WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.—(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application.— In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
R. v. Clarence Clottey
Table of Contents
Brown, J.: 1
1.0 INTRODUCTION.. 1
2.0: ISSUES BEFORE THE COURT. 3
3.0 EVIDENCE AT TRIAL.. 4
EVIDENCE OF FACT WITNESSES. 5
Physical Examinations. 6
Chaperone/Third Party. 6
Events Leading Up to Physical 6
Start of Examination. 7
Breast Examination. 8
Vaginal Examination. 10
Conclusion of Examination. 12
Length of Examination. 12
Reporting and Termination of Relationship. 13
Background with Dr. Clottey. 13
Physical Examinations. 14
Start of Examination. 14
Breast Examination. 14
Abdominal Examination. 16
Vaginal Examination. 16
Follow-Up Examination and Pap Test 17
Reporting and Termination of Relationship. 18
Initial Meeting. 20
Physical Examination. 21
Chaperone/Third Party. 21
Initial Discussion. 21
Start of Examination. 22
Breast Examination. 22
Abdominal Exam.. 24
Vaginal & Pelvic Examination. 24
Events After Physical Examination. 28
Medical History. 29
Initial Meeting. 30
Physical Examination. 31
Chaperone / Third Party. 31
Vaginal & Pelvic Exam.. 32
Breast Examination. 32
Abdominal Exam.. 34
End of Examination. 34
Reporting. 34
Initial Meeting. 36
Physical Examination. 36
Chaperone/Third Party. 36
Breast Examination. 37
Vaginal Examination. 38
End of Examination. 39
Subsequent Appointments. 39
Reporting and Follow-Up. 40
Initial Meeting. 42
Subsequent Appointment 42
Physical Examination. 43
Breast Examination. 43
Other Examinations. 44
Vaginal Examination. 45
Rectal Examination & Hemorrhoids. 46
End of Examination. 47
Reporting and Follow-Up. 47
Dr. Clottey’s Training and Background. 48
Dr. Clottey’s Clinical Practice. 50
Aspects of Dr. Clottey’s Routine Physical Examination. 52
Dr. Clottey’s Method and Routine for Breast Examinations. 53
Dr. Clottey’s Method and Routine for Pelvic Examinations. 55
Sequence of Criminal Charges. 58
Dr. Kimberly Wintemute. 59
Background and Qualifications. 59
Opinion. 60
Role of Best Practices and Standards. 61
Breast Examination. 61
Gynecological Examination. 62
Dr. Allan Covens. 64
Background and Qualifications. 64
Opinion. 65
Breast Examination. 66
Gynecological Examination. 66
Chaperone. 69
Dr. Howard Rudner. 69
Background and Qualifications. 70
Opinion. 71
Basis for Opinion. 71
Breast Examination. 73
Gynecological Examination. 74
4.0 LAW & ANALYSIS. 76
5.0 THE LAW... 79
Requirements For A Finding Of Sexual Assault 79
Impact of Medical Context 79
Legitimate Medical Purpose. 79
Whether Examinations Were Sexual in Nature. 80
Consent 81
Honest Belief in Consent 82
Dr. Clottey’s Charting and Evidence of Usual or Routine Practice. 83
6.0 ANALYSIS OF EVIDENCE.. 84
RS. 84
Initial Discussion and Timing. 86
Breast Examination. 87
Gynecological Examination. 88
Conclusion of Examination. 91
IF. 93
Breast Examination. 94
June 16, 2015 Pap Test 96
Gynecological Examinations. 100
Complaint to Police. 103
Meet and Greet 114
Chaperone. 115
Physical Examination. 115
Breast Examination. 116
Disclosure and Reporting. 118
DM... 120
Breast Examination. 121
Gynecological Examination. 124
Subsequent Appointments and Physical Examination. 127
TV.. 128
Timing of Physical Examinations. 128
Breast Examination. 129
Vaginal Examination. 131
Rectal Examination. 133
Complaint to Police. 135
Conclusion on Credibility and Reliability of the Fact Witnesses. 136
Similar Fact/Discreditable Conduct Application. 136
Admissibility of Similar Fact Evidence Legal Principles. 136
Analysis of Similar Fact Evidence. 137
Assessing Probative Value. 137
Strength of the Evidence and Collusion. 137
Issue In Question. 138
Required Degree of Similarity. 138
Connecting Factors. 140
Assessing Prejudicial Effect 140
Uses of Similar Fact Evidence. 141
To Support the Evidence of the Victim – Actus reus or Non-Consent 141
Motive. 143
To Rebut the Defence of Innocent Association. 143
Doctor/Patient Cases. 144
Crown’s Suggested Application to this Case. 144
The Double Inferences Sought to be Drawn. 144
Strength of Evidence. 144
Collusion. 144
Issue In Question. 145
Purpose for Which Similar Fact Evidence is Admissible. 145
Connecting Factors. 145
Extent to Which the Other Acts are Similar in Detail to the Charged Conduct: 146
The Number of Occurrences of Similar Acts: 146
Circumstances Surrounding or Relating to the Similar Acts: 146
Any Distinctive Features Unifying the Incidents. 146
Intervening Events. 147
Any Other Factor that Rebuts or Supports the Underlying Unity of the Similar Acts. 147
Similarities and Dissimilarities. 147
Assessing Prejudice. 147
Moral Prejudice. 147
Reasoning Prejudice. 147
Weighing Probative Value vs. Prejudicial Effect 148
ADMISSIBILITY: ASSESSING PROBATIVE VALUE.. 150
Evidence of Inadvertent Collusion: Media Reporting. 151
Objective Improbability of Coincidence. 154
The Allegations are Not Sufficiently Similar. 155
Whether the Breast Exam Caused Pain: 156
Clitoral Contact 157
Reporting and “Opportunism”: 157
Other Handy Factors. 157
Breast Examinations. 158
RS’s Allegations. 159
IF’s Allegations. 160
GO’s Allegations. 161
KR’s Allegations. 162
DM’s Allegations. 163
Findings Regarding Breast Examinations. 164
Gynecological Examinations. 167
Allegations of Clitoral Contact 167
Allegations Regarding Forceful Bimanual Examinations. 169
Finding Regarding Gynecological Examinations. 169
Myths and Stereotypes – Victim Behaviour. 170
7.0 CONCLUSION.. 173
CITATION: R. v. Clottey, 2018 ONCJ 536
COURT FILE No.: Halton 581/17
DATE: 2018·08·07
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
CLARENCE CLOTTEY
Before Justice Stephen D. Brown
Heard on November 20, 21, 22, 23, 24, 29, December 7, 11, 12, 13, 14, 18, 29, 2017 January 8, 9, February 8, 23, 26, 2018
Brief Oral Reasons for Judgment given on July 12, 2018
Written Reasons released on August 7, 2018
Monica Mackenzie ..................................................................................................... for the Crown
Jenny P. Stevenson and Jordan V. Katz ........................................ for the accused Clarence Clottey
Brown, J.:
1.0 INTRODUCTION
[1] This is a case about a family physician that performed physical examinations on six of his patients who subsequently complained about the nature of examinations resulting in six charges of sexual assault being laid against him.
[2] Depending on my findings, his career may be in jeopardy. If he is found guilty of any or all of the counts, the College of Physicians and Surgeons of Ontario (“CPSO” or the “College”) will likely continue with their disciplinary hearing against him, likely resulting in him losing his license to practice medicine.
[3] If he is found not guilty, the CPSO may still very well continue with a disciplinary hearing against him, possibly resulting in the same outcome.
[4] If he is found not guilty of the charges, his patients may question my judgment and
may think that I have applied an improper analysis to their evidence. Each of the complainants truly feel that they were violated by the accused and that he subjected them to improper and humiliating sexual assaults under the guise of “necessary medical procedures” and, in so doing, seriously breached the trust that they had in him to provide proper, necessary, and appropriate physical examinations of them in accordance with the consent to such examinations that they provided.
[5] The translated version of the original Hippocratic Oath can be found on the McMaster University website and is set out as follows:
I swear by Apollo Physician and Asclepius and Hygieia and Panaceia and all the gods and goddesses, making them my witnesses, that I will fulfill according to my ability and judgment this oath and this covenant:
To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art—if they desire to learn it—without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken an oath according to the medical law, but no one else.
I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.
I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.
I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.
Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves.
What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.
If I fulfill this oath and do not violate it, may it be granted to me to enjoy life and art, being honored with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot.[^1]
[6] Modern re-written versions of this original Greek oath are usually taken by every medical school graduate and incorporate the principles of respect of the very great trust that is reposed in them by their patients.
[7] This respect is particularly important in this case.
[8] I must base my judgment not on an ancient oath or a more modern version of it that I would assume Dr. Clottey has taken, but on a fair, unbiased analysis of the evidence presented before me at this trial, weighing it all carefully, and being bound by the principles that are applicable in every criminal trial that I will subsequently outline in my analysis.
[9] I am also aware that the repercussions of what my decision may or may not be are not to influence me when applying the correct law and doing a complete analysis of all the evidence that I have heard in this trial.
