have ovarian cysts. Accordingly, Dr. Sloka referred Ms. A.D. to Dr. Wakim to discuss birth control options that could mitigate her cysts. Dr. Sloka had also received Ms. A.D.’s bloodwork in advance of his appointment. Results suggested that Ms. A.D. might either be consuming too much water or that she may have a problem with her antidiuretic hormone. Consequently, Dr. Sloka ordered an MRI of Ms. A.D.’s pituitary stalk, posterior pituitary, and hypothalamus.

[5071] Ms. A.D. attended for her MRI on February 12, 2013. The report indicated the presence of a pituitary microadenoma.

[5072] Ms. A.D. next saw Dr. Sloka on February 20, 2013. Ms. A.D. continued to report headaches, but they were unchanged, and she was tolerating them. To investigate the pituitary adenoma, Dr. Sloka ordered bloodwork to “tease out whether … this is a [hormone] producing adenoma or not.” He also conducted a “general examination.” Dr. Sloka testified that the “general examination” consisted of his standard triad of examinations performed for the purpose of investigating and monitoring pituitary adenomas. He conducted skin, breast, and visual fields examinations. He typically documented these three examinations in his reporting letters by referring to them as a “general examination.”

[5073] Dr. Sloka testified that he would provide a full explanation and obtain Ms. A.D.’s consent before proceeding with his “general examination.”

[5074] Dr. Sloka disagreed with Dr. Bril’s opinion that it was not neurologically reasonable to conduct this triad of examinations. He testified that, as a condition of obtaining his certification as a neurologist, the RCPSC required neurologists understand how to investigate and manage pituitary issues. According to his training, the examinations he performed were part of the clinical evaluation of a pituitary adenoma. He felt he had the training, experience, and competence to conduct the examinations. His evidence on RCPSC standards and his training stood uncontradicted and unchallenged.

[5075] Dr. Sloka testified that he conducted the skin, breast, and visual fields examinations in accordance with his standard methods. Regarding the skin examination, Dr. Sloka denied grazing Ms. A.D.’s skin with his fingers. That was not part of his method. Dr. Sloka also denied positioning his head four to six inches away from Ms. A.D. That would be too close for him to focus. Dr. Sloka testified that he positioned himself one to two feet away from the patient’s skin during the examination. Dr. Sloka also denied telling Ms. A.D. that some diseases, like MS, can present with skin abnormalities. He would not say this about a skin examination pertaining to a pituitary adenoma. However, he considered it possible he may have said something like this in 2010 when discussing Ms. A.D.’s bladder issues and the possibility of MS.

[5076] At the conclusion of Ms. A.D.’s February 20, 2013, Dr. Sloka ordered another pituitary MRI and planned to see Ms. A.D. in three months time. He also repeated pituitary bloodwork.

[5077] Dr. Sloka next saw Ms. A.D. in follow-up on May 22, 2013. Her headaches remained unchanged. She was about to see Dr. Wakim for the first time to address her ovarian cysts. The follow-up MRI revealed that Ms. A.D.’s adenoma had remained stable – it had not changed appreciably in size. Her pituitary hormones were also stable. Dr. Sloka reported in his consultation letter that, in the near term, he planned to repeat the MRI every three or four months, “just to be careful.” He also ordered a repeat of her bloodwork. In his consultation letter, Dr. Sloka also wrote, “she has no visual difficulties and the pituitary is well away from the optic chiasm at present.” He documented the absence of visual difficulties because Ms. A.D. told him so. He denied examining Ms. A.D. It had only been 3 months since her initial pituitary examination. He saw no reason to conduct further examination. If she had reported a change in her symptoms, he might have considered it, but she did not. Strangely, the Crown did not suggest to Dr. Sloka that he conducted any of the triad of examinations on this date. Indeed, they did quite the opposite: “And quite apart from the length of time, given the fact that there were no symptoms, I'm going to suggest you decided not to do any examination at this appointment?” So, I am perplexed that the Crown now argues in submissions that Dr. Sloka must have performed his triad of examinations because he recorded no visual fields difficulties. In any event, consistent with his stated plan to monitor Ms. A.D. every few months in the near term, Dr. Sloka arranged to see Ms. A.D. in three months time. In the interim, he wanted her to attend for an MRI and bloodwork.

[5078] Ms. A.D. returned to see Dr. Sloka on August 30, 2013. She reported significant improvement in her headaches. Relatedly, she had seen Dr. Wakim, who switched her back to the Linessa birth control pill. By this appointment, her follow-up MRI had shown no appreciable change from the previous MRI. Dr. Sloka’s file did not contain any bloodwork from the period between the last appointment and this one. He did not know the reason for this. He could only speculate that perhaps Ms. A.D. did not attend for any. In his consultation letter, Dr. Sloka documented, “Her examination remains stable although we did find a tiny cyst on her right breast….” Based on this passage, Dr. Sloka believed he performed his triad of pituitary examinations. Dr. Sloka maintained that these examinations were warranted and in accordance with his training. Findings on these examinations might inform him about the nature of the pituitary adenoma. He maintained that, according to his training, the physical examinations are part of the clinical assessment and ongoing monitoring of a pituitary adenoma. Dr. Sloka arranged to see Ms. A.D. in six months time, following the completion of a follow-up MRI. He also ordered an ultrasound of her breast, to confirm that the cyst was benign.

[5079] Dr. Sloka next saw Dr. Sloka on November 4, 2013, earlier than planned. Dr. Sloka saw Ms. A.D. sooner than he planned, because her MRI got booked sooner than planned. Her MRI remained stable. He planned to see her in six months.

[5080] Dr. Sloka again saw Ms. A.D. on May 14, 2014. An MRI from the previous week showed that her adenoma had shrunk slightly. In his reporting letter, he expressed uncertainty about whether this reported shrinkage was a “sampling error.” He also reported conducting a visual fields examination and a fundoscopy, which produced normal results. Although he reported an examination of Ms. A.D.’s eyes, he reported the deferral of any other examination. Accordingly, Dr. Sloka denied performing skin and breast examinations at this appointment. He reported in his consultation letter that Ms. A.D. was doing well; her headaches are well maintained; her acne and menstrual cycles were being maintained; and her bladder frequency had not changed. Justifying his deferral of the triad of pituitary examinations, Dr. Sloka testified that, by this appointment, Ms. A.D. had received five MRIs and two previous standard pituitary examinations (involving skin, breast, and visual fields examinations). Dr. Sloka stated in his reporting letter that he planned to see Ms. A.D. in a month or two and that he may examine her at that point. He was not certain what examinations he was contemplating at the time – but he could not discount the possibility that, amongst other things, he might have been contemplating a repeat of the triad of pituitary examinations.

[5081] Dr. Sloka saw Ms. A.D. in follow up on June 27, 2014. He documented that she continued to be “doing well,” but also continued to void frequently. Pituitary bloodwork received in advance of this appointment revealed normal results. Dr. Sloka also reported conducting cardiac and neurological examinations on this date. Her blood pressure (143/87) was borderline. Dr. Sloka testified that he performed the cardiac and blood pressure examinations to monitor the stroke risk associated with Ms. A.D.’s use of estrogen-based birth control medication, which had been prescribed by Dr. Wakim in May of 2013. He was not sure why he had never previously reported measuring Ms. A.D.’s blood pressure. He noted that it had “been a while” since he had done neurological and cardiac examinations on Ms. A.D. The results of the cardiac and neurological examinations were normal. He did not report or admit performing the triad of pituitary examinations on this date.

[5082] Ms. A.D. returned to see Dr. Sloka on February 11, 2015. I his consultation letter, Dr. Sloka documented that Ms. A.D. reported that her headaches were stable. Ms. A.D.’s recent MRI was also stable. However, Ms. A.D. had reported significant weight gain in the previous eight months, which Dr. Sloka thought might be attributable to her current birth control medication, which reportedly was failing to control her acne well. Dr. Sloka reported that Ms. A.D. sought advice about birth control options and that he switched her prescription to Aless, “with apologies to Dr. Wakim,” noting that the medications she asked about carried a greater stroke risk. Ms. A.D. also reported loose stools and mild bleeding with bowel movements a few months previously. Dr. Sloka documented a brief abdominal examination related to this complaint. Apart from the abdominal examination, Dr. Sloka documented deferring any other examinations. Dr. Sloka also documented that he ordered “some blood work to rule out secondary causes of pituitary dysfunction again.” He added, “we will arrange to see her in follow up and if at that time things have not resolved then I will examine her as per usual.” Given the context, he believed that he may have been voicing an intention at the next appointment to perform his triad of pituitary examinations.

[5083] By the time Ms. A.D. returned for her next appointment on April 29, 2015, her pituitary bloodwork had remained normal. Dr. Sloka documented in his consultation letter that Ms. A.D.’s headaches had remained stable, apart from some recent migraines with aura. Ms. A.D. also reported great satisfaction with her new birth control medication. Dr. Sloka documented a long discussion about the risks and benefits of her birth control medication. She reportedly decided to continue with the birth control medication he had prescribed. Dr. Sloka arranged to see Ms. A.D. in two months, “to ensure stability.” He implied the deferral of any examinations when noting, “At that time, we may examine her to assure that there is nothing concerning.” He testified that he did not examine Ms. A.D., having just examined her in June of 2014.

[5084] Regarding Ms. A.D.’s next appointment on June 29, 2015, Dr. Sloka documented that Ms. A.D. reported, “that she has been stable with her symptoms although in the past month she has noticed a slight change in her bowels.” Dr. Sloka ordered some bloodwork to investigate her bowel complaint. He also ordered pituitary bloodwork. Regarding examinations, Dr. Sloka documented, “We have deferred examining her today. I will examine her in 5 weeks when we see her in follow up.”

[5085] Dr. Sloka saw Ms. A.D. in follow up on August 7, 2015. He documented that Ms. A.D. continued to tolerate her birth control medication well, but that her acne was not completely under control. Consequently, he prescribed a different birth control medication. Otherwise, Ms. A.D. reported doing well. By this appointment, Ms. A.D.’s most recent pituitary bloodwork had produced normal results. Regarding examinations, Dr. Sloka documented “General examination is normal today although she has some lower abdominal pain and we will organize for her to have an ultrasound of her pelvis.” The Crown suggested to Dr. Sloka that consistent MRI results and consistently normal pituitary bloodwork rendered any triad of pituitary examinations unnecessary. Dr. Sloka disagreed. He noted that the MRI reports disclosed a variability (albeit slight) in the size of the adenoma. He had also documented uncertainty about the nature of the lesion. He did not consider the adenoma to be a stable lesion. According to his training, the monitoring of a pituitary adenoma involved the periodic performance of the triad of pituitary examinations. Dr. Sloka believed that when documenting a “general examination” he had documented the triad of pituitary examinations.

Assessment of the Evidence and Analysis

[5086] I have highlighted my concerns about Ms. A.D.’s evidence during the summary of the evidence; so, I will be brief here. Ms. A.D. revealed herself to be an unreliable historian, who provided profoundly inconsistent assertions regarding the frequency, timing, and context of her skin examinations. She provided considerably less evidence about her breast examinations and believed they occurred less frequently than her skin examinations. Despite initially claiming as much as three times as many, Ms. A.D. ultimately, conceded that Dr. Sloka may have performed as few as five skin examinations and could not recall whether he may have only performed three skin examinations, as he had claimed. She also ultimately conceded that the skin examinations commenced after the discovery of her pituitary adenoma in an MRI, which occurred much later than she originally thought. In addition, despite earlier claims of the absence of any consent discussions, Ms. A.D. ultimately conceded that Dr. Sloka thoroughly explained the connection between pituitary adenomas, hormonal production, and symptoms arising from abnormal hormonal production. She acknowledged that she provided her consent to the examinations as a result of these exhaustive discussions, which must have occurred in his office, because Dr. Sloka used his computer to explain concepts to her. Her claims of any contemporaneous discomfort or suspicion therefore lacked any reliability or credibility. The evidence of Ms. A.D.’s husband did nothing to support her ill-fated contention of a contemporaneous discomfort. I also found her to be evasive during cross-examination about consent discussions and her resulting lack of discomfort, which further hurt her credibility. I find it exceedingly likely that her claims of discomfort were the product of media tainting. Similarly, when it comes to the number of skin examinations, I find it exceedingly likely that Ms. A.D.’s fleetingly inflated claims about the frequency of her skin examinations was the product of media tainting. It is clear to me that, due to exposure to the media, Ms. A.D. went from believing her medical care was entirely proper to having an inflated sense that she was a victim of Dr. Sloka.

[5087] Ms. A.D. paid less attention in her evidence to her visual fields examinations and to her breast examinations. However, as with the skin examinations, she identified the breast examinations as being associated with Dr. Sloka clinically monitoring her pituitary adenoma. As already noted, it is clear from her evidence that she provided her consent to these examinations after thorough discussions with Dr. Sloka. In my view, her evidence cannot reliably or credibly challenge the contention that the breast examinations occurred in concert with skin and visual fields examinations, as one component of an occasional triad of examinations conducted to clinically monitor her pituitary adenoma.

[5088] To sum up, Ms. A.D.’s evidence is incapable of reliably or credibly challenging Dr. Sloka’s claim that he only conducted the trio of pituitary examinations on three occasions during her tenure as Dr. Sloka’s patient. Similarly, it is incapable of reliably or credibly challenging Dr. Sloka’s evidence regarding the timing of those examinations.

[5089] Given my concerns about Ms. A.D.’s reliability, media tainting, and, to a lesser degree, her credibility, I am unable to accept her evidence that Dr. Sloka grazed her skin during her skin examinations. Similarly, I am unable to accept her evidence about Dr. Sloka’s proximity during the skin examinations.

[5090] Despite these credibility and reliability concerns, there exists a considerable degree of overlap between the evidence of Ms. A.D. and Dr. Sloka. Ms. A.D. describes Dr. Sloka taking a methodical approach to the skin examination, sequentially exposing small portions of her skin. Although Ms. A.D. alleged that Dr. Sloka touched her buttocks during a skin examination, she stated that this occurred at the final skin examination, after she had gained a considerable amount of weight. She believed Dr. Sloka had parted her buttocks briefly to view portions of her skin that were otherwise not observable. It lasted for a second or two. Her description of his conduct was decidedly clinical. Ms. A.D.’s description of her breast examinations also mirrored Dr. Sloka’s description of his methods. Again, what she described was decidedly clinical and brief. I am satisfied that nothing about Dr. Sloka’s conduct raised any concerns with her at the time they occurred, because Dr. Sloka conducted himself in a manner consistent with his professed clinical motive and clinical training.

[5091] The Crown relies upon similar act evidence to support the evidence of Ms. A.D. As discussed in the section of this judgement devoted to the Crown’s similar act evidence application, I am prepared to permit the evidence of other complainants as support for the inference that Dr. Sloka possessed a sexual purpose when examining Ms. A.D. However, after a consideration of the entirety of the evidence, I am satisfied that Dr. Sloka has established an innocent explanation for the examinations. As will be discussed in more detail momentarily, he has rebutted any inference of a sexual purpose.

[5092] The Crown also relies upon four categories of granular similarity between the evidence of some complainants and Ms. A.D.’s to support Ms. A.D.’s evidence. The four categories of similarity involve patients who alleged breast examinations, patients who alleged Dr. Sloka attempted to express breast milk, patients who allege Dr. Sloka touched their buttocks when examining their skin, and patients who allege that Dr. Sloka expressed an interest in searching for moles. These similarities are, of course, all relevant to the issue of Dr. Sloka’s sexual purpose, which Dr. Sloka has refuted. The Crown also argues that these similarities are also probative of virtually every other live issue in the case: the actus reus, the sexual nature of the activity, intent, rebuttal of any defences, and so on. Upon closer examination, though, Crown attempts to prove these other material issues through proof of Dr. Sloka’s sexual purpose. As noted, I have concluded that Dr. Sloka has provided convincing evidence that rebuts the inference of a sexual purpose. Proof of all other issues identified by the Crown effectively either arise from any inference of a sexual purpose, pertain to non-material issues, or have trifling probative value. Dr. Sloka admitted conducting breast examinations and attempting to express breast milk. He also conceded the possibility that he may have intentionally parted Ms. A.D.’s buttocks to visualize tissue that had become obscured following Ms. A.D.’s weight gain. Dr. Sloka also testified that, when obtaining Ms. A.D.’s consent for a skin examination, he would have explained an interest in looking for skin abnormalities. On Ms. A.D.’s evidence, he was interested in skin discolouration, skin abnormalities, texture, and moles. While she specifically mentions an interest in moles, I see little probative value in this feature. In my view, it is easy for lay people to conflate moles with other skin discolorations. I see little probative value in this evidence regarding any issue other than the issue of Dr. Sloka’s alleged sexual purpose.

[5093] Dr. Bril’s evidence does little to assist the Crown. According to Dr. Bril, Dr. Sloka repeatedly stepped outside of his neurological lane to conduct medical inquiries and examinations that ought to have been performed by others. In that vein, she testified that Dr. Sloka lacked a neurological justification for the skin and breast examinations. However, she acknowledged that she was unqualified to offer an opinion about whether these examinations were medically appropriate clinical investigations of a pituitary adenoma. Also, for the reasons stated in the section devoted to the general assessment of Dr. Bril’s evidence, I place little to no weight on Dr. Bril’s categorical claims that neurologists ought not perform breast or skin examinations.

[5094] Additionally, I am not prepared to attach weight to Dr. Bril’s opinion, given Dr. Bril’s stance on the very existence of an adenoma. Repeatedly, Dr. Bril questioned whether Ms. A.D. had an adenoma at all. Without access to the MRI images herself and armed with six MRI reports which consistently declared the existence of an adenoma, Dr. Bril opined that what the radiologist purportedly saw could have merely been an artefact of the imaging process. At one point, she more adamantly asserted that the abnormality was indeed an artefact and not an adenoma. Later, she referred to it as a probable artefact, in defiance of the findings of the radiologists who viewed the actual MRI images. The defence submits that by taking this stance, Dr. Bril revealed bias. That submission has merit.

[5095] Regarding Ms. A.D., Dr. Bril also testified that a pituitary adenoma ought to be treated by an endocrinologist. Earlier in her evidence, though, she took a more nuanced position. She previously acknowledged that a multidisciplinary team could monitor and care for patients with pituitary adenomas. That team could include a neurologist. With small adenomas, a neurologist could order bloodwork to assess whether the adenoma was secreting hormones. If a neurologist was concerned, the neurologist could refer the patient to an endocrinologist. If the mass was sufficiently large, the neurologist might refer the patient to a neurosurgeon. She also previously stated her view that a neurologist could monitor small non-secreting pituitary adenomas. Again, for the reasons stated in the general assessment of Dr. Bril’s evidence, I place no weight on her categorical claims about the propriety of neurologists performing breast and skin examinations.

[5096] Given Dr. Bril’s unfounded challenge to the very existence of an adenoma; given her inability to challenge the medical reasonableness of the periodically performed trio of clinical examinations conducted by Dr. Sloka while monitoring Ms. A.D.’s non-secreting pituitary adenoma; and given Dr. Bril’s unawareness of Dr. Sloka’s training, education, and experience regarding the clinical monitoring of pituitary adenomas; I am not prepared to place any weight on Dr. Bril’s evidence concerning the propriety of Dr. Sloka’s periodic performance of the trio of visual fields, skin, and breast examinations as a part of the clinical monitoring of Ms. A.D.’s pituitary adenoma.

[5097] Dr. Bril also provided extensive evidence about other investigations which she claimed lay outside the field of neurology. Examples of these lane departures include investigation of bladder difficulties, ovarian cysts, abdominal pain, birth control options, bowel issues, and secondary causes of pituitary dysfunction. The Crown asks that I conclude that Dr. Sloka engaged in these lane departures “so that he had an excuse to speak to Ms. A.D. about something medical” and thereby “exploit his position as her neurologist to perform examinations on her that were of a sexual nature.” In my view, the Crown’s submission is far fetched and likely based upon their misplaced claim that Dr. Sloka performed his trio of pituitary examinations after all eight MRIs. As already discussed, the evidence only reliably supports the conclusion that Dr. Sloka performed his trio of pituitary examinations on the three occasions claimed by Dr. Sloka. Dr. Sloka’s lane-departures were therefore largely unconnected to occasions on which he conducted his trio of pituitary examinations. Moreover, he was transparent in his reporting letters about these lane departures: he was reporting these activities to other physicians. Undeniably, the evidence reveals Dr. Sloka’s tendency to practice more broadly than Dr. Bril. However, I see nothing in the CPSO policies that would have prohibited him from doing so. The scope of his practice must be assessed in light of his education, training, experience, and competence. The Crown has called no evidence to establish that his investigations and treatments were not medically reasonable. The Crown has called no evidence to suggest that Dr. Sloka lacked the training, experience, and competence to perform the investigations and treatments at issue here. I see no basis for inferring a sexual motive from the investigations and treatments engaged in by Dr. Sloka, the majority of which were unconnected to the three occasions on which the Crown can prove Dr. Sloka performed his trio of pituitary examinations.

[5098] I turn now to the evidence of Dr. Sloka.

[5099] The Crown engaged in a granular critique of Dr. Sloka’s clinical care of Ms. A.D. I do not intend to address, appointment by appointment, their critique. Much of the critique addresses Dr. Sloka’s non-neurological medical care of Ms. A.D.; however, the Crown has not called a clinical general practitioner as an expert to challenge the reasonableness of Dr. Sloka’s non-neurological medical care.

[5100] The Crown also challenges Dr. Sloka’s neurological care of Ms. A.D. The Crown asks that I conclude that Dr. Sloka conducted his trio of pituitary examinations after every MRI. From the sheer volume of breast and skin examinations, the Crown asks that I infer that Dr. Sloka was motivated by a prurient desire to gain access to Ms. A.D.’s body, and not by a motive to provide medical care to Ms. A.D. From this sexual motive, the Crown asks that I conclude the breast and skin examinations were sexual activity and not medical examinations. To that end, the Crown asks that I reject Dr. Sloka’s claim that he only performed the trio of pituitary examinations on three occasions (February 20, 2013; August 30, 2013; and August 7, 2015). Similarly, the Crown asks that I reject Dr. Sloka’s claims in three contemporaneously written consultation letters that he deferred examination (May 14, 2014; February 11, 2015; and June 29, 2015). Additionally, despite failing to make the suggestion to Dr. Sloka in cross-examination, the Crown asks that I conclude that Dr. Sloka must have performed the trio of examinations on May 22, 2013, because Dr. Sloka reported that Ms. A.D. has “no visual difficulties.” Likewise, the Crown asks that I conclude that Ms. A.D. performed a skin examination on Ms. A.D. on August 24, 2012, in furtherance of an investigation of Ms. A.D.’s bladder difficulties.

[5101] The Crown’s submissions are misplaced for several reasons. First, Ms. A.D. ultimately conceded that the pituitary examinations did not occur at every appointment, or after every MRI. She ultimately conceded that there could have been as few as five examinations and that she did not recall if there were even as few as three. Second, the Crown never suggested to Dr. Sloka that he performed his pituitary examinations on some of the appointments it now claims the examinations occurred. Specifically, the Crown never suggested to Dr. Sloka that he conducted pituitary examinations on August 24, 2012, May 22, 2013, or April 29, 2015. Furthermore, his testimonial reliance on the report of a deferral in his May 14, 2014, reporting letter stood unchallenged in cross-examination.

[5102] I want to take a moment here to single out the Crown’s failure to suggest to Dr. Sloka that he performed a skin examination at the August 24, 2012, appointment. The Crown now argues that, according to Dr. Sloka’s standard practice, he ought to have conducted a skin examination to rule out mimics of MS. They make this argument in support of the claim that a skin examination occurred on this date in the context of his investigation of her bladder difficulties. This submission stands in contrast to Ms. A.D.’s evidence that the skin and breast examinations did not occur until after the discovery of the pituitary adenoma (not discovered until February 12, 2013) and that these examinations were performed to look for symptoms related to the adenoma. Again, the Crown never made this suggestion to Dr. Sloka in cross-examination. The Crown also ignores the fact that previously ordered brain and spinal MRIs showed no lesions. These MRIs were ordered at the conclusion of her previous appointment, where Dr. Sloka wrote, “I doubt that multiple sclerosis is a factor here but may be a consideration.” The MRIs provided no evidence to support the conclusion that MS was a “consideration.”

[5103] In my view, neither the content of Dr. Sloka’s consultation letters, Ms. A.D.’s evidence, nor Dr. Sloka’s evidence support the Crown’s claim to any pituitary examinations other than the three acknowledged by Dr. Sloka. Ms. A.D. saw Dr. Sloka for a total of fifteen appointments over five years. The first pituitary examination did not occur until the fifth appointment of her second referral period, her sixth appointment in total. The next one did not occur until the eighth appointment, on August 30, 2013. The final one occurred on August 7, 2015. From the evidence, I am unable to conclude any other pituitary examinations occurred. That is not a pattern that supports the conclusion that Dr. Sloka systematically sought opportunities to gain access to Ms. A.D.’s body. On the contrary, it is a pattern that suggests judicious use of clinical examinations to periodically monitor Ms. A.D.’s pituitary adenoma. Dr. Sloka’s continued and routine reliance upon pituitary MRIs and bloodwork also supports the conclusion that he was motivated by a desire to monitor the status of Ms. A.D.’s pituitary adenoma. In my view, Dr. Sloka’s pituitary examinations were infrequent and few. Their limited number does not support the contention that Dr. Sloka possessed a sexual motive to perform them. Accordingly, there is little support for the Crowns’ invitation for me to infer that Dr. Sloka systematically proposed his trio of pituitary examinations as a means of routinely gaining access to Ms. A.D.’s body.

[5104] The Crown, of course, also contends, as did Dr. Bril, that none of the skin and breast examinations were neurologically warranted. On the Crown’s submission, one clinical pituitary examination was one too many. Dr. Sloka, however, contended that he was trained to conduct his trio of pituitary examinations as part of the clinical monitoring of a pituitary adenoma. He disagreed with the suggestion that bloodwork alone was a sufficient means of evaluating pituitary hormone levels. He maintained that bloodwork was one part of the evaluation, but not all of it. Findings on the eye, skin, and breast examinations could help provide clinical information relevant to pituitary hormone production, and thus the area of the pituitary gland affected by the adenoma. His evidence regarding his training stood unchallenged. In my view, Dr. Sloka’s evidence regarding his rationale withstood rigorous cross-examination. I am unable to infer from Dr. Sloka’s decision to perform the pituitary examinations that Dr. Sloka possessed anything other than a medical motive.

[5105] Dr. Sloka also testified that he performed the breast and skin examinations in accordance with his standard methodology and with his training. On Ms. A.D.’s own evidence, Dr. Sloka took care to safeguard her privacy and dignity during skin examinations. I appreciate that during one skin examination, Ms. A.D. alleged that Dr. Sloka spread her buttocks to enable visualization of her skin. However, this occurred after Ms. A.D. had gained weight – the implication being that her he weight gain made visualization of her skin in that region difficult. Ms. A.D. testified that the contact with her buttocks and the associated visualization was brief. Dr. Sloka was uncertain whether he may have done so – he certainly could not dispute it. However, he testified that if he did, he would not have done so without raising it with her beforehand. This claim stood unchallenged. Turning to the breast examinations, on Ms. A.D.’s own evidence, Dr. Sloka performed the breast examinations in a manner consistent with Dr. Sloka’s own stated practice. On Ms. A.D.’s own evidence (albeit sometimes elicited with her reluctance in cross-examination), the skin and breast examinations were brief, their rationales fully explained, with her consent, and viewed by her as medically appropriate at the time they occurred. Consequently, I am unable to conclude that Dr. Sloka performed he examinations in anything other than a medically appropriate manner. Similarly, I am unable to infer from Dr. Sloka’s methodology that he possessed anything other than a medical motive.

[5106] The Crown also argues that because Dr. Sloka admitted three breast and three skin examinations but only recorded in his rough notes a consent discussion for one of each (“COSE” and “COBE”), he did not obtain consent on two of the three occasions on which he claimed pituitary examinations occurred. This submission flies in the face of Ms. A.D.’s ultimate acknowledgement of extensive consent discussions and her acknowledgement that she consented to all examinations. Also, the evidence clearly established that Dr. Sloka’s documentation of consent discussions in his rough notes was haphazard, at best.

[5107] The Crown also argues that Dr. Sloka pursued non-neurological medical investigations and medical care as part of a prolonged and elaborate ruse to maintain contact with Ms. A.D. and provide himself an opportunity to gain ongoing access to her body. In other words, the Crown attempts to prove a sexual motive for Dr. Sloka’s pituitary examinations by arguing that Dr. Sloka’s other non-medical investigations and medical care were either outside his professional lane or were not medically warranted. This submission fails for several reasons. First, Dr. Sloka openly declared his non-neurological medical investigations and medical care in his consultation letters. His audience for these consultation letters were medical peers, people who possessed the training and expertise necessary to scrutinize the propriety of his actions. Second, the Crown has called no evidence capable of challenging the medical reasonableness of Dr. Sloka’s non-neurological clinical care of Ms. A.D. Third, the Crown called no evidence capable of rebutting Dr. Sloka’s repeated claims that he possessed the training and experience necessary to competently engage in the non-neurological medical investigations and medical care the Crown now criticizes. Fourth, the Crown submission ignores the fact that Dr. Sloka terminated the first referral period after a single visit, patently showing no desire to keep her in his medical orbit during the first referral period. While I see a doctor who engaged in non-neurological investigations and treatments, I also see a doctor who took it upon himself to provide his patient with comprehensive medical care that, to my knowledge, was never criticized or questioned by the peers to whom he reported.

[5108] The Crown also suggests that Dr. Sloka took efforts to hide his pituitary examinations. I see no evidence of this. While he did not consistently chart breast and skin examinations in his rough notes, he did chart them with his self-fashioned acronyms. In my view, if Dr. Sloka was determined to hide these examinations, he would not chart them at all, nor would he report a “general examination” in any consultation letter. Similarly, if he was determined to conceal the performance of his pituitary examinations, he would not have reported in his August 30, 2013, reporting letter the discovery of a cyst in Ms. A.D.’s right breast during the second purported pituitary examination. The first “general examination” was reported by Dr. Sloka on February 20, 2013. Six months and two appointments later, on August 30, 2013, he reported, “Her examination remains stable although we did find a tiny cyst on her right breast and I will organize for her to have an ultrasound to hopefully find that this is benign. It was tender and mobile and approximately 4 mm in size.” While Dr. Sloka can be criticized for failing to provide a complete description of the “examination,” he openly declared to his medical peer that a breast examination constituted a component of his “examination.” Moreover, as mentioned elsewhere in these reasons, there is evidence from Dr. Sloka’s medical files that other neurologists used the term “general examination” rather than a complete description of all the individual components any “general examination.” I see no merit in the submission that Dr. Sloka deliberately attempted to cover up his pituitary examinations.

[5109] In my view, Dr. Sloka provided cogent and compelling explanations of his medical care for Ms. A.D. I am not satisfied that his evidence was meaningfully challenged or undermined in cross-examination.

[5110] Having regard to all of the evidence, I am unable to reject Dr. Sloka’s evidence. I am satisfied that Dr. Sloka possessed medical motives when examining Ms. A.D. I am satisfied that he examined Ms. A.D. in accordance with his training and standard procedures. I am satisfied that he obtained Ms. A.D.’s informed consent to every medical examination he performed. I am not satisfied that any sexual activity occurred during the course of Ms. A.D.’s care.

[5111] Dr. Sloka must be acquitted of this count.

ii. A.E. (Count 12)

A Summary of Ms. A.E.’s Complaint and Dr. Sloka’s Response to It

[5112] Ms. A.E.’s complaint eludes easy quantification. She attended a total of twenty-six appointments over an eight-year period. Over that time, she believed Dr. Sloka conducted somewhere from three to five skin examinations, but she could only specifically remember and provide testimony about two. She testified specifically about a single breast examination, her first one, but suggested more breast examinations followed on other unspecified occasions. Regarding the skin examinations, Ms. A.E. portrayed Dr. Sloka as methodical, carefully exposing limited portions of her skin in a piecemeal fashion, so much so that she grew impatient with his approach at the second examination. In the lone breast examination that she was able to recount, she testified that he attempted to express breast milk by squeezing her nipples. He did this examination after blood tests had revealed high prolactin levels and an MRI revealed a small tumor (microadenoma) on her pituitary gland, which produces prolactin, the hormone responsible for stimulating lactation.

[5113] Dr. Sloka admitted conducting two skin examinations and one breast examination. The first one was conducted to look for evidence of conditions that might explain her neurological conditions. The second one was conducted to help identify the portion of the pituitary gland affected by the microadenoma seen in Ms. A.E.’s MRI. The lone breast examination was conducted to look for evidence of galactorrhea (lactation), which would help confirm that the microadenoma was located on the portion of the pituitary responsible for prolactin production – making it a prolactinoma.

The Circumstances of Ms. A.E.’s Referral and Treatment History

[5114] Ms. A.E. received two separate referrals to Dr. Sloka.

[5115] The first referral occurred after Ms. A.E. suffered her first migraine and she visited the ER. She was 32 years old at the time. The ER doctor sent her to Dr. Sloka. That first referral resulted in only a single appointment, which occurred on November 1, 2010. Although Dr. Sloka ordered several follow-up tests, he only required a follow up visit if those tests disclosed something abnormal. No follow-up appointment was ever booked.

[5116] Before suffering her migraine, Ms. A.E. had been dealing with a variety of symptoms for several years. Over that time, she saw a plethora of specialists. As she described it, “It had been pretty continuous and been quite a journey for me. I had been all over the place searching for people who could help me, but … all the specialists I saw weren’t able to diagnose what I was struggling with[;] so that was my health status at the time.” According to Ms. A.E., fibromyalgia and Lyme disease had been considered as possible causes of her symptoms.

[5117] Ms. A.E.’s received her second referral to Dr. Sloka from her family doctor, Dr. Stobie. Dr. Stobie made the referral on May 13, 2011, about six months after Ms. A.E.’s initial visit with Dr. Sloka. Ms. A.E. was 33 years old at the time. Ms. A.E. had reported intermittent paresthesia (tingling) in her lower back along with muscle tightness. Ms. A.E. was concerned that there might be an underlying problem. At the time of the referral, Dr. Stobie noted that Ms. A.E. had entered premature menopause in 2008. Confirming Ms. A.E.’s description of a complex and uncertain medical condition, Dr. Stobie noted Ms. A.E.’s current medical problems as follows: “autoimmune thyroid – currently euthyroid”; “chronic arthritis NYD? fibromyalgia”; and “recurrent episcleritis.” Dr. Stobie asked Dr. Sloka to “please assist with the assessment and treatment of this problem.”

[5118] While still under Dr. Sloka’s care, Ms. A.E. attended the GRH ER on January 3, 2019, reporting a two-week history of headaches associated with cognitive difficulties. The ER made an urgent referral to Dr. Sloka, who then saw her on January 4, 2019. He saw her on one final occasion on February 8, 2019. On March 18, 2019, he sent her a letter to notify her that he was closing his practice.

The Evidence of Ms. A.E.

[5119] Quite understandably, Ms. A.E. had a poor memory of the fine details of her treatment history. She attended an enormous number of appointments with Dr. Sloka over the course of eight years. Until reading news of allegations by other patients against Dr. Sloka, Ms. A.E. had no apparent reason to commit any particular appointment to memory. In fact, she considered him the best doctor she ever had. He was kind, thorough, and patient. He took the time necessary to explain concepts and results to her, sometimes using textbooks and drawing pictures to provide a more thorough explanation. He was also a good listener whom she believed was genuinely trying to help her.

[5120] In the summer of 2018, Ms. A.E.’s perception of Dr. Sloka began to change. That summer, she read media reports of allegations made by three patients against Dr. Sloka. The allegations included complaints of skin and breast examinations; examinations Ms. A.E. had received. After reading these allegations, Ms. A.E. continued to believe that Dr. Sloka was a great doctor who was providing her with excellent care, but the seed of doubt had been sewn. She called the CPSO anonymously and asked whether it was appropriate for a neurologist to perform skin and breast examinations. She hoped that the CPSO would tell her that her examinations were proper, but the person she spoke to told her that a neurologist performing these examinations was like a dentist performing an internal examination.

[5121] Ms. A.E. spoke to her mother. Her mother had been reading the news too. Her mother told her that the police were asking people to come forward. Her mother suggested that she could help other women by sharing her story. Ms. A.E. did not come forward immediately, though.

[5122] In May of 2019, Ms. A.E. read about Dr. Sloka losing his licence and being charged with the sexual assault of 34 patients. Her parents once again urged her to come forward. The allegations of other patients had caused Ms. A.E. to believe that her examinations may not have been necessary. She decided to come forward. In coming forward, she considered the possibility that some of the women were younger and may not be heard. She thought her complaint could help them.

[5123] Although she did not initially remember doing so, Ms. A.E. obtained Dr. Sloka’s complete medical file before providing her statement to the police. She obtained Dr. Sloka’s medical file after Dr. Sloka had notified her on March 18, 2019, that he was closing his practice. She read through the voluminous file in detail and concluded that Dr. Sloka had not mentioned every occasion on which he had inspected her body.

[5124] Even as Ms. A.E. provided her statement to the police on October 28, 2019, she was unsure whether she wanted Dr. Sloka charged. She told the police that she wanted to know whether the CPSO or any other regulator had made a determination about the propriety of the examinations. The interviewing officer told her that she had been sexually assaulted and that she believed the examinations were outside the scope of Dr. Sloka’s practice. I must pause here to state my utter disapproval of any police officer providing their opinion to a possible witness that the witness was in fact a victim of sexual assault and that the examinations in question were beyond the scope of the suspect doctor’s practice. Similarly, I think it inappropriate for an investigating officer to tell prospective witnesses that there is “strength in numbers,” in an attempt to solicit participation in a prosecution. A criminal investigation is not a political campaign aimed and changing hearts and minds and getting out the vote. There is a sad irony in an officer straying from their own professional lane by providing an unqualified opinion on whether Dr. Sloka strayed from his. Worse, there is a real danger that this conduct taints the memories and perceptions of the very witness the police officer attempts to recruit.

[5125] Despite the news stories, despite the views expressed by someone at the CPSO, and despite the inappropriately expressed views of the police officer, Ms. A.E. continued to believe that Dr. Sloka’s examinations were conducted professionally and methodically. She also continued to believe that Dr. Sloka was kind, caring, and thorough in his treatment. Little wonder, then, that she had difficulty remembering with precision the details her eight-year history with Dr. Sloka.

[5126] While she struggled with the finer details of her treatment history, she was able to convey an overview of her health status at the time of her referral to Dr. Sloka.

[5127] As she recalled it, she was dealing with an illness that other doctors thought might be fibromyalgia or Lyme disease. She testified that she had been “all over the place” searching for people who could help her, but none of the specialists were able to come up with a diagnosis. By the time she saw Dr. Sloka, she had seen more than twenty specialists, including rheumatologists, infectious disease specialists, homeopaths, and naturopaths.

[5128] While still suffering form her undiagnosed illness, Ms. A.E. suffered her first migraine with aura, which prompted her to attend that GRH ER. From there, she received a referral to Dr. Sloka.

[5129] Ms. A.E. did not provide the court with a complete chronological history of her time as Dr. Sloka’s patient. Instead, she provided the court with vignettes. In one vignette, she spoke of her first appointment. In two other vignettes, she described her memory of two skin examinations. In another, she described a breast examination. Around the edges of these vignettes, she painted what context she could. I summarize these vignettes and include any relevant context.

[5130] Ms. A.E. testified that her mother accompanied her to her very first appointment with Dr. Sloka. She remembered having an extensive conversation with Dr. Sloka, talking for at least 40 minutes. When taken to the history recorded by Dr. Sloka in his corresponding consultation letter, Ms. A.E. agreed that she had provided that history to him. Ms. A.E. did not remember Dr. Sloka performing the cardiac and neurological examinations reported in his consultation letter. She had no memory of getting gowned and no memory of entering the examination room. She also did not remember if Dr. Sloka ordered any tests. Ms. A.E. also did not remember whether Dr. Sloka had planned to see her in follow-up. It is clear from her evidence that she did not realize that Dr. Sloka had no plans to see her again. It is equally clear that she did not remember that she returned to Dr. Sloka six months later because her family doctor made a second referral to Dr. Sloka.

[5131] On a more general level, Ms. A.E. testified in-chief that she did not remember Dr. Sloka conducting any examinations other than skin and breast examinations, with one exception. She vaguely remembered Dr. Sloka performing a test to assess her for vertigo. The test she described bore a similarity to the Dix-Hallpike manoeuvre reported by Dr. Sloka on August 16, 2013. Ms. A.E. did not remember. In cross-examination, she also remembered Dr. Sloka performing a few components of his standard neurological examination at some point in time. When taken through it, she did not remember most of the components of Dr. Sloka’s standard neurological examination. She also did not remember Dr. Sloka ever conducting a cardiac examination.

[5132] Ms. A.E. believed that Dr. Sloka had performed somewhere from three to five skin examinations. She did not remember the actual number of skin examinations but claimed that there were a “few.” However, she only had a specific memory of two of them. She also struggled to identify when these two specific skin examinations occurred. In-chief, she initially testified that they did not occur in the first few appointments. Instead, she erroneously testified that the first few appointments focussed on her headaches. In reality, only the first appointment focussed on her headaches. The second appointment marked the commencement of a whole new referral period; one aimed at investigating her complaint of pins and needles in her lower back. Ms. A.E. also testified that the skin examinations commenced after she started sharing her other health problems with Dr. Sloka. In reality, she provided details of her complicated medical history at her very first appointment. In his consultation letter for the first appointment, Dr. Sloka documented her complicated medical history, which included premature menopause, a ten-year history of joint pain leading to suspicions of rheumatoid arthritis or fibromyalgia, and episodic episcleritis, a mycoplasma infection, and dizzy spells. Ms. A.E. also stated that her skin examinations might have begun in the first year of her treatment. At one point, she thought that a skin examination probably happened between July and September of 2011. She also testified that she thought the first examination occurred somewhere between her fourth and sixth appointment (September to December 2011). After refreshing her memory with Dr. Sloka’s medical records, she stated that there was a pretty good chance that the first skin examination occurred on July 6, 2011 (the second appointment), because Dr. Sloka mentioned that she had previously been tested for Lyme disease (with negative results) and because Dr. Sloka mentioned an “examination.” As can be seen, Ms. A.E.’s evidence about the timing of the first examination was all over the place. As her testimony unfolded, it became apparent that she had attempted to deduce the timing of the skin examinations from a partial review of the contents of her medical file. In reviewing her records, she did not read as far as the January 3, 2012, consultation letter, which was the letter for the seventh appointment, and which specifically referred to an examination of her skin.

[5133] In her evidence in-chief, Ms. A.E. did not link the first skin examination to any specific purpose. Instead, she testified that at some juncture, Dr. Sloka asked her, “Has anybody ever really taken at good look at you?” She appeared to imply that Dr. Sloka, having been made aware of years of fruitless attempts to find a unifying explanation for her various ailments, offered a thorough examination. At the same time, she alleged that the proposed examination was limited to a skin examination. In answer to Dr. Sloka’s question, she purportedly said, “No [no one has ever really taken a good look at her].” Ms. A.E. had previously testified about her suspicions that Lyme disease lay at the root of her problems. She testified that she likes the outdoors, likes camping, and likes to travel a lot. She also reported being frequently bitten by insects. She suspected that she may have been bitten by an insect and infected. In the absence of a positive Lyme test, she persisted in her belief that she may have Lyme disease. Despite opposition by her family doctor and explicit skepticism from Dr. Sloka, she went to the USA to get treated for Lyme disease. However, in her mind, Dr. Sloka wanted to search her skin for evidence of insect bites that left evidence of a Lyme infection. She professed to be puzzled by this motivation, because her symptoms had existed for years, and any evidence of an infection-causing bite would have disappeared years ago. As a result, she was purportedly surprised by the proposal of a skin examination. Strangely, though, she added that the notion of insect bites was probably only in her mind, not a rationale he verbalized. In other words, she had no memory of the stated purpose for the first skin examination, but she projected her long-term preoccupation with Lyme disease onto Dr. Sloka.

[5134] In cross-examination, defence counsel took Ms. A.E. through the consultation letters to suggest the rationale for her first skin examination. At her second appointment (July 6, 2011), she mentioned to Dr. Sloka that she developed raised, red, circular lesions the previous September. On her third appointment (August 24, 2011), she brought in pictures of the lesions that had arisen since her last appointment but had since dissipated. Dr. Sloka discussed the possibility of taking a biopsy of any future lesion. He instructed her to call his office if she noticed another lesion. Ms. A.E. agreed that they also discussed her lesions at her September 6th appointment (the fourth appointment), but none were present at the appointment. Ms. A.E. agreed that at her fifth appointment (December 23, 2011), they also discussed the possibility of doing a biopsy in the future on any lesions that surfaced. However, Ms. A.E. testified that her lesions were the least of her cares. She was more concerned about her other long-standing symptoms.

[5135] Defence counsel then took Ms. A.E. to Dr. Sloka’s consultation letter for January 3, 2012 (her sixth appointment). Dr. Sloka had documented that Ms. A.E. reported seeing the early signs of ring lesions the previous day but did not evolve any further and were gone by the time of the appointment. Dr. Sloka went on to document, “We examined her skin today with her permission and I found no evidence of her typical skin lesions.” After reviewing the contents of that consultation letter, Ms. A.E. agreed that Dr. Sloka likely performed a skin examination on her that day, stating, “I’m sure this must have happened that day.” However, she maintained her belief that this was not her first skin examination. She believed that previous skin examinations involved searches for bug bites, because she remembered being puzzled that Dr. Sloka would want to search for evidence of bug bites. She professed to remember this puzzlement despite acknowledging that Dr. Sloka may never have mentioned a desire to find bug bites. While she was prepared to concede that a skin examination occurred on this date, she was not prepared to concede that Dr. Sloka had hoped to locate a lesion that he could biopsy. She testified that she would have remembered the suggestion of a biopsy, because a previous biopsy was memorable and made her nervous. Having said that, she had never heard of a “punch biopsy” that only makes a small puncture and takes a small core sample from the skin. It seems likely that Ms. A.E. was referring to a biopsy related to a mole she had removed, the scar from which Dr. Sloka noticed during a skin examination.

