Court File and Parties

NEWMARKET COURT FILE NO.: CR-20-9942-00 DATE: 20230922

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – WAMEED ATEYAH Defendant

Counsel: Robert Scott, for the Crown David Humphrey and Jill Makepeace, for the Defendant

HEARD: April 3-6; 11-14; 17-21; 24; 26-27; June 2; 5-9; 13; and 22, 2023

REASONS FOR DECISION

RESTRICTION ON PUBLICATION: The publication and broadcast of this ruling is banned pursuant to subsection 486.4 of the Criminal Code. Information that may identify the complainants may not be published, broadcasted or transmitted in any manner. This ruling complies with this restriction so that it can be published.

CAMERON J.:

Overview:

[1] Wameed Ateyah is charged with 24 counts of sexual assault and one count of sexual interference in relation to the complaints of fifteen women. Wameed Ateyah is a doctor who at the relevant time operated a clinic in Schomberg, Ontario. In addition to his family medicine practice where he saw rostered patients, Dr. Ateyah also saw patients on a walk-in basis. Dr. Ateyah was the only family doctor in Schomberg at the time. His clinic was also the only walk-in clinic in town.

[2] The Crown’s position is that Dr. Ateyah intentionally touched the breasts and/or genitals of each complainant in a sexual way for no valid medical purpose and therefore without their consent. It is the Crown’s position that Dr. Ateyah capitalized on his position of trust over his female patients, making up excuses to examine their breasts and genitals for pleasure.

[3] The Crown submits that the evidence of each complainant was both credible and reliable. Where there are lapses in memory, these are understandable because of the passage of time between the events and the reporting to the police. The Crown also brings a similar fact application relying on the fact that some of the complainants who have never spoken to each other describe the same or similar encounters with Dr. Ateyah.

[4] The Defence position is that some of the events described by the complainants simply did not occur. Where Dr. Ateyah agrees that the events described by the complainants occurred, the examinations performed were medically appropriate. The Defence alleges collusion with respect to some complainants where the acts described are the same or similar. The Defence asks me to accept the evidence of Dr. Ateyah as credible and reliable and suggests that some of the complainants have fabricated their evidence or are otherwise unreliable in their recollection of events.

The Evidence of the Complainants:

J.H.(1)

[5] Dr. Ateyah is charged with one count of sexual assault in relation to J.H.(1).

[6] J.H.(1) is now 27 years old. In February 2016, J.H.(1) was in her second year at Queen’s University. She had been struggling with depression and anxiety for some time. Out of concern, her boyfriend called her parents who urged her to come home. On March 10, 2016 J.H.(1)’s mother picked her up at Queen’s and brought her home to Schomberg. Her mother made a doctor’s appointment with Dr. Ateyah. J.H.(1) had never seen Dr. Ateyah before. He was the family doctor of her parents and younger sister.

[7] J.H.(1) testified that it was March 11, 2016 when she attended for her appointment. She advised Dr. Ateyah that she was struggling with depression. It is her evidence that he felt her neck and under her jawline to examine her thyroid. He then instructed her to lie down on the bed. As she was doing so he stuck his hand or hands down her pants and felt around in her groin and pubic hair area while pressing down for approximately 30 seconds over her pubic hair but not inside her vagina. Afterwards, he told her he was feeling her ovaries. J.H.(1) does not remember if Dr. Ateyah was wearing gloves during this encounter. J.H.(1) testified that she was alone in the room with Dr. Ateyah when he did this. There was no chaperone. She was not offered a gown or an opportunity to undress in private. Dr. Ateyah told J.H.(1) that she should take vitamin B12. She and her mother went to the pharmacy, purchased the vitamin and went home. She recalls seeing a sign indicating that Dr. Ateyah was required to have a chaperone with him.

[8] J.H.(1) did not report this incident to the College of Physicians and Surgeons (“CPSO”) or the police right away. J.H.(1) felt uncomfortable at the time but did not see herself as a victim. She assumed what he did was medically appropriate. She later learned that Dr. Ateyah had been criminally charged with sexually assaulting other patients. After some contemplation and discussion with her family she decided to report to the police what happened to her. She did not seek out information on-line about the other charges or complainants. She has never spoken to any of them.

E.B.:

[9] Dr. Ateyah is charged with two counts of sexual assault in relation to E.B.

[10] E.B. is now 43 years old. She was a patient of Dr. Ateyah from 2011 until 2016 when she moved out of the Schomberg area. On one visit to Dr. Ateyah, E.B. reports that she had a pap test. A nurse was present in the room during this examination. After Dr. Ateyah took the swab, he gave it to the nurse who left the room. Without explanation, Dr. Ateyah inserted two fingers into E.B.’s vagina. He was not wearing gloves. He advised her that she had “bacterial vaginosis” and gave her a prescription for both an oral and topical medication. Either on this same occasion, but likely on another occasion, E.B. made an appointment with Dr. Ateyah to discuss a previously diagnosed syndrome which causes extreme pain in her anal cavity. During this appointment, while E.B. was lying on her back, Dr. Ateyah touched her genital area with both hands. He massaged the area close to her clitoris while saying “this will relax you.” His hands also massaged the area of where her legs meet her groin.

[11] Although these encounters made E.B. feel uncomfortable she did not report them to the police or the CPSO. Years later, in 2020, her close friend sent her a text message with an article about the arrest of Dr. Ateyah. E.B.’s wife then found another article about women who complained about Dr. Ateyah. Approximately a day later, E.B. decided to go to the police and report the events described above. She has never met or communicated with any of the other complainants. When interviewed by the police E.B. indicated that she knew at least two other patients had come forward. She told the police that she recognized there was strength in numbers.

[12] E.B. was unable to pinpoint the exact dates that this appointment or appointments occurred. She had seen Dr. Ateyah many times. She believes the appointment or appointments were between 2011 and 2014. The medical records reflect that E.B. had pap tests done on two occasions, one of which was September 29, 2011. On September 19, 2011 E.B. reported to Dr. Ateyah that she had been sexually assaulted and that she had reported that sexual assault to the police. For reasons reported at 2023 ONSC 2046 given the very narrow scope of the cross-examination about this sexual assault report and the limited proposed use of the evidence, I allowed the Defence to ask questions to establish whether E.B. told Dr. Ateyah she was sexually assaulted and reported that sexual assault to the police as well as the timing of that report.

K.S.:

[13] Dr. Ateyah is charged with one count of sexual assault on K.S.

[14] K.S. is now 37 years old. She saw Dr. Ateyah on two occasions where she attended his office as a “walk-in”. On the first occasion she had a sore throat. She makes no complaint about this visit. In July 2015 she attended Dr. Ateyah’s walk-in clinic again. She was going to a friend’s cottage for the weekend and wanted relief from a migraine she had been suffering from for a week. K.S. has had migraines since she was in high school. She told Dr. Ateyah that she had a headache. Dr. Ateyah touched her neck and jaw line area. He then told her to lower her pants. She thought this was strange and conveyed this feeling through the look on her face. Dr. Ateyah then asked her to lie down and undo her pants. She complied with this request. He palpated the area of her ovaries and then moved his hands down towards her vagina. With two fingers of each hand he alternated pressing up and down. He pressed on top of her labia over her underwear. This lasted 15 – 30 seconds. He told her he was checking her ovaries. When this examination was finished, he told K.S. to take Advil every 2 – 3 hours and to follow up with her family doctor the next week. . K.S. testified that Dr. Ateyah did not tell her she had high blood pressure. She has a family history of high blood pressure and if Dr. Ateyah had told her this she would have remembered. It is something she has always been very concerned about.

[15] K.S. testified that she called her husband and her best friend who both agreed that Dr. Ateyah’s examination of her pubic area was strange.

[16] K.S. first learned that other women had complained about Dr. Ateyah through a post on a Facebook group page. She did not immediately complain to the police. It was only after criminal charges were laid that K.S. relayed her story to the police. K.S. has never spoken to or met any of the other complainants.

M.R.:

[17] Dr. Ateyah is charged with two counts of sexual assault on M.R.

[18] M.R. is now 43 years old. She suffers from Multiple Sclerosis. Dr. Ateyah was M.R.’s family doctor from 2007 until 2020. Prior to her diagnosis of Multiple Sclerosis, M.R. suffered from a number of other ailments including anxiety, pneumonia, eye issues, weakness and numbness. The charges relate to two occasions where M.R. alleges Dr. Ateyah touched her inappropriately during medical appointments.

[19] In June 2016, M.R. was experiencing back pain. She attended at Dr. Ateyah’s office where he told her to stand up while he grabbed both sides of her legs all the way up to her pelvic area. She testified that as Dr. Ateyah went up her leg with his hands, he brushed his hand against her vagina over her clothing. She was confused as to why he needed to touch her there when her complaint was of back pain.

[20] During either this appointment or a subsequent appointment Dr. Ateyah advised M.R. that he wanted to do a pelvic examination. He told her to remove her leggings and provided her with a sheet. He left the room while she changed. She testified that he told her to spread her legs. He reached under the sheet with one hand, moved her underwear to the side and felt the entrance of her vagina. He was not wearing gloves. He pushed on the area of her labia but did not penetrate her vagina. His other hand was on her abdomen.

[21] When her memory was refreshed with her medical records, M.R. was able to say that she believed both of these incidents occurred during the same appointment on June 23, 2016. Dr. Ateyah referred her for a pelvic ultrasound.

[22] M.R. also described one occasion where she believed Dr. Ateyah intentionally grazed her breast while holding a stethoscope. In cross-examination, M.R. agreed that this could have been an inadvertent touch with the tuning fork used to test for sensation. No charges resulted from this allegation. The Crown accepts that there is a reasonable doubt this was an intentional sexual touching.

[23] M.R. described several other encounters that made her feel uncomfortable. This related to comments made to her by Dr. Ateyah. At one point she alleges that after he conducted her first pap test he remarked that he had now seen every woman in Schomberg’s vagina. He also exchanged phone numbers with her so she could reach out to him with any concerns while she was alone on vacation. After the exchange of numbers Dr. Ateyah texted her very late in the evening to ask how she was. She and her mother both found this strange and inappropriate.

[24] M.R. also observed the sign in Dr. Ateyah’s office advising patients that he needed a chaperone. By the time she observed this sign, the events leading to her allegations had already occurred. She spoke to Dr. Ateyah about it. He advised her that one woman had made a complaint that he was not professional in the way he touched her during an examination. M.R. did not seek out any further information about this from the CPSO website at this time.

[25] M.R. did do an internet search of Dr. Ateyah after he moved out of his Schomberg clinic because she heard he had been “kicked out”. She came across a PDF document from the CPSO that informed her another woman had made an allegation of an inappropriate pelvic exam.

[26] After learning of the criminal charges against Dr. Ateyah, M.R. decided to come forward to the police and describe her experience with him.

C.W.:

[27] Dr. Ateyah is charged with one count of sexual assault in relation to C.W.

[28] C.W. is 58 years old. She was a schoolteacher in Schomberg and although she had her own family doctor, out of convenience from time-to-time she would see Dr. Ateyah as a walk-in patient.

[29] She testified that on October 3, 2016 she felt a pain in her lower back in the area where she believed her kidneys to be. This pain had been there for about two weeks, and it was particularly bad that day. She believed she might have had a bladder infection that was affecting her kidneys. When she went into Dr. Ateyah’s office, she told the person at the desk that since she had to use the bathroom, she may as well collect a urine sample. She was provided with a container to do so.

[30] When she met with Dr. Ateyah he asked her if it hurt when she peed. She told him it did not. He asked if she had any discharge or if it hurt when she had sex. She told him no. She did tell Dr. Ateyah that she had some itchiness in the area of her vagina. He asked about her menstrual cycles. She told him she was going through menopause. When she said this, Dr. Ateyah commented on how good she looked and asked how old she was. He then said, “whatever you are doing, you’re looking really good”. While he was saying this he was rubbing her arm from the shoulder down.

[31] Dr. Ateyah tested the urine sample and advised C.W. that it was normal. He then told her that there was something he needed to check and that he thought it could be “really serious”. He said, “it’s gone from down there up to your kidney area. I need you to lie on the bed.” C.W. testified that she did not know what he meant. He told her to undo her pants. She did so.

[32] C.W. testified that Dr. Ateyah took his hand and put it under her pants on top of her underwear and pressed his whole hand against her vagina and labia and held it there over her underwear. He commented to her that she was very tense and she should open her legs. She had no idea what he was doing. He was not wearing gloves. There was no chaperone present and she was not given any type of draping.

[33] He took his hand out of her pants briefly and then put it back in this time under her underwear. His fingernails pulled on her pubic hair. He was pressing again on her labia but not inserting his finger into her vagina. When he pulled his hand out this time, C.W. testified that she stood up very quickly.

[34] After she stood up, C.W. testified that she and one hand on her pants ready to pull them up when Dr. Ateyah told her he needed to do one more thing. He told her it was very serious and that he thought she was very sick. He told her to pull her pants down to her knees. When she didn’t do this, Dr. Ateyah came behind her and pulled them down himself. His hand went down between her legs on top of her underwear. He was pressing his body against hers and rocking her back and forth with his body.

[35] C.W. testified that while he was doing this, she told him that the pain was in her back and shoved her elbow back to show him. When she did this, he moved back. He then poked her in the back. She told him it hurt. Dr. Ateyah gave her a requisition for an internal ultrasound and advised her to follow up with him. C.W. testified that there was no abdominal exam done.

[36] Two days later, on October 5, 2016 C.W. went to see her family doctor. She relayed what happened in the examination with Dr. Ateyah. Her family doctor explained the CPSO complaint process to her. On October 6, 2016 C.W. made a complaint to the CPSO through their on-line written complaint process. The CPSO sent this matter to a disciplinary hearing which resulted in the requirement for the sign to be posted in Dr. Ateyah’s office.

[37] C.W. does not know any of the other complainants and has never spoken to any of them.

L.H.:

[38] Dr. Ateyah is charged with one count of sexual assault on L.H.

[39] L.H. is now 43 years old. In 2016 her place of employment was located in the plaza where Dr. Ateyah had his medical practice. She only saw Dr. Ateyah, who was not her family doctor, once. On July 7, 2016 L.H. woke up with “pink-eye”. She went to work that day but as the day went on her condition worsened. Rather than wait a few days to see her family doctor, L.H. went to the walk-in clinic and saw Dr. Ateyah. She testified that when alone in the examination room with Dr. Ateyah, she explained she was there to seek treatment for “pink-eye”. Dr. Ateyah told her that “pink-eye” was often a secondary infection to something else. As such he indicated he needed to listen to her lungs. Rather than put the stethoscope on her back as she was used to, he first put it in the middle of her chest and then moved it to her left breast, directly on her nipple. Dr. Ateyah then told L.H. that he needed to examine her abdomen for signs of infection. He told her to lie on the table. She did. Dr. Ateyah pressed his fingers on her abdomen and said everything felt fine. He then asked her to undo her pants. She complied. Dr. Ateyah used both hands to press first in the creases between her legs and groin and then directly on her pubic bone over her clothing. Dr. Ateyah told her once again that everything was normal. He prescribed an antibiotic for the “pink-eye”. L.H. denied the suggestion that she presented in the appointment with symptoms of an upper-respiratory infection as described in the medical notes of Dr. Ateyah.

[40] When L.H. left the medical office and returned to work she asked her co-workers if this was normal for someone with a case of “pink-eye.” They agreed with her that it was not. Later that evening, L.H. told her close friend J.T. what had happened. J.T. also agreed that this was inappropriate. L.H. did not report this incident to the police or the CPSO because she did not think her complaint would be taken seriously. It was only after learning that other women had come forward in 2020, that she decided to report this encounter to the police.

[41] J.T. testified that L.H. told her that she had seen a doctor at a walk-in clinic for what she suspected to be “pink-eye” and that the doctor had performed an examination on her pelvic-area.

[42] L.H. indicated that at some point after her encounter with Dr. Ateyah she noticed a sign on the outside of the store in which the clinic was situated that referred to a CPSO investigation and that Dr. Ateyah was not to see female patients alone. Shortly thereafter, L.H. visited her family doctor and reported in generalities what had happened. No report was made by either of them to the CPSO or to the police.

[43] L.H. came forward to the police after J.T. sent her a news article that reported that others had come forward with accusations against Dr. Ateyah. She reviewed this and other articles related to Dr. Ateyah’s arrests. L.H. was aware of Dr. Ateyah’s history with the CPSO and had reviewed information about other complaints on the College’s website. She did not recall any of the details of these reports. L.H. indicated that she came forward because she was upset Dr. Ateyah was still practicing medicine even though he was under investigation and hoped that by coming forward she would add strength to the case against him. L.H. has not spoken to or met any of the other complainants.

C.G.:

[44] Dr. Ateyah is charged with 2 counts of sexual assault in relation to C.G.

[45] C.G. is now 43 years old. She has two children born in 2009 and 2012. Dr. Ateyah was her family doctor. She would see him at his clinic in Schomberg. C.G. complains of two inappropriate encounters with Dr. Ateyah. C.G. believes the first such encounter was in 2015 or 2016 during the summer months. When shown her medical records which include a note about an inverted nipple, C.G. believed the appointment to have been around May 2016. She attended for an ultrasound of her breasts on May 19, 2016.

[46] C.G. does not remember specifically why she went to see Dr. Ateyah. She does not think it was in relation to a complaint about her breasts however, there were occasions where she would experience breast tenderness and one occasion after the birth of her youngest child where she had a lump under her arm. C.G.’s complaint is that Dr. Ateyah examined her breasts without a chaperone in the room. He did not give her a gown and leave the room while she undressed. He told her to pull up her shirt. He felt her breasts by cupping them with both hands and moving them up and down. He told her that one of her nipples was inverted. While he was touching her breasts in this fashion, C.G. testified that Dr. Ateyah was standing uncomfortably close to her with his body pressed up against her knees as she sat on the examination table.