[10] I am also aware that this judgment would not need to be written if a chaperone or a staff member was present when the examinations were carried out. Although I understand why in some cases a third party is not present during sensitive examinations, that it would be an increased cost to the physician and that it is not mandatory to have a third party in the room at the time of the examination, the grief, upset and trauma that has been visited upon Dr. Clottey and all of his patients would most likely have been avoided by taking this step.
[11] It is but a small insurance to pay for the protection and well-being of all.
2.0: ISSUES BEFORE THE COURT
[12] Credibility and reliability of each witness is an important issue in this case. In this case, the defendant has testified and called evidence. I am mindful of the dictates of the Supreme Court of Canada in R. v. W.(D.).[^2]
[13] Similar Act evidence as between the six counts must be first assessed to see if it is admissible and, secondly, assigned a weight that is to be used in my analysis of the evidence called at this trial.
[14] Finally, I must assess the expert evidence that was called before me and choose how to apply that to the evidence that has been presented.
[15] Three eminently qualified expert witnesses were called, one by the Crown and two by the defence.
[16] I received written submissions at the conclusion of the trial which were supplemented by oral submissions on the last day. The submissions made by both counsel were excellent and assisted me greatly in arriving at my decision.
[17] They were cogent, comprehensive and fairly put their respective positions forward in a clear and concise manner. I have borrowed and will borrow heavily from both counsel’s submissions and have at times reproduced their submissions and summary of the witnesses’ evidence because of their thoroughness and accuracy.
[18] The written and oral submissions were a continuing example of the professionalism and skill of Crown and Defence counsel that were displayed throughout the course of this trial.
[19] The Crown has elected to proceed by indictment on all counts and the defence elected trial before me.
3.0 EVIDENCE AT TRIAL
A. OVERVIEW[^3]
[20] Dr. Clottey is a 57-year old family doctor who undertook his initial medical training in Ghana between 1982 and 1986, followed by three years of practice in a Catholic Mission Hospital in Ghana. He eventually commenced training for, and then a career in, public health. He received his Masters of Public Health from Harvard University in 1991. After working in the public health field in both the United States and Canada, he commenced and completed a residency in public health and preventive medicine from the University of Toronto, which included two years of a family practice residency, allowing him to be qualified as a family practitioner in Ontario.
[21] He began working at Bristol Family Physicians in around 2011, which was one of a number of clinics owned by Jody Mangiardi. He has worked at this location since 2011 as part of a family health team, along with other physicians, nurses and other health professionals.
[22] Dr. Clottey became the family physician of all six complainants between mid-2012 and 2015. In the case of all six complainants, as was his customary practice, Dr. Clottey initially met each of them for a “meet and greet” and then arranged to perform a complete physical examination because they were new patients in his practice. This comprehensive assessment would generally include a detailed interview about current and past health, medications, family history, a complete head-to-toe physical exam, including a breast and vaginal exam, and laboratory and other tests as indicated.
[23] Three of the six complainants (GO, KR, and TV) stopped seeing Dr. Clottey following their first comprehensive physical examination which followed the initial encounter. The other three complainants (DM, RS and IF) continued to see Dr. Clottey for a more extended period of time following that first physical exam, which was anywhere from 6 months (in the case of DM) to 4.5 years (in the case of IF).
[24] Five of the complainants complained about the manner in which Dr. Clottey performed the breast exams, stating that he either pulled, pinched, yanked, tugged, or twisted their nipples, in some cases causing pain or discomfort and in other cases causing no pain but causing the complainants to question what had happened.
[25] Four of the complainants complained about the manner in which Dr. Clottey conducted the vaginal examinations, alleging that the examination was uncomfortable, overly aggressive and, in some instances, painful, with three of the four alleging that their clitorises were touched in a manner that made them uncomfortable or upset. Two of those four testified that the clitoral touching or pressure was constant, sustained and ongoing throughout the exam. One complainant (TV) alleged that Dr. Clottey’s thumb rested on her clitoris when he was performing a rectal examination.
[26] The first complainant to contact the police was RS. She spoke to the College of Physicians and Surgeons of Ontario three days after having a complete physical examination with Dr. Clottey at Bristol Family Physicians on June 27, 2016. A few weeks later, she was interviewed by Detective Wendy Clayton of Halton Police Services.
[27] Dr. Clottey was arrested and charged with sexual assault in August, 2016 with respect to the allegations of RS and KR. In November, he was charged with sexual assault respecting the allegations of GO. At that point, there were press releases which led to further charges on three subsequent occasions, regarding TV, IF and then DM. The last three complainants contacted the police after learning of the sexual assault charges in the media.
[28] Dr. Clottey learned after he was criminally charged that the College had been contacted years prior by GO and a therapist of KR regarding those complainants’ concerns. The College did not take any action at those times that led to Dr. Clottey being notified of the concerns. It was only after the first criminal charge was laid that Dr. Clottey became aware that concerns had been expressed to the College in 2013 by GO and in 2014 by KR’s therapist.
EVIDENCE OF FACT WITNESSES
3.1 Evidence of RS
[29] RS is 50 years old. She was born in Brazil and came to Canada in 2009. She testified that English was not her first language, although she did her best to testify without an interpreter. She worked at the Canadian Mental Health Association until recently, though was not working at the time of her testimony.
History With Physicians
[30] RS testified that she was Dr. Clottey’s patient for 2 or 3 years, until June 2016. She became Dr. Clottey’s patient through a referral from friends. She was initially referred to a female doctor but found it difficult to make an appointment because of that doctor’s schedule. Additionally, Dr. Clottey’s office was near her work.
[31] In addition to two female family doctors that she had in Canada before Dr. Clottey, RS said that she had various physicians in Brazil – both general practitioners and specialists. She explained that she would make direct bookings with gynecologists, without a referral, and her experience was that she would have full annual physicals with gynecologists in Brazil, which included breast and gynecological exams. She said her gynecologists had been both male and female. Her pattern of having annual physicals continued when she came to Canada, but she relied on her doctors to remind her when they were required.
Physical Examinations
[32] RS testified that she had multiple physical exams with Dr. Clottey She testified that she had at least 1 or 2 of these exams before the one on June 27, 2016 that she had concerns and complained to the police about. He had previously performed a full physical exam on February 28, 2015, which included a Pap test and which RS said did not upset her.
Chaperone/Third Party
[33] RS said that Dr. Clottey never had a nurse in the room when conducting physicals on her, and that this was different than the gynecologists she saw in Brazil through private insurance, where male gynecologists would have a nurse in the room, without the patient asking, as part of the “package.” In Canada, she only had female doctors before Dr. Clottey, and they did not use chaperones.
Events Leading Up to Physical
[34] RS initially testified that her June 27, 2016 physical exam occurred when she returned to Dr. Clottey’s office 2 to 3 weeks after an appointment where she was having symptoms like fatigue and dry skin which she thought arose from an imbalance in her thyroid hormones. Her evidence was that she wanted Dr. Clottey to adjust her medication levels. She recalled that Dr. Clottey indicated that she should have a physical examination, but that she questioned why a physical was needed just to renew her thyroid medication.
[35] In cross-examination, RS acknowledged that she had a number of conditions in 2016 that she was seeing Dr. Clottey for and which he recorded - hypothyroidism, for which she took Synthroid; a history of benign breast nodules, for which Dr. Clottey ordered mammograms; and other issues. She initially denied having any concerns at the time of her appointment, but later acknowledged that at the time of her June 2016 physical she had missed some periods, although she was not concerned about this; and that she had some conversations with Dr. Clottey about menopause, although again, she was not concerned. She also acknowledged she had complained to another physician on May 30, 2016 of fatigue and bloating.
[36] She also agreed that she wanted Dr. Clottey to refer her to a gynecologist at this time because her friend was seeing one and she thought it would be good for her to see a specialist. She was taken to her chart, which showed an appointment with Dr. Clottey on June 20, 2016. The chart reflected all of her concerns.
[37] Though RS maintained that she thought Dr. Clottey should not have waited to make modifications to her thyroid medication until a physical was done, she acknowledged that at that time she was not sure when her prior physical was. She also admitted that she did not say that Dr. Clottey did not need to perform a physical at that time and she was not upset that he was going to do one. She further agreed with the suggestion that Dr. Clottey should get a full view of her health before referring her to a gynecologist.
[38] RS recalled Dr. Clottey suggesting to her that she could come in the following Monday morning and she was surprised because he generally did not work during that time. Her evidence was also that it was different to her that his office had called her the prior Friday to remind her about the appointment, as she had forgotten about some appointments in the past. She thought maybe these amounted to new routines at the clinic. Despite agreeing that she had not been upset at the time that he had suggested a physical, she agreed that by the time she spoke to the police, she thought it “made sense” in the “picture” in her mind of what happened that perhaps Dr. Clottey was trying to bring her in on a day that was isolated, at a time that he wanted, when nobody was there.
[39] When she arrived at the clinic on the Monday morning, Dr. Clottey was late and had forgotten about the appointment which was scheduled for 10:30 a.m. She said someone at the front desk appeared to contact him, told her that he was coming, and he showed up about 20 to 30 minutes later. She said she was not bothered about it as she could wait as long as needed for a busy doctor on a full day.