[5136] Ms. A.E. testified that, other than looking for insect bites, she believed subsequent reasons for looking at her skin included the search for discolouration on her skin – melasmas – which she understood could arise from the hormone therapy used to treat her early menopause. According to the January 3, 2012, consultation letter, the skin examination was only motivated by a search for ring-lesions, not bug bites or skin discolorations. The presence of melasma was first mentioned by Dr. Sloka in his August 3, 2017, consultation letter. On that date he wrote, “…she has had some new brown spots noted and we are hopefully able to rule out an ACTH overproduction. Melasma is her working diagnosis. We will see her in 3 or 4 weeks from now and possibly examine her at that time.” Based on the contents of this consultation letter, Ms. A.E. believed that Dr. Sloka conducted a skin examination on August 3rd, despite the apparent mention of a deferral of the skin examination: “Yes, I’m saying the notes are wrong.” By her next appointment, on October 20, 2017, Dr. Sloka was under the supervision of a nurse monitor and prohibited from conducting skin examinations on patients. Therefore, she believed that a skin examination in search of melasma must have occurred on August 3rd or earlier. The she appeared to accept, though, that Dr. Sloka deferred an examination on August 3rd: “There was a deferral for – he said let’s have you in again so we can see you because we ran out of time… and I don’t remember at that point what it was he wanted to look at but I do know I’d had another skin inspection for melasma and it as – it did happen and this one did not.” She therefore implied that a skin examination for melasma must have occurred before August 3rd, even though Dr. Sloka’s August 3rd consultation letter refers to the melasma as “new brown spots.”

[5137] The defence attempted to suggest to Ms. A.E. that Dr. Sloka performed a trio of examinations on August 20th, 2016, because her pituitary MRI revealed a pituitary adenoma. In his August 20th consultation letter, Dr. Sloka had recorded conducting a “general examination, with visual fields normal.” The defence suggested that the general examination consisted of a trio of examinations: a visual fields examination, a skin examination, and a breast examination. Ms. A.E. vaguely recalled that, at some point in time, Dr. Sloka some kind of visual examination on her, but she could not recall if it occurred on August 20th. She agreed that Dr. Sloka conducted a skin examination, because he made mention of finding the scar from her mole removal. However, she did not agree that Dr. Sloka conducted a breast examination: “No, I would not get breast examinations with the skin inspections.” However, she agreed that the one breast examination she could remember was related to her high prolactin levels.

[5138] Ultimately, exhaustive attempts to situate and contextualize Ms. A.E.’s skin and breast examinations did not provide much clarity.

[5139] I turn now to Ms. A.E.’s evidence about her first skin examination.

[5140] As noted, Ms. A.E. testified that Dr. Sloka proposed the first skin examination by asking, “Has anybody ever really taken a good look at you?” She replied, “No.” In cross-examination, she agreed that Dr. Sloka thoroughly explained concepts to her, and she agreed to the suggestion that, whatever the rationale, Dr. Sloka provided thorough explanations for his examinations: “I’d always have an explanation, typically.” What ever explanation he provided, she consented to the skin examination after receiving the explanation.

[5141] After she agreed to the skin examination, Dr. Sloka asked her to go into examination room, undress, and put on a gown. She undressed in privacy but kept her underwear on. Then she wore her standard-issue hospital gown with the opening at the back. Once Dr. Sloka came into the examination room, she stood and faced towards the window. She described the examination as a search for something unusual on her skin. Dr. Sloka was positioned close to her as he examined her. At the outset, he looked at areas that were already exposed. To her recollection, he began at her feet, not her head. He then conducted a piecemeal examination of areas covered by her gown. She recalled removing one sleeve at a time to expose the arm and chest on each side of her body. She assumed she was moving the gown at his direction. Once he examined an exposed area, she covered that area up again. Ms. A.E. recalled Dr. Sloka being thorough and methodical. He examined both her front and back in this methodical fashion, crouching down as necessary to examine the lower portions of her body. Her buttocks were easily visible, because she wore thongs. On occasion he may have used his hands to move a body part or her underwear to get a look at an area of her skin. To examine her pelvic area, he pulled down her underwear to have a peak, then raised it back up. To examine beneath her breast, he used his hand to lift her breast. She got the impression that Dr. Sloka was following whatever protocol existed for skin examinations. Ms. A.E. did not think the skin examination lasted long, maybe a few minutes.

[5142] Ms. A.E. testified that, after the skin examination, Dr. Sloka washed his hands before returning to his office. He also told her she could get dressed.

[5143] Once she got dressed, she joined Dr. Sloka for a discussion in his office. She did not recall what Dr. Sloka told her, but she knew that Dr. Sloka did not find anything during the skin examination.

[5144] The only other skin examination Ms. A.E. could remember was the examination that she said involved a search for melasmas. Ms. A.E. described Dr. Sloka as being thorough and methodical, like he had been for the first examination. She believed that this was the examination in which she became impatient. She recalled thinking that the process was slow, to the point she thought it silly. She just wanted him to hurry up. She told him the gown was wasting time and that she was going to completely remove the gown. She did not remember his response. She then took one arm out of her gown completely and held the gown “out of the way completely” with the opposite hand. While holding the gown in one hand, she held her arms out. After pulling away the gown, she told him, “Just go quickly.” She wanted him to “…just hurry up and be done because it was taking too long.” Apart from her impatience, Ms. A.E. did not remember anything else about this skin examination that distinguished it from the first one or any others that may have occurred.

[5145] I turn now to the single breast examination that Ms. A.E. was able to remember.

[5146] As mentioned, Ms. A.E. drew a connection between this breast examination and her increased prolactin levels revealed by bloodwork. She agreed that the breast examination may also have followed the discovery of her pituitary adenoma. Dr. Sloka told her that her increased prolactin levels might cause lactation. He asked whether she had noticed any discharge in her bra. She told him no. Dr. Sloka asked if he could examine her breasts for discharge. She was concerned about the possibility of discharge; so, she agreed. Dr. Sloka gave her privacy to change, and she got dressed in a hospital gown. She sat on the bed for the breast examination. She testified that she believed that Dr. Sloka squeezed her nipple between his thumb and finger in an attempt to express milk. In cross-examination, defence counsel suggested that Dr. Sloka squeezed her nipples between the sides of two fingers as Dr. Sloka held his hands flat and parallel to her chest – or “between the blades of his hands” as the defence describes it. Ms. A.E. did not remember it occurring that way. Whatever the method, the breast examination did not take long. It lasted only a couple of minutes.

[5147] Ms. A.E. did not remember much about what may have occurred after the breast examination was over. She believed that Dr. Sloka likely ordered additional blood tests. She was not sure if he also ordered another pituitary MRI. At some juncture, Dr. Sloka had discussed the growth on her pituitary gland. He told her that it could increase her prolactin levels, and it was something that should be monitored. Dr. Sloka initially wanted her to obtain two pituitary MRIs per year and then wean it down to once a year. He also ordered routine bloodwork.

[5148] I do not intend to summarize any other areas of Ms. A.E.’s evidence, because she did not present the trajectory of her care in a coherent fashion. She repeatedly reminded the court that, given the passage of time and her lack of concern about other aspects of her care, her memory of much of her care was poor. A few things stood out to me, though, that bear mentioning. She did not seem to place much if any stock in the notion that her second referral stemmed from reports of pins and needles in her lower back. While she never articulated herself clearly on the subject, it seems to me that her primary complaint was chronic pain, particularly joint pain. As noted, she seemed to feel that she suffered from either fibromyalgia or Lyme disease, despite what other experts said. She confirmed that she sought treatment in the United States for Lyme disease, against the advice and wishes of her family doctor, and despite obtaining negative test results in Canada. Indeed, her family doctor did not want to hear about her Lyme treatment. She wanted no part of it, lest she be held responsible for the outcomes. Over a long period of time, before and after seeing the Lyme specialist in the USA, she took a steady diet of antibiotics. It is hard to discern when her concern about Lyme disease dissipated, but the subject of Lyme disease did not arise after Ms. A.E. began to discuss her elevated prolactin levels and her pituitary adenoma, a topic that arose about 4 ½ years into her care with Dr. Sloka. Long before then, Dr. Sloka had, despite his skepticism, repeated Ms. A.E.’s Lyme serology and obtained negative results.

The Evidence of Dr. Bril

[5149] Dr. Bril did not believe that any skin or breast examinations conducted by Dr. Sloka were neurologically reasonable. However, she agreed that the skin and breast examinations claimed by Dr. Sloka may have been medically reasonable.

[5150] Regarding the first skin examination, reported by Dr. Sloka as having occurred on January 3, 2012, Dr. Bril testified that there was no neurological reason to examine Ms. A.E.’s skin for ring lesions because Ms. A.E. had said the lesions were gone. It made no sense to examine the skin for a lesion that was no longer present, but she agreed it could be reasonable to look for anything resembling a lesion that might be a viable candidate for a biopsy. Nevertheless, Dr. Bril also opined that a neurologist ought not to be taking any biopsy. In her view, this is not what neurologists do. If a skin lesion arose, she thought Dr. Sloka should send her to a dermatologist. She agreed that it would be medically reasonable for a dermatologist to look for any developing lesions and to biopsy any that were found. While Dr. Bril agreed that neurologists have “punch” biopsy kits in their office for the biopsy of nerve fibres, she said that these kits are different than the biopsy kits used by dermatologists.

[5151] Dr. Bril also testified that Dr. Sloka’s January 3, 2012, consultation letter disclosed that Dr. Sloka was engaged in an immunological and rheumatological consultation, rather than a neurological one. He discussed Ms. A.E.’s rheumatological issues and revisited some of her rheumatological tests, despite the fact that Ms. A.E. had been seen and tested by two rheumatologists. In her view, Dr. Sloka stepped outside the proper scope of his neurological practice.

[5152] The second skin examination and breast examinations claimed by Dr. Sloka arose after an MRI revealed a pituitary adenoma.

[5153] On the defence theory, Dr. Sloka conducted a second skin examination on August 20th, 2015, together with a breast examination and visual fields examination.

[5154] Dr. Bril agreed that it was reasonable for Dr. Sloka to consider the possibility of a pituitary adenoma once blood tests revealed elevated prolactin and cortisol levels. Dr. Bril testified that a multidisciplinary team of specialists can monitor patients with pituitary adenomas. A sufficiently large adenoma could warrant an endocrinology referral or a neurosurgery referral. Otherwise, a smaller adenoma which does not secrete hormones may be monitored by a neurologist.

[5155] While Dr. Bril agreed that it was reasonable for a neurologist to monitor Ms. A.E. and her pituitary adenoma, she did not believe it neurologically reasonable to conduct a skin or breast examination. In this context, she observed that Ms. A.E.’s prolactin levels had returned to normal by the time of this appointment. The defence presented Dr. Bril with the text Pituitary Disorders Diagnosis and Management, which included a section on the physical examination of patients with suspected pituitary disorders. Dr. Bril testified that the portions of the text dealing with skin and breast examinations were outside her field of expertise. She agreed that she was not qualified to comment on whether there existed a medical justification for breast and skin examinations (including an examination for galactorrhea) when monitoring a patient with a pituitary adenoma. Despite her admitted lack of qualification, Dr. Bril stated that she would be “amazed” to learn that an examination for galactorrhea was medically warranted in the circumstances. Even if medically reasonable, Dr. Bril believed that endocrinologists, dermatologists, and family doctors were better positioned to conduct a skin examination. She also believed that a family doctor or possibly an endocrinologist would be better qualified to perform a breast examination.

[5156] Although Dr. Bril did not think it neurologically reasonable to conduct skin and breast examinations to monitor Ms. A.E.’s adenoma, she agreed that it was neurologically reasonable to monitor her visual fields. Pituitary lesions can interfere with the optic nerve and cause vision problems. Thus, Dr. Bril envisioned multiple doctors, not one, monitoring a single condition.

[5157] I would now like to take a higher-level look at Dr. Bril’s evidence. In looking at the entirety of Dr. Sloka’s file for Ms. A.E., there were occasions on which Dr. Bril believed Dr. Sloka operated within his neurological lane and conducted neurologically appropriate examinations. There were also occasions on which she felt Dr. Sloka stepped out of his lane and into the lane of other medical specialists. Moreover, she did not believe Ms. A.E. needed to remain in Dr. Sloka’s care from March 28, 2012, to September 4. Dr. Sloka had terminated Ms. A.E.’s care on September 4, 2012, but she came back with neurological symptoms on April 23, 2015. In Dr. Bril’s opinion, though, as of February 5, 2016, there was no reason for Dr. Sloka to continue to see Ms. A.E. She felt it sufficient that an endocrinologist was monitoring her pituitary adenoma. In her view, it was unnecessary for Dr. Sloka to see Ms. A.E. on October 7, 2016, December 27, 2016, and August 3, 2017.

[5158] However, Dr. Bril conceded that Ms. A.E. presented with neurological symptoms during the timeframes she said that Dr. Sloka should no longer have been treating Ms. A.E. She also conceded that neurological examinations conducted to investigate these neurological symptoms were reasonable. On June 22, 2012, Ms. A.E. presented with numbness and tingling in her hands and forearms. On September 18, 2012, she presented with recurring migraines, which was a neurological issue. On August 16, 2013, Ms. A.E. presented with dizziness, which was a neurological issue. Dr. Sloka performed a Dix-Hallpike manoeuvre, and a head shake manoeuvre. She agreed these examinations were neurologically reasonable. On September 4, 2014, Ms. A.E. presented with recent numbness and headaches, which were neurological issues. Dr. Bril thought Dr. Sloka’s approach was neurologically reasonable; however, she felt he could also have conducted a neurological examination, which he did not do. On April 23, 215, Ms. A.E. presented with tremors in her hands, which was a neurological issue. A neurological examination was reasonable. Subsequently, an MRI revealed a possible pituitary adenoma, which Dr. Bril conceded was a neurological issue for which a visual fields examination was neurologically justified.

The Evidence of Dr. Sloka

[5159] The defence and Crown took different approaches to the examination of Dr. Sloka and their submissions on his evidence. The defence focused mainly on appointments that involved examinations and on appointments that provided a basis for future examinations. The Crown took Dr. Sloka through almost every appointment and probed more deeply into his medical approach at each of these appointments. I do not think it profitable to summarize every appointment. Instead, I intend to capture Dr. Sloka’s evidence regarding the number of distinct referral periods, the reasons for each renewed referral, flow of her treatment within each referral period, Dr. Sloka’s general approach in each referral period, the examinations he conducted, his justification for those examinations, the dates of those examinations, and the basis for his denial that other examinations occurred.

[5160] In a general sense, Dr. Sloka remembered Ms. A.E., due in large part to the sheer number of her appointments and the timespan over which these appointments occurred. When asked about his memory of her at the outset of cross-examination, he offered the general gloss that he remembered the complexity of her difficulties and her pre-occupation with Lyme disease. A full review of his evidence reveals a general awareness of Ms. A.E.’s referral history, that she had complex medical history that included a long-standing history of pain (including joint pain) and continued pain flare-ups, that she drew his attention to recurrent skin lesions that he believed may have some diagnostic significance, that later testing revealed high prolactin levels and a pituitary adenoma, that her later care included monitoring of her adenoma, that she received care from a number of different specialists other than him, and that Dr. Sloka viewed himself as part of larger circle of care that monitored Ms. A.E.’s symptoms and attempted to understand their cause.

[5161] While Dr. Sloka’s evidence reveals a general awareness about Ms. A.E. and her “complex” difficulties, he had virtually no memory of the details of any given appointment. He relied upon his consultation letters for the truth of their contents. He also relied upon the other documents in Ms. A.E.’s medical file to provide him with relevant factual context.

[5162] Dr. Sloka’s consultation letters reveal five discrete referral/treatment periods. Ms. A.E. received only two referrals over these five treatment periods. These referrals gave rise to her first and second appointments. Ms. A.E.’s attendance for subsequent referral periods occurred because she decided to come back. Dr. Sloka had testified that patients could, without obtaining a new referral, book a follow up appointment with him, if they did so within a year of their last appointment. Ms. A.E. had a knack for returning before the expiration of a year. The third, fourth, and fifth treatment periods all began within a year of the end of the preceding treatment period. As will be seen from the detailed review I am about to summarize, at the conclusion of the first four referral/treatment periods, Dr. Sloka made no plans for further follow up. Ms. A.E. either returned because of a second referral or because of her own decision to return. The fifth and final treatment period ended when Dr. Sloka informed Ms. A.E. that he was closing his practice. I will now provide a more elaborate breakdown.

[5163] Ms. A.E. was first referred to Dr. Sloka because of a migraine. He saw her for one appointment on November 1, 2010. At its conclusion, he did not require to see her again. She obtained a second referral from her family doctor about seven months later, on July 6, 2011. That referral asked for an assessment of Ms. A.E.’s lower paresthesia. In this referral period, Dr. Sloka saw Ms. A.E. for a total of thirteen appointments. Consultation letters reveal that he continued to inquire about Ms. A.E.’s rashes and hoped that she would attend for a biopsy if one surfaced. During this timeframe, she also presented with other symptoms when updating Dr. Sloka on her medical history. On September 18, 2012, Dr. Sloka again released her from his practice, noting that he would “leave follow up open.” In other words, she would have to re-engage if she felt a need existed. A third treatment period began on August 16, 2013. She reattended Dr. Sloka’s office because she had been experiencing dizziness. Again, Dr. Sloka did not schedule any further follow up. The fourth treatment period began and ended on September 9, 2014. She returned because she had reportedly been experiencing headaches in the preceding few weeks. Again, Dr. Sloka made no further plans for follow-up. Ms. A.E. then returned for her fifth treatment period on April 23, 2015. Ms. A.E. came back to Dr. Sloka because she had noticed tremors in her hands and weakness and fatigue in her arms. In this treatment period, Dr. Sloka discovered increased prolactin levels after ordering blood tests. Subsequently, an MRI suggested a pituitary adenoma. Dr. Sloka followed her in this referral period to monitor that adenoma.

[5164] I will now briefly address the first referral period. Ms. A.E. came to see Dr. Sloka on November 1, 2010, because she had recently suffered her first migraine. Dr. Sloka took a detailed medical history and recorded it in his consultation letter. He thus gained a fairly thorough understanding of Ms. A.E.’s complex medical history and was alerted for the first time to Ms. A.E.’s pre-occupation with her Lyme suspicions. Dr. Sloka conducted neurological and cardiac examinations. Dr. Bril conceded the reasonableness of these examinations; so, I will not address Dr. Sloka’s justifications for them. Similarly, Ms. A.E. did not raise any concerns about these examinations– indeed she did not remember them – so, I will not discuss his methodology, except to say that his standard cardiac examination involves the exposure of the left breast. Neither the Crown nor Ms. A.E. complain about this exposure. At the conclusion of this visit, Dr. Sloka concluded that Ms. A.E.’s headaches were consistent with migraines. To be careful, he ordered follow-up testing to further explore the possibility of a cardiovascular explanation (stroke). He also ordered pituitary bloodwork to explore the possibility that a primary pituitary failure might be responsible for her hormonal difficulties. However, he made no plans to see Ms. A.E. in follow-up, unless her tests revealed abnormal results (they did not). He gave her prescriptions for her headaches and sent her on her way.

[5165] It is now time to discuss the second referral period. Dr. Sloka testified that he conducted a single skin examination during this second referral period, in the hopes of finding and taking a biopsy of the intermittent red ringed lesions reported by Ms. A.E. On his evidence, that single skin examination occurred on January 3, 2012. Ms. A.E.’s family doctor made this second referral after Ms. A.E. complained of paresthesia (pins and needles) in her lower back. The first appointment in this period occurred on July 6, 2011.

[5166] On July 6th, Ms. A.E. updated Dr. Sloka on her medical history. Her headaches had resolved since she last saw Dr. Sloka. She reported feeling paresthesia (pins and needles) in her left mid back for the last year and a half (she did not mention this seven months previously). She even mentioned spontaneous paresthesia while sitting in Dr. Sloka’s office. Dr. Sloka also “delved a little bit further into her previous mycoplasma story.” A decade previously, she developed significant joint difficulties. She underwent numerous tests. She tested positive for mycoplasma (an infection). She had been receiving antibiotic therapy for the previous year and a half. She remained under observation by a specialist in Cambridge. He pain had resolved. However, she reported the development of targetoid (raised red target shaped lesions 2 inches in diameter) since the previous September. They would disappear several weeks after surfacing. She also reported episodic pleuritic (lung) chest pain. Dr. Sloka reported a neurological examination. The results were normal. He found no evidence of paresthesia during the examination. Dr. Sloka also documented his conclusion that he considered Ms. A.E.’s Lyme hypothesis to be “ridiculously far fetched” given the array of symptoms she described and given that she had been on a long-term prescription of an antibiotic similar to the one used to treat Lyme disease. Nevertheless, he decided to repeat bloodwork to test for Lyme and mycoplasma. He considered her long-term use of antibiotics to be illogical. In his letter, he reported hoping that the blood test results might give her some confidence in weaning off these antibiotics. He testified that it was unusual for a patient to take antibiotics for two years. He also testified that he considered testing and treating Lyme disease as part of neurology if the Lyme disease was causing neurological symptoms. In Ms. A.E.’s case, she had neurological symptoms, but he doubted the Lyme hypothesis. Similarly, he considered as a neurological endeavour the exploration of any connection between mycoplasma, the antibiotic treatment, and her pain symptoms. Dr. Sloka testified that, if there was some benefit from medication, then that might help with an underlying diagnosis that might address her neurological symptoms. Pending the blood test results, he decided to permit her ongoing use of antibiotics. She believed the antibiotics were maintaining her pain symptoms and he doubted a placebo effect.

[5167] Dr. Sloka did not believe he conducted a skin examination at Ms. A.E.’s July 6th appointment, because she did not purport to have lesions on July 6th. He also observed that he did not make mention of the skin lesions until reaching the impression portion of his consultation letter, which suggested the topic arose in the post-examination consultation. Having said that, he had no independent memory of when the topic arose. Here it is worth noting that the topic of finding and doing a biopsy of ring lesions continued throughout 2011 and up to January 3, 2012. When viewed as a whole, the letters suggest that Dr. Sloka was waiting for the day that the lesions were present before conducting a skin examination and obtaining a biopsy. He did not report a skin examination until January 3, 2012.

[5168] On July 21, 2011, Dr. Sloka wrote to an infectious disease specialist at GRH to seek guidance about Ms. A.E. In his letter, he wrote, “I have an unusual young lady with a joint pain syndrome being treated with minocycline for two years and an elevated mycoplasma test years ago.” He made clear his desire to get Ms. A.E. off the antibiotics. He did not think the long-term usage was “desirable.” He observed that her symptom set “smells Lyme-ish” but her Lyme test was negative. He mentioned that Ms. A.E. was getting medical advice over the phone from a doctor in the United States. He wondered about her old mycoplasma test results and whether they were “spurious.” He wanted to know whether the hospital could test her for a mycoplasma infection. In his reply, the specialist told Dr. Sloka that he had never heard of the mycoplasma treatment paradigm Dr. Sloka described.

[5169] On August 2nd, Ms. A.E. called Dr. Sloka’s office and left a message about “unusual symptom”; “?Lyme”. She described aches and burns on her right arm and hand, lasting 3-4 days. She described the “flare” as beginning with fatigue, progressing to pain, then resolving.

[5170] On August 10th, Ms. A.E. called Dr. Sloka’s office and left a message about a red circular rash, which was “now healing.” On August 15th, she left a message stating that “spot gone”; “took pic.”

[5171] Ms. A.E. attended for her second visit in this second referral period on August 24th, 2011. In his consultation letter, Dr. Sloka documented a discussion of her “flareups.” She also discussed her recent red raised ring lesion and showed him the picture she took. Ms. A.E.’s current Lyme serology was still negative. Despite the historic positive test for mycoplasma, Dr. Sloka wrote, “I think I would like to consider other processes for her given that she has been on long-term antibiotics, and she continues to have flareups, so thinking about other bloodwork would be a good idea. I may examine her more thoroughly as well, and so we will arrange to see her in approximately one month.” Dr. Sloka also discussed a “possible biopsy during one of her flareups,” noting that she could call the office if she notices another ring lesion. Dr. Sloka testified that he was considering any process associated with episodic rashes, pain, and neurological involvement. He was thinking broadly. However, he did not consider himself to be operating outside the field of neurology. He considered a possible connection between Ms. A.E.’s rashes and her neurological symptoms. For instance, he considered the investigation of Lyme to be a neurological one. He testified that Lyme could cause various difficulties in the nervous system, including problems with the brain, spine, and nerves. Dr. Sloka also rejected the suggestion that he should have passed Ms. A.E. onto an infectious disease specialist. He emailed the hospital’s infectious disease specialist for advice and received some. He also knew that the specialist would not accept referrals without a positive test result. Thus far, Ms. A.E. had not tested positive for any infectious disease.

[5172] Dr. Sloka denied conducting a skin examination on August 24th, noting that he specifically documented a desire to examine Ms. A.E.’s in the future if a lesion arose.

[5173] Dr. Sloka saw Ms. A.E. again in September, November, and December of 2011. At these appointments, they discussed her pain flareups and her ring lesions, amongst other things. They also continued to discuss her preoccupation with Lyme disease, Dr. Sloka’s belief that she did not have Lyme, and the fact that she had obtained negative test results for Lyme for a third time. Dr. Sloka considered several diseases that might be responsible for her lesions, some of which had neurological symptoms and some of which did not. Amongst the diseases considered were ringworm, discoid lupus, granuloma annulare, sarcoidosis, pityriasis rosea, urticaria, and Lyme disease. However, he could not identify a unifying explanation of her pain and rash flareups. He catalogued this list of possible diseases so that he might inform a pathologist to test for the diseases if he was ever able to biopsy a lesion. Dr. Sloka denied performing skin examinations at these appointments, again noting that he had documented a plan to examine her skin and take a biopsy when she reported having a lesion. It is clear from his reporting letters that she had yet to come to his office with an active lesion.

[5174] At the conclusion of Ms. A.E.’s December 23rd appointment, Dr. Sloka planned to see Ms. A.E. in a couple of weeks, at which point he planned to discuss further public health testing and immune testing for an infectious disease explanation for her chronic symptoms. At the conclusion of his reporting letter he wrote, “I will continue to think hard about her diagnostic possibilities.”

[5175] When Dr. Sloka met with Ms. A.E. on January 3rd, she reported spotting early signs of a lesion the previous day. The lesion never fully developed and had since disappeared. Nevertheless, Dr. Sloka decided to examine Ms. A.E.’s skin. He wrote, “We examined her skin today with her permission and I found no evidence of her typical skin lesions.” I pause here to observe that, in my view, the consultation letters from July 6, 2011, to January 3, 2012, plainly indicate that (1) Dr. Sloka was interested in determining the cause of the lesions; (2) Dr. Sloka was interested in determining whether the cause of the lesions might also be responsible for some of Ms. A.E.’s other chronic symptoms; and (3) Dr. Sloka was waiting for a lesion to arise before conducting a skin examination. The January 3rd consultation letter also makes it obvious that Dr. Sloka’s decided to conduct a skin examination because Ms. A.E. had reported seeing the beginning of a lesion in the previous 24 hours. The proximity of the lesion clearly motivated Dr. Sloka to do a skin examination. This is how Dr. Sloka interpreted his records. I see no other reasonable interpretation. Nothing in Ms. A.E.’s evidence can reasonably support the contention that a skin examination occurred any earlier than January 3, 2012.

[5176] Apart from the skin examination, Dr. Sloka also documented a lengthy discussion with Ms. A.E. about Lyme disease, Dr. Sloka’s belief that she did not have the disease, the implications of her long-term antibiotic regimen for her immune system and for any rheumatological condition that may be causing her joint difficulties. Dr. Sloka decided to order blood tests to rule out Bartonella, Q fever, and anaplasia. He also ordered some rheumatological bloodwork to re-assess whether there was a rheumatological explanation for her symptoms. Dr. Sloka considered these investigations to be within the realm of neurology because he was investigating the cause of neurological symptoms. Dr. Sloka disagreed with the suggestion that Ms. A.E. was not presenting with neurological issues. She reported a long history of episodic pain flareups. Her family doctor made this second referral because of paresthesia in her back. Her first referral concerned migraines and subsequent headaches were episodic. All of her symptoms were episodic. He made it clear in reporting letters and in his evidence that he was searching for a unifying explanation for all her episodic symptoms. In his January 3rd consultation letter, he told Ms. A.E.’s family doctor, “Her story remains unsolved, and I will continue to try to give her an explanation as best as I can.”

[5177] On February 5, 2012, Dr. Sloka saw Ms. A.E. again in follow-up. He again documented his concern about Ms. A.E. participating in a multi-antibiotic treatment regimen in the United States for a disease he did not believe she had. She had reported a recent fever of 101 after starting new antibiotics. She also noticed swelling in her lymph nodes. Dr. Sloka documented an examination of Ms. A.E.’s lymph nodes, her spleen, and her liver. He found swelling in the front and back of her neck and her occipital region (the base of the back of the scull). He examined her lymph and spleen because these are lymphatic organs. Dr. Sloka testified that, in the context of the complexity of this patient, he felt her symptoms were in the realm of neurology. He did not know if her lymphatic swelling was an evolution in her overall syndrome or an isolated issue. He was not certain what could be causing the swelling. If she had broad lymphadenopathy, then lymphoma was a consideration. Dr. Sloka also testified that he understood that her family doctor had stepped back from care after Ms. A.E. went to the USA for Lyme treatment against her advice. Ms. A.E.’s swollen lymph nodes were potentially related to her Lyme treatment in the USA. He did not feel confident he could send her back to her family doctor to investigate these possible side effects. He testified that, for safety reasons, he would not ignore her symptoms. At the conclusion of his consultation letter, he wrote, “Her current status makes me a little bit nervous so I will arrange to see her in one month to ensure that her lymphadenopathy settles out.” In the meantime, he ordered a CT scan to investigate the possibility of lymphoma.

[5178] Dr. Sloka saw Ms. A.E. in follow-up on February 29, 2012. In advance of this appointment and at Ms. A.E.’s request, the family doctor had sent the results of ultrasounds and x-rays she had ordered. Ms. A.E.’s ultrasound results suggested the presence of lymphadenopathy, but Dr. Sloka’s consultation letter does not make clear that the lymphadenopathy was still present by the date of the appointment. Nevertheless, for the same rationales as summarized for the February 5th appointment, Dr. Sloka re-examined Ms. A.E.’s lymph nodes, spleen, and liver. He noted that her lymph nodes “seem smaller” and “nonpainful.” Her liver and spleen were normal in size.

[5179] Dr. Sloka continued to see Ms. A.E. for additional appointments in 2012. He testified that he continued to monitor her for pain flare ups, which involved some neurological symptoms.

[5180] On March 28, 2012, Ms. A.E. did not present with any neurological symptoms. By that date, Ms. A.E. had also been referred to a rheumatologist to rule out any rheumatological condition. Dr. Sloka also continued to express concern about her treatment in the USA. He noted, “I still have a concern that she is being treated for a disease that she does not have and … may have had some significant side effects from the treatment that she was taking [referring to the swollen lymph nodes] ….” Dr. Sloka wrote a separate letter to the rheumatologist in which, in addition to discussing ruling out a rheumatological explanation for Ms. A.E.’s symptoms, Dr. Sloka expressed concern about Ms. A.E.’s ongoing treatment in the USA for Lyme disease, a disease from which she did not suffer.

[5181] Dr. Sloka saw Ms. A.E. again on June 22, 2012. Here, she presented with numbness and tingling in her hands and forearms - neurological symptoms. He recommended nerve conduction studies, but Ms. A.E. decided to wait until the symptoms returned.

[5182] At her next appointment on September 18, 2012, Ms. A.E. reported hat she suffered migraines over the summer - neurological symptoms. She also reported “episodic drunk sensation”, “episodic dizziness”, and an episodic low-grade fever. She also described a brief arm numbness. After noting the brevity of the arm numbness, Dr. Sloka wrote, “I am not sure that nerve conduction testing at this time would be fruitful.” By this point in time, Ms. A.E. had been referred to a second neurologist in Toronto, a genetic specialist, an infectious disease specialist, a vein specialist, a sports medicine specialist, and a dermatologist. The infectious disease specialist reportedly told her that she did not have Lyme. The Toronto rheumatologist in Toronto told her that her Lyme doctor in the United States was a “quack.” Dr. Sloka had not made any of these referrals. He testified that he had hoped to gather sufficient information before making any referral. He had been considering a referral to a rheumatologist before Ms. A.E. obtained one elsewhere. In any event, after discussing Ms. A.E.’s migraines, Dr. Sloka indicated to leave further follow up open. In other words, he ceased his involvement in monitoring Ms. A.E.’s condition. This is how her second treatment period came to an end. He would not see Ms. A.E. for almost another year.

[5183] Ms. A.E. returned to see Dr. Sloka on August 16, 2013. I infer that she did not require a distinct referral because her previous appointment occurred less than a year previously. Given the distinct break in her care, though, I consider this to be the commencement of the third treatment period. From the records, this was not an appointment made at the direction of Dr. Sloka’s office, but rather one booked by Ms. A.E. when new symptoms arose. At this appointment, Ms. A.E. complained about suffering from episodes of dizziness in the fall of 2012. According to his consultation letter, she reported that the episodes settled down in March after she came off her medications. However, the dizziness returned a few weeks previously, so Ms. A.E. phoned Dr. Sloka’s office to book an appointment. Dr. Sloka documented conducting a Dix-Hallpike maneuver, a headshake maneuver, a cardiac examination, and the measurement of Ms. A.E.’s orthostatic vital signs.

[5184] Dr. Sloka disagreed with Dr. Bril’s opinion that a cardiac examination was not neurologically reasonable. It was his understanding from his training and medical literature that a cardiac examination was warranted when a patient reported dizziness. While he did not do a neurological examination, Dr. Sloka agreed that, given the passage of time and her new symptoms, he ought to have done one. Dr. Sloka denied doing a skin examination at this appointment.

[5185] It does not appear from Dr. Sloka’s August 16, 2013, consultation letter that Dr. Sloka made any specific plans for a follow-up appointment, but he contemplated her returning if her dizzy spells increased in frequency. He ended by say, “… but she knows we would see her quickly if she has difficulties.” While Ms. A.E. left a message on April 14, 2014, complaining about “confusing & feeling off last 30 minutes… with nausea, off balance,” she did not return to see Dr. Sloka until September 4, 2014 – almost 13 months after the August 16th appointment.

[5186] Dr. Sloka next saw Ms. A.E. again on September 4, 2014. As with August 16th, this does not appear from the records to be an appointment made at the direction of Dr. Sloka’s office, but rather an appointment booked by Ms. A.E. According to Dr. Sloka’s consultation letter, Ms. A.E. reported headaches in the previous few weeks, which had subsided in the days leading up to the appointment. Ms. A.E. also reported that she was receiving hormone treatment from a premature ovarian failure clinic in Toronto. Dr. Sloka did not perform a neurological examination at this appointment. He agreed in cross-examination that he ought to have performed one, given the new symptoms and the passage of time. Similarly, he agreed that he may have failed to follow his standard approach to headache patients by failing to do a cardiac examination; however, he observed that he had done a cardiac examination, which showed no abnormalities, at the last appointment, about a year ago. He considered the last cardiac examination reasonably proximate to this appointment. He also noted in his consultation letter that he was hoping that the Toronto clinic would advise Ms. A.E. about the stroke risk associated with her hormone treatment. Dr. Sloka reported that he gave Ms. A.E. some sample medications for her headaches. He also made clear in his consultation letter that he made no specific plans for any follow-up appointment. Instead, he wrote, “If she has trouble with her headaches or anything else concerning she knows she can call and I will see her in follow up at that time.” So ended the fourth referral/treatment period.

[5187] Ms. A.E. did not return to Dr. Sloka’s care until April 23, 2015, seven months after her September 4th visit.

[5188] In his April 23, 2015, consultation letter, Dr. Sloka documented that Ms. A.E. complained of a tremor in both hands in the previous two or three weeks. She reported episodic nausea associated with the trembling. She also reported an episodic weakness in her arms that she felt was distinct from her tremors. She told Dr. Sloka that she was able to control her tremors if she concentrated on it. Dr. Sloka testified that, due to her reports of being able to control the tremors, he believed there may have been a psychological component to her symptoms.

[5189] Dr. Sloka recommended and conducted a neurological examination. He found no evidence of a tremor.

[5190] Dr. Sloka also ordered bloodwork to rule out secondary causes of tremor. To that end, he ordered bloodwork to test her liver functioning. He also ordered bloodwork for some pituitary hormones, due to her reported weakness. Prolactin was one of the pituitary hormones he sought to measure. He testified that prolactinomas are the most common type of pituitary adenoma. Pituitary adenomas can, by mechanical effect, inhibit the functioning of the thyroid gland and inhibit the production of cortisol. He planned to see her in a month after her testing was complete.

[5191] Blood test results showed that Ms. A.E. had high prolactin and cortisol levels. Dr. Sloka wrote to Dr. Stobie (the family doctor) to advise her about this and advise her that he may need to order an MRI to investigate Ms. A.E.’s pituitary gland.

[5192] Ms. A.E. returned to see Dr. Sloka on May 28, 2015. Ms. A.E. continued to report tremors. Dr. Sloka ordered a pituitary MRI, an ultrasound of Ms. A.E.’s thyroid, and some additional bloodwork. He denied doing his triad of pituitary examinations (breast, skin, and visual field examinations). Instead, he waited for the results of the pituitary MRI. He noted in his consultation letter that Ms. A.E. was asymptomatic (no galactorrhea, no change in skin, and energy level seems stable). He also noted an intention to examine Ms. A.E. after obtaining the results of the MRI.

[5193] Ms. A.E. returned for a follow-up appointment on August 20, 2015. Dr. Sloka testified that he examined Ms. A.E. at this appointment, consistent with his stated intention at the previous appointment. By this appointment, Dr. Sloka had the results of the pituitary MRI. Dr. Sloka reported, “The MRI of her pituitary suggests a small microadenoma, but it is difficult to appreciate this when looking at the images.” Her latest prolactin results had returned to normal. Consequently, he wondered whether the MRI actually showed a pituitary adenoma. Ms. A.E. also continued to report being asymptomatic. Nevertheless, he decided to conduct his standard pituitary examinations. He reasoned that past prolactin levels and the possible presence of an adenoma on the MRI warranted the pituitary examinations. He conducted the skin examination to see if he could identify the type of any adenoma present, because some pituitary adenomas have skin manifestations. He testified that he would have told Ms. A.E. that he was looking for skin discolouration. Dark patches are found with some adenomas. He conducted the breast examination to look for evidence of galactorrhea. Any galactorrhea would identify her adenoma as a prolactinoma, which he believed to be the most common type of pituitary adenoma. He testified that he would have told Ms. A.E. that he was looking for evidence of lactation. Dr. Sloka tested visual fields to see if the peripheral vision was impaired due to pressure from any adenoma on the optic nerve.

[5194] Dr. Sloka denied doing the breast examination in the manner described by Ms. A.E. In his standard method, he placed his flat hands parallel to the surface of the breast and pressed together the sides of his fingers from opposing hands, squeezing the nipple in the process.

[5195] Dr. Sloka documented his pituitary examinations by reporting, “General examination was normal today, with normal visual fields.” He testified that he emphasized visual fields because he went on to note that he advised her to seek help if she had any change in her vision. He denied being deliberately silent about the breast and skin examinations. Those examinations were subsumed within the term “general examination.”

[5196] In his consultation letter, Dr. Sloka reported his plan to repeat the pituitary bloodwork a few times and to repeat Ms. A.E.’s MRI.

[5197] On Dr. Sloka’s evidence, he periodically repeated Ms. A.E.’s pituitary bloodwork and MRIs, but he did not conduct another trio of pituitary examinations. He saw Ms. A.E. on February 5, 2016, October 7, 2016, December 21, 2016, August 3, 2017, October 20, 2017, July 25, 2018, and January 4, 2019. At the last three of those visits, a practice monitor was present, and he was forbidden from conducting skin examinations. He testified that it was not his practice to conduct the trio of pituitary examinations at every follow-up appointment, but rather to conduct them periodically over time. In Ms. A.E.’s case, her MRI results remained stable over time. Ms. A.E.’s pituitary bloodwork was also normal.

[5198] On August 3, 2017, Ms. A.E. was stable. Her MRI showed no changed and her blood work showed no concerns. However, Ms. A.E. reported the presence of new brown spots on her face. Dr. Sloka ordered a new round of bloodwork to rule out ACTH overproduction. ACTH is a pituitary hormone that stimulates the adrenal glands to produce cortisol. Dr. Sloka disagreed with the suggestion that an investigation of Ms. A.E.’s ACTH lay outside the field of neurology. He testified that the pituitary gland is part of the brain, and an investigation of its function is inherently part of the field of neurology. In reference to Ms. A.E.’s brown spots, Dr. Sloka also reported in his reporting letter that “Melasma is the working diagnosis.”

[5199] The Crown suggested that an investigation of melasma lay outside the field of neurology. Dr. Sloka disagreed. He testified that an alteration in pituitary hormones can alter the production of non-pituitary hormones, thereby causing melasma. He agreed melasma can also be caused by excess estrogen. Dr. Sloka knew Ms. A.E. was receiving hormone replacement therapy that included estrogen. He did not provide a copy of his reporting letter to her hormone replacement doctors, only Ms. A.E.’s family doctor. He agreed that he should have done so. He denied the rather spurious (I say spurious because of the fact that Dr. Sloka was prepared to let Ms. A.E. leave his practice in 2010, 2012, 2013, and 2014) suggestion that he was attempting to keep Ms. A.E. in his orbit.

[5200] Dr. Sloka acknowledged that once under the supervision of a practice monitor, he did not refer Ms. A.E. elsewhere for the purpose of having her undergo the trio of pituitary examinations in the waning period of Dr. Sloka’s practice. The Crown did not, however, suggest that any circumstances arose that would have triggered his decision to recommend the trio of pituitary examinations

Assessment of the Evidence and Analysis

[5201] For Ms. A.E., the Crown alleges that Dr. Sloka committed a sexual assault when performing any skin examinations or breast examinations. I do not understand the Crown to be alleging that any other examination constituted a sexual assault. On the Crown theory, Dr. Sloka performed somewhere between three and five skin examinations and at least one breast examination. Dr. Sloka admits to conducting two skin examinations and one breast examination.

[5202] In my view, Ms. A.E.’s evidence can only reliably prove what Dr. Sloka is prepared to admit. She can only actually remember two skin examinations. Her assertions of any more examinations are tentative, vague, verging on ethereal imaginings instead of real memories, and untethered to any known historical events in her treatment.

[5203] Ms. A.E.’s evidence on the timing of the known skin examinations was also unreliable and based upon an incomplete review of her medical records.

[5204] Moreover, Ms. A.E.’s evidence about the reason for the first skin examination was abjectly illogical and obviously influenced by her long-term obsession with her non-existent Lyme disease. She thought it strange that Dr. Sloka was looking for infectious lesions caused by tic bites a decade ago. Yet, she acknowledged that Dr. Sloka mentioned nothing about looking for tic bites. That was an assumption on her part – a purpose projected from her Lyme obsession directly onto Dr. Sloka. She refused to acknowledge the obvious: for several appointments she had spoken of transient red ringed lesions (ones without a red insect bit mark in the middle) and Dr. Sloka had spoken of a desire to biopsy those lesions to ascertain their cause. Her refusal betrays not only a poor memory but an intransigence in the face of extremely compelling contemporaneous records, which she had failed to read carefully and completely.

[5205] Ms. A.E.’s evidence regarding the reason for the second skin examination lacked reliability. I note here that she acknowledged the existence of circumstances that Dr. Sloka said had motivated him to conduct his triad of pituitary examinations. An MRI suggested a pituitary adenoma and blood test revealed a high prolactin level. She agreed that Dr. Sloka may have proposed an examination to look for any unusual patches of skin or changes to the colour or texture of her skin. These are the types of skin changes Dr. Sloka mentioned when testifying about the effects of certain pituitary adenomas. Generally speaking, Ms. A.E. also agreed that Dr. Sloka always provided an explanation for the examinations he proposed. She also agreed that after her second skin examination, Dr. Sloka wanted to continue to follow her adenoma by conducting periodic MRIs and bloodwork. Ms. A.E. also acknowledged that on August 20, 2015, which is the day Dr. Sloka claimed this second skin examination occurred, Dr. Sloka conducted a breast examination to look for evidence of lactation caused by excess prolactin. In short, Ms. A.E. admits to overwhelming circumstantial evidence that Dr. Sloka’s motivation for the second skin examination related to a desire to identify the nature of any pituitary adenoma. Her belief that Dr. Sloka was instead motivated to look for melasma (related to excess estrogen production) was imprecise and unreliable.

[5206] I turn now to Ms. A.E.’s description of Dr. Sloka’s methodology. Here, Ms. A.E. essentially supported Dr. Sloka’s contention that he took care to expose Ms. A.E.’s skin in a piecemeal fashion, to avoid undue exposure of her body. While there were some differences between her description and Dr. Sloka’s, they agreed on Dr. Sloka’s methodical, careful, and procedural approach. On her evidence, Dr. Sloka did not overtly sexualize the process. Indeed, to the extent possible, she described what appeared to her to be a standard protocol – a protocol with the obvious benefit of preserving her privacy to the degree possible. Dr. Sloka was so careful and methodical that she became impatient at the second examination and unilaterally decided to expose more of herself to speed up the process. He annoyed her by being too clinical. In my view, her evidence of his methods does not support the conclusion that the skin examinations were sexual activity.