[47] After this encounter with Dr. Ateyah, C.G. felt degraded. She told her husband what had happened.

[48] The second appointment with Dr. Ateyah that concerned C.G. took place after the incident involving the breast exam. C.G. is not sure when this occurred but recalls there being slush on the ground. She does not remember if she went in for a pap test or for some other reason. On this occasion there was no chaperone in the room. Rather than give her a gown and allow her to undress in private, Dr. Ateyah told C.G. to pull down her pants. He told her to lie on the examination table in the fetal position facing the wall. He put one hand on her abdomen and began pressing on it while putting his fingers inside her vagina and moving them in and out about 5 times. Dr. Ateyah did not explain to her what he was doing or why.

[49] C.G. felt degraded by this procedure as well. She trusted Dr. Ateyah. She needed to continue to see him because she suffered from depression and anxiety and needed to get her prescriptions for her medications renewed.

[50] At some point after that appointment, C.G. noticed the sign on the wall of the office indicating that Dr. Ateyah had to have a chaperone with him when in the company of female patients. After she saw the sign, C.G. stopped seeing Dr. Ateyah. She and her husband began looking for another doctor. Having seen the sign, C.G. did peruse the CPSO website looking for information. She learned that Dr. Ateyah had been inappropriate with a female patient but nothing more than that.

[51] C.G. came forward after she saw the news on the television that Dr. Ateyah had been charged with sexual assault. She has never spoken to any of the other complainants about her experience with Dr. Ateyah.

E.G:

[52] Dr. Ateyah is charged with one count of sexual assault on E.G.

[53] E.G. is now 30 years old. For most of her life she has lived in Schomberg with her family. Although she had a family doctor in Toronto, when she had a sore throat or could not get a quick appointment with her family doctor she would go to the walk-in clinic run by Dr. Ateyah. On October 12, 2016 E.G. had pain in her lower right abdomen. She had this pain before but had not been to a doctor while the pain was actually occurring. As her family doctor was unavailable, E.G. decided to visit the walk in clinic.

[54] While E.G. was alone in an examination room with Dr. Ateyah, she explained to him why she was there. Dr. Ateyah asked her to take her pants and underwear off. She did so and lay down on the examination table. He performed an abdominal examination by palpating her flank and stomach area. He then performed a bi-manual internal examination by inserting a finger or fingers into her vagina and feeling her ovaries with his other hand externally. He advised E.G. that her ovaries were inflamed. E.G. then sat up. Dr. Ateyah examined her breasts while she was sitting up by putting his hands under her bra while she was still wearing it. He advised her that her breasts were dense. He then ordered an ultrasound. E.G. does not remember ever seeing Dr. Ateyah again. According to his records, however there was a follow-up exam on October 18, 2016 where the results of the ultrasound were discussed.

[55] E.G. came forward after she saw a post on Facebook which attached a news article about the charges related to Dr. Ateyah with a request that victims or people with information come forward to speak to the police. She has never met or spoken to any of the other complainants.

S.H.:

[56] Dr. Ateyah is charged with one count of sexual assault in relation to S.H.

[57] Dr. Ateyah was S.H.’s family doctor from 2013 until the end of 2019. Her husband and daughters were also patients of Dr. Ateyah. S.H. testified that she had a troubling encounter during an appointment with Dr. Ateyah on November 9, 2016. S.H. attended this appointment for a pap test and annual physical. She was given privacy to change into a gown. A chaperone was present in the room when Dr. Ateyah conducted the pap test.

[58] After the pap test, while the chaperone was leaning up against the wall adjacent to where she was lying, S.H. testified that Dr. Ateyah positioned himself at the side of the bed to conduct the bi-manual exam. He put one hand on her abdomen. He inserted a finger from the other hand into her vagina. Much to her surprise, he removed his finger and inserted it again. This happened 3-4 times. S.H. then began to count. She counted Dr. Ateyah inserting and removing his finger an additional 5 times.

[59] After the chaperone left the room, Dr. Ateyah examined S.H.’s breasts while she sat on the edge of the examination table. He told her to take down her gown. He stood back and looked at her breasts and told her that there was something wrong with her nipples. She looked down and told him they were just squished by her bra. He touched her left breast and pushed it up. He did not touch her other breast.

[60] S.H. testified that prior to this appointment she had seen a sign in the office requiring Dr. Ateyah to have a chaperone with him while in the presence of female patients. She asked him about it. Dr. Ateyah told her that two walk-in patients had made complaints about him to the college that were unfounded. At some point thereafter he asked her to write a letter of support to the CPSO. She did so. S.H. does not have a copy of this letter and no record of this letter was ever produced at trial.

[61] S.H. testified that she told her husband and daughters about this appointment of concern promptly after the appointment.

[62] S.H. testified that she did internet research on Dr. Ateyah after the appointment including on the CPSO website. She does not recall specifically what she saw but understood that more and more people were coming forward with allegations. When she saw the media coverage of Dr. Ateyah’s arrest she felt she needed to come forward. S.H. has never met or spoken with any of the other complainants.

T.R.:

[63] Dr. Ateyah is charged with one count of sexual assault on T.R.

[64] T.R. is 51 years old. She is the mother of A.R., also a complainant in this case. Dr. Ateyah was T.R.’s family doctor. Other than this one complaint, T.R. thought Dr. Ateyah was a nice man. T.R. attended for an appointment on the same day as her daughter on July 26, 2016. They were in separate examination rooms. T.R. was there for a physical with no specific health concerns.

[65] T.R. was given privacy to undress from the waist down and provided with draping. Dr. Ateyah did both and internal bi-manual exam and a pap test. He was wearing gloves. During these examinations, there was a chaperone present. After he was done, he told her she could get dressed. The chaperone left the room first. Just as Dr. Ateyah was leaving the room he asked her to not get dressed because he wanted to check just one more thing. He told her to roll over onto her stomach. He said he wanted to check “bleeding on her cervix.” After she rolled over on her stomach, Dr. Ateyah asked her to raise her hips into the air so that he could examine her. T.R. testified that he was feeling inside her vagina with one hand. He was not touching her with his other hand. He told her the weight of her organs would push down so he could feel better. When he was finished T.R. asked him if everything was ok and he said yes.

[66] T.R. testified that when they got into the car, her daughter said, “that was weird.” T.R. brushed off the comment thinking that a first pelvic examination would be weird to anyone. She did not recall her daughter telling her that Dr. Ateyah was not wearing gloves. She testified that she would have questioned her further if she had.

[67] T.R. testified that there was another conversation about this at home with both of her daughters. In that conversation A.R. told her that Dr. Ateyah was not wearing gloves during the internal examination. T.R. continued to see Dr. Ateyah after this appointment for prescription renewals.

[68] On September 16, 2020 T.R. saw a news report about Dr. Ateyah’s arrest for sexually assaulting patients. She and A.R. spoke. It is T.R.’s belief that A.R. was away at school when they learned the news and that they had this conversation over the phone. T.R. testified that she had previously told A.R. about her own experience with Dr. Ateyah and that it was not the first time she had disclosed it. They decided to go forward to the police.

[69] Other than speaking to her daughter, T.R. has never met or spoken to any of the other complainants.

A.R.

[70] Dr. Ateyah is charged with one count of sexual assault and one count of sexual interference in relation to A.R.

[71] A.R. is now 24 years old. At the time of these events she was only 17. Therefore, in addition to a charge of sexual assault, there is also a charge of sexual interference. On July 26, 2016 A.R. attended for an appointment with Dr. Ateyah. Dr. Ateyah was her mother’s family doctor. Her mother T.R. attended for an appointment for a physical with Dr. Ateyah on the same day.

[72] A.R. testified that she went to the appointment because she was having very bad menstrual cramps and was considering taking the birth control pill. Her mother had ovarian cysts in the past. This was discussed with Dr. Ateyah. Her mother was not present for the appointment but waiting in another examination room for her own physical exam.

[73] A.R. testified that Dr. Ateyah asked her to pull down her pants. She did so but left her underwear on. Dr. Ateyah then moved her underwear to the side and put a finger or fingers inside her vagina without a glove on. While he was doing this, he was pressing down on her abdomen with his other hand. A.R. testified that she had no idea what he was doing or why he was doing it. There was no chaperone in the room, and she was not given a gown or other draping. A.R. testified that after the exam, Dr. Ateyah did not wash his hands which stood out to her as unusual and gross.

[74] A.R. testified that Dr. Ateyah discussed a blood test to check her iron and B12 levels because she was a vegetarian and he also discussed birth control. She does not recall him also doing a breast exam.

[75] In the car on the way home with her mother, A.R. testified that she told her mother Dr. Ateyah had done an internal examination without gloves. Her mother questioned her about the fact that he wasn’t wearing gloves and told her it was a “very big accusation.”

[76] A.R. testified that she was with her mother when they saw the news of Dr. Ateyah’s arrest. At that point, according to A.R., her mother told her that she had her own concerns about an appointment with Dr. Ateyah but did not get into details as to what had occurred. A.R. wanted more information so she went on-line. She found an article relating to the two patients who had complained to the CPSO. Ultimately, in consultation with her mother, A.R. decided to tell her story to the police.

J.H.(2)

[77] Dr. Ateyah is charged with one count of sexual assault on J.H.(2).

[78] Dr. Ateyah had been J.H.(2)’s family doctor for approximately 10 years. J.H.(2) suffers from a condition called polycystic ovarian syndrome. This can cause significant pain to her lower abdomen. J.H.(2)’s complaint about Dr. Ateyah stems from an appointment that took place on July 27, 2016.

[79] J.H.(2) testified that while she was in Dr. Ateyah’s office for another reason, she mentioned that she was having dull lower right abdominal pain. He asked her if she wanted him to examine her. She agreed. Dr. Ateyah told her to lie down on her stomach with her legs bent in the opposite direction (with her head towards the stirrups) so that he could examine her right side. While she was in this position he told her to put her ankles together and spread her knees so that it would be easier for him to examine her. He felt her right side with one hand and with the other hand he inserted two fingers into her vagina. He was wearing gloves. After he finished the examination, he said that it felt a bit inflamed.

[80] J.H.(2) did not initially report this incident to the police or to the CPSO. She reached out to the police after seeing media reports about a number of patients coming forward with allegations of sexual assault against Dr. Ateyah. J.H.(2) also viewed comments that were posted about Dr. Ateyah on the Schomberg community Facebook page. She did not know the specifics of any allegations of any of the complainants. She has never spoken to any of them.

S.T.:

[81] Dr. Ateyah is charged with one count of sexual assault on S.T.

[82] S.T. is now 60 years old. Dr. Ateyah was her family doctor for approximately 10 years. She believed he was a great doctor and saw him many times.

[83] On March 14, 2018 she attended for a physical and pap test as she was due. She was given a gown and privacy to change while Dr. Ateyah and his chaperone briefly left the room. When Dr. Ateyah and his chaperone returned to the room the examination proceeded as S.T. would have expected. The pap test was the last part of the exam. When it was complete the chaperone and Dr. Ateyah left the room. S.T. was still lying on the table. S.T. testified that the door opened again and Dr. Ateyah returned. He told her to stay as she was as he wanted to check one more thing. He left again. When he returned he was alone. S.T. testified that he told her to lay on her side, bring her knees up and rest her leg on the wall. She was facing away from him. S.T. testified that he put his finger or fingers in her vagina and grunted. When he removed his fingers he told her she could get dressed and leave.

[84] S.T. testified that she immediately wondered what had happened. She thought it was bizarre. It is her evidence that the “grunt” made by Dr. Ateyah convinced her that this was a sexual assault and not a normal medically necessary procedure. When she eventually spoke to the police she did not mention the “grunt” because the officers interviewing her were male. She was embarrassed.

[85] Prior to this appointment, S.T. had seen the sign in Dr. Ateyah’s office requiring him to have a chaperone. She had taken a picture of the sign and shown it to her husband. At some point prior to Dr. Ateyah’s arrest she went onto the CPSO website and learned that two people were making allegations against him.

[86] S.T. was in her dentist’s office when she saw a news report about Dr. Ateyah’s arrest. She learned he had been arrested for sexually assaulting two women. When she came home from her dentist appointment, she disclosed what had happened to her to her husband and friend. She then searched the internet for information. She has never spoken to or met any of the other complainants.

[87] S.T. provided a statement to the police shortly after she saw the news report. Following her statement, she continued to look for information about Dr. Ateyah. She learned there were 23 people who had come forward. She wanted to understand what happens to a person who is charged and more about the court process.

[88] S.T. brought a civil action against Dr. Ateyah. She is suing him for $5 million.

A.Z.:

[89] Dr. Ateyah is charged with one count of sexual assault involving A.Z.

[90] A.Z. is now 47 years old. On September 8, 2016 she attended Dr. Ateyah’s office as a walk-in patient because she believed she had strep throat. Although she had a family doctor in t Toronto, she lived near the clinic and decided to go there as it was more convenient.

[91] A.Z. has a family history of breast cancer. She has had two surgeries on her breasts. Her breast health is closely followed at the high-risk breast screening program at Sunnybrook Hospital in Toronto. The program involves getting an MRI and a mammogram once a year and a breast exam every six months. She has been participating in the program since 2006. She testified that if she had a concern about her breasts, she would call Sunnybrook.

[92] A.Z. has very little recollection of what was discussed or explained to her on her visit to Dr. Ateyah on September 8, 2016. She does recall that although she went to see him for strep throat and to obtain antibiotics, Dr. Ateyah ended up performing a breast exam on her. This has always struck her as odd. As soon as she left the appointment she thought, “I went in for antibiotics and I came out having had a breast exam.”

[93] A.Z. is adamant that she did not have a second appointment with Dr. Ateyah. Once she learned of his arrest on criminal charges she demanded her medical records from Dr. Ateyah’s office. After some reluctance they were provided to her. Once she reviewed the records she was furious as she believed he had created medical notes surrounding a second appointment that simply did not happen.

[94] The medical notes regarding the first appointment, September 8, 2016, indicate that A.Z. attended the office as a walk-in patient complaining of a sore throat. The notes indicate that she also complained of chest pain. According to the notes, Dr. Ateyah suggested she keep her fluids up and use a topical ointment. She was told to return to the doctor in 7 days. A.Z. testified that she does not remember what led up to Dr. Ateyah doing a breast exam. She believes he got her medical history from a form she filled out when she arrived at the office. If he had suggested a breast exam she would have agreed because she was so used to having them.

[95] The next medical note is from exactly seven days later. The note reflects A.Z. coming to see Dr. Ateyah because she had found a lump in her breast. The entry in her chart given at reception indicates she was there because she “wanted to speak to the doctor.” The notes state that she had a family history of breast cancer and had two surgeries. Dr. Ateyah testified that although he does not remember this encounter, his notes would accurately reflect that in those circumstances he would have performed a regular breast exam.

[96] A.Z. contacted the police after she was sent an article about Dr. Ateyah’s arrest by a friend in October 2020. After learning of his criminal charges and that many women had come forward, A.Z. obtained her medical records. She visited the website of the CPSO and learned that Dr. Ateyah was required to have a chaperone with him for certain procedures. She believed she saw an allegation that related to inappropriate touching in the pelvic area. She has never spoken to or met any of the other complainants.

Dr. Kimberley Wintemute:

[97] Dr. Kimberley Wintemute was qualified to give expert evidence in the area of family medicine. Specifically, in clinical breast and gynecological examinations and the clinical justification for these exams.

[98] Dr. Wintemute has worked as a family doctor since 2002. She has additional training in obstetrics and gynecology. She has been a staff member at North York General Hospital since 2002. For eight years ending in 2016 she was the medical director of the North York Family Health Team.

[99] Dr. Wintemute has been a medical assessor with the CPSO for over ten years. She has also been qualified as an expert to give opinion evidence in the provincial court system.

[100] Dr. Wintemute teaches in the area of family medicine. She volunteers on many committees. She has been published in peer reviewed and non-peer reviewed publications.

[101] Dr. Wintemute testified that the scope of practice of a family doctor includes preventative care, screening, chronic disease management, and acute care of symptoms that can be undifferentiated such as abdominal/chest pain. The role of the family doctor is to narrow down the possible or probable diagnoses to come up with a treatment plan. The patients of family doctors are all ages from newborns to the elderly.

[102] Dr. Wintemute testified that the standard of care refers to what most physicians would do in a particular situation. This often depends on what is the clinical problem at hand and considers where the patient and doctor are geographically located. The standard of care is contextual and depends on era. For example, the practices today may be different than they were decades ago. The standard of care is not perfection. Dr. Wintemute testified that the standard of care is what a doctor is expected to meet in a particular presenting problem.

[103] The governing body of the medical profession in Ontario is the CPSO. If there is a complaint the CPSO will contact the doctor and gather information. Another role of the CPSO is to conduct quality audits over certain areas of a doctor’s practice including record-keeping practices.

[104] A family doctor is required to keep a chart for each patient with their cumulative patient profile (“CPP”). The information contained in this record includes a list of long-term medications; allergies; and family and social history. A family doctor must document each encounter with a patient explaining why they are there, what the findings are, any diagnosis and treatment plan.

[105] Dr. Wintemute described how various examinations are supposed to be conducted. For example, when listening to a patient’s heart, a doctor may put the stethoscope on a woman’s chest on either side of the breastbone under the collar bone. It is appropriate to place the stethoscope under the breast. A doctor may need to put the stethoscope on the breast, depending on the size of the breast or just ask the patient to hold it to one side. To listen to the lungs, the doctor should put the stethoscope on the patient’s back. It is better to listen with the stethoscope directly on the skin.

[106] When an examination requires a patient to undress, the doctor should provide the patient with some kind of draping and leave the room while the patient gets changed. This is the standard of care.

[107] Dr. Wintemute testified that it is expected that people will be offered a chaperone. This is done verbally but it is common that there is a sign posted in the waiting or exam rooms to this effect.

[108] This is deemed to be the standard of care by the CPSO. When a doctor is doing an intimate exam, a third party must be offered to the patient.