Start of Examination
[40] RS testified that when she started the appointment with Dr. Clottey, it was just the two of them and she remained in street clothes while they started to discuss her recent health history. She disagreed that Dr. Clottey only came in once she had been shown to the room by the nurse and changed into a gown; she thought she was still in her street clothes when Dr. Clottey came in. While she agreed that she did do this at some point, she said it was after she had initially chatted with Dr. Clottey and that he left the room to let her change.
[41] RS thought Dr. Clottey was friendly at the beginning of the appointment, and recalls discussing that she was exercising every day and that it improved her mood and overall health. She felt it was valuable that Dr. Clottey was explaining things very well and she felt clear and had high energy.
[42] RS agreed that she talked about all her health issues during this time. She thinks she may have mentioned some issues she had with her son and they discussed the tests he would be giving to her. It was suggested that they may have also discussed her upset about a friend she had helped come to Canada. She initially said this may have happened, but then said she did not remember it.
[43] She did agree that Dr. Clottey was asking her a lot of questions and it was a long initial conversation. She remembered Dr. Clottey said something like he had “plenty of time” for her that day, which she perceived as awkward. However, she also described this discussion in her evidence in-Chief as a good conversation about her health and that it was focused on the prevention of future problems.
[44] She remembers Dr. Clottey discussing the tests he would need to do, including blood tests and a colonoscopy, and that they were regular exams for a woman approaching 50. She remembers him asking about her sexual health. She could not recall if she brought up any concerns of her own, but acknowledged she may have had some questions about menopause.
[45] RS said that this discussion took a long time, but she was not sure how much. She thought it was almost too long for her. She then estimated it could have been 10 minutes, but she was not sure. When suggested that it could have been longer, she could not say one way or another, but she also testified at one point that the discussion took four or five times longer than it usually did, and that this was “not normal”, going as far as saying that it was wrong and abusive for him to have spent so much time with her. She was not sure if the discussion could have been as much as half of the overall visit that day.
[46] RS agreed that, as with the other physical exams he performed, Dr. Clottey then proceeded to examine her ears, nose and throat, took her blood pressure, and did a stethoscope examination of her chest before moving on to a breast exam.
Breast Examination
[47] RS testified about her complaint regarding the breast exam that Dr. Clottey did during the June 27, 2016 physical where she felt that Dr. Clottey had squeezed her nipples.
[48] She testified that the breast exam started by Dr. Clottey telling her he was about to do one, had her lie down on the exam table, opening part of her gown, and then examining the right breast by touching around with his flat fingers on the palmar side, in a circular motion, one at a time, which she described as the “usual” check doctors do to check for nodules. She thought this was similar to breast exams other doctors had done. She recalled Dr. Clottey standing next to the table on the right side when doing this exam.
[49] She described him then squeezing hard on her nipple, and proceeding to do the same process on her other breast, at which point both breasts were exposed, although she could not recall how the gown opened. She recalled Dr. Clottey saying, after he squeezed the second nipple, he said he was looking for discharge. She recalled him again going back to the first breast and squeezing the nipple again even harder than he had earlier.
[50] She said no doctor had ever done anything like his. She described it as an intense, painful squeeze that was not long, saying “oh my God, it’s too painful.” She thought Dr. Clottey used his thumb and first two fingers. She said that he did mention he was checking for discharge, which she perceived as him reacting to her pain, but also said that she never mentioned any complaint about discharge, did not express any pain to him, and did not say anything to Dr. Clottey when she felt what she described. She said she was trying to understand what happened.
[51] There was varied testimony about how and when she reported her concerns with the breast examination. Before any questioning on this from defence counsel, RS tried to explain why she complained first and only about the gynecological (internal) exam when she first raised her complaint with the College of Physicians and Surgeons and did not bring up the breast exam herself in that discussion. She did acknowledge that she did not complain about or raise the issue of the breast exam with the College investigator, in an interview that she agreed occurred only 3 days after the appointment, until the investigator brought it up with her.
[52] RS offered various explanations for this. She first said that the vaginal exam took all her attention because it worried her the most; that she did not bring up the breast exam because she was in shock; and that because she was in trauma, her memory only went to the worst part about her experience. She agreed she knew the College needed accurate information from her.
[53] In terms of the substance of her concern, RS was asked about her statement to the College that she “didn’t see anything different” at the moment about the breast examination and had described it as being done very carefully and that it was “not that intense.” She said this was “true, but not that accurate.”
[54] As part of these explanations, RS generally offered an explanation that she now understands how memory is affected by trauma and PTSD. She explained that she could not think clearly about all the events in the exam because of her shock and emotion, but that she has recalled other parts of the exam over time, her memory has come back and things have become clearer in her mind than they were at the time she spoke to the College only three days after the events complained of. She said that, looking back, she is not remembering things differently, only that they have become clearer, as her mind has started to settle down. She relied on a version of this explanation when confronted with different prior descriptions of other events as well.
[55] As a result, according to her, some parts of her testimony one-and-a-half years later were now more accurate than in her interview with the College three days after the events in question. She also testified, to buttress her view of this, by explaining that she understands things about memory from her training as a psychologist. She did not testify about this in detail in her examination in-Chief and was not re-examined on it. She was not qualified to give expert evidence in this area, wisely, by the Crown.
[56] It was suggested to her that by the time she spoke to the police, she had recalled the breast exam as being more painful and traumatic, and that the testimony had become dramatically different. RS again testified that the vaginal exam was her focus in her initial College interview and that things had become more clear to her over time. She was confronted with the fact that she initially described the sensation as “not that intense” because she trusted Dr. Clottey, and then testified in-Chief that it felt like he was “squeezing so hard, like a lemon.” She explained that she was just trying to make sense of what he was doing, like checking for discharge at the time of the exam, which he tried to explain – but that now “everything makes sense,” has become more clear, and it fits into the picture of what she thought Dr. Clottey was trying to do to her.
Vaginal Examination
[57] RS testified that Dr. Clottey proceeded to conduct a vaginal exam, at which point she covered up her breasts. She said he told her that he was going to start it before he did. He went to the end of the table to start the vaginal exam.
[58] Her evidence in-Chief was that Dr. Clottey first said he was going to use a gel and it might feel cold. She did not think he did a Pap test because she did not feel him use a speculum. In cross-examination, she agreed that Dr. Clottey said he was going to do a Pap; and agreed that if he did do a pap, he would have needed to use swabs; and that if he did this, it would have had to be before he did the internal exam. However, she again said she did not think he used a speculum and, based on her subsequent conversations with a gynecologist, did not think Dr. Clottey could have taken a good or proper swab without having used a speculum.
[59] RS’s evidence was that she was 100% sure Dr. Clottey did not use a speculum. She was then taken to her chart which showed a result from a Pap taken on June 27, 2016, and Dr. Clottey’s anticipated evidence that he did a Pap test with a speculum. RS responded that a Pap could have been taken, but not properly, without using a speculum. When it was suggested that the lab report showing “transformation zone” cells indicates that a proper sample was collected, with a speculum, she disputed it. She said she knew for sure Dr. Clottey did not do a proper collection because a year later a subsequent Pap showed she had some abnormal cells. She continued to attribute this to Dr. Clottey not using a speculum.
[60] RS also described Dr. Clottey putting gel on his fingers and showing it to her before he proceeded with an internal exam. She said she questioned why he was even using gel, as though there was something wrong or unusual with that practice.
[61] She went on to describe what she felt during the vaginal exam. She described Dr. Clottey using a lot of force, and that the way his hands moved was strong, painful and forceful. She said that the examination was very intense, that she felt as though she would “lose her sense,” and that she felt as if she was about to faint and may have fainted. She also recalled that Dr. Clottey told her repeatedly to relax.
[62] She said that she was in so much pain that it took her 11 days for it to resolve, and she said it felt violent like “some kind of rape.” She agreed, however, that she did not seek medical attention, but said it was because she was in shock and that it was a muscular pain that nothing could have helped.
[63] There was some discussion of what words RS used to describe the movement Dr. Clottey used in conducting the vaginal examination and what she perceived. In her examination in-Chief she described Dr. Clottey going “back and forth” with his fingers in her vagina. The Crown Attorney, in recounting her evidence in-Chief, used the term “in and out.” In cross-examination, she did eventually agree that she did not use those words first in her evidence, but suggested she may have used a similar gesture, and a portion of her video interview was shown when Det. Clayton first used the word “thrusting”.
[64] RS also agreed, eventually, that she did not use the word “thrusting” to describe what Dr. Clottey was doing until Detective Clayton put that word to her in her police interview. She was taken to each instance in the transcript that that word was used and acknowledged that it had been suggested to her by Detective Clayton.
[65] She agreed that, at that point of the interview, she was using the hand motions that accorded with the language of “back and forth” or “in and out” in her mind. She also agreed that, in any event of the words she used, Dr. Clottey’s examining fingers would at times go in deeper, then less deep, as he was examining her vagina and that his other non-examining hand would remain on her lower abdomen. She said the movements Dr. Clottey was doing caused her to become wet and involuntarily aroused, but also agreed that the gel Dr. Clottey used for the bimanual could have caused her to feel wet.
[66] RS described feeling Dr. Clottey touch her clitoris when she “came back” from feeling faint. She said that she told him specifically to stop touching her clitoris, at which point his hand moved and the intensity lessened, and he said “Sorry, it was an accident.” Her evidence was that Dr. Clottey was doing this deliberately, and that by Dr. Clottey apologizing to her, it confirmed that he was doing something wrong and on purpose.