[5207] I turn then to the alleged breast examination. As noted, Ms. A.E. acknowledged that Dr. Sloka conducted the examination to look for evidence of lactation/discharge, having noted that her prolactin level had been high. In other words, she acknowledged the motive Dr. Sloka continued to claim at trial. While she believed Dr. Sloka squeezed her nipple between his thumb and finger, she described the process as brief. It is clear from her evidence that she did not consider the examination to be sexual conduct at the time it was occurring. Dr. Sloka acknowledged that the technique Ms. A.E. described is also mentioned in the medical literature; it was just not the method he employed. In the end, I really do not think anything turns on this area of conflict, because Ms. A.E. did not describe it or view it as overtly sexualized conduct.

[5208] The Crown relies upon similar fact evidence to support Ms. A.E.’s evidence.

[5209] As noted elsewhere in this judgement, I have permitted the cross-count use of each complaint evidence to support the inference that Dr. Sloka possessed a sexual purpose when performing any given examination. However, having considered the evidence of Ms. A.E., Dr. Bril, and Dr. Sloka, I have concluded that Dr. Sloka has rebutted any inference of a sexual purpose. As will be discussed below, Dr. Sloka’s evidence convincingly satisfies me that he possessed a medical purpose when conducted examinations upon Ms. A.E..

[5210] The Crown also relies upon two discrete cross-count similarities to support Ms. A.E.’s evidence: Ms. A.E.’s membership in a constituency of patients who allege skin examinations and her membership in a constituency of patients who allege breast examinations in search of galactorrhea. However, these cross-count similarities are not proffered in support of a material issue. Dr. Sloka conceded performing two skin examinations and one breast examination for galactorrhea. These two similar act constituencies do not provide any probative value on any remaining material issues, foremost of which are the number of examinations conducted and the medical justification for them. On these material issues, I see a significant likelihood that Ms. A.E. was tainted by exposure to media coverage.

[5211] As noted in the summary of Ms. A.E.’s evidence, before reading about allegations against Dr. Sloka, Ms. A.E. appears to have held Dr. Sloka in high regard. During her time as his patient, she returned to see him on three separate occasions without Dr. Sloka directing her to see him in follow up. She testified that after learning that others had complained about skin and breast examinations, she felt their complaints were similar to her experience. For a time, she continued to feel that Dr. Sloka was a great doctor who provided her with excellent care. However, her opinion began to shift as she sought more input. First, she contacted the CPSO anonymously and was told that the examinations were improper, like a dentist doing an interna examination. Later, she heard Dr. Sloka had lost his licence and had been criminally charged. Learning of this, she began to believe that her examinations may not have been necessary. Then, after going to the police at the urging of her parents, a police officer told her that she had been sexually assaulted. It is obvious that Ms. A.E.’s perception was gradually influenced by media exposure and the subsequent the input she received from CPSO staff and the police. This influence creates the significant potential for tainting of Ms. A.E.’s memory and perceptions of her treatment, including her perception about the number of skin examinations she received beyond the two she actually remembered.

[5212] Given Ms. A.E.’s poor memory, given the significant reliability concerns revealed in her testimony, and given the significant potential for tainting, I am not prepared to place any reliance on aspects of Ms. A.E.’s evidence that conflict with Dr. Sloka. I see nothing in Ms. A.E.’s evidence that is capable of meaningfully undermining Dr. Sloka’s evidence.

[5213] I turn now to the evidence of Dr. Bril. Here, I will focus mainly on Dr. Bril’s evidence regarding the skin examinations and breast examination, though I will make some reference to other aspects of her evidence.

[5214] I begin with the first skin examination. Accepting, as I do, that it occurred on January 3, 2012, Dr. Bril opined that it may have been medically reasonable to conduct that skin examination in the hopes of finding anything resembling a ring lesion on which to take a biopsy. Given that concession, I place little weight on her apparently contradictory claim that it made no sense to look for a lesion that had disappeared the day before. While she accepted the medical reasonableness of the skin examination, she took the position that it was not neurologically reasonable for Dr. Sloka to conduct it. She maintained that neurologists do not take skin biopsies and that Dr. Sloka ought to have sent her to a dermatologist. For the reasons provided in the section of the judgement devoted to the general assessment of Dr. Bril’s evidence, I place no weight on categorical claims about the conduct of skin examinations in clinical neurology, including her belief that neurologists should not be taking skin biopsies. In my view, Dr. Bril’s opinion does not meaningfully undermine Dr. Sloka’s position. He was looking for evidence of conditions that might provide a unifying explanation for a constellation of symptoms, some of which were neurological. He professed to have the training, experience, and competence necessary to conduct the examinations. Dr. Bril could not and did not rebut that claim. Dr. Bril was unaware of and unconcerned[30] with Dr. Sloka’s training, experience, and competency.

[5215] I turn next to Dr. Bril’s evidence regarding Dr. Sloka’s examinations relating to Ms. A.E.’s possible pituitary adenoma. In her view, endocrinologists, dermatologists, and family physicians were in a better position to examine the skin, and a family physician or possibly an endocrinologist would be most suitable to conduct a breast examination. While Dr. Bril testified that it was not neurologically reasonable for Dr. Sloka to perform breast and skin examinations, she conceded that she was not qualified to comment on whether there existed a medical justification for breast and skin examinations (including an examination for galactorrhea) when monitoring a patient with a pituitary adenoma. When presented with a text on the topic, Pituitary Disorders Diagnosis and Management, which included a section on the physical examination of patients with suspected pituitary disorders, Dr. Bril testified that the portions of the text dealing with skin and breast examinations were outside her field of expertise. Accordingly, Dr. Bril’s evidence could not undermine Dr. Sloka’s stated belief that the skin and breast examinations were medically justified. Concerningly, despite acknowledging that she was not qualified to opine about the medical reasonableness of these examinations, she gratuitously offered her opinion anyway, stating “but I would be amazed if that were true.” Here, Dr. Bril betrayed a willingness to become an advocate rather than remain impartial. For the reasons stated in the section of the judgement devoted to the general assessment of Dr. Bril’s evidence, I place no weight on Dr. Bril’s categorical claims about the propriety of neurologists conducting skin and breast examinations. Dr. Sloka testified that he had the training and experience necessary to conduct the trio of pituitary examinations which he believed were medically indicated. Dr. Bril’s evidence proved incapable of undermining Dr. Sloka’s position.

[5216] Dr. Bril had testified that there was no reason to see Ms. A.E. between March 28, 2012, and April 23, 2015. She also felt there was no need for Dr. Sloka to see Ms. A.E. after February 5, 2016. Relying on Dr. Bril’s evidence, the Crown asserts that Dr. Sloka strived to keep Ms. A.E. in his orbit to provide himself with the opportunity to gain access to Ms. A.E.’s body. However, the Crown’s position is undermined by a closer look at Ms. A.E.’s referral history and by Dr. Bril’s concession that Ms. A.E. continued to present with neurological issues after March 28, 2012. The first two treatment periods resulted from referrals made by other physicians. Then it was Ms. A.E. who initiated the third, fourth, and fifth treatment periods. Dr. Sloka did not keep pulling Ms. A.E. into his orbit. She kept coming back. And it was not just Dr. Sloka. The record reveals that she saw a multitude of experts to address the same overarching complaints. And she showed herself willing, against the wishes of her family doctor and Dr. Sloka, to repeatedly see and receive treatment from an ostensible Lyme expert in the USA. In my view, the evidence supports the conclusion that it was Ms. A.E. who exerted a gravitational pull on several experts – not the other way around. Moreover, Ms. A.E. continued to present with neurological symptoms long after March 28, 2012. Dr. Bril conceded this. She also conceded the neurological reasonableness of certain examinations done to investigate these neurological symptoms. While Dr. Bril thought Dr. Sloka should have bowed out after Ms. A.E. came under the care of an endocrinologist, she never adequately explained why a neurologist was not equally up to the task of monitoring hormones produced by a part of the brain. She seemed to take an overly rigid and hyper-compartmentalized approach to the care of a single medical issue affecting a part of the brain. The brain, of course, is intrinsically a neurological concern. I saw no logic in her position.

[5217] In summary, I do not see Dr. Bril’s evidence as being capable of supporting the contention that Dr. Sloka unnecessarily booked follow up appointments with Ms. A.E. Consequently, I do not see Dr. Bril’s evidence as capable of supporting the contention that Dr. Sloka possessed an improper motive when scheduling follow-up appointments with Ms. A.E..

[5218] I would next like to address Dr. Sloka’s evidence.

[5219] There is no complaint about Dr. Sloka’s conduct at the first appointment, so I need not address it.

[5220] In the second treatment period, Ms. A.E. presented initially with paresthesia in her back. However, her broader history also included intermittent pain. In addition, Ms. A.E. reported the intermittent eruption of red ringed lesions on her body. Dr. Sloka testified that he wanted to investigate whether an underlying condition might provide a unifying explanation for Ms. A.E.’s constellation of symptoms, including her neurological symptoms. He conducted research into the possible causes of her lesions. His research is documented in Ms. A.E.’s medical file. Dr. Sloka’s research and his consultation letters reveal a contemporaneous and genuine interest in the possible causes of Ms. A.E.’s lesions. Amongst the possibilities considered were ringworm, discoid lupus, granuloma annulare, sarcoidosis, pityriasis rosea, urticaria, and Lyme disease. Dr. Sloka testified that some of these conditions can give rise to neurological symptoms. His evidence here was unchallenged. Instead, Dr. Sloka faces criticism because other conditions considered do not have neurological symptoms. In my view, this criticism is misplaced. Finding the cause of the lesions, through a biopsy, would help inform Dr. Sloka whether Ms. A.E.’s various symptoms were related or independent from each other. In this manner, Dr. Sloka could investigate whether Ms. A.E.’s pain was neurological, rheumatological, or post-infectious. Dr. Sloka’s approach seemed entirely logical. Similarly, the decision to conduct a skin examination at a point very proximate to a sighting of an emerging lesion seems entirely logical. The fact that Dr. Sloka ordered bloodwork to search for evidence of an underlying disease supports the conclusion that Dr. Sloka was genuinely interested in determining the cause of Ms. A.E.’s lesions. In my view, the evidence amply supports the conclusion that Dr. Sloka possessed a valid medical motive for the skin examination he conducted.

[5221] The evidence also amply supports Dr. Sloka’s assertion that he only conducted one skin examination in Ms. A.E.’s second treatment period. While Dr. Sloka had no independent recollection, he relied upon the content of his consultation letters. In those letters, he only documented a single examination, on January 3, 2012. Prior to that, there was no suggestion of current or proximate lesions. Moreover, at the first appointment of this period (July 6, 2011), Dr. Sloka recorded a discussion about the lesions in the impression portion of his letter, which suggested that the topic of lesions came up after the examination. Also, Dr. Sloka’s position was partially supported by Ms. A.E., who testified that she did not believe a skin examination occurred at the first few appointments. I see no basis for rejecting Dr. Sloka’s evidence that he only performed one skin examination during this second treatment period.

[5222] Dr. Sloka’s denial of skin and breast examinations during the Ms. A.E.’s third and fourth treatment periods faced no serious challenge. Consequently, I need not speak more about them.

[5223] That brings me to the final treatment period, the one in which a pituitary MRI revealed the possibility of an adenoma. The Crown argues that Dr. Sloka cannot rule out having conducted multiple pituitary examinations, which Dr. Sloka said would involve skin, breast, and visual fields examinations. Dr. Sloka, on the other hand testified that he only did this once. Dr. Sloka’s position is supported by the fact he only recorded one “general examination”, which he documented in his August 20, 2015, consultation letter. Moreover, it is supported by Ms. A.E.’s evidence that she could only remember one breast examination. If the breast examination occurred in conjunction with the skin and visual fields examinations, as Dr. Sloka claimed, then the occurrence of a single breast examination supports the contention of a single skin examination in this treatment period. Here, I must keep in mind Dr. Sloka’s position that he only conducted the triad of pituitary examinations “periodically.” He never took the position that he conducted them at every follow up appointment. Dr. Sloka also testified that he typically recorded a “general examination” after conducting these examinations. His medical records for Ms. A.D. disclose this pattern: twice Dr. Sloka reported a “general examination” after the pituitary examinations; a third time he charted it differently because he found a cyst on Ms. A.D.’s breast. Dr. Sloka had a rational basis for concluding he only once conducted the triad of pituitary examinations on Ms. A.E..

[5224] The Crown argues that Dr. Sloka attempted to hide conducting skin and breast examinations on Ms. A.E. by charting a “general examination” on August 20, 2015. This submission ignores the fact that Dr. Sloka specifically charted a skin examination in 2012, apparently unafraid of admitting a skin examination to Ms. A.E.’s family doctor. While Dr. Bril was not familiar with the term “general examination,” the medical records in this case reveal neurologists for S.M. and K.S.-B. both utilized this term.

[5225] The Crown also challenge’s Dr. Sloka’s credibility by challenging his rational for twice conducting lymph node examinations on Ms. A.E. Implicitly, the Crown suggests that Dr. Sloka conducted these examinations for an improper purpose. Dr. Sloka testified that he conducted these lymph node examinations because he believed Ms. A.E.’s family doctor had taken a step back from her care. The Crown contends that Dr. Sloka had no basis for that belief. However, Dr. Sloka testified that he believed that Dr. Stobie did not condone Ms. A.E.’s treatment by a Lyme specialist in the USA. Ms. A.E. confirmed that this was the case. Dr. Sloka explained that he was concerned that Ms. A.E.’s Lyme treatment may be responsible for her lymphadenopathy. He stated, “So, I couldn’t easily tell her to go to see her family doctor if this was some sort of result of her treatment in the States which it possibly was… And because she was – I was in her circle of care, I - I didn’t want to not help her. That wouldn’t be a safe approach.” Dr. Sloka’s position was entirely supported by the evidence of Ms. A.E. on the subject.

[5226] The Crown also implies the possibility that Dr. Sloka palpated more than the lymph nodes on Ms. A.E.’s head and neck. In doing so, the Crown contends that Dr. Sloka could not remember whether he palpated her groin or armpits. In furtherance of their submission, the Crown observes that, when conducting a lymph node examination on Ms. I.R., Dr. Sloka palpated Ms. I.R.’s groin and armpits. This submission fails at its inception, though, because Ms. A.E. never alleged that Dr. Sloka palpated her groin or armpits. Moreover, unlike Ms. I.R., Ms. A.E. never presented with a history of swollen lymph nodes in the groin. The implication that Dr. Sloka palpated Ms. A.E.’s groin lacks a proper evidentiary foundation.

[5227] In addition to suggesting that Dr. Sloka unnecessarily kept Ms. A.E. in his orbit, the Crown suggests that Dr. Sloka disclosed a personal interest in Ms. A.E. in other ways. They argue that this personal interest supports the inference that Dr. Sloka was interested in exploring Ms. A.E.’s skin and breasts. That submission ignores the overall arc of Ms. A.E.’s treatment history, in which Ms. A.E. repeatedly restarted treatment periods after a hiatus. And the other evidence relied upon to support this contention is weak. The Crown cites three factors: Dr. Sloka’s invitation to Ms. A.E. to call him “Scott”; his decision to phone Ms. A.E. after hours; and Dr. Sloka’s decision to operate outside of his neurological lane. I will deal with each factor in turn.

[5228] Dr. Sloka’s invitation to Ms. A.E.’ to call him “Scott” was hardly unusual. Dr. Sloka testified that he introduced himself to his patients as “Scott.” He testified it was not unusual for long-term patients to call him “Scott.” And it was not uncommon for him to tell his patients, “Most people call me Scott, you can call me that if you like.” Ms. A.E. also testified that Dr. Sloka was very professional and no less formal than other doctors.

[5229] While Ms. A.E. testified that Dr. Sloka called her at about 7:30 or 8:00 p.m. on the day of an appointment to tell her that he was going to order a test for her, she did not suggest the conversation strayed beyond her medical care. Moreover, the Crown never cross-examined Dr. Sloka on this alleged phone call. I see no basis for concluding that, by advising a patient about a test, Dr. Sloka personalized his relationship with Ms. A.E..

[5230] I come now to the last factor the Crown relies upon in support of its contention that Dr. Sloka personalized his relationship with Ms. A.E. The Crown and Dr. Bril contend that Dr. Sloka repeatedly stepped outside of his neurological lane. Dr. Sloka on the other hand, took a broader view of the proper scope of neurology. Dr. Sloka repeatedly testified that he believed his actions were properly within the field of neurology. He repeatedly asserted that he conducted himself in accordance with his training, experience, and competence. Dr. Bril’s evidence failed to undermine Dr. Sloka’s position that his actions were medically warranted and that he possessed the training and experience necessary to carry out those actions. For the reasons stated in the section devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on Dr. Bril’s categorical claims about the permissible scope of clinical neurology. Given Ms. A.E.’s view of Dr. Sloka’s professionalism, given her apparent chronic use of specialists, and given Dr. Sloka’s compelling explanations for his treatment decisions, I am not prepared to infer that Dr. Sloka made decisions for personal (sexual) rather than professional reasons.

[5231] In a similar vein, the Crown contends that Dr. Sloka failed to make appropriate referrals to other specialists, thereby betraying a personal interest in Ms. A.E. and an interest in her body. Specifically, the Crown suggests that Dr. Sloka failed to make a dermatology referral in 2011 and 2012 when the topic or ringed lesions arose. Dr. Sloka testified that he possessed the training and experience necessary to examine the skin, identify abnormalities and lesions, and take a biopsy. He testified that he would have sent her to a specialist if he had managed to obtain a biopsy. As it happens, he never found any lesions and never obtained a biopsy.

[5232] The Crown also criticizes Dr. Sloka failure refer Ms. A.E. to an infectious disease specialist to investigate Ms. A.E.’s skin lesions. They suggest his failure to do so reveals that his concern about skin lesions was not sincere and that an instead Dr. Sloka was motivated to keep Ms. A.E. in his orbit. However, the medical file reveals that Dr. Sloka sought the advice of an infectious disease specialist from the GRH about Ms. A.E.’s ringed lesions. Dr. Sloka emailed Dr. Ciccotelli and asked for advice about testing available for mycoplasma; he also mentioned that Ms. A.E.’s symptoms “Smells Lyme-ish.” Dr. Ciccotelli told Dr. Sloka that he was not prepared to accept a referral without a positive test result.

[5233] The Crown also points to Dr. Sloka’s failure to refer Ms. A.E. elsewhere for ongoing pituitary examinations once his practice restrictions prevented him from conducting skin examinations. Again, the Crown cites this evidence as proof that Dr. Sloka was not sincerely conducting pituitary screening examinations but rather seeking access to Ms. A.E.’s body for an improper purpose. However, the Crown submission ignores important facts. First, Dr. Sloka testified that he conducted the triad of examinations periodically, not at every follow up appointment. Second, Ms. A.E.’s MRIs had been and continued to be stable. Third, Ms. A.E.’s bloodwork was also stable. On Dr. Sloka’s evidence, he had no reason to repeat the triad of examinations or to refer Ms. A.E. elsewhere for that purpose. At the last appointment before a practice monitor began appearing at Ms. A.E.’s appointments, Ms. A.E. presented with brown patches on her face. Ms. A.E.’s MRI showed that her pituitary remained stable. Dr. Sloka ordered bloodwork to explore the possibility that the brown spots were caused by ACTH (adrenocorticotropic hormone) overproduction. He planned to see her after she attended for bloodwork. Ms. A.E. had been on long term hormone therapy. Hormone therapy, not ACTH overproduction may well have been responsible for the melasma. In the absence of any abnormal ACTH bloodwork, Dr. Sloka noted in his consultation letter that “Melasma is her working diagnosis.” Bloodwork ultimately revealed that Ms. A.E.’s ACTH levels were normal. Accordingly, Dr. Sloka maintained his working diagnosis. A skin examination was unnecessary. Ms. A.E. testified that her melasma faded away. She stated, “… in 2019 there wouldn’t have been a reason to look at me for brown spots or lesions because I never had any.” Also, by the time the practice monitor was in place, Ms. A.E. was also under the care of an endocrinologist (a specialist Dr. Bril confirmed would be qualified to monitor pituitary adenomas). Dr. Sloka had ample reason to refrain from conducting further pituitary (skin, breast, visual fields) examinations. The evidence does not support the inference that Dr. Sloka never believed one was warranted in the first place.

[5234] Given Dr. Sloka’s compelling explanation for his course of treatment of Ms. A.E., given the inability of Dr. Bril’s evidence to undermine Dr. Sloka’s subjectively held medical justifications for his conduct, given Ms. A.E.’s recollection of Dr. Sloka’s meticulous efforts at safeguarding her privacy during the skin examinations, and given Ms. A.E.’s general reliability issues, I come to the conclusion that Dr. Sloka possessed a valid medical motive for the examinations he conducted, that he conducted them in accordance with his standard methods and training, and that they did not constitute sexual activity. The evidence supports the conclusion that Ms. A.E. consented to medical examinations. The Crown has failed to prove that she received anything but the medical examinations to which she consented.

[5235] Dr. Sloka will be acquitted on this count.

iii. E.J. (Count 42)

A Summary of Ms. E.J.’s Complaint and Dr. Sloka’s Response to It

[5236] Ms. E.J. had a pituitary adenoma. She claimed to have attended a single appointment at Dr. Sloka’s office; to investigate headaches that her endocrinologist thought might be related to her adenoma. She alleged that Dr. Sloka directed her to remove all her clothing and stand completely naked while he performed a skin examination. She alleged that Dr. Sloka insisted she remove her underwear despite her protestation that she was on her period. She also alleged that the examination was perfunctory, performed at a distance, and did not in fact appear to be a full examination of her skin. In other words, she implied that Dr. Sloka did not possess a genuine interest in finding any skin manifestations of her pituitary adenoma. Ms. E.J. alleged that she was upset and traumatized by the appointment. On her account, she never returned to see Dr. Sloka.

[5237] Ms. E.J. also testified that she complained in detail about the skin examination to her mother soon after the appointment. Her mother testified and supported this claim.

[5238] Ms. E.J. also alleged that she complained about the skin examination to her endocrinologist and subsequently to a nurse practitioner who worked in her endocrinologist’s office. Ms. E.J.’s mother testified and provided some support for these claims. However, records reveal that Ms. E.J. spoke to both practitioners within less than two weeks of her first appointment with Dr. Sloka, but neither documented any complaint.

[5239] Dr. Sloka acknowledged that he may have performed a skin examination to look for skin manifestations of Ms. E.J.’s pituitary adenoma. However, he denied departing from his standard methodology, which involves sequential examinations of portions of the patient’s exposed skin while the rest of the patient remains covered by her gown. Dr. Sloka also maintained, as documented in his consultation letters, that he ordered follow up tests and then saw Ms. E.J. at a follow up in the following month.

The Circumstances of Ms. E.J.’s Referral and Treatment History

[5240] Ms. E.J.’s Medical Records brief did not come from Dr. Sloka’s medical file. Instead, its contents came from Ms. E.J. and from the records of her other practitioners, pursuant to a section 278 application, which was granted with the consent of all parties. Apparently, Dr. Sloka’s file could not be located. While the brief may not contain every record relevant to Ms. E.J.’s care, it provides evidence of the referral, two consultations by Dr. Sloka, a phone call to Dr. Purdon’s office two days after the Ms. E.J.’s fist appointment with Dr. Sloka, a visit by Ms. E.J. with her endocrinologist five days after her initial visit with Dr. Sloka, and a telephone discussion with Dr. Purdon’s nurse practitioner thirteen days after Ms. E.J.’s first appointment with Dr. Sloka. From these records, some important information about Ms. E.J.’s referral and treatment history can be gleaned.

[5241] Before ever seeing Dr. Sloka, Ms. E.J. was under the care of an endocrinologist for a pituitary adenoma, specifically, a macroprolactinoma. Her endocrinologist was Dr. K.C. Purdon. Ms. E.J. was also under the care of her family doctor, Dr. Brown.

[5242] Ms. E.J. was 26 years old when Dr. Purdon referred her to Dr. Sloka. On March 3, 2014, Dr. Purdon addressed a consultation letter to Dr. Brown and copied Dr. Sloka. In that letter, Dr. Purdon advised that Ms. E.J.’s prolactin levels (elevated by her prolactinoma) had dramatically decreased from her baseline. Dr. Purdon also advised that Ms. E.J. was taking birth control and that her menses were regular. Additionally, Dr. Purdon described Ms. E.J.’s chronic headaches, both cervicogenic (arising in the neck) and migraine. Dr. Purdon thought it possible – but difficult to assess – that Ms. E.J.’s headaches might have been partially the product of pituitary hemorrhage, given the suggestion in her first MRI of tumor associated necrosis (in the pituitary gland). Dr. Purdon ordered an updated MRI and stated, “I will also ask for a neurologic consultation as to whether there might be any strategies that might help with her recurrent headache pattern.”

[5243] Dr. Sloka initially saw Ms. E.J. on June 11, 2014. In his consultation letter from that date, he documented a detailed patient history, a neurological examination, a cardiac examination, the measurement of her blood pressure and pulse, his impression, an order for bloodwork, an order for EMG studies, an order for a pelvic ultrasound, and the intention to see Ms. E.J. in follow-up after the completion of her tests.

[5244] Ms. E.J. phoned Dr. Purdon’s office two days later. Dr. Purdon accidentally answered the phone. Ms. E.J. told Dr. Purdon that she wished to speak to the nurse practitioner, Ms. Laurie Burkhardt. Dr. Purdon relayed the message. Ms. E.J. saw Dr. Purdon on June 16, 2014. Again, Dr. Purdon did not document any complaint by Ms. E.J. in either his consultation letter or on the phone message he relayed to Ms. Burkhardt. On June 24, 2014, Ms. Burkardt phoned Ms. E.J. and had a phone “chat” with her. Other than the existence of the chat, Mr. Burkhardt did not provide any details in Ms. E.J.’s chart about the details of their chat. Ms. Burkhardt did not document any complaint by Ms. E.J.

[5245] On July 25, 2014, Dr. Sloka saw Ms. E.J. in follow up. He obtained an update on her history and provided his medical opinion. He planned to see her in follow-up in nine months, “just to touch base.” She never attended for a third appointment.

The Evidence of Ms. E.J.

[5246] Ms. E.J. was 34 years old when she testified.

[5247] According to Ms. E.J., she attended a single appointment with Dr. Sloka. That appointment occurred on June 11, 2014.

[5248] Ms. E.J. testified that she was anxious on the date of the appointment. She had been consistently unwell. She wanted to feel normal again.

[5249] When she met Dr. Sloka, he creeped her out. His attire appeared dated, and he had a really bad mullet. He gave her the “heeby jeebies.” She had a bad gut instinct about him.

[5250] The appointment began in Dr. Sloka’s office, where Ms. E.J. recounted her symptoms and medical history. Dr. Sloka also reviewed her MRI with her.

[5251] Defence counsel took Ms. E.J. to Dr. Sloka’s consultation letter to review the accuracy of Dr. Sloka’s account of the history provided by her, and the resulting discussions between them. Ms. E.J. largely agreed with what Dr. Sloka reported, with some notable exceptions. For instance, she did not recall discussing her prolactin levels and nipple discharge with Dr. Sloka. Additionally, Ms. E.J. did not recall discussing her anxiety difficulties with Dr. Sloka. Nevertheless, she agreed that she did experience anxiety at the time and resulting bowel incontinence, just as Dr. Sloka had reported in his consultation letter. While agreeing to the existence of bowel issues at the time, she disagreed with Dr. Sloka’s claim that she told him these issues had affected her capacity to interact with others. She also disagreed with Dr. Sloka’s report that they discussed the necessity of anxiety medication, arriving at the conclusion that medication was not necessary.

[5252] Ms. E.J. noted that Dr. Sloka was very interested in her menstrual cycle and her birth control medication. Ms. E.J. testified that she could not understand why Dr. Sloka was so interested in these things. He was not her family doctor. She said that she found it odd. Ms. E.J. understood Dr. Sloka to be conveying his concern that her birth control medication may be doing her harm. She believed that he drew a connection between birth control and skin pigmentation. However, in cross-examination, she accepted the possibility that Dr. Sloka had expressed his concern about the stroke risk associated with her birth control medication.

[5253] While she agreed that they discussed birth control, Ms. E.J. firmly denied discussing the prospect of an IUD with Dr. Sloka, contrary to what Dr. Sloka reported in his consultation letter. She refused to accept the possibility that she simply forgot discussing the prospect of an IUD, even though Dr. Purdon, in his follow up consultation letter (written five days later) discussed the prospect of an IUD, which he concluded “would not be realistic.” She testified that Dr. Sloka’s reference to an IUD discussion was “bogus” and that the reason for Dr. Sloka’s inclusion of IUD discussions in his letter was a complete mystery to her.

[5254] Ms. E.J. recalled that Dr. Sloka asked her about birth marks and skin pigmentations during their discussion in the office. Dr. Sloka’s letter makes little mention of this other than a notation that Ms. E.J. asked him to look at a birth mark on her neck. For her part, Ms. E.J. denied asking Dr. Sloka to look at a mole on her neck. Rather, she claimed that Dr. Sloka had inquired about the mole on her neck, not her. On her account, she never wanted Dr. Sloka to look at her mole. Ms. E.J. also testified that when asked about birth marks and skin pigmentations, she told him about an area of discolouration on her stomach which had been present since birth.

[5255] Contrary to what Dr. Sloka wrote in his consultation letter, Ms. E.J. denied that Dr. Sloka discussed ordering a pelvic ultrasound to investigate her cycle irregularity.

[5256] Ms. E.J. also denied that Dr. Sloka discussed the possibility of treating her catamenial migraines with naproxen.

[5257] Defence counsel asked Ms. E.J. to explain why she failed to mention, during her trial preparation meetings, the existence of what she considered to be categorically false claims in Dr. Sloka’s reporting letters. Ms. E.J. testified that she did not think it was her place to do so.

[5258] According to Ms. E.J., at the end of the discussion in Dr. Sloka’s office, Dr. Sloka told Ms. E.J. that he wanted to conduct an examination in the neighbouring room. She could not recall any more specifics, other than Dr. Sloka mentioning that he wanted to test her nerves or reflexes, perhaps the nerves in her hands.

[5259] Despite her incomplete memory, she denied the defence suggestion that Dr. Sloka told her that he wanted to conduct some basic neurological tests. Despite the discussion of her mole when in his office, she also denied that Dr. Sloka proposed a skin examination while they were both inside his office. On her account, Dr. Sloka did not raise the prospect of a skin examination until after she went into the examination room. However, she was prepared to agree that it was possible that Dr. Sloka told her that he wanted to listen to her heart.

[5260] Ms. E.J. also agreed in cross-examination that it was more than likely that, before she departed the office for the examination room, Dr. Sloka mentioned that he wanted her to get gowned for an examination.

[5261] According to Ms. E.J., Dr. Sloka told her to remove all her clothing and put on the gown. She denied that Dr. Sloka told her to wear her gown opened at the back.

[5262] Once Dr. Sloka left her alone in the examination room, she removed all her clothing except her underwear. Then she put on a gown, with the opening at the front. She wore the gown in this fashion on her own accord. On her evidence, Dr. Sloka provided no instruction on how to wear the gown. She remembered wearing the gown in this fashion because the gown had ties on the front left side of the body and not the neck. She described it as a criss-cross gown. She purportedly believed the gown was designed to be worn in the way she wore it. Her description of the gown did not accord with the design of the gowns supplied to Dr. Sloka’s office and depicted in Exhibit 2. Defence counsel showed Ms. E.J. photographs from Exhibit 2 of the gowns supplied in Dr. Sloka’s office. Ms. E.J. agreed that it was possible that she wore a gown like the ones depicted in Exhibit 2, but maintained that she wore it “backwards”, with the opening at the front.

[5263] When Dr. Sloka returned, he commenced the examination. In-chief, Ms. E.J. testified that the examination began with Dr. Sloka checking her reflexes with a reflex hammer, while she sat on the edge of the bed. She recalled him checking her knees with the reflex hammer. She then recalled him testing the strength of her feet by asking her to flex her feet against his opposing hands.

[5264] According to Ms. E.J.’s in-chief evidence, Dr. Sloka next asked her to stand up and remove her gown and underwear. She did not want to remove her underwear and told him that she was having her period. However, according to Ms. E.J., Dr. Sloka was insistent. Dr. Sloka indicated that he needed to see all her skin. So, according to Ms. E.J., she did as she was told. She testified to feeling awful, disgusting, and vulnerable. According to Ms. E.J., as she stood there with her arms out facing the window, Dr. Sloka stood a few feet away, leaning against the shelving beneath the window. He looked at her, with his hands in his pockets or resting on his hips. He touched the mole on the left side of her neck and told her that she needed to get a dermatologist to look at the mole. She guessed that Dr. Sloka stood behind her when touching her mole. He mentioned referring her to a dermatologist he knew, but she already had one. She was unsure of her response to him, but may have just said, “Thank you.” According to Ms. E.J., after Dr. Sloka checked the mole, he said, “That was it. We were done.” The examination ended abruptly.

[5265] In cross-examination, defence counsel suggested that full neurological and cardiac examinations took place. Defence counsel to Ms. E.J. through various steps of Dr. Sloka’s standard neurological examination. She firmly denied that Dr. Sloka performed any fundoscopy. She firmly denied any examination of her cranial nerves involving light touching on various points of her face. She also denied an examination of her peripheral vision. Similarly, she denied any testing for sensation on her arms and legs. She also did not remember any strength tests or reflex tests on her arms. However, Ms. E.J. did remember Dr. Sloka testing her knee reflexes and performing a strength test on her feet. She also agreed that it was possible he did strength tests at her knees. Additionally, she agreed it was possible that Dr. Sloka ran a metal object along the bottom of her feet. According to her recollection, “I remember my legs being checked then my skin.”

[5266] When asked in cross-examination about the possibility of a cardiac examination, Ms. E.J. agreed that it was possible Dr. Sloka used a stethoscope on various locations of her back and chest. She did not remember sitting on the table with her legs flat, though. She didn’t think her body was ever fully on the table. She was very certain that she just sat on the side of the bed. Nevertheless, she conceded the possibility of a cardiac examination.

[5267] The defence also made various suggestions to Ms. E.J. during her cross-examination about the conduct of the skin exam. In response to those suggestions, Ms. E.J. insisted that she was standing in middle of room fully naked during the skin examination. She insisted that Dr. Sloka told her to remove her underwear. She rejected the suggestion that Dr. Sloka only asked her to sequentially expose discrete parts of her body, so that the skin in those parts could be examined while the rest of the body remained covered. She also insisted that Dr. Sloka stood back and stared and did not closely scan her. She denied that Dr. Sloka told her that if she was not comfortable removing underwear, she could leave it on.

[5268] In summary, Ms. E.J. seemed to recall some components of a neurological exam, rejected the possibility that other components occurred, and allowed for the possibility that others occurred. Also, while she could not recall any details of a cardiac exam and thought it unlikely that one occurred, she was prepared to accept in cross-examination that Dr. Sloka used a stethoscope when examining her. Lastly, she insisted that she stood completely naked for her skin examination.

[5269] As noted, Dr. Sloka gave Ms. E.J. the “heebie jeebies” and creeped her out. She had never been examined by a male doctor alone. Her anxiety level grew after she got into a gown. She testified that she dealt with her anxiety by “zoning out” during her examination. This evidence provided a plausible explanation for Ms. E.J.’s poor memory of the details of her examination.

[5270] According to Ms. E.J., after the examination was over, Dr. Sloka departed the examination room and went into his office.

[5271] Ms. E.J. insisted that she immediately recognized the inappropriateness of the skin examination that had just occurred. According to Ms. E.J., once Dr. Sloka left the examination room, she immediately got dressed and left the office without speaking to Dr. Sloka again. She denied following Dr. Sloka into his office for a post-examination discussion of his findings, impression, and recommendations. On her evidence, Dr. Sloka never advised her of his opinion that she suffered from catamenial migraines. He never suggested using Naproxin to treat her migraines. He never discussed his concerns about the stroke risk associated with her birth control medication. He never discussed the need to refrain from getting pregnant while taking medication to shrink her tumor. He never suggested the possibility of an IUD instead of birth control medication. He never discussed the irregularity of her cycles. He never discussed ordering a hypercoaguable blood screen, due to her family stroke history and its relevance to her birth control decisions. He never discussed ordering EMG studies to investigate the reported nocturnal tingling in her hands. He never discussed a dermatology referral to get her neck mole removed. And he never discussed a pelvic ultrasound to investigate her cycle irregularity and the potential of an IUD placement. On Ms. E.J.’s evidence, none of this could have transpired, because she left directly from the examination room without another word with Dr. Sloka. Implicitly, everything in the Impression portion of Dr. Sloka’s consultation letter was a fabrication. Significantly, Ms. E.J.’s denial is partially contradicted by the evidence of her mother, who (as will be discussed in a moment) testified that Ms. E.J. told her that she attended for nerve studies at the Kaufman building in the aftermath of her appointment with Dr. Sloka.

[5272] Ms. E.J.’s purported reaction to the skin examination left no room for the possibility of another visit to Dr. Sloka’s office. Ms. E.J. described her lone visit as traumatic, creating an impact that will never leave her. She denied attending for any subsequent visit to Dr. Sloka’s office, thereby implying, if not directly alleging, that Dr. Sloka completely fabricated his stated plans to see her in follow up and completely fabricated the entirety of his second consultation letter. Dr. Sloka’s second consultation letter documented a visit on July 25, 2014. Dr. Sloka addressed this consultation letter to Ms. E.J.’s family doctor, Dr. Brown. In that reporting letter, Dr. Sloka chronicles the discussions held with Ms. E.J. on that date about her headaches, birth control options, menstrual cycles, and stroke risks. The reporting letter also makes mention once again of Ms. E.J.’s mole. She had yet to see a dermatologist and might instead see Dr. Brown about the mole.

[5273] Ms. E.J. testified that, after departing Dr. Sloka’s office at the conclusion of her lone visit, she phoned her mother immediately from her car. On her evidence, she told her mother everything: that she had to get undressed and that he looked at her skin, “the whole experience.” She also claimed to have spoken to her mother about the possibility of making a report or complaint about Dr. Sloka. According to Ms. E.J., she didn’t know if she could handle making a report. Her mother did not share an opinion but told her that she would speak to a friend whose husband was a police officer.

[5274] Ms. E.J. then allegedly spoke to her friend Kayla at work the next day. Kayla informed her that she had another friend who also reported a negative experience with Dr. Sloka. Kayla did not relay the details.

[5275] At some point, Ms. E.J. also purportedly spoke to Dr. Purdon about Dr. Sloka. According to her, she told Dr. Purdon about having to get undressed and submit to a skin examination. Dr. Purdon reviewed Dr. Sloka’s consultation letter with her. She adamantly expressed to Dr. Purdon her disagreement with Dr. Sloka’s claim that she asked him to look at her mole.

[5276] According to a consultation letter written by Dr. Purdon, he saw her on June 16, 2014. Dr. Purdon’s letter suggests he spoke to Ms. E.J. about her visit with Dr. Sloka. However, that letter does not mention Ms. E.J. making any complaint against Dr. Sloka.

[5277] Ms. E.J. testified that she and her mother attended a follow up visit with her nurse-practitioner at her family doctor’s office. At that visit, she purportedly complained to the nurse practitioner that Dr. Sloka asked her to undress, and that Dr. Sloka looked at every part of her skin.

[5278] A note from the file of her family doctor indicates that Ms. E.J. spoke to the nurse practitioner on June 24, 2014. The note is, however, silent on whether Ms. E.J. made any complaint about Dr. Sloka on that date. There is no record of Ms. E.J. discussing Dr. Sloka during an appointment with Laurie Burkhardt.

[5279] Ms. E.J. did not come forward to make any allegations until after watching CTV News coverage of the investigation into Dr. Sloka. She recalled the coverage indicating that Dr. Sloka’s licence was revoked. She believed she was still trying to get pregnant at the time – at another point in her evidence, she believed she was pregnant. Her child was born on September 12, 2018. Consequently, she concluded that she saw the news footage at some point in 2017, long before she contacted the police.

[5280] After first reading about Dr. Sloka, Ms. E.J. spoke to her mother about her experience with Dr. Sloka. They spoke on multiple occasions. Her mother went on the CPSO website to obtain more information about the allegations made by other patients. According to Ms. E.J., her mother told her that some patients had alleged that Dr. Sloka conducted skin examinations on completely naked women. Long before speaking to the police, Ms. E.J. had been exposed to allegations made by other patients about being required to submit to naked skin examinations.

[5281] Ms. E.J. also testified that she knew K.M. Ms. K.M. told Ms. E.J. that she knew another female patient who claimed to have been sexually assaulted by Dr. Sloka. Ms. E.J. did not know the name of Ms. K.M.’s friend, but Ms. K.L.G. also testified that she knew K.M. Ms. K.M. told Ms. E.J. that her other friend had lodged a complaint with the police.

[5282] Ms. E.J. contacted the police on September 26, 2019, two days after extensive media reporting of Dr. Sloka’s arrest on 34 counts of sexual assault. When asked about the timing of her contact with police, Ms. E.J. stated, “I don’t know why I did the day I did. No significance of that day. Maybe I just had the courage…. I think it was just courage that I called that day.” In-cross-examination, she again stated that there was no specific reason for the timing of her decision to contact police. She denied the suggestion that she contacted the police because she had just read about Dr. Sloka being arrested for sexual assault. On her account, it was mere coincidence that her police complaint followed almost immediately after news of Dr. Sloka’s arrest.

[5283] Indeed, Ms. E.J. testified that she was unsure whether she knew that Dr. Sloka had been charged when she made her call to police, though she believed she knew police were involved in Dr. Sloka’s matter at the time of her call. She also testified that she did not know how she knew which number to call. Nevertheless, she maintained that it was mere coincidence that she came forward two days after news of Dr. Sloka’s arrest.

[5284] Ms. E.J. also testified that she as aware of the CPSO investigation into Dr. Sloka before contacting the police, but she denied ever visiting the CPSO website and reading any of the allegations against Dr. Sloka summarized on that website. Her evidence here was contradicted by her statement to the police, in which she stated that she read a little bit about other patients and their skin examinations on the CPSO website. When confronted with the inconsistency, Ms. E.J. testified that her mother, not her, visited the CPSO website and relayed this information to her. In doing so, Ms. E.J. contradicted the subsequent evidence of her mother, who denied reading patient allegations on the CPSO website.

The Evidence of R.B.

[5285] Ms. R.B. is Ms. E.J.’s mother.

[5286] Ms. R.B. testified that Ms. E.J. phoned her immediately after the appointment.

[5287] Ms. R.B. provided an intricate recounting of their conversation. That recounting included a detailed recitation of Ms. E.J.’s testimonial description of the appointment. The degree of similarity between Ms. R.B.’s recitation and Ms. E.J.’s testimonial description was astonishing, given the passage of seven years between the alleged conversation and Ms. R.B.’s testimony.

[5288] Ms. R.B. testified that E.J. was very upset. Ms. E.J. told her that she felt Dr. Sloka had crossed a line; she was very uncomfortable about what occurred. Ms. E.J. felt Dr. Sloka was creepy from the very outset of the appointment. She was mostly upset because she had been naked in front of him. Ms. R.B. purportedly asked Ms. E.J. the reason for being naked. Ms. E.J. replied that she said she had been in a gown and underwear, before being asked to remove those. Ms. R.B. purportedly asked the reason for the removal of the gown. Ms. E.J. replied that Dr. Sloka said he was looking for moles, markings, discolorations. Ms. E.J. purportedly added that she told Dr. Sloka that she was uncomfortable removing underwear because she was having her period and was wearing a tampon, which made her uncomfortable. Ms. E.J. also added that Dr. Sloka insisted she remove her underwear. Ms. E.J. went on to say that Dr. Sloka asked her to stand in specific spot in front of a window. She reported that Dr. Sloka stood across from her, leaning and staring at her for quite some time. She added that Dr. Sloka told her that she had a large mole on her neck. She said she told him that she already dealt with the mole with her dermatologist. Ms. R.B. purportedly asked her if a chaperone was present. Ms. E.J. informed her that no chaperone was present. Ms. R.B. asked if anyone else was present elsewhere in the office. Ms. E.J. told her that a receptionist was on duty. Ms. R.B. purportedly told Ms. E.J. that she did not believe Dr. Sloka had followed proper protocol. She believed a chaperone ought to have been present. She told Ms. E.J. that the situation was not right and should not have occurred. She also purportedly told Ms. E.J. that she needed to make a complaint. Ms. E.J. purportedly replied that she needed time to process everything, to which Ms. R.B. replied that she should at least inform Dr. Purdon (the endocrinologist). Ms. E.J. told her that she was never going back to Dr. Sloka. She was upset because she had left her MRI behind and was hoping to get it back; however, she had no plans of going to retrieve it herself.

[5289] While Ms. R.B. believed that Ms. E.J. never returned to see Dr. Sloka, she testified that Ms. E.J. told her about reattending the Kaufman building to perform nerve testing after seeing Dr. Sloka. She did not know how Ms. E.J. obtained the results of that nerve testing in the absence of any follow up visit with Dr. Sloka. She did not know whether Ms. E.J. saw a different neurologist, for example.

[5290] Ms. R.B. had a friend whose husband had been a police officer. She did not name that friend. She purportedly spoke to that friend in 2014 about what Ms. E.J. had reported. The friend told her to go on the CPSO website and obtain forms to make a complaint. Ms. R.B. relayed his information to Ms. E.J.