[109] Dr. Wintemute testified that as a general principle when examining patients, the patients are only asked to expose the area being examined. For example, if a patient is lying on the table and the doctor is going to examine their abdomen, the breasts and pelvic area are covered. When conducting a breast exam, one breast at a time is examined while the other is covered.

[110] Dr. Wintemute testified that if a patient is complaining of a lump in their breast, it is consistent with the standard of care to visually observe the breasts while the patient is sitting up. The doctor should ask the patient to put their hands on their hips and then above their head. It is not necessary for a doctor to wear gloves when examining the breasts.

[111] Dr. Wintemute testified that in gynecological exams, it is the standard of care for a doctor to wear gloves for both doctor and patient protection. A doctor must not conduct a bi-manual exam and insert a finger or fingers into a patient’s vagina without gloves, such as in the case of E.B. and A.R.. Doing so would fall below the standard of care and violate the boundaries set out by the CPSO.

[112] Dr. Wintemute testified that a doctor must obtain consent from a patient. This includes explaining intimate procedures related to breast or gynecological exams. Consent occurs at more than one point in time along trajectory. If a patient calls and books a pap test, they are obviously consenting. If a patient presents with a concern about a breast lump, it is not below the standard of care to infer they are consenting to a breast exam. A doctor must explain and introduce what they are doing just before they do it. Dr. Wintemute testified that this level of communication is expected in clinical practice.

[113] Dr. Wintemute testified about the manner in which a breast exam is properly conducted. The doctor will feel the patient’s breasts with the pads of their fingers in a methodical way to make sure all of the breast tissue is examined. A doctor must obtain consent and offer the presence of a chaperone. Dr. Wintemute testified that in addition to lumps, the doctor should look for changes in skin, redness or puckering and retraction which could be an inverted nipple. The examination is commenced with the patient sitting up and then continues with the patient lying down.

[114] Although it would not be inappropriate for a doctor to visually examine a patient’s breasts while the patient is sitting, Dr. Wintemute could think of no medical reason for a doctor to cup the patient’s breasts and lift them up one at a time as in the case of C.G.. If a doctor noted an inverted nipple, Dr. Wintemute testified that the doctor would be expected to conduct a full and proper breast exam as well as send the patient for imaging.

[115] Dr. Wintemute testified that the current literature supports the conclusion that breast exams do not save lives. Therefore, they are no longer required to be done routinely. A doctor may offer a patient a breast exam if they would like. Historically a breast exam was done when a patient started taking the birth control pill. However, Dr. Wintemute testified that the utility of that has been challenged. Today, what is necessary before starting the birth control pill is a blood pressure check.

[116] If a patient were to present to a doctor with a suspected sinus infection or strep throat, such as in the case of A.Z., Dr. Wintemute testified that the doctor would not need to do a breast exam. She would expect the doctor to look into the mouth and throat, check the lymph nodes in the neck and palpate the sinuses under the eyes and forehead. The doctor may listen to the lungs. All of these procedures, if they occurred, should be noted in the medical record.

[117] Dr. Wintemute testified that where a patient has a history of breast cancer and is enrolled in a breast cancer screening program like A.Z., she would not expect a doctor at a walk-in clinic to do an examination for lumps unless that patient was actually there to investigate a lump.

[118] With respect to pap tests, Dr. Wintemute testified that the recommended age to start pap tests is 21. They are expected to be done every three years assuming the results have always been normal. A pap test is for cervical cancer or abnormal cells that could become cancerous. It is Dr. Wintemute’s evidence that if a patient had a full hysterectomy where her cervix was removed it would be rare to continue to do pap tests. They would only continue to be done if the patient had a history of cervical cancer and then the test would be for the presence of cancerous cells in the vaginal vault.

[119] Dr. Wintemute testified that a pap test is not a screening test for ovarian cancer.

[120] A bi-manual exam involves the doctor using two hands. Using their dominant hand, the doctor inserts their middle and index fingers into the vagina and with the non-dominant hand presses on the lower abdomen. The objective of the bi-manual exam is to trap the uterus between both hands to notice the anatomy, to see if the cervix tender, if the uterus is enlarged and to check the mobility of the uterus.

[121] Dr. Wintemute testified that a doctor does not actually notice the ovaries in a bi-manual exam. They are very small and difficult to detect. If the doctor can detect the ovaries then they might be enlarged. Dr. Wintemute testified that a bi-manual exam is done with a patient lying on her back. She could not think of a reason why a patient would need to lie on their side in the fetal position such as in the case of C.G. and S.T., nor would there be any reason to conduct a bi-manual exam with the patient lying on her stomach as in the case of J.H.(2) and T.R.. There would be no reason to insert and reinsert a finger or fingers into the vagina as in the case of C.G. and S.H..

[122] Dr. Wintemute testified that in a case of suspected bacterial vaginosis, as described by E.B., a diagnosis would be made by asking about a complaint of vaginal discharge and soreness. A swab would be taken and sent to the lab for diagnosis. A bi-manual exam would not be necessary.

[123] Dr. Wintemute described Ani Levator Syndrome, the condition experienced by E.B., as a syndrome of chronic or recurrent pelvic pain characterized by intermittent episodes of deep rectal pain. It is most commonly treated with relaxation and warm baths or stretching. Having a patient lie on their back while the doctor massages their groin close to the clitoris is not a treatment familiar to Dr. Wintemute.

[124] In a patient presenting with on-going lower right abdominal pain, such as E.G., Dr. Wintemute testified that the only potential reason to ask a patient to remove her pants and underwear could be if there is a suspicion of sexual infection. Dr. Wintemute testified that it would be expected there would be something in the medical records about the potential for gynecological problems such as information that the pain is worse with intercourse or if the patient has been experiencing pain when ovulating. Dr. Wintemute testified that a bi-manual examination cannot detect inflammation. Inflammation is something a doctor can see under a microscope. If a doctor was testing for and noted tenderness, that is something that Dr. Wintemute would expect to see in the medical records.

[125] When asked about a connection between back pain or abdominal pain with gynecological conditions, Dr. Wintemute testified that if a patient had Pelvic Inflammatory Disease (“PID”) or if they had a large ovarian cyst they could have back or abdominal pain. In an examination, a doctor would make this determination by asking questions and getting the history of the pain from the patient. These inquiries and the answers to these questions should be noted in the medical record. For example, a sexually active woman with a new partner who had unprotected sex then developed the pain along with a fever and vaginal discharge, a doctor may be suspicious of PID. If the patient had a history of ovarian cysts, a doctor may suspect the cause of the pain was ovarian cysts. Dr. Wintemute testified that in family medicine approximately 80% of the diagnosis and treatment plan is derived from the “story” or the information provided to the doctor by the patient. For example, if a patient tells the doctor they were moving a couch the day before and now have back pain, the doctor would not perform a gynecological exam.

[126] In the situation as described by C.W., where her only pain was in her back, it did not hurt to urinate or have sex and the urine test done in the office was normal, Dr. Wintemute testified that there would be no medical reason for a doctor to press on a patient’s vagina or labia.

[127] Dr. Wintemute testified that during a wellness check or physical a family doctor would do an abdominal exam looking to see if the solid organs, such as the liver, spleen and kidneys, are enlarged or tender or to see if the abdomen is distended. During an abdominal exam, the patient does not need to remove their pants, but the patient may need to open them and shift them down slightly. An abdominal exam is limited to the abdomen. Dr. Wintemute testified that the doctor would not need to feel the fatty tissue covering the pubic bone or reach between the patient’s legs to feel the area over the opening of the vagina.

[128] In a patient presenting with lower right abdominal pain, such as E.G., Dr. Wintemute testified that a breast exam of any description would not likely contribute to determining the cause of the abdominal pain.

[129] Dr. Wintemute testified that there are lymph nodes in the crease between the legs and the groin. There are conditions that can cause them to be enlarged. For example, if a patient has lesions on the vulva consistent with genital herpes, they might have large tender lymph nodes in the groin area. It is Dr. Wintemute’s evidence that lymph nodes become enlarged when they are active in fighting infection. In a standard exam of a healthy person it is unusual for a doctor to examine the lymph nodes in the groin. Most commonly a doctor would check the lymph nodes in the neck and under the arms.

[130] Dr. Wintemute also opined on the examination described by M.R.. M.R. suffers from Multiple Sclerosis. M.R. presented to Dr. Ateyah with back pain. He asked her to take off her pants and underwear and touched her vagina on the outside while pressing on her abdomen. Dr. Wintemute testified that she had never heard of a bi-manual exam where there is no internal penetration with one hand.

[131] Where a patient presents with back pain, such as in the case of C.W., Dr. Wintemute testified that there would be no reason to do a range of motion test with the patient’s pants pulled down with the doctor pressing up against her while pressing on her vagina. In terms of asking a patient to bend forward and backwards in an examination, Dr. Wintemute testified that this would most commonly be done if the doctor is assessing a patient for scoliosis, a curvature of the spine usually detected in a child or teenager. If an older person presented with back pain, the doctor might ask them to bend forward and backward if a diagnosis was otherwise not apparent. However, when testing a patient’s range of motion, the examination would involve asking the patient to bend to each side, not forward and backward. The degree to which the patient could bend from side to side should be noted in the medical record if this type of testing was done.

[132] With respect to a patient presenting with depression such as J.H.(1), Dr. Wintemute testified that there was no medical reason for a doctor to ask the patient to lie on the table while he pressed his hand on top of her vagina. There would also be no reason to try to feel for her ovaries as they can’t be felt and although depression can be related to hormones, feeling ovaries would not be of assistance.

[133] Dr. Wintemute testified that generally if a patient presented with depression or anxiety what should be done is a mental status exam by talking to the patient and asking questions. If the patient had other concerns related to their reproductive health, that might prompt a gynecological exam in a follow-up appointment.

[134] With respect to K.S., a patient who had a history of headaches she believed to be migraines, Dr. Wintemute testified that there would be no medical reason to palpate her vagina and groin area.

[135] Finally, with respect to L.H., who went to see Dr. Ateyah for “pink-eye” Dr. Wintemute testified that there would be no medical reason for him to examine her breasts or to palpate her pelvic area.

Dr. Wameed Ateyah

[136] Dr. Wameed Ateyah is 52 years old. Although he was qualified to practice medicine in Iraq, when he immigrated to Canada he was required to take further qualifications. As of December 2005, he was qualified to practice family medicine in Canada without restrictions. In 2007 he opened his family medicine and walk-in practice in Schomberg, Ontario. At that point he had approximately 2000 rostered patients. He operated that practice until October 2018 when he moved his practice to Beeton, Ontario.

[137] While in the Schomberg clinic, Dr. Ateyah testified that he maintained approximately 2500 rostered patients and also accepted patients on a walk-in basis. He worked with various staff members over the years who he hired as nurses and administrative assistants. The clinic was a self-contained unit within a Guardian pharmacy. In addition to the reception and waiting areas, there were three examination rooms and an office. Dr. Ateyah testified that absent exceptional circumstances he used Examination Rooms 1 and 2 for rostered patients who had booked appointments and Examination Room 3 for walk-in patients. He also rented out Examination Room 3 to a physiotherapist who worked out of the room on a part-time basis. As the room was used by the physiotherapist, the examination table was slightly different than the others in that it had a piece at the end with a hole so that a person lying face down could rest their face on the open space.

[138] In cross-examination, Dr. Ateyah agreed that walk-in patients used all three examination rooms depending on the day and situation. He explained that when he testified in-chief that the walk-in patients only used Room 3 he was simply referring to his office policy, not what actually occurred. Dr. Ateyah agreed that putting someone in Room 3 where he suspected they had abdominal pain would be problematic because of his position that the patients were unable to completely lie-down and therefore would not have a proper examination. He agreed that due to the fact he saw rostered patients in the morning and walk-in patients in the afternoon, there were often times where Rooms 1 and 2 would be empty and he could use them for walk-ins.

[139] Dr. Ateyah testified that walk-in patients who used Room 3 could not lie down on the examination table because it was too short. Further, even if they were short enough to lie down with their legs bent, he could not have performed an abdominal exam because the ultrasound machine of the physiotherapist was in the way. Even though the machine was on wheels and could be moved, he would not move it because it didn’t belong to him.

[140] Typically, Dr. Ateyah would see walk-in patients in the afternoon and reserve mornings for his rostered patients. Prior to the complaint to the CPSO by C.W., Dr. Ateyah testified that he would see between 40-45 patients per day. After the allegations, he only saw about 20-25 patients per day because of the restrictions on his practice and the administration, documentation and chaperoning associated therewith. Dr. Ateyah also testified that he stopped seeing walk-in patients because he didn’t trust them. In his words, “they didn’t know me and I didn’t know them.”

[141] Prior to the restrictions put in place by the CPSO with respect to chaperoning, Dr. Ateyah’s practice was to always have a chaperone in the room for any intimate examination. This included breast and genital exams.

[142] When Dr. Ateyah would first see a patient, he would look at the medical record relating to their prior few visits if they had been to see him before. He would then ask why there were there and record this information in their electronic medical record. If the information told to him necessitated an examination, he would do the exam. If it was an intimate exam that was required, he would leave the room, have the chaperone explain to the patient that they were to get undressed and provide the patient with the appropriate draping. When the patient was ready, he and the chaperone would return to the room.

[143] If the patient was booked for a physical or an intimate examination, Dr. Ateyah would have the chaperone advise the patient to change into the appropriate draping. He would then go in with the chaperone and gather any relevant medical history or symptoms.

[144] Dr. Ateyah testified that if a woman refused to have a chaperone for an intimate examination he would refuse to do the exam.

[145] When conducting a pelvic exam which includes a pap test and a bi-manual examination, Dr. Ateyah testified that he used the following technique. First, he would explain to the patient what he was going to do including what instruments were involved. Then he would start with an inspection. Dr. Ateyah testified that he would always do a bi-manual exam first so that he could decide what size speculum to use. He would only use one finger because he had very large hands and two fingers would be “too much.” He would always wear gloves. During the bi-manual exam he would be looking for lumps, tenderness and blood.

[146] After doing the pap test, he would hand the sample to the chaperone who would always be present. When he finished the pap test, he would remove the speculum and smell it to determine if the patient had any infections. Although he then testified that if they had any infections he could smell it from 2-3 feet away. Depending on his findings, he would send the patient for further testing or give them a prescription. He would leave the room and then the chaperone would leave after him with instructions to the patient that she could get dressed.

[147] With respect to breast exams, Dr. Ateyah testified that he did them in the same manner described as the correct approach by Dr. Wintemute. Dr. Ateyah agreed in cross-examination that the purpose of a breast exam is to detect cancer. He testified that he is also looking for infections and lumps related to lactation. He accepted that none of the women who made complaints were lactating women. He testified that he is also looking for skin cancer.

[148] Dr. Ateyah agreed in cross-examination that he has known for 10 – 15 years that breast exams do not save lives. A breast exam is only necessary if there is a specific concern about the breast or the patient is high risk. With no family history of breast cancer and no issues with their breasts, there would be no reason for him to do a breast exam. Dr. Ateyah also agreed that in the case of a patient at high-risk of developing breast cancer, the preferred screening method would be a mammogram.

[149] In cross-examination, Dr. Ateyah denied the suggestion that he performed medically unnecessary gynecological and breast exams on female patients because he enjoyed doing them.

[150] Dr. Ateyah testified that he usually did neurological testing on patients even where there was no specific reason to. He recorded this in the medical records of each patient as “reflexes normal” and “plantar downwards.” He testified that he did this because the patients may not know there was an issue or a reason to be tested.

[151] When listening to a patient’s heart, Dr. Ateyah testified that he would have no reason to place the stethoscope on a woman’s breast.

[152] Dr. Ateyah was cautioned by the CPSO about his record keeping. His note-taking was found to be deficient and he was required to take a course to improve his note-taking skills in 2015. Dr. Ateyah attributes some gaps in his notes, in particular the patient history, the CPP, to be the result of a glitch in the migration from one software company to another.

[153] Dr. Ateyah testified that prior to the note-taking course he did not record the presence of a chaperone. After the allegation by C.W., he paid more attention to making note of this.

[154] Dr. Ateyah testified that he did not have an independent recollection of each complainant. He remembered those that were his long-time rostered patients. He did not have an independent recollection of most of the details of the appointments of the complainants and relied on his notes and usual practices to provide his testimony.

[155] In cross-examination Dr. Ateyah agreed his note-taking was deficient due to the busyness of his practice. He was not just the only doctor in Schomberg but the only doctor in the area. At times, he left out information and at times the information was inaccurate particularly when he was using a template.

Dr. Ateyah’s Testimony Regarding J.H.(1)

[156] Dr. Ateyah has no recollection of his encounters with J.H.(1) although her parents and sister were patients in his family medical practice. His testimony about his encounters with her are formed by his review of her medical records and what he describes as his usual practices. The medical records of Dr. Ateyah with respect to J.H.(1) indicate that J.H.(1) saw Dr. Ateyah on two occasions a month apart. She adamantly denies this. It is clear from the electronic records provided by Dr. Ateyah that there was a second appointment after receiving her bloodwork a month after the initial appointment. The medical records indicate that J.H.(1) saw Dr. Ateyah for depression on March 11, 2016. He performed a check of her neck and thyroid, looking for inflammation or lumps. An issue with her thyroid could be the cause of her depression. All appeared to be normal.

[157] Dr. Ateyah’s records indicate that he also did an abdominal exam. His evidence as to the reasons why he did this shifted during his testimony. At first he indicated that he performed an abdominal exam because he needed to see if there was any tenderness or bloating to her ovaries or uterus “due to hormones.” J.H.(1) had indicated that she was on the birth control pill. His examination would never have gone beyond the pubic bone as described by J.H.(1). Dr. Ateyah agreed that he could not feel a lump on her ovaries just by palpating her abdomen. To properly make such an assessment he would have to do a bi-manual exam (inserting one finger into her vagina while palpating the area of the ovaries externally with his other hand).

