WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.4(2) 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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court Information
Court of Appeal for Ontario
Docket: C58376
Justices: Watt, Lauwers and Huscroft JJ.A.
Between
Her Majesty the Queen Respondent
and
George Doodnaught Appellant
Counsel:
- Brian H. Greenspan and Jill D. Makepeace, for the appellant
- Elise Nakelsky, for the respondent
Heard: March 6-9, 2017
On appeal from the conviction entered on November 19, 2013 by Justice J. David McCombs of the Superior Court of Justice, sitting without a jury, with reasons reported at 2013 ONSC 8022.
Reasons for Decision
Watt J.A.:
Introduction
[1] George Doodnaught was an anesthesiologist. He worked at a large general hospital, along with about two dozen other anesthesiologists. Each had many patients.
[2] Some patients complained. About things they said happened during surgery. About things that happened over a period of four years. About things that, if they happened, amounted to sexual assault.
[3] The complaints had some common features. Each complainant was female. Each had a surgical site below her waist. With the exception of one, each had been administered a spinal anesthetic and put under conscious sedation. The complainants did not know one another.
[4] There was one other common feature. The anesthesiologist. Every complainant had the same anesthesiologist. And that anesthesiologist was George Doodnaught. And no one else.
[5] George Doodnaught's trial lasted 76 days. He did not testify. The trial judge found him guilty of each offence with which he was charged: 21 counts of sexual assault.
[6] George Doodnaught appeals. He says the trial judge got it wrong. He seeks a new trial.
[7] These reasons explain why I have concluded that the trial judge got it right and would dismiss the appeal.
The Background Facts
[8] The grounds of appeal advanced track closely the submissions made to and rejected by the trial judge. They are the subject of lengthy and detailed reasons which describe the findings of fact essential to proof of guilt and the evidentiary stuff of which those findings were made.
[9] A serial review of the evidence adduced at trial, recounting the precise details of each surgery and complaint, and the circumstances in which it was disclosed to family members, friends, health care professionals and, in the end, to police, would serve no useful purpose. A brief overview of the circumstances in which the offences are said to have occurred will furnish the background essential to an understanding of the flaws advanced as fatal to the conclusion of the trial judge.
The Principals
[10] George Doodnaught was a senior anesthesiologist who worked at North York General Hospital (NYGH) for about a quarter century. He was technically skilled and among the most requested of the two dozen anesthesiologists at the hospital. According to some medical witnesses, he favoured a "touchy-feely" approach to interaction with his patients, a style that involved closer physical contact with patients than other anesthesiologists practised or, in some cases, deemed appropriate.
[11] The complainant patients, all of whom are female, ranged in age from 25 to 75 at the time of their surgeries.
The Surgeries
[12] In all but one instance, the surgery in which the offences are alleged to have occurred was performed in an operating room at NYGH. The remaining count charged an offence said to have been committed during surgery at a private clinic.
[13] The surgeries, all of which were performed under a regional anesthetic with conscious sedation administered by George Doodnaught, lasted between one-half hour and almost 3 hours.
[14] In each case, the surgical sites were below the waist of the patient. The positioning of the patient on the operating table depended upon such variables as the type of surgery, the height and weight of the patient, and the surgeon's preferred arm level during surgery. The set-up of the operating rooms reflected the nature of the surgery, as for example whether it was orthopedic or gynecological.
[15] In every case, the anesthesiologist occupied an area behind draping at the head of the operating table where the patient's head rested. The draping separated the sterile surgical area from the non-sterile area. The anesthesiologist, George Doodnaught, worked in the non-sterile area. There, he monitored the patient's dosage of anesthetics, their vital signs and their level of consciousness.
The Operating Rooms
[16] At NYGH, 12 operating rooms occupy the sides or ends of a sterile corridor on a single floor of the hospital. Of the eight operating rooms in which the offences alleged here are said to have occurred, two were designated as general, with the remainder used for orthopedic, gynecological or urological surgery. The layout of each operating room differs. In particular, placement of the operating table relative to the doors of the operating room varies.
[17] The trial judge not only had 3D laser scans converted to video clips of each operating room, but took a view of each room, some of which had been configured as was typical for the type of surgeries the complainants underwent. He did not take a view at the private clinic where one surgery was performed.
Preparing for Surgery
[18] Nurses bring surgical patients into the operating room and assist them onto the operating table. Patients who will receive a spinal anesthetic sit on the operating table and lean forward so that the anesthetic can be administered. The patient then lies down on the operating table in the position selected for her surgery.
[19] The patient's arms are usually placed on padded boards extending from the operating table. Sometimes, however, depending on the nature of the surgery and the positioning of her body for that surgery, the patient's arms may be tucked in at the side of her body.
Hanging the Drapes
[20] After the area or site on the patient's body where the surgery is to be performed has been prepared, what remains to be done before the actual surgery begins is the installation of draping over the patient and operating table. The drapes are made of non-transparent material. They function as a barrier separating the sterile from the non-sterile area of the operating room.
[21] Surgical drapes vary in height depending on the preferences of the anesthesiologist and the surgeon. For orthopedic surgery, high drapes are necessary to guard against the significant risk of infection inherent in hip and knee replacement surgery.
[22] Various witnesses testified at trial that George Doodnaught preferred high drapes regardless of the nature of the surgery being performed. He would often add a white sheet to the opaque blue draping material to shield the surgical site from the patient's view.
[23] As the anesthesiologist in a surgical procedure, George Doodnaught would sit or stand on the non-sterile side of the drapes. On the right side of the patient's head was the machine used to administer and maintain the anesthetic. There was also a computer for the anesthesiologist's use in the non-sterile area. Anesthesiologists were not required to wear surgical masks and some, including George Doodnaught, tended not to wear a mask during surgery.
[24] On the sterile side of the draping, the surgeon, the assistant surgeons and the nurses stand around the surgical site as the operation unfolds. The surgical site is kept to the minimum area required to complete the surgery, especially orthopedic surgery, to minimize the risk of infection.
[25] During surgery, surgeons and those who assist concentrate on the surgery itself. The position of the drapes ensures that the surgeon cannot see the patient's face during surgery. Nor can the surgeon see the anesthesiologist during surgery if the anesthesiologist is seated. Even if the anesthesiologist is standing, the surgeon may not be able to see the anesthesiologist during surgery, depending on the respective heights of the drapes and the anesthesiologist.
Traffic in the Operating Room
[26] Apart from nurses changing shifts, the surgical team remains static during surgery. To the extent that anyone, such as a vendor representative[1] or nurse, enters or leaves the operating room during surgery, they do so by the scrub room or sterile core doors and not by the main doors, which remain closed during surgery. This is done to maintain sterility over the surgical field. The windows in the doors to the operating rooms are usually, but not always, covered to ensure the patient's privacy.
[27] Some movement does take place within the sterile field of the operating room while surgery is being conducted, but the surgeon, any assistants and the attending nurses (apart from shift changes) remain at the surgical site within the sterile area throughout the surgery.