[5291] Ms. R.B. testified that she accompanied Ms. E.J. to an appointment with a nurse practitioner from Dr. Purdon’s office, Laurie Burkhardt. She believed the appointment occurred shortly after Ms. E.J.’s appointment with Dr. Sloka. According to Ms. R.B., Ms. E.J. discussed Dr. Sloka’s conduct, including the fact that Dr. Sloka asked Ms. E.J. to remove her clothing and that she stood without any clothing. Ms. E.J. asked Ms. Burkhardt if it was normal for a doctor to request that a patient stand naked like that. Ms. E.J. purportedly told Ms. Burkhardt that Dr. Sloka made her feel uncomfortable. Ms. Burkhardt purportedly said that Ms. E.J. did not have to do anything she was uncomfortable doing. According to Ms. R.B., Ms. Burkhardt never said that the examination described was totally inappropriate. She also never said that she was under a duty to report the examination Ms. E.J. described.

[5292] Ms. R.B. encouraged Ms. E.J. to speak to Dr. Purdon about Dr. Sloka. However, Ms. R.B. was never present for any appointments with Dr. Purdon or Dr. Brown in which Ms. E.J. spoke about Dr. Sloka. She was only present for the appointment with Ms. Burkhardt.

[5293] Again, the Crown called no evidence and tendered no documentation that could confirm that Ms. E.J. made any complaint about Dr. Sloka to Laurie Burkhardt.

[5294] Ms. R.B. became aware of other allegations against Dr. Sloka through the news media. By the time she came across news coverage of Dr. Sloka, she had not talked with Ms. E.J. about Dr. Sloka for years.

[5295] Ms. R.B. believed she did not notice the first waive of news coverage in 2018. She believed that she first noticed news coverage in April of 2019, when Dr. Sloka lost his licence. However, she did recall learning that Dr. Sloka was under investigation and practice restrictions before the loss of his licence, suggesting earlier exposure. She was not sure when, between July of 2018 (the initial news coverage) and April of 2019 that she saw stories reporting that Dr. Sloka was under practice restrictions.

[5296] Ms. R.B. testified that her first thought upon seeing news coverage was, “She’s not the only one.” She believed that she spoke to Ms. E.J. about Dr. Sloka after seeing the first batch of media regarding the practice restrictions. She spoke to Ms. E.J. about coming forward, because she felt what Dr. Sloka did was wrong.

[5297] Through media coverage, Ms. R.B. learned some of the details of allegations made by other female patients. Amongst those details were the following: improper draping, Dr. Sloka asking patients to completely undress, and patients being completely undressed for skin examinations.

[5298] Ms. R.B.’s news sources included CTV News.

[5299] Ms. R.B. believed that Ms. E.J. noticed the news coverage before she did and told Ms. R.B. about it.

[5300] Ms. R.B. testified that she and Ms. E.J. discussed with each other the content of the allegations reported in the news. Ms. E.J. also revisited her account of her own allegations, almost like she was reliving it. The two of them also discussed the content of the phone call between them on the day of the appointment. They also discussed their opinion that the allegations reported in the news were similar to the circumstances of Ms. E.J.’s own experience.

[5301] Ms. R.B. and Ms. E.J. are very close. Ms. R.B. was very supportive of Ms. E.J. and her involvement in the investigation of Dr. Sloka. She encouraged E.J. to come forward, just like she had done in 2014.

[5302] Ms. R.B. testified that, after seeing news about Dr. Sloka, she went onto CPSO website looking for policies and protocols, to determine whether what transpired in Ms. E.J.’s appointment was proper. She claimed that she did not see any information on the CPSO website about the investigation of Dr. Sloka – at least she did not think so. She denied deliberately seeking more information about the allegations against Dr. Sloka.

[5303] Ms. R.B. provided her statement to the police on October 16, 2019. Ms. E.J. had provided her statement three weeks earlier. Before her interview with police, Ms. R.B. recalled having a conversation with E.J., advising her that there were numerous complainants and charges laid. She also acknowledged that she and Ms. E.J. discussed during this time-period the allegations made by other patients. They also discussed the phone conversation they had on the day of Ms. E.J.’s appointment.

The Evidence of Dr. Bril

[5304] Regarding Ms. E.J.’s first appointment, Dr. Bril agreed that a neurological examination was appropriate and reasonable in Ms. E.J.’s circumstances.

[5305] In her evidence in-chief, she perfunctorily testified that it was not medically reasonable for Dr. Sloka to listen to Ms. E.J.’s heart. She provided an opposite opinion in cross-examination. In cross-examination, Dr. Bril agreed that Ms. E.J. presented with stroke-like symptoms: headaches, numbness in her hands, and changes in her speech. She agreed that these stroke-like symptoms justified a cardiac examination to examine for murmurs which could, but not necessarily, signify valve disfunction that can give rise to a risk of stroke. Dr. Bril was not sure whether cabergoline (a drug used by Ms. E.J.) could give rise to fibrosis of the heart valves that can be heard upon auscultation of the heart. That was outside of her expertise.

[5306] Dr. Bril’s evidence on the appropriateness of a skin examination for Ms. E.J. was somewhat nuanced.

[5307] Dr. Sloka had documented in his consultation letter that Ms. E.J. asked him to look at a mole on her left neck. Dr. Bril testified that it would be reasonable to look at the mole and document what he saw. However, Dr. Bril took issue with any investigation into the possibility of neurocutaneous disease. Consequently, she took issue with the conduct of a skin examination in furtherance of that investigation.

[5308] In her evidence in-chief, she testified that neurocutaneous disease was not on the differential diagnosis for Ms. E.J. She also stated that it was not neurologically reasonable to check Ms. E.J. for café au lait spots or neurofibromas. Additionally, Dr. Bril testified that it would not have been reasonable for Dr. Sloka to examine the rest of Ms. E.J.’s body after Ms. E.J. pointed out her neck mole to him. However, she went further. She testified that, if a patient indicated she had one birth mark on her stomach, if that mark were a café au lait spot, and if the patient was unsure if there were more, then a skin examination would be neurologically reasonable; neurocutaneous disease could be considered. She stressed, though, that the inquiry begins with questions. If the patient was unaware of whether there were any additional skin abnormalities, it could be reasonable to do a skin examination. Nevertheless, Dr. Bril testified that neurocutaneous disease was not a reasonable explanation for Ms. E.J.’s headaches. At best, it could be an incidental issue that arose during the appointment in response to information revealed about Ms. E.J.’s skin.

[5309] In cross-examination, Dr. Bril testified that neurofibromatosis could lead to tumors in the body. However, she testified that, while a pituitary adenoma is a tumor, it is not typical for sufferers of neurofibromatosis. She testified that pituitary adenomas and neurofibromas have different cells of origin. They are not associated with NF1. She added that any understanding to the contrary would be wrong. While she was not cross-examined on this point, her opinion appeared to run contrary to information contained in a text she considered authoritative, Ferner’s Neurofibromatosis in Clinical Practice, which noted an association between MEN1, café au lait spots, and pituitary adenomas. The relevant excerpt from this text was entered during Dr. Sloka’s evidence. The Crown did not call Dr. Bril in re-examination to respond.

[5310] Dr. Bril also discounted the likelihood that Ms. E.J. would not be aware of whether she had skin abnormalities beyond the pigmentation on her stomach. Dr. Bril testified that “young women know about their bodies.” She stated that Ms. E.J. knew about the pigmentation on her abdomen and “would have known if she had multiple ones.” Dr. Bril believed that all women know their skin and know about it from an early age. She testified, “I’ve grown up in this society.” She also stated, “women wear bathing suits. They wear two-piece…. they know their skin.”

[5311] Nevertheless, Dr. Bril conceded in cross-examination that, in what she considered to be the unlikely hypothetical of Ms. E.J. disclosing a possible café au lait spot on her stomach and revealing an uncertainty about the possibility of more, it might be reasonable to do a skin examination. However, in this circumstance, the investigation would be incidental to the purpose of the referral and would not, in Dr. Bril’s view, provide an explanation of Ms. E.J.’s symptoms. She testified that the neurological reasonableness of a skin examination would depend upon what the patient says when the neurologist takes the patient’s history.

[5312] Dr. Bril also opined that it would be inappropriate for Dr. Sloka to ask Ms. E.J. to stand naked for a skin examination. A skin examination requires proper draping and piecemeal exposure of the skin, to preserve patient privacy.

The Evidence of Dr. Sloka

[5313] Dr. Sloka had effectively no memory of his treatment of Ms. E.J. He relied upon his consultation letters for the truth of their contents. He also relied upon the other material in Ms. E.J.’s Medical Records Brief for context.

[5314] Dr. Purdon had referred Ms. E.J. to Dr. Sloka. Ms. E.J. suffered from migraines with aura that were associated with her menstrual cycle. She also suffered from a macroprolactinoma. A prolactinoma is a tumor (adenoma) on the pituitary gland that affects the production of prolactin. A macroprolactinoma is a pituitary adenoma affecting prolactin production that is at least one centimetre in size.

[5315] On Dr. Sloka’s evidence, he met with Ms. E.J. twice.

[5316] The first appointment occurred on June 11, 2014. At that appointment, he recommended and conducted neurological and cardiac examinations. He also took Ms. E.J.’s vital signs. Dr. Sloka testified that he may also have conducted a skin examination, but he was uncertain.

[5317] The neurological examination was not controversial, so Dr. Sloka was not asked to provide his justification for that examination.

[5318] Regarding the cardiac examination, Dr. Sloka testified that, in accordance with his training, his standard approach to headache patients included a cardiac examination. He added that Ms. E.J.’s headaches had stroke like features: her symptoms could be one-sided, involved numbness in her hand, and sometimes involved changes in her speech. He also observed that Ms. E.J. reported bowel issues, which could be the product of a problem with her autonomic nervous system. The heart is also regulated by the autonomic nervous system. Listening to the heart would help inform him about whether autonomic nervous system issues had affected the functioning of her heart. Also, to investigate the neurological functioning of the heart, he would investigate the degree of variability in heart rate as she moved from laying down to a sitting position. This is why he checked Ms. E.J.’s vital signs. Dr. Sloka also noted that Ms. E.J. was taking cabergoline to shrink her prolactinoma. Cabergoline is associated with fibrosis in the cardiac valves. He could detect fibrosis of the cardiac valves during a cardiac exam.

[5319] Dr. Sloka was also asked to explain his justification for any skin examination he performed. Dr. Sloka testified that when taking a patient’s history, he conducts a general “review of systems.” When conducting a review of systems, he would ask screening questions about birthmarks, brown patches, or white patches on the skin. Ms. E.J. had testified that, in addition to her mole, she had an area of discolouration on her abdomen. If Ms. E.J. had mentioned this area of discolouration, it may have played a role in recommending a skin examination. He testified that a dark patch could be associated with neurofibromatosis or with MEN1. MEN1 is a syndrome that can be associated with pituitary adenomas and café au lait spots. Dr. Sloka’s understanding of this association was confirmed by Neurofibromatosis in Clinical Practice, an authoritative text, according to the testimony of Dr. Bril. An excerpt of the text, which identified the association between MEN1 and pituitary adenomas, was entered as Exhibit 223 during Dr. Sloka’s evidence. Dr. Sloka testified that he remembered a someone in Newfoundland with MEN1 who had an associated pituitary, parathyroid, or pancreatic issue. He was alive to the issue before ever having Ms. E.J. as a patient.

[5320] Dr. Sloka testified that, if he proposed a skin examination, he would have done so while still consulting with Ms. E.J. in his office. A skin examination would entail the patient removing all her clothing and underwear before putting on a gown. Dr. Sloka testified that if Ms. E.J. had informed him that she was on her period and did not want to remove her underwear, he would have given her the option of keeping her underwear on.

[5321] Dr. Sloka testified that his office only had standard issue hospital gowns. He did not have any side-tying gowns like the one described by Ms. E.J. In his standard instruction, he told patients to wear their gowns open to the back.

[5322] Dr. Sloka maintained that he performed his neurological and cardiac examinations in accordance with his standard practices. Dr. Sloka’s complete standard neurological examination involved more than Ms. E.J. could remember or would admit. Dr. Sloka’s consultation letter documented a complete neurological examination.

[5323] Dr. Sloka also testified that, if he performed one, he would have performed a skin examination in accordance with his standard practices. He would not ask a patient to completely remove her robe. According to the standard practice learned in his training, he took care to sequentially reveal discrete portions of a patient’s skin. Additionally, he would not circle the patient during the examination. Instead, he stood with his back to the window and asked the patient to rotate, so that the portion of the skin being visualized received optimal exposure to the light from the window.

[5324] Dr. Sloka’s consultation letter referred to a positive skin finding: the mole on Ms. E.J.’s neck. According to his consultation letter, Ms. E.J. asked him to look at the mole on her neck. Dr. Sloka did not and could not say whether the mole was observed during a complete skin examination.

[5325] Dr. Sloka’s consultation letter made no mention of the discolouration on Ms. E.J.’s abdomen. Dr. Sloka testified that if he considered the discolouration to be non-concerning and irrelevant to a diagnosis, he would consider it a negative finding and not report it.

[5326] The impression portion of Dr. Sloka’s consultation letter unmistakenly discloses a post-examination discussion with Ms. E.J. about his impression and recommendations.

[5327] Dr. Sloka saw Ms. E.J. in follow-up on July 25, 2014. In his consultation letter, Dr. Sloka reported a discussion about her headaches, which had improved somewhat, his concern about her birth control medication (stroke risk), her uncertainty about an IUD, the onset of her headaches and light-headedness in concert with her menses, and her continued use of cabergoline. Dr. Sloka noted that she had yet to see a dermatologist about her mole and that she might instead speak to her family doctor about it. He planned to see her in nine months, “just to touch base” regarding her headaches.

Assessment of the Evidence and Analysis

[5328] I have concluded that Ms. E.J. was an extremely unreliable witness whose memories, perception, and evidence were profoundly impacted by her exposure to media coverage of Dr. Sloka.

[5329] A central tenet of Ms. E.J.’s evidence is that she only ever attended once at Dr. Sloka’s office. She made it clear that she only attended one appointment with Dr. Sloka, because she immediately recognized the inappropriateness of the skin examination. Once Dr. Sloka departed the examination room, she got dressed and swiftly departed without saying another word to Dr. Sloka. She never wanted to return. Her purported reaction to the examination precluded the possibility of a subsequent visit. Moreover, her description of the skin examination provided a factual basis for her conclusion about the inappropriateness of the skin examination. According to her, he leaned against the shelving, with his hands in his pockets, and gazed upon her as she stood there naked. The obvious import of her evidence was that Dr. Sloka never completed a comprehensive skin examination but rather used the skin examination as a ruse to inappropriately admire her naked body. If true, her purported reaction was entirely understandable. However, this central tenet of Ms. E.J.’s evidence is resoundingly undermined by Dr. Sloka’s contemporaneously written consultation letters and partially undermined by her own mother.

[5330] Dr. Sloka’s letters prove that Ms. E.J. did not bolt from Dr. Sloka’s office without saying a word. They also prove that Ms. E.J. did indeed attend for a follow up visit with Dr. Sloka. The notion that Dr. Sloka contemporaneously fabricated post-examination discussions, follow up testing, and a follow up appointment is ludicrous, particularly when one keeps in mind that all this documented information was contemporaneously sent to her endocrinologist and family doctor.

[5331] In addition, Ms. E.J.’s mother testified that Ms. E.J. told her that she attended for at least one test that Dr. Sloka ordered at the conclusion of the first visit. Ms. E.J. could not have attended that test unless she had been advised of the need to attend it. By telling her mother about attending for the nerve studies, Ms. E.J. indirectly declared her participation in post-examination discussions.

[5332] The participation in post-examination discussions and the attendance for a second visit provide a powerful rebuttal of Ms. E.J.’s claim of an immediate recognition of the inappropriateness of the examination, which in turn provides a powerful rebuttal of the claim that something inappropriate happened. Ms. E.J.’s refusal to accept the possibility of post-examination discussions and the possibility of a follow-up appointment damaged both her credibility and reliability.

[5333] Ms. E.J.’s denial of certain factual claims in Dr. Sloka’s first consultation letter also caused me concern about her reliability and credibility. Most notable was Ms. E.J.’s denial of any discussion about an IUD placement or related discussion about a pelvic ultrasound. According to Ms. E.J., the notion that they spoke about an IUD was “bogus.” She refused to consider the possibility that she had simply forgotten this discussion. In assessing her stance, I keep in mind that she acknowledged the accuracy of the lion’s share of the history reported by Dr. Sloka. That history included mention of the fact that she first began birth control because of the irregularity of her periods. Birth control medication stabilized her menstrual cycle. However, she had developed an adenoma and was experiencing headaches associated with her cycle. Her birth control medication was a stroke risk. Dr. Sloka’s consultation involved assessing that stroke risk. An IUD was an alternative to the birth control medication she was taking. Her stroke risk and the prospect of an IUD was discussed with Dr. Purdon in the June 16th consultation that followed Ms. E.J.’s first appointment with Dr. Sloka. It is obvious that the doctors were communicating with each other and with Ms. E.J. about alternative birth control options, one of which was an IUD placement. It is equally obvious that the ordering of a pelvic ultrasound was directly related to the contemplation of an IUD being used as a replacement for Ms. E.J.’s risky birth control medication. Ms. E.J. refused to accept these possibilities and the corresponding fallibility of her memory. Instead, she implied that Dr. Sloka falsified his consultation letter by making “bogus” claims. Her credibility consequently suffered. It suffered some more when she conceded that she never raised Dr. Sloka’s allegedly “bogus” claims with the Crown or police in preparation for trial. Given her clear animus towards Dr. Sloka, I do not accept her explanation that she did not believe it was her place to allege that Dr. Sloka falsified his consultation letters.

[5334] I also do not accept Ms. E.J.’s assertion that Dr. Sloka did not propose and obtain consent for the skin examination during the initial consultation in his office. Ms. E.J. conceded that Dr. Sloka proposed an examination of some sort. She also conceded that he indicated the examination would occur in the examination room. Additionally, she conceded she did not remember all that he said when proposing the examination. Also, she conceded that part of the proposal involved mention of testing nerves or reflexes. Yet, despite these concessions, she firmly and unreasonably denied the possibility of Dr. Sloka declaring a desire to do some basic neurological tests. She thereby betrayed an overconfidence in her obviously sparse memory. And, while she acknowledged Dr. Sloka inquired about birthmarks and the like, she denied that this inquiry was made in the context of proposing a skin examination. Given her concession that the topic of skin markings arose and given her incomplete and simultaneously overconfident memory, I reject Ms. E.J.’s testimony that Dr. Sloka never raised the prospect of a skin examination while in the office and proposing and seeking consent for examinations.

[5335] Ms. E.J.’s overconfident yet incomplete memory was betrayed by her refusal to acknowledge that Dr. Sloka performed all the components of his standard neurological examination and standard cardiac examination, even though she was prepared to acknowledge that at least some components of each examination occurred. Dr. Sloka’s contemporaneously written consultation letter unmistakenly declares a complete neurological examination and a standard cardiac examination. Ms. E.J., on the other hand, would only admit a fraction of the standard neurological examination – reflex and strength testing on her knees and feet. She denied a fundoscopy. She denied a cranial nerve examination. She denied the testing for sensation on her extremities. She also denied laying on her back for any portion of the examination. Similarly, Ms. E.J. denied that Dr. Sloka conducted all components of his standard cardiac examination, including placing the stethoscope on her bare skin on her back, but at the same time she conceded that Dr. Sloka may have conducted a cardiac examination. I reject Ms. E.J.’s assertions that Dr. Sloka did not perform the entirety of his standard neurological and cardiac examinations. Her evidence here was simultaneously unreliable and overconfident.

[5336] Ms. E.J.’s testimony about her gown also revealed her memory to be faulty. According to her, she wore a gown that wrapped around and tied at the side. What she described sounded more like a housecoat than a gown. I have no doubt that this memory is wrong. I accept that Dr. Sloka’s office only contained standard issue hospital gowns like those shown in Exhibit 2. These gowns are obviously gowns that tie at the back, just as Dr. Sloka and Ms. Tebutt testified. Ms. E.J.’s faulty memory impacted her memory about the cardiac examination. She rejected the possibility that Dr. Sloka placed the stethoscope on the bare skin of her back, because, according to her memory, her back would not have been exposed.

[5337] I also reject Ms. E.J.’s assertion that the timing of her contact with the police just happened to coincidentally coincide with the wave of news stories reporting that Dr. Sloka had been charged with 34 counts of sexual assault. In my view, it is obvious that she saw media coverage and called the police soon thereafter. She knew the proper number to call; that number was reported in the media. She also conceded that she believed the police were involved in Dr. Sloka’s case at the time of her call; that belief is most easily explained by exposure to media coverage of Dr. Sloka. Her own mother confirmed that she had discussed the criminal charges with her and had encouraged her to contact the police. That discussion necessarily involves discussion of what was reported in the media. Ms. E.J. also testified that she was aware of the CPSO complaint against Dr. Sloka before going to the police, further supporting the conclusion that she had followed the case in the media. I therefore disbelieve Ms. E.J.’s testimony that pure coincidence explained the proximity of her police complaint to the news of criminal charges against Dr. Sloka. I conclude that Ms. E.J. dishonestly attempted to obstruct any conclusion that her police complaint was influenced by news of Dr. Sloka’s arrest on 34 counts of sexual assault.

[5338] Ms. E.J.’s honesty is also called into question by her denial that she read anything about Dr. Sloka on the CPSO website. Her testimony on this point is contradicted by her police statement, where she told police that she read about other women and their skin examinations. Ms. E.J.’s explanation for this inconsistency was unconvincing on its face and contradicted by her mother. Ms. E.J. testified that, despite what she told the police, she did not herself read the CPSO material, but rather her mother had read the material and relayed the contents to her. Her mother, though, denied looking at any information about Dr. Sloka on the CPSO website.

[5339] Ms. E.J. also appears to have dishonestly attempted to thwart any suggestion of media tainting by alleging historical complaints to her doctor and nurse practitioner at a time proximate to her time as Dr. Sloka’s patient.

[5340] Ms. E.J. testified that she told Dr. Purdon that Dr. Sloka looked at her skin for markings, that she had to get undressed to permit the search for markings, and that she was uncomfortable. On her evidence, Dr. Purdon told her that he was sorry for what had happened, thereby implying that Dr. Purdon recognized the impropriety of the examination. She also alleged that Dr. Purdon reviewed Dr. Sloka’s consultation letter with her, and she voiced her disagreement wit the truth of its contents. She provided as an example Dr. Sloka’s claim that she asked him to look at a mole on her neck. On her account, she explicitly voiced her disagreement. She also testified that Dr. Purdon told her that Dr. Sloka ought not to have been looking at her skin. The clear implication of this claim is that she disclosed inappropriate conduct and Dr. Purdon recognized the conduct as being inappropriate. Simply put, Ms. E.J. testified that she complained about professional misconduct and that Dr. Purdon confirmed that the conduct described amounted to misconduct. To be fair, her position softened in cross-examination, where she ultimately agreed that, during this particular conversation, she may not have made it clear that she was completely naked. However, I think it more important to focus on what she was prepared to allege in-chief. Nothing of the sort is recorded in Dr. Purdon’s medical file for Ms. E.J. I do not for a moment believe that any ethical doctor would fail to document what Ms. E.J. claimed to have reported. The Crown did call Dr. Purdon. I infer he would not assist the Crown on this issue. I reject as dishonest Ms. E.J.’s attempt to claim that she disclosed to Dr. Purdon a naked skin examination and that she disputed the truthfulness of Dr. Sloka’s consultation letter when discussing it with Dr. Purdon.

[5341] Ms. E.J. also testified that she told the nurse practitioner, Ms. Barnhardt, that her entire body was exposed while Dr. Sloka examined her skin. Ms. E.J. agreed that Ms. Barnhardt never told her to lodge a complaint to the CPSO. Ms. Barnhardt also never stated that she would lodge her own complaint. Once again, there is no record in Ms. E.J.’s medical chart from Dr. Purdon’s office suggesting that Ms. E.J. ever complained about a naked skin examination to Ms. Barnhardt. I think it unlikely that that the nurse practitioner would have failed to make a not of such a complaint and failed to alert Dr. Purdon. The Crown did not call Ms. Barnhardt. I infer she would not have assisted the Crown on this issue. I reject Ms. E.J.’s evidence regarding her disclosure to Ms. Barnhardt.

[5342] I pause here to note that Ms. E.J. also testified that she disclosed her allegations to her family doctor, Dr. Brown; however, as I understand her evidence, she was not in a position to allege that these disclosures were made prior to her exposure to news coverage of the allegations against Dr. Sloka. The Crown does not rely upon this alleged disclosure to rebut any allegation of tainting.

[5343] Ms. E.J.’s mother, R.B., confirmed Ms. E.J.’s testimony about her purported discussion with Ms. Barnhardt, the nurse at Dr. Purdon’s office. According to Ms. R.B., Ms. E.J. told Ms. Barnhardt that she stood in front of Dr. Sloka without any clothes on – that she stood naked for an examination. Again, I conclude that, if this conversation really occurred, it likely would have been documented by Ms. Barnhardt. I think it likely that mother and daughter have colluded on this aspect of their evidence.

[5344] The absence of any documentation of the alleged complaints to Dr. Purdon and Ms. Burkhardt is damaging. It suggests that Ms. E.J. and Ms. R.B. dishonestly attempted to rebut any suggestion that Ms. E.J.’s complaint has been influenced by media coverage and the police decision to charge Dr. Sloka. Unlike the situation with Dr. Giles and Dr. Baxter, in the case of J.B., the contextual evidence does not suggest that fault for the absence of documentation lies with the record keepers, but rather with the declarants.

[5345] I have also concluded that, in addition to colluding with each other, Ms. E.J. and Ms. R.B. tainted each other’s evidence. Ms. E.J. and Ms. R.B. had multiple conversations about Dr. Sloka after Ms. R.B. first read news coverage about Dr. Sloka. These conversations began before Dr. Sloka lost his licence in April of 2019 and they continued thereafter. They discussed the similarity of the allegations reported in the news to Ms. E.J.’s complaint. They also discussed the contents of the phone conversation held between them immediately after the appointment. Ms. E.J.’s allegations, the allegations of other patients, and the historical phone conversation were all stirred in the same conversational pot – and on multiple occasions. Years after the alleged misconduct, Ms. R.B. also actively encouraged Ms. E.J. to lodge a complaint with the police. In my view, there exists a substantial likelihood that Ms. E.J. and her mother cross-tainted their respective memories and perceptions.

[5346] The Crown relies upon similar fact evidence to support the evidence of Ms. E.J. As discussed in the portion of this judgement devoted to the Crown’s cross-count similar fact application, I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations, like skin examinations, on any given patient. However, having considered Dr. Sloka’s evidence, in addition to the totality of the evidence, I am satisfied that he has compellingly refuted any inference of a sexual purpose in Ms. E.J.’s case. I will address my assessment of Dr. Sloka’s evidence momentarily. First, though, I will address the Crown’s reliance upon more granular cross-count similarities and my assessment of Dr. Bril’s evidence.

[5347] The Crown relies upon similarities between the evidence of two constituencies of patients and the evidence of Ms. E.J. First, they allege that Ms. E.J. belongs to a group of patients who allege that Dr. Sloka pressed them for additional and more invasive examinations. Second, they allege that Ms. E.J. belongs to a group of patients who alleged that they underwent skin examinations while completely naked. In my view, the reliance on these similarities lacks merit. I will deal with each in turn.

[5348] I disagree that Ms. E.J. belongs to a group of patients who allege that Dr. Sloka pressed them for additional and more invasive examinations. For the reasons already discussed, her evidence is incapable of rebutting the assertion that Dr. Sloka proposed a skin examination and obtained her consent for a skin examination while in the office. Her evidence about the examination proposals and consent discussions was simply too unreliable. Her evidence is likewise incapable of rebutting the assertion that Dr. Sloka informed her from the outset that the skin examination would involve the exposure of all her skin. Moreover, the size of this supposed constituency is too small and the conditions of membership too vague to be probative and to displace mere coincidence as the most likely explanation for any alleged similarity.

[5349] As for Ms. E.J.’s membership in the naked skin examination contingency, there exists a substantial likelihood that Ms. E.J.’s memories and perceptions have been tainted by media exposure.

[5350] Ms. E.J. agreed that the first media she saw likely concerned Dr. Sloka losing his medical licence. News outlets reported Dr. Sloka’s loss of licence in April of 2019. Ms. E.J. agreed it was possible that she read news about other patients alleging that they were inappropriately draped for examinations and that some of the examinations involved skin examinations. She agreed that after reading this news, she concluded that the same thing happened to her.

[5351] After seeing news about Dr. Sloka, Ms. E.J. spoke to her mother, who had also been exposed to news about Dr. Sloka. Ms. E.J.’s mother told her at some point that other patients had complained of naked skin examinations.

[5352] The media had extensively reported patient complaints of naked skin examinations. Ms. E.J. and her mother extensively discussed the news coverage of Dr. Sloka, Ms. E.J.’s purported memories of her own examination, and their telephone conversation on the day of the appointment. There exists a substantial likelihood that Ms. E.J.’s recollection of her own skin examination has been tainted by news coverage of the complaints of other patients. The existence of a skin examination is not in dispute here, only Ms. E.J.’s state of undress while receiving that skin examination. In my view, Ms. E.J.’s evidence on that material issue has been tainted. Consequently, no probative value arises from the similarity of Ms. E.J.’s evidence on this material issue to the evidence of other patients.

[5353] I turn now to the evidence of Dr. Bril.

[5354] Dr. Bril acknowledged that it would not be unreasonable for a neurologist to propose and conduct a skin examination if a patient had identified a specific skin marking and was unsure if there were any others present on her body. She testified that the neurological reasonableness of a skin examination would depend upon what the patient tells the neurologist when providing her history. However, she went on to discount the likelihood that Ms. E.J. would have said anything that could have warranted a skin examination.

[5355] In my view, Dr. Bril’s evidence offers little assistance, because she was not privy to the real-time discussions between Dr. Sloka and Ms. E.J., and instead only privy to the limited information contained in Dr. Sloka’s consultation letter. Consequently, Dr. Bril could not know what questions Dr. Sloka asked about Ms. E.J.’s skin, what responses Ms. E.J. provided, what Dr. Sloka proposed as a result, what rationales Dr. Sloka provided for his proposals, and the nature any consent provided by Ms. E.J. Instead, Dr. Bril’s opinion was based upon her speculation that Ms. E.J. would know the number and nature of any markings on her skin. She testified that Ms. E.J. would have known if she had multiple skin markings, that “a lot of women are very sure about their skin”, and that it would be very rare for a (female) patient to not know about markings on their skin. In providing this testimony, Dr. Bril strayed beyond the permissible scope of her opinion and engaged in broad stereotypical generalizations about women, speculation about Ms. E.J.’s subjective awareness of her own skin, and speculation about what Ms. E.J. likely did or did not disclose to Dr. Sloka. In doing so, Dr. Bril strayed from a position of impartiality to and into the realm of advocacy.

[5356] Finally, as discussed in the section of this judgement devoted to the general assessment of Dr. Bril’s evidence (and also in the segment of devoted to a general assessment of Dr. Sloka’s evidence), I do not think Dr. Bril’s evidence about draping during skin examinations stands as critique of Dr. Sloka’s standard methodology for conducting NF1 skin examinations.

[5357] I now wish to address Dr. Sloka’s evidence.

[5358] While Dr. Sloka did not document and did not remember conducting a skin examination, he was prepared to accept that he had done so.

[5359] The Crown contends that Dr. Sloka was guessing when giving his evidence about his justification for any skin examination that may have occurred. In the absence of a proven medical rationale, the Crown asks that I infer that Dr. Sloka possessed a sexual motive for the alleged skin examination.

[5360] In my view, the Crown’s submission lacks merit. Dr. Sloka testified that screening questions about skin markings were a routine part of his general review of systems when taking a patient’s history. He therefore had a factual foundation for his belief that he broached this topic with Ms. E.J., even absent a specific recollection. Moreover, Ms. E.J. confirmed that Dr. Sloka asked about her skin and that she told him about the discolouration on her stomach. Dr. Sloka also testified that if Ms. E.J. had reported the discolouration on her stomach, like she testified, he would consider this disclosure a significant factor in deciding whether to recommend a skin examination, because the marking could be associated between her known pituitary adenoma and neurofibromatosis or MEN1. His testimonial belief in this association was supported by an excerpt of the Ferner text that Dr. Bril conceded was an authoritative text. Dr. Sloka testified that he remembered seeing someone in Newfoundland (before ever coming to Kitchener) with MEN1 who an associated pituitary, parathyroid, or pancreatic issue. He testified he was alive to the issue when practicing in Kitchener. I accept that he was aware of this association at the time Ms. E.J. was his patient. Dr. Sloka therefore provided a factually supported explanation for why he might have wanted to conduct a skin examination at Ms. E.J.’s first appointment.

[5361] While perhaps not explicitly stated, Dr. Sloka implicitly denied any sexual motive and asserted that any skin examination was the product of a medical motive. Given the factual foundation for a medical motive and given Dr. Bril’s concession that a skin examination might be appropriate in some circumstances, I am unable to reject Dr. Sloka’s position.

[5362] The Crown also contends that Dr. Sloka’s first consultation letter was internally inconsistent and nonsensical. The Crown points to apparent contradiction between Dr. Purdon’s referral letter and Dr. Sloka’s first consultation letter about the regularity of Ms. E.J.’s cycles. Dr. Purdon noted that Ms. E.J.’s cycle was regular while on birth control pill. The history portion of Dr. Sloka’s reporting letter appears to confirm this regularity by confirming the regularity of the headaches associated with Ms. E.J.’s cycle. However, in the impression section, Dr. Sloka ordered a pelvic ultrasound given Ms. E.J.’s “cycle irregularity” and the potential of an IUD placement. I pause here to note that this letter was sent by Dr. Sloka to his medical peers, Dr. Purdon and Dr. Brown, who I must conclude were fully aware of Ms. E.J.’s medical history. I think it highly implausible that he would attempt to assert a blatantly incorrect state of affairs to Ms. E.J.’s other two physicians. Also, the Crown fails to consider Ms. E.J.s’ documented menstrual patterns prior to being placed upon birth control. In the first paragraph of Dr. Sloka’s consultation letter, Dr. Sloka wrote, “I am told that when she was 16 years old, she had a change in her menses,” thereby suggesting some irregularity before being placed on birth control. He went on to note that she was placed on the birth control pill after the change in her menses. He then mentions the regularity of Ms. E.J.’s headaches in association with her regular cycle. It must be kept in mind that Dr. Sloka was considering the cessation of the very pill that appears to have restored the regularity of Ms. E.J.’s cycles. Surely, it would be reasonable for Dr. Sloka to be concerned that Ms. E.J. might return to the irregular menstrual patterns that existed before she went on the pill. Importantly, the Crown never cross-examined Dr. Sloka about this alleged inconsistency. I am therefore unable to accept the Crown’s contention that Dr. Sloka’s consultation letter was unreliable.

[5363] The Crown also suggests that Dr. Sloka proved himself an inconsistent and unreliable historian because he did not know whether the mole reported in his consultation letter was abnormal. I do not follow the Crown’s point. Dr. Sloka documented that he referred Ms. E.J. to a dermatologist, clearly indicating a concern about that mole. Dr. Sloka’s current lack of a specific recollection, nearly a decade later, about the appearance of the mole does not reveal any inconsistency or unreliability. It reveals candor. Importantly, the Crown never cross-examined Dr. Sloka on this alleged inconsistency.

[5364] Dr. Sloka remained steadfast in his position that any skin examination would have occurred in accordance with his standard methodology, which involves proper draping and only piecemeal disclosure of segments of the patient’s skin. He denied the possibility that Ms. E.J. stood naked for the skin examination. The clear implication of his evidence is that he simply never conducted skin examinations in the fashion alleged by Ms. E.J..

[5365] In my view, Dr. Sloka testified in a candid, fair, rational, and straightforward manner. He presented a plausible justification for a skin examination that medically and logically flowed from the information Ms. E.J. admittedly provided to him. The cross-examination of Dr. Sloka did nothing to undermine his position. I found no reason to reject his evidence.

[5366] On the other hand, I found the evidence of Ms. E.J. and her mother to be unreliable and at times lacking in credibility. There is a substantial likelihood that Ms. E.J.’s police complaint and evidence were tainted by exposure to news coverage of Dr. Sloka and by discussions with her mother. There is also substantial likelihood that her mother’s evidence was similarly tainted. I am therefore unable to accept Ms. E.J.’s allegation that she stood naked for a skin examination, even if a skin examination may have occurred. Similarly, I reject her accusation that Dr. Sloka insisted she remove her underwear despite her protestation that she was on her period. Frankly, given her unreliability, and despite Dr. Sloka’s fair concession that he may have conducted one, I would not rely upon Ms. E.J.’s evidence to conclude beyond a reasonable doubt that a skin examination did in fact occur. Instead, I only think it probable that a skin examination occurred. And I only come to that conclusion because of Dr. Sloka’s concession that he may have performed one and his evidence regarding the rationale for performing one.

[5367] Given my rejection of the evidence of Ms. E.J. and her mother, given my acceptance of Dr. Sloka’s evidence regarding his standard methods and plausible medical motive, given my acceptance of Dr. Sloka’s implied denial of anything other than a medical motive, and given the limited utility of Dr. Bril’s evidence, I am unable to conclude beyond a reasonable doubt that whatever transpired during Ms. E.J.’s examination amounted to sexual activity. I am only able to conclude that Dr. Sloka proposed medical examinations, and that Ms. E.J. consented to those medical examinations. The Crown has failed to prove the existence of sexual activity and thus failed to prove a sexual assault.

[5368] Dr. Sloka will be acquitted on this count.

J. Other Issues

i. J.K. (Count 51)

A Summary of Ms. J.K.’s Complaint and Dr. Sloka’s Response to It

[5369] Ms. J.K. saw Dr. Sloka on 19 occasions over the course of 3 years and 10 months, during which time he diagnosed her with and treated her for Postural Orthostatic Tachycardia Syndrome (POTS). While his patient, she took no issue with Dr. Sloka’s care. Quite the opposite, in fact. After reading about allegations against Dr. Sloka in the media, Ms. J.K. took issue with the skin examination that Dr. Sloka conducted at her very first appointment. According to her trial evidence, she wore a gown for the entire skin examination. On her account, she wore her gown with the opening at the front. She alleged that Dr. Sloka asked her to open her gown to inspect the front of her body for about 90 seconds. During this time, he appeared to inspect her pelvic region for about 3 seconds. Afterwards, he carefully inspected the rest of her body in a piecemeal fashion, removing and then replacing portions of her gown to reveal discrete portions of her body in a sequential fashion. At this appointment, Dr. Sloka also took her vital signs and conducted neurological and cardiac examinations.

[5370] Dr. Sloka agreed that he took Ms. J.K.’s vital signs and conducted neurological, cardiac, and skin examinations. He testified that he conducted the skin examination to look for skin manifestations of disorders that might be responsible for Ms. J.K.’s symptoms. He conducted the examination in accordance with his training and standard practice. His examination purportedly involved the sequential exposure of discrete portions of Ms. J.K.’s body while her gown continued to cover the remainder of her body. He also alleged that she wore her gown with opening at the back, the way he asked all his patients to gown.

The Circumstances of Ms. J.K.’s Referral and Treatment History

[5371] Dr. Sloka received Ms. J.K.’s referral from a cardiologist, Dr. Babapulle. Ms. J.K. was 26 years old at the time.

[5372] Dr. Babapulle saw Ms. J.K. for a consultation on December 11, 2014. Her family doctor had sought an assessment of her heart palpitations and presyncope (light-headedness). Dr. Babapulle took her orthostatic vital signs (vital signs while lying down then upright) and conducted cardiac and respiratory examinations. Her orthostatic vital signs revealed a 40-bpm difference between her pulse when laying down and her pulse when upright. Dr. Babapulle also detected a heart murmur at the base of her heart. Dr. Babapulle concluded that Ms. J.K. “almost certainly has postural orthostatic tachycardia syndrome (POTS).” He referred Ms. J.K. to Dr. Sloka “for an assessment including tilt table testing,” to confirm the diagnosis. In the meantime, he scheduled a 72-hour Holter Monitor test for Ms. J.K., to ensure she did not have any arrythmias.

[5373] Dr. Sloka began seeing Ms. J.K. at his Urgent Neurology Clinic on February 4, 2015. In the aftermath of that visit he ordered various tests, including a tilt-table test, which is used to diagnose POTS. On March 5, 2015, he conducted the tilt table test in another room in the hospital, a room with a tilt-table designed specifically for this test. At the conclusion of the test, he diagnosed Ms. J.K. with POTS. Ms. J.K.’s remaining appointments with Dr. Sloka occurred at his neurology clinic. After her diagnosis, Dr. Sloka continued to monitor Ms. J.K. and prescribe medication to manage her condition. On June 15, 2016, Ms. J.K. reported progressive weakness over a three-day period, with tingling in her hands and feet, as well as episodes of falling. Dr. Sloka tried to order an urgent MRI, but one was not available locally. He sent her to an ER in Oakville, which was close to her home at the time. The ER doctor reported conducting a neurological examination, a rectal examination, and an inspection for saddle anesthesia, despite Ms. J.K. purportedly declaring the absence of any numbness in her saddle.

[5374] Due to the CPSO investigation, Dr. Sloka wrote a letter to Ms. J.K. on March 18, 2019, advising her that he was closing his practice and that she would need to find a new neurologist.

The Evidence of Ms. J.K.

[5375] For several years before her diagnosis, Ms. J.K. had been experiencing significant heart palpitations and light-headedness. These symptoms interfered with her ability to complete the physical portion of her training as a paramedic, which ultimately forced her to abandon that program.

[5376] Ms. J.K. remembered seeing Dr. Babapulle for a consultation before seeing Dr. Sloka. She agreed that Dr. Babapulle informed her that she almost certainly had POTS. She felt somewhat relieved when she learned of her probable diagnosis. She considered it good news, because she could now obtain a treatment plan to improve her quality of life.

[5377] Ms. J.K.’s first appointment occurred on February 4, 2015. She believed that she attended this appointment alone. After Dr. Sloka retrieved her from the waiting room, she had a lengthy discussion with him in his office. Given the passage of time, some details of the discussion were lost to her memory.

[5378] Ms. J.K. agreed that at the conclusion of their discussion, Dr. Sloka informed her that he wanted to perform neurological, cardiac, and skin examinations. She agreed it was possible that he proposed and explained the purpose of all these examinations while they sat in his office. She also thought it possible that he might have proposed and explained some of the examinations while in the examination room. She could not be certain one way or the other about the location in which this information was imparted. Those details were lost to her memory. Wherever it occurred, Ms. J.K. agreed that Dr. Sloka told her that he wanted to perform some basic neurological tests to ascertain whether her brain might be the cause of her symptoms. She also agreed that he told her that he wanted to listen to her heart, both while she was upright and laying down, to see whether her body position changed her heart rate. In addition, Ms. J.K. agreed it was possible that Dr. Sloka told her that that certain marks on the skin can be a sign of some neurological disorders which might explain her symptoms. Initially, she testified that, “He explained to me that certain neurological conditions could result in specific skin characteristics but nothing more specific than that.” The Crown then immediately and leadingly asked, “Did Dr. Sloka at any point make any reference to or mention moles?” Ms. J.K. then replied, “So, the skin check was to check for any skin characteristic including moles, rashes, things of that nature.” Ms. J.K. testified that she had many moles and freckles on her body, albeit none that had previously raised any concern. In sum, Dr. Sloka identified and provided a medical explanation for all three proposed examinations. Satisfied with the explanations, Ms. J.K. consented to the examinations.

[5379] Ms. J.K. did not think to request a chaperone. She did not anticipate a need for one at the time.

[5380] Once Dr. Sloka and Ms. J.K. entered the examination room, Dr. Sloka provided her with a gown. According to Ms. J.K., he asked her to remove all her clothes and wear the gown with the opening at the front. He then gave her privacy to change.

[5381] Once Ms. J.K. was ready, Dr. Sloka returned to the examination room.

[5382] To her recollection, Dr. Sloka performed the neurological examination first, followed by the taking of her vital signs, then the skin examination. Ms. J.K. considered the vital signs assessment to include her blood pressure, pulse, and cardiac examinations. Her evidence here contradicted her police statement. She told the police that Dr. Sloka took her vital signs before conducting the neurological examination, following which he conducted the skin examination. Ms. J.K. testified that she believed that the order she provided the police was wrong.

[5383] Ms. J.K. remembered many details about the neurological examination. She remembered being gowned for this examination. She also remembered various strength tests involving her hands, arms, legs, and feet. Additionally, she remembered Dr. Sloka testing her reflexes with a hammer. She also vaguely remembered Dr. Sloka running a metal instrument along the bottom of her foot. Other aspects of the neurological examination were lost to her memory. Nevertheless, she agreed it was possible Dr. Sloka examined her eyes with an ophthalmoscope. She also agreed it was possible Dr. Sloka conducted an examination of her cranial nerves by touching areas of her face. She also agreed it was possible he tested her limbs for sensation.

[5384] Following the neurological examination, Dr. Sloka conducted what Ms. J.K. called the vitals examination. During this examination, Dr. Sloka listened to heart and lungs with stethoscope. As she recalled it, he listened to heart while she sat, stood, and laid down, in that order. She said that he required the three measurements of her pulse numbers for comparison. According to Ms. J.K., her legs dangled off the table for the seated portion of the vitals examination. Ms. J.K. testified that Dr. Sloka did not fully open her gown for the standing and sitting portion of vitals examination but instead positioned stethoscope inside the gown to listen as necessary. She could not remember whether he listened to her back. Ms. J.K. testified that, for the laying down portion of the examination, Dr. Sloka told her that he was going to open her gown a little to listen to her heart and lungs. She did not respond. He then exposed her upper chest and breasts. She did not feel that her chest was exposed any more than was necessary to facilitate the examination. He also did not touch her chest in any way she considered improper. Nevertheless, she felt uncomfortable.