[158] Dr. Ateyah saw J.H.(1) in Room 3 because she was not a rostered patient. He testified that as Room 3 had the physiotherapy bed he could not have J.H.(1) lie down fully during the exam so he would have had her lean back against the wall and expose her abdomen from the ribcage to the pubic area and then touch all 4 quadrants as is standard in an abdominal exam. He would not have put his hands below the pubic bone.

[159] He sent her for bloodwork. The results of this bloodwork showed that J.H.(1)’s vitamin B12 was low. He saw her again on April 7, 2016 to discuss her bloodwork. Once again, Dr. Ateyah does not recall this visit and relies on his medical records as well as his usual practices to describe what would have happened at this appointment. At this appointment he conducted another abdominal exam to help determine what could be causing her depression. He did the abdominal exam to see if she had any tenderness or bloating to her pelvic area because of “hormones or ovaries or uterus pain.” In cross-examination, Dr. Ateyah opined that he also did an abdominal exam to check for constipation. He said he would be able to feel a “gassy” feeling under his hands. He did not always ask patients if they were constipated before doing this exam because patients sometimes don’t know what this means.

[160] On this occasion he saw J.H.(1) in Room 2 and she was able to fully lie down.

[161] He also did a breast exam. He surmises he did a breast exam to see if her lymph nodes were enlarged. Dr. Ateyah described this as a “limited breast exam” meaning he did not ask her to undress but just to undo her top. He claims he had a chaperone present as this was his usual practice. He prescribed her B12.

[162] Dr. Ateyah testified that he checked her thyroid because an enlarged thyroid can produce a hormone that causes depression.

[163] The sign indicating he had to have a chaperone with him while examining female patients was not in place at the time as there had yet to be a complaint to the CPSO.

Dr. Ateyah’s Evidence Regarding E.B.:

[164] Dr. Ateyah recalls treating E.B. as she was a rostered patient in his family medicine practice and he treated her many times. He does not, however, recall the details of the September 29, 2011 appointment and once again relies on his medical records as well as his usual practices. He testified that prior to seeing E.B. on September 29, 2011 he would have reviewed the notes from her previous visit and recalled that she had reported a sexual assault. This means that he would have taken extra steps to be sensitive and explain the procedures he was doing when conducting the pap test. He denied ever performing a bi-manual exam without a chaperone in the room. He indicated that he was never told about her anal cavity syndrome and if he had it would have been included in his notes which it wasn’t. Dr. Ateyah’s notes do not reflect E.B. ever having been diagnosed with bacterial vaginosis nor a prescription for same. Dr. Ateyah testified that E.B. never told him she had been diagnosed with Ani Levator Syndrome. If she had it would have been noted in her CPP or elsewhere. He did not put his hands near her vagina and massage the area near her clitoris while telling her it would help her relax.

Dr. Ateyah’s Evidence Regarding K.S.:

[165] Dr. Ateyah does not remember this encounter with K.S.. She was a walk-in patient who only attended his clinic on two occasions. His medical records in relation to his July 2015 appointment with her indicate that she reported a headache. Dr. Ateyah denies that K.S. ever mentioned she had migraines. His notes indicate that she just said she had a headache. Dr. Ateyah thought he may have discussed a link between hormones and headaches with K.S. Dr. Ateyah testified that he did perform an abdominal examination and that he would have advised K.S. that this was to see if there was any tenderness in the area around her ovaries which would indicate a connection between her headache and hormones. He also testified that her blood pressure was high and that he told her this.

[166] Dr. Ateyah testified that K.S. was in Room 3 as a walk-in. As such, she could not lie flat and therefore he could not do a proper abdominal exam.

Dr. Ateyah’s Evidence Regarding M.R.:

[167] Dr. Ateyah testified that M.R. was fully clothed during the entire June 23, 2016 appointment. He did not conduct an examination of her pelvic region and did not brush against her vagina while moving his hands up and down her legs. He simply referred her to a gynecologist and ordered the ultrasound.

[168] Dr. Ateyah denies exchanging numbers with M.R. and making the comment to her after the pap test.

Dr. Ateyah’s Evidence Regarding C.W.:

[169] Dr. Ateyah denied these allegations. He testified that before performing an abdominal examination, he conducted a visual examination, used a stethoscope and palpated C.W.’s back in the area of her flanks and kidneys. He noted that the flank on her right side was more tender than her left although both were tender. He testified that he then performed a routine abdominal exam. His notes indicate that there was tenderness in the area of her pubic bone on either side of her groin.

[170] Dr. Ateyah testified that he did a range of motion exam in the standing position to assess her flexion and extension. He did not touch her body when he did this examination. He asked her to bend forward and back, again without touching her body.

Dr. Ateyah’s Evidence Regarding L.H.:

[171] Dr. Ateyah testified that he had no recollection of his encounter with L.H. She was a walk-in patient who he had only seen once. According to his medical records, L.H. had told him she had a sore throat and was coughing. The electronic note entered by the receptionist at his office, however, noted that L.H. was there to see the doctor about her eye. Dr. Ateyah denied performing any abdominal or pelvic examination on L.H. and none is reflected in his notes. He agreed that he listened to her chest but did not put the stethoscope on her nipple. The prescription given to L.H. according to the medical records and the records from the pharmacy was for an oral antibiotic normally prescribed for an upper respiratory infection.

Dr. Ateyah’s Evidence Regarding C.G.:

[172] Dr. Ateyah denied that he ever performed a breast exam in the manner described by C.G. According to his records, on May 10, 2016 C.G. attended for her annual physical and pap test. This included a breast examination conducted in the normal fashion with the patient lying on the examination table, in a gown. Dr. Ateyah would palpate the areas of the breast and underarm with flat fingers. Prior to this he may have a patient sit on the table with their breasts exposed so he could visually inspect the breasts for symmetry and/or inverted nipples. Dr. Ateyah testified that he had no recollection of this encounter with C.G.

[173] According to Dr. Ateyah’s records, a requisition was prepared for C.G. to have a bilateral breast ultrasound. The reason noted on the requisition form by Dr. Ateyah was “Sister with breast cancer. Has pain to right axilla with inverted nipples. Low TSH. Query nodule.” Dr. Ateyah has a specific recollection that after the May 10, 2016 appointment C.G. called his staff and was crying hysterically because she had noticed an inverted nipple. Given her family history with breast cancer, he did not require her to come in to get the requisition but sent it off to the imaging company. Dr. Ateyah’s records note that C.G.’s sister had developed breast cancer at the age of thirty-seven. C.G. testified that her sister has never had cancer.

[174] Dr. Ateyah denied ever performing an internal examination with C.G. on her side in the fetal position facing the wall. He denied moving his finger in and out of her vagina. At one point C.G. did have an abscess near her anus. Dr. Ateyah testified that he would have examined it while she was in the fetal position. In her testimony, C.G. indicated that Dr. Ateyah would examine the abscess with her lying on her stomach.

Dr. Ateyah’s Evidence Regarding E.G.:

[175] Dr. Ateyah does not recall the appointments with E.G. He testified that he did not do an internal or a breast exam on either appointment date as these examinations are not mentioned in his notes. In fact, he specifically noted “no PV” done – meaning no internal vaginal examination was done. He testified that although he believed E.G. should have an internal examination given the symptoms with which she presented, he would not have done one because she had her own family doctor.

[176] Dr. Ateyah testified that his notes indicate he did do an abdominal examination. As E.G. was a walk-in patient he saw her in Room 3. Given the limitations with respect to the examination table, he could not do a proper abdominal exam even though she presented with abdominal pain.

[177] Dr. Ateyah testified that he sent E.G. for an ultrasound and booked a follow up appointment with her for October 18, 2016. This time, although she was not his patient, he saw her in Room 1. He testified that he saw some things on the ultrasound that he wanted to discuss with her including inflammation to her lower vaginal area. He assessed her as having “vaginitis.”

Dr. Ateyah’s Evidence Regarding S.H.

[178] Dr. Ateyah does not recall this examination. He denied conducting the bi-manual exam by putting his finger in and out of her vagina. He denied touching her one breast during a breast exam while she was sitting on the table as she described. Although some patients who inquired about the investigation wrote letters of support to the CPSO, Dr. Ateyah testified that he was not aware that S.H. was one of them but agreed in cross-examination that she might have been.

Dr. Ateyah’s Evidence Regarding T.R.:

[179] Dr. Ateyah testified that having reviewed his notes, he recalls T.R. coming in for her pap test and health assessment. His notes indicate that a chaperone was present for this exam. Dr. Ateyah testified that a pap test and bi-manual exam would have been done. Dr. Ateyah denied ever performing an internal examination with T.R. lying face down with her hips raised.

Dr. Ateyah’s Evidence Regarding A.R.:

[180] Dr. Ateyah testified that although he has no specific recollection of the details of this appointment, he does remember A.R. as being a patient of his. Dr. Ateyah reviewed the notes of the appointment prior to the July 26, 2016 appointment and testified that A.R. had attended with her mother who wanted her on birth control. She was sexually active. The physical exam that was to precede the prescription was deferred to the next visit pending the results of blood tests.

[181] On July 26, 2016 Dr. Ateyah’s notes indicate that A.R.’s mother was not in the room for the appointment. With a chaperone in the room, Dr. Ateyah conducted a breast exam and an abdominal exam. He did not perform any internal exam.

Dr. Ateyah’s Evidence Regarding J.H.(2)

[182] Dr. Ateyah does not recall this encounter with J.H.(2). Dr. Ateyah denies conducting an examination in the manner she described with her lying on her stomach. His notes reflect that the appointment was concerning an abnormal result from a prior pap test. As such he wanted to conduct an internal exam. Although he does not specifically recall it, the internal exam would have been conducted in the same manner as all his bi-manual examinations with the patient lying on their back. It was his evidence that it would be impossible for a patient to lie on the examination table with their head towards the stirrups as the table drops down at the end.

Dr. Ateyah’s Evidence Regarding S.T.:

[183] Dr. Ateyah has no memory of this interaction with S.T. Dr. Ateyah testified that the latter portion of the medical examination where she alleges he put his finger in her vagina and grunted did not take place. At this time, he was required by the CPSO to have a practice monitor with him during examinations in light of the investigation into the allegations of C.W. The practice monitor “Bozena” who was with him that day was particularly diligent.

Dr. Ateyah’s Evidence Regarding A.Z.

[184] Dr. Ateyah testified that he does not recall the details of these appointments with A.Z. According to his notes she presented with a complaint of a sore throat. He testified that she mentioned chest pain to the mid-bone for two weeks. He pressed on her chest bone on both sides of her sternum. He determined that she had an upper respiratory infection. He advised her to drink plenty of fluids and to use a topical ointment. He advised her to follow up with him in 7 days.

[185] Dr. Ateyah’s notes confirm that A.Z. did attend for a follow-up appointment 7 days later on September 15, 2016. According to the entry on the appointment she was there to speak to the doctor. According to Dr. Ateyah’s notes, A.Z. told him she found a lump in her breast. She reported her family history with breast cancer. He did a regular breast exam with her consent.

The Similar Fact Application:

[186] In this case the Crown makes an application to admit the evidence of each complainant to support a finding of guilt on all counts. This is referred to as a “count-to-count” similar fact application because all the charges relating to all of the complainants are on the same indictment and were heard together. If the similar fact application is not allowed, the evidence of each complainant can only be heard to support a conviction on their own allegations. If the similar fact application is allowed, in whole or in part, evidence of one complainant may be considered as evidence on a charge related to another complainant.

[187] The Crown submits that the similar fact evidence is relevant to:

1. prove that the alleged sexual touching occurred;
2. reinforce the credibility of the complainants;
3. negate the defence of innocent or accidental touching in the course of legitimate medical examinations;
4. rebut the defence theory of recent fabrication caused by mainstream and social media; and
5. rebut the defence theory as to the implausibility of the acts occurring in the context of a medical appointment with office staff, chaperones and others nearby.

[188] With respect to the Crown’s similar fact application, the Defence submits that there are some categories of allegations that are so distinctively similar, I may consider them when considering the others. Specifically, the Defence concedes: the four cases where the complainants allege internal examinations were done with the patients on their stomachs or sides (C.G.; J.H.(2); T.R.; and S.T.); the three cases where the intimate exams were conducted after the chaperone left (E.B.; S.H.; and S.T.); the five cases where gloves were not worn when a vaginal exam was done (K.S.; L.H.; M.R.; A.R.; and C.W.); and the two cases where internal examinations were akin to masturbating the patient (C.G.; S.H.). I should not, however, allow all alleged sexualized examinations to be used as similar fact evidence in support of all the others.

The Law:

[189] The legal framework for the admissibility of similar fact evidence has evolved from the 2002 Supreme Court of Canada decision in R. v. Handy, 2002 SCC 56. The test for admissibility reflects a modern, principled and purposive approach. R. v. L.B., 1997 ONCA 3187, [1997] O.J. No. 3042 (C.A.); R. v. Arp, 1998 SCC 769, [1998] S.C.J. No. 82, at paras. 54, 56; R. v. Tsigirlash, 2019 ONCA 650, at para. 34. Similar fact evidence is presumptively inadmissible because it is evidence of bad character, disposition and general propensity. The onus is on the Crown to establish on a balance of probabilities that the probative value of the similar fact evidence justifies its admission. It must be legitimately probative of an issue and its probative value must outweigh its prejudicial effect.

[190] A trial judge must evaluate the potential for “moral” and “reasoning” prejudice and then determine if the probative value outweighs any prejudice. “Moral” prejudice relates to the danger that a trier of fact will conclude that the accused is the kind of person likely to have committed the offence charged. Evidence that establishes only that the accused is the type of person to have committed the offence is inadmissible. R. v. S.G., 1997 SCC 311, [1997] 2 S.C.R. 716, at para 63, and R. v. B.(F.F.), [1993] 1 S.C.R. 679, at p. 730.

[191] While reasoning from general propensity is prohibited, reasoning from specific propensity may be permissible. R. v. T.C., 2019 ONCA 898, at para. 50. Similar fact evidence may be admitted if it assists the trier to determine “situation specific behaviour” or “an observed pattern of propensity operating in a closely defined and circumscribed context” and its probative value outweighs its prejudicial effect. Handy, at paras. 55, 90-92.

[192] “Reasoning” prejudice refers to "the risk that the trier of fact will be distracted from their proper focus on the offence(s) charged, including because they may be confused by evidence of multiple incidents or may put more weight than is logically justified on the similar fact evidence, and the risk that unwarranted trial time will be consumed": Tsigirlash, at para. 35, and R. v. Eze, [2022] O.J. No 379. In a “count to count” similar fact case, the trier of fact necessarily hears all of the evidence in relation to all counts on the indictment. Therefore, the risk of reasoning prejudice is attenuated. This is also true of moral prejudice in a judge alone trial. Tsigirlash, at para. 38.

[193] Similar fact evidence will only have sufficient probative value where there is a degree of distinctiveness or uniqueness that exists between the acts. The force of similar fact evidence rests on the premise that the alleged similar acts negate the likelihood of coincidence. Arp, at paras. 45-48.

[194] The steps for determining the probative value of the proposed evidence are: the identification of the issue that the similar fact evidence is probative toward; the identification of the specific factors that connect the similar fact evidence to the facts alleged in the charges and the degree of similarity required to make the proposed evidence admissible; the strength of the evidence; and the possibility of collusion.

[195] Factors relevant to an assessment of probative value that may be considered include:

1. The nature and strength of the similar fact evidence;
2. Proximity in time of the similar acts;
3. The extent to which the other acts are similar to the complainant’s allegations;
4. The objective improbability of coincidence;
5. The number of occurrences of the similar acts;
6. Any distinctive features unifying the incidents;
7. Intervening events;
8. The relative importance of the issue to which the evidence relates; and
9. Any other factors which would tend to support or rebut the underlying unity of the similar acts.

Handy, at para. 82; R. v. Johnson, 2011 ONSC 195, at para. 136; R. v. Bent, 2016 ONCA 651, at paras. 42-44.

[196] As the similar fact evidence gains its probative value from the improbability of coincidence, any evidence such as collusion or tainting negates this improbability. Handy, at para. 110. Where there is an air of reality to the possibility of collusion or tainting, the burden shifts to the Crown to establish on a balance of probabilities that the evidence of similar facts is not tainted by the collusion. Handy, at para. 112, R. v. Dorsey, 2012 ONCA 185. Collusion need not arise only from a deliberate agreement to concoct evidence but also from exposure to extrinsic sources that might unconsciously influence a witness’ account of events. R. v. F.J. (2003), 2003 ONCA 52166, 177 C.C.C. (3d) 1, at para. 77 (Ont. C.A.).

[197] In the context of allegations of sexual abuse by doctors on their patients, “count to count” similar fact applications may be allowed as the conduct shows a “distinct pattern of behaviour.” The evidence may be probative of whether the doctor was incorporating a sexual component into the doctor-patient relationship. The evidence may be relevant to rebut evidence that the doctor’s touching was medically legitimate. R. v. Litchfield, 1993 SCC 44, [1993] 4 S.C.R. 333; R. v. Stewart [2004] B.C.J. No. 195 (BCCA); R. v. Levin [2013] A.J. No. 255; and R. v. Gavrilko [2007] B.C.J. No. 2154 (BCSC).

[198] The test for the admission of similar fact evidence may be met where the evidence shows a "particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it ... so long as it has some specific connection with or relation to the issues for decision in the subject case": Handy, at para. 92. This may be true of "situation specific behaviour", or an "observed pattern of propensity operating in a closely defined and circumscribed context", or "repeated conduct in a particular and highly specific type of situation": Handy, at paras. 90-91. This sort of evidence has cogency because "the pattern of circumstances in which [the] accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact": Handy, at para. 91. This evidence may be admissible if its probative value exceeds its prejudicial effect: Handy, at para. 55, and R. v. T.C., 2019 ONCA 898, [2019] O.J. No. 5741 at para. 50.