[28] In the non-sterile area, there is no restriction on access or movement. However, during surgery the anesthesiologist remains at that location and there is little reason for others to attend there.
The Recovery Area
[29] Once the surgery has been completed, the patient is taken from the operating room to the Post-Anesthetic Care Unit (PACU). The anesthesiologist and an assistant surgeon or nurse transport the patient to PACU and provide relevant information to the PACU nurse who receives the patient.
[30] Patients under conscious sedation are usually conscious when they arrive at PACU. They are awake, converse appropriately, but fall asleep from time to time. When the patient is awake, stable and without pain or complications, she is transferred from PACU to the Day Surgery Unit for later release, or to a hospital room if they are admitted patients.
The Uncontested Issues
[31] At trial, several issues were uncontroversial. It was common ground that:
i. George Doodnaught was the anesthesiologist during the surgeries on all the complainants;
ii. each complainant honestly believed that she was sexually assaulted by George Doodnaught during or shortly after her surgery;
iii. none of the evidence of any complainant was tainted by either deliberate or unintentional collusion; and
iv. the evidence relating to each count is admissible as evidence of similar acts on all other counts.
The Positions of the Parties at Trial
[32] To better understand the arguments advanced on appeal, it is helpful to recall them as first put forward in response to the position the Crown advanced at trial.
The Position of the Crown
[33] At trial, the Crown contended that the testimony of the complainants was clear, truthful and reliable, and confirmed by their nearly contemporaneous reports to friends and family members. The evidence of similar acts demonstrated the improbability, indeed implausibility, of coincidence. The expert evidence refuted any suggestion that the dosages of anesthetics administered by the accused caused any sexual hallucinations.
[34] The trial Crown also relied upon evidence of lewd, sexualized comments that the complainants reported the accused made during surgery, in recovery and, in some cases, during post-operative visits he made to their hospital room to inquire about their recollections during surgery. In addition, the Crown pointed to the accused's exclusive opportunity to commit the offences charged, coupled with the features of the operating room and its fittings and the accused's familiarity with the routines and processes of the operating room that permitted him to remain undetected.
The Position of the Defence
[35] The defence contended that it was unfeasible for the accused to commit the offences alleged in a busy operating room due to the presence, a few feet away, of the surgical team, as well as the amount and unpredictability of traffic within the operating room itself. In some cases, the defence argued, commission of the offence as alleged was impossible because of a constellation of factors including the accused's and complainants' sizes and the height of the operating table.
[36] The defence also relied on expert evidence about intraoperative awareness and anesthetic-induced hallucinations of sexual interaction, some from commonplace events occurring during surgery, as well as of a bite-down reflex that rendered implausible some complaints of forced fellatio.
[37] In addition, the defence challenged the cogency of the evidence of similar acts to complete proof of the individual counts. It was the defence position that, to the extent that the evidence on any count demonstrated that it was impossible for the offence to have been committed as alleged, this diminished the probative force of the remaining similar acts and raised a reasonable doubt that the conduct alleged was the product of drug-induced hallucination, not human activity by the accused.
The Reasons of the Trial Judge
[38] At the conclusion of argument, the trial judge reserved his decision. About two and one-half months later, he provided over 80 pages of single-spaced reasons.
[39] The trial judge began by setting to one side issues about which there was no controversy:
i. George Doodnaught was the anesthesiologist for every complainant;
ii. no complainant's evidence was tainted by deliberate or unintentional collusion;
iii. each complainant honestly believed she was sexually assaulted by George Doodnaught during or shortly after her surgery; and
iv. the evidence of each complainant could be applied to the other counts of the indictment.
[40] After pointing out the defence position that the offences alleged did not occur, the trial judge turned to what he regarded as three core issues:
i. opportunity to commit the offences;
ii. the effect of the anesthetics on the reliability of the complainants' perceptions and memories; and
iii. the weight and impact of the evidence of similar acts.
[41] The trial judge first discussed the issue of opportunity in general terms, returning later to it in connection with each count. Among the factors the trial judge considered in reaching his conclusion about George Doodnaught's opportunity to commit the offences were:
i. the layout of the operating rooms in which the surgeries were performed;
ii. the presence, locations and functions of the various personnel in the operating rooms;
iii. the positioning of the complainants on the operating tables, including the height of the tables and the height and width of the draping separating the sterile from the non-sterile field;
iv. door access to and from the operating rooms;
v. traffic in the operating rooms during surgery;
vi. the physical characteristics of the accused;
vii. the clothing worn by the accused during surgery; and
viii. George Doodnaught's reputation for being "touchy-feely" with his patients, especially with his female patients.
[42] The trial judge rejected the defence submission that in some cases it was physically impossible for the accused to commit the acts alleged. George Doodnaught was familiar with the surgical procedures and the operating room protocols. As an anesthesiologist he worked in the non-sterile area of the operating room, shielded from view by draping and medical equipment. He occupied a vantage point which, in all but one case, allowed him to monitor traffic in the operating room and to see anyone who approached him. During surgery, his colleagues were focused on their work. The patients were sedated and unable to call for help or offer physical resistance. The trial judge concluded that the accused had the opportunity to commit the relatively brief sexual assaults without being detected.
[43] Turning his attention to the effects of the anesthetics on awareness and memory, the trial judge identified the subject-matter of dispute; set out the positions of the parties; reviewed the salient features of the evidence of the experts called on both sides of the issue; and articulated his findings on the credibility of the witnesses and the reliability of their evidence.
[44] The trial judge noted that the complainants' levels of awareness varied during different periods of their surgeries from "asleep but arousable" to "awake and responsive". The trial judge reached his conclusions on the effects of the anesthetics on the complainants' awareness and memory in these words:
Although the drugs the complainants received had amnesic effects, complete amnesia is not common for patients under conscious sedation. And negative stimuli are more resistant to the drugs' amnesic effects than routine, benign stimuli.
Put more plainly, the complainants were aware at times during the surgery, but unable to put up much resistance to unwanted events. They were able to perceive and to remember if they were subjected to sexual assault during the periods when they were awake and aware.
[45] After an overview of the chain of events that led up to George Doodnaught's arrest, including the inaction of senior hospital staff in response to three prior formal complaints, the trial judge examined each count, recording his conclusion on the complainant's reliability without any reference to the evidence of similar acts. Except for three complainants whose evidence he found believable, the trial judge was satisfied the evidence of each complainant was reliable.
[46] The trial judge summarized his findings on each count in this way:
The complainants were sedated at the time of their surgeries and the sedation no doubt [affected] their ability to accurately perceive and remember events. However, I have found that they were conscious and aware during significant parts of their surgeries and were able to recall these shocking and abhorrent events.
I have concluded that the evidence, viewed independently on each count without regard to the other counts, establishes that eighteen of the assaults have been proved on the balance of probabilities. I have found the remaining three allegations to be believable and I do not reject them.
[47] To determine whether the Crown had proven George Doodnaught's guilt in respect of each individual count contained in the indictment, the trial judge considered the effect of the evidence on the other counts in accordance with the principles relating to evidence of similar acts. He concluded:
There was no collusion. The complainants did not know each other. The drugs administered to them were within established norms administered to thousands of consciously sedated patients around the world on a daily basis.