[5385] In her memory, she lay with her head closest to the window and her feet closest to the sink, which was along the same wall as the hallway door.

[5386] Dr. Sloka then asked Ms. J.K. to stand for the skin examination.

[5387] Ms. J.K. testified that Dr. Sloka sat on a chair during the skin examination, with his back to the window. She faced him, with her back to the hallway door and the sink. On her evidence, he asked her to open her gown fully and expose the front of her body. Dr. Sloka began to inspect Ms. J.K.’s skin starting at her chest and working his way down her torso. He examined her torso for about 90 seconds. He was positioned about two feet away from her as he inspected her skin. Then, Dr. Sloka asked her to spread her feet apart. Once she spread her feet about a foot apart, Dr. Sloka leaned sideways, tilted his head, and looked at her pelvic region for about three seconds. He also examined the front of her legs. Afterwards, he asked her to turn around.

[5388] Ms. J.K. then turned around to face the wall with the sink and hallway door. Dr. Sloka then moved her gown as necessary to sequentially examine discrete portions of her back and arms. In the process, she removed one sleave at a time to allow inspection of otherwise concealed sections of skin, returning her arm into her sleave once Dr. Sloka was finished examining each section. In this manner, Dr. Sloka was able to accomplish a careful inspection of the back of each shoulder and the tops of her arms. She also recalled Dr. Sloka manually rotating her arms to allow a complete inspection of the surface of her arms. Apart from rotating her arms, he did not touch her during the skin examination. By the time he was done, Dr. Sloka had examined the front and back of Ms. J.K.’s entire body. At some point during this full body inspection, he examined her head and neck, though she did not clearly articulate when in the sequence Dr. Sloka examined these portions of her body. Her evidence about the inspection of her legs was similarly vague.

[5389] Ms. J.K. testified that the skin examination made her feel uncomfortable, but she trusted that it was a proper examination. It was her impression that Dr. Sloka had tried to scan and closely examine her body. She did not have the sense that he unduly paused in any area; however, the three second pause to look at the inside of her legs and vaginal area was longer than she would have liked.

[5390] In cross-examination, Ms. J.K. agreed that she told the police that her skin examination began while she sat on the examination table, with her legs dangling over the side. She went on to tell the police that Dr. Sloka examined her legs and touched her legs during this seated portion of the skin examination. Ms. J.K. testified that what she told the police was wrong and that none of the skin examination occurred while she was seated on the examination table. Also, during her testimony, she did not allege that Dr. Sloka touched her legs during the skin examination. Ms. J.K. agreed to the suggestion that, when speaking to the police, she may have mistakenly conflated portions of the neurological examination with the skin examination.

[5391] Defence counsel also challenged Ms. J.K.’s memory about the orientation of the sink and window, two landmarks Ms. J.K. relied upon in providing her narrative of the vitals and skin examinations. Ms. J.K. acknowledged that her memory about the location of the sink was wrong. By implication, she agreed that she could not have been facing the sink as Dr. Sloka examined her back. Similarly, her feet could not have been closest to the sink as she lay down for the vitals examination.

[5392] Defence counsel also challenged Ms. J.K. on her claim that Dr. Sloka sat in a chair for the skin examination. Ms. J.K. insisted that Dr. Sloka sat in a chair. She would not allow for the possibility that he stood for the examination and crouched as required.

[5393] When the skin examination ended, Dr. Sloka told her Ms. J.K. that she could get dressed. He then returned to the office to allow her privacy to change.

[5394] Once changed, Ms. J.K. returned to the office for a discussion with Dr. Sloka. Ms. J.K. did not remember their discussion in fine detail. She agreed that Dr. Sloka may have told her that her heart, brain, and skin seemed okay, though he pointed out that she had a rash on her leg. She also remembered Dr. Sloka telling her that she very likely had POTS. He planned to start her on medication that day. He also wanted to perform some bloodwork and have her undergo some testing, including the tilt-table test to confirm her diagnosis. When defence counsel took Ms. J.K. to Dr. Sloka’s consultation letter, she agreed that Dr. Sloka ordered all the tests and bloodwork mentioned in his letter. Leaving the appointment, she felt very hopeful.

[5395] Ms. J.K. attended for her tilt-table test on March 5, 2015. She agreed that she also partook in an EMG test on the same day.

[5396] The tilt table test occurred at the GRH. She arrived at 7:30 a.m. A nurse took her into a room with the tilt table.

[5397] Ms. J.K. agreed she wore a gown for the tilt-table test but could not recall whether she wore it opened at the front or back. She did remember, though, that the nurse applied stickers and leads to her chest, which connected to a monitor. Thus, she confirmed that the nurse had access to the bare skin on her chest. The nurse attached the leads to her chest before Dr. Sloka ever arrived. This memory aligned with the evidence of Dr. Sloka, who testified that patients attended early for the tilt table test and were hooked up to the monitor before his arrival. It also contradicted the evidence of Ms. A.R., who alleged that Dr. Sloka applied the leads and hooked her up to the monitor.

[5398] At some point after the nurse hooked Ms. J.K. up to the monitor, Dr. Sloka arrived and began the test. Ms. J.K. lay flat on the table for the test. Dr. Sloka used a stethoscope to listen to her heart at various points during the test as he tilted the table from a horizontal position to a more upright position. Unlike what Ms. A.R. and Ms. B.P. alleged, he did not tilt the table and her head downwards. In this regard, Ms. J.K.’s evidence aligned with Dr. Sloka’s.

[5399] At the conclusion of the test, Dr. Sloka confirmed that Ms. J.K. had POTS. On Dr. Sloka’s instructions, Ms. J.K. had ceased using her prescribed medication (Florinef) for a week prior to the test. With POTS confirmed, Dr. Sloka renewed her prescription. He also booked a follow up appointment in three weeks time.

[5400] Ms. J.K. continued to see Dr. Sloka for an additional 17 appointments. Typically, Dr. Sloka measured her orthostatic vital signs (blood pressure and pulse) at follow up appointments, always in the examination room. Ms. J.K. also agreed that Dr. Sloka conducted cardiac examinations at some follow up appointments, just as he reported in his consultation letters. However, she did not remember being gowned for any of them. After the tilt table test, she did not remember being in a gown again while in Dr. Sloka’s care, though she did not entirely discount the possibility.

[5401] On June 13, 2016, Ms. J.K. reported concerning new symptoms to Dr. Sloka. For three days she had been experiencing progressive weakness and had been falling down. She also experienced tingling in her feet and hands. Dr. Sloka sought an urgent MRI. As already noted, Ms. J.K. attended the ER at the Oakville Trafalgar Hospital to facilitate an MRI. The notable features of the ER report have already been mentioned. Ms. J.K. left messages at Dr. Sloka’s office to inform him that her MRI results were normal. Dr. Sloka’s secretary received and wrote down those massages. These messages were stored in Dr. Sloka’s file for Ms. J.K. Dr. Sloka ultimately received the ER and MRI reports and stored them in his file for Ms. J.K.

[5402] Ms. J.K. last saw Dr. Sloka on December 12, 2018. By that point she was pregnant. She did not want to stay on her medication while pregnant. As a result, she had decided to stop seeing Dr. Sloka for the time being. She had planned to see Dr. Sloka after her pregnancy, if she decided to resume taking her medication. However, in March of 2019, she received a letter from Dr. Sloka indicating that he was closing his practice.

[5403] Before reading about Dr. Sloka in the news, Ms. J.K. had a very favourable impression of Dr. Sloka. She thought he was great as a doctor. She thought his long curly mullet was funny – she liked it. She also thought he was nice. He had a generally quiet demeanour but was prepared to talk about issues that concerned her. She thought he was really interested and invested in her condition and gave her the best care possible. He listened very carefully when she shared information about her condition and symptoms. He never made her feel rushed. She felt that she could always ask him questions, and he would always take the time to answer her questions. He was very patient with her.

[5404] Ms. J.K. first became aware of the allegations against Dr. Sloka when her mother sent her a news article about the criminal case against Dr. Sloka. She believed the article came from CTV News. More than 30 people had lodged complaints against Dr. Sloka. Dr. Sloka had been assaulted while in custody. Ms. J.K. believed that the article was current. Curious to know the nature of the complaints against Dr. Sloka, Ms. J.K. thoroughly read the article. Counsel presented Ms. J.K. with an article from September 26, 2019, entitled, “Sloka Allegedly Injured in Jail, Defence Asking for More Security.” That article looked familiar to her. She also may have read additional articles about Dr. Sloka before providing her police statement.

[5405] Come the trial, Ms. J.K. could no longer remember the content of the news articles that she had read. However, she agreed that some of the allegations reported closely resembled her own. Leading up to September 26, 2019, media outlets had reported allegations that included improper draping, the improper removal of gowns, and improper skin examinations which were conducted to search for “moles.”

The Evidence of Dr. Bril

[5406] Dr. Bril testified that the assessment and treatment of POTS lay within the field of neurology. Management of POTS is also typically shared between neurologists and cardiologists.

[5407] Dr. Bril agreed that POTS can potentially be a life-altering, debilitating illness. It is important to search for an underlying explanation of its cause. If possible, it is preferable to identify and treat the cause of POTS, rather than simply treat the symptoms.

[5408] While it is advisable to investigate the cause of a patient’s POTS, Dr. Bril did not believe that it was reasonable for Dr. Sloka to conduct either a cardiac examination or a skin examination. She only believed it reasonable for Dr. Sloka to conduct a neurological examination and to test on Ms. J.K.’s heart rate and blood pressure while laying down and standing up.

[5409] Dr. Bril testified that a cardiac was unnecessary – “useless” – because Ms. J.K. had already seen a cardiologist and had already received an echocardiogram in the past. Dr. Sloka’s medical file did not contain any echocardiogram results. However, the cardiologist wrote in consultation letter, “She has had Holters and echocardiograms done over the past three or four years and these really have been within normal limits. However, she has not had recent cardiac investigations.” Presumably, Dr. Bril was referring to these non-recent echocardiograms when providing her opinion. Despite the cardiologist’s awareness of past normal echocardiograms, the cardiologist decided to perform a cardiac examination. Dr. Bril did not think there was any point in a neurologist doing another cardiac examination.

[5410] Even if the cardiologist had not listened to Ms. J.K.’s heart, Dr. Bril would still have not thought it appropriate for Dr. Sloka to conduct a cardiac examination, stating, “we don’t do it for POTS.” Having said that, Dr. Bril admitted that it was beyond her experience to opine on whether auscultation of the heart might detect murmurs as the patient changes positions. She did not know whether this information would be helpful. In her opinion, the presence of a murmur would not change the diagnosis or the management of POTS. POTS concerns the change in heart rate with body position, not the change in heart sounds.

[5411] Dr. Bril also did not think it necessary to conduct a cardiac examination before Dr. Sloka prescribed Ms. J.K. Florinef. Florinef is a synthetic hormone used to treat light-headedness. It causes an increase in fluid-retention and an increase in blood pressure. Nevertheless, in Dr. Bril’s opinion, neurologists do not conduct cardiac examinations before prescribing this drug. Before testifying at this trial, she had never heard of neurologists conducting cardiac examinations before prescribing medication. On the other hand, she conceded that cardiac examinations might be warranted in some instances to ensure that a patient’s heart is healthy enough before prescribing some medications. However, she testified that if there is a cardiac concern, a neurologist sends the patient to a cardiologist before prescribing the medication in question. This opinion was based upon her belief that neurologists do not have the training, skill, and expertise to perform a cardiac examination. That belief in turn flowed in part from her assessment that she lacked the training, skill, and expertise necessary to perform a cardiac examination.

[5412] Defence counsel suggested to Dr. Bril that it was appropriate to assess how quickly Ms. J.K.’s heart rate changed as her body position changed. In making this suggestion, defence counsel suggested it was appropriate to listen to Ms. J.K.’s heart rate continuously as Ms. J.K. changed body position. Defence counsel suggested that, if the heartrate increases quickly, it can represent a baseline metabolic problem, such as thyroid, glucose, or cortisol system problems. Dr. Bril testified that she would not know, but she doubted it. In any event, she testified that any evidence of metabolic problems could be obtained from blood tests. She also did not believe that a delayed increase in heart rate could indicate nerve damage. Accordingly, she did not think it necessary to continuously listen to Ms. J.K.’s heart as her body position changed.

[5413] In Dr. Bril’s opinion, the only relevant cardiovascular examinations were the taking of the patient’s blood pressure and heart rate while laying down and standing up. Dr. Bril testified that Dr. Sloka ought to have tested Ms. J.K.’s heart rate and blood pressure first while laying down, then again after she had been standing for a minute, and then again after she had been standing for three minutes.

[5414] Dr. Bril also did not think it appropriate for Dr. Sloka to conduct a skin examination. As noted elsewhere, Dr. Bril stated that neurologists do not do skin examinations. Dr. Bril was also not familiar with any skin conditions that might be associated with POTS, explaining that she was not a dermatologist. Specifically, Dr. Bril was not aware of any association between Mast Cell Activation Syndrome and POTS. She testified that neurologists do not use skin conditions to diagnose POTS.

The Evidence of Dr. Sloka

[5415] In a general sense, Dr. Sloka remembered Ms. J.K., because she was his patient for four years and nineteen appointments. However, he did not have an independent memory of the details of any given visit, including Ms. J.K.’s first visit. Dr. Sloka relied upon his consultation letters for the truth of their contents and upon the rest of his medical file to provide contextual information.

[5416] The cardiologist, Dr. Babapulle, attached a copy of his consultation letter to the referral letter he sent to Dr. Sloka. The consultation letter outlined Ms. J.K.’s history, the examinations conducted, and Dr. Babapulle’s impression and plan. By the time of the referral, Dr. Babapulle had not made a diagnosis. Dr. Babapulle expressly asked Dr. Sloka to make the diagnosis. Dr. Babapulle also expressly informed Dr. Sloka that he had not “started her on any medications at the present time until she has been seen and assessed by Dr. Sloka and a diagnosis is established.”

[5417] Based on the contents of the referral documents, Dr. Sloka believed that Dr. Babapulle had asked him to confirm Ms. J.K.’s POTS diagnosis and to thereafter treat and manage her symptoms. In making the referral, Dr. Babapulle asked Dr. Sloka to conduct a tilt-table test to confirm the diagnosis. In fulfillment of his treatment role, Dr. Sloka continued to manage Ms. J.K.’s care from February 4, 2015, and December 12, 2018. Conversely, Dr. Babapulle’s involvement in the treatment of Ms. J.K. appears to have ended once he handed over her care to Dr. Sloka.

[5418] Dr. Sloka testified about his general understanding of POTS. Dr. Sloka understood POTS to be a condition that involves insufficient blood flow from the body back to the heart. When POTS patients rise from laying down, their heart rate increases abnormally to accommodate for the change in their body position. Consequently, they can experience light-headedness, lost of consciousness, nausea, vomiting, headaches, changes in their bowel function, and heart palpitations.

[5419] Dr. Sloka believed that autoimmune attacks against parts of nervous system that regulate the veins can give rise to POTS. He also testified that sometimes POTS arises from a more global insult to the autonomic nervous system. One type of POTS, hyperadrenergic POTS, is caused by an excess of adrenaline.

[5420] Dr. Sloka testified that the classification of POTS depends upon how you view the problem. If one views POTS as a failure of the nervous system to maintain tone in the blood vessels, then it one can call it a neurological issue. If one views POTS as a failure of the blood vessels themselves, one can call it a cardiovascular problem. Consistent with the evidence of Dr. Bril, Dr. Sloka testified that both neurologists and cardiologists diagnose and treat people with POTS.

[5421] Dr. Sloka testified that he was trained to do tilt table testing, so he viewed himself competent to assist in making the diagnosis. He also viewed himself as having a treatment role.

[5422] Dr. Sloka testified that there are conditions that can mimic POTS. He pointed to conditions that can cause losses of consciousness, dizziness, and palpitations. He provided an overactive thyroid as one example. He also testified that problems with the cortisol system can give rise to symptoms consistent with POTS. Anxiety can also look like POTS on occasion.

[5423] Dr. Sloka also testified that some conditions are associated with or coincide with POTS. He named Mast Cell Activation Syndrome as one example. People with this syndrome get hives. Dr. Sloka also named Ehlers-Danlos syndrome. He believed that this syndrome can sometimes have cardiac symptoms.

[5424] Dr. Sloka testified that both the treatment and management of POTS involve attempts to increase the volume of fluid and blood in the body. He would ask a POTS patient to drink more salty water. He would also prescribe medications, like Florinef and midodrine, to assist in fluid retention. He would also encourage exercise to help the patient maintain vascular tone.

[5425] When he met with Ms. J.K. on February 4, 2015, he took her medical history. In his consultation letter he wrote:

She tells me that possibly 7 or 8 years ago she began experiencing a gradual light-headedness. If she stands for more than 15 minutes at least at the present time she will lose consciousness. She finds that her fatigue is constant, and she will experience decreased vision, nausea, flushing, palpitations, and no loss of consciousness.

[5426] Dr. Sloka did not know why he wrote “and no loss of consciousness” in the final sentence of the above quoted paragraph. Her history clearly included a loss of consciousness. The inclusion of the word “no” was obviously a dictation error. The Crown did not cross-examine Dr. Sloka on his belief that this was a dictation error.

[5427] Dr. Sloka recommended and conducted neurological, cardiac, and skin examinations. He also took Ms. J.K.’s blood pressure and pulse laying down and standing.

[5428] Dr. Sloka recommended the neurological examination because he wanted to rule out any neurological condition as a cause of Ms. J.K.’s POTS. Dr. Bril had conceded that a neurological examination might be used to rule out a small fibre nerve disease.

[5429] Dr. Sloka also explained the reason for examining Ms. J.K.’s orthostatic vital signs. Dr. Sloka testified that the criteria for a POTS diagnosis include a sustained increase in the patient’s heart rate of 30 bpm upon standing, or a sustained heart rate of at least 120bpm upon standing. If the increased heart rate is not sustained, neither of these two criteria are satisfied. Dr. Babapulle’s consultation report did not indicate whether Ms. J.K.’s increased heart rate was sustained.

[5430] While Dr. Sloka had the results of Ms. J.K.’s Holter monitor and had Dr. Babapulle’s consultation report, which indicated a normal cardiac examination and normal echocardiograms in the past three-four years, Dr. Sloka still felt his own cardiac examination would provide useful information. Dr. Sloka testified that he was interested in discerning whether Ms. J.K.’s cardiac condition had changed or evolved in the two months since her cardiology appointment.

[5431] Dr. Sloka also conducted cardiac examinations on POTS patients because the medications used to treat POTS, Florinef and propranolol, have cardiac contraindications. Dr. Sloka testified that he wanted to know the patient’s heart condition before prescribing these drugs. Ms. J.K.’s cardiologist heard a mild murmur when examining Ms. J.K.’s heart. Dr. Sloka wanted an understanding of this murmur prior to starting her on medications. He wanted his own personal knowledge of any murmurs in case the murmur worsened during treatment. To know whether it worsened, he needed an understanding of its “baseline” sound upon auscultation.

[5432] The existence of a murmur was also a factor to consider when deciding whether it was safe to subject Ms. J.K. to a tilt-table test.

[5433] In a POTS assessment Dr. Sloka also listened to the hearts of his patients as a they changed body position from laying down to sitting up. He wanted to gauge the speed with which the heartrate increased. He explained that the autonomic nervous system helps regulate heart rate. If for some reason when the patient rises and they become lightheaded, but heart rate has not yet increased, the delayed increase suggests a more global problem harming the nervous system. Here, he contemplated possible problems like diabetes and autoimmune conditions. In this situation, he would order blood work to investigate further. Dr. Sloka identified Parkinson’s disease as another disease that might cause POTS symptoms.

[5434] Dr. Sloka also testified that a cardiac examination factors into his decision to order a tilt table test. He also testified that the tilt-table test itself involves a cardiac examination at the outset, to ensure that it is safe for the patient to participate in the test. Before ever ordering the tilt-table test, he conducts a cardiac examination to ensure there are no safety concerns.

[5435] Dr. Sloka also testified that a cardiac examination forms part of his standard assessment of patients who have experienced a loss of consciousness. Based upon his understanding of the medical literature and his training, a cardiac examination was warranted when a patient suffered a loss of consciousness.

[5436] Ultimately, at the conclusion of Ms. J.K.’s first appointment, Dr. Sloka prescribed Florinef and ordered a tilt-table test. On his evidence, a cardiac examination was a necessary precursor to those decisions.

[5437] Dr. Sloka had no independent memory of conducting a skin examination. He also did not specifically refer to one in his consultation letter. He only mentioned the discovery of a rash in the examination paragraph of his consultation letter. However, he believed he performed one. He based that belief on his report of a rash and, at least implicitly, on Ms. J.K.’s claim of a skin examination. Additionally, Dr. Sloka testified that some conditions with skin manifestations are associated with POTS. Other conditions that mimic POTS symptoms have skin manifestations, too. As noted already, Dr. Sloka understood Mast Cell Activation Syndrome to involve rashes on the skin. Also, he considered neurofibromatosis to be a possible mimic candidate, even if an unlikely one. He testified that neurofibromas can appear anywhere on the nervous system. If they appear in places that interfere with communication between the brain and the heart, the regulation of the heartrate may be compromised. Neurofibromas can also interfere with communication with the blood vessels.

[5438] Dr. Sloka believed his decision to conduct a skin examination was in retrospect supported by the results of Ms. J.K.’s cardiovascular examinations. Ms. J.K.’s orthostatic vital signs did not meet the criteria for POTS when Dr. Sloka examined her in his clinic. Dr. Sloka believed a skin examination could assist in arriving at a diagnosis if he found evidence of mimics or evidence consistent with POTS. As mentioned, Dr. Sloka understood Mast Cell Activation Syndrome to have skin criteria, including hives and rashes. He also understood Addison’s disease to be a mimic candidate which had skin findings. If present, those findings would point away from a POTS diagnosis. The Crown never cross-examined Dr. Sloka on the validity of his purported interest in the skin manifestations POTS mimics.

[5439] While not his foremost skin consideration, Dr. Sloka also believed it worthwhile to look for evidence of neurofibromatosis while looking at Ms. J.K.’s skin. Relying upon the same statistics as Dr. Bril, Dr. Sloka did not consider neurofibromatosis to be a rare condition. He also understood POTS to occur in 0.2% of the population, which he considered “not ridiculously rare, either.” In his view, the coincidence of these two conditions might not be surprising. To explain the relevance of neurofibromatosis to his assessment of Ms. J.K., Dr. Sloka provided an anecdote. He testified that he had a patient with NF1 who required urgent bowel surgery after a neurofibroma affected the nerves servicing her bowel function. Like the functioning of the heart, bowel function is an autonomic nervous system function. While neurofibromatosis was not high on his list of considerations, it remained a consideration.

[5440] Dr. Sloka testified that a skin examination could also reveal skin findings consistent with a POTS diagnosis. As he understood it, POTS is associated with erythromelalgia, red rashes on the leg, and with livedo reticularis, purple mottling on the legs. As it happens, Dr. Sloka observed a rash on Ms. J.K.’s right lower leg that was consistent with POTS. He documented this finding in the examination paragraph of his consultation letter. His skin examination thus pointed towards a POTS diagnosis.

[5441] Implicit in Dr. Sloka’s evidence is his assertion that he would not have conducted the proposed examinations without Ms. J.K.’s consent. On his evidence, all patient examinations were contingent upon patient consent.

[5442] Dr. Sloka testified that he would have conducted all the examinations in accordance with his training and standard methods. As mentioned, though, Dr. Sloka’s cardiac examination for a POTS patient differed from his standard cardiac examination. A POTS cardiac examination contained an additional element: he listened to the patient’s heart rate as his patient went from laying down to standing upright.

[5443] Dr. Sloka testified that he would listen to the patient’s vital signs first, because he did not want the activity from the neurological examination to affect the results. After the neurological examination, he would conduct the cardiac examination, then the skin examination.

[5444] Unlike the cardiologist, Dr. Sloka did not record the existence of a heart murmur. Dr. Babapulle had reported a soft murmur, rating it a 2/6 murmur. Having no memory, he was not sure if he heard the murmur but failed to record it or if he was unable to hear it. He reasoned that a soft murmur might not have been detectable if Ms. J.K.’s blood flow during his examination was slower than during Dr. Babapulle’s examination. The Crown did not cross-examine Dr. Sloka on this explanation, nor did the Crown suggest that his failure to record a murmur showed hat he was not truly interested in establishing a baseline understanding of Ms. J.K.’s heart sounds.

[5445] Dr. Sloka’s description of his standard approach to a skin examination differed from Ms. J.K.’s description. To begin with, he maintained that she would have worn her gown with the opening at the back. Dr. Sloka positioned himself between his patient and the window. He had the patient face the window. He never used a stool or a chair, as Ms. J.K. claimed. He stood. When needed, he crouched to visualize the lower parts on a patient. Dr. Sloka testified that he begins by examining the patient’s face and neck and behind their ears. Then he has the patient turn so he can examine their back. He moves the gown piecemeal to examine discrete sections covered by the gown. Using that process, he next looks at the patient’s arms. Then he has the patient turn again and he asks the patient to lower their gown briefly to their waist so that he can look at the front of their torso. Then he examines the front and back of the patient’s lower extremities, asking the patient to rotate as needed.

[5446] Dr. Sloka denied that Ms. J.K. would have worn her gown opened at the front and that he would have asked her to part the gown to reveal the entire front of her body. Dr. Sloka also denied asking his skin examination patients to spread their feet. To facilitate an examination of the skin in the pelvic region, he would ask his patients to move their gown aside for a few seconds.

[5447] Ms. J.K. had testified that Dr. Sloka washed his hands before leaving the examination room. Dr. Sloka denied this. The sink in his examination room did not work.

[5448] Ms. J.K.’s neurological and cardiac examinations were normal. The respiratory component of her cardiac examination was also normal. Although her heart rate rose significantly upon standing, it did not rise enough to confirm a POTS diagnosis. As mentioned, though, the rash on Ms. J.K.’s leg was consistent with POTS.

[5449] At the conclusion of Ms. J.K.’s examinations, Dr. Sloka suspected Ms. J.K. had POTS, even though her heart rate assessment did not confirm it. He ordered MRIs of Ms. J.K.’s brain and spinal cord to make sure there was no pathology there that might interfere with the functioning of her autonomous nervous system. He also ordered EMG studies to make sure there was not a global nerve problem that could explain her symptoms. Additionally, he ordered blood work to rule out other possible causes of damage to her nervous system, like diabetes or autoimmune diseases. He also ordered a tilt-table test.

[5450] As planned, Ms. J.K. attended for all the tests.

[5451] The tilt table test occurred on March 5, 2015. As usual, the test occurred in a room in the hospital that contained the tilt table required for the test. Ms. J.K. would have been gowned for the procedure. Dr. Sloka could not remember whether Ms. J.K. wore the gown opened at the front or opened at the back, but he believed it possible that she wore the gown opened at the front, as was common for this procedure. Nurses attach the leads to the patient’s chest before he arrives for the procedure. They would provide the patient instructions about gowning before his arrival. Consistent with his practice, Dr. Sloka conducted a cardiac examination for safety purposes before administering the test. Dr. Sloka then administered the test. When he tilted the table upwards, Ms. J.K.’s heart rate rose sufficiently above her baseline heart rate for a sustained period. The test results therefore met the POTS criteria.

[5452] Ms. J.K. attended for follow up visits with Dr. Sloka until December 12, 2018. On several subsequent visits, he assessed Ms. J.K.’s vital signs and performed cardiac examinations. Dr. Sloka testified that he conducted cardiac examinations because Ms. J.K. was taking Florinef and propranolol at the material times. He wanted to monitor her cardiac status while on these medications. Dr. Sloka did not record and did not think he ever found a murmur when conducting cardiac examinations, at least nothing significant enough for him to record it.

Assessment of the Evidence and Analysis

[5453] Ms. J.K. and Dr. Sloka provided similar accounts of Ms. J.K.’s first appointment. Both testified that Dr. Sloka proposed and explained the examinations that he wanted to perform. Ms. J.K. consented to those examinations. With Ms. J.K.’s consent, Dr. Sloka obtained Ms. J.K.’s vital signs and conducted neurological, cardiac, and skin examinations. Both also agreed that Dr. Sloka used a piecemeal approach when examining Ms. J.K.’s skin, consistent with Dr. Sloka’s standard practice. However, their evidence differed on some important details. The most significant points of disagreement concerned the way Ms. J.K. wore her gown and whether Ms. J.K. opened the front of the gown to expose the entirety of the front of her body.

[5454] For various reasons, I have concern about the reliability of the finer details of Ms. J.K.’s evidence. Where her evidence conflicts with the evidence of Dr. Sloka, I reject it.

[5455] I begin with looking at the logic of Ms. J.K.’s description of the skin examination. Ms. J.K. alleged that Dr. Sloka began the examination by having her expose her entire front, showing a disregard for her privacy. On the other hand, Ms. J.K. agreed that when Dr. Sloka examined the back of her body, he examined her skin in a piecemeal fashion, taking care to sequentially remove portions of her gown to examine discrete portions of her body, thereby taking steps to preserve her privacy after it had already been violated. In effect, she alleges that Dr. Sloka took illogical and contradictory approaches to her privacy. I consider that highly unlikely. I keep in mind here that Dr. Sloka’s cardiac examination must have involved the exposure of Ms. J.K.’s left breast. Additionally, Dr. Sloka’s standard skin examination involves briefly lowering the gown to reveal the torso. Given the passage of time and given the exposure inherent in Dr. Sloka’s standard methods, I can see how someone might mistakenly believe that they must have opened the front of their gown. Also, it seems likely that Ms. J.K. wore her gown opened at the front for her tilt table examination, to facilitate the attachment of leads to her chest. Given the passage of time, it would be easy for someone to conflate their manner of dress on these two appointments.

[5456] Ms. J.K.’s trial evidence about the skin examination also differed in some respects from her police statement, showing her memory to be somewhat unreliable. In her statement to the police, she alleged that the skin examination began while she sat on the examination table. She also alleged that Dr. Sloka touched her legs as they dangled over the edge of the table. Ms. J.K. agreed at trial that these things did not occur during her skin examination. She appeared to agree that she had conflated components of the neurological examination with the skin examination – thus showing her susceptibility to conflating different memories.

[5457] I also think it likely that Ms. J.K.’s perception about the propriety of her skin examination has been impacted by her exposure to news of patient allegations of improper draping, gown removal, and breast exposure. Although these news stories did not contain any reference to gowns being worn opened at the front, that is of little moment. Ms. J.K. agreed that the stories available at the time of her media inquiries closely matched her own. In making this acknowledgement, she made clear that the salient feature of the stories was breast exposure, not the way she wore the gown. There are only two ways to wear a gown, one of which facilitates breast exposure more readily than the other. Given Ms. J.K.’s demonstrated propensity for conflating memories, it seems entirely plausible that media exposure enhanced her risk of misremembering the skin examination in a way that would more easily explain her feeling of exposure.

[5458] Ms. J.K. also inaccurately recalled the location of the sink in Dr. Sloka’s examination room. Her inaccurate recollection was not a peripheral detail. Her description of her orientation during the skin examination was tethered to her recollection of the location of the sink and the window. She purportedly recalled facing the sink when Dr. Sloka was examining her back. This could not have occurred. It was not a true memory. After looking at the photographs of Dr. Sloka’s office, Ms. J.K. conceded her error during cross-examination.

[5459] Ms. J.K.’s description at trial of the order of her examinations also differed from the description provided to the police. She told the police that Dr. Sloka checked her vital signs, then conducted the neurological examination, then the skin examination [making no mention of the cardiac examination]. At trial, she testified that Dr. Sloka performed components of his neurological examination before taking her vital signs (which included taking pulse and blood pressure, and conducting a cardiac examination), which occurred before conducting the skin examination. Her police statement aligns with the sequence provided by Dr. Sloka. Also, Dr. Sloka provided a logical reason for that sequence: he did not want the neurological examination to affect the measurement of her vital signs. Nevertheless, Ms. J.K. insisted on the order she provided at trial. In my view, Ms. J.K. is mistaken. It simply makes no sense for a doctor to ask a patient to engage in a kinetic neurological examination knowing that the vital sign measurements will thereby be affected.

[5460] Having considered Ms. J.K.’s evidence in the context of the entirety of the evidence, I am unable to rely upon the aspects of Ms. J.K.’s evidence that conflict with the evidence of Dr. Sloka. I come to this conclusion despite the Crown’s reliance upon cross-count similar fact evidence.

[5461] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual purpose when conducting sensitive examinations on any given patient. However, having considered Dr. Sloka’s evidence about his medical motivations and the manner in which he conducted the examinations, I conclude that Dr. Sloka has refuted any potential inference of a sexual purpose.

[5462] The Crown also relies upon four granular cross-count similarities to support Ms. J.K.’s evidence on other material issues, but I do not find these cross-count similarities to be sufficiently compelling. First, the Crown contends that Ms. J.K. belongs to a constituency of patients who allege that Dr. Sloka performed a skin examination while they were naked or in a state of undress. Second, they allege that Ms. J.K. belongs to a constituency of patients who allege that Dr. Sloka did not explain the reason for the proposed examinations. Third, they allege that Ms. J.K. belonged to a contingency of patients who allege that they wore their gown with the opening at the front. Fourth, they allege that Ms. J.K. belonged to a contingency of patients who allege that Dr. Sloka told them that he wanted to look for moles.

[5463] Apart from their utility in proving a sexual purpose, the relevance of these cross-count similarities lies largely in their ability to prove the existence of a skin examination. Dr. Sloka has conceded the existence of a skin examination, rendering immaterial the issue of a skin examination. Some of these cross-count similarities are also relevant to the issue of the sexual nature of the examinations, but not to any significant degree. I will discuss each cross-count similarity in turn.

[5464] I begin by discussing Ms. J.K.’s alleged membership in the contingency who allege they were inadequately dressed for their skin examination. As noted above, Ms. J.K. does not allege that she was fully naked for the skin examination. Indeed, on her evidence, she never removed her gown. Moreover, her evidence regarding her draping during the skin examination appears internally inconsistent. On the one hand, Dr. Sloka took pains to remove portions of the gown in a piecemeal fashion, while keeping the rest of her covered. On the other hand, he allegedly asked her to expose her entire front. In my view, her description does not meaningfully align with the evidence of the other members of this purported constituency. I appreciate that the degree of Ms. J.K.’s draping could be relevant to the sexual nature of the skin examination, but I do not see a sufficient similarity between the evidence of other patients and that of Ms. J.K. Indeed, I see meaningful differences; and I see internal inconsistency in Ms. J.K.’s description. Also, I see a witness whose perception has likely been influenced by her review of news that recounted patient complaints of inadequate draping. The Crown has failed to rebut the very real likelihood of tainting.

[5465] Ms. J.K. also does not belong to any constituency that alleges that Dr. Sloka failed to articulate a rationale for the examinations. By the end of cross-examination, Ms. J.K. confirmed that Dr. Sloka had provided explanations for all the examinations proposed and that she consented after receiving those explanations. Ms. J.K. agreed that Dr. Sloka told her that he wanted to perform some basic neurological tests to ascertain whether her brain might be the cause of her symptoms. She also agreed that he told her that he wanted to listen to her heart, both while she was upright and laying down, to see whether her body position changed her heart rate. In addition, Ms. J.K. agreed it was possible that Dr. Sloka told her that that certain marks on the skin can be a sign of some neurological disorders which might explain her symptoms.

[5466] There is also negligible probative value in Ms. J.K.’s membership in the “gown opened at the front” constituency. Only a minority of patients, about one fifth, make this allegation. Patients with no memory would have a 50-50 chance of guessing that their gown was worn with the opening at the front. The incidence of patients making this claim falls far below the incidence that one would expect to arise from random chance. The similarity does not suggest a situation specific propensity. Instead, it suggests chance similarity amongst a subset of patients with poor memories. Also, there exists ample reason to be concerned that Ms. J.K. has conflated her attire during the tilt table test with her attire during her appointment.

[5467] I also find insufficient value in the evidence of other patients who allege that Dr. Sloka expressed a desire to examine their skin for moles. Untainted by any leading question, Ms. J.K. did not claim that Dr. Sloka expressed a desire to search for moles. Instead, she testified, “He explained to me that certain neurological conditions could result in specific skin characteristics but nothing more specific than that.” Only after the Crown specifically introduced the possible mention of moles did Ms. J.K. include the description what seemed like a generic inventory: ““So, the skin check was to check for any skin characteristic including moles, rashes, things of that nature.” Also, by the time Ms. J.K. began reading news reports about Dr. Sloka, news outlets had reported on patient claims that Dr. Sloka wanted to examine them for moles. The potential for tainting was significant. That potential was not rebutted by the Crown. If anything, it was exacerbated by a leading question.

[5468] I turn now to the evidence of Dr. Bril.

[5469] I place little weight on the evidence of Dr. Bril. Dr. Bril’s evidence regarding cardiac examinations is flawed and tainted by her own admitted lack of proficiency and experience in conducting cardiac examinations. Elsewhere in her evidence, Dr. Bril conceded that her opinion about the propriety of a cardiac examination was impacted by her reliance upon the anecdotal information provided to her by the head of her stroke clinic. As noted in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place little to no weight on her evidence about the propriety of cardiac examinations.

[5470] Moreover, while strongly insisting that Dr. Sloka ought not to have listened for the pace at which Ms. J.K.’s heart rate changed as she rose to a standing position, Dr. Bril acknowledged that she did not know whether the pace of change could be indicative of metabolic problems affecting thyroid, glucose, or cortisol levels.

[5471] Similarly, Dr. Bril acknowledged that it was beyond her experience to opine on whether auscultation of the heart might detect murmurs as the patient changes positions. And she did not know whether this information would be helpful. Meanwhile, she acknowledged that neurologists share POTS patients with cardiologists and took no issue with a cardiologist conducting a cardiac examination on Ms. J.K. The notion that it was appropriate for the cardiologist to listen to Ms. J.K.’s heart but unacceptable for Dr. Sloka to listen to those heart sounds for himself is untenable, particularly once the cardiologist identified a murmur. The perception of audible symptoms is inherently a subjective exercise. Surely, if it is proper for one treating physician to listen to the heart, it is proper for the other.

[5472] At its core, Dr. Bril’s objection to the cardiac examination seems rooted in her categorical and anecdotally informed stance that neurologists no longer do cardiac examinations. Her evidence about cardiac examinations as an adjunct to prescribing medication illustrates the point. Dr. Bril acknowledged that in some cases, it might be advisable to have a cardiologist examine the patient’s heart before prescribing some medications. Her belief that neurologists do not do cardiac examinations in these situations was influenced in part by her own lack of training, skill, and expertise in performing cardiac examinations. It was also obviously influenced by her anecdotal conversation with her stroke colleague.

[5473] Also, unlike Dr. Sloka, Dr. Bril lacked the requisite training to perform tilt-table tests. As I understand it, she considered tilt table tests to be within the province of cardiologists. Dr. Sloka obtained his training from a GRH cardiologist. Interestingly, Ms. Kella was referred to Dr. Sloka by her cardiologist, for the express purpose of conducting a tilt-table test. Dr. Sloka testified that, according to his training, a cardiac examination was a necessary safety precaution before the commencement of the tilt-table test. He also testified that he would conduct a cardiac examination in the preceding appointment, to ensure that it was safe to schedule the test. Dr. Bril was not qualified to challenge Dr. Sloka’s evidence about his training and subjective understanding about the utility of cardiac examinations done in furtherance of tilt-table tests.

[5474] I place no weight on Dr. Bril’s assertion that “we don’t do it [cardiac examinations] for POTS.”

[5475] Dr. Bril’s evidence regarding Ms. J.K.’s skin examination was also unimpressive. Dr. Bril was not aware of whether POTS had any skin manifestations. She was also unaware of whether other mimics of POTS might have skin manifestations. It is clear from Dr. Bril’s evidence that, even if a skin examination were warranted, she believed that a different physician ought to conduct it. As noted in the section devoted to the general assessment of Dr. Bril’s evidence, I place little to no weight on her categorical assertions about the propriety of neurologists conducting skin examinations. She also took that position without knowing anything about Dr. Sloka’s education, training, and experience in conducting skin examinations.

[5476] Dr. Sloka provided reasoned, logical, and coherent evidence about the justification for the examinations proposed, the order in which he conducted the examinations, and the method involved in each examination. Having considered his evidence in the context of the entirety of the evidence, I accept that Dr. Sloka possessed valid medical motives for conducting each of the examinations. I also accept that he conducted the examinations in accordance with his training. Given the presence of a valid motive and proper methodology, I conclude that the examinations were medical and not sexual in nature. Ms. J.K. consented to these examinations. She did not suffer a sexual assault. She received a medical examination. I will now explain this conclusion in more detail.

[5477] Dr. Sloka provided a rational basis for measuring Ms. J.K.’s vital signs at the outset of the examination. An accurate understanding of Ms. J.K.’s baseline vital signs was essential to formulating any POTS diagnosis. It would make no sense for Dr. Sloka to test Ms. J.K.’s vitals after asking her to participate in a kinetic examination that could affect both her heart rate and blood pressure. I therefore accept that, in accordance with his standard practice, Dr. Sloka would have taken Ms. J.K.’s vital signs at the outset of the examination.

[5478] Dr. Sloka provided several reasons for conducting a cardiac examination, all of which were logically sound. It is entirely reasonable for him to want to hear Ms. J.K.’s heart sounds for himself, particularly when the cardiologist had reported a murmur and particularly when he knew that the drugs he would prescribe could affect cardiovascular functioning. Moreover, as he understood it, the rate of change of Ms. J.K.’s heartbeat could provide evidence of a systemic problem. The Crown did not challenge this understanding. Additionally, he wanted to assure himself that a tilt table test would be safe for Ms. J.K. As the ordering physician, that seems an entirely appropriate stance to take. I note here that the cardiologist conducted a cardiac examination, even though Ms. J.K. had previously undergone echocardiograms. Dr. Bril did not criticize the cardiologist for this, and yet she criticized Dr. Sloka. I fail to seek how it is proper for the cardiologist to listen to the heart in these circumstances, but it was improper for Dr. Sloka to do the same.

[5479] In their criticism of Dr. Sloka’s cardiac examination, the Crown argues that Dr. Sloka did not profess to have an invariable practice of conducting cardiac examinations on patients who had lost consciousness. In my view, the Crown misreads the evidence. Dr. Sloka made it clear that in his testimony that he proposed a cardiac examination for anybody who reported a loss of consciousness. As can be seen in this trial, his patients did not always provide their full consent. His statement that he would “commonly do a cardiac examination in patients with loss of consciousness” is consistent with the reality that not every patient consented to his proposal. It does not amount to a concession that he did not always propose a cardiac examination for loss of consciousness patients.

[5480] The Crown also argued that a cardiac examination was unnecessary because he was already aware of Ms. J.K.’s Holter monitor results (which measures rhythm, not heart sounds), the results of the cardiologist’s cardiac examination, and the existence of past normal echocardiograms. Dr. Sloka provided a reasoned basis for conducting a cardiac examination before confirming his decision to prescribe Florinef. His evidence that Florinef had cardiac contraindications stood uncontradicted. He had been told by the cardiologist that Ms. J.K. had a mild heart murmur. It is entirely reasonable for the prescribing physician to want to hear those heart sounds for himself before prescribing the medication, to fully appreciate the baseline functioning of Ms. J.K.’s heart before he prescribed medication. It is also entirely reasonable to conduct follow up cardiac examinations to assess whether Ms. J.K.’s baseline cardiac function had been altered by the medication. Dr. Sloka also wanted to listen for any changes in Ms. J.K.’s cardiac condition since her visit with the cardiologist two months previously. He also wanted to listen for evidence of any systemic concerns revealed by the rate at which Ms. J.K.’s heart rate changed when standing upright. These were all rational grounds subjectively possessed by Dr. Sloka. None of those grounds were proven to be incorrect, false, or frivolous.

[5481] The Crown argues that Dr. Sloka’s disinterest in Ms. J.K.’s murmur was betrayed by his failure to record it in his own consultation letters. While Dr. Sloka could only speculate, he provided an explanation as to why he might not have heard her soft murmur. The Crown never challenged him on this explanation, nor did the Crown call evidence to challenge the medical basis for this explanation. I would add here that the cardiologist did not indicate that past echocardiograms revealed a heart murmur. Instead, all past echocardiograms were within normal limits. According to Dr. Bril, echocardiograms provide a more sensitive way to listen to the heart than auscultation. It would therefore appear that the cardiologist stood alone in detecting a heart murmur.

[5482] Dr. Sloka also provided logical medical reasons for conducting a skin examination. He testified that POTS can have skin manifestations. He also testified that some mimics have skin manifestations. The Crown never cross-examined Dr. Sloka on these claims, nor did it provide evidence capable of refuting these claims. I have no basis for concluding that Dr. Sloka’s subjective understanding was incorrect or contrived. As it happens, Dr. Sloka found a rash on Ms. J.K.’s leg, which he believed to be consistent with POTS. The rash was significant enough for Dr. Sloka to report it in the examination paragraph of his consultation letter. While low on the list of possible concerns, neurofibromatosis was also something Dr. Sloka considered. I see no harm in him keeping this condition in mind when examining Ms. J.K.’s skin. He did not rely upon it as the sole basis for a skin examination. Indeed, he acknowledged the improbability of neurofibromatosis playing a role in Ms. J.K.’s illness.