[67] RS also recalled Dr. Clottey saying “something’s wrong” at some point during the vaginal examination. She said that she believed that there was something wrong with Dr. Clottey when he said this and thought he may have been referring to himself when he said it. She did not agree that he was likely referring to his findings on examination, specifically of a bulky uterus, and continued to deny this even when taken to the recording of “bulky uterus” in her chart for that exam. She even refused to adopt this when her College statement was put to her in which she recalled Dr. Clottey saying something to her like “you have something wrong with your uterus.”
Conclusion of Examination
[68] RS testified that shortly thereafter, the examination concluded and Dr. Clottey went to his desk. She remembered him writing things down and she thought his hands were shaking. She also thought he was “sweating like a pig: with sweat pouring down his face.” She did not see anything like heavy breathing or an erection, and he did not make any sexual comments.
[69] She also repeatedly described that Dr. Clottey was talking and saying the same things to her over and over; that he kept talking and was not saying anything new to her. She described him as going “blah, blah, blah.” She thought he was just trying to keep talking to avoid leaving the room because he was in an “alterated” [sic] state and did not want anyone else to see him.
[70] She also described starting to get dressed while Dr. Clottey was sitting at his desk. She said that she had been very angry that Dr. Clottey did not leave the room for this, but admitted that he was not facing her and never asked her to start getting dressed. She also agreed that he was writing down information about tests for her to do. She started to get dressed of her own volition when he was doing this, without telling him what she was doing. She did not know how long this concluding part of the exam took, other than to say it was “too long.”
Length of Examination
[71] RS testified generally that the entire physical examination was very long, though her estimates were inconsistent. In cross-examination, she thought it was 4 or 5 times longer than previous times with him. She also testified that she thought her first exam with him was 30 minutes, or maybe less; and that the June 2016 exam was more than an hour. Notably, she thought even the initial interview at the start of the appointment was 4 times longer than usual; perhaps 10 minutes, as opposed to 2 or 3. She later said it did not even seem “natural or normal” that he took as long as he did to talk to her at the beginning of the exam.
[72] She agreed she had earlier told the police that just the length of the exam was abusive, though she clarified that she really meant it was “too much.” She said she did not feel like it needed to be “all morning,” but also said that she was experiencing pain, which could make every minute feel very long.
Reporting and Termination of Relationship
[73] RS testified that after the physical examination in question her mind was running, and she called her husband and a friend who did not answer, but then eventually talked to another friend and her husband. Her friend gave her information and support to call the College of Physicians and Surgeons, which she did. She then gave an interview to a College investigator at her home on June 30, 2016 (three days later). She said she was thinking from her time as a psychologist in Brazil that if you did something wrong, they would take your licence, and that would be enough.
[74] She gave an additional statement to the police on July 27, 2016. She said she needed some time to empower herself to talk to them and she kept going over and over the events in her mind. She also told herself that “one step” (meaning the College) would not be enough and she needed to do more. She said the College investigator told her that the police had tools to investigate better, and that “if you want to make it harder, go to the police.”
3.2 Evidence of IF
[75] IF is 45 years old. She is married and has worked for a financial institution for 20 years.
Background with Dr. Clottey
[76] IF began seeing Dr. Clottey as her family doctor sometime in late 2011 or early 2012, after she moved to the Oakville area. When confronted with her chart in cross-examination, which showed a first entry on July 2012, she agreed that sometime in 2012 was correct. IF came to his clinic because she did some research and found that his clinic was accepting new patients, and ended up booking an appointment with him. She had previously had several other male and female family doctors.
[77] IF’s evidence was that Dr. Clottey would perform an annual physical examination on her until she stopped seeing him in January 2017, and that she would otherwise see him often for medication refills, to obtain referrals to specialists, and for other medical issues that came up from time to time. She estimated she would need to see him every 3 or 4 months, and about 20 times total over a 4.5 year period.
[78] She agreed that these issues included glucose monitoring, hypertension, a neurological issue requiring an MRI and other tests, and some anxiety issues that occasionally caused panic attacks, for which she took Paxil and Clonazepam at night from time to time. She also had a history of genital warts (condyloma) and had a procedure on her Bartholin’s gland on her vulva.
[79] IF agreed in cross-examination that she wanted her doctor to monitor her closely, and that she was conscientious about her health, such that she wanted timely assessment and discussion of any medical problems.
[80] IF testified in-Chief that in the normal course of her physical examinations with Dr. Clottey he would not have a chaperone or nurse, which was not concerning to her. She also remarked that Dr. Clottey generally took longer for all his physical examinations than she had experienced with other physicians.
Physical Examinations
[81] IF testified generally about her experiences undergoing physical examinations with Dr. Clottey. Her evidence was that Dr. Clottey generally performed these examinations the same way, and she experienced the same thing, at each physical, save for one different experience she had with the breast exam that Dr. Clottey performed at the first physical exam she had with him. She agreed that she had full physicals 4 times with Dr. Clottey, roughly one year apart, until her last visit with him in January 2017.
[82] Aside from the specific issues she complained about, IF described Dr. Clottey in her evidence in-Chief as a good doctor whom she was happy with, and she agreed that he seemed thorough and conscientious. She also said that Dr. Clottey would always talk about and explain the next steps he would take in his physical exams before he did them, even though she could not remember specifics about what he said.
History and Initial Assessments
[83] In addition to her ongoing medical issues, IF was asked about Dr. Clottey’s recording of specific medical issues in her chart. She agreed that she had treatment of a Bartholin’s gland cyst in her vaginal area, and that she had genital warts, both of which she would have wanted Dr. Clottey to know about. She also agreed that she wanted to continue to have a Pap test done with Dr. Clottey every year, which continued her past practice with other doctors. She thought this seemed sensible, and Dr. Clottey proceeded to do so with her annual physical exam.
Start of Examination
[84] IF testified that for her physical examinations a nurse would show her into an exam room and give her a disposable gown to change into before Dr. Clottey entered the room. She recalled that he would take a history, and always examine her neck, blood pressure, and heart and lungs with a stethoscope, but thought that he never checked her eyes or ears. She also recalled that he would consistently check her abdomen and her reflexes.
Breast Examination
[85] IF testified about the breast examinations that Dr. Clottey would perform as part of her annual physical exams. She agreed he would always talk about and explain the next steps he would perform in the exams, including the breast exams, as he was about to do them. She agreed he would always proceed in the order of the initial examinations followed by a breast exam, checking her organs on her belly, then a gynecological exam that included a Pap smear and internal exam.
[86] For the breast exam, IF testified that Dr. Clottey would ask her to lay down and he would examine one breast at a time. She agreed that she would have had to remove an arm from the gown to expose each breast. She recalled that her arm would be raised and bent at the elbow. She agreed Dr. Clottey’s examination method involved using the palmar surface of his fingers, working from the outside of the breast to the inside, to feel her tissue. She agreed that she understood Dr. Clottey to be checking if she had any lumps, though did not specifically recall him asking her about a family history of breast cancer, if she had lumps, or if she had experienced discharge during these exams. That said, she agreed that she did not remember all the things he would say.
[87] She did, however, complain about one occasion on the first breast exam she had with Dr. Clottey during her first comprehensive physical on July 18, 2012, in which he made contact with her nipple which she described as “squeezing and pulling” using the thumb and index finger in a pinching motion, and pulling outwards away from her body. She recalled it being painful and it surprised her as it was unexpected.
[88] She agreed that this occurred fairly quickly, and her description was based on what she felt as she did not visually see any part of his hand when he did this. She acknowledged that while palpating, Dr. Clottey’s fingers could have come close to her nipple, and applied pressure on and around her areola, but she did not agree that what she felt could have been Dr. Clottey squeezing or applying pressure immediately underneath the nipple; she was sure it was directly on the nipple. She also described what Dr. Clottey did as a “pinching motion” with his thumb and index finger.
[89] She was not sure how to reconcile what was described to her about Dr. Clottey’s practice with what she said she actually experienced. She said that it had never happened before with other doctors and did not happen again in subsequent physicals and breast exams with Dr. Clottey
[90] IF also testified that Dr. Clottey did not explain, before he did the maneuvre with his thumb and index finger on the first breast, why he was doing it, but that he did say he was “checking for liquid” right after he did it. He then proceeded to do the same exam and maneuvre on her other breast. She acknowledged generally knowing that fluid can come out of the nipple and can be a sign of something wrong, but disagreed that this was what Dr. Clottey was doing or that he explained this to her. Her evidence was that she found this shocking, that it hurt, and that she was very uncomfortable, but also that it was something that she never experienced before. Like the vaginal exam, she agreed that she found this “a bit odd” at the time. Additionally, IF testified that she had previously described the breast exams generally, as she described, as fine and they did not make her uncomfortable.
Abdominal Examination
[91] IF testified that Dr. Clottey proceeded to do an abdominal check after the breast exam by feeling and pressing down on her belly. She said it was very similar to other exams she had on her abdomen and she had no concerns.