Analysis:

[199] The credibility of the complainants has been challenged in each instance. The position of the Defence is that the examinations as described by the complainants did not occur. The following positions have been taken by the Defence:

• Dr. Ateyah had a valid medical reason for doing abdominal exams or exams to investigate swollen lymph nodes but did not touch the complainants’ genital areas in the way they have described;
• Dr. Ateyah conducted an internal examination properly and did not insert or re-insert his finger into the patient’s vagina and only did internal examinations with the patients on their backs;
• Dr. Ateyah always wore gloves when doing genital examinations;
• Dr. Ateyah never conducted a breast or genital examination without a chaperone in the room.

[200] The Defence has also alleged that the complainants’ evidence has been tainted by information they have learned in the media or on-line and that they have come forward with concocted or exaggerated allegations to support the women who have also made complaints.

[201] I agree with the Crown that similar fact evidence is probative to the issues of: proving the acts occurred in the manner described; assessing the credibility of the complainants; and, rebutting the assertion that the evidence has been tainted by media or concocted as a means to support other women. Distinctive similarities in their versions of events, if present, would enhance the truth-seeking function of the Court on all these issues.

[202] Some features of the allegations are present in all charges. All of the allegations arise in the context of the doctor-patient relationship. All of the allegations take place in Dr. Ateyah’s Schomberg clinic when staff or others are nearby. All of the complainants are women, albeit of various ages. All of the allegations, if accepted, arise in the course of medical examinations that were not necessary nor medically legitimate according to Dr. Wintemute. For example:

(a) J.H.(1) presented with depression. Dr. Ateyah performed an examination while pressing on her vaginal area; (b) K.S. presented with a headache. Dr. Ateyah performed an examination while pressing on her vaginal area; (c) M.R. presented with back pain. Dr. Ateyah performed an examination while pressing on her vaginal area; (d) C.W. presented with back pain. Dr. Ateyah performed an examination while pressing on her vaginal area; (e) E.B. attended for an annual physical and pap test. Dr. Ateyah inserted his fingers into her vagina with no gloves. E.B. also attended for Ani Levator Syndrome. Dr. Ateyah massaged her clitoral area. (f) L.H. presented with “pink-eye”. Dr. Ateyah performed an examination while pressing on her vaginal area and listened to her lungs by putting a stethoscope on her breast; (g) C.G. could not specifically recall the purpose of her appointment, but she did not have inverted nipples nor did she have a family history of breast cancer. Dr. Ateyah performed a breast exam by cupping her breasts. Dr. Ateyah also did a bi-manual exam while she was on her side. (h) E.G. presented with lower abdominal pain. Dr. Ateyah examined her breasts while she was sitting. He also did a bi-manual exam. (i) S.H. attended for a physical and pap test. Dr. Ateyah put his finger in and out of her vagina approximately 9 times. (j) T.R. attended for a physical and pap test. Dr. Ateyah did a bi-manual exam with her lying on her stomach. (k) A.R. attended to discuss ovarian cysts and the birth control pill. Dr. Ateyah did an internal examination without gloves. (l) J.H.(2) could not specifically recall the purpose of her appointment. While there she mentioned she had lower abdominal pain. Dr. Ateyah offered to examine her. He asked her to lie on her stomach while he did a bi-manual exam. (m) S.T. attended for an annual physical and pap test. Dr. Ateyah did a bi-manual exam with her on her side. (n) A.Z. attended for strep throat. Dr. Ateyah did a breast exam at a subsequent appointment when A.Z. was following a breast cancer screening program at Sunnybrook Hospital in Toronto.

[203] The fact that Dr. Ateyah allegedly concocted reasons to do non-medically necessary examinations or incorrect examinations of the breasts and genitals in 14 patients is a very compelling similarity between all of them in the sense that it strains the boundaries of logic and common sense that this could be a coincidence. It is a thread throughout the evidence that weaves the different allegations together. It is highly probative of the issues to be determined in this case, namely if these acts were committed and if the complainants are credible and reliable in their testimony. This is "situation specific behaviour", and an "observed pattern of propensity operating in a closely defined and circumscribed context", as contemplated by the Supreme Court of Canada in Handy. I find that the allegations with respect to each complainant may be used as evidence in support of a finding with respect to the others.

[204] I am mindful of the danger of propensity reasoning that a finding of guilt on one count must mean an accused is the type of person to commit the offence and therefore is guilty of other counts. However, in a situation like this where Dr. Ateyah is charged with predatory sexual behaviour in the context of his relationship as a doctor to these complainants, this “situation specific” propensity is relevant. It is distinctive behaviour that is present in all the allegations.

[205] The allegations, if accepted, also reveal another distinctive similarity in behaviour common amongst many of them, which is Dr. Ateyah keeping false records. For example:

(a) Noting a discussion with K.S. about high blood pressure that she is adamant did not occur; (b) Noting a “sister with breast cancer” in the case of C.G. when her sister has never had cancer; (c) Noting that L.H. was there for a respiratory illness and that she had been coughing for several days when L.H. actually went to see him for “pink-eye” and was otherwise fine; (d) Noting that S.H. reported an issue with bladder incontinence when she did not have such an issue; (e) Noting in the case of E.G. that there was no “PV” or internal examination done when she testified that she was subjected to an internal exam; (f) In several cases noting the presence of a chaperone when there was no chaperone for all or part of the examination; and (g) In the case of J.H.(1) and A.R., noting that he had done a breast exam when they testified that he did not.

[206] There are also other elements of the appointments that are distinctively similar. The Defence has fairly conceded some of these. These are:

(a) C.G., J.H.(2), T.R. and S.T. reported that Dr. Ateyah instructed them to go onto their side or stomach for an internal examination without a chaperone; (b) E.B., S.H. and S.T. reported that Dr. Ateyah conducted a pap test with a chaperone and then came back into the room without a chaperone to do an internal examination; (c) K.S., L.H., M.R., A.R. and C.W. all described vaginal exams where Dr. Ateyah did not wear gloves; and (d) C.G. and S.H. report that Dr. Ateyah put his finger in and out of their vaginas multiple times.

[207] I find that there are other distinctive similarities between some of the allegations.

[208] C.G., E.G. and S.H. all allege that Dr. Ateyah conducted breast exams while they were sitting up and he had them open or lift up their top then touched their breasts inappropriately.

[209] J.H.(1), E.B., K.S., L.H., C.G., A.R. and C.W. all report that they were not offered privacy to change or given draping while being asked to remove their clothing.

[210] The prejudicial effect of the admission of the similar fact evidence does not outweigh its probative value. As a judge sitting without a jury there is no danger that I will use the evidence to engage in inappropriate propensity reasoning. The risk of reasoning prejudice is not engaged because all of the allegations were before me on one indictment and this was a judge alone trial.

Collusion or Tainting:

[211] The Defence has raised the issues of tainting and collusion because of the amount and type of information available in the media and through the CPSO website. I am satisfied that there is an air of reality to the possibility of tainting or collusion such that the Crown must disprove it on a balance of probabilities.

[212] The media reports did not include the specifics of the allegations, just that Dr. Ateyah was charged with sexually assaulting numerous female patients in his Schomberg clinic. Evidence as to what specific information or details of allegations that were on the CPSO website was not introduced at trial. Some of the complainants agreed that they had gone to the website and read about the allegations. At its highest, the evidence that had the potential for tainting was that there were inappropriate pelvic exams on his female patients by Dr. Ateyah with no specific details provided.

[213] With the exception of T.R. and A.R. (who are mother and daughter), there is no evidence that any of the complainants know each other or communicated with each other in any way. Although T.R. and A.R. discussed their allegations with each other before going to the police, they described encounters with Dr. Ateyah that are completely different. T.R.’s complaint is that Dr. Ateyah performed an internal exam in the absence of a chaperone while she was on her stomach. T.R. testified that Dr. Ateyah was wearing gloves. A.R. described an unexpected internal examination while lying on her back where Dr. Ateyah was not wearing gloves. They had discussions to try to determine the date of the appointments of concern. This does not taint their evidence because the date of the appointment does not go to the core of their allegations. I find that their evidence in describing the conduct of Dr. Ateyah has not been tainted by discussions between them.

[214] I do not accept the submission of the Defence that the complainants concocted or exaggerated stories to support women unknown to them in some form of solidarity. As I will discuss in my analysis of the complainants’ evidence, each had reasons for not coming forward earlier and each had reasons for coming forward when they did. Making allegations of sexual assault against a doctor is something none of them took lightly. The thinking that they may not be believed on their own is understandable. Recognizing that the more people that came forward, the more likely they were to be believed or “strength in numbers” does not equate with fabricating allegations to support each other.

[215] In coming to my conclusion that the evidence of each complainant is admissible as similar fact evidence to be considered on all the charges, I have considered the possibility of collusion and tainting and find that there was no collusion or tainting of evidence in this case.

[216] The similar fact application is granted.

The Law of Consent in the Context of Medical Examinations:

[217] A conviction for sexual assault involves proof beyond a reasonable doubt that the accused touched the complainant for a sexual purpose without their consent. In a situation where a doctor is examining a patient with their consent, there will be no sexual assault if the examination is done for a legitimate medical reason. In other words, if the doctor has a valid medical purpose and an objectively legitimate reason for examining an intimate part of a patient’s body the examination is not sexual. In order for there to be a sexual assault in the case of a consensual medical procedure, the doctor’s touching must have been used to sexualize the interaction. A patient can only provide consent to a bona fide medical examination conducted for a legitimate medical purpose. R. v. Buna, 2009 BCCA 536, 2009 B.C.C.A 536, at paras. 55-60; R. v. Maurantonio, 1967 ONCA 317, [1968] 1 O.R. 145 (C.A.); R. v. Findlay, 2021 ONSC 5661, at para. 177, and R. v. Clottey, 2018 ONCJ 536.

The Framework for Analysis:

[218] Dr. Ateyah is presumed innocent. There is no onus on Dr. Ateyah to prove his innocence. Unless the Crown satisfies me beyond a reasonable doubt that he is guilty of any of the offences I must find him not guilty.

[219] The parties agree that determinations related to the credibility and reliability of the complainants and Dr. Ateyah are the most important and decisive factors in this case. As such, the analysis outlined in R. v. W.D., 1991 SCC 93, [1991] S.C.J. No. 26 is the appropriate framework through which to decide this case. If I accept the evidence of Dr. Ateyah then I must acquit him. Even if I do not accept the evidence of Dr. Ateyah but it raises a reasonable doubt, I must acquit him. Finally, even if I do not accept his evidence and it does not raise a reasonable doubt, I must be satisfied on the evidence I do accept that the Crown has established his guilt beyond a reasonable doubt.

[220] The decision in this case must not be based on a credibility contest between each of the complainants and Dr. Ateyah. Even if I find the complainants to be credible, I must still be satisfied beyond a reasonable doubt on all of the evidence I do accept before I can find Dr. Ateyah guilty of any of the charges.

[221] There are other legal principles at play. With the exception of C.W., none of the complainants made a timely complaint to the CPSO or the police and many continued to see Dr. Ateyah after the encounters that form the basis of their complaints. Some of the complainants reported the events to family and friends and some did not. Most did not come forward until they heard the media reports about his arrest.

[222] In R. v. Lacombe, 2019 ONCA 938, [2019] O.J. No. 6023, the Ontario Court of Appeal citing longstanding jurisprudence from the Supreme Court of Canada (R. v. Mills, 1999 SCC 637, [1999] 3 S.C.R. 668, R. v. D.(D.), 2000 SCC 43 and R. v. W.(R.), 1992 SCC 56.) held that delayed reporting, standing alone, does not assist in evaluating whether an account alleging a consensual encounter is true or raises a reasonable doubt. With respect to the “expected conduct” of a complainant in a sexual assault case the Court at para. 45 stated: There is no rule as to how victims of sexual assault are apt to behave. R. v. Kiss, 2018 ONCA 184 at para. 101.

[223] Further, in R. v. A.B.A., 2019 ONCA 124, at para. 5, the Ontario Court of Appeal reiterated jurisprudence from the Supreme Court of Canada that reliance upon stereotypical views about how victims of sexual assault would behave is an error of law. The Alberta Court of Appeal in R. v. A.R.J.D. 2017 ABCA 237, described how seeming resort to “common sense” can mask reliance on stereotypical assumptions. At para. 9 the court stated:

To be clear, reliance on a stereotype to found an assessment of credibility bearing on reasonable doubt is impermissible – it is an error of law. Accordingly, reasonable doubt is not a shield for appellate review if that doubt is informed by stereotypical and therefore prejudicial reasoning. Similarly, to suggest that stereotypical thinking is merely logic or common sense is a licence for it to continue unmasked and unabated. That is why, as a matter of law, this type of reasoning must not be insulated from appellate review.

[224] Dr. Ateyah does not have to demonstrate that the complainants have a motive to fabricate. The absence of evidence of a motive to fabricate is one factor that may be considered by a trial judge among all other relevant factors in assessing the credibility of complainants. When considering the absence of a motive to fabricate, a trial judge must consider the risks associated with this reasoning. The absence of a motive to fabricate is an “unreliable marker of credibility” as there are many reasons why a person may not tell the truth. R. v. Sanchez, 2017 ONCA 994, at para. 25.

Analysis:

Credibility and Reliability of the Witnesses:

Dr. Wameed Ateyah:

[225] Dr. Ateyah has no specific recollection of most of the interactions with the complainants that give rise to these charges. Dr. Ateyah relies on the notes made during or shortly after his encounters with these women and on his professed usual practices to relay his version of events. In some cases, he denies the events described by the women. In other cases, he agrees the examinations complained of occurred but denies they occurred in the way described by the women.

[226] There are many problems with Dr. Ateyah’s evidence that affect both his credibility and reliability. The most glaring problem with Dr. Ateyah’s credibility is his justification for doing examinations that could not have been done for a legitimate medical purpose. Even if I accept his version of events as to what examinations he did, his evidence as to why he conducted certain medical examinations lacks credibility.

[227] Dr. Ateyah performed many abdominal examinations on the complainants that he described as medically legitimate where Dr. Wintemute, whose credibility was not challenged and whose evidence I do accept, found no legitimate medical reason for the abdominal exam or at best strained to find a medical reason justifying such an exam.

[228] For example, J.H.(1) saw Dr. Ateyah as she was feeling depressed and anxious while away at university. On his own evidence, Dr. Ateyah performed an abdominal examination on two occasions as well as a “limited” breast exam. J.H.(1) denies there was a breast exam. His reasons for doing so shifted. At first, Dr. Ateyah indicated that he did the abdominal exams because he needed to see if there was any tenderness or bloating to her ovaries or uterus “due to hormones” although he agreed that to properly make such an assessment, he would have to do a bi-manual exam. In cross-examination Dr. Ateyah added that perhaps on the second appointment he was looking for constipation. He did not ask J.H.(1) if she was constipated but testified that it was not useful to ask first because patients often don’t know what constipation means or even if they do know what it means, they may not know that they are constipated. Although he testified that this was necessary due to the finding that J.H.(1) had low B-12, his evidence that he would not have asked her first if she was constipated defies logic and common sense. He was clearly making up reasons to touch her abdomen while he was testifying. This detracts greatly from his credibility.

[229] Dr. Wintemute testified about the expected examination for one presenting with depression. This did not involve an abdominal exam. Dr. Wintemute testified that there would be no reason to try to feel for ovaries as they can’t be felt and although depression can be related to hormones, feeling ovaries would not be of assistance.

[230] Dr. Wintemute testified that generally if a patient presented with depression or anxiety what should be done is a mental status exam by talking to the patient and asking questions. If the patient had other concerns related to their reproductive health, that might prompt a gynecological exam in a follow-up appointment.

[231] J.H.(1) had no gynecological concerns that would warrant a check for tenderness to her ovaries. She was depressed. I find Dr. Ateyah’s explanation for conducting an abdominal examination on J.H.(1) implausible. I reject his evidence on this point and find that it is not capable of raising a reasonable doubt in my mind.

[232] Another example of an unnecessary medical examination is that of K.S. She attended Dr. Ateyah’s office because she had a headache. Dr. Ateyah testified that according to his notes he performed an abdominal examination to see if there was any tenderness in the area around her ovaries which would indicate a connection between her headache and hormones. Once again, this defies logic and common sense and is contrasted by Dr. Wintemute’s evidence that hormonal imbalances cannot be felt. K.S. had a headache and no complaint about her gynecological health. I find Dr. Ateyah’s explanation for conducting an abdominal examination on K.S. implausible. I reject his evidence on this point and find that it is not capable of raising a reasonable doubt in my mind.

[233] A.R. wanted the birth control pill and had a concern about ovarian cysts given her mother’s own history with ovarian cysts. Dr. Ateyah ordered bloodwork and scheduled a follow-up visit with A.R. Dr. Ateyah testified that he conducted a breast exam and an abdominal exam with a chaperone in the room (A.R. denies this). He testified in-chief that a breast exam is standard for a woman being put on birth control.

[234] Dr. Wintemute testified that historically a breast exam was done when a patient started taking the birth control pill. However, Dr. Wintemute testified that the utility of that has been challenged. Today, what is necessary before starting the birth control pill is a blood pressure check.

[235] Dr. Ateyah agreed in cross-examination that he has known for 10 – 15 years that breast exams do not save lives. A breast exam is only necessary if there is a specific concern about the breast or the patient is high risk. With no family history of breast cancer and no issues with their breasts, there would be no reason for him to do a breast exam unless he is looking for lumps or infections in a lactating woman, or for skin cancer.

[236] I find that there was no valid medical reason for Dr. Ateyah to do a breast examination on A.R. It is A.R.’s evidence that Dr. Ateyah did not do a breast examination. This is an example of where Dr. Ateyah’s notes are unreliable and/or falsified.