[5483] The Crown suggests that Dr. Sloka provided inconsistent evidence and thereby “injected uncertainty” into Ms. J.K.’s POTS diagnosis. According to the Crown’s argument, Ms. J.K. already satisfied the criteria for a POTS diagnosis before ever meeting with Dr. Sloka. Consequently, the Crown argues that there was no reason to conduct a skin examination. In furtherance of this argument, the Crown points to the cardiologist’s report of a 40-bpm increase in Ms. J.K.’s upon standing. The Crown contends that, according to the criteria Dr. Sloka listed in his evidence in-chief, Ms. J.K. met the POTS criteria. In my view, the Crown’s argument is both illogical and based on a misapprehension of the evidence. By the Crown’s logic, the entire referral was moot. Why refer Ms. J.K. to Dr. Sloka for a diagnosis if a diagnosis was already confirmed? The Crown’s submission ignores the fact that the cardiologist did not make a POTS diagnosis, only a “probable” one. The cardiologist did not mention whether Ms. J.K.’s heart rate increase was sustained, which is a necessary criterion. The cardiologist also made the referral for the expressed purpose of having Dr. Sloka perform a tilt table test and confirm any diagnosis. Additionally, the cardiologist explicitly refrained from prescribing medication to Ms. J.K. because a diagnosis had not yet been confirmed.

[5484] In connection with their argument that a POTS diagnosis had already been confirmed, the Crown contends that Dr. Sloka belatedly added the criterion of a sustained increase in heart rate to avoid being forced to admit that a POTS diagnosis was already confirmed. This submission is not only premised on a misapprehension about the existence of a POTS diagnosis, but it also misreads Dr. Sloka’s evidence in-chief, suggesting an inconsistency where none exists. Dr. Sloka consistently testified both in-chief and in cross-examination that a sustained increase in heart rate was required for the diagnosis.

[5485] Even at the conclusion of the first appointment, Dr. Sloka had yet to confirm a POTS diagnosis. While he stated in his consultation letter that her situation “sounds like” POTS, he also made it clear that he wanted to look for any “peripheral explanation” in addition to ordering a tilt-table test. To that end, he ordered MRIs, EMGs, and bloodwork. Dr. Sloka testified that he ordered the MRIs to ensure that there was no central nervous system explanation for her autonomic symptoms. He ordered EMG studies to ensure there was no global nerve problem causing her symptoms. He ordered bloodwork to rule out disorders like lupus, Sjogren’s disease, and diabetes, which can cause damage to the autonomic nervous system. The purpose behind the follow-up test aligned with his stated purpose in conducting the physical examinations.

[5486] The Crown also contends that Dr. Sloka provided inconsistent evidence on whether he conducted a skin examination, moving from a definitive admission of a skin examination to a tentative belief that he performed one. I see no inconsistency. Dr. Sloka consistently maintained that he did not have an independent memory of Ms. J.K.’s first appointment. Looking at his evidence, it seems to me that he consistently conceded doing a skin examination because of his standard approach to patients with suspected POTS, because of the mention of the discovery of a rash in the examination portion of his consultation letter, and because Ms. J.K. had claimed he conducted one. He never professed to be certain because he always professed to have no memory.

[5487] The Crown also asks that I conclude from an obvious dictation error that Dr. Sloka’s charting practices were unreliable. Accordingly, they argue that neither the court nor Dr. Sloka ought to place reliance upon the contents of Dr. Sloka’s consultation reports. In the case of Ms. J.K., the Crown points to the fact that Dr. Sloka wrote in Ms. J.K.’s history that she experienced “no loss of consciousness” immediately after recording that she reported losing consciousness after standing for more than 15 minutes. Dr. Sloka appeared to recognize the dictation error for what it was and testified he did not know why he wrote that. The Crown chose not to cross-examine him on this point. In my view, the error is as trifling as it is obvious. It does not detract from the overall reliability of Dr. Sloka’s consultation letters, nor from the reliability of his evidence about Ms. J.K..

[5488] I want to make one additional observation about Dr. Sloka’s evidence and his consultation letters. According to Dr. Sloka, he continued to conduct cardiac examinations at various follow up appointments, to assess the possible impact of the medication he had prescribed. His consultation letters provide powerful evidence that this occurred. The Crown never challenged Dr. Sloka’s evidence on this point. His standard cardiac examinations involve the patient wearing a gown, with the opening at the back, and exposing her left breast by pulling down the left front of the gown. Dr. Sloka monitored Ms. J.K. for three years following her positive tilt table test. Yet these cardiac examinations were entirely forgettable events for Ms. J.K. On the Crown theory, Dr. Sloka was a serial predator with a penchant for cupping exposed breasts. Ms. J.K. made no such allegation. She made no complaint whatsoever about her cardiac examinations. She did not even remember them. The Crown also makes no complaint about these other cardiac examinations. As I understand the Crown theory regarding Ms. J.K., only the examinations from the first appointment – the skin examination in particular – constitute a sexual assault. When one takes a step back and looks at the entire arc of Ms. J.K.’s treatment history, it becomes obvious that Dr. Sloka’s motives were medical, not sexual.

[5489] Having considered all the evidence and considered the Crown’s submissions, I see no basis for rejecting Dr. Sloka’s stated rationales for conducting the examinations, his evidence about the order of the examinations, or his evidence about his methodology.

[5490] In my view, the evidence establishes that Dr. Sloka conducted medially motivated examinations in conformance with his standard methodology. I see no basis for concluding that the medical examinations constituted sexual activity. On the contrary, I conclude that Dr. Sloka conducted medical examinations with Ms. J.K.’s express consent.

[5491] Dr. Sloka will be acquitted on this count.

ii. I.R. (Count 44)

A Summary of Ms. I.R.’s Complaint and Dr. Sloka’s Response to It

[5492] Ms. I.R.’s complaint is difficult to succinctly encapsulate because it contained considerable variation throughout her testimony. Briefly stated, she presented with headaches and various other symptoms. She saw Dr. Sloka a total of six times. The most extreme version of her complaint included the allegation that Dr. Sloka conducted a skin examination at every appointment and the allegation that Dr. Sloka conducted a pelvic examination on at least five occasions and possibly all six. She also alleged that Dr. Sloka took a vaginal swab during each pelvic examination.

[5493] Dr. Sloka admitted to only two skin examinations and at least one, possibly two pelvic examinations. He also admitted to taking a vaginal swab. Ms. I.R. presented with a multitude of symptoms in addition to her persistent headaches, which were concerning because they got worse when she laid down. Her symptoms involved her breathing, her appetite, joint pain, inguinal lymph node swelling, pelvic pain, vaginal discharge, dizziness, tingling in her hands, and rashes. She had also travelled to Africa, gotten a tattoo there and been exposed to mosquito bites there. Dr. Sloka testified that he conducted skin examinations at the first two appointments to look for evidence of skin manifestations of illnesses that might provide a single explanation for her panoply of symptoms. Dr. Sloka testified that he conducted a pelvic examination at Ms. I.R.’s second appointment, because Ms. I.R. had reported changes in her menstrual cycle, pelvic pain, and vaginal discharge. He was investigating various possible causes, some of which might explain her swollen glands and headaches. When some of her pelvic symptoms persisted, he took a pelvic swab at her fifth appointment and may have conducted a second pelvic examination. Having failed to resolve Ms. I.R.’s pelvic symptoms, he then referred her to a gynecologist.

The Circumstances of Ms. I.R.’s Referral and Treatment History

[5494] Ms. I.R. was 20 years old and attending the University of Waterloo at the time of her referral. A doctor at the university Health Services Clinic referred her to Dr. Sloka because she had been enduring headaches, and the headaches had been significantly interfering with her daily life. During the course of her treatment, she reported a variety of other physical symptoms. She saw Dr. Sloka a total of six times. Dr. Sloka also referred her to a gynecologist who took over treatment of her pelvic issues.

The Evidence of Ms. I.R.

[5495] It is difficult to summarize a witness whose evidence varied as much as Ms. I.R.’s. Factual positions changed during her evidence in-chief and later in cross-examination. To facilitate an appreciation of the changing iterations of Ms. I.R.’s evidence, it is best to summarize her evidence in a strict chronological sequence.

Ms. I.R.’s Evidence In-Chief

[5496] With the aid of her medical records, Ms. I.R. agreed that she attended six appointments over nine months with Dr. Sloka, the first of which occurred on August 18, 2014.

[5497] In-chief, Ms. I.R. testified that she attended her first appointment with her mother. She explained that she had never been to a neurologist before, her headaches were affecting her life significantly, she considered it an extraordinary circumstance, and she was scared. Her evidence later changed.

[5498] With the assistance of Dr. Sloka’s consultation letter and his rough notes, Ms. I.R. recalled talking to Dr. Sloka in his office about her history. They spoke for about twenty minutes. She talked about her headaches, their frequency, and about how her efforts to address them were not working. She discussed other concerns too, like breathing difficulties, heart palpitations, dizziness, light-headedness, early satiety, joint pains, and numbness in her hands. She also discussed experiencing pain during intercourse and menstrual pain – these subjects were not discussed in her mother’s presence, an assertion which cast doubt on her mother’s presence at the first appointment. Ms. I.R. testified that Dr. Sloka was exploring a hormonal connection to her headaches. Ms. I.R. believed that she had stopped taking her birth control pill because of her headaches. Ms. I.R. also reported her travel to West Africa in the previous year, where she had been bitten by mosquitos and obtained a tattoo.

[5499] Ms. I.R. testified that Dr. Sloka then told her that he wanted to take a look at her in the examination room. She did not recall him providing any details about the nature of the examination or what he would be looking for. When asked if there was a discussion in Dr. Sloka’s office about her skin, she testified that she could not recall any discussions about her skin in the office at this first appointment. Subsequently, she stated, “Yes, I recall him asking me if I had any moles that changed,” but she was not sure if that occurred inside his office or in the examination room. Then, after the Crown used her CPSO statement to refresh her memory, she testified, “He did not ask me questions about moles on the first examination.” She testified that she assumed he would be looking into her eyes, checking her gait, doing neurological tests like her family doctor would have done in the past.

[5500] Later in her examination in-chief, Ms. I.R. testified that she was not sure whether Dr. Sloka explained it at her first appointment, but at some juncture he told her that he was looking for marks on her skin. Then she added, “That’s how I understood it, changes in moles, rashes, tic bites.” She was not sure whether Dr. Sloka told her those things, but she was able to deduce what a neurologist would be looking for on her skin. After being cautioned about speculation, she added, “I don’t remember a reason being provided to me.”

[5501] Despite what was written in Dr. Sloka’s consultation letter, she did not remember discussing rashes on her chest or arms.

[5502] According to Ms. I.R., after the discussion in the office, Dr. Sloka opened the door to the examination room and asked her to remove her clothes and put on a gown. She believed that he wanted her to remove every article of clothing. He instructed her to wear the gown with the opening at the back. He then gave her privacy to change.

[5503] After Ms. I.R. gowned as instructed, she sat on the examination table. Afterwards, Dr. Sloka re-entered the examination room.

[5504] Ms. I.R. recalled Dr. Sloka shining a light into her eyes, performing a strength test on her arms, and observing her gait – all features of Dr. Sloka’s standard neurological examination. She also remembered Dr. Sloka listening to her heart and listening to her breathing with a stethoscope. Ms. I.R. laid down on the table while Dr. Sloka listened to her heart and abdomen. She pulled up her gown to enable the auscultation of her abdomen with the stethoscope. Her shoulders remained covered, but the rest of her body was exposed. Then she pulled down the shoulders of the gown to enable the auscultation of her heart.

[5505] Ms. I.R. also remembered sitting on the table while Dr. Sloka used the stethoscope to examine her breathing. He placed the stethoscope on her chest and her back.

[5506] Ms. I.R. testified that she recalled Dr. Sloka seeking explicit consent before proceeding to each step of the examination. Every time he touched her, he sought permission, which surprised her, because she did not remember this occurring with other doctors.

[5507] Ms. I.R. also believed that Dr. Sloka examined her skin at the first appointment, but stated she was not sure of this. Then she stated definitively that a skin examination occurred at the first appointment. Then she testified that Dr. Sloka examined her skin three, four, or five times. She said it was a normal occurrence at her appointments. She would not be surprised if it happened at every appointment. Then she said skin examinations occurred more than once and may have occurred at every appointment.

[5508] Ms. I.R. also testified that she wore a gown at every appointment. She also testified that each time she was completely naked beneath the gown, just as Dr. Sloka instructed.

[5509] Ms. I.R. testified that she did not remember what Dr. Sloka said about how much of her skin he needed to look at. She said that she could only remember Dr. Sloka instructing her to stand in front of the window. She also did not recall Dr. Sloka providing any instructions to her about her gown during the skin examinations.

[5510] After the Crown used her CPSO statement to refresh her memory, Ms. I.R. testified that Dr. Sloka told her that he needed to look at all her skin.

[5511] Immediately afterwards, the Crown asked, “And yesterday I believe you said you did not recall what reason if any you were given by Dr. Sloka for why he was looking at your skin…. I know you’ve just taken a look at your transcript. Do you have a memory of any reasons that he provided?” Ms. I.R. then testified that Dr. Sloka told her that he wanted to look for “marks on the skin.” She added that, “At subsequent skin examinations, he would say that he as looking for changes in any marks.”

[5512] Both before and after the Crown refreshed her memory, Ms. I.R. largely spoke in generalities about her skin examinations. In doing so, she was prone to making inferences and presenting them as actual memories. She was cautioned from time to time to confine her testimony to actual memories.

[5513] Speaking in general terms, Ms. I.R. testified that Dr. Sloka performed the skin examinations in the same manner on each occasion. The salient features of the examinations included the following:

(1) Dr. Sloka asked her to stand in middle of room, in front of the window.

(2) At his instruction, she removed her gown and stood with her arms out.

(3) Dr. Sloka then too a close look at the skin on her extremities, front, and back.

(4) Dr. Sloka moved behind her to look at her back side.

(5) Dr. Sloka would get uncomfortably close to her skin but did not touch her.

(6) Dr. Sloka crouched while looking at her lower extremities.

(7) Dr. Sloka would point to different marks or spots with a pen in his hand and ask if she had noticed any changes.

(8) At one point, after a few appointments had passed, she had obtained another tattoo on her back and Dr. Sloka asked about it. This occurred on about the third or fourth appointment.

(9) She recalled Dr. Sloka asking about a mole on her right hip and whether she had noticed any changes in it.

(10) Dr. Sloka never made any suggestions for testing or follow-up related to the skin examination.

[5514] After describing the skin examinations in general terms, Ms. I.R. then testified that the skin examinations occurred at every appointment, stating that there was no appointment on which they did not occur.

[5515] Ms. I.R. testified that she felt uncomfortable and vulnerable during the skin examinations, but she consented to the examinations because she felt there must be a medical reason for them.

[5516] The Crown then asked Ms. I.R. if she understood the reason Dr. Sloka was performing the skin examinations. Ms. I.R.’s initial answer was vague and did not attribute any specific assertions to Dr. Sloka: “I had a very basic understanding, like looking for changes in marks on my skin or moles would make sense to me but I did not understand why they were being performed at every appointment so frequently within those nine months.” In providing this answer, Ms. I.R. appeared to retreat from her earlier suggestion that Dr. Sloka had specifically told her what he was looking for.

[5517] Ms. I.R. then testified that she did her own research into the neurological utility of skin examinations online. From what she read online, she came to understand, “that there were certain marks or moles that could be indicative – or tick marks, tick bites – that could be indicative of neurological problems but I – I didn’t – I did my research once I really started to get uncomfortable and was like I don’t know why this keeps happening and so at that point is when I googled it.” This passage is significant for four reasons. It situates her research during the timeframe of her treatment. Additionally, it suggests she performed research because Dr. Sloka had yet to provide her with any explanation about the purpose of the skin examinations. It also suggests she gleaned from her research, independent of anything Dr. Sloka may have told her, that moles were pertinent to a neurological skin examination. Lastly, it ties her research to the allegedly constant occurrence of skin examinations, an allegation from which she later retreated. Ms. I.R. testified that her research made her more concerned about the skin examinations. After conducting her research, she understood there to be some clinical significance to the skin examinations but, she “just didn’t see why it had to happen every time.”

[5518] Moving from the general back to the particular, Ms. I.R. testified about what happened next after Dr. Sloka allegedly concluded his skin examination at the first appointment. She testified that Dr. Sloka departed the room to give her privacy to get back into her street clothes. After she changed, she joined Dr. Sloka in his office for a discussion.

[5519] Dr. Sloka discussed with Ms. I.R. the various tests he planned to order. She remembered being scared by the fact that Dr. Sloka had arranged such an expedient MRI. However, Dr. Sloka was very reassuring. She felt comforted and relieved that someone was taking her medical issue seriously.

[5520] The Crown then introduced the topic of pelvic examinations, which Ms. I.R. had not yet connected to her first appointment. Ms. I.R. then reiterated that she remembered reporting to Dr. Sloka her experience of pelvic pain and pain during intercourse. She wondered whether this pain might be connected to cervical cancer and her headaches. She did not remember how this topic arose in her discussions with Dr. Sloka. She then alleged that her first pelvic examination occurred at the very same appointment in which she first discussed her pelvic pain – a topic discussed at her first appointment. In the next breath, she testified that she was not sure if a pelvic examination occurred at the first appointment. Then she testified that, from what she remembered, the pelvic examinations began at her second appointment.

[5521] According to Ms. I.R., whenever her skin and pelvic examinations began, they occurred at every appointment thereafter. In her recollection, the skin examination preceded the pelvic examination, which was the final examination of any given appointment.

[5522] Ms. I.R. testified that Dr. Sloka would take swabs during each pelvic examination. He eventually referred her to a gynecologist because a swab tested “positive for something.”

[5523] Ms. I.R. testified that during the first pelvic examination, Dr. Sloka made mention of finding vaginal discharge, noting it looked like cottage cheese and that it was indicative of a yeast infection. He showed her discharge at the subsequent examinations too. After a subsequent pelvic examination, he prescribed her medication for a yeast infection.

[5524] Ms. I.R. testified that Dr. Sloka performed the pelvic examinations in the same manner on every occasion. For the examinations, she lay on her back, with knees up, feet flat on the examination table, and with her pelvis facing in the direction of the window. There were no stirrups. He placed two fingers from one hand inside her vaginal canal while applying pressure from the outside with fingers from the opposite hand. On one occasion, he pointed out the location of her ovary and asked if she could feel it. On every occasion, he asked if she felt pain as he palpated.

[5525] Ms. I.R. testified that she thought that Dr. Sloka might be searching for a tumour. She testified that she believed that headaches could be a side effect of cervical cancer, ovarian cancer. She did not suggest Dr. Sloka told her this. She did not remember what Dr. Sloka said about the rationale for the pelvic examinations.

[5526] According to Ms. I.R., she initially agreed to the examinations because she assumed that they were a normal medical procedure. However, as the examinations continued, she purportedly grew more uncomfortable and questioned medical necessity of having a pelvic examination at every appointment. She claimed to think that these repetitive examinations were not providing any answers.

[5527] Due to her purported concern about the constant pelvic examinations, Ms. I.R. allegedly performed a google search about pelvic examinations while still in Dr. Sloka’s care. Unlike her research on skin examinations, she was unable to find any plausible explanation for the pelvic examinations.

[5528] Ms. I.R. testified that once Dr. Sloka referred her to the gynecologist (Dr. Frank), she felt reassured that Dr. Sloka’s examinations must have been necessary. Dr. Sloka’s vaginal swab had produced a positive result for something, which played a role in the decision to refer her to Dr. Frank.

[5529] When meeting with Dr. Frank, she reviewed her medical history with him. In the process, she spoke about receiving pelvic examinations from Dr. Sloka. According to Ms. I.R., Dr. Frank questioned a neurologist performing pelvic examinations (Dr. Frank was never called as a witness). Ms. I.R. allegedly panicked. She purportedly began to consider the possibility that she had been sexually abused. She was aware that another physician would have the obligation to report any sexual abuse. However, she “brushed it over.” She did not want to admit the possibility that she had been abused, and she did not want to ruin a doctor’s life unless she was 100% sure.

[5530] Ms. I.R. testified that she did not believe she saw her family doctor while she was Dr. Sloka’s patient. Her family doctor was very hard to get a hold of.

[5531] Ms. I.R. testified that she stopped seeing Dr. Sloka because Dr. Sloka failed to find an explanation for her headaches. She also figured that, if her hormones and menstrual cycle were the root cause of her headaches, her gynecologist could provide the necessary assistance. She cancelled her next appointment after seeing Dr. Frank.

[5532] Eventually, Ms. I.R. obtained a referral to another gynecologist closer to home, in Brampton. Her family doctor facilitated this referral. In time, she found a resolution to her pelvic issues.

[5533] Ms. I.R. never discovered the cause of her headaches. She testified that they dissipated for a time, but she was experiencing them during the trial.

[5534] On July 11, 2018, Ms. I.R. received an email (Exhibit 130) from a work colleague which informed her that the CPSO was investigating Dr. Sloka in response to patient complaints about sexual abuse. In the email, her colleague told Ms. I.R. that three of Dr. Sloka’s patients had lodged complaints against him. Her colleague was also a patient of Dr. Sloka’s. Her colleague told her that the CPSO required Dr. Sloka to be accompanied by a chaperone when meeting with patients. The email contained a link to the CPSO publication of the patient complaints. Her colleague also sent her a CTV article. After reading this CTV article, Ms. I.R. looked up the CPSO publications about their investigation.

[5535] After reading the CPSO publication, she felt awful. The publication referred to the complaints of three patients. She felt that the allegations were similar to what she had experienced. She felt guilty for not complaining about her own experience. She also testified that the other complaints confirmed for her that her own examinations were inappropriate. With her concerns verified, she felt that she had a duty to report her own complaint.

[5536] Ms. I.R. testified that she called the CPSO the day after receiving the email from her work colleague. After not receiving a response, she contacted them again on July 23, 2018. They called back the same day.

[5537] Ms. I.R. testified that she had harboured concern about her examinations over the years. However, she purportedly felt scared to say anything about her intuition that the examinations had been improper. She testified that her mindset changed after she read the publications of the complaints of other patients.

[5538] Ms. I.R. attended for an interview with the CPSO on August 1, 2018. She had not reviewed her medical records before attending for her interview. She did, however, read various media articles about Dr. Sloka prior to attending for her interview. She listed those articles in an email to the CPSO (Exhibit 130). She had also read the CPSO summary of the allegations against Dr. Sloka before attending for her interview.

[5539] Ms. I.R. testified that, when she came forward, it was “a very vague situation for me to a certain extent because I hadn’t discussed it with anybody, so I hadn’t received any kind of confirmation about whether my intuition was correct or whether what I believed happened to me was a reality.”

Ms. I.R.’s Evidence in Cross-Examination

[5540] During cross-examination, the defence elicited several noteworthy concessions and revealed several material contradictions. I will summarize the evidence in the following categories: Dr. Sloka’s approach to her treatment and to her generally; the chronology and frequency of her various examinations and swabs; a summary of some salient facts from each appointment; and Ms. I.R.’s vague memory and the tainting effect of exposure to media and CPSO publications.

[5541] I begin with general concessions made by Ms. I.R. about Dr. Sloka’s approach to her care.

[5542] As noted already, Ms. I.R. testified in chief that Dr. Sloka sought explicit consent for her examinations and sought consent every time he touched her, touching base with her as the examinations progressed. In cross-examination, she agreed that Dr. Sloka may have given detailed explanations for all the examinations he proposed. In particular, she remembered Dr. Sloka telling her at the second appointment that he wanted to conduct a pelvic examination to rule out the possibility of pelvic inflammatory disease or some other concern.

[5543] Ms. I.R. admitted that she was inherently uncomfortable with the notion of a male doctor performing intimate examinations upon her. Before Dr. Sloka, she had never worn a medical gown, and no one had ever examined her vagina. Dr. Frank was a male doctor, too. After a time, she switched to a female gynecologist closer to her hometown, which made her more comfortable.

[5544] Nevertheless, Ms. I.R. testified that she had confidence in Dr. Sloka’s care because he was attentive to her health issues, treated them with urgency, and listened to her patiently. He allowed her to air all her health concerns. She appreciated this. He established her trust from the outset. Ms. I.R. described Dr. Sloka as calm and professional. His approach was constant, whether in the office or in the examination room.

[5545] Ms. I.R. also made it explicitly clear in cross-examination that she consented to each and every examination, precisely because she had confidence in his expertise. This concession conflicted with her subsequent assertion that she did not know she could say no to any examination, which implied at least the potential that she did not subjectively consent. Any suggestion that she did not subjectively consent seemed at odds with her evidence in-chief that Dr. Sloka asked for and obtained her consent each and every time he touched her. The claim that she did not know she could say no appeared to be a disingenuous attempt to retreat from multiple concessions that she consented to all the examinations.

[5546] Ms. I.R. did not allege any conduct that she immediately recognized as overtly and obviously inappropriate. While she stated that Dr. Sloka positioned himself closely to her for the skin examinations, which made her uncomfortable, she understood that it would be difficult to see anything if he moved further back. Apart from the skin examination, she was adequately draped for all other examinations. She agreed that during her inguinal lymph node examination at the second appointment, Dr. Sloka requested she moved her gown only to the degree necessary to palpate her lymph nodes, nothing more. For the pelvic examinations, she was draped in a manner that avoided unnecessary exposure of any other parts of her body.

[5547] I turn now to Ms. I.R.’s evidence regarding the chronology of her examinations and swabs.

[5548] In-chief, Ms. I.R. had tied her mother’s only attendance to the first appointment, the appointment at which she alleged Dr. Sloka performed neurological, cardiac/respiratory, and skin examinations – and possibly a pelvic examination. She explained that her mother came with her because she was scared to attend the first appointment alone. In cross-examination Ms. I.R. agreed that her mother may have accompanied her to the second appointment, not the first appointment, as documented in Dr. Sloka’s consultation letter for the second appointment. She confirmed that her mother only attended one appointment with her, and this occurred near the beginning of her care.

[5549] Ms. I.R.’s evidence on the timing of her abdominal examination changed during cross-examination. She agreed that this examination occurred at her fourth appointment, as Dr. Sloka had reported in his consultation letter. His consultation letter indicated that she had tested positive for Murphy’s sign, which Dr. Sloka explained indicates an inflamed gallbladder.

[5550] When first questioned about it in cross-examination, Ms. I.R. testified that she was sure that Dr. Sloka conducted a skin examination at her first appointment and every appointment thereafter. She initially rejected the proposition that Dr. Sloka only performed two skin examinations. Defence counsel then took Ms. I.R. through each of Dr. Sloka’s consultation letters. One by one, Ms. I.R. agreed that Dr. Sloka may not have conducted a skin examination at any appointment after the second appointment. She was ultimately only able to recall the two skin examinations claimed by Dr. Sloka.

[5551] Despite the inability to recall a skin examination after the second appointment, Ms. I.R. alleged that Dr. Sloka saw a new tattoo during a skin examination, which she had obtained after her second appointment. This claim was problematic. Between her second and third appointment, Ms. I.R. had gotten a new tattoo on her upper back between her shoulder blades. She denied, however, that Dr. Sloka saw this tattoo when conducting a respiratory examination. She insisted he saw it and commented on it during a skin examination. However, she did not have this tattoo at her first two appointments and was ultimately unable to recall any skin examination occurring at the third, fourth, fifth, or sixth appointments.

[5552] Ms. I.R.’s evidence about the frequency of her pelvic examinations changed in cross-examination. Contrary to her evidence in-chief, Ms. I.R. acknowledged in cross-examination that she told CPSO investigators that Dr. Sloka conducted a minimum of two and a maximum of four pelvic examinations. In an effort to explain the contradiction, Ms. I.R. stated that she had been under the misapprehension that she had only attended a total of three or four appointments with Dr. Sloka. Further questioning revealed that she told CPSO investigators that she had attended five appointments with Dr. Sloka. She acknowledged that she could have been wrong when she told CPSO investigators and the court that, once pelvic examinations started, they occurred at every appointment thereafter. She said that, when speaking to investigators, she was intimidated and thinking twice about everything she said. Ms. I.R. acknowledged that it was possible that she only received two pelvic examinations, but that number did not seem right to her. She inferred than any mention of vaginal discharge in Dr. Sloka’s consultation records indicated that a pelvic examination occurred, because she dubiously alleged that she only ever noticed her own discharge when Dr. Sloka performed pelvic examinations.

[5553] Cross-examination also revealed difficulties with Ms. I.R.’s evidence regarding the frequency of her vaginal swabs. Initially, she confirmed her position that swabs occurred during every pelvic examination. She disagreed with the suggestion that Dr. Sloka only took one swab. Then counsel took her to her CPSO statement. In her CPSO statement, she told investigators, “Um, I don’t recall if Dr. Sloka took swabs…. Um, I think he did.” She went on to tell investigators that she did not recall if swabs were ever taken because she did not remember getting any results from any specimen Dr. Sloka may have sent for testing. In response to the contradiction between her statement and trial testimony, Ms. I.R. stated that her trial testimony was more accurate, because she had been answering the investigator’s questions on the spot. Since then, she had the time to think about her appointments in more detail. When the Crown had been refreshing her memory with her statement, Ms. I.R. testified that her memory was better at the time of providing her statement than it was at trial. Ms. I.R. qualified that claim during cross-examination.

[5554] Later in cross-examination, having progressed through some of Dr. Sloka’s consultation letters, Ms. I.R. conceded that Dr. Sloka may have only taken one swab. She landed on the firm belief that one swab was taken, because that swab led to the referral to Dr. Frank. She expressed uncertainty about there being any more.

[5555] In-chief, Ms. I.R. had testified that the results of a vaginal swab had led to her referral to Dr. Frank. Dr. Sloka’s office called her to inform her that the swab had tested positive for something, but she did not know the details and never received the actual results. In cross-examination, counsel demonstrated that the referral occurred on the same day as the swab. The swab results were negative. The consultation letter and the referral both indicated that Dr. Sloka referred Ms. I.R. to Dr. Frank because medication failed to mitigate the discharge. Presented with this information, Ms. I.R. agreed that the swab could not have led to the referral.

[5556] In-chief, Ms. I.R. testified that she did not return to Dr. Sloka after going to Dr. Frank. However, Dr. Sloka’s medical chart revealed that she did in fact return to see Dr. Sloka after her first appointment with Dr. Frank.

[5557] I want to now turn focus attention on the cross-examination regarding Ms. I.R.’s first visit, which occurred on August 18, 2014.

[5558] Ms. I.R. confirmed that the entirety of the history reported in Dr. Sloka’s consultation letter was essentially correct. Ms. I.R.’s medical history was significant for headaches in the preceding eleven weeks, shortness of breath, travel to West Africa (where she was bitten by mosquitos, exposed to people with tuberculosis and malaria, and received a tattoo); early satiety, joint pain; rashes on her chest and arms; dizziness and light-headedness.

[5559] Ms. I.R. agreed it was possible that Dr. Sloka identified and explained the rationale for neurological, cardiac, respiratory, and skin examinations. Specifically, she agreed it was possible that he said he wanted to conduct some basic neurological exams to see if there was a connection between her brain and her symptoms. She agreed it was possible that he told her that he wanted to conduct a cardiac examination to see if there was a connection between her heart and her symptoms. She also agreed it was possible that he told her he wanted to conduct a respiratory examination. Regrading the skin examination, she agreed it was possible that Dr. Sloka told her that he wanted to look for evidence of disease on her skin. In that same vein, she agreed it was possible that he explained that, due to her travel history and rashes, he wanted to explore the possibility of infection by doing a skin examination. She also agreed that it was possible that Dr. Sloka informed her that a skin examination would involve all her skin.

[5560] As instructed, she wore the gown opened at the back, but she still felt exposed. She had never worn a hospital gown before.

[5561] Ms. I.R. agreed that it was possible that Dr. Sloka assessed her blood pressure at pulse at the outset of the examination, both while laying down and upright. She also agreed that a neurological examination followed, though she could not remember many components of it.

[5562] Ms. I.R. agreed that Dr. Sloka next used the stethoscope. Here, she agreed it was possible that he listened to her back and asked her to breath in and out.

[5563] For the cardiac examination, Ms. I.R. agreed that Dr. Sloka asked her to lower only the left side of her gown to expose her left breast. After she lowered the gown, he listened with the stethoscope on that side of her chest. She specifically remembered Dr. Sloka confirming her comfort level with her as he listened to her heart, checking in with her to make sure that she was okay. She confirmed she was okay.

[5564] Regarding the skin examination, Ms. I.R. denied the suggestion that Dr. Sloka only asked her to reveal small portions of her body in a piecemeal fashion.

[5565] Following the examination, Dr. Sloka spoke to her in his office. I need not summarize the entirety of the discussions here. I will note, though, that Ms. I.R. confirmed that Dr. Sloka believed that her headaches were most likely migraines; however, he had concern about the headaches being worse when she lay down. He ordered an MRI, Holter monitor, EMG studies of her hands, bloodwork, pulmonary function testing, and a chest x-ray. He also ordered bloodwork.

[5566] Following the first appointment, Ms. I.R. went to an urgent care clinic because she had a lump in her groin, which was painful. On examination, she learned that she had swollen lymph nodes in her groin (her inguinal area). The clinic ordered a pelvic ultrasound. Ms. I.R. was not sure if these swollen lymph nodes might relate to her headaches, so she had the ultrasound sent to Dr. Sloka’s office.

[5567] Ms. I.R. did not have her pelvic ultrasound results sent to her family doctor because she had trouble making appointments with her family doctor. She had been trying to make an appointment with her family doctor, but the waitlist was extraordinarily long. She would have to wait a year for a checkup. It had been a couple years since she had seen her family doctor. She did not consider him a realistic treatment option. She decided to speak about her pelvic issue with Dr. Sloka at her second appointment for several reasons. She would be seeing Dr. Sloka anyway. Also, she was scared that all her symptoms might be connected. Additionally, she appreciated Dr. Sloka’s holistic approach to her care. She wanted Dr. Sloka’s opinion about whether her groin issues were related to her headaches. It was her priority to provide to Dr. Sloka any information that might enable him to “get to the bottom of” her headaches.

[5568] I now arrive at a discussion of Ms. I.R.’s evidence concerning her second appointment, which occurred on October 7, 2014.

[5569] She agreed that it was this visit in which her mother attended, not the first visit.

[5570] Ms. I.R. agreed that she and Dr. Sloka discussed her test results, her continuing headaches, her continuing night sweats, the ineffectiveness of her topiramate prescription, and her recent inguinal lymph node swelling and resulting ultrasound. Ms. I.R. denied, however, that she told Dr. Sloka that she had noticed vaginal discharge. She also denied he prescribed her medication to treat that discharge.

[5571] Having been reminded by counsel of her pelvic ultrasound, Ms. I.R. then remembered that her first pelvic examination occurred on the second visit, not on the first appointment, as she had tentatively suggested in her evidence in-chief.

[5572] Ms. I.R. agreed that Dr. Sloka proposed the pelvic examination to assess her for possible pelvic inflammatory disease or some other concern.

[5573] Ms. I.R. also agreed it was possible that Dr. Sloka offered to conduct a complete lymph node examination, but she could not remember.

[5574] When prompted, Ms. I.R. remembered telling Dr. Sloka that her chest circumference had increased. She agreed that Dr. Sloka told her that this increase could be connected to a pulmonary change – she had reported breathing difficulties at the first appointment. Dr. Sloka was concerned that she might have asthma. Consequently, he proposed another respiratory and cardiac examination.

[5575] Regarding the pelvic examination, Ms. I.R. agreed it was possible that Dr. Sloka told ahead of time about the methodology of the pelvic examination. She also could not remember but could not dispute that he said he would be inserting fingers into her vagina to feel in the area of her ovaries and feel for masses.

[5576] Ms. I.R. testified that was prepared to agree to any exam if it would help give her some answers. Whatever examinations Dr. Sloka proposed, she consented to them.

[5577] Ms. I.R. also agreed that if Dr. Sloka had inquired about any further rashes, she would have reported any.

[5578] After the in-office consultation, Ms. I.R. went into the examination room. She put on her gown in the usual fashion, with the opening at the back.

[5579] Ms. I.R. agreed that the cardiac/respiratory examination was conducted in the same manner as at the first appointment.

[5580] Ms. I.R. agreed that Dr. Sloka may have next conducted a general lymph node examination, but she had no specific recollection of him palpating lymph nodes all over her body – for example, at her neck and in her armpits.

[5581] Ms. I.R. agreed that a skin examination occurred after the cardiac/respiratory examination and before the pelvic examination.

[5582] Ms. I.R. specifically remembered Dr. Sloka palpating her inguinal area. However, she did not remember whether this occurred during a general lymph node examination or as part of the pelvic examination. In either case, he wore gloves for the examination, and she lay on the table with her pelvis facing the window.

[5583] Ms. I.R. agreed that, when Dr. Sloka palpated her inguinal area, it was possible that he asked her to expose only one side at a time while the rest of her remained covered.

[5584] Dr. Sloka next performed her pelvic examination. As he palpated, he asked her if she felt any pain. She did feel pain, and she told him so.

[5585] When he removed his fingers, he looked at the discharge on them. He then told her that the discharge, which looked like cottage cheese, was evidence of a yeast infection. Ms. I.R. testified that she had never seen this discharge before.

[5586] Ms. I.R. agreed that she did not remember Dr. Sloka using a swab on this occasion.

[5587] At the conclusion of the examinations, Dr. Sloka returned to his office. Ms. I.R. joined him and her mother after she got dressed.

[5588] Dr. Sloka discussed his findings from his examinations. Ms. I.R. remembered Dr. Sloka telling her that he wanted to do additional pulmonary function tests. She also agreed that Dr. Sloka ordered an ultrasound of her neck, but she could not remember him telling her that he found swollen lymph nodes in her neck. Dr. Sloka also prescribed medication for yeast infection and ordered more bloodwork. Additionally, Dr. Sloka weaned her off topiramate and started her on sibelium in an attempt to treat her headaches.

[5589] I turn now to Ms. I.R.’s third appointment, which occurred on January 7, 2017.

[5590] Ms. I.R. had very little memory about her third appointment. She agreed that she was still suffering from headaches but had improved a little. She also agreed that her lymph node ultrasound did not reveal anything concerning. In addition, she agreed that she reported some right jaw pain and wondered whether this pain could be connected to her swollen lymph nodes and headaches. Also, her pulmonary tests suggested that her asthma had returned. Ms. I.R. also agreed that she told Dr. Sloka that her menstrual cycles continued to be somewhat irregular. After noting Ms. I.R.’s report of irregular cycles, Dr. Sloka’s consultation letter reported, “She’s had unusual discharge again treated in December OTC, and she has this again today.” Ms. I.R. strongly disagreed that she ever took over-the-counter medication (OTC) to treat a yeast infection. She also adamantly asserted that she only ever saw her own vaginal discharge when Dr. Sloka showed it to her during a pelvic examination. She denied seeing it independently. On her evidence, the discharge accumulated inside her vaginal cavity and never left her body except when Dr. Sloka showed her the discharge on his fingers.

[5591] Ms. I.R. agreed that Dr. Sloka proposed, and she consented to, a cardiac and respiratory examination to investigate Dr. Sloka’s concern about asthma. He also started her on Flovent.

[5592] Ms. I.R. rejected the suggestion that Dr. Sloka only performed cardiac and respiratory examinations at the third visit. She insisted that Dr. Sloka also performed a pelvic examination. She based this belief at least in part on Dr. Sloka having chronicled her report of unusual discharge in December and again at the time of the appointment. She offered no unique memories about this pelvic examination, instead alleging that this pelvic examination was like all the others. She reiterated her claim that once the pelvic examinations started, they never stopped.

[5593] Ms. I.R. agreed it was possible that Dr. Sloka did not take a swab on this occasion and conceded the possibility that Dr. Sloka may only have ever taken one swab.

[5594] Ms. I.R. also agreed that Dr. Sloka may not have conducted a skin examination on this date.

[5595] Ms. I.R. thought Dr. Sloka may have told her about a possible connection between her shortness of breath and her headaches; however, she was not sure if he told her about this connection at this appointment.

[5596] At the conclusion of his appointment, Dr. Sloka prescribed her asthma medication and Diflucan to treat her possible yeast infection.

[5597] I’ll move on now to the fourth appointment, which occurred on February 9, 2015.

[5598] Ms. I.R. agreed that she took her asthma medication and Diflucan following her last appointment. She was still plagued by headaches, but her breathing had improved.

[5599] She also remembered having new pain in right upper quadrant of her abdomen, as mentioned in Dr. Sloka’s consultation letter. She shared this information so that Dr. Sloka could continue his holistic approach to the investigation of her headaches. Dr. Sloka told her that this pain could indicate a gall bladder issue.

[5600] Ms. I.R. agreed that Dr. Sloka proposed abdominal, cardiac exam, and respiratory examinations. She maintained that Dr. Sloka also proposed a pelvic examination. She insisted that after the first pelvic examination, Dr. Sloka performed pelvic examinations at every subsequent appointment, regardless of what she told CPSO investigators. She did not allege a skin examination at this visit.

[5601] Dr. Sloka conducted a cardiac examination in the same manner as at previous appointments.

[5602] For the abdominal examination, Dr. Sloka had her lay down on the examination table. She testified that she pulled up her gown to allow him to examine her abdomen. Ms. I.R. agreed that Dr. Sloka used his stethoscope to listen to all four quadrants of her abdomen. He also palpated and tapped all four quadrants.

[5603] Ms. I.R. remembered Dr. Sloka pressing down on the upper right quadrant, asking her to breath in, and asking whether she felt any pain. She reported feeling pain. In response, Dr. Sloka told her that she had a positive Murphy’s sign.

[5604] Ms. I.R. agreed that Dr. Sloka told her that there could be an issue with her gall bladder. He ordered an ultrasound to investigate her right upper quadrant pain. He also ordered bloodwork.

[5605] I will now move on to the fifth appointment, which took place on March 23, 2015.

[5606] Ms. I.R. agreed she was still suffering from headaches. As reported in Dr. Sloka’s consultation letter, she had not managed to participate in an EKG until the day of the appointment; so, Dr. Sloka was not yet prepared to modify her Sibelium prescription. Ms. I.R. also continued to experience abdominal pain.

[5607] Ms. I.R.’s abdominal ultrasound yielded normal results.

[5608] In his consultation letter, Dr. Sloka reported, “… I am not certain whether Diflucan has been ultimately helping, although we thought it was.” Ms. I.R. could not explain why Dr. Sloka would report that she thought the Diflucan was working. Ms. I.R. maintained that she never at any point observed symptoms of a yeast infection. Consequently, she did not know how she could have reported an improvement in her symptoms.

[5609] Consistent with testimony Ms. I.R. had provided earlier, Dr. Sloka reported, “She has not been able to see her family physician.” Ms. I.R. had previously testified that she did not think Dr. Sloka ever sent her to her family doctor to deal with her yeast infection. Presented with this passage from Dr. Sloka’s letter, Ms. I.R. agreed that it was possible that Dr. Sloka had suggested she see her family doctor about her yeast infection, and she told him she was unable to see him.

[5610] Dr. Sloka’s letter from this date specifically referred to a vaginal swab. Ms. I.R. agreed that he took a swab. Despite what she had asserted in-chief, she agreed that this may have been her only vaginal swab.

[5611] Ms. I.R. also testified that Dr. Sloka conducted a pelvic examination. However, she maintained that this was the fourth pelvic examination conducted by Dr. Sloka, not the second.

[5612] On the other hand, Ms. I.R. had no specific recollection of a skin examination occurring at this visit. She agreed Dr. Sloka may not have performed one.

[5613] As already noted, Ms. I.R. was mistaken about the vaginal swab producing a positive result. She was also mistaken about the vaginal swab result being the reason for the referral to Dr. Frank. On the same day as this fifth appointment, Dr. Sloka wrote to Dr. Frank, advising that they had previously thought her Diflucan was working but had concluded that it was not. Ms. I.R. agreed that this was the reason Dr. Sloka made the referral. Dr. Sloka wanted a gynecologist to rule out the possibility of pelvic inflammatory disease.

[5614] Ms. I.R. also agreed that, on March 29, 2015, Dr. Sloka sent to Dr. Frank the results from her swab (which was taken to screen for possible infection). He also promised to forward the pelvic ultrasound results once available.

[5615] Defence counsel then took Ms. I.R. to Dr. Frank’s consultation letter. In that letter, Dr. Frank quoted her as reporting chronic vaginal discharge. Ms. I.R. denied seeing this discharge on her own. She maintained that she was only reporting what Dr. Sloka had reported to her. Dr. Frank reported a pelvic examination. He diagnosed her with clinical vaginosis (vaginal infection). He also conducted a PAP test. Ms. I.R. testified that the PAP test produced abnormal results. She then obtained a referral to a new gynecologist. Her gynecological issues took a couple of years to sort out.

[5616] I now come to Ms. I.R.’s final visit, which occurred on May 4, 2015.

[5617] After defence counsel took Ms. I.R. through Dr. Sloka’s file, she agreed that she was wrong when she previously testified that she never saw Dr. Sloka again after the referral to Dr. Frank.

[5618] As reported in his consultation letter, her headaches had been stable. Additionally, Ms. I.R. agreed that she had obtained her EKG results, which were normal. She also spoke about her appointment with Dr. Frank. She told Dr. Sloka that Dr. Frank suggested she be placed back on the birth control pill. Ms. I.R. was not sure why Dr. Frank did not prescribe the birth control medication himself. Ms. I.R. testified that, following up on that suggestion, Dr. Sloka provided her a birth control prescription. Ms. I.R. already had a relationship with Dr. Sloka; so, she felt comfortable asking him for the prescription.