Vaginal Examination
[92] IF expressly agreed that Dr. Clottey always did his vaginal examination the same way each time he performed one on her. In general, it started with a speculum and swabs, then a bimanual examination with 2 fingers inserted and his other hand on her abdomen. She underwent one of these examinations at each of the 4 physicals she agreed that she had with Dr. Clottey She said that Dr. Clottey would generally be positioned on a stool at the end of the exam table, with her feet on the table itself. She testified that Dr. Clottey remained in this position, at her feet at the end of the table, while doing the internal examination.
[93] IF testified that, aside from any clitoral contact, she had concerns with Dr. Clottey’s vaginal exam which included the length of the exam, including the Pap itself (which was longer than what she was used to). With respect to the length of the exam, she estimated that Dr. Clottey took about twice as long as the other family doctors and gynecologists who had done internal examinations before.
[94] She also complained about the contact with her clitoris which she described and which had not happened to her before. She said the contact between his thumb or digits and her clitoris happened on each of the bimanual exams he conducted on her.
[95] She could not generally recall Dr. Clottey saying anything to her while doing the internal examination, aside from telling her on two occasions that she had a small uterus.
[96] With respect to the clitoral contact, it was her evidence that Dr. Clottey made this contact deliberately, and not incidentally, because she felt “constant pressure” and rubbing on the clitoris continuously throughout the whole vaginal exam. She was not sure initially what finger or part of it was touching the clitoris, but agreed that whatever part was touching her was also moving as he did his exam. She did not find it sexually stimulating. She also testified that Dr. Clottey’s non-examining (left) hand was positioned on her lower abdomen during his bimanual exam, and did not testify about it moving down towards her introitus or vagina at all.
[97] Her evidence was that she did not tell Dr. Clottey anything in terms of medical concerns that she felt necessitated this conduct.
[98] In cross-examination, IF agreed that while she felt Dr. Clottey making contact with her clitoris, he was performing the bimanual exam with what felt like his fingers inside her vagina, moving in different directions inside her, and probing for her ovaries and feeling her uterus, and moving to different depths inside her vagina. She agreed it was not a situation where his hand was “frozen” or staying still, while his thumb made contact with her clitoris. She could not specifically say whether the angle of his hand or thumb on her clitoris changed during the exams.
[99] Moreover, she agreed that she did not find the contact with her clitoris sexually stimulating, nor did Dr. Clottey ever make any sexual comments or exhibit any other signs of sexual stimulation or arousal. She did not observe his demeanour to change while doing these exams, and agreed he looked pretty calm. She said only in re-examination that she thought there was a sexual component to what Dr. Clottey was doing just from the fact that the contact was with her clitoris.
[100] IF testified that she never said anything to Dr. Clottey regarding his method of performing vaginal examinations or what she experienced, such as “please stop,” or to alert him that she felt his thumb on her clitoris. She also said that she did not ask for a referral elsewhere for her vaginal exams. She agreed that she could have said something at some point, but that it was a “very unusual situation” and that she trusted her doctor and did not want to say anything because she felt vulnerable and ashamed. She agreed she would not generally have qualms about expressing pain or discomfort to other medical professionals, though in re-examination she attempted to clarify by saying that Dr. Clottey did a “movement that was not welcome” but not something that was so painful as to cause her to scream out.
[101] Her evidence was that at her last vaginal examination with Dr. Clottey when she experienced this clitoral touching, there was something at the “tip of her tongue” but she did not end up saying anything. She explained that she thought it would be a strange or bizarre dynamic to have said something to Dr. Clottey about touching her clitoris as she went over it in her mind, so she elected not to say anything.
[102] IF agreed that she continued to go back to Dr. Clottey for annual exams, which she understood would include vaginal exams, multiple times. She explained that she would put the thought of the vaginal exams “in a cubby hole,” or at the back of her mind, until it was time to return for another exam. She felt that whatever discomfort the vaginal exams caused, it was not bad enough to stop going to see Dr. Clottey who she was familiar with and managed her other health issues. Indeed, she testified in-Chief that Dr. Clottey was a good doctor who sent her to the right specialists and made the right referrals, and she did not want to start over.
[103] IF also agreed that the nature of the touching she experienced during the vaginal exams did not change, or get worse, or evolve, during the 4.5 years she saw Dr. Clottey.
Follow-Up Examination and Pap Test
[104] IF testified that the last internal exam that she had with Dr. Clottey was in 2016 and was not part of an annual physical exam. She remembered that it was a recall visit for a Pap test result which showed something to be out of balance. When taken to her chart, she agreed that she had a “standalone” Pap test on June 16, 2015, and that she had a full physical exam with a bimanual on September 15, 2015. She was initially conflating these visits, as well as a recall appointment she had in November 2014 to discuss the results of her previous Pap test in September 2014.
[105] In re-examination, IF clarified that her own view was that she did not think a repeat Pap test was necessary after her September 2014 Pap results which showed endometrial cells. She said that she received a letter from the Ontario government with her results and then returned to Dr. Clottey’s office for the follow-up attendance. She had testified that she looked up the results online once she got that letter, and understood that her pH balance might change as you age and it was nothing to be concerned about.
[106] She testified that she nevertheless returned to Dr. Clottey’s office, and that Dr. Clottey suggested another exam which she agreed to because she had already come back to his office. She agreed she was content to have the test done again, despite it not being her own wish initially. She was not alarmed about this and acknowledged there could have been a mutual decision to do another test; she agreed it was reasonable to do a repeat given that she was back in the office. She did not remember details of the discussion she had with Dr. Clottey at this recall visit.
[107] IF could not recall further discussions about what was said at this visit. She acknowledged that there may have been a discussion with Dr. Clottey about risk factors for endometrial cancer, though she could not remember one. She also acknowledged that at the time she had a weight gain issue, hypertension, and she has also never had children.
[108] Her evidence was that Dr. Clottey did not clarify or explain that the result required another internal examination to be done. Though she was confused about what happened on each exam, she thought a bimanual was done after she was recalled because she again felt the contact with her clitoris. She did understand that the repeat vaginal exam could have been in relation to the Pap result as well, but that the result only came from the Pap test, not the internal exam. It was clear that the contact she complained about occurred during a bimanual exam, which would have been part of the comprehensive annual exam in September 2015 and not the Pap test that occurred in June 2015.
[109] IF testified that by the time of this examination her “tolerance” for what Dr. Clottey was doing had diminished and she began seriously considering telling someone what he was doing.
Reporting and Termination of Relationship
[110] IF said that she told her husband about what she experienced with Dr. Clottey after her first exam with him and again later on, and then to a friend later in 2015 or 2016. She did not make any formal complaint to anybody before reading a news release in November 2016. She remembers the release as referring specifically to criminal sexual assault charges, and she found this shocking and upsetting. It was only after reading the release that she decided to contact police.
[111] She ultimately gave a statement to Detective Clayton on January 13, 2017. Prior to this, in September 2016, she said she became aware that Dr. Clottey had restrictions on his practice because her husband attended his office and saw signs saying he needed to be chaperoned while having exams or seeing him. She said this made her uncomfortable, but that she put it aside, though she said she began thinking that she may not be the only one who experienced something and that it “validated” what she experienced. It was not until she decided to Google him in November that she saw that he had been charged with sexual assault, which she said made her feel upset.
[112] She said she debated until January whether to come forward, and it was not until she got a call from Dr. Clottey’s office to follow-up on a referral to a nutritionist that something “went off” and she decided to contact police.
[113] IF testified that she did go back in to Dr. Clottey’s office after meeting with Detective Clayton. She went into his clinic to see a nutritionist and also asked the front desk for a refill of all her medications for a year, as she would be looking for another doctor. She recalled that the front desk person went back to speak to someone and then advised her that she would need to meet with Dr. Clottey in order to do so. She said she felt like she did not have a choice, that she proceeded to meet with him, that it was very brief, and that he asked if something was wrong. She remembered saying she did not want to discuss it, and that he did indeed give her the prescriptions she asked for and wished her good luck. She also remembers a chaperone being present, and that she remarked to the chaperone that she was being made to see someone (Dr. Clottey) that she did not want to see.
[114] Notably, she agreed that reading the press release made her feel different about her experiences with Dr. Clottey than she previously had, but also testified that it “reinforced” how she was feeling. She admitted in cross-examination that it made her change her mind about reporting Dr. Clottey to the College of Physicians and Surgeons and the police.
[115] She acknowledged that prior to that time she had described Dr. Clottey’s gynecological exams as “unusual” or “a bit odd”, and attempted to explain that they had made her uncomfortable. Her evidence was now that the contact with her clitoris caused her to feel violated, distraught and in shock. She attempted to clarify this by saying that the physical feeling of what Dr. Clottey did was odd at the time, but that when she went back and understood that it should not happen with a gynecological exam, based on her own history, speaking with friends, and the news about Dr. Clottey in the press, that was when she said she felt “violated.”
3.3 Evidence of GO
[116] GO is 34 years old. She has worked as marketing manager for 11 years. She had worked for RIM (Blackberry) as a student in 2005, in public relations and marketing. Incidentally, she said she had owned Blackberry devices since that time.
[117] GO testified in her examination in-Chief and cross-examination that she wrote emails to herself about her physical appointment with Dr. Clottey 2 to 3 days after it occurred on April 16, 2013. She said she reviewed these emails before coming to Court to testify.