[237] The objective of the bi-manual exam is to trap the uterus between both hands to notice the anatomy, to see if the cervix is tender, the uterus is enlarged and check the mobility of the uterus. Dr. Wintemute testified that a doctor does not actually notice the ovaries in a bi-manual exam. They are very small and difficult to detect. If the doctor can notice they might be enlarged. Dr. Wintemute testified that a bi-manual examination cannot detect inflammation. Inflammation is something a doctor can see under a microscope. If the doctor was testing for and noted tenderness, that is something that she would expect to see in the medical records.

[238] There was no legitimate medical reason for Dr. Ateyah to do an abdominal examination on A.R. either. I reject his evidence on this point and find that it is not capable of raising a reasonable doubt in my mind.

[239] C.W. went to see Dr. Ateyah for back pain that she believed may be associated to her kidneys. Dr. Ateyah testified that he thought the pain could be related to her ovaries, be PID or kidney stones. He testified that he performed a routine abdominal exam. However, his notes indicate that there was tenderness in the area of her pubic bone on either side of her groin. It is difficult to understand how he could note tenderness in her groin area if he did not touch her there as she described.

[240] When asked about a connection between back pain or abdominal pain with gynecological conditions, Dr. Wintemute testified that if a patient had PID or if they had a large ovarian cyst they could have back or abdominal pain. In an examination, a doctor would make this determination by asking questions and getting the history of the pain from the patient. These inquiries and the answers to these questions should be noted in the medical record. None are.

[241] There seems to be no legitimate medical reason for Dr. Ateyah to have done an abdominal exam on C.W. and certainly no reason to palpate her groin area as indicated by his notes. I reject his evidence with respect to C.W. and find that it is not capable of raising a reasonable doubt in my mind.

[242] I do not accept Dr. Ateyah’s evidence as to why he conducted the abdominal examinations he claims to have performed on J.H.(1), K.S., A.R. and C.W. Dr. Ateyah had a very busy medical practice. It makes no sense that he would conduct these unnecessary exams unless he had an ulterior motive. This greatly affects my assessment of his credibility.

[243] There are other issues with Dr. Ateyah’s credibility. His evidence with respect to the use of examination Room 3 is internally inconsistent and illogical. He initially testified that Room 3 was the exam room used for walk-in patients. His evidence shifted when confronted with records that a walk-in patient (E.G.) had used another exam room. I find that his original evidence that walk-in patients only used Room 3 was exaggerated to conform with his narrative that a patient could not lie down on the exam table in there and therefore it was less likely that he could reach into their groin area as in the case of J.H.(1), K.S. and L.H.

[244] His evidence that it was impossible to use the exam table in Room 3 for abdominal exams even with a person who was smaller in stature was also not credible. The inability to move the ultrasound machine to be able to conduct an examination is an example of Dr. Ateyah trying to explain something that otherwise does not make sense. Obviously, a person of smaller stature could lie on the exam table for a proper abdominal exam. Obviously, Dr. Ateyah could move the machine, which was on wheels, without damaging it even if it did not belong to him. Once again, this evidence was given to bolster his position that he could not have reached into the groin area of those complainants.

[245] Dr. Ateyah testified that C.W. did lie on the exam table in Room 3 with her legs bent while he did an abdominal examination. If this was possible for her, it would have been possible for others such as J.H.(1), K.S. and L.H. who he claims he told to lean back against the wall for their abdominal exams. It does not make sense that if Dr. Ateyah had a valid medical concern warranting an abdominal examination that he would not take steps to make sure the patient could lie down for it to be conducted properly, particularly when he agreed in cross-examination that other rooms with standard examination tables were sometimes used for walk-in patients who were there in the afternoons when he would not be seeing rostered patients.

[246] There are also significant issues with Dr. Ateyah’s reliability. Dr. Ateyah relies heavily on the notes in the patient’s medical records to provide his evidence as to what occurred in the appointments. His medical records are admittedly deficient. There are times when he records the presence of a chaperone and times where he does not. He testified, however, that based on his usual practice a chaperone was always present. There is also evidence that I do accept that shows Dr. Ateyah deliberately made false entries in his notes to justify why he did certain examinations. I will discuss my reasons for this finding in my analysis of the complainants’ evidence. Not only does this affect Dr. Ateyah’s reliability as his testimony is based, in part, on his notes but it greatly affects my assessment of his credibility.

[247] Dr. Ateyah’s reliance on his usual practices to recount what would have happened during an appointment or a particular exam is flawed because his usual practices are inconsistent.

[248] For example, his usual practice when conducting a breast exam was to leave the room and provide the patient with a gown or draping. He testified that he did a “limited” breast exam on J.H.(1) by just asking her to open her shirt. Similarly, his evidence with respect to C.G. is that there were times he would only examine one breast, not both.

[249] As discussed, his testimony that his usual practice was to put walk-in patients in Room 3 which then informed his testimony about how a particular exam would have been done is unreliable because that usual practice was not always followed.

[250] I do not suggest that there is necessarily anything wrong with deviating from these practices. However, when Dr. Ateyah has no memory of an event, and relies on his usual practice to describe it, knowing that there are deviations from the usual practice takes away from the reliability of his testimony.

[251] Dr. Ateyah described in detail the way in which he conducts an annual physical including the examinations done and the “head-to-toe” order in which he does them. He testified that he would observe the patients gait as they walked into the exam room as part of his neurological assessment, but then testified that in many cases he would only encounter a patient once they were already in the exam room. Again, this only becomes problematic because his testimony is based, in part, on his usual practices which are not consistent.

[252] Dr. Ateyah testified about his usual practice in conducting pap tests. He described in detail his own procedure in taking the swab and handing it off to the nurse or chaperone standing by. In cross-examination he agreed that in his statement to the police, he told them that from mid-2019 it was the nurse doing the pap tests and the breast exams not him.

[253] For all of these reasons, I find that overall Dr. Ateyah was neither a credible nor reliable witness. I reject his version of events as it relates to his encounter with each complainant and find that it does not raise a reasonable doubt. I must now go on to consider the evidence of the Crown on each charge to determine if it satisfies me beyond a reasonable doubt of his guilt.

Dr. Kimberly Wintemute:

[254] Dr. Wintemute was qualified to give expert evidence in this case. Her qualifications were not challenged. As stated, neither was her credibility. Her evidence was largely accepted by Dr. Ateyah as accurate. I found Dr. Wintemute to be an honest and fair witness whose evidence was careful and thorough. Given my findings with respect to his credibility, in the very narrow areas in which her evidence diverges from that of Dr. Ateyah, I prefer and accept the evidence of Dr. Wintemute.

The Evidence of the Complainants:

[255] Given my findings with respect to the credibility of Dr. Ateyah and my rejection of his evidence I must determine if the evidence of the complainants satisfies me beyond a reasonable doubt that he sexually assaulted them in the manner they describe.

J.H(1).

[256] The Crown and Defence agree that J.H.(1) was mistaken about the fact that she only had one appointment with Dr. Ateyah; that she had a blood test ordered by Dr. Ateyah and that she saw the CPSO sign indicating he had to have a chaperone with him for appointments with women.

[257] The Defence submits that therefore J.H.(1) is not a reliable witness. Her motivation for coming forward was to help other women having heard about Dr. Ateyah’s criminal charges. The Defence submits that her evidence is inconsistent on the issue of whether she was already lying down when Dr. Ateyah put his hands down her pants or if she was transitioning from sitting to lying. This is another reason to distrust her evidence entirely or to find that it raises a reasonable doubt.

[258] The Defence submits that there are other inconsistencies in J.H.(1)’s evidence. In her statement to police, she said that when she told her father about the incident, she knew what Dr. Ateyah had done was wrong. Yet in her on-line report to the police, she said “I’m still confused if I am making more of what occurred. But I don’t want to stay silent if something is wrong.”

[259] The Crown submits that her lack of memory is understandable given the passage of time and that when confronted with documentation confirming she had bloodwork done, she fairly conceded it occurred though she did not recall it. The Crown submits that given the two appointments were so close in time and so long ago, it is understandable that J.H.(1) has conflated them into one visit in her mind.

[260] J.H.(1) impressed me as a forthright and honest witness who was attempting to recall the truth. Her confusion about whether Dr. Ateyah had done something wrong as detailed in her statement to the police is understandable and speaks to the fairness in which she approached this situation. Dr. Ateyah is a medical professional who she relied on and trusted to examine and treat her appropriately.

[261] I agree with the Defence, however, that the conflating of the two appointments into one and her subsequent insistence that there was only one appointment does detract from her reliability.

[262] Dr. Ateyah admits asking J.H.(1) to lie back against the wall so that he could do an abdominal exam. He admittedly touched her lower abdomen as part of this exam. It is difficult to imagine, despite the previously stated frailties with her memory, that J.H.(1) could have been mistaken about Dr. Ateyah pressing on her vagina over her underwear and telling her he was checking her ovaries particularly when Dr. Ateyah has admitted he touched her abdomen because he needed to see if there was any tenderness or bloating to her ovaries or uterus “due to hormones.”

[263] I accept the evidence of J.H.(1). I do not have a reasonable doubt that Dr. Ateyah touched her on her vagina as she described it. The Defence concedes that touching her in this manner would have no legitimate medical purpose. I agree. Therefore, I find that the touching of J.H.(1) was for a sexual purpose without her informed consent. I also accept her evidence that there was no chaperone present for this exam.

[264] Even if I were to have a doubt on her evidence only, based on the similar fact evidence of the other complainants, in particular, K.S., L.H., M.R. and C.W. who all describe Dr. Ateyah touching them in the same way during a supposed abdominal exam, I am satisfied beyond a reasonable doubt that Dr. Ateyah touched J.H.(1) as she described.

[265] I find Dr. Ateyah guilty of sexually assaulting J.H.(1) – count 20.

E.B:

[266] E.B. alleges that Dr. Ateyah inserted a finger into her vagina after a pap test and after the chaperone left the room. She also alleges that Dr. Ateyah massaged her genital area near her clitoris while telling her to relax as a treatment for her Ani Levator Syndrome.

[267] Prior to this appointment, E.B. had recently told Dr. Ateyah that she had been sexually assaulted and reported this to the police. Dr. Ateyah noted these facts in her medical chart. Dr. Ateyah testified essentially that he would be much more sensitive in any intimate examination of a patient in these circumstances. The implication of this is that he would be less likely to violate them. I give no weight to this submission. I have already found Dr. Ateyah to be an untruthful witness. The fact that E.B. had been sexually assaulted before, as a matter of common sense, does not mean he would be less likely to sexually assault her.

[268] The Defence submits that E.B.’s allegations are vague and unreliable and in conflict with the medical records. Her testimony that Dr. Ateyah told her she had bacterial vaginosis is unsupported by the medical records. It is the Defence position that E.B., like J.H.(1) and others, came forward to support other women as she told the police she believed there was “strength in numbers.”

[269] Like J.H.(1), E.B. questioned whether what had happened to her was wrong. She testified, “The best way I can explain it is you question yourself, not necessarily what was done. You blame yourself even though you feel what happened was not right.”

[270] I accept the evidence of E.B. as truthful. I understand why she would be confused as to if what Dr. Ateyah had done was improper. Dr. Ateyah was her long-time doctor. It is understandable that she trusted him. E.B. had attended many appointments with Dr. Ateyah over a period of 5 years. It does not detract from her credibility that she can’t pinpoint at which of the many appointments these events occurred.

[271] I find that Dr. Ateyah inserting a finger into E.B.’s vagina in the absence of a chaperone without explanation in the context of an intimate medical examination constitutes sexual touching without her consent.

[272] Dr. Wintemute testified that Ani Levator Syndrome, the condition experienced by E.B., is most commonly treated with relaxation and warm baths or stretching. Having a patient lie on their back while the doctor massages their groin close to the clitoris is not a treatment familiar to Dr. Wintemute.

[273] I find that massaging E.B.’s vagina in the area of her clitoris in the course of a medical exam also constitutes sexual touching without consent.

[274] With respect to the Crown’s similar fact application, the Defence concedes that the other two cases where the intimate exams were conducted after the chaperone left (S.H. and S.T.) are distinctively similar so as to constitute admissible similar fact evidence in support of a conviction of sexual assault on E.B. Were I left in a doubt about the guilt of Dr. Ateyah after a consideration of the evidence of E.B. only, the admission of the similar fact evidence would satisfy me of his guilt beyond a reasonable doubt on this count.

[275] Even if I were to have a doubt on E.B.’s evidence only on count 11, the admission of the similar fact evidence satisfies me of his guilt beyond a reasonable doubt.

[276] I find Dr. Ateyah guilty of two counts of sexually assaulting E.B., counts 10 and 11.

K.S.:

[277] K.S. alleges that when she went to see Dr. Ateyah for a migraine he told her to lie on the bed, undo her pants and he then touched her vaginal area in the absence of a chaperone while mentioning “something about her ovaries.”

[278] I have already rejected the evidence of Dr. Ateyah with respect to this exam and found it does not raise a reasonable doubt. I have determined that there was no valid medical reason for Dr. Ateyah to be conducting any type of abdominal exam on K.S. when she presented with a headache.

[279] The Defence fairly acknowledges K.S.’s evidence had no “glaring flaws.” It is their position that K.S. may have been influenced to come forward upon learning information from Facebook and on-line about other complainants and Dr. Ateyah’s arrest. She testified that she had a very awkward experience with him and felt she should say what happened to her out of support. She did not call the police immediately upon learning of the criminal charges but took some time to contemplate her options. K.S. visited the CPSO website but did not learn details of the allegations made by other women.

[280] The Defence submits that K.S.’s memory of the events may have been compromised by the passage of time and her tendency to be anxious.

[281] I found K.S. to be a credible and reliable witness. Although she did not report the events to the police right away, she always felt the encounter with Dr. Ateyah was strange. I find her reluctance to come forward even after learning of the allegations of others does not detract from her credibility. K.S. quite fairly made a considered decision as to whether she wanted to involve herself in the investigation and ultimately determined she should say what happened to her in support of the other women. I do not agree with the Defence that wanting to support other women detracts from her credibility at all. I accept the evidence of K.S. as truthful.

[282] With respect to the Crown’s similar fact application, the Defence concedes that the other four cases where vaginal exams were conducted without gloves (L.H., M.R., A.R. and C.W.) are distinctively similar so as to constitute admissible similar fact evidence in support of a conviction of sexual assault on K.S. Were I left in a doubt about the guilt of Dr. Ateyah after a consideration of the evidence of K.S. only, the admission of the similar fact evidence would satisfy me of his guilt beyond a reasonable doubt on this count.

[283] I find Dr. Ateyah guilty of sexually assaulting K.S. – count 7.

L.H.:

[284] L.H. testified that she went to see Dr. Ateyah as a walk-in patient for “pink-eye” and he ended up asking her to lie down, undo her pants and then he touched the area around her vagina. When listening to her chest with his stethoscope he put the stethoscope directly on her nipple. All this was done without the presence of a chaperone.

[285] I have already rejected Dr. Ateyah’s evidence and found that it does not raise a reasonable doubt. I have also found that there was no legitimate medical reason for examining L.H.’s abdominal area when she presented for “pink-eye” or even, on his evidence, when she presented for a respiratory infection.

[286] The Defence submits that L.H.’s evidence may be tainted by accessing information about other allegations on-line. L.H. testified that Dr. Ateyah mentioned she may have an infection in the area of her ovaries. She had always used the term pelvic region in her previous statement. L.H. denied the suggestion that she had learned any specific details of any of the other allegations on-line although she testified that she had been on the CPSO website and learned that there were two complainants – Patient A and Patient B.

[287] The Defence submits that L.H’s evidence of being able to see the sign posted in Dr. Ateyah’s office from outside is false and therefore detracts from her credibility and reliability. The Defence submits that L.H. is less credible because once she learned there was a sign in the office, she decided her feelings about what happened to her were not something she had overreacted to. But she denied the idea of “strength in numbers” motivated her to come forward.

[288] Finally, the Defence submits that the prescription of an antibiotic normally used for respiratory infections and not used to treat “pink-eye” undermines L.H.’s version of events that she went to Dr. Ateyah’s walk-in clinic because of “pink-eye”.

[289] L.H.’s version of events is corroborated by two sources. Someone in Dr. Ateyah’s office recorded her reason for being there as “eye”. She also told her friend J.T. shortly after the encounter what had happened, specifically that she went to the clinic for “pink-eye” and the doctor examined her vaginal area. Normally, prior consistent statements of a witness are inadmissible. However, in the case such as this, prior consistent statements are admissible to rebut the allegation of recent fabrication.

[290] I accept the evidence of L.H as truthful. The fact that her reason for the visit is recorded as “eye” supports her evidence that she went there for “pink-eye” and not a respiratory infection. Dr. Ateyah clearly had no reason to examine her vaginal area if she was concerned about “pink-eye”. He told L.H. that she might have another infection. This was a means to convincing her to open her pants and have him check her groin area. Perhaps the prescription for a drug commonly associated with a different infection was done to cover his tracks. In any event, L.H. told her friend the day of the appointment what had happened. Therefore, the suggestion that her memory is tainted by information she may have learned later is not substantiated.

[291] Even if I were to have a doubt on her evidence only, the admission of the similar fact evidence, in particular that of J.H.(1), K.S., C.W. and M.R., satisfies me of Dr. Ateyah’s guilt beyond a reasonable doubt on this count.

[292] I find Dr. Ateyah guilty of sexually assaulting L.H. – count 9.

E.G.:

[293] E.G. attended Dr. Ateyah’s office complaining of lower abdominal pain. She alleges that Dr. Ateyah did a bi-manual exam with no chaperone present. He told her that her ovary felt inflamed. He also reached into her bra and felt her breasts.

[294] In a patient presenting with on-going lower right abdominal pain, Dr. Wintemute testified that the only potential reason to ask a patient to remove her pants and underwear could be if there is a suspicion of sexual infection. Dr. Wintemute testified that you would expect there to be something in the medical records about the potential for gynecological problems such as information that the pain is worse with intercourse or if they have been experiencing pain when ovulating. Dr. Wintemute testified that a bi-manual examination cannot detect inflammation.