[5619] Ms. I.R. did not remember any pelvic examination at this visit. She also did not remember a skin examination occurring at this visit. She said she would not dispute that one did not occur.

[5620] Ms. I.R. agreed that Dr. Sloka may only have listened to her heart and measured her blood pressure – undermining her previous claim that Dr. Sloka performed a pelvic examination at every appointment following her first pelvic examination. Despite the limited nature of the examinations, Ms. I.R. maintained that she removed all her clothing and put on a gown for her examination.

[5621] I turn now to Ms. I.R.’s concessions regarding her memory and the influence of her review of CPSO and media publications.

[5622] Ms. I.R. admitted to having a very vague memory of her time with Dr. Sloka. She had testified that all the appointments blended together in her memory. In-chief, her evidence evolved from her CPSO statement to include claims of skin examinations at every appointment and pelvic examinations at five appointments, and possibly all six. With that in mind, defence counsel cross-examined Ms. I.R. about her review of CPSO and media publications about the investigation into Dr. Sloka.

[5623] The CPSO publication included allegations from two patients who claimed that Dr. Sloka asked them to undress completely or required them to be examined without any clothing, gown, or draping, or with inadequate draping. The CPSO publication also indicated that Dr. Sloka was prohibited from performing skin examinations. After seeing the notice about skin examinations, Ms. I.R. felt the need to report her own. It also led her to conclude that neurologists should not be doing pelvic examinations. The news articles she read summarized what was contained in the CPSO publication. She read all the media articles she was able to find. She chronicled what she read and sent the list to the CPSO investigator in an email. Ms. I.R. testified that, before reading about the allegations made against Dr. Sloka, she felt that her examinations were vague in her memory, but after reading the allegations of other patients, her memory became clearer: “So, after having seen the other allegations, my experiences were not as vague.”

The Evidence of Dr. Bril

[5624] Dr. Bril testified that Dr. Sloka’s neurological examination at the first appointment was reasonable, but all examinations conducted thereafter were not neurologically reasonable.

[5625] Dr. Bril testified that neurologists do not conduct pelvic examinations or skin examinations.

[5626] Looked at globally, it is evident that Dr. Bril believed that Dr. Sloka had stepped outside of his neurological lane and was investigating/evaluating medical issues outside the field of neurology. While Ms. I.R. presented with many symptoms and problems, she believed that those things ought to have been evaluated/investigated by a family doctor or, in some instances, a gynecologist, and in other instances, an infectious disease specialist. At one point during cross-examination, she stated, “I mean, she’s got a lot of problems she’s developing. She needs to be looked after by her family physician.”

[5627] Dr. Bril recognized that Ms. I.R. presented with pulmonary/respiratory symptoms. She believed a family doctor ought to have evaluated those symptoms. Accordingly, she agreed it may have been reasonable for a family doctor to consider a respiratory examination, pulmonary function tests, a Holter test, and a chest x-ray. Relatedly it may have been reasonable for a family doctor to consider a cardiac examination, given her reports of dizziness and light-headedness, as well as taking her orthostatic vital signs. But she felt an exploration of these concerns really lay in the domain of a family doctor, not a neurologist. Relatedly, Dr. Bril testified that Dr. Sloka ought not to have prescribed asthma medications for Ms. I.R. Again, treatment of her respiratory issues ought to have been left to her family doctor.

[5628] Regarding skin examinations, Dr. Bril declined to say whether they might be medically reasonable as part of an investigation into the possibility of an underlying infection. She recognized the presence of risk factors that raised the possible relevance of infectious disease risk factors (travel abroad, mosquito bites, tattoos) to Ms. I.R.’s symptoms. However, she noted that Dr. Sloka did not test Ms. I.R.’s spinal fluid to look for the presence of a pathogen in the nervous system. Whether it would nevertheless be medically reasonable to conduct a skin examination, Dr. Bril stated, “I’m a neurologist”, “…I’m not her family physician,” and “…I’m not an infectious disease specialist.” In short, it was up to other doctors to decide on the appropriateness of a skin examination.

[5629] Regarding any lymph node examination, Dr. Bril agreed that Ms. I.R.’s night sweats in conjunction with swollen lymph nodes raised the possibility of lymphoma. However, this was an issue for her family doctor. Straying outside the scope of her expertise, Dr. Bril also said she did not expect a lymphoma patient’s swollen lymph nodes to improve between visits.

[5630] Regarding pelvic examinations, Dr. Bril also recognized that swollen lymph nodes might, in connection with Ms. I.R.’s pelvic symptoms, raise a concern about pelvic inflammatory disease. However, she insisted that, “He should have – if he were concerned [about pelvic inflammatory disease, sent her to] the family doctor or a gynecologist at this point.” She added, “It’s just not part of our practice.” Relatedly, Dr. Bril testified that it was not neurologically reasonable for Dr. Sloka to treat Ms. I.R. for a possible yeast infection. Neurologists do not treat vaginal discharge or the regularity of menstrual cycles.

[5631] Dr. Bril also testified that it was not neurologically reasonable to take a vaginal swab from Ms. I.R. She testified that neurologists do not keep swab kits in their offices. Neurologists do not swab throats and they do not swab vaginas. “I mean we stay in our lane.” She did not know whether it was medically reasonable for Dr. Sloka to take the swab in the manner that he did.

[5632] Regarding Ms. I.R.’s abdominal examination, Dr. Bril opined that it fell outside of the practice of neurology. Dr. Sloka had found a “positive Murphy’s sign” during the abdominal examination. Dr. Bril was not familiar with “Murphy’s sign.” She added, “I know probably I heard about it… years ago but I don’t really remember what it is.” In her view, the abdominal examination to investigate abdominal issues was a matter for a family physician, not a neurologist. She agreed, though, that it might be a medically reasonable examination if conducted by the appropriate doctor.

[5633] Dr. Bril also testified that it was not appropriate for Dr. Sloka to prescribe birth control medication. He ought to have left that discussion for another physician.

[5634] Regarding the final visit, Dr. Bril did not think a cardiac examination was necessary to monitory Ms. I.R.’s cardiac response to the increase in her Sibelium prescription.

The Evidence of Dr. Sloka

[5635] Dr. Sloka vaguely remembered Ms. I.R., but he did not have an independent memory of the details of any given appointment, examination, test, or prescription. He relied upon his consultation letters for the truth of their contents and the remainder of Ms. I.R.’s file for context.

[5636] I will summarize Dr. Sloka’s evidence one appointment at a time.

[5637] In her first appointment, on August 18, 2014, Ms. I.R. reported a nine-week history of headaches. She also reported shortness of breath, travel to West Africa, early satiety, joint pain, dizziness, tingling in her hands, and rashes on her chest and arms. Dr. Sloka testified that Ms. I.R.’s headaches were concerning because they got worse when she lay down. That symptom could indicate increased intracranial pressure or an issue with her neck. The variety of her symptoms suggested that multiple systems were compromised. He categorized her headaches as “red flag headaches, because of they occurred in conjunction with symptoms in multiple systems (e.g. skin, joints, and respiratory), because her trip to West Africa and resulting insect bites and tattoo exposed her to infectious diseases (tuberculosis, malaria, and HIV, for example), and because her headaches began after her travel to West Africa. It was unclear to Dr. Sloka whether her multitude of symptoms were related to a single underlying issue or several discrete issues.

[5638] In his first consultation letter, Dr. Sloka reported neurological, cardiac, and respiratory examinations. He also reported taking Ms. I.R.’s orthostatic vital signs. While he did not explicitly refer to it in his consultation letter, Dr. Sloka made specific reference to a skin examination in his rough notes, by recorded “COSE [Consent Obtained for Skin Examination].”

[5639] Dr. Sloka testified that he learned from his training and the medical literature that cardiac examination is indicated in patients with headaches, especially patients with red-flag headaches, and especially those with a travel history. Similarly, he learned that a cardiac examination is indicated for patients who are experiencing dizziness or a shortness of breath while speaking. Additionally, he was considering the prescription of headache medication with cardiac contraindications. He wanted to listen to Ms. I.R.’s heart for structural issues before prescribing this kind of medication.

[5640] Dr. Sloka testified that he believed Ms. I.R.’s shortness of breath was a concerning symptom when associated with her headaches and dizziness.

[5641] Dr. Sloka disagreed with Dr. Bril’s opinion that he should have referred Ms. I.R. to her family doctor for cardiac and respiratory examinations. He disagreed with her assessment that he operated outside of his professional lane. He testified that the RCPSC required of him to understand the investigation and management of cardiac and respiratory symptoms. He testified that a significant part of his training focused on these areas.

[5642] Dr. Sloka testified that he learned form the medical literature and his training to consider skin examinations for patients experiencing red-flag headaches and headaches with possible multi-system involvement. He thought it important to look for skin-manifestations of illnesses that impact multiple systems, including autoimmune diseases (like Lupus and Sjogren’s disease), inflammatory diseases (like vasculitis), and infectious diseases, which can have skin manifestations. Dr. Sloka testified that lymphoma was “not necessarily as much on my radar with this appointment as it would have been for the next.” Dr. Sloka also ordered bloodwork to screen for these same conditions.

[5643] Dr. Bril had testified that, if Dr. Sloka was concerned that an infectious disease was causing Ms. I.R.’s headaches, he ought to have performed a lumbar puncture to test Ms. I.R.’s spinal fluid for pathogens. She suggested his failure to do so showed he was not really concerned about infectious diseases. Dr. Sloka disagreed. He insisted that he was absolutely considering the possibility of an infection. Infection was a possible culprit for most if not all her symptoms. However, Dr. Sloka did not consider lumbar punctures to be entirely “benign.” He was cautious about doing lumbar punctures with someone with systemic illness, reluctant to introduce infection into the central nervous system through the puncture. The central nervous system is insulated by the blood-brain barrier, which protects the brain from insults that are occurring elsewhere in the body. He did not want to breach that barrier before ordering imaging. He learned from his training to order imaging first.

[5644] Dr. Sloka denied that Ms. I.R. was ever entirely naked for her skin examination. He testified that he performed each examination in accordance with his standard method.

[5645] Ms. I.R.’s neurological, cardiac, respiratory, and skin examinations were all normal.

[5646] Dr. Sloka recorded FAFG [Feedback Asked Feedback Given] in his handwritten notes. He sought Ms. I.R.’s feedback because she was in a gown. He testified that he sought feedback from patients who were gowned, especially if there is exposure in any way.

[5647] Dr. Sloka prescribed Topiramate to treat Ms. I.R.’s headaches and to reduce the production of cerebral-spinal fluid. As noted, he ordered bloodwork to investigate the possibility of inflammatory, infections, and autoimmune diseases. He also ordered an expedited MRI of her brain, veins, and arteries, because of the positional nature of her headaches. Additionally, he ordered a pulmonary function test to examine her respiratory system. Also, he ordered a Holter monitor to assess her cardiac function, given her shortness of breath and dizziness. He also ordered a chest x-ray to rule out tuberculosis and any other factor contributing to her shortness of breath. He also ordered EMG studies of her hands. Dr. Sloka testified that, given the uncertainty of the number and nature of the causes of Ms. I.R.’s symptoms, he tried to address as many possibilities as he could.

[5648] All of Ms. I.R.’s tests produced normal results, except for the pulmonary function test, which was inconclusive. The report from the pulmonary function test suggested that Ms. I.R. repeat the test to rule out asthma.

[5649] When Ms. I.R. returned for her second appointment, on October 17, 2014, she reported that her headaches persisted. She also reported new issues. In his consultation letter, Dr. Sloka reported that Ms. I.R. “continued to have night sweats [he did not report them in his first letter].” Ms. I.R. also reported inguinal lymph swelling, which led to a trip to an urgent care clinic and a pelvic ultrasound. That swelling slowly diminished. She also reported a change in her menstrual cycle and vaginal discharge. Ms. I.R. also reported that she had to change her bra size because her chest circumference had increased.

[5650] Dr. Sloka testified that he recommended cardiac, respiratory, abdominal, lymph node, skin, and pelvic examinations. He may also have examined Ms. I.R.’s joints to look for signs of inflammation.

[5651] Dr. Sloka explained his rationale for repeating the cardiac and respiratory examinations. He explained that Ms. I.R. had shortness of breath and an abnormal pulmonary function test. He had been taught that people with asthma have increased headache frequency. Additionally, Ms. I.R.’s headaches persisted and were now accompanied by swollen lymph glands and night sweats. Also, he had decided to wean Ms. I.R. off topiramate and place her on Sibelium, which is a drug with cardiac contraindications. Dr. Sloka felt that the totality of circumstances warranted cardiac and respiratory examinations.

[5652] Dr. Sloka testified that he conducted a lymph node examination to ensure that her lymphadenopathy was confined to her inguinal area and not the byproduct of a more global issue. Ms. I.R.’s night sweats factored into his decision. He testified that night sweats can be a symptom of lymphoma. Dr. Sloka did not agree that the examination of Ms. I.R.’s lymph nodes lay outside the field of neurology. He testified that, as part of his qualification to become a neurologist, the RCPSC required him to know how to conduct a general examination, which includes a lymph node examination. The RCPSC also required him to understand how hematological conditions affect the nervous system and to know that conditions such as lymphoma are associated with headaches, night sweats, and swollen lymph nodes.

[5653] Dr. Sloka also provided a justification for doing a second skin examination. He explained that Ms. I.R.’s night sweats suggested a “fever of unknown origin.” She had a travel history that raised the possibility of infectious diseases. She also had symptoms affecting multiple systems. And she also had new symptoms. Dr. Sloka understood from infectious disease literature that a skin examination ought to be considered in these circumstances, especially when it appeared that Ms. I.R.’s syndrome might be evolving.

[5654] Dr. Sloka testified that he proposed a pelvic examination because Ms. I.R. had swollen inguinal lymph nodes, a change in her menstrual cycle, mid-cycle pelvic pain, and vaginal discharge. Dr. Sloka believed these symptoms could indicate infection, inflammation, or cancer in the pelvic region. Dr. Sloka believed that conditions like pelvic inflammatory syndrome or Fitz-Hugh Curtis syndrome might explain her headaches and swollen lymph nodes.

[5655] Ms. I.R.’s cardiac, respiratory, skin, and pelvic examinations were normal. Dr. Sloka reported lymph node swelling in the “postauricular area” [behind the ear].

[5656] Dr. Sloka ordered a new pulmonary function test, further bloodwork, and an ultrasound of the swollen lymph node behind Ms. I.R.’s ear. He also prescribed Diflucan to treat Ms. I.R.’s vaginal discharge and Sibelium to treat her headaches.

[5657] When Ms. I.R. returned for her third appointment on January 7, 2015, her headaches had improved but were still occurring. She also reported right jaw pain.

[5658] Dr. Sloka testified that he performed another cardiac examination because he intended to increase Ms. I.R.’s Sibelium prescription. He wanted to be sure she had no cardiac problems before doing this. Dr. Sloka ordered an EKG for the same reason. As noted in his consultation letter, he did not intend to increase Ms. I.R.’s Sibelium dosage until he got the results of the EKG.

[5659] Dr. Sloka also conducted a respiratory examination, because Ms. I.R.’s second pulmonary function test suggested she had asthma. He testified that he listened to her lungs to help him determine which medication to prescribe. He noted that her respiratory examination “suggested a tightness but no crackles and good air entry bilaterally.” He prescribed Flovent and Ventolin.

[5660] In his consultation letter, Dr. Sloka also noted that Ms. I.R. reported irregular menstrual cycles and unusual vaginal discharge, which she treated unsuccessfully with an over-the-counter medication in the previous month. Dr. Sloka testified that he prescribed a longer course of Diflucan. He denied performing a pelvic examination. He testified that past Diflucan prescriptions had been successful. A pelvic examination was unnecessary. He was trained to increase the dosage when necessary. Dr. Sloka also denied performing a skin examination.

[5661] Ms. I.R. returned for her fourth appointment on February 9, 2015. She reported that her headaches had increased in duration. Ms. I.R. had been unable to obtain her EKG. He believed she would be obtaining the EKG in the following week. Consequently, he increased Ms. I.R.’s prescription but asked her to call his office to ensure the EKG results were normal before taking the increased dosage.

[5662] Ms. I.R. reported hat her baseline breathing had improved with use of Flovent and that Ventolin had been the most helpful in resolving breathing issues. However, she presented with a flulike illness on the date of the examination. Ms. I.R. also reported that Diflucan had helped with her discharge, but it had returned. Ms. I.R. also reported right upper quadrant pain, especially after eating greasy foods.

[5663] Dr. Sloka testified that he recommended and performed respiratory examination and abdominal examinations.

[5664] Dr. Sloka testified that he performed the respiratory examination because Ms. I.R.’s baseline breathing had not sufficiently improved. Also, she presented with a flulike illness, which can exacerbate asthma. Dr. Sloka disagreed with Dr. Bril’s opinion that he should have left the respiratory examination for her family doctor or a respirologist. He testified that the had the training and experience necessary to conduct the examination. He saw no reason to delay the examination.

[5665] Dr. Sloka testified that he performed the abdominal examination because Ms. I.R. reported abdominal pain. He disagreed with Dr. Bril’s opinion that he had strayed outside of his professional lane. Ms. I.R.’s complaint was consistent with gall bladder dysfunction. She had described multiple issues. The discovery of an abnormality was a possibility. He did not want to ignore anything she said, in case any abnormality was related to her headaches and other symptoms. He testified that an abdominal examination is part of a general examination. He testified that the RCPSC required him to know how to conduct a general examination to obtain his qualification as a neurologist. Dr. Sloka also explained that Ms. I.R. came with multiple symptoms and that it was difficult to sort out whether there existed a unifying explanation or multiple difficulties. He did not want to ignore discrete symptoms he could measure and treat. If her condition had evolved, he would have sent her to a gastroenterologist.

[5666] As it happens, Dr. Sloka detected a positive Murphy’s sign during the abdominal examination. A positive Murphy’s sign occurs when the doctor places pressure in the location of the gall bladder as the patient breathes in. Inhalation draws the gallbladder away from the rib cage so that the hand can place pressure on it. The presence of pain suggests an inflamed gallbladder or a gallstone.

[5667] As a result of the positive Murphy’s sign, Dr. Sloka ordered an ultrasound of Ms. I.R.’s gallbladder and additional bloodwork. He also ordered additional bloodwork to determine whether there was a connection between her hormonal levels and her headaches. Lastly, he prescribed an eight-week course of Diflucan treatment, to hopefully “abolish” Ms. I.R.’s discharge issues.

[5668] Dr. Sloka denied performing a skin examination or pelvic examination at this appointment.

[5669] Ms. I.R. returned for her fifth appointment on March 23, 2015. She was still experiencing headaches. Ms. I.R. ultimately did not obtain her EKG until the morning of March 23rd. Dr. Sloka did not have the results by the time of her appointment. As he documented at the previous appointment, he asked Ms. I.R. to call him in the following week to confirm normal EKG results before taking the increased prescription.

[5670] Ms. I.R. also reported continuing abdominal pain. However, her gallbladder ultrasound yielded normal results.

[5671] Ms. I.R. also reported ongoing dyspareunia (pain during intercourse).

[5672] Consistent with Ms. I.R.’s testimony, Dr. Sloka documented that Ms. I.R. reported being unable to see her family doctor.

[5673] Dr. Sloka also recorded that he was not certain whether the Diflucan had been helping with her vaginal discharge. Dr. Sloka decided to refer Ms. I.R. to Dr. Frank, in the hopes of addressing Ms. I.R.’s pelvic issues. Dr. Sloka also decided to obtain a vaginal swab.

[5674] Dr. Sloka testified that he wanted to investigate whether Ms. I.R.’s vaginal discharge was related to an ongoing infection that could be related to Ms. I.R.’s headaches, especially given that the discharge began to occur at the same time that Ms. I.R. started to suffer from swollen lymph nodes.

[5675] To facilitate the referral to Dr. Frank, Dr. Sloka ordered a urine test to look for common sexually transmitted diseases. He also took the vaginal swab to look for the presence of any obvious infection that may help direct Dr. Frank’s treatment of Ms. I.R. Dr. Sloka wanted Dr. Frank to have all this information at his disposal at his first gynecological consultation.

[5676] Contrary to what Dr. Bril said, Dr. Sloka kept swab kits at his office. He testified that he had swabs available in the event patients presented with a sore throat, which might be a relevant symptom for headache patients. He used the same swab kits for vaginal swabs.

[5677] Dr. Sloka’s was certain that he took a vaginal swab because his consultation letter made explicit reference to it. However, he was not certain whether he also conducted a pelvic examination. He thought it is unlikely that he did a pelvic exam because he was preparing to send Ms. I.R. to gynecologist. However, his hand-written notes stated, “COPE/Consent obtained for swab,” thereby suggesting the possibility of a pelvic examination, too. Accordingly, Dr. Sloka agreed it was possible that he also conducted a pelvic examination.

[5678] When Dr. Sloka wrote to Dr. Frank later that day, he specifically asked Dr. Frank to “please see her very quickly to rule out the possibility of pelvic inflammatory disease.”

[5679] In a follow up letter, written on March 29, 2015, Dr. Sloka shared the results of Ms. I.R.’s STD infection screen and made it clear that he had performed a vaginal swab. He also told Dr. Frank that he had taken the swab without the benefit of a speculum, which he did not have in his office.

[5680] Dr. Sloka denied performing a skin examination at this appointment.

[5681] Ms. I.R. returned for her sixth appointment on May 4, 2015. A few weeks before that, Dr. Sloka received Dr. Frank’s consultation letter. After an examination, Dr. Frank diagnosed Ms. I.R. with clinical vaginosis. He planned to see Ms. I.R. in follow up after she completed her seven-day prescription for Flagyl. There is no record suggesting she attended a follow up visit with Dr. Frank before returning to see Dr. Sloka.

[5682] Ms. I.R. reported stability with her headaches. Her previous EKG had been normal, which had enabled the first increase in Ms. I.R.’s Sibelium prescription. He testified that he planned to increase Ms. I.R.’s Sibelium dose again. Consequently, he performed a cardiac examination to be sure that her cardiac condition had remained stable since increasing her dosage. He also took Ms. I.R.’s vital signs.

[5683] Ms. I.R. also informed Dr. Sloka that Dr. Frank had suggested she go back on the birth control pill. According to Dr. Sloka’s consultation letter, Ms. I.R. asked Dr. Sloka to prescribe her Yaz -- Ms. I.R. had testified that she had used Yaz before her headaches began. Dr. Sloka prescribed Yaz at Ms. I.R.’s request but noted in his consultation letter that Dr. Frank was investigating the possibility she had endometriosis and may suggest a different birth control medication in the future. This letter was addressed the “Family Doctor and Dr. Frank.” Dr. Sloka had planned to see Ms. I.R. again in two months, but Ms. I.R. cancelled the next appointment the day after this visit. She never returned.

Assessment of the Evidence and Analysis

[5684] Ms. I.R. was a very unreliable witness. She possessed a very vague memory that purportedly grew more vivid after she read complaints lodged by other patients. There is compelling evidence that her memory and perception have been tainted by her review of these other allegations. Additionally, on key factual issues, she made different allegations at trial than she did when providing a statement to CPSO investigators. Also, she provided different evidence in cross-examination than she provided in her evidence in-chief. As a result of Ms. I.R.’s frailties, I simply cannot accept or rely upon Ms. I.R.’s claims about the number of skin and pelvic examinations, the timing of those examinations, or Dr. Sloka’s methodology for those examinations. I am only able to accept what Dr. Sloka was prepared to admit. Dr. Sloka admitted conducting two skin examinations, at the first and second appointments, respectively. He admitted to conducting a single pelvic examination and to taking a single swab. He admitted that the pelvic examination occurred at the second appointment and that he took the swab at the fifth appointment. While he conceded the possibility of a second pelvic examination at the fifth appointment, he thought that unlikely. His rough notes do not enable to me to conclude beyond a reasonable doubt that he conducted a second pelvic examination.

[5685] Dr. Sloka provided a rational basis for the diagnostic and treatment decisions he purportedly made during Ms. I.R.’s tenure as his patient. Dr. Sloka’s evidence was internally consistent and consistent with his unchallenged evidence regarding his training and experience. He testified that he acted in accordance with his training, education, and RCPSC expectations. He testified that he performed all examinations in accordance with his training. Neither Ms. I.R.’s evidence nor Dr. Bril’s evidence provided a sufficient basis for rejecting Dr. Sloka’s evidence. Accordingly, I have no basis for concluding that Dr. Sloka engaged in sexual activity. I am only able to conclude that Dr. Sloka conducted medical examinations in furtherance of Ms. I.R.’s diagnosis and treatment. Consequently, Dr. Sloka must be acquitted on this count. I will now explain my reasoning in more detail.

[5686] I begin with a discussion of Ms. I.R.’s evidence.

[5687] In my view, Ms. I.R.’s memory and perception have been tainted by exposure to other allegations against Dr. Sloka. Ms. I.R. took no issue with Dr. Sloka’s care while that care was ongoing. She felt discomfort at being examined by a male physician, yes. She harboured the same discomfort while under Dr. Frank’s care. However, the evidence strongly supports the conclusion that Dr. Sloka’s conduct did not give rise to any concern while she was his patient. Instead, her concerns obviously first arose after being alerted to the existence of a CPSO investigation into Dr. Sloka, her review of the allegations on the CPSO website, and her review of current news about the investigation. She began with a “very vague” memory of and an “intuition” about her past treatment by Dr. Sloka. She sought “confirmation” of her “intuition.” After thoroughly reading the CPSO and media publications available to her, her perception of her treatment changed. The material she reviewed contained allegations of patients being asked to undress completely and of being examined without any gown or proper draping. She also read about Dr. Sloka being prohibited from conducting skin examinations. Only after reading the allegations of other patients did Ms. I.R. become concerned about any skin and pelvic examinations she had received. Thes publications confirmed for Ms. I.R. that her own examinations were medically improper. After reading these other allegations, she claimed that her own memory became “not as vague.” In my view, the evidence of tainting is indisputable. That tainting undermines the reliability of Ms. I.R.’s trial testimony generally and the reliability of her evidence regarding the skin examinations.

[5688] Ms. I.R.’s evidence regarding the number of skin examinations varied wildly. In-chief, she offered an estimate of “three or four or five times.” Still in-chief, she suggested, “more than once and maybe as many as ever time.” At the outset of cross-examination, she professed certainty about the skin examinations occurring at every appointment. She rejected the suggestion that Dr. Sloka only performed skin examinations at the first two appointments. Then, one by one, she conceded that skin examinations may not have occurred at the third, fourth, fifth, and sixth appointments. I simply cannot accept Ms. I.R.’s evidence regarding the number of skin examinations conducted.

[5689] Ms. I.R. provided blatantly contradictory evidence on the question of Dr. Sloka’s stated purpose for the skin examinations. Initially, she did not recall any discussions about the rationale for the examinations. Then, when prompted, she testified that Dr. Sloka told her that he wanted to look for moles that had changed. Then, with the aid of her CPSO statement, she returned to her position that he did not ask her about moles at the first appointment. Soon afterwards, Ms. I.R. testified that she had been able to deduce that Dr. Sloka was looking for moles. The very next day in her examination in-chief, she then testified that Dr. Sloka told her that he wanted to look for “marks on the skin.” She added that, “At subsequent skin examinations, he would say that he was looking for changes in any marks.” Her inconsistency was dizzyingly disorienting.

[5690] Ms. I.R.’s testimony about the number of pelvic examinations patently contradicted her CPSO statement. At trial, she testified that Dr. Sloka conducted at least five pelvic examinations, and she left open the possibility that he conducted pelvic examinations at every appointment. Whether they began at the first or second appointment, once they began the continued at every appointment thereafter. In contrast, Ms. I.R. told the CPSO that Dr. Sloka performed a minimum of two and a maximum of four pelvic examinations. As with the skin examinations, her position on pelvic examinations was subject to inflationary pressures after her exposure to the publication of allegations against Dr. Sloka. Ms. I.R. claimed a better memory at trial than she possessed when speaking to CPSO investigators. I reject that claim. She conceded that it was possible that there were only two pelvic examinations, but that number did not “sound right” to her. Her evidence on this subject did not “sound right.”

[5691] Ms. I.R. also provided inconsistent positions on the number of vaginal swabs taken. She testified in-chief that Dr. Sloka took a vaginal swab at every pelvic examination (the number of which varied wildly in her memory over time). However, she told CPSO investigators that she did not recall whether Dr. Sloka took any swabs at all; he may have sent a specimen for testing after a pelvic examination, but she never received any results, and, as a result, she did not remember whether swabs were taken. Again, Ms. I.R. claimed a better memory at trial then when providing her CPSO statement. By the conclusion of cross-examination, though, Ms. I.R. was prepared to concede that Dr. Sloka may have only taken one swab. I simply cannot rely upon Ms. I.R.’s evidence regarding the number of swabs taken by Dr. Sloka.

[5692] Ms. I.R.’s evidence on the reason for her referral to Dr. Frank was contradicted by objectively unassailable evidence. Faced with this evidence, she changed her position. She initially testified that Dr. Sloka referred her to Dr. Frank because of a positive result from a vaginal swab. Dr. Sloka’s consultation from May 23rd, 2015, his referral letter from May 23, 2015, and his subsequent letter to Dr. Frank on May 29, 2015, made it clear that Dr. Sloka had not obtained any swab results before making the referral to Dr. Frank. The swab taken on May 23rd ultimately produced negative results. Dr. Sloka’s consultation report and his referral letter both explicitly stated that Dr. Sloka referred Ms. I.R. to Dr. Frank because Ms. I.R. had not responded to treatment with Diflucan.

[5693] Ms. I.R.’s evidence regarding her vaginal discharge lacked both reliability and credibility. She claimed that she never noticed her own vaginal discharge; that, without the interventions of Dr. Sloka, the discharge accumulated inside her body but was never discharged; and that she never purchased or used over-the-counter medication to treat her yeast infection. I reject as entirely implausible that Ms. I.R. never noticed her own discharge except when seeing it on Dr. Sloka’s gloved fingers inside his examination room. Also, I reject Ms. I.R.’s claim that she never took over-the-counter medication. Dr. Sloka contemporaneously chronicled Ms. I.R.’s claims to the contrary when there existed no apparent reason for misunderstanding and no apparent motive to fabricate the words attributed to Ms. I.R. I think it very likely that Ms. I.R. denied taking over-the-counter medication to avoid discrediting her claim that she never noticed her own discharge outside of Dr. Sloka’s examination room. My conclusion is supported by the contents of Dr. Frank’s consultation letter, where Dr. Frank said Ms. I.R. was complaining of “chronic vaginal discharge.” I reject Ms. I.R.’s claim that she only reported Dr. Sloka’s examination findings and not her own experience. It is far more plausible that Dr. Frank took Ms. I.R.’s history, and that Ms. I.R. reported experiencing chronic vaginal discharge.

[5694] Ms. I.R. also initially testified that she did not return to Dr. Sloka’s office after her referral to Dr. Frank. She had grown frustrated with his inability to cure her headaches and decided to place her trust in the gynecologist. This narrative turned out to be incorrect. She did in fact return to Dr. Sloka. On top of that, she specifically asked Dr. Sloka for a birth control prescription, rather than wait to obtain one from Dr. Frank or another doctor. While not as significant as some of her other inconsistencies, this inconsistency still detracts from Ms. I.R.’s reliability.

[5695] Despite the many and obvious problems with Ms. I.R.’s evidence, the Crown contends that Dr. Sloka provided support for Ms. I.R.’s evidence and that Ms. I.R. ought to be believed. However, in my view, Dr. Sloka did not support Ms. I.R.’s evidence on any material issues, only matters that were not in dispute. He flatly disputed her claim of anything more than two skin examinations. He also disputed that Ms. I.R. would have stood naked for her skin examination. He conceded only one pelvic examination, albeit leaving open the possibility of a second. He flatly denied all the rest. He also denied lifting Ms. I.R.’s gown for the abdominal examination in the manner Ms. I.R. described. On his evidence, Ms. I.R. was always appropriately draped, in accordance with his training and standard methods. Ms. I.R. also ultimately retreated from her claim that her entire torso was exposed for the cardiac examination, conceding in cross-examination that she only exposed her left breast after providing permission in advance.

[5696] The Crown also suggests that passages from Dr. Sloka’s third and fourth consultation letters confirm that he performed pelvic examinations at these appointments. The passages relied upon do not speak of pelvic examinations, though. They speak of her continuing to experience discharge. The Crown did not suggest to Dr. Sloka in cross-examination that these passages demonstrated the existence of an examination. That was their choice. It is unfair to now suggest in submissions what counsel was not prepared to suggest in cross-examination.

[5697] The Crown also contends that Ms. I.R. testified that she did not subjectively consent to the examinations. That submission ignores Ms. I.R. declarations that she believed that the proposed examinations were medically warranted, that Dr. Sloka repeatedly sought consent every time he touched her, that she provided her consent, and that he would check in on her to ensure she was okay as the examinations progressed. The Crown’s submission also ignores Ms. I.R.’s evidence that she appreciated Dr. Sloka’s holistic approach and that she was prepared to consent to any examination if it would give her some answers. Given Ms. I.R.’s repeated statements to the contrary, her assertion that that she did not know she could say no to any examination lacked all credibility.

[5698] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting sensitive examinations on any given patient. A sexual motive can in turn support the inference that some disputed examinations occurred. Likewise, a sexual motive can support the inference that the examinations were sexual in nature to negate any inference of accident or innocent explanation. However, I have carefully considered Dr. Sloka’s evidence in the context of the evidence as a whole. I conclude that he has provided a compelling refutation of any possible inference of a sexual purpose. I will engage in a detailed assessment of his evidence momentarily. First, though, I will address the Crown’s reliance on some granular cross-count similarities and Dr. Bril’s evidence.

[5699] The Crown relies upon four granular categories of cross-count similarity. First, they allege that Ms. I.R. belongs to a constituency of patients who allege that Dr. Sloka wanted to examine their skin for moles. Second, they allege that she belonged to a cohort who complained of naked skin examinations before such complaints were made public on April 30, 2019. Third, the Crown alleges that Ms. I.R. belongs to a group of patients who allege that she was naked or in a state of undress for the skin examination. Fourth, they allege that Ms. I.R. belonged to a cohort of patients who alleged a distinctive body position for the pelvic examination. I found none of these alleged similar fact cohorts to be sufficiently probative, for reasons I will now discuss.

[5700] I begin with the “mole” cohort. Ms. I.R. does not belong in any cohort of patients who claimed that Dr. Sloka said he was looking for moles. She was wildly inconsistent on this subject in her evidence. At least with regard to the first appointment, she corrected herself and said that he did not make mention of an interest in moles. As for subsequent appointments, Ms. I.R. appears to be tainted by her own research and assumptions. Indeed, she testified that she performed a google search about the justification for skin examinations precisely because Dr. Sloka had allegedly failed to explain the reason for them. At another point, she also specifically testified that she deduced Dr. Sloka’s purpose. Ms. I.R.’s evidence on the subject of the discussion of moles is so unreliable that no amount of similar fact evidence can rehabilitate it. Also, Dr. Sloka conceded performing two skin examinations to look for physical manifestations of disease. The fact of some skin examinations was not a material issue, only the number and manner of them.

[5701] The second and third similar fact categories are closely related. I acknowledge that Ms. I.R. alleged a naked skin examination before any similar allegations had been published by the CPSO or media. However, Ms. I.R. was exposed to publications that referred to patients being examined without gowning and that mentioned that Dr. Sloka was prohibited from conducting skin examinations. The obvious implication of these publications is unavoidable, albeit not explicit: patients were complaining about naked skin examinations. And those publications had an admitted impact upon Ms. I.R.’s perception of her experience. The evidence of tainting is powerful. The Crown has failed to rebut that likelihood.

[5702] The fourth similar fact category lacks any probative value. The Crown relies upon a distinctive body position for several pelvic examinations. What is that body position? A patient laying on the examination table, on their back with knees bent, legs spread and feet flat. In the absence of stirrups, I doubt any reasonable person would expect any other kind of body position. As one patient put it, it is the birthing position. There is absolutely nothing unusual, distinctive, unique, or unexpected about this position. The similar body positioning of other patients is of little moment, particularly because Dr. Sloka acknowledged at least one pelvic examination and acknowledged the body positioning Ms. I.R. described.

[5703] I turn now to the evidence of Dr. Bril. Dr. Bril’s primary complaint about Dr. Sloka was that he operated outside of his appropriate neurological lane. For the reasons discussed in the section of this judgement devoted to a general assessment of Dr. Bril’s evidence, I place no weight upon Dr. Bril’s categorical assertions about the permissible scope of practice of her fellow neurologists. Moreover, Dr. Bril conceded that virtually all of Dr. Sloka’s examinations and investigations may have been medically reasonable. Her primary critique was that Dr. Sloka ought to have left those examinations and investigations to other doctors. Her evidence is incapable of rebutting Dr. Sloka’s claim that (1) he believed his examinations and investigations were medically reasonable; and (2) he had the training and experience necessary to pursue those examinations and investigations; and (3) he was cognizant of Ms. I.R.’s difficulty connecting with her family doctor.

[5704] That brings me to the evidence of Dr. Sloka.

[5705] In my opinion, Dr. Sloka provided a cogent explanation of the arc of Ms. I.R.’s treatment. I appreciate that he had no independent memory of any given appointment. However, I also remind myself that Dr. Sloka had no burden to prove anything. He only definitively admitted conducting two skin examinations. He provided a cogent explanation for doing them. Dr. Bril’s evidence could not challenge the medical reasonableness of these examinations, only their narrower neurological reasonableness. Dr. Sloka admitted definitively to only one pelvic examination but conceded the possibility of a second. He provided a cogent explanation for conducting pelvic examinations. Dr. Bril’s evidence did not challenge the medical reasonableness of these examinations, only their neurological reasonableness. As it happens, Ms. I.R. did in fact have a serious pelvic ailment, which took years to resolve. Ms. I.R. has Dr. Sloka to thank for sending her to Dr. Frank to obtain a diagnosis.

[5706] The Crown points to numerous alleged frailties in Dr. Sloka’s evidence, but I largely find their critiques unconvincing.

[5707] The Crown suggests Dr. Sloka was inconsistent when giving evidence about his rationale for a skin examination. I saw no inconsistency. In both his evidence in-chief and in cross-examination, he spoke of searching for evidence of infectious diseases, inflammatory diseases, and autoimmune diseases. He also consistently maintained that lymphoma was a lesser concern, but one he would not ignore.

[5708] The Crown contends that Dr. Sloka gave inconsistent evidence on the timing of Ms. I.R.’s abdominal examination, but he did not. He consistently testified that he conducted this examination at the fourth appointment, resulting in him reporting the discovery of Murphy’s sign in his consultation letter.

[5709] The Crown also argues that Dr. Sloka’s evidence was rife with speculation. There is something to be said for the claim Dr. Sloka speculated every time he denied undocumented facts about which he had no memory, but the submission misses the point. Dr. Sloka had no burden to prove anything. Moreover, he generally provided a basis for his belief. The Crown specifically points to Dr. Sloka’s evidence about the timing of the attendance of Ms. I.R.’s mother. Dr. Sloka insisted she was present for the second appointment and disputed her presence at others. Dr. Sloka had available three reasons for his position: (1) he documented the mother’s attendance at the second appointment; (2) he did not document her attendance at any other; and (3) Ms. I.R. effectively admitted that her mother attended at the second appointment for the one and only time.

[5710] The Crown contends that Dr. Sloka was evasive and illogical. I disagree.

[5711] In particular, the Crown argues that Dr. Sloka provided evasive evidence about whether he saw Dr. Frank’s report before seeing Ms. I.R. for her last appointment. Dr. Sloka did not think he had seen the initial consultation letter before Ms. I.R.’s final visit. He had no memory one way or the other but based his belief on the contents of his consultation letter. In his letter, he reported what Ms. I.R. told him about her visit with Dr. Frank and he reported having to guess at what birth control medication Dr. Frank might have preferred. He nevertheless conceded in cross-examination the possibility that he had in fact read Dr. Frank’s consultation letter, which, it turns out, did not recommend any specific birth control medication.

[5712] The Crown also suggested that Dr. Sloka tried to avoid questions about why he substituted his own clinical judgement for Dr. Frank when prescribing birth control to Ms. I.R. There is no merit to this argument. Dr. Sloka addressed the issue head-on. Ms. I.R. wanted Dr. Sloka to prescribe the medication. He reported this request in his consultation letter. Ms. I.R. in fact confirmed this in her testimony. At the time he prescribed the medication at Ms. I.R.’s request, Ms. I.R. did not yet have a prescription. Dr. Frank had not prescribed anything. Dr. Sloka did not substitute his judgement for Dr. Frank.

[5713] The Crown also argued that Dr. Sloka testified in cross-examination that “he could not say what questions he would have asked about her skin and did not believe he asked about skin changes.” The Crown argues that this evidence defies common sense, given Dr. Sloka’s position that rashes were a central justification for his skin examination. However, the Crown mischaracterizes Dr. Sloka’s evidence. Dr. Sloka testified that he was not certain how he would have phrased the question, adding, “but I was looking for at least rashes on the skin.” He was not certain whether he would have also asked about changes in shape or colour of marks on her skin. His evidence remained logical and internally consistent.

[5714] The Crown also argues that it defies common sense for Dr. Sloka to have performed a pelvic examination at Ms. I.R.’s second appointment, three days after Ms. I.R. had received a reassuring pelvic ultrasound. However, Dr. Sloka documented that Ms. I.R. was still presenting with pelvic symptoms. Her swollen lymph nodes had diminished but were still present. She reported mittelschmerz (pain associated with ovulation) on her right side since her shortened cycle. She continued to have vaginal discharge and irregular menstrual cycles. Dr. Sloka provided a medical a basis for the pelvic examination. Dr. Bril could not and did not challenge the medical reasonableness of this examination. In the absence of an opinion from another qualified expert, I have no basis for concluding that Dr. Sloka’s clinical decision defied common sense.

[5715] Relatedly, the Crown argues that Dr. Sloka did not take any further steps after the pelvic examination to investigate Ms. I.R.’s swollen inguinal glands. However, Dr. Sloka did take additional steps. He ordered bloodwork and provided Ms. I.R. with a Diflucan prescription.

[5716] The Crown also argues that Dr. Sloka’s treatment of Ms. I.R. undermined his claims regarding certain standard practices.

[5717] The Crown notes that Dr. Sloka failed to document a “general examination” [which is a catch-all term for non-neurological examinations] in his consultation letter for Ms. I.R., whereas he noted general examinations for Ms. F.C. and Ms. A.D. Dr. Sloka testified, though, that he did not tend to record examinations with negative results. The documentation of Ms. J.C.’s and Ms. A.D.’s examinations were exceptions to the general practice. Ms. I.R.’s conformed with it. The Crown did not cross-examine Dr. Sloka on this alleged inconsistency.

[5718] The Crown also contends that Dr. Sloka failed to follow his purported standard practice of conducting a breast examination when prescribing birth control to Ms. I.R. However, the Crown did not cross-examine Dr. Sloka on this point. Ms. I.R. made clear that she had been taking this medication before her headaches. I have no way of knowing whether this reality might have played a role in Dr. Sloka’s approach. Also, despite the absence of cross-examination on the issue, Dr. Sloka testified that he expected Ms. I.R. to be seeing Dr. Frank in the near future who would further discuss her birth control options with her. This expectation is made clear in Dr. Sloka’s consultation letter. I have no way of knowing whether that reality played a role in his thinking. In the absence of cross-examination on the subject, I place no weight on any alleged deviance from Dr. Sloka’s purported standard practice when prescribing birth control.

[5719] The Crown also argues that Dr. Sloka attempted to hide information about vaginal examinations and Ms. I.R.’s discharge from Dr. Frank. The Crown contends that Dr. Sloka thereby revealed a strong interest in keeping the vaginal investigations secret. Dr. Sloka, they argue, betrayed a consciousness of guilt. This submission has no merit.

[5720] Dr. Frank’s patient chart for Ms. I.R. was entered into evidence. That chart proves that Dr. Sloka sent Dr. Frank all his consultation letters for Ms. I.R. Dr. Sloka also forwarded Ms. I.R.’s abdominal ultrasound, pelvic ultrasound, vaginal swab, and STD urine test. Dr. Sloka also made specific reference to the vaginal swab in the letter he sent on March 29th. Clearly, Dr. Sloka had no qualms about conducting procedures that involved Ms. I.R.’s vagina. True, Dr. Sloka did not report the pelvic examination conducted five months previously. However, Dr. Sloka explained that, at the time of the referral, this examination was distant. He did not think he did a second pelvic examination. If correct, there was nothing to report there. A review of Dr. Frank’s file leads me to conclude that, if Dr. Sloka was hiding, he was hiding in plain sight in front of an educated gynecological specialist. I see no evidence of any consciousness of guilt. I see no evidence of any deliberate attempt to conceal his “vaginal investigations” of Ms. I.R..

[5721] Having considered the numerous frailties in Ms. I.R.’s evidence, having considered the limitations of Dr. Bril’s evidence, and having considered all the submissions concerning Dr. Sloka’s evidence, I am unable to accept the Crown’s invitation to reject Dr. Sloka’s evidence.

[5722] I am unable to conclude that Dr. Sloka conducted any more than two skin examinations, one at each of the first two appointments. I am unable to conclude that Dr. Sloka conducted any more than one pelvic examination, which occurred at the second appointment. And I am unable to conclude that Dr. Sloka procured any more than a single vaginal swab, which he took at the fifth appointment. Dr. Sloka provided his medical rationales for conducting these examinations and the related medical investigations. Dr. Bril’s evidence proved incapable of disproving the medical reasonableness of Dr. Sloka’s rationales. The Crown’s cross-examination also proved incapable of undermining the reliability and credibility of those rationales.