The accused was one of roughly 25 anesthesiologists working at NYGH dealing with patients under conscious sedation using similar drugs in similar dosages. Yet all of the complaints of sexual assault are directed only at him.
In my view, it is not merely improbable, but virtually impossible, that these collusion-free allegations against a single individual could be attributed to coincidence.
The multitude of credible allegations against the same individual in similar circumstances constitutes powerful circumstantial evidence of guilt. The possibility of them being attributed to coincidence is non-existent.
Viewed separately, the allegations by each complainant may not amount to proof beyond a reasonable doubt. Viewed together, however, there is no rational conclusion to be reached other than that guilt has been proved beyond a reasonable doubt on all counts.
The Grounds of Appeal
[48] In this court, George Doodnaught recasts the defence he advanced at trial. There, he contended that the evidence adduced fell short of establishing beyond a reasonable doubt that the offences alleged actually occurred. He relied on evidence that cast doubt on his opportunity to commit the offences. He pointed to expert evidence about the hallucinogenic properties of the anesthetics. He acknowledged the admissibility, but contested the cogency of the evidence of similar acts as completing the proof on individual counts.
[49] In this court, as the appellant, George Doodnaught contends that the trial judge erred in rejecting the defence position he advanced at trial; failed to adequately explain why he did so; and attributed undue persuasive force to the evidence of similar acts.
[50] Here, the appellant's quarrel is not rooted in any legal principle so far as I can determine, but rather in the factual findings the trial judge made. Those factual findings put paid to the defence position that the conduct each complainant honestly believed took place (and which amounted to sexual assault) simply never happened. Left intact and provided the reasons given are adequate to the task set for them, this appeal cannot succeed.
[51] In line with the findings the appellant alleges to be flawed, I would paraphrase the appellant's complaints as falling under three headings:
i. the opportunity issue;
ii. the effect of the anesthetics issue; and
iii. the similar act evidence issue.
Ground #1: The Opportunity Issue
[52] In addition to the direct evidence provided by each complainant about intra-surgery conduct by the appellant which, if established, would constitute a sexual assault, the trial Crown relied upon the appellant's opportunity, near exclusive opportunity, to do what each complainant alleged, to argue that the appellant's guilt had been established. The nature of the conduct and, more specifically, the parts of the bodies involved, pointed to perpetration by somebody at the non-sterile end of the operating table, a person not involved at the surgical site. The only person who fulfilled these requirements was the appellant.
[53] The defence acknowledged the appellant's role as the sole anesthesiologist in each surgery during which the sexual assaults are said to have occurred. This acknowledgement carried with it acceptance of the appellant's opportunity to commit the offences because of his physical proximity to the parts of the body of each patient involved in the alleged conduct.
[54] For its part, the defence pointed to several features of the physical set up of the operating room; the frequency and unpredictability of traffic during surgery; the positioning of the patient on the operating table; the clutter in the non-sterile area; and the physical characteristics and clothing of the appellant as rendering unlikely, in some cases impossible, the commission of the offences as alleged by the complainants.
The Reasons of the Trial Judge
[55] Before reaching his conclusion on the issue of opportunity, the trial judge considered several factors advanced as diminishing the probative force of the evidence of opportunity. The layout of the operating rooms, including visibility from the anesthesiologist's position at the head of the operating table. The presence, location and functions of those present in the operating room during surgery. The positioning of the patient on the operating table. The height of the operating table during surgery. The height and width of the drapes separating the sterile and the non-sterile areas. The clothing worn by the appellant during surgery. The positioning of equipment in the area occupied by the anesthesiologist. The physical dimensions and characteristics of the appellant.
[56] On the issue of opportunity, the trial judge concluded:
To a lay person, operating rooms may seem busy and confusing. But the evidence shows that for the medical professionals who work there regularly, the operating rooms are carefully structured, orderly, well-organized environments. The medical procedures are carefully planned and carried out with precision. The highly-trained, skilled, and dedicated medical personnel recognize the serious nature of their work and are intently focused on their responsibilities.
The accused was familiar with the routines and patterns of the surgical procedures. With only one exception his vantage point was such that he could see anyone who approached him.
Random visits sometimes happened, but they were infrequent.
The draping at the head of the operating tables, and the equipment nearby, shielded the accused enough to allow him to commit the relatively brief assaults without being seen. The surgeons were focused on their work, and the patients were sedated and unable to call for help or to offer effective physical resistance.
I am unable to accept the defence submission that in some cases, it was physically impossible to commit the acts alleged. I will discuss the issue of physical impossibility, where relevant, when I address the counts individually later in these reasons.
I conclude that the accused had the opportunity to commit the sexual assaults he is accused of. [Footnotes omitted.]
The Arguments on Appeal
[57] The appellant says the trial judge failed to consider or to give adequate weight or effect to several aspects or features of the evidence adduced at trial. This evidence, he claims, neutralized the evidence about the appellant's opportunity to commit the offences alleged, thus rendered such opportunity unavailing as confirmatory of the accounts of the complainants.
[58] According to the appellant, among the several items or features of the evidence that were not considered or accorded their proper due in this connection were evidence of:
i. regular, unscheduled random traffic in and around the operating room;
ii. the inability of the appellant to monitor casual traffic, evidenced by reports of nursing staff of having caught him "off guard" during surgery;
iii. the ability of others to see the appellant despite the presence of surgical drapes;
iv. the obstructive capacity of various pieces of equipment in the non-sterile area; and
v. the type of clothing worn by the appellant during surgery.
[59] These deficiencies, the appellant contends, reflect not only misapprehensions of the evidence adduced at trial, but also a failure to provide adequate reasons for the purpose of meaningful appellate review. In combination, the result constitutes a miscarriage of justice which requires a new trial to put right.
[60] The respondent advances an overarching submission in connection with each of the appellant's complaints. Whether considered individually or cumulatively, the respondent says, the appellant's submissions amount to a thinly disguised attempt to retry the case, to substitute findings of fact on appeal that were available but rejected at trial. And not made at trial because of a reasoned and balanced consideration of the whole of the evidence, not cumbered by any misapprehension of evidence, palpable and overriding error of fact or erroneous consideration or application of legal principle.
[61] The respondent says that the complaint of inadequate reasons falls on barren ground. The reasons are responsive to the issues raised at trial. They are sufficient in substance to permit meaningful appellate review. They explain what the trial judge decided and why he reached his conclusion that the appellant's guilt had been established beyond a reasonable doubt.
[62] The respondent points out that the appellant's claim that frequent and unpredictable traffic in the operating room rendered it unlikely that the appellant would take the chance to commit the offence for fear of detection was rebutted by a significant body of evidence from nurses and doctors, including the Chief of Surgery. This evidence indicated that, during surgery, traffic in the operating room was limited. The surgical team remained throughout, bent to the task at hand. Random visits were rare and potentially disruptive of surgery.