[118] GO became a patient of Dr. Clottey at his clinic in Oakville towards the end of 2012, and stopped being his patient in 2013. She worked on the same street as his clinic. She went in one day and met with a female doctor. When she asked the front desk about new patients, she was told a male doctor was available, and she agreed to meet with him. This doctor was Dr. Clottey.
Initial Meeting
[119] She had an initial meeting or “meet and greet.” GO remembers that at that meeting they discussed her eczema, and that Dr. Clottey discussed various creams with her.
[120] She perceived Dr. Clottey to be very professional, and that he took his time to explain options to her. She agreed that she was finding out a bit about him and was comfortable with him. She agreed to make him her family doctor, and could not recall anything else about this appointment, which she thought was 5 to 10 minutes.
[121] She filled out some paperwork at the front desk of the clinic to make Dr. Clottey her family doctor and took steps to make an appointment to come back for a Pap and physical with him, though she could not remember exactly how this occurred. She testified that it had been longer than a year, and closer to two, since she had a full physical, and agreed that she was due for one. She testified that these physicals included breast examinations.
[122] GO said that she cancelled either one or two appointments that she had booked with Dr. Clottey, starting in January 2013, because she does not like Paps, and got nervous at the idea of a male doctor. She agreed it took months for her to eventually see Dr. Clottey. She had only had a male doctor as a child and never had one perform a physical or Pap on her. She agreed in cross-examination that she had been overthinking things, and really all those types of sensitive examinations made her uncomfortable regardless of gender of the physician, although a male physician was an “element” of her nervousness.
[123] She thought that perhaps she just needed more time to calm her nerves, and eventually did go through with an appointment with Dr. Clottey She said she had no other concerns at the time she booked this appointment.
Physical Examination
[124] GO attended Dr. Clottey’s office for an appointment on April 16, 2013.
[125] GO specifically recalled arriving at the clinic at 10:53 a.m. that day to sort out some allergy shots she needed at the front desk. She had met with an allergist and a dermatologist before her physical appointment, although she could not remember if Dr. Clottey or the female doctor at the clinic gave her that referral. There was initially some confusion about whether the clinic had forms for her allergy shots, but the receptionist eventually told her that the shots could be done after the physical.
[126] GO testified that a nurse then brought her into the exam room where she dropped off her things. She was then taken into another room to be weighed and measured. She was then taken back to the exam room where she changed into a paper gown and sat on a chair to wait. She recalled sorting through some documents to renew her Irish passport, which she thought Dr. Clottey could sign for her as a physician.
[127] She specifically recalls Dr. Clottey coming into the exam room at 11:10 a.m.
Chaperone/Third Party
[128] When Dr. Clottey entered the exam room, GO said he was alone and she was never offered the presence of a third party.
[129] In cross-examination, GO agreed that it did not bother her at the time that there was no third party present, and she did not know it was an option, nor was she expecting one, and she expected that everything would go smoothly. She agreed she probably looked up later whether someone else should be in the room, and that when she spoke with the College of Physicians and Surgeons on April 22, 2013, they clarified for her that it was a guideline, not a rule.
Initial Discussion
[130] GO recalled that Dr. Clottey then came into the room and spent a fair bit of time (about 25 minutes) talking about her history and medical concerns. She did not recall specific details of the discussion, what she mentioned to him or what he asked of her, but she did agree that Dr. Clottey was writing things down and that they covered a lot of areas in regards to her health and history. She did not think she told Dr. Clottey that there was anything specific she wanted him to examine.
[131] She also remembered discussing a concerning mole on her neck, and that Dr. Clottey offered to take a photograph of it with her Blackberry, using a light. She thought this was so she could compare if it had changed, later on. She also remembered Dr. Clottey giving her an opinion about an antibiotic for her allergies which she agreed with.
Start of Examination
[132] GO testified that Dr. Clottey then started the physical examination by taking her blood pressure and examining her head, neck, ears, eyes and throat as most doctors would. She then described him moving on to a lung examination. She agreed she was sitting up on the exam table up to this point.
[133] She recalled her white paper gown, which was “crinkly,” as being open at the back; she did not tie anything up. She remembered Dr. Clottey then examining her with a stethoscope, with the head of the stethoscope against her bare skin (not the gown), moving it over the lung fields on her chest. She understood why Dr. Clottey would want to examine directly on the skin as opposed to over a gown or shirt. She testified that she found it uncomfortable and strange, and that it “didn’t seem quite right” that Dr. Clottey was examining on or near her breasts or breast area as he did this.
[134] In cross-examination, she agreed her breast tissue lies over her lung fields. She also agreed the top of her gown was up near her neck area and would have needed to be moved down somewhat to place the stethoscope directly on her skin to examine her lungs. She remembered Dr. Clottey doing this movement himself and that one breast became fully exposed. She disagreed that both breasts could have been exposed; she could not recall if her other breast became partially exposed.
[135] GO also said that her breast became exposed as Dr. Clottey was doing this examination, that Dr. Clottey was “staring” at it and that this made her uncomfortable. However, she agreed that although she thought this examination was strange and “weird and uncomfortable,” that since Dr. Clottey was a doctor, it was probably okay.
[136] She recalled Dr. Clottey then moving to examine her back with the stethoscope. He was asking her to take deep breaths throughout.
Breast Examination
[137] GO then testified that Dr. Clottey asked her to lie down on the exam table, with her gown still on, to do a breast exam. She agreed that Dr. Clottey asked her to remove one arm from the gown so he could examine her breast, and that this was done one at a time. She believed everything started off in a normal way. She also recalled that Dr. Clottey told her before conducting the breast exam that he would be doing that examination.
[138] She agreed that she could not see everything Dr. Clottey’s hands were doing during the exam since she was lying flat on her back.
[139] GO could not remember whether Dr. Clottey asked her to put her arm up over or behind her head at the start of the exam. She did remember him starting to pat or touch with the palmar surface of his fingers in a circular motion around the breast tissue. She could not remember which direction he went in – outside-in or inside-out. She did agree, however, that this part of the exam was similar to what other doctors had done.
[140] She testified that Dr. Clottey then, using his index and middle finger bent at the knuckles, squeezed her nipple and twisted it a quarter turn, or 90 degrees, then “yanked up” with force. In cross-examination, she said she watched his hand come down to where her nipple was, was able to see the movement of his arm, then saw him “pulling up” at the end of this. However, she agreed that she could not see his hand on the nipple when she experienced what she described; she could feel it, as well as the pain that was associated with what Dr. Clottey did. She said he repeated the whole process on the other breast.
[141] She did not agree or recall that Dr. Clottey could have used his index finger and thumb for this maneuvre or that he could have been touching the areola around the nipple with his fingers. She did admit that she could not recall if she actually saw his hand doing what she described. What she did see was his hand rotating 90 degrees, then moving up. However, she did remember that she “jumped” or flinched when it happened, as it was quite painful, and she was not expecting it. That said, she testified that she did not say anything to Dr. Clottey about this when it happened or at all.
[142] GO testified that Dr. Clottey repeated the whole examination as she described, with nothing different on the other breast, which was just as painful or uncomfortable. She does not think Dr. Clottey said anything throughout this exam except that after he did the maneuvre on her first nipple, he said he was “just checking for discharge.” She agreed she had never had a doctor check for nipple discharge before, she had not said she had any problems with her nipples or with discharge, and that she thought what Dr. Clottey did was improper. She also agreed that the nipple area is the most sensitive part of her breast.
[143] She did say this part of the exam was completely different than what she had ever experienced before with doctors. She agreed, however, that it took a normal amount of time and that it was normal that he covered the whole breast area with his fingertips while examining.
[144] GO agreed in cross-examination that while she thought Dr. Clottey may have done something he should not have done, one of the things she thought at this time was that Dr. Clottey might be really thorough, that it may just be how he does his exam, and she trusted that he was a doctor who knew what he was doing and just doing what needed to be done. She acknowledged that she was not overly concerned about the exam at that point of it. In re-examination, she explained that while she had never had a doctor grab or twist her nipples, if that was the only thing she thought was wrong, she could have “talked herself out of it”.
Abdominal Exam
[145] GO testified that while she remained lying down, Dr. Clottey proceeded to press on her abdomen with his hands, taking a fair bit of time to press all over the abdomen. She said he told her at this point that he was checking for “swollen organs.” She said Dr. Clottey put another sheet or drape over the lower part of her body during this part of the exam which remained during the vaginal exam that followed.
Vaginal & Pelvic Examination
[146] GO’s evidence was that after the abdominal exam, Dr. Clottey went on to do a vaginal exam. She agreed that she knew and understood that she would be having a vaginal exam, and she moved down to the end of the table when asked. GO agreed that Dr. Clottey would “narrate” what he was doing while he was conducting the vaginal examination. She recalled Dr. Clottey saying that he would take three swabs, and had no reason to believe he did not take them. She also recalled that he said he was going to enter his fingers into her vagina, showed her his lubricated fingers, and that he asked permission, which she gave.
[147] GO recalled Dr. Clottey turning on a light at the end of the exam table and telling her to relax and take deep breaths. She thought her feet were in stirrups at this point. She agreed she was tense at this time, but only because those types of exams were always tense and unpleasant, with any doctor.