[5723] There is no evidence capable of establishing that any pelvic examination was conducted in an inappropriate manner. Similarly, there is no evidence capable of establishing that the pelvic swab was taken in inappropriate manner.

[5724] While Ms. I.R. provided evidence that, if accepted, was capable of establishing that her skin examinations were conducted inappropriately, her evidence on the subject of skin examinations was wholly unreliable and tainted by her exposure to publications about the investigation of Dr. Sloka. Her evidence thus failed to prove that Dr. Sloka conducted the skin examinations in an improper manner.

[5725] Meanwhile, Dr. Sloka maintained that he conducted his examinations in a manner consistent with his training and standard practice. As noted in my general assessments of Dr. Bril’s and Dr. Sloka’s evidence, Dr. Bril’s evidence fails to refute the propriety of Dr. Sloka’s standard method of conducting full-body skin examinations. I have no reason to reject Dr. Sloka’s evidence that he conducted the skin examinations in accordance with his training and I have no sufficient reason for concluding that Dr. Sloka’s stated methodology was improper.

[5726] In the end, the evidence fails to prove the sexual nature of any examinations or conduct engaged in by Dr. Sloka. The evidence is only capable of proving that Dr. Sloka conducted what he believed were medically warranted examinations and investigations. The evidence also fails to prove that these examinations and investigations were conducted in any inappropriate manner. Also, the evidence establishes that Ms. I.R. clearly consented to every medical examination and investigation proposed by Dr. Sloka. Accordingly, the Crown has failed to prove a sexual assault.

[5727] Dr. Sloka will be acquitted on this count.

iii. S.W. (Count 37)

A Summary of Ms. S.W.’s Complaint and Dr. Sloka’s Response to It

[5728] Ms. S.W. was a patient with suspected Bell’s Palsy. The right side of her face was swollen, droopy, and experiencing numbness and tingling. For her neurological examination, she alleged that Dr. Sloka asked her to remove all clothing except her panties. He then asked her to partake in some very peculiar exercises while in her state of undress. At his request, she walked around the room, bent down to touch her toes, squatted, stood on one foot, and jumped up and down, all while wearing only her panties. He then provided her a gown and allegedly instructed her to wear it open to the front. As she lay on the examination table with her chest exposed, Dr. Sloka began to swipe his open hand across her breasts in a zig-zag fashion, brushing against her breasts and nipples, applying increased pressure with every swipe. For seven years, she had no concern about the outrageous and absurd conduct she eventually alleged. After exposure to publications about Dr. Sloka, her opinion of Dr. Sloka’s alleged conduct changed.

[5729] Dr. Sloka denied all of Ms. S.W.’s allegations. By the time she saw him, her symptoms had essentially resolved. Based on her history, he concluded that she had likely suffered Bell’s Palsy. He conducted a standard neurological examination. Given the isolated location of her since resolved symptoms, he did not think it likely he asked her to wear a gown for the examination.

The Circumstances of Ms. S.W.’s Referral and Treatment History

[5730] The GRH ER referred Ms. S.W. to Dr. Sloka at the conclusion of her trip to the ER on February 2, 2011. At the time, Ms. S.W. was 37 years old, married, and had three boys. Illness had been running through her family. Before her trip to the ER, she had been ill. Then, over the course of two days, she started to experience troubling symptoms on the right side of her face: that side grew puffy, her lip was swollen, and she felt numbness and tingling, like when the freezing starts to dissipate after a trip to the dentist. She decided to attend the ER. The ER doctor suspected she had Bell’s Palsy and referred her to Dr. Sloka.

[5731] With the aid of her medical records, Ms. S.W. agreed that she attended a total of three appointments with Dr. Sloka. The first appointment occurred on March 1, 2011. The second occurred on April 6, 2011. The third appointment occurred on June 27, 2011. Dr. Sloka examined and diagnosed her at the first appointment but nevertheless ordered tests. Her symptoms returned before her second appointment. Dr. Sloka examined her and ordered more tests to rule out any inflammatory syndrome. By the third appointment, some mild symptoms remained, but none of the tests revealed any underlying disease. He decided against any additional follow-up.

The Evidence of Ms. S.W.

[5732] As alluded to above, and not surprisingly, Ms. S.W. had some difficulty remembering when she began to see Dr. Sloka and the number of times she saw Dr. Sloka. At the time she made her complaint she did not have the benefit of her medical records. With the aid of her medical records, she agreed to the treatment history described above.

[5733] According to Ms. S.W., the allegedly improper examination occurred at her first appointment with Dr. Sloka.

[5734] Ms. S.W.’s memory of the layout of the clinic was inaccurate. In her recollection, the hallway adjacent to Dr. Sloka’s office widened into an alcove. The reception area did not exist in a separate room. It had no doorway. She recalled being able to see the waiting area as she approached it on her walk from the elevator. She called this waiting area an alcove. The receptionist sat behind a window build into one wall. The door to Dr. Sloka’s office was located on the opposing wall.

[5735] Ms. S.W. did not recall filling out the patient information sheet contained in Dr. Sloka’s file. She also did not remember Dr. Sloka’s secretary providing her with a sheet.

[5736] Ms. S.W. also did not remember Dr. Sloka retrieving her from the waiting area and bringing her to his office. She simply remembered going to the door opposite the secretarial window. While providing this narrative, she also stated that she did not recall how Dr. Sloka’s office connected to the alcove.

[5737] When she entered Dr. Sloka’s office, she sat in a chair, while Dr. Sloka stood with his back to her.

[5738] Ms. S.W.’s inaccurate description of the layout of the office is important, because it is integral to her narrative of the events that transpired during the appointment.

[5739] In Ms. S.W.’s memory, the office contained both Dr. Sloka’s desk and his examination table. As she recalled it, Dr. Sloka did not have a separate examination room. Ms. S.W. described Dr. Sloka’s desk as being a rectangular, dark, older style, and wooden desk. The desk extended perpendicularly from the wall that stood immediately to the left of the doorway, so that Dr. Sloka could face the doorway as he sat at his desk. The examination table sat at the other side of the room, across from but slightly offset from the desk. When later walking away from the examination table towards the desk, she had to angle her path to avoid walking into the corner of the desk. The table did not abut the opposing wall, though. In her memory, it sat sufficiently far away from the wall that there existed space for Dr. Sloka to walk around the entirety of the examination table. Being an open concept office and examination area, Ms. S.W. recalled an office chair being available for use as place to hang her clothes when she got undressed. Ms. S.W.’s diagram of the office was entered as Exhibit 61.

[5740] Defence counsel cross-examined Ms. S.W. on her recollection of the office layout. When presented with the photographs of Dr. Sloka’s actual office, from Exhibit 2, Ms. S.W. agreed that the L-shaped desk pictured in the photograph looked nothing like the desk she remembered. She testified that the desk depicted in the photograph was not the desk at which she sat. She also testified that the office depicted in the photograph did not look like the room in which her appointment occurred, noting the absence of an examination table. When shown a picture of Dr. Sloka’s actual examination room, as depicted in the photographs in Exhibit 2, she denied that her examination took place in the room depicted. She insisted that her appointment involved a single room with both a desk and an examination table. She pointed out that the photographs appeared to have been taken in 2017, implying that Dr. Sloka could have utilized a different office. Alternatively, she posited that “furniture and things can be moved.” She made the same suggestion about the walls, implying that Dr. Sloka must have made changes to his office between the time of her appointment and the date on which the photographs occurred. It was clear from her evidence that she recognized that the office and examination rooms depicted in Exhibit 2 were each too small to accommodate both Dr. Sloka’s desk and his examination table. She also did not remember the examination room having a counter or sink in it. She also recognized that the examination room did not have chairs on which to hang her clothes. If her examination occurred in the examination room depicted in Exhibit 2, she would not have been able to hang her clothes on the same chair as her winter coat unless she left the examination room and returned to the office. She also would not have been able to walk unobstructed from the examination table to the desk. In the photographs contained in Exhibit 2, a wall and doorway stood between the examination table and Dr. Sloka’s desk. Faced with all these unquestionable realities, Ms. S.W. insisted that her appointment did not occur in the rooms depicted in Exhibit 2.

[5741] When the appointment began, Dr. Sloka discussed with Ms. S.W. her symptoms and medical history. The information Dr. Sloka reported in his consultation letter for this appointment was accurate.

[5742] After taking her history, Dr. Sloka told her that he wanted to conduct an examination to rule out some potential diagnoses. He wanted to conduct some basic neurological tests to see if there was any connection between her brain and her symptoms. He told her that she would need to undress for the examination.

[5743] Ms. S.W. said that she expected Dr. Sloka to provide her a gown. She recalled seeing a gown on the examination table before she ever removed her clothes. On her evidence, she asked Dr. Sloka whether she should wear the gown frontwards or backwards. He allegedly told her that he did not want her to put the gown on just yet, commenting that he would not be able to assess her properly with her gown on. However, she acknowledged that she did not report this alleged instruction when providing her statement to the police.

[5744] Ms. S.W. testified that she disrobed as directed. Apart from her panties, she was entirely naked. She could not remember, though, whether Dr. Sloka remained in the room while she disrobed or departed somewhere to allow her privacy to change. As noted, in her memory, she placed her clothing on the chair at which she sat when Dr. Sloka interviewed her, the same chair on which she placed her winter coat. According to her recollection, she did not change in the examination room while Dr. Sloka waited in his office.

[5745] Ms. S.W. described her physical examination as having three different phases: a standing phase, a sitting phase, and a phase in which she lay on the examination table.

[5746] The standing phase occurred first. This phase began with her walking back and forth from the examination table to the opposite wall. She made two round trips. As mentioned, she recalled having to angle her path to avoid hitting the table. He then asked her to stand on a single foot and hold the position. She performed this test on one foot, then the other. Next, he asked her to jump up and down on the spot. She may have done this twice. He then tested her arm strength by pushing down against her outstretched arms as she applied opposing force. Afterwards, Dr. Sloka allegedly asked her to bend over at the waist. Then, he asked her to crouch down. All these tests occurred while she was naked except for her panties. Though it lasted for an estimated 10 minutes, Ms. S.W. testified that she did not feel uncomfortable and did not suspect anything was amiss.

[5747] In her next memory, Ms. S.W. was seated on the examination table. She did not recall how she came to sit there. She also did not remember whether she was gowned while sitting on the examination table. She denied that she sat fully covered with her gown tied up, though. She testified that at some point Dr. Sloka specifically instructed her not to tie her gown. She had not previously proffered this information to anyone. When challenged about this new allegation by defence counsel, she agreed that she did not actually remember Dr. Sloka instructing her to refrain from tying the town. She had portrayed an inference as a memory.

[5748] Ms. S.W. remembered Dr. Sloka using a mallet to test the reflexes on her knees and ankles. She also remembered Dr. Sloka running something along the bottom of her foot. During this phase, he also tested her sensitivity to touch on her face. He may also have asked her to stick out her tongue. Defence counsel suggested that Dr. Sloka conducted various other components of his standard neurological examination while she sat upright on the examination table. She was unable to recall these other components.

[5749] Ms. S.W. did not remember how she transitioned from sitting upright to laying down on the examination table. This was the first phase of the examination in which she specifically remembered wearing a gown.

[5750] Ms. S.W. testified that the laying-down portion of the examination began with Dr. Sloka testing her sensation to touch and her sensation to temperature. He used continuous motion and quick short touches to test her sensation to touch. She recalled him using a metal object to test her sensation to temperature; she also thought he used something else. He began at her feet.

[5751] Ms. S.W. had a vague recollection of Dr. Sloka pushing his hand against her feet while assessing her for sensation. She could not recall anything about the mechanics. For instance, she could not remember if her legs remained outstretched and he asked her to flex her feet from the ankles. She also could not remember if she drew her knees up and pushed against Dr. Sloka’s from a horizontal crouch. When asked, she stated, “I don’t have a specific recollection.”

[5752] Moving on, Ms. S.W. testified that the sensation testing progressed from her feet and up her legs. As he progressed, he sought feedback. He progressed to her upper thigh but stopped well short of her underwear. He did not examine her hips or pelvic area.

[5753] After testing her legs, he then tested her hands and up her arms. When assessing her hands, he also asked her to squeeze his hand.

[5754] Then, without warning, Dr. Sloka allegedly opened her gown by sliding his hands inside it and pulling it open. Suddenly, her breasts were exposed. According to Ms. S.W., Dr. Sloka then swiped his hand from the centre of her chest, across her breast, and towards her arm. As he swiped, his hand brushed against her nipple. He allegedly zig-zagged across her breast three or four times in a continuous motion. With each pass, he applied more pressure against her breast. During one pass, Dr. Sloka brought his hand to the inner portion of her breast and moved her nipple with his finger. He allegedly repeated the process with her other breast.

[5755] Ms. S.W.’s trial testimony about the alleged breast-touching contained far more detail than her original police statement. It also unquestionably contradicted her police statement. In her police statement, she alleged that Dr. Sloka touched in and around her chest area and on her breast with a cold metal object when assessing her sensitivity to temperature. She did not allege that Dr. Sloka used his hand or fingers to touch her breast. She did also not allege that Dr. Sloka touched her nipples, not with a metal instrument, not with his hand, and not with his finger. She also did not describe the strange zig-zagging motion or the progressively increased hand pressure that she described at trial. Also, in cross-examination, Ms. S.W. testified that she had no memory of Dr. Sloka using a cold metal object to touch her breast. This concession seems particularly strange given what Ms. S.W. said in-chief after the Crown used her police statement to refresh her memory. Originally, she testified that Dr. Sloka said nothing as he repeatedly caressed her breasts. Using her police statement to refresh her memory, she testified that Dr. Sloka told her he was assessing her sensation to temperature as he was touching her breasts. Despite this aided recollection in-chief, Ms. S.W. still had no memory at trial of Dr. Sloka using a metal object to touch her breasts with a cold metal object.

[5756] According to Ms. S.W., the physical examination ended after Dr. Sloka finished touching her breasts.

[5757] Ms. S.W. agreed that what she described at trial could be construed as intimate touching of her breasts. However, she testified that, at the time of the examination, she was not able to judge whether the touching was sexual in nature. Her focus was on her health. She testified that she interpreted the touching as medical in nature at the time. She did not think her examination was improper until she read about other allegations in the media. Her review of those other allegations influenced her perception of her own examination. However, she rejected the suggestion that her memory or narrative were influenced by her review of those other allegations. She also claimed that subsequent neurological examinations influenced her perception of that Dr. Sloka’s examination was improper.

[5758] When the examination ended, Dr. Sloka told her that she could get dressed. She did not remember whether Dr. Sloka left the room while she put on her street clothes.

[5759] After Ms. S.W. put on her clothes, she sat in the chair in which her clothes had allegedly just rested to have a conversation with Dr. Sloka. According to her, and contrary to his consultation letter, Dr. Sloka did not arrive at a diagnosis. She remembered him telling her that it is easier to eliminate possibilities than it is to arrive at a diagnosis. Her ordered bloodwork and an MRI to investigate possible explanations for her symptoms. She recalled leaving the appointment with continuing concern about her health but also a feeling of relief at finding a doctor who was prepared to search for a diagnosis. However, on her evidence, Dr. Sloka did not plan to see her in follow-up.

[5760] Ms. S.W. did not remember her second appointment until she reviewed her medical records in preparation for trial.

[5761] The second appointment occurred on April 6, 2011. As she remembered it, she called her family doctor because she continued to experience symptoms. Her family doctor told her to make appointment with Dr. Sloka. As already noted, on her evidence, Dr. Sloka had not arranged to see her in follow up. Also, she had yet to attend for her MRI. According to Ms. S.W., she attended this appointment and discussed her ongoing symptoms with Dr. Sloka. On her evidence, and contrary to Dr. Sloka’s consultation letter, Dr. Sloka did not re-examine her at this appointment. She did not recall whether Dr. Sloka ordered additional bloodwork, as reported in Dr. Sloka’s consultation letter. She testified that Dr. Sloka mentioned that he would investigate whether her MRI could be expedited. Nothing else about the appointment stuck out in her mind.

[5762] In June, Ms. S.W. obtained her MRI.

[5763] Ms. S.W.’s third appointment occurred on June 27, 2011. She brought her husband for support. At Dr. Sloka’s request, she also obtained and brought her MRI results to the appointment. Dr. Sloka reviewed the MRI at the appointment. He said he could not see anything of concern in the MRI. However, he said he would get back to her after he received the radiologist report. Later, he left a voice message at her home, indicating that the radiologist report indicated that something was found. According to Ms. S.W., she called back the next morning and spoke to Dr. Sloka. He told her that the abnormality was insignificant. It did not warrant medication or a referral to a neurosurgeon. He told her that her symptoms were likely related to the virus. He said that if her symptoms got worse, she could contact his office directly.

[5764] Ms. S.W.’s recollection of the sequence of events leading up to and following her third appointment stood at odds with the records in Dr. Sloka’s file. Although she did in fact attend for an MRI on June 15th and although Dr. Sloka did not have the radiologist’s report by June 27th, the radiologists report from June 15th did not resolve all concerns about Ms. S.W. The radiologists report indicated a structural asymmetry. The radiologist was unable to determine whether the apparent asymmetry represented a “trigeminal ganglioneuroma” or an acceptable asymmetry “within normal limits.” As a result, the radiologist wrote, “Clinical correlation is recommended.” Ms. S.W. took part in a second MRI on September 8, 2011. By that date, the radiologist concluded that the asymmetry was likely within normal limits.

[5765] Ms. S.W. thought no further about Dr. Sloka until reading about allegations against Dr. Sloka in the news. She saw publications from three waves of media before making her police complaint. In the first wave, media outlets published news about the CPSO investigation. In the second wave, they published news about the revocation of Dr. Sloka’s licence at the conclusion of the CPSO hearing. In the third wave, media outlets published news of the initial 34 criminal charges of sexual assault against Dr. Sloka.

[5766] Ms. S.W. remembered reading news about the CPSO investigation. She testified that she got her news from CTV. However, she denied knowing that patients had complained to the CPSO about sexual impropriety. She purportedly thought the investigation concerned Dr. Sloka’s billing practices. Confronting her claim, defence counsel presented Ms. S.W. with a headline from CTV, entitled, “Grand River Hospital Neurologist Facing Sex Assault Allegations.” In response, Ms. S.W. testified that she had read publications from an earlier point in time, implying that these earlier publications did not mention sexual abuse allegations. Indeed, she testified that she saw news about Dr. Sloka four to five years before she lodged her complaint with the police. However, the comprehensive media brief filed on consent disclosed no earlier publications. Defence counsel had shown Ms. S.W. the commencement of the media reporting of the allegations against Dr. Sloka. The very first articles published about the CPSO investigation were published in July of 2018, a mere 15 months before Ms. S.W. contacted the police.

[5767] According to Ms. S.W., she did not become aware of the sexual nature of the CPSO allegations until her exposure to the second wave of media. At this juncture, she learned that Dr. Sloka’s licence had been revoked in response to allegations of sexual misconduct. She knew the conduct being described was criminal behaviour. She also believed that the criminal investigation began around the time that Dr. Sloka lost his medical licence. She recalled reading allegations of two patients, one of whom complained of digital penetration. According to Ms. S.W., the allegations she read about were far more serious that the complaint she ultimately lodged. As a result, these allegations did not cause her to reconsider the propriety of her own examination.

[5768] On Ms. S.W.’s telling, she did not read about allegations of inadequate draping or breast touching until reading stories from the third wave of media. Only after reading these allegations did Ms. S.W. decide that her own examination had been inappropriate.

[5769] Evidence contained in the jointly submitted media brief flatly contradicts Ms. S.W.’s evidence about the content and timing of her exposure to news of allegations like her own. The very first article from the first media wave included patient complaints about inadequate draping, being told to completely undress for examinations, and inappropriate breast touching. These allegations were reported in news from her go-to source, CTV news. These allegations were consistently repeated by multiple media outlets in the first media wave.

The Evidence of Dr. Bril

[5770] Dr. Bril agreed that it was reasonable for Dr. Sloka to conduct neurological examinations at Dr. Sloka’s first two appointments. She viewed Ms. S.W.’s presentation as a completely straightforward case of Bell’s Palsy. The behaviour Ms. S.W. alleged had no place in a standard neurological examination. It would not be reasonable to ask Ms. S.W. to walk around the room in only her underwear, perch on one foot, bend over, or crouch without clothes on. It would also not be reasonable to rub Ms. S.W.’s breasts and nipples. Dr. Sloka agreed. Dr. Bril’s evidence regarding Ms. S.W. was therefore effectively immaterial.

The Evidence of Dr. Sloka

[5771] Dr. Sloka had no independent memory of Ms. S.W. He relied upon his consultation letters for the truth of their contents and the remainder of his file for context.

[5772] Dr. Sloka first met Ms. S.W. on March 1, 2011. Dr. Sloka confirmed that his office configuration at the time was the same as shown in Exhibit 2. His office was never configured any differently, neither was the reception area. Also, Dr. Sloka testified that his examination table did not float freely in the room. It abutted the wall opposite the door to his office.

[5773] A doctor from the GRH ER referred Ms. S.W. to Dr. Sloka.

[5774] Based on Ms. S.W.’s medical history and the ER referral, Dr. Sloka suspected that Ms. S.W. had suffered a bout of Bell’s Palsy. Accordingly, he proposed a neurological examination. Dr. Sloka explained that Bell’s Palsy occurs when a single nerve serving the face is pinched due to swelling. He might have explained this to Ms. S.W. using an anatomy textbook, but he could not remember. In any event, given the involvement of only a single nerve servicing the face, he did not believe he would have asked Ms. S.W. to wear a gown for the neurological examination.

[5775] Dr. Sloka testified that the neurological examination occurred in his examination room, not his office.

[5776] Dr. Sloka denied ever telling Ms. S.W. to refrain from wearing a gown and to move about in only her panties.

[5777] Dr. Sloka insisted that he conducted his standard neurological examination in accordance with his standard method. Dr. Sloka also insisted that he only employed the standard components of his standard neurological examination. Dr. Sloka denied asking Ms. S.W. to balance on one foot, to jump up and down, to bend over and touch her toes, and to squat as far as is comfortable. These four exercises did not form part of Dr. Sloka’s standard neurological examination.

[5778] Dr. Sloka also denied ever asking Ms. S.W. to wear her gown open to the front. He did not ask his patients to wear their gown in this fashion. He also denied telling Ms. S.W. to refrain from tying it up.

[5779] Dr. Sloka also denied ever exposing Ms. S.W.’s breasts and he denied touching them in any fashion.

[5780] After completing Ms. S.W.’s neurological examination, Dr. Sloka concluded that Ms. S.W. had suffered an episode of Bell’s Palsy which had since resolved. He told her his opinion. As a precaution, he ordered an MRI of her brainstem, to ensure the absence of any lesions that might require consideration of an MS diagnosis.

[5781] Dr. Sloka made no immediate plans for a follow-up appointment, opting instead to call Ms. S.W. if the MRI revealed abnormal results.

[5782] Ms. S.W. came to see Dr. Sloka again on April 6, 2011, because she had suffered two more episodes like her first one. Dr. Sloka repeated his neurological examination because she had suffered these additional episodes. The results of that neurological examination were normal. Ms. S.W.’s MRI had been booked for July. He decided to try and expedite it. He also ordered bloodwork to rule out inflammatory disorders. He planned to see Ms. S.W. after she completed her MRI and bloodwork.

[5783] On June 27, 2011, Dr. Sloka saw Ms. S.W. for a third and final time. Ms. S.W. brought her MRI images to the appointment. He had not yet seen any report from the radiologist. Dr. Sloka saw no lesions to indicate the possibility of MS or any other condition. However, he still wanted to see the radiologist’s report to make sure nothing subtle was observed by the radiologist. Ms. S.W.’s bloodwork produced normal results. Dr. Sloka wrote in his consultation letter, “Sometimes it is unsatisfying not to have an answer, but at the present time there does not seem to be in [sic] explanation for her symptoms.” He did not conduct any additional physical examination and did not plan to see Ms. S.W. in follow-up.

[5784] After this final appointment, Dr. Sloka received the radiologist’s report. In the report, the radiologist observed an asymmetry which might be a tumor or might be a normal structural variation. Consequently, Dr. Sloka ordered a second MRI, to ensure that no interval change occurred between MRIs. The results of that MRI arrived on September 8, 2011. No interval change was observed. The radiologist considered structural asymmetry to be a normal variation. Dr. Sloka assumed that Ms. S.W. had been informed of this finding, but he did not know or remember how.

Assessment of the Evidence and Analysis

[5785] Ms. S.W. lacked both reliability and credibility. Where her evidence conflicts with that of Dr. Sloka, I reject it. Specifically, I reject her claim that Dr. Sloka asked her to move about the room and perform exercises while wearing only her panties. I also reject her claim that any portion of the examination occurred in that near naked state. Additionally, I reject her claim that Dr. Sloka told her to wear a gown open at the front and that he dissuaded her from tying it up. I also reject Ms. S.W.’s claim that Dr. Sloka exposed and touched her breasts in any fashion as she lay down on the examination table.

[5786] I am only able to conclude that Dr. Sloka performed a neurological examination at each of the first two appointments, both of which were conducted with her consent and in accordance with Dr. Sloka’s standard methodology. Ms. S.W. consented to a medical examination in an effort to understand her medical difficulties. She obtained the examinations to which she consented. No sexual activity occurred. There was no sexual assault.

[5787] I will now explain my reasons for reaching my conclusions.

[5788] Ms. S.W.’s description of the alleged sexual assault is inextricably intertwined with her fundamentally flawed description of the clinic’s floorplan and furnishings. Unquestionably, the floorplan and furnishings in Dr. Sloka’s clinic remained constant during the entirety of Dr. Sloka’s tenure at the clinic. This objective reality rendered impossible certain aspects of Ms. S.W.’s narrative, thereby calling into question whether she ever disrobed, whether she ever needed to don a gown at any point, and whether the “standing” portion of the examination happened as she described. She could not have placed her clothing on the office chair while disrobing in the examination room. She could not have walked an unobstructed straight line from the examination table past the corner of Dr. Sloka’s desk to the opposing wall – at least not without passing through a doorway from one room into another. And she could not have been examined in the same room as both the examination table and the desk. I appreciate that people can get details wrong. I also appreciate that people can conflate memories. In doing so, they can render the possible impossible. When presented with objective evidence that disproves a purported memory, a fair witness concedes their error, even if they maintain their core narrative. Ms. S.W. was not a fair witness. When Ms. S.W. recognized the implications of her flawed description of the clinic layout and furnishings, she clung to her insistence that her appointment did not transpire in the two rooms depicted in Exhibit 2. Although it was demonstrably impossible, she insisted on the accuracy of both the details and the core of her narrative. Her obstinance hurt her credibility as much as her flawed memory hurt her reliability.

[5789] Ms. S.W.’s reliability also suffered when it was revealed she never told the police that Dr. Sloka told her to refrain from putting on the gown for the “standing” portion of her examination. Her near nakedness at this phase of the examination was a central component of her complaint. It is inconceivable that she would leave out of her police statement her claim that Dr. Sloka expressly engineered this aspect of the alleged sexual abuse. Without this detail, her narrative more resembles a dream sequence than a realistic and logical narrative. Apparently, in the retelling, she added detail to give her narrative logic.

[5790] Ms. S.W. added other details to her narrative and passed them off as memories when, in fact, they were inferences. She testified that Dr. Sloka told her to refrain from tying up her gown, when attempting to support her claim that Dr. Sloka was able to pull apart her gown without the need for untying it. This purported memory provided a crucial and logical explanation of the method of her breast exposure as she lay on the examination table. As it turns out, it was not a memory at all, but rather an inference or assumption that gave logic to a narrative that might otherwise resemble a dream sequence. Ms. S.W.’s willingness to present her inference as a memory hurt both her credibility and her reliability.

[5791] Ms. S.W. similarly testified that Dr. Sloka “must have” told her to wear her gown open to the front, because she would not normally wear a gown in this fashion. That was not a memory. It was logical cross-stitching.

[5792] I want to say one more thing on the topic of gowning. On Ms. S.W.’s narrative, Dr. Sloka only examined her once. However, Dr. Sloka’s consultation letters and his evidence make it clear that he examined her twice. At the first examination, he did not think she would need to be gowned because he suspected Bell’s Palsy which involves the impingement of a single nerve that services the face. Prior to the second examination, Ms. S.W.’s symptoms had twice returned. It is obvious from the medical records and from Dr. Sloka’s evidence that he was considering a broader array of possibilities. It was here that he ordered blood tests to look for evidence of inflammatory disorders. While no one asked him about this, it seems more plausible (based on his general approach to other patients about whom Dr. Sloka considered inflammatory conditions like lupus) that he might ask Ms. S.W. to gown for the second examination. However, Ms. S.W. makes no claim that she wore a gown opened at the front or even wore a gown at all for her second appointment. Indeed, as already mentioned, she makes no claim of an examination. Nevertheless, it seems entirely plausible that she remembers gowning for an appointment with Dr. Sloka because she gowned at her second appointment.

[5793] Having considered the frailties of Ms. S.W.’s evidence on the subject, I place no weight on Ms. S.W.’s evidence about her disrobing and gowning during her neurological examination at her first appointment.

[5794] Ms. S.W.’s credibility and reliability also suffered after she provided an account of her breast touching that indisputably contradicted the account she provided to the police. At trial, she told the court that Dr. Sloka engaged in a bizarre, zig-zagging caressing of her nipples and breasts with his palm and fingers. In her trial testimony, Dr. Sloka did not use a metal object to touch her breasts. In her police interview, she told the police that Dr. Sloka used a metal object to touch her breasts. She did not allege he used his hand or his fingers, not with a zig-zagging motion and not in any other manner. And she did not allege he touched her nipples. In my view, her two different accounts cannot be reconciled, a reality which causes me to conclude that her allegation at trial was false.

[5795] The Crown argues that Dr. Sloka’s evidence confirmed some of Ms. S.W.’s account, thereby buttressing her credibility and reliability. I disagree. Dr. Sloka did not support Ms. S.W. on any material issue, only on undisputed matters. He agreed he performed a neurological examination. He agreed that a neurological examination would involve testing for sensation to touch and temperature. He agreed he might ask her to stick out her tongue. He agreed he might assess her gait. On his evidence and according to his records, he did these types of things at two successive appointments. Agreement on non-material issues does not confirm contested allegations.

[5796] I have permitted the use of cross-count similar fact evidence to support the inference that Dr. Sloka possessed a sexual motive when conducting examinations on patients. An inference of a sexual motive might incidentally support the inference that the Dr. Sloka performed the intimate acts about which Ms. S.W.’ complains. However, having considered Ms. S.W.’s unreliable and uncredible evidence, having considered Dr. Sloka’s contemporaneously authored consultation letters, and having considered Dr. Sloka’s evidence, I conclude that Dr. Sloka has refuted any possible inference of a sexual motive.

[5797] The Crown also relies upon three specific cross-count similarities to support Ms. S.W.’s evidence on other material issues: (1) Ms. S.W.’s alleged membership in a group of four patients who allege that Dr. Sloke engaged in a distinctive leg strength examination while they were in various stages of undress; (2) Ms. S.W.’s alleged membership in group of patients who allege that Dr. Sloka did not explain in advance the nature of and reason for his physical examinations; and (3) Ms. S.W.’s alleged membership in a group of patients who allege that they wore their gowns open to the front. In my view, none of these specific alleged similarities are sufficiently probative to offer support for Ms. S.W.’s evidence. I will deal with each of these cross-count similar fact in order.

[5798] Ms. S.W. does not belong to a constituency of patients who allege a distinctive leg strength examination. Ms. S.W. only had a vague recollection of Dr. Sloka pushing his hand against her feet while assessing her for sensation. She could not recall anything about the mechanics. For instance, she could not remember if her legs remained outstretched while he asked her to flex her feet from the ankles. Further, she did not allege a leg press or test of her leg strength. When asked, she could not remember if she drew her knees up and pushed against Dr. Sloka’s from a horizontal crouch. When asked about this, she stated, “I don’t have a specific recollection.” Her evidence more closely resembles the description of an assessment of the plantarflexion of her foot than it does a leg strength examination. In any event, as noted elsewhere in this judgement, the small size of this supposed constituency is, in my view, more likely the product of coincidental error than it is the product of a situation specific propensity. The supposed similarity lacks any meaningful probative value.

[5799] I also do not believe Ms. S.W. belongs to a constituency of patients who allege that Dr. Sloka failed to explain the reason for their examinations. As noted elsewhere in this judgement, the Crown has included more patients in this constituency than the facts justify. Ms. S.W. testified that Dr. Sloka told her that he was going to do some basic neurological tests to see if there was a connection between her brain and her symptoms. On her evidence, he provided an explanation. On her evidence, she understood the alleged breast touching to be part of the sensation examination. Admittedly, Ms. S.W. also testified that Dr. Sloka allegedly exposed her torso without notice, but as already discussed, her narration about her disrobing and gowning was so fundamentally flawed that I place no weight upon it. Moreover, as will be discussed shortly, I consider it highly likely that Ms. S.W.’s evidence is the product of media influence.

[5800] I come now to the Ms. S.W.’s alleged membership in a group of patients who allege that they wore their gown open to the front. In total, 10 patients out of 48 made this allegation – roughly one fifth of the patients. The gown’s supplied by Dr. Sloka’s office could open either at the front or the back. Even with no memory, Ms. S.W. and every other patient had a 50% chance of belonging to this constituency. In my view, Ms. S.W.’s membership in this constituency is more likely the product of coincidence. In coming to this conclusion, I have kept in mind that Ms. S.W. was a witness who was prepared to pass off her inferences and assumptions about her gowning as actual memories. On her account, Dr. Sloka touched her breasts. That allegation becomes far more plausible if her gown opened at the front. Ms. S.W. guessed about Dr. Sloka’s instruction to refrain from tying her gown. It is not a stretch to conclude she guessed about the orientation of her gown, particularly after hearing her testify that Dr. Sloka “must have” told her to wear the gown opened at the front, because she would not normally wear it this way. To my ear, that sounded like a rationalization masquerading as a memory. Further, the tainting effect of media exposure also undermines the probative value of this piece of cross-count similar fact evidence. Admittedly, news coverage did not specifically mention patients complaining about wearing their gowns open at the front. However, repeated media articles mentioned inadequate draping and breast exposure. A patient prone to constructing memories from assumptions and logical reasoning is susceptible to assuming a manner of dress that most easily facilitates the exposure of her breasts. In all the circumstances, I do not think this category of similar fact evidence is sufficiently probative to offer support to Ms. S.W.’s evidence. I do not see a situation specific propensity. I see random coincidence and tainting.

[5801] I would now like to delve deeper into the subject of tainting and Ms. S.W.’s efforts to distance herself from the suggestion that her complaint was influenced by media tainting. As described above, Ms. S.W. was exposed to three waves of media. Her go-to news source was CTV news. From the beginning, CTV news reported about complaints of inadequate draping, breast exposure, and breast touching. I do not believe Ms. S.W.’s claim that she was unaware of the nature of the initial allegations when exposed to this first wave of media. Given the content of the stories in her go-to news source, it is obvious that Ms. S.W. knew in 2018 that Dr. Sloka was under CPSO investigation for allegations of improper draping, breast exposure, and breast touching. When confronted with this reality, she attempted to preserve her narrative by claiming initial exposure to news stories about Dr. Sloka’s disciplinary four or five years prior to her police complaint – an impossibility which harmed her credibility the moment she proffered it. Ms. S.W. testified that news of breast exposure and breast touching allegations caused her to reconsider the propriety of her own examination. The evidence convinces me that she first read those allegations when reading the first wave of media in 2018. I infer that Ms. S.W. asserted a delayed exposure to these media allegations to explain her delay in coming forward. Further, having considered the deeply flawed and sensational allegations she ultimately made in court I have trouble accepting her claim that she ever considered the allegedly absurd examination procedures to be medical ones. I think it far more likely that the patently sexual conduct she ultimately alleged in fact never occurred. Given the general similarity between some of the allegations reported in 2018 and her own subsequent allegations in 2019, I think it entirely plausible that her eventual complaint was informed by and influenced by what she read in the news. I find it more likely that Ms. S.W. decided to lodge a complaint because she read that Dr. Sloka had been charged, not because she read about allegations that actually resembled her own experience.

[5802] Having considered Ms. S.W.’s evidence in the context of the entirety of the evidence, I am unable to accept any aspect of it that conflicts with that of Dr. Sloka. In particular, I reject all of her allegations regarding the near naked “standing phase” of the neurological examination, I reject all of her evidence about her attire for the neurological examination, I reject all of her evidence regarding her breast exposure, and I reject all of her allegations about Dr. Sloka touching her breasts. I am unable to accept any component of her evidence capable of leading to the inference that her neurological examination constituted sexual activity.

[5803] As already noted, Dr. Bril’s evidence does not move the needle in the Crown’s favour. Her evidence on the subject of Ms. S.W. is not controversial.

[5804] Dr. Sloka’s evidence also offered no assistance to the Crown. Clearly, his evidence was exculpatory. Having considered his evidence in the context of the entirety of the evidence and having considered the Crown’s critique of his evidence, I accept it.

[5805] Dr. Sloka offered a reasoned basis for inferring that Ms. S.W. may not have even been robed at her first appearance. As Dr. Bril put it, this appeared to be a straightforward case of Bell’s Palsy. Nothing more was suspected at the first appointment. Consequently, Dr. Sloka’s focus at the first appointment was fairly narrow. He considered it unlikely that he would ask her to wear a gown, because he was mainly focused on a single nerve in her face. If she were gowned, I accept that Dr. Sloka would not have instructed Ms. S.W. to wear her gown open to the front. That was not his practice. I accept that he had his patients wear their gowns open to the back. I accept that he performed his standard neurological examination in accordance with his standard methods. Having performed that examination, he arrived at a diagnosis and reported that diagnosis in his consultation letter.

[5806] The contemporaneous documentation of a second neurological examination at the second appointment also tends to support Dr. Sloka’s evidence. The fact that Ms. S.W. has no memory of the second neurological examination suggests that nothing unusual happened at the first one. Also, the existence of a second examination, in which Dr. Sloka had more of a reason to ask his patient to wear a gown, provides a plausible explanation for Ms. S.W.’s memory of being gowned at some point.

[5807] The Crown offers only one critique of Dr. Sloka’s evidence. Apart from that single critique, the Crown relies upon the unconvincing similar fact evidence, non-existent confirmation from Dr. Sloka, and the uncredible and unreliable evidence of Ms. S.W.

[5808] In critiquing the evidence of Dr. Sloka, the Crown argues that Dr. Sloka provided inconsistent evidence on the question of Ms. S.W.’s attire. I saw no inconsistency. He always maintained that he had no memory of Ms. S.W. In-chief, he simply observed that he saw no reason for Ms. S.W. to wear a gown given the nature of the suspected ailment. Dr. Bril herself considered this a “completely straightforward” case of Bell’s Palsy. The ER doctor also suspected Bell’s Palsy. I see no reason why Dr. Sloka would also not have arrived at that tentative conclusion before examining Ms. S.W. Dr. Sloka never claimed to remember Ms. S.W.’s state of dress. He only provided a rational basis for what he believed to be a likely albeit unremembered fact. Unlike Ms. S.W., he did not present a deduction as an actual memory.

[5809] Having considered all the evidence, I reject Ms. S.W.’s allegations. Additionally, I accept Dr. Sloka’s. Specifically, I accept that Dr. Sloka performed a medical examination. Ms. S.W. consented to that medical examination. Dr. Sloka did not engage in any sexual activity. He will be acquitted on this count.

Footnotes

1. 1In their similar fact submissions, main submissions, and reply submissions.
2. 2Her evidence on skin examinations was inconsistent. Initially, she allowed that they were part of neurology but infrequently performed. Later in her evidence, she categorically stated that neurologists do not do skin examinations.
3. 3I draw this inference despite the evidence of Dr. Giles, who claimed to have confronted Dr. Sloka about the impropriety of a neurologist conducting skin examinations. For reasons discussed later, I have rejected Dr. Giles’s evidence.
4. 4At the same time, she acknowledged that neurologists can partake in a variety of rotations and therefore their training and experience will vary.
5. 5Puzzlingly, the Crown excludes seven complainants from its application: J.P., B.P., M.R.E., K.C., C.R., T.H. (nee K.), and K.R. It does not rely upon the evidence of these complainants to support the evidence of the others. However, it relies upon the evidence of the others to support the evidence of these complainants.
6. 6For example, the Crown submitted that several witnesses alleged “breast cupping”, which supported the inference that Dr. Sloka had a propensity to “cup” the breasts of his patients, which in turn supported the inference that Dr. Sloka cupped the breasts of a specific patient during a specific examination.
7. 24I do not, however, make any findings about whether Ms. J.W. was suffering from a delusional disorder or bipolar disorder. Similarly, I do not make any findings about whether Ms. J.W. had a general reputation amongst her family for untruthfulness. Dr. Calvert was not qualified as an expert to give an opinion on Ms. J.W.’s diagnosis, and she had no direct knowledge of Ms. J.W.’s reputation within her community. Nevertheless, the admissible evidence supports the conclusion that Ms. J.W. was a very emotionally troubled teenager who in the very recent past had tried to overdose on 101 risperidone pills and was under the ongoing care of a pediatric mental health specialist. In my view, her emotional state is a relevant consideration when assessing the reliability of her perceptions and observations.
8. 7Ms. J.S., Ms. S.T., Ms. J.C., Ms. K.S.-B. Ms. M.O., Ms. J.K., Ms. A.E., Ms. A.D., Ms. E.J., Ms. J.W., Ms. J.D., Ms. J.B., Ms. I.R., and Ms. J.H.
9. 8Ms. L.F.
10. 9Ms. A.D.-E., Ms. R.P., Ms. A.F., Ms. A.R., and Ms. J.V.
11. 10Ms. S.T., Ms. F.C., Ms. S.S., Ms. K.L.G., and Ms. I.R.
12. 11Ms. Am.E., Ms. J.V., Ms. R.P., Ms. S.T., Ms. F.C., Ms. A.E., Ms. A.D., and Ms. L.F.
13. 12Ms. S.S. and Ms. K.L.G.
14. 13Ms. J.W., Ms. A.D.-E., Ms. A.F., Ms. L.F., Ms. I.R., Ms. D.H., Ms. J.D., and Ms. F.C.
15. 14Ms. J.W., Ms. L.F. (offered but deferred), Ms. A.F. (he admitted a limited skin examination to search for neurocutaneous disease), Ms. I.R., and Ms. J.D.
16. 15Ms. A.D., Ms. A.E., Ms. J.K., and Ms. S.T. Ms. J.K.’s evidence warrants a brief mention here. As I will discuss in the assessment of Ms. J.K.’s evidence, although she alleged that Dr. Sloka asked her to expose the entire front of her body, she also testified that Dr. Sloka asked her to sequentially expose discrete portions of her body, consistent with his admitted practice. I concluded that her evidence was internally inconsistent and also likely tainted by media exposure.
17. 16Ms. R.P., Ms. J.V., and Ms. A.D.-E.
18. 17Ms. J.S., Ms. I.R., Ms. E.J., Ms. J.D., Ms. A.F., Ms. J.H., Ms. J.C., Ms. K.S.-B., Ms. A.R., Ms. M.O., Ms. D.H., and Ms. N.B.
19. 18I rejected outright her claims that the appointment began in the examination room and that the examination occurred without Dr. Sloka first taking her history.
20. 19M.B. conceded that Dr. Sloka provided a justification for all examinations but the alleged breast examination; I concluded that no breast examination occurred. Dr. Sloka had no need to justify something that did not occur.
21. 20Ms. K.L. conceded that Dr. Sloka provided a justification for a cardiac examination, but she testified that Dr. Sloka did not explain why he was touching her chest and skin during the cardiac examination. In-chief, she described the contact as grazing. In cross-examination, she suggested something more intentional. Ultimately, though, she conceded that she was unsure of the mechanics of the contact. Despite any belief to the contrary, her evidence did not support the inference of intentional touching, only incidental contact. There was nothing to explain in advance.
22. 21Ms. J.S., Ms. A.D., and Ms. J.H.
23. 22Ms. P.S., Ms. Am.E., and M.B.
24. 23Dr. Sloka testified that he did not ask patients under the age of 18 to remove their bras for cardiac examinations.
25. 25See page 80 of the trial transcript from October 12, 2021.
26. 26I should note here that Dr. Sloka’s medical file does disclose that he had not ordered the EMG studies of Ms. R.P.’s legs at any point prior to this appointment. Also, his file does not contain the results of EMG studies to which he refers. I infer that Dr. Sloka simply reported what his patient told him about EMG tests ordered elsewhere. Dr. Sloka’s file reveals only one leg-EMG study ordered by him. That study was ordered on September 2, 2016. This fact becomes important when attempting to pinpoint Ms. R.P.’s last leg-sensation examination and identify its purpose.
27. 27See trial transcript, August 23, 2023, pp. 52 to 53.
28. 28While there is mention at the previous appointment on April 13, 2016, of the possibility of ordering follow-up EMG studies to investigate her restless leg syndrome, Ms. R.P.’s file indicates that no studies were ordered or done until the conclusion of her appointment on September 2, 2016.
29. 29Ms. S.T. was not alone in thinking that Dr. Sloka appeared odd. Having seen Dr. Sloka on the witness stand and having seen photographs from the media brief that showed what he looked like when he was practicing, I can understand how some might perceive him this way. He had a large red mullet at the time. As I have mentioned at various points, his idiosyncratic way of speaking might put some people off. Additionally, he simply seemed a little awkward. Charisma was not one of his defining traits. Nevertheless, he had a kind demeanour.
30. 30Recall that she testified that it did not matter whether Dr. Sloka had the training and experience necessary to competently certain examinations; she still believed that Dr. Sloka should be performing them.