[63] In a similar way, the respondent contends, the trial judge's findings that the appellant was in a position to monitor traffic in the operating rooms are well grounded in the evidence. Although some nurses testified that they had caught the appellant "off guard" during previous surgeries, it was unclear whether those observations were related to any offence with which the appellant was charged. What is more, this appears to have happened only four times over a four-year period, thus cannot fairly be said to diminish the force of the preponderance of the evidence that the appellant was able to monitor traffic in the operating rooms.
[64] Neither did the positioning of the surgical equipment, nor the fact that a nurse was able to see the close proximity of the appellant's head to that of a patient, diminish the availability of the drapes as a protective barrier to shield against detection. The only way a nurse was able to see the relative positions of the heads of the appellant and patient was to move around from her usual position in the operating room.
The Governing Principles
[65] The determination of this ground of appeal turns on the application of well-settled principles to the evidence adduced and the findings made by the trial judge. It is helpful to begin with a reminder about the role of evidence of opportunity in proof of guilt, thereafter, with a canvass of the principles that control allegations of misapprehension of evidence, unreasonable findings of fact and the adequacy of reasons.
Evidence of Opportunity
[66] Where conduct occurs and the Crown alleges that a particular person did it personally, not through an agent or some other instrumentality, it seems obvious that the person's physical presence, within the proper range of time and place, forms one step on the way to proof that the person is responsible for the conduct. In this respect, we should bear in mind that where and when some offences are committed can be established with greater precision than others.
[67] It necessarily follows that evidence which shows or tends to show that an accused was present at or near a place at or near the time an offence was committed is relevant, material and prima facie admissible. Said in another way, evidence of opportunity alone, and not exclusive opportunity, is a sufficient showing of relevance and materiality to render it prima facie admissible. Evidence of opportunity typifies the concomitant use of circumstantial evidence: Peter Tillers, ed., Wigmore on Evidence, vol. 1A (Toronto: Little, Brown and Company, 1983), at §131, p. 1704.
[68] The circumstances involving opportunity will vary according to the facts of individual cases. It is self-evident that evidence of opportunity alone is not sufficient to establish the guilt of an accused beyond reasonable doubt: R. v. Ferianz, [1962] O.W.N. 40 (C.A.), at p. 42. And it is always open to a party, such as an accused, to adduce evidence explaining away opportunity. Such as by evidence of lack of physical capacity, or by evidence that tends to show the equivalent (or better) opportunity of others: Wigmore, at § 132, p. 1706. See also, R. v. Minhas (1986), 29 C.C.C. (3d) 193 (Ont. C.A.), at p. 219.
[69] Evidence of opportunity, insufficient on its own to establish guilt beyond reasonable doubt, may also have a different complexion placed upon on it by other evidence, as for example, evidence of skill, expertise, physical capacity, or possession of tools by which an offence was committed: R. v. Davison (1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 436-437; R. v. Syms (1979), 47 C.C.C. (2d) 114 (Ont. C.A.), at p. 116. See also, Wigmore, at §§ 83-88, pp. 1599-1604. In a similar way, the principle of explaining away opportunity may permit the introduction of evidence of lack of skill, expertise, physical capacity or tools: Wigmore, at § 132, p. 1706.
[70] Evidence of mere opportunity to commit an offence is one thing, evidence of exclusive opportunity to commit an offence quite another. Indeed, evidence of exclusive opportunity, on its own, may be sufficient to prove the guilt of an accused beyond a reasonable doubt: See, R. v. Imrich, [1978] 1 S.C.R. 622, affirming (1974), 21 C.C.C. (2d) 99 (Ont. C.A.).
Misapprehension of Evidence
[71] A misapprehension of evidence may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. To succeed before an appellate court on a claim of misapprehension of evidence, an appellant must demonstrate not only a misapprehension of the evidence, but also a link or nexus between the misapprehension and the adverse result reached at trial.
[72] To determine whether an appellant has demonstrated that a misapprehension of evidence has rendered a trial unfair and resulted in a miscarriage of justice, an appellate court must examine the nature and extent of the misapprehension and its significance to the verdict rendered by the trial judge in light of the fundamental requirement of our law that a verdict must be based exclusively on the evidence adduced at trial. The misapprehension of evidence must be at once material and occupy an essential place in the reasoning process leading to the finding of guilt: Morrissey, at p. 221.
[73] The standard set for misapprehension of evidence to warrant appellate reversal is stringent. An error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge's reasoning on which the conviction is based on unsteady ground: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.
[74] Where an appellant alleges a misapprehension of evidence, an appellate court should first consider the unreasonableness of the verdict rendered at trial. A verdict may be unreasonable because it is one that could not have been reached by a properly instructed trier of fact acting reasonably, or because it can be seen from the reasons of the trial judge that the verdict was reached illogically or irrationally, in other words, due to fundamental flaws in the reasoning process: Sinclair, at paras. 4, 44.
[75] Where an appellant succeeds in establishing that a verdict is unreasonable, an appellate court will enter an acquittal. On the other hand, where the appellate court is satisfied that the verdict is not unreasonable, the court must determine whether the misapprehension of evidence occasioned a miscarriage of justice. An appellant who shows that the error resulted in a miscarriage of justice is entitled to a new trial: Morrissey, at p. 219.
Inadequate Reasons
[76] A trial judge's reasons rendered at the end of a criminal trial must be sufficient to fulfil their functions of:
i. explaining why an accused was convicted or acquitted;
ii. providing public accountability; and
iii. permitting meaningful appellate review.
See, R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15.
[77] Our approach to an assessment of the sufficiency of reasons is both functional and substantive. We are to read them as a whole, in the context of the evidence, the arguments and the trial, with the appreciation of the purposes or functions for which they are delivered: R.E.M., at para. 35. We do not view them on a stand-alone, self-contained basis or analyze them as if they were instructions to a jury. To the extent the "why" for the verdict is discernible in this way, the reasons are sufficient: R.E.M., at paras. 17-18, 37.
[78] The purposes of reasons are fulfilled where the reasons, read in context, show why the judge decided as he or she did. The object of reasons is not to show how the judge arrived at his stated conclusion in a "watch me think" fashion. Rather, reasons show why the judge decided as he or she did: R.E.M., at paras. 17-18.
[79] A trial judge is not bound to expound upon the uncontroversial or elucidate what is understood and accepted by the parties, whether the subject-matter be legal principle or evidence. Nor is the trial judge required to detail his or her finding on each piece of evidence or controverted fact, provided an appellate court can logically discern the findings linking the evidence to the verdict: R.E.M., at paras. 19-20.
[80] Where credibility is a determinative issue, a judge's findings are subject to deference and appellate intervention should be rare. Although the reasons must explain why the evidence failed to raise a reasonable doubt, the reasons need not be so detailed that they permit an appellate court to retry the case on appeal. The reasons need not establish that the trial judge was alive to and considered every crumb of evidence, or answered each and every argument advanced by counsel: R.E.M., at para. 32; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 26, 30.