[295] When asked about a connection between back pain or abdominal pain with gynecological conditions, Dr. Wintemute testified that if a patient had Pelvic Inflammatory Disease (“PID” as earlier defined) or if they had a large ovarian cyst they could have back or abdominal pain. In an examination, a doctor would make this determination by asking questions and getting the history of the pain from the patient. These inquiries and the answers to these questions should be noted in the medical record. They aren’t.

[296] The Defence submits that this count has not been proven beyond a reasonable doubt because there is no independent confirmatory evidence of E.G’s allegations and the medical records contradict her account. I disagree. Dr. Ateyah’s notes indicate that he did an abdominal exam. He testified that his reason for doing so was to see if her lower abdomen was tender which could mean “inflammation” or an issue with her ovaries. His notes indicate that there was no internal examination done, perhaps this was done with the foresight of covering his tracks. In any event, his notes are unreliable and his evidence is not credible. There was no legitimate medical reason for even doing an abdominal examination. Like in the case of J.H.(1), K.S., L.H., M.R. and C.W., Dr. Ateyah was looking for a reason to have E.G. undo her pants so he could touch her vagina.

[297] I accept the evidence of E.G. as truthful.

[298] Even if I were to have a doubt on her evidence only, the admission of the similar fact evidence, in particular that of J.H.(1), K.S., C.W. and M.R., satisfies me of Dr. Ateyah’s guilt beyond a reasonable doubt on this count.

[299] I find Dr. Ateyah guilty of sexually assaulting E.G. – count 8.

C.G.:

[300] C.G. was a long-time, rostered patient of Dr. Ateyah. She alleges that on one occasion, Dr. Ateyah conducted a breast exam by asking her to lift up her shirt and bra while she was seated on the exam table, without affording her the privacy to change or giving her a gown. He then cupped both breasts and lifted them up one at a time. He advised her that she had an inverted nipple.

[301] On another occasion, C.G. alleges that during an appointment without a chaperone and without being given privacy to change into a gown, Dr. Ateyah told her to lower her pants and underwear and lie down on the examination table in the fetal position facing the wall. He then put his finger in and out of her vagina about 5 times. His body was pushing up against her. She felt degraded after this encounter and afterwards told her husband.

[302] Dr. Wintemute testified that there would be no valid medical reason to conduct an internal exam with a patient on her side or to insert and re-insert a finger into her vagina. Dr. Wintemute also testified that cupping a woman’s breast and lifting them up one at a time is not a proper breast exam.

[303] The Defence submits that there are inconsistencies in C.G.’s evidence that impact on her credibility and reliability. C.G. was inconsistent on the time of year these events took place. Also, in her statement to the police she indicated she was lying on her back when Dr. Ateyah told her to roll over to her side. She did not remember how she got into the fetal position when she testified at trial.

[304] C.G. did not remember ever being in the fetal position for an examination before. Although she had an abscess near her anus, she believed that Dr. Ateyah would examine it while she was lying on her stomach. Dr. Wintemute testified that it would be appropriate to examine an abscess in that area in the fetal position. The Defence submits that C.G. is conflating an anal examination where she was in the fetal position with an internal examination while she was actually on her back.

[305] C.G. testified that her sister did not have breast cancer. It defies logic and common sense that she would tell Dr. Ateyah her sister was diagnosed with breast cancer at 37 years old when this was not the case. I find that his note on the ultrasound requisition form is an example of where Dr. Ateyah’s notes are falsified to justify an examination that was not medically necessary.

[306] I find the inconsistencies in her evidence to be minor in nature and understandable given the passage of time. I accept the evidence of C.G. as truthful.

[307] The Defence concedes that the other three cases where internal exams were conducted with the patient on their side or stomach (J.H.(2).; T.R.; and S.T.) and the other case where the patient was masturbated by a finger going in and out (S.H.) are distinctively similar so as to constitute admissible similar fact evidence in support of a conviction of sexual assault on C.G. Even if I were to have had a doubt on C.G.’s evidence only, the admission of the similar fact evidence satisfies me of Dr. Ateyah’s guilt beyond a reasonable doubt.

[308] With respect to the allegation of Dr. Ateyah performing an inappropriate breast examination while she was seated, I am satisfied beyond a reasonable doubt that this occurred. Even if I were not satisfied beyond a reasonable doubt, with the admission of the similar fact evidence in particular that of E.G. and S.H. of Dr. Ateyah conducting breast exams while they were sitting up, having them open or lift up their top and then touching their breasts inappropriately that Dr. Ateyah examined C.G.’s breasts in the way she described.

[309] I find Dr. Ateyah guilty of sexually assaulting C.G. on both counts – counts 1 and 2.

J.H.(2):

[310] J.H.(2) testified she was having dull lower right abdominal pain. Dr. Ateyah told her to lie down on her stomach with her legs bent in the opposite direction (with her head towards the stirrups) so that he could examine her right side. While she was in this position he told her to put her ankles together and spread her knees so that it would be easier for him to examine her. He felt her right side with one hand and with the other hand he inserted two fingers into her vagina. He was wearing gloves. After he finished the examination, he said that it felt a bit inflamed.

[311] Dr. Wintemute could not think of a reason to conduct a bi-manual exam with the patient lying on her stomach. Dr. Wintemute testified that a bi-manual examination cannot detect inflammation.

[312] Dr. Ateyah denied conducting an examination in this manner. It was his evidence that it would be impossible for a patient to lie on the examination table with their head towards the stirrups as the table drops down at the end.

[313] The Defence submits that this count has not been proven beyond a reasonable doubt because J.H.(2) made no complaint or disclosure prior to being exposed to media reports that Dr. Ateyah had been charged with sexually assaulting patients and there is no independent confirmatory evidence of her allegations. Further, J.H.(2) continued to be a patient of Dr. Ateyah after the appointment of concern.

[314] The Defence submits that J.H.(2)’s non-disclosure and decision to continue to see Dr. Ateyah does not engage myth-based reasoning because it would be absurd if trial judges were not permitted to scrutinize a complainant’s evidence of why they did not avoid the accused; why they did not report the matter to the police; or why they cannot recall details relating to the alleged offence. I agree that there is no bar to relying on common-sense inferences that arise from the evidence. However, I accept J.H.(2)’s explanation as to why she did not report this to the police until she learned there were other complainants coming forward. As stated, delayed reporting, standing alone, does not assist in evaluating whether an account alleging a consensual encounter is true or raises a reasonable doubt.

[315] J.H.(2) testified that the appointment never sat right with her. She always felt it was “weird”. It is clear that she did not know for sure the appointment was a sexual assault. This is understandable. Dr. Ateyah was her family doctor. She had many appointments over many years that she did not think were “weird” or that stood out to her. It wasn’t until others started coming forward that the appointment that had always felt “weird” and stood out to her became something she thought she should report. She testified that she wasn’t trying to help the other complainants. She was doing something “purely selfish” and “thinking of herself for once.”

[316] Her late disclosure and decision to continue seeing Dr. Ateyah does not detract from her credibility. I accept the evidence of J.H.(2) as truthful.

[317] The Defence concedes that the other three cases where vaginal exams were conducted with the complainants on their stomach or side (C.G., T.R., and S.T.) are distinctively similar so as to constitute admissible similar fact evidence in support of a conviction of sexual assault on J.H.(2). Were I left in a doubt about the guilt of Dr. Ateyah after a consideration of the evidence of J.H.(2) only, the admission of the similar fact evidence would satisfy me of his guilt beyond a reasonable doubt on this count.

[318] I find Dr. Ateyah guilty of sexually assaulting J.H.(2) – count 18.

S.H.:

[319] Dr. Ateyah is charged with one count of sexual assault in relation to S.H.

[320] S.H. alleges after a pap test, while a chaperone was leaning up against the wall adjacent to where she was lying Dr. Ateyah positioned himself at the side of the bed and inserted a finger into her vagina. He removed his finger and inserted it again. This happened 3-4 times. S.H. then began to count. She counted Dr. Ateyah inserting and removing his finger an additional 5 times.

[321] S.H. alleges that after the chaperone left the room, Dr. Ateyah examined her breasts while she sat on the edge of the examination table. He told her to take down her gown. He stood back and looked at her breasts and told her that there was something wrong with her nipples. He touched her left breast and pushed it up.

[322] Dr. Ateyah denied conducting either examination in this manner.

[323] Dr. Wintemute testified that the current literature supports the conclusion that breast exams do not save lives. Therefore, they are no longer required to be done routinely. Dr. Wintemute testified that there would be no valid medical reason to insert and reinsert a finger or fingers into the vagina.

[324] S.H. testified that prior to this appointment she had seen a sign in the office requiring Dr. Ateyah to have a chaperone with him while in the presence of female patients. She asked him about it. Dr. Ateyah told her that two walk-in patients had made complaints about him to the CPSO that were unfounded. At some point thereafter he asked her to write a letter of support to the CPSO. She did so.

[325] S.H. testified that she did internet research on Dr. Ateyah after the appointment including on the CPSO website. She does not recall specifically what she saw but understood that more and more people were coming forward with allegations. When she saw the media coverage of Dr. Ateyah’s arrest she felt she needed to come forward.

[326] The Defence submits that the chronology of events as described by S.H. is fundamentally flawed. S.H. is certain that the sign went up in Dr. Ateyah’s office before the appointment she complains of. This is demonstrably incorrect. The Defence submits that the letter of support she claims to have written must have been after the appointment she complains of. It is the Defence position that writing a letter of support after this incident occurred does not make sense and detracts from S.H.’s credibility.

[327] S.H. also testified that she was following the media reports about Dr. Ateyah on a regular basis before and after she made her report to the police. She viewed the CPSO website before speaking to the police.

[328] I agree with the Defence that the chronology reported by S.H. must be wrong. S.H. was asked about these dates more than 4 years after the appointment in question. S.H.’s evidence was that she and her husband were very friendly with Dr. Ateyah. Once the sign went up in his office, she accepted his explanation that he was innocent of the acts complained of. When asked why she ultimately went to the police she said, “I had a visit, a physical, with him that I wasn’t comfortable with, that I knew was unusual, and I started to question if maybe what he was telling me was false was actually true” (the allegations). Like some of the others, the complete understanding that something “unusual” or “weird” was actually a criminal offence didn’t crystalize until the media reports about his arrest came out. This is understandable. Dr. Ateyah was a person she liked and trusted. Even after S.H. heard about the charges she hesitated for months before coming forward. She testified that she had a lot going on in her life at the time and her family “loved” their doctor.

[329] I accept the evidence of S.H. as truthful.

[330] The Defence concedes that the other case where an internal exam was akin to masturbating the patient (C.G.) is distinctively similar so as to constitute admissible similar fact evidence in support of a conviction of sexual assault on S.H.. Were I left in a doubt about the guilt of Dr. Ateyah after a consideration of the evidence of S.H. only, the admission of the similar fact evidence would satisfy me of his guilt beyond a reasonable doubt on this count.

[331] With respect to the allegation of Dr. Ateyah performing an inappropriate breast examination while she was seated, I am satisfied with the similar fact evidence in particular that of E.G. and C.G., that Dr. Ateyah also sexually assaulted S.H. by touching her breast.

[332] I find Dr. Ateyah guilty of sexually assaulting S.H. – count 19.

M.R.:

[333] Dr. Ateyah is charged with two counts of sexual assault on M.R.

[334] The charges relate to two occasions where M.R. alleges Dr. Ateyah touched her inappropriately during medical appointments. When M.R. was experiencing back pain Dr. Ateyah told her to stand up while he grabbed both sides of her legs all the way up to her pelvic area. She testified that as Dr. Ateyah went up her leg with his hands, he brushed his hand against her vagina over her clothing. She was confused as to why he needed to touch here there when her complaint was of back pain.

[335] During either this appointment or a subsequent appointment Dr. Ateyah advised M.R. that he wanted to do a pelvic examination. She testified that he told her to spread her legs. He reached under the sheet with one hand, moved her underwear to the side and felt the entrance of her vagina. He was not wearing gloves. He pushed on the area of her labia but did not penetrate her vagina. His other hand was on her abdomen.

[336] M.R. described several other encounters that made her feel uncomfortable. These involved comments made to her by Dr. Ateyah.

[337] M.R. also observed the sign in Dr. Ateyah’s office advising patients that he needed a chaperone. By the time she observed this sign, the events leading to her allegations had already occurred. M.R. did not seek out any further information about this from the CPSO website at this time, however, she did do an internet search of Dr. Ateyah after he moved out of his Schomberg clinic because she heard he had been “kicked out”. She came across a PDF document from the CPSO that informed her another woman had made an allegation of an inappropriate pelvic exam.

[338] After learning of the criminal charges against Dr. Ateyah, M.R. decided to come forward to the police and describe her experience with him.

[339] Dr. Wintemute testified that there would be no medical reason for a doctor to press on a patient’s vagina or labia.

[340] The Defence acknowledges that M.R.’s evidence had no “glaring flaws.” It is their submission that her allegations are unconfirmed by other evidence and her formal complaint was made as a result of knowledge of other complainants. She made no complaint to anyone until after the media coverage.

[341] M.R. had 53 appointments with Dr. Ateyah. He was her family doctor. During the time she was his patient she was diagnosed with Multiple Sclerosis. When she heard the media reports about other complainants coming forward, she testified that she had to walk away and process the information. When she contacted the police, she testified that she thought she would just talk to someone and then go from there. She wasn’t expecting to give a recorded statement.

[342] For the same reasons as stated with respect to J.H.(2), I do not find that the fact M.R. delayed disclosure detracts from her credibility at all. I accept M.R.’s evidence as truthful.

[343] The Defence concedes that the other four cases of vaginal exams where gloves would be expected to be worn but were not (K.S.; L.H.; A.R.; and C.W.) are distinctively similar so as to constitute admissible similar fact evidence in support of a conviction of sexual assault on M.R. Were I left in a doubt about the guilt of Dr. Ateyah after a consideration of the evidence of M.R. only, the admission of the similar fact evidence would satisfy me of his guilt beyond a reasonable doubt on this count.

[344] With respect to the allegation of Dr. Ateyah feeling M.R.’s vagina in the course of examining her legs, I am satisfied beyond a reasonable doubt that Dr. Ateyah also sexually assaulted M.R. by touching her vagina while she was standing. This is another example of Dr. Ateyah capitalizing on a situation where he could touch a patient’s vagina under the guise of a legitimate medical exam.

[345] I find Dr. Ateyah guilty of two counts of sexually assaulting M.R. – counts 16 and 17.

A.Z.:

[346] Dr. Ateyah is charged with one count of sexual assault involving A.Z.

[347] A.Z. attended Dr. Ateyah’s office as a walk-in patient because she believed she had strep throat. A.Z. has a familial history of breast cancer. She has had two surgeries on her breasts. Her breast health is closely followed at the high-risk breast screening program at Sunnybrook Hospital in Toronto. She testified that if she had a concern about her breasts, she would call Sunnybrook.

[348] A.Z. has very little recollection of what was discussed or explained to her on her visit to Dr. Ateyah on September 8, 2016. She testified that Dr. Ateyah ended up performing a breast exam on her. This has always struck her as odd. As soon as she left the appointment she thought, “I went in for antibiotics and I came out having had a breast exam.”

[349] A.Z. is adamant that she did not have a second appointment with Dr. Ateyah.

[350] The medical notes regarding the first appointment, September 8, 2016, indicate that A.Z. came into the office as a walk-in patient complaining of a sore throat. The notes indicate that she also complained of chest pain. According to the notes, Dr. Ateyah suggested she return to the doctor in seven days. A.Z. testified that she does not remember what led up to Dr. Ateyah doing a breast exam. She believes he got her medical history from a form she filled out when she arrived at the office. If he had suggested a breast exam she would have agreed because she was so used to having them.

[351] The next medical note is from exactly seven days later. The notes reflect A.Z. coming to see Dr. Ateyah because she had found a lump in her breast. The entry in her chart given at reception indicates she was there because she “wanted to speak to the doctor.” The notes state that she had a family history of breast cancer and had two surgeries. Dr. Ateyah testified that although he does not remember this encounter, his notes would accurately reflect that in those circumstances he would have performed a regular breast exam.

[352] A.Z. contacted the police after she was sent an article about Dr. Ateyah’s arrest by a friend in October 2020. After learning of his criminal charges and that many women had come forward, A.Z. visited the website of the CPSO and learned that Dr. Ateyah was required to have a chaperone with him for certain procedures. She believed she saw an allegation that related to inappropriate touching in the pelvic area.

[353] The Defence position is that even if A.Z. went to see Dr. Ateyah as a follow up to her earlier appointment, during this appointment she consented to a breast exam. The breast exam was conducted properly on A.Z.’s evidence.

[354] I accept A.Z.’s evidence that if she had an issue with her breast she would have gone to see her doctor at Sunnybrook and not gone to a walk-in clinic. It makes no sense that she would go to see Dr. Ateyah for an issue with her breast when she was part of the Sunnybrook program.

[355] I have also found that Dr. Ateyah would manufacture situations that allowed him to examine female patients’ breasts and vaginas. Dr. Ateyah probably brought up the topic of her breast health somehow and with her history offered to do a breast exam even though A.Z. was not there reporting a lump. However, A.Z. has no recollection of how it came to be that Dr. Ateyah did a breast exam. This is understandable given the passage of time.

[356] I cannot find beyond a reasonable doubt that there was not a discussion leading up to a legitimate reason for Dr. Ateyah to conduct a breast exam. The breast exam was done properly. Therefore, I find Dr. Ateyah not guilty of sexually assaulting A.Z. – count 15.

A.R.:

[357] Dr. Ateyah is charged with one count of sexual assault and one count of sexual interference in relation to A.R.

[358] A.R. testified that she went to an appointment with Dr. Ateyah on July 26, 2016 because she was having very bad menstrual cramps and was considering taking the birth control pill. Her mother had ovarian cysts in the past. This was discussed with Dr. Ateyah.