[148] She recalled Dr. Clottey then noting that someone had forgotten to give him the swabs for the tests he was to do, so he left the room. She agreed that Dr. Clottey was gone for only a matter of minutes. She recalled the door being left slightly open, perhaps a half a foot. She said she was worried when he left the room because a nurse or other patient might walk in thinking it was an empty room, and she was left exposed. She agreed that Dr. Clottey had put a sheet over her lower half (though she could not feel it to know how much it covered).
[149] In cross-examination, she acknowledged that this situation caused her some panic, despite previously disagreeing with that characterization. She did not think that she showed any outward signs of panic, but agreed that Dr. Clottey asked her to relax when he re-entered the room.
[150] She testified she could not see Dr. Clottey or his face at that point because of the positioning of the sheet and her legs. She testified she then heard what she thought was Dr. Clottey using a Blackberry to take a photograph. She described the sound for the Court, and noted that it was a distinctive and loud sound, which she was sure was a Blackberry camera as she was very familiar with Blackberry devices having owned them since 2005. She later said it had “instantly registered” to her that it was a Blackberry. She testified that she listened intently after she heard the sound to determine whether it could have been any of Dr. Clottey’s instruments, but nothing else sounded like the Blackberry camera noise she perceived. To her, the noise was “loud and clear.” After she heard the camera sound, she said that she froze, turned beet red, and was in a state of shock. She said all she could think about after that was the photograph. She said she panicked and could only think about what he might do with the photo, and also acknowledged that a friend had talked to her about the possibility that he might have been sending the photo to others or posting it online.
[151] She did remember Dr. Clottey inserting a speculum, taking the swabs, describing what she might feel, and making some small talk.
[152] At this point, GO said she believed that Dr. Clottey had just taken a photograph of her genitalia and did not converse with him, perhaps just giving short answers. She described being frozen and in shock as a result.
[153] She does remember Dr. Clottey removing the speculum from her vagina and proceeding with a manual internal exam after explaining and obtaining consent, as she has described. She recalled the gel on Dr. Clottey’s fingers being cold and remarking upon it. She recalled him first examining her left and right ovaries in line with what she experienced at other examinations, which was not concerning.
[154] She then recalls Dr. Clottey explaining that he would examine her vaginal walls and that he was checking for “swollen organs.” She recalled him positioning himself to be standing at her right side for this part of the exam. She said usually other doctors finish the internal exam after checking the ovaries, so she already thought this part of the examination with the checking of the vaginal walls was really strange. She described him checking the right vaginal wall closest to himself, then the left, lower and upper vaginal walls, giving some indication to her by pointing with his non-examining hand in the direction of where he would be moving, to each wall in succession. She agreed, based upon the fingers Dr. Clottey showed her, that his thumb would have been upright at a 90-degree angle to his fingers during this exam.
[155] It was during this part of the examination, while Dr. Clottey’s fingers were moving around inside of her vagina, that GO testified Dr. Clottey’s thumb was rubbing on her clitoris, and also that the contact was “consistent” and “continuous.” She agreed that she first thought that Dr. Clottey may not have realized that his thumb was on her clitoris and that he was doing what she felt, but she then explained that she was “in denial” and trying to make up excuses when talking to a friend. When she perceived the contact with her clitoris persisting after Dr. Clottey examined the right vaginal wall, she no longer thought it was an accident. Notably, she said she felt rubbing on her clitoris as Dr. Clottey’s non-examining hand was pointing upwards, indicating he was checking the upper (anterior) vaginal wall.
[156] GO acknowledged that she could not see what Dr. Clottey was doing during this part of the exam, and only felt it. She also testified that she did not know for sure which part of his hand was on her clitoris the whole time and thought at one point he may have flipped his hand around so that it was his knuckle. She could not specifically recall what movements or angles his hands were using, but did remember the contact being right on the clitoris. She said at that point she was also concerned the examination was taking too long and was longer than what she previously experienced.
[157] She also remembers Dr. Clottey saying he needed to check her cervix, which she found odd, as she thought he would have visualized it when doing the speculum portion of the exam; she remembers his fingers going deeper at that point.
[158] She testified that nothing like this part of the examination had ever happened to her before in a physical, and that her head was racing and she felt like puking. She also described feeling like she was becoming involuntarily aroused.
[159] GO then described Dr. Clottey moving on to examine her external genitalia. He asked her if she had a history of genital warts, which concerned her, and which she denied. She felt he had no reason to be checking for them, as she had not raised this concern to him. She did agree that she later asked Dr. Clottey at the end of the examination if he could do a check for sexually transmitted diseases, and despite not initially recalling, she acknowledged that she would have previously advised Dr. Clottey that she had been given the Gardasil vaccine which inoculates against HPV (Human Papilloma Virus). She agreed she knew HPV could cause genital warts, but said her main reason for getting it was that it could also prevent cervical cancers.
[160] GO agreed that she never had a doctor do an external examination of her genitalia, it was different, and it seemed – and still seems – weird and strange to her. She would have thought he would have already seen any warts, if they were present, when he was doing his speculum examination. In her view, that examination could have just been done visually or maybe just by touching to move some skin.
[161] She testified that the external examination included an examination of her inner and outer labia, and her urethra, and that Dr. Clottey described that he would be checking these things before he did so.
[162] GO remembers that as Dr. Clottey was checking her external genitalia he was moving his fingers through folds of her tissues, starting by touching on her clitoris and then “sliding” down. The contact with the clitoris, that she perceived, was not maintained or constant. She thought he was lifting or “tugging” on some folds of skin. She did acknowledge that the clitoris was in the middle of the vaginal area and surrounded by tissues, which she sensed he was touching carefully. She also agreed that there still would have been a fair bit of lubricant or gel on her genitalia from the earlier internal examination at this time as she could not recall herself or Dr. Clottey removing it.
[163] Though she initially testified that Dr. Clottey was staring at her genitals, in cross-examination she acknowledged that he did seem to be focused. She also agreed that she again initially thought to herself that Dr. Clottey may have been very thorough and that it was okay because he was a doctor. She again explained this was something she just thought to calm herself down because this part of the examination was unusual, strange and made her feel violated.
[164] She then remembered Dr. Clottey saying he needed to check another organ which might make her feel like she needed to pee. He re-inserted 2 fingers, pushing upwards, and that his thumb again made contact with her clitoris. She recalled him asking her to “barrel down” by clenching her abdominal muscles, and that he had his other hand on her abdomen. She then mentioned to him that she did actually have to urinate, which he confirmed in his examination.
[165] GO recalled that as the examination was ending, Dr. Clottey’s phone started ringing. She recalled checking her watch at the end of the examination when she was changing at 12:16 p.m., and she thought this call must have come about 5 minutes earlier. Overall, she provided a breakdown of the timing of the appointment; that it started around 11:10 a.m., then 25 minutes for the interview, 5 minutes for a check of blood pressure, head and neck, 5 minutes for the breast exam, 3 minutes for the abdominal exam, 10 minutes for the Pap test and check of her ovaries, and about 15-20 minutes for the examination of the vaginal walls and external genitalia. Her recollection was recorded in an email she wrote to herself a couple days after the appointment.
[166] She remembered that when his phone rang, Dr. Clottey took it out of the front pocket of his white coat, and she was 100% sure that it was a black-coloured Blackberry based on her being very familiar with Blackberries and having worked for RIM. At this point she said she became certain that Dr. Clottey had used a Blackberry camera to surreptitiously take a photo of her genitals earlier in the examination, again describing the sound as “very distinctive,” and that seeing him get his phone “confirm(ed) everything” for her.
[167] She recalled the phone rang a few times, but Dr. Clottey definitely did not take the call and seemed flustered. He looked at the screen, may have pressed a button, put the phone back in his pocket and exited the room. She recalled Dr. Clottey may have mentioned to her that it was his wife calling.
[168] In cross-examination, GO agreed that if Dr. Clottey had taken out an iPhone rather than a Blackberry, the pieces of the story in her mind would not have come together because she knew the noise she heard was from a Blackberry. If she had seen an iPhone, she may have thought the sound was in her imagination. Having confirmed this was her evidence, she was taken to an excerpt of Dr. Clottey’s cell phone records which show two calls coming to his phone at 12:09 p.m. on April 16, 2013, the date of her examination. She confirmed that these calls accorded with the timing that she recalled.
[169] GO was confronted with the records and Dr. Clottey’s anticipated evidence that indeed he had a white iPhone 5, and this was the phone he had with him during her April 16, 2013 examination, not a Blackberry. GO did say she “heard what she heard,” but then attempted to offer various explanations, including that Apple iPhones also make a “clicking sound,” that she didn’t know what colour his iPhone case was and that it could have been an iPhone camera shutter and she just thought it was a Blackberry.
[170] It was suggested to GO that her belief that Dr. Clottey had used a Blackberry to take a photograph of her exposed genitalia coloured her view of the rest of the encounter with him. She then said that even if he had not taken a photograph, other things about the exam were wrong. She acknowledged having previously thought to herself “maybe he was just being thorough,” although she explained that she only said such things to try to calm herself down.