[81] In our review of reasons for sufficiency, we begin from a stance of deference toward the trial judge's findings of fact. Absent palpable and overriding errors by a trial judge in his perception of the facts, his or her findings are to be respected. We must ask whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at trial, reveal the basis for the verdict rendered. We look at the reasons in their entire context to see whether the trial judge appears to have seized the substance of the matter: R.E.M., at para. 55.
The Principles Applied
[82] For several reasons, I would not give effect to this ground of appeal.
[83] In this case, the Crown alleged that the appellant committed the offences charged as a principal. As a result, the Crown was required to prove, if it could, that the appellant was present at the time and in the place where the offences were committed. The primary evidence upon which the Crown relied was the direct testimony of each complainant who described what had happened to her during surgery.
[84] As in any case in which an accused's personal presence when and where a crime has been committed is required to establish guilt, the Crown relied on evidence of the appellant's opportunity to commit the offences to assist in the proof of guilt. Evidence of the opportunity of an accused to commit an offence is an item of circumstantial evidence that enhances the likelihood that the person with that opportunity – the accused – committed the offence. While evidence of bare opportunity to commit an offence is not, without more, sufficient to establish guilt, to the extent that the evidence shows or tends to show exclusive opportunity, different considerations apply.
[85] In this case, the appellant does not, indeed cannot deny his opportunity to commit the offences charged. After all, the parts of the body of each complainant touched or affected were all at or in close proximity to the head of the patient and of the operating table on which she rested. The only place from which access could be gained to these areas of the patient was from the head of the operating table, in the non-sterile area behind the surgical drapes. And the only person who occupied that area in each surgery was the anesthesiologist. And that anesthesiologist was the appellant. In all 21 cases.
[86] As he was entitled to do, the appellant sought to explain away the evidence of opportunity, perhaps more accurately, exclusive opportunity. He sought to do so by pointing to evidence that tended to show, in some cases, the physical impossibility of him taking advantage of the opportunity and, in others, the unlikelihood of his doing so because of the likelihood of detection.
[87] In this court, the appellant claims that the trial judge mishandled and failed to adequately explain his assessment of five items of evidence. Of those items of evidence, three relate to the likelihood of detection, thus cannot be said to diminish the near exclusive opportunity of the appellant to commit the offence. The other two tend to rebut opportunity, but were rejected by the trial judge.
[88] The insuperable impediment the appellant faces in advancing this argument is that the trial judge made and adequately explained findings of fact that are rooted in the evidence adduced at trial, free of any misapprehension and palpable and overriding error and thus beyond the scope of appellate intervention.
[89] The trial judge rejected the appellant's argument that frequent, unscheduled and unpredictable traffic in the operating room told against the likelihood that the appellant would commit the offences alleged. The trial judge found that such traffic was in fact infrequent and was, for the most part, easily observable by the appellant from his vantage point behind the surgical drapes at the head of the operating table.
[90] The trial judge also found as a fact that the surgical drapes and medical equipment provided a shield for the appellant and did not render it impossible for him to have done the things alleged by each complainant. The trial judge also found that the surgical staff were focused on their surgery, at the surgical site, and not on the appellant or his activities on the non-sterile side of the drapes.
[91] These findings of fact were open to the trial judge. They are firmly tethered to the evidence given at trial and not cumbered by either misapprehension or palpable and overriding error. They are entitled to deference in this court.
[92] Worthy of reminder in connection with this ground of appeal is the added advantage of the trial judge in taking a view of all but one of the operating rooms in which the relevant surgeries occurred, to assist his understanding of the evidence adduced and arguments advanced at trial. Doubtless this aided his appreciation of the evidence. Our lack of an equivalent opportunity underscores the wisdom of appellate deference to the findings of fact made by the trial judge.
[93] Nor should we lose sight of the role of evidence of opportunity, or of exclusive opportunity, in proof of guilt. Neither is an essential element in the offences charged. Neither need be proven beyond a reasonable doubt. Evidence of opportunity and of exclusive opportunity are pieces of circumstantial evidence available for consideration by the trier of fact, together with the rest of the evidence, in its assessment of the adequacy of the Crown's proof. It is for the trial judge to determine the weight to be assigned and the inferences to be drawn from this evidence and the evidence as a whole.
[94] To the extent the appellant's complaint about the trial judge's treatment of the evidence of opportunity rests on a claim of inadequate reasons, it fails. The trial judge understood the issue, considered the evidence relevant to its determination, made findings of fact available to him on the evidence adduced at trial and explained why he did so. He seized the substance of the matter. He was required to have done nothing more.
Ground #2: The Effects of the Anesthetics Issue
[95] The second ground of appeal targets the trial judge's understanding, treatment and findings in connection with the expert evidence about the effects of the anesthetics administered to the complainants. That evidence was concerned with the likelihood that patients under the influence of these anesthetics would hallucinate about sexual experiences and bite down on any object inserted in their mouths when under anesthesia.
The Reasons of the Trial Judge
[96] The trial judge devoted several pages of his reasons to the evidence about the effects of anesthetics on awareness and memory.
[97] At the outset of his reasons on this issue, the trial judge described several subjects about which there was no serious dispute:
i. patients under conscious sedation have varying levels of consciousness during surgery, including "aware but docile and tranquil" and "asleep but arousable";
ii. creating amnesia is not the principal aim of sedation, but is a desirable side effect;
iii. complete amnesia is uncommon for patients under conscious sedation;
iv. the drugs and dosages administered by the appellant are commonly used in developed nations around the world and are well within established norms; and
v. no witness had ever heard of a case of multiple allegations of sexual assault on patients administered the level of drugs administered here.
[98] The trial judge then turned to the areas in dispute between the parties.
[99] The trial judge examined the expert evidence in connection with the defence argument that it undermined the complainants' claims of sexual assault. He noted the claim that the complainants' fragmented and sometimes inaccurate perceptions demonstrated that each was testimonially unreliable. The trial judge also referred to the defence submission that the anesthetics caused the complainants to misconstrue the appellant's caring and attentive approach toward his patients as sexually assaultive behaviour. The trial judge considered the defence claim that the combination of drugs may have had a synergizing effect, the full extent of which is not known, that could have caused or contributed to the complainants' perceptions of sexual assault. He also discussed evidence that the bite-down reflex, which the defence argued was common knowledge among anesthesiologists, rendered it highly unlikely that the appellant would have inserted his penis in a patient's mouth as several complainants testified.
[100] The trial judge reviewed the competing expert evidence and recorded his findings in respect of each witness.
[101] Dr. Susan Belo, Chief of Anesthesiology at Sunnybrook Health Sciences Centre, a practising anesthesiologist with 25 years of experience who has administered anesthetics to about 17,000 patients, testified for the Crown. She gave evidence that the drugs and dosages administered by the appellant would have left the complainants conscious for parts of the surgery with the ability to recall events that occurred during the surgery. Although her expertise did not extend to the global medical literature about sexual ideation during anesthesia, she had never heard of a patient, or multiple patients, making allegations of sexual interference by an anesthesiologist. She would not expect the dosages of drugs administered in this case to have caused sexual hallucinations.