[359] A.R. testified that Dr. Ateyah asked her to pull down her pants. She did so but left her underwear on. Dr. Ateyah then moved he underwear to the side and put a finger or fingers inside her vagina without a glove on. While he was doing this, he was pressing down on her abdomen with his other hand. A.R. testified that she had no idea what he was doing or why he was doing it. There was no chaperone in the room and she was not given a gown or other draping. A.R. testified that after the exam, Dr. Ateyah did not wash his hands which stood out to her as unusual and gross.

[360] A.R. does not recall him also doing a breast exam.

[361] Dr. Ateyah’s notes of the appointment prior to the July 26, 2016 indicate that with a chaperone in the room, Dr. Ateyah conducted a breast exam and an abdominal exam. He did not perform any internal exam.

[362] Dr. Wintemute testified that the objective of the bi-manual exam is to trap the uterus between both hands to notice the anatomy, to see if the cervix is tender, the uterus is enlarged and check the mobility of the uterus. A doctor does not actually notice the ovaries in a bi-manual exam.

[363] The Defence raises a number of concerns with respect to A.R.’s evidence. There are inconsistencies between the evidence of A.R. and T.R. about how and when they learned of the charges against Dr. Ateyah; what discussions they had about their experiences before Dr. Ateyah was charged; and the timing of those discussions. The Defence also submits that A.R.’s evidence is inconsistent with her police statement on the fundamental point of whether or not Dr. Ateyah washed his hands after the ungloved examination.

[364] The Defence also submits that A.R. and T.R.’s evidence is tainted by collusion.

[365] I found A.R. to be a credible witness. The inconsistencies on the timing of her discussions with her mother about their experiences with Dr. Ateyah are understandable given the passage of time. I did not find that any confusion about the timing of these discussions detracted from A.R.’s credibility. The two of them are mother and daughter and have many conversations about many different things. Their shared experience with Dr. Ateyah is but one of them.

[366] A.R. explained why she told the police that she was not sure if Dr. Ateyah washed his hands after the internal exam or not. She testified that she was embarrassed. When she saw Dr. Ateyah she had just finished her period and did not expect him to examine her in that way. She said she hadn’t showered and felt embarrassed to tell the police why it stuck out to her as gross that he didn’t wash his hands. I accept her explanation for this. This is an incredibly personal topic of discussion.

[367] I am not concerned about possible collusion and tainting between A.R. and T.R. They described encounters with Dr. Ateyah that are completely different. T.R.’s complaint is that Dr. Ateyah performed an internal exam in the absence of a chaperone while she was on her stomach. T.R. testified that Dr. Ateyah was wearing gloves. Although they have discussed their allegations, their allegations are very different from each other.

[368] I accept the evidence of A.R. as truthful. I am satisfied beyond a reasonable doubt that Dr. Ateyah performed an internal examination for no legitimate medical reason without A.R.’s consent and without wearing gloves.

[369] The Defence concedes that the other four cases of vaginal exams where gloves would be expected to be worn but were not (K.S.; L.H.; M.R.; and C.W.) are distinctively similar so as to constitute admissible similar fact evidence in support of a conviction of sexual assault on A.R. Were I left in a doubt about the guilt of Dr. Ateyah after a consideration of the evidence of A.R. only, the admission of the similar fact evidence would satisfy me of his guilt beyond a reasonable doubt on this count.

[370] I find Dr. Ateyah guilty of sexual assault and sexual interference in relation to A.R. - counts 12 and 13.

T.R.:

[371] Dr. Ateyah is charged with one count of sexual assault on T.R.

[372] T.R. attended for an appointment on the same day as her daughter. T.R. was there for a physical with no specific health concerns.

[373] After Dr. Ateyah completed T.R.’s pap test and internal exam, the chaperone left. Dr. Ateyah asked her to not get dressed because he wanted to check just one more thing. He told her to roll over onto her stomach. He said he wanted to check “bleeding on her cervix.” After she rolled over on her stomach he asked her to raise her hips into the air so that he could examine her. T.R. testified that he was feeling inside her vagina with one hand. He was not touching her with his other hand.

[374] Dr. Wintemute testified that a bi-manual exam is done with a patient lying on her back. She could not think of a reason why a patient would need to lie on her stomach during this procedure.

[375] Dr. Ateyah testified that having reviewed his notes he recalls T.R. coming in for her pap test and health assessment. His notes indicate that a chaperone was present for this exam. Dr. Ateyah testified that a pap test and bi-manual exam would have been done. Dr. Ateyah denied ever performing an internal examination with T.R. lying face down with her hips raised.

[376] The Defence raises the same concerns about inconsistencies, tainting and collusion with respect to T.R. as they do with A.R. I have already addressed these issues in my reasons related to A.R.’s complaint.

[377] I accept the evidence of T.R. She liked Dr. Ateyah and saw him on many occasions. Like the others, until she heard about the charges related to other women, it did not occur to her to come forward.

[378] The Defence concedes that the other 3 cases of vaginal exams where the patient was on her stomach or side (C.G. J.H.(2); and S.T.) are distinctively similar so as to constitute admissible similar fact evidence in support of a conviction of sexual assault on T.R. Were I left in a doubt about the guilt of Dr. Ateyah after a consideration of the evidence of T.R. only, the admission of the similar fact evidence would satisfy me of his guilt beyond a reasonable doubt on this count.

[379] I find Dr. Ateyah guilty of sexually assaulting T.R. - count 6.

C.W.

[380] Dr. Ateyah is charged with one count of sexual assault in relation to C.W.

[381] C.W. presented with back pain she thought may be related to her kidneys. When she met with Dr. Ateyah he asked her if it hurt when she peed. She told him it did not. He asked if she had any discharge or if it hurt when she had sex. She told him no. She did tell Dr. Ateyah that she had some itchiness in the area of her vagina. He asked about her menstrual cycles. She told him she was going through menopause.

[382] Dr. Ateyah tested her urine sample and advised C.W. that it was normal. He then told her that there was something he needed to check and that he thought it could be really serious. He said, “it’s gone from down there up to your kidney area. I need you to lie on the bed.” C.W. testified that she did not know what he meant. He told her to undo her pants. She did so.

[383] C.W. testified that Dr. Ateyah took his hand and put it under her pants on top of her underwear and pressed his whole hand against her vagina and labia and held it there over her underwear. She had no idea what he was doing. He was not wearing gloves. There was no chaperone present, and she was not given any type of draping.

[384] He was pressing again on her labia but not inserting his finger into her vagina. When he pulled his hand out, C.W. testified that she stood up very quickly.

[385] After she stood up, C.W. testified that she and one hand on her pants ready to pull them up when Dr. Ateyah told her he needed to do one more thing. Dr. Ateyah came behind her and pulled he pants down. His hand went down between her legs on top of her underwear. He was pressing his body against hers and rocking her back and forth with his body.

[386] C.W. testified that while he was doing this, she told him that the pain was in her back and shoved her elbow back to show him. When she did this, he moved back. He then poked her in the back. She told him it hurt. Dr. Ateyah gave her a requisition for an internal ultrasound and advised her to follow up with him. C.W. testified that there was no abdominal exam done.

[387] Dr. Wintemute testified that the situation as described by C.W., where her only pain was in her back, it did not hurt to urinate or have sex and the urine test done in the office was normal, there would be no medical reason for a doctor to press on a patient’s vagina or labia.

[388] Where a patient presents with back pain, such as in the case of C.W., Dr. Wintemute testified that there would be no reason to do a range of motion test with the patient’s pants pulled down with the doctor pressing up against her while pressing on her vagina. Testing a patient’s range of motion would involve asking the patient to bend to each side, not forward and backward. The degree to which the patient could bend from side to side should be noted in the medical record if this type of testing was done.

[389] Dr. Ateyah denied these allegations. He testified that he performed a routine abdominal exam. His notes indicate that there was tenderness in the area of her pubic bone on either side of her groin.

[390] Dr. Ateyah testified that he did a range of motion exam in the standing position to assess her flexion and extension. He did not touch her body when he did this examination. He asked her to bend forward and back, again without touching her body.

[391] The Defence submits that C.W. is not a credible witness. C.W. provided a statement to and testified before the CPSO regarding her allegations of Dr. Ateyah. She later provided a statement to the police. In preparation for trial, C.W. met with the Crown, Officer in Charge and VWAP to review her statement. C.W. advised the Crown that in her CPSO testimony she said she did not know if Dr. Ateyah was touching her when he was standing behind her. She told the Crown that he was definitely touching her at this point and she believed he had an erection. This was new disclosure. She told the Crown that she had never wanted to admit it before.

[392] At some point later, C.W. called VWAP to “correct” this statement. She testified that she had been having nightmares and got mixed up. She didn’t really know why she told the Crown he had an erection.

[393] There is another inconsistency in her evidence. At trial, C.W. testified that after the standing exam was done, Dr. Ateyah lifted her shirt and poked her in the back. In her interview with the police she told them, “I said the pain was in my back, the first thing he should have done is touch my back. He never did.”

[394] The Defence submits that C.W. was an unreasonable witness who made no reasonable concessions. The Defence submits that C.W. is a dangerous witness who was upset with the outcome of the CPSO proceeding and has an axe to grind with Dr. Ateyah.

[395] I agree that there are significant problems with C.W.’s credibility particularly since she was willing to embellish her story before coming to court. Were it not for the similar fact evidence, I would have a reasonable doubt on her evidence alone.

[396] C.W. describes an event that is so similar to some of the other complainant’s experiences that it must be true. There is no possibility of tainting of her evidence because in her initial complaint to the CPSO, none of the other complainants’ allegations were known.

[397] Dr. Ateyah manipulated women into agreeing to intimate examinations where there was no legitimate medical reason for doing so. One of the common threads throughout the testimony of the complainants is the pattern of behaviour where a patient presents for a reason unrelated to their gynecological health and Dr. Ateyah asks them to undo their pants and puts his hand over or under their underwear (or both) and presses on their vagina. J.H.(1), K.S., L.H., M.R., and E.B. all describe this happening to them.

[398] I appreciate C.W. makes other allegations with respect to her range of motion exam which differ from the first part of her allegations and are different from the other complainants’ experiences. However, C.W. presented with back pain. It would be appropriate for Dr. Ateyah to do a range of motion test. Once again during this test C.W. says he placed his hand on her vagina and pressed, just as he had done to her earlier and just as he had done to the others.

[399] I am satisfied beyond a reasonable doubt that Dr. Ateyah sexually assaulted C.W. I find Dr. Ateyah guilty of sexually assaulting C.W. – count 5.

S.T.

[400] Dr. Ateyah is charged with one count of sexual assault on S.T.

[401] On March 14, 2018 S.T. attended for a physical and pap test. After her pap test the chaperone and Dr. Ateyah left the room. The chaperone that was present earlier was a nurse named “Bozena”. Bozena was particularly diligent about making sure no intimate exams were done or even exams where the patient had to remove any clothing without a chaperone.

[402] S.T. was still lying on the table when the chaperone and Dr. Ateyah left. S.T. testified that the door opened again and Dr. Ateyah returned. He told her to stay as she was as he wanted to check one more thing. He left again. When he returned, he was alone. S.T. testified that he told her to lie on her side, bring her knees up and rest her leg on the wall. She was facing away from him. S.T. testified that he put his finger or fingers in her vagina and grunted. When he removed his fingers, he told her she could get dressed and leave.

[403] S.T. testified that she immediately wondered what had happened. She thought it was bizarre. It is her evidence that the “grunt” made by Dr. Ateyah convinced her that this was a sexual assault and not a normal medically necessary procedure. When she eventually spoke to the police she did not mention the “grunt” because the officers interviewing her were male. She was embarrassed.

[404] Prior to this appointment, S.T. had seen the sign in Dr. Ateyah’s office requiring him to have a chaperone. She had taken a picture of the sign and shown it to her husband. At some point prior to Dr. Ateyah’s arrest she went onto the CPSO website and learned that two people were making allegations against him.

[405] S.T. was in her dentist’s office when she saw a news report about Dr. Ateyah’s arrest. She learned he had been arrested for sexually assaulting two women. When she came home from her dentist appointment, she disclosed what had happened to her to her husband and friend. She then searched the internet for information.

[406] S.T. provided a statement to the police. After this time, she continued to look for information about Dr. Ateyah. She learned there were 23 people who had come forward. In her on-line research, she testified that she wanted to understand what happens to a person who is charged and more about the court process.

[407] S.T. brought a civil action against Dr. Ateyah. She is suing him for $5 million.

[408] As stated, Dr. Wintemute testified that a bi-manual exam is done with a patient lying on her back. She could not think of a reason why a patient would need to lie on her side during this procedure.

[409] Dr. Ateyah testified that this latter portion of the medical examination did not take place. At this time, he was required by the CPSO to have a practice monitor with him during examinations in light of the investigation into the allegations of C.W.

[410] The Defence submits that S.T. is not a credible witness. She testified that at the time it happened she knew it was a sexual assault. She continued to see Dr. Ateyah. When she gave her statement to the police she did not tell them about the “grunt” even though this was the part of the experience that made her decide this was a sexual assault.

[411] S.T. testified that she did not tell the officers about the grunt because they were male. She said leaving it out was not a conscious decision. The grunt is something that still haunts her in her dreams and in her daily life. It has forever changed her.

[412] The Defence submits that the nurse Bozena was a particularly vigilant nurse who would never have left Dr. Ateyah alone with S.T.. Therefore, this incident could not have occurred.

[413] The Defence submits that S.T. continued to see Dr. Ateyah after this event and after the signs were up. It is their position that this defies logic and common sense. The Defence submits that S.T.’s evidence is tainted by visiting the CPSO website and learning that there had been complaints about him being inappropriate. Finally, the Defence submits that S.T. is financially motivated given that she has brought a lawsuit against Dr. Ateyah.

[414] I found S.T. to be a very credible witness who was telling the truth about what happened to her. She was frank about her lawsuit and testified that her claim was about stopping Dr. Ateyah. She testified that she was angered that the CPSO process was going on and Dr. Ateyah was still able to sexually assault her and other women. She is looking for a way to change the process.

[415] S.T.’s reasons for staying with Dr. Ateyah made sense. She had a longstanding relationship with him and she liked him. She testified that she was looking for another doctor throughout the time she continued to see him after what she described as a sexual assault.

[416] I accept S.T.’s reasons for not telling the police about the grunt. I did not find S.T. to be embellishing her evidence but found her testimony to be frank, honest and unfiltered. She described learning from the CPSO that Dr. Ateyah had been accused of being inappropriate with a patient. To her, “inappropriate” did not equate with being a sexual assault. I also accept her explanation for not disclosing this to anyone until he was charged. The fact of late disclosure I have already discussed with respect to other complainants. In the case of S.T. it also does not detract from her credibility.

[417] I accept the evidence of S.T. as truthful. I am satisfied beyond a reasonable doubt that Dr. Ateyah performed an internal examination for no legitimate medical reason on her.

[418] The Defence concedes that the 3 cases of vaginal exams where the patient was on her stomach or side (C.G., J.H.(2); and T. R.) are distinctively similar so as to constitute admissible similar fact evidence in support of a conviction of sexual assault on S.T. Were I left in a doubt about the guilt of Dr. Ateyah after a consideration of the evidence of S.T. only, the admission of the similar fact evidence satisfies me of his guilt beyond a reasonable doubt on this count.

[419] I find Dr. Ateyah guilty of sexually assaulting S.T. - count 3.

S.F.

[420] Dr. Ateyah is charged with six counts of sexual assault in relation to S.F.

[421] S.F. testified on this proceeding about a number of instances where Dr. Ateyah performed inappropriate or unnecessary intimate examinations of her breasts and genitals over the many years that he was her family doctor. The Crown has invited me to dismiss the charges against Dr. Ateyah that relate to S.F. as her evidence was riddled with inconsistencies and her memory was proven to be unreliable. I agree with the Crown that S.F. had significant problems with her memory making her evidence unreliable. Where the charges rely on her credibility and reliability, I agree with the Crown that they ought to be dismissed.

[422] After a complete hysterectomy, Dr. Ateyah conducted three pap tests on S.F.. Pap tests are screening tests for cervical cancer. At the time of these exams, S.F. no longer had a cervix. Dr. Ateyah testified that in certain circumstances pap tests are continued after a complete hysterectomy where there is a history of cervical cancer to detect pre-cancerous cells.

[423] S.F. did not have a history of cervical cancer. She had a complete hysterectomy due to another condition called adenomyosis. Dr. Wintemute was unaware of adenomyosis being associated with cervical cancer or pre-cancerous cells. Dr. Ateyah testified that this condition could be associated with pre-cancerous cells. In addition, prior to her hysterectomy, S.F. had an irregular result from a pap test.

[424] A determination of proof beyond a reasonable doubt on the counts involving unnecessary pap tests does not rely on S.F.’s credibility or reliability. It involves a consideration of whether the evidence establishes beyond a reasonable doubt that the tests were not medically necessary. Although I have found that Dr. Ateyah did gynecological exams that were not necessary to allow him access to patients’ vaginas, I am not satisfied on the evidence before me that the pap tests done on S.F. did not have a valid medical purpose. Dr. Wintemute’s evidence was that she was unaware of adenomyosis being associated with cancer. This leaves open the possibility that it may be. Therefore, I will accede to the Crown’s request and acquit Dr. Ateyah on counts 22 – 27.

Conclusion:

[425] For the reasons given, I find Dr. Wameed Ateyah guilty of 16 counts of sexual assault and 1 count of sexual interference (counts 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20). I find Dr. Ateyah not guilty of count 15. The Crown has invited a dismissal on counts 22-27, therefore I find Dr. Ateyah not guilty on counts 22-27.

Justice J. Cameron Released: September 22, 2023

NEWMARKET COURT FILE NO.: CR-20-9942-00 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING Crown – and – WAMEED ATEYAH Applicant/Defendant REASONS FOR DECISION Justice J. Cameron Released: September 22, 2023