[102] The trial judge summarized his conclusions about Dr. Belo's evidence in this way:
I find Dr. Belo's evidence to be objective, impartial, and of considerable assistance in understanding issues related to the varying levels of consciousness of the complainants, their ability to recall events, and the likelihood that their memories are the product of drug-induced sexual ideation.
[103] Dr. George Mashour, an anesthesiologist and neuroscientist who teaches these specialties at the University of Michigan Medical School, testified for the Crown. He has conducted extensive research into the incidence of intraoperative awareness of patients during surgery under general anesthesia as well as under conscious sedation.
[104] Dr. Mashour testified that in one study of almost 23,000 patients under conscious sedation, only seven reported undesired intraoperative awareness. None reported anything of a sexual nature. The reports here represented a seventeen-fold higher incidence than in Dr. Mashour's study. If the drugs were the cause, Dr. Mashour would not expect all the incidents to relate to a single anesthesiologist. As for the chances that the drugs were the reason for the 21 allegations of sexual assault against a single anesthesiologist, Dr. Mashour described them as "vanishingly rare". He also agreed that the "bite-down" phenomenon can occur when a patient under conscious sedation is waking up and an oral airway or suctioning device is inserted in the patient's mouth.
[105] In connection with the evidence of Dr. Mashour, the trial judge concluded:
I accept the defence submission that the study of sexual ideation during sedation is not amenable to precise scientific study. I accept that Dr. Mashour's studies have methodological limitations that make the results less reliable, but they do shed light on the rarity of unwanted awareness in patients under conscious sedation.
I conclude that Dr. Mashour's opinion that hallucinations of sexual assault in patients under conscious sedation is virtually unheard of is entitled to considerable weight.
[106] Dr. Joel Jeffries, an experienced and respected psychiatrist and an expert in the effects of psychotropic drugs on perception and memory, testified for the defence. Dr. Jeffries is neither an anesthesiologist nor an expert on the impact of the anesthetics administered in this case. He testified that the synergistic effects of the drugs administered here could result in sexual hallucinations. But Dr. Jeffries admitted that he paid little attention to the actual dosages administered to the complainants in this case, despite acknowledging that dosages are important in assessing synergistic effects. The trial judge found that Dr. Jeffries lacked the objectivity expected of an expert witness in part because he ignored evidence that did not support his opinion. The trial judge concluded that he could not give any weight to Dr. Jeffries' evidence.
[107] Dr. Alan Aitkenhead, an Emeritus Professor of Anaesthesia at the University of Nottingham, published author and past examiner for the Royal College of Anaesthetists, testified for the defence. He asserted that sexual hallucinations are not rare with the anesthetics administered here. But the publications summoned by Dr. Aitkenhead to support his conclusion involved dosages significantly higher than those administered in this case. Even with higher dosages, the incidence of hallucinations of sexual assault was very low. Dr. Aitkenhead acknowledged that he was unaware of any cases where anything like the number of allegations in this case have been made, much less allegations directed at a single individual with dosages well within commonly-used ranges for patients undergoing conscious sedation.
[108] Dr. Aitkenhead also expressed the view that patients in a state of diminished consciousness can misperceive standard medical practices as sexual improprieties. He suggested that the insertion of a plastic airway into a patient's mouth, the placement of a blood pressure cuff on a patient's arm, and the adjustment of ECG leads or movement of instruments resting on a patient's chest could be misconstrued as oral sex, masturbation, and breast fondling. However, the trial judge noted that no artificial airways were used in any of the complainants' surgeries, and no ECG leads were adjusted. The trial judge was also satisfied that Dr. Aitkenhead's example of the blood pressure cuff was inconsistent with the evidence and unreasonable.
[109] Dr. Aitkenhead also based his conclusion that the allegations here are the product of anesthetic-induced sexual hallucinations on the impossibility of committing the offences without detection. His opinion on this issue was less than fully informed because he had not familiarized himself with the layout of the operating rooms, including the draping, and the presence and function of medical personnel in each.
[110] The trial judge found that Dr. Aitkenhead advanced opinions that did not accord with the findings in the publications he sought to rely on. He ignored or dismissed reports that did not support his position and failed to identify an evidentiary basis for his opinions. The trial judge concluded that he was unable to rely on the opinion evidence of Dr. Aitkenhead.
[111] Dr. Orlando Hung, an anesthesiologist with a degree in pharmacy, a published author and professor in the Departments of Anesthesia, Surgery and Pharmacology at Dalhousie University, testified for the defence about the bite-down reflex and the effects of the anesthetics administered here on the memories of the complainants.
[112] Dr. Hung gave evidence that patients under conscious sedation can bite down with extreme force when something is inserted in their mouths. This phenomenon, he testified, was common knowledge among anesthesiologists. The trial judge explained his rejection of Dr. Hung's evidence on this issue in these terms:
Having considered Dr. Hung's testimony in the light of the testimony of other anesthesiologists who gave evidence at trial, I conclude that the bite-down phenomenon occurs only when an oral airway device such as a laryngeal mask or an endotracheal tube has been placed down the throat of the patient. When the device is being removed from the throat of the patient, as they are waking up from a general anesthetic or heavy sedation, patients may well commonly bite down hard, as Dr. Hung suggests. However, this phenomenon is irrelevant to the issues presented in this trial. In this trial there is no evidence that even hints that any of the complainants ever had an artificial airway placed down their throats.
[113] Dr. Hung testified that sexual fantasy was possible with the level of drugs administered to the complainants in this case. However, he acknowledged that allegations of this type, in these numbers, with these drugs, all directed at the same individual, were virtually unheard of. Although the trial judge found Dr. Hung to be knowledgeable, objective and fair, Dr. Hung's evidence did not cause the trial judge to doubt that consciously sedated patients can reliably recall emotionally traumatic events.
[114] The trial judge went on to state his findings about the effects of the anesthetics on awareness and memory:
The anesthetic drugs administered to the complainants in this case had the effect of altering their perceptions and contributing to compromised and fragmented memory. The complainants were in a state of sedation in which their levels of awareness varied during different periods of their surgeries. Sometimes, they were asleep but arousable; sometimes they were awake and responsive; and sometimes they were aware but unable to meaningfully respond to unwanted and unpleasant stimuli.
Although the drugs the complainants received had amnesic effects, complete amnesia is not common for patients under conscious sedation. And negative stimuli are more resistant to the drugs' amnesic effects than routine, benign stimuli.
Put more plainly, the complainants were aware at times during the surgery, but unable to put up much resistance to unwanted events. They were able to perceive and to remember if they were subjected to sexual assault during the periods when they were awake and aware.
The Arguments on Appeal
[115] The appellant says that fundamental to the defence position was the "bite-down" phenomenon or reflex, something well-known to anesthesiologists and a powerful deterrent to inserting a body part, such as a tongue or penis, into the mouth of a consciously sedated patient. Dr. Hung, the only airway expert who testified at trial, said that this phenomenon or reflex may occur in consciously sedated patients, although it is less frequent than in patients who are under general anesthesia with artificial airways inserted in their mouths. The appellant says that the trial judge's rejection of this evidence, in the absence of evidence to the contrary, was at once unreasonable and indicative of conclusion-driven reasoning.
[116] The appellant contends that the trial judge also erred in rejecting the testimony of Dr. Aitkenhead that consciously sedated patients would have the ability to move or cry out if they were indeed conscious, contrary to what the complainants themselves testified. In addition, the appellant urges, the trial judge erred in rejecting the defence evidence, or in resolving the conflicts in the evidence, about the synergistic effects of the anesthetics on awareness and memory.
[117] The respondent counters with the overarching submission that the appellant is simply inviting the retrial on appeal of factual determinations contested but lost at trial.
[118] The respondent points out that the appellant accepts that the bite-down reflex most frequently occurs in patients under general anesthesia where laryngeal masks or endotracheal tubes have been inserted in the patient's airway. Biting down is not as common in conscious sedation where, as here, no artificial airway is involved. Dr. Hung's opinion about this prospect was contradicted by the testimony of practising anesthesiologists whose evidence the trial judge accepted. Even without this contradictory evidence, the trial judge was not bound to accept the opinion of Dr. Hung.
[119] The respondent says that the trial judge was entitled to reject the opinions of Dr. Aitkenhead whose testimony, as the trial judge explained, overstated the findings in the studies on which he relied and failed to take into account opinions from other qualified sources that did not coincide with his own.
[120] According to the respondent, it was open to the trial judge to conclude that, to the extent that sexual hallucinations occur in anesthetized patients, the anesthetic dosages significantly exceed those administered here. Further, the hallucinations tend to be of benign, not unwanted sexual experiences. The trial judge was also right to decide that claims of the synergistic effects of the various anesthetics were unsupported by reliable studies or research.
The Governing Principles
[121] The principles that inform decisions when an appellant complains of misapprehension of evidence and the adequacy of reasons have already been canvassed. No useful purpose would be achieved by their repetition here.
[122] Three brief points will suffice.
[123] First, as with the testimony of any witness, a trial judge may accept some, none or all of the opinions offered by expert witnesses within their fields of expertise.
[124] Second, and again as with the testimony of any witness, a trial judge need not believe or make findings of fact based on the testimony of an expert witness simply because no witness is called by the opposite party or evidence adduced to contradict it: R. v. Moke (1917), 28 C.C.C. 296 (Alta. S.C., A.D.), at p. 300.
[125] Third, experts give evidence. Triers of fact, not experts, decide the issues to which the evidence of the experts relates. Triers of fact retain the power of decision, whether the trier is a judge sitting alone or a jury. While it is true that findings of fact must be grounded in the evidence and reasonable inferences drawn from it, the trier of fact, not the expert, has the final say.
The Principles Applied
[126] As I will explain, I would reject this ground of appeal.
[127] At trial, the defence adduced expert evidence for two discrete purposes:
i. to raise a reasonable doubt that the conduct which each complainant genuinely believed and testified had occurred never took place, because it was the product of the anesthetics administered by the appellant; and
ii. to raise a reasonable doubt about the occurrence of many of the events of which the complainants testified because, as an anesthesiologist, the appellant would have been aware of the "bite-down" reflex and would not have inserted his penis into any complainant's mouth, even if he had the opportunity to do so, for risk of injury.
[128] This ground of appeal founders for several reasons.
[129] First, it was for the trial judge to determine the weight he would assign to the evidence given at trial, including the testimony of the experts called by the parties. The trial judge was an eye and ear witness to the testimony of the experts. It was for him to say to what extent, if at all, he found each expert credible and their evidence reliable. He did just that. His reasons belie any misapprehension of the evidence. They are not tainted by any legal or palpable and overriding error. They are entitled to deference in this court, a consequence that no argument of the appellant has dislodged.
[130] Second, it was open to the trial judge to conclude that the hallucinogenic properties of the anesthetics could not account for the events reported by the complainants. To the extent that these anesthetics could give rise to such unfounded perceptions, the dosages involved were significantly greater than the levels administered here. The synergistic effects of the combination of anesthetics were far from clear according to the evidence admitted at trial.
[131] The opinions summoned by the appellant must also be considered in the context provided by the balance of the evidence. Twenty-one complainants. Strangers to each other. No evidence of collusion. Incidents taking place over a period of four years. Two dozen other anesthesiologists in the same hospital. But only one – the appellant – whose female patients were induced by anesthetic cocktails to report intraoperative events that never happened.
[132] Third, the expert evidence about the conduct reported by the complainants being the product of anesthesia revealed differences of opinion. It was for the trial judge to assess this conflicting evidence and record his findings. He rejected the evidence of Dr. Aitkenhead and offered cogent reasons for having done so. I am unable to tease out of the trial record any basis upon which this court can interfere.
[133] Fourth, in connection with the evidence of Dr. Hung about the "bite-down" reflex, several features of that evidence caused the trial judge to reject it. Dr. Hung acknowledged that the reflex was most common in cases in which a patient was under general anesthesia and an artificial airway inserted in his or her mouth. In none of the cases that formed the allegations against the appellant was the patient under general anesthesia. And no complainant was fitted with a laryngeal mask or endotracheal tube. Dr. Hung described sexual ideation as occurring with much less frequency in cases of conscious sedation. Despite this relative infrequency, 21 complainants, all under conscious sedation, administered and controlled by the same anesthesiologist, reported unwanted sexual contact. The trial judge was entitled to reject Dr. Hung's evidence on the basis of its inherent implausibility.
[134] Finally, the suggestion that the trial judge was bound to accept the opinion of Dr. Hung in the absence of contradictory evidence called by the Crown is unavailing. As a matter of principle, this submission is unsound. A trier of fact is under no obligation to accept the evidence of any witness, whether of fact or of opinion, simply because it has not been contradicted by the testimony of another witness.
Ground #3: The Similar Act Evidence Issue
[135] The final ground of appeal fastens on the trial judge's use of evidence of similar acts across the counts contained in the indictment in determining whether the Crown had met the standard of proof required of it on the individual counts.
[136] To appreciate the argument advanced on this issue, it is helpful to recall the positions of the parties at trial and the reasons of the trial judge explaining his use of the evidence of similar acts before venturing into the arguments advanced on appeal and a brief discussion of the governing principles.
The Positions of the Parties at Trial
[137] At trial, the parties occupied common ground that the evidence on each individual count could be applied as evidence of similar acts across the 21 counts contained in the indictment. The weight to be assigned to this evidence, the parties agreed, was for the trial judge to determine.
The Reasons of the Trial Judge
[138] The trial judge's lengthy reasons proceed through several steps and culminate in the findings of guilt on each count of the indictment.
[139] The trial judge began by setting out the uncontroversial issues. He then identified the position of the defence as a submission that the conduct that the complainants honestly believed had occurred did not take place for two principal reasons:
i. the synergistic effects of the anesthetics administered by the appellant either produced or caused each complainant to misinterpret commonplace events during surgery as unwanted sexual misconduct; and
ii. despite the opportunity or near-exclusive opportunity to commit the offences, the appellant did not do so because of the likelihood of detection by others present in the operating room; the probability of injury from the "bite-down" reflex; and in some cases at least, the physical impossibility of committing the offence in the manner alleged by the complainant.
[140] The trial judge rejected the position of the defence, not only as a matter of general principle, but also in connection with each individual count. He reached this conclusion before considering the evidence of similar acts. Satisfied that a case of probable guilt had been established on each count on the basis of the evidence related to that count, the trial judge then turned to the evidence of similar acts to determine whether the Crown had met the standard of proof required on each count.
[141] In finding guilt established on each count beyond a reasonable doubt, the trial judge concluded:
There was no collusion. The complainants did not know each other. The drugs administered to them were within established norms administered to thousands of consciously sedated patients around the world on a daily basis.
The accused was one of roughly 25 anesthesiologists working at NYGH dealing with patients under conscious sedation using similar drugs in similar dosages. Yet all of the complaints of sexual assault are directed only at him.
In my view, it is not merely improbable, but virtually impossible, that these collusion-free allegations against a single individual could be attributed to coincidence.
The multitude of credible allegations against the same individual in similar circumstances constitutes powerful circumstantial evidence of guilt. The possibility of them being attributed to coincidence is non-existent.
Viewed separately, the allegations by each complainant may not amount to proof beyond a reasonable doubt. Viewed together, however, there is no rational conclusion to be reached other than that guilt has been proved beyond a reasonable doubt on all counts.
The Arguments on Appeal
[142] The appellant acknowledges that evidence of similar acts is circumstantial evidence available for consideration by the trier of fact in deciding whether the conduct alleged in fact occurred. Said in another way, in some cases, evidence of similar acts may assist in completing proof of the actus reus of an offence.
[143] That evidence of similar acts meets the threshold for admissibility, the appellant contends, does not relieve the trial judge of the obligation to consider its weight or persuasive force in relation to the other counts. And where the evidence on individual counts renders the conduct physically impossible or highly unlikely, these factors diminish the probative value of the evidence on individual counts and of the evidence of similar acts as a whole. The trial judge failed to take these factors into account, thus overvalued the probative value of the evidence.
[144] The respondent acknowledges that evidence of similar acts is prima facie inadmissible. Its admission is exceptional and limited to cases in which its probative value exceeds its prejudicial effect. A trial judge's determination of the preponderance of probative value over prejudicial effect is entitled to deference on appeal. Here, the parties agreed that the across-count use of the evidence was justified as an exception to the general exclusionary rule.
[145] To invoke similar act reasoning, the respondent continues, the Crown is not required to prove each count beyond a reasonable doubt. No standard of proof applies to the use of evidence, or to evidence itself. Standards of proof apply only to issues of fact. The force of the evidence subsists in reasoning through probability and the unlikelihood of coincidence. Separate allegations can support each other and satisfy the standard of proof, even where a reasonable doubt may exist in relation to each when considered in isolation.
[146] In this case, the respondent says, the trial judge considered and rejected the probability of coincidence as the cause of the complaints. The appellant conceded admissibility and left weight at large for the trial judge to determine. The trial judge did so. Repetition here of the same argument advanced and rejected at trial is to no avail.
The Governing Principles
[147] A brief trawl through the mire of precedent yields a catch of basic principles that inform our decision on this allegation of error.
[148] We begin with a basic rule of exclusion – that evidence of similar acts, whether of other counts or extrinsic misconduct, is presumptively inadmissible. This presumption is rebuttable if the Crown can establish that in the circumstances of the case, on a balance of probabilities, the probative value of the evidence in relation to the issue on which it is tendered outweighs its potential prejudice and thereby justifies its reception: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.
[149] The policy basis for the exception is that the deficit of probative value weighed against moral and reasoning prejudice on which the rule of prima facie inadmissibility is grounded is reversed. Probative value exceeds prejudicial effect because the force of similar circumstances defies coincidence or other innocent explanation: Handy, at para. 47. Like any item of circumstantial evidence, the cogency of evidence of similar acts rests entirely on the validity of the inferences it could be said to support on the issue it is offered to prove: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 31.
[150] Third, because the probative value of evidence of similar acts as circumstantial evidence rests on the unlikelihood of coincidence, it makes no sense to require an allegation to be proven beyond a reasonable doubt as a prerequisite to access by the trier of fact to the evidence. Standing alone, evidence of similar acts may fall short of proving guilt beyond a reasonable doubt. But the evidence can be relied upon to assist in proving another allegation beyond a reasonable doubt in combination with other evidence: R. v. Arp, [1998] 3 S.C.R. 339, at para. 66.
[151] Fourth, evidence of similar acts may be used to assist in proof of the actus reus of an offence: Handy, at paras. 78-80; Shearing, at para. 46.
[152] An important connecting factor in the similar act analysis is the number of complaints. Here we have 21 complainants, all telling a similar story about their anesthesiologist. Absent collusion or some other form of tainting, of which the parties agree there is none, the possibility of a mistake or misinterpretation, especially when anesthesia-induced sexual ideation is rejected, seems remote: R. v. Thomas (2004), 190 C.C.C. (3d) 31 (Ont. C.A.), at para. 28.
[153] A final point concerns deference. The assessment of probative value and prejudicial effect, as well as the determination of where the balance between these competing values settles, involves the exercise of judicial discretion and, correspondingly, significant deference on appellate review: Shearing, at para. 73.
The Principles Applied
[154] I would not accede to this claim of error.
[155] The argument advanced here arises in a context circumscribed by the positions taken at trial.
[156] The defence advanced at trial, reduced to its simplest terms, was that the offences alleged never occurred, despite the complainants' generally held beliefs to the contrary. The appellant acknowledged that the evidence on each count could be applied across counts as evidence of similar acts. It necessarily follows that the appellant accepted that:
i. the probative value of the evidence of similar acts exceeded its prejudicial effect; and
ii. the evidence of similar acts was admissible to complete proof of the actus reus of each offence charged.
What remained for the trial judge to determine was whether this combination of the evidence of similar acts and the account of each individual complainant proved the appellant's guilt on each count. The trial judge's finding of adequacy is a quintessential finding of fact that is subject to significant deference in this court.
[157] Further, to be admissible as evidence of similar acts, evidence of other conduct need not satisfy a specific standard of proof. When evidence of similar acts is introduced, it is the improbability of coincidence that gives the evidence its probative force. The submission of the appellant fails to pay heed to this principle. Even if a reasonable doubt existed in relation to each allegation considered in isolation, the individual allegations remain mutually supportive and capable of establishing proof beyond reasonable doubt.
[158] In the end, as it seems to me, the revival of this argument first made at trial must suffer the same fate as its forbearer. Deference is due the trial judge.
Conclusion
[159] For these reasons, I would dismiss the appeal.
Released: October 13, 2017
"David Watt J.A." "I agree. P. Lauwers J.A." "I agree. Grant Huscroft J.A."
[1] During hip and knee replacements, vendor representatives circulate among operating rooms to ensure proper assembly of the prosthesis.