[171] GO’s evidence was that Dr. Clottey came back into the room after she changed. He advised her that the front desk could stamp her passport forms. He also filled out a blood work requisition for her and asked her to make an appointment to return to discuss results in 3 weeks.
[172] Finally, she remembers asking him about an STD test. Dr. Clottey told her that if she wanted an HIV test, which she agreed to, that he would have done more checking if he had known she wanted an STD screen. She recalls her “stomach turning” when he mentioned this.
Events After Physical Examination
[173] GO recalls proceeding to the front desk after leaving Dr. Clottey’s office, getting her passport forms stamped and there being some confusion about her allergy shots. She then left the clinic to return to her office for a meeting. She said after she went back to the office and in the days following, the appointment was on replay in her mind to the point that she was distracted and friends noticed that she was withdrawn. She eventually returned to Dr. Clottey’s office only for the purpose of obtaining her test results, but saw a female doctor. That female doctor interpreted her Pap test results as inconclusive.
[174] GO also agreed that once she obtained another family doctor, she had her records transferred after her experience with Dr. Clottey The new doctor performed examinations in a different way. It made her realize and, in fact, “affirmed” that Dr. Clottey had crossed a line. She testified that the examinations of the vaginal walls, the urethra, and the external genitalia were all “extra” things that Dr. Clottey did and her new doctor did not do.
[175] GO agreed that she had previously made various statements to others and to herself about Dr. Clottey’s actions after the exam to the effect that he was just being thorough, that that is what doctors do, and that it was not as bad as she thought. She also recalled going to the College of Physicians and Surgeons’ website where she noticed that Dr. Clottey was trained in Africa, which led her to think that examinations might be performed differently there. She explained that these statements were things she was trying to tell herself to get over her trauma, and that she was in denial.
[176] GO finally testified about calling both the College of Physicians and Surgeons and the Human Rights Tribunal in 2013. She did not want to file an official complaint with the College because she did not want any direct or indirect contact with him, and felt that the College would protect him, so she did not go further. She was dissatisfied with the response from the Human Rights Tribunal and did not hear further from them. To her knowledge, no further action was taken by the College until 2016.
[177] She was also not aware of any police investigation until that time, and she had previously thought that going to the police would be pretty drastic. She acknowledged that what she was “trying to understand is he was allowed to do what he did.” It was not until she was contacted by the College in October 2016 that she learned there were other complaints, and she was asked whether she would like to come forward, that further action was being taken.
[178] She gave statements to both the College and the police, in one interview, on November 18, 2016. She described “not getting anywhere” when she tried to complain herself.
3.4 Evidence of KR
[179] KR is 40 years old. She was born in Canada and grew up in Mississauga. She currently lives in Oakville. She does not presently work as she is on disability related to mental illness. At the time she saw Dr. Clottey, KR was working as an account manager, a position she held until early 2014.
Medical History
[180] KR testified that she had a brain tumour which was discovered and diagnosed in 2006. She had surgery in 2006 and 2012. Prior to 2006, a general physician misdiagnosed her brain tumour. She has had a few infections in this area as well. As a result of these surgeries and complications, KR testified that she was having trust issues with doctors for valid reasons.
[181] KR said she does not have memory issues because of the brain surgery she had. She said she had physiological testing on her memory, as well as a number of other issues, in 2016. She went to do this testing of her own initiative after speaking with a lawyer about qualifying for disability benefits.
[182] KR testified that the mental illnesses for which she is on disability for are depression, anxiety, Borderline Personality Disorder, and Post-Traumatic Stress Disorder. Her diagnosis of Borderline Personality Disorder was formally diagnosed by her physician and a psychologist in 2014, around the time that her mother fell into a coma after having brain surgery. She testified that she does talk therapy for her Borderline Personality Disorder.
[183] KR became a patient of Dr. Clottey in approximately 2012. KR testified that she had multiple female doctors before Dr. Clottey and only one male doctor as a child. KR agreed that she had been through a tough time with doctors before Dr. Clottey.
Initial Meeting
[184] KR described Dr. Clottey as kind and patient at the first “meet and greet” appointment he had with her in 2012. She testified that he seemed like he would take good care of her and seemed like he would be thorough. She agreed that thoroughness was something she was looking for in a doctor. She got the sense he was “trying to sell himself” to her as a doctor. She understood, either from Dr. Clottey or another person in the clinic, that Dr. Clottey had a background in public health and preventive medicine.
[185] She said that Dr. Clottey took his time and seemed interested in her during the “meet and greet.” She testified that they discussed her past and medical background. She said she shared her brain history with him, her heavy periods, and her prescription needs. KR also testified that she wanted a female doctor for the physical because she would be more comfortable. She said that she had issues with male doctors and was “very uncomfortable” with male doctors, having only had female doctors as an adult.
[186] KR testified that she expressed concerns to Dr. Clottey about her past doctor and signing her insurance form. She said she told Dr. Clottey that she left that doctor’s office crying and was looking for someone that would take care of the insurance issue. KR said Dr. Clottey assured her this would not happen with him.
[187] KR remembers discussing the complete physical examination with Dr. Clottey. In-Chief, KR said that Dr. Clottey told her he needed her to do a physical - a Pap test and breast exam - and did not tell her why. She says Dr. Clottey called the complete physical a requirement, that it was “mandatory” and there is no possibility she was remembering incorrectly. She denied the suggestion on cross-examination that the complete physical was just a recommendation on Dr. Clottey’s part.
[188] KR said that there was no discussion about the timing of her last physical, but agreed that she thought she was due for one. KR asked for a female doctor to do the physical and recalled that Dr. Clottey “snickered” and said “we’re all the same.” She said she felt stupid and ashamed for asking, like it was inappropriate to ask for a female doctor. She said she explained she was more comfortable with a female doctor to do the breast and Pap exam.
[189] KR admitted on cross-examination that the complete physical was a positive to her. She remembers Dr. Clottey saying that it was important for him to get a complete understanding of her health in order to become his patient. She subsequently agreed to go through the physical with him. KR ultimately enrolled in Dr. Clottey’s practice and signed enrollment forms.
Physical Examination
[190] KR attended Dr. Clottey’s office for an appointment on December 15, 2012. KR said that Dr. Clottey’s demeanour changed: he was kind, smiling, and friendly at the “meet and greet”; he was cold, not friendly, and not social at the physical exam.
[191] KR agreed on cross-examination that there are many pieces of the visit she does not remember.
[192] For instance, KR could not remember who showed her into the exam room. She could only say it was not Dr. Clottey. KR testified in cross-examination that it was a nurse or front desk person who likely showed her to the exam room and that person also gave her a gown. KR does not remember anything about the gown, not where it opened or closed, or whether it was paper or fabric. She was naked under the gown.
[193] KR testified that Dr. Clottey then just came in and started doing a physical. She said she does not recall a conversation with him at all, and specifically denied that there was a 10- to 15-minute conversation at the beginning of the appointment. However, she was taken to a Cumulative Patient Profile document and agreed that she had a number of medical issues, including irregular menses, issues with her field of vision, and ADHD, which she would have discussed with Dr. Clottey. She could not remember if those issues were raised at the “meet and greet” or at the beginning of the physical.
[194] She recalled that Dr. Clottey just started with the vaginal exam and Pap test first thing when he walked in. She does not recall whether stirrups were used.
[195] On cross-examination she initially said Dr. Clottey did not check her blood pressure, ears or eyes. When taken to her medical chart which showed a blood pressure reading, her evidence became that she did not recall her blood pressure being taken.
[196] She does not remember whether a stethoscope examination of her chest happened. She said he did not press down on her abdomen at any time. She also said that she does not remember her height or weight being taken, even after being presented with the measurements in her chart. She said she had no reason to believe the measurements reflected in her chart were inaccurate.
Chaperone / Third Party
[197] KR testified that she expected there to be a nurse in the room with Dr. Clottey. When Dr. Clottey entered the exam room, he was alone. KR testified that she was in shock and that this made her feel awful and scared, but she cannot remember if she said anything about that.
[198] KR testified that she had this expectation about a chaperone because she was uncomfortable about having a man do her examination. She initially could not remember whether she previously had any specific conversation with Dr. Clottey about someone being with him in the exam room, but later said she believes she brought up the issue of a chaperone during the visit. She recalled that someone was sick at the front desk, and so nobody was available to come in.
[199] KR said on cross-examination that she felt uncomfortable throughout the whole physical examination because there was no chaperone and because a male was doing it. She said that she thought whenever there was a male doctor doing a Pap test or breast exam, there should be a chaperone with them. She based this expectation on what other people had told her. KR stated she was not sure whether this was a legal requirement.
[200] KR testified that if there was a chaperone in the room, she “maybe” would have interpreted the nipple-pulling differently.
Vaginal & Pelvic Exam
[201] KR testified that the entire vaginal examination that Dr. Clottey did was not much different from what other doctors did. She was lying down during the exam and had her gown on.
[202] She described that during the Pap test Dr. Clottey used a metal speculum and his fingers. Dr. Clottey took swabs during this test and conducted an internal exam with his fingers. KR cannot recall which exam, Pap or internal, Dr. Clottey conducted first. She thinks Dr. Clottey was wearing gloves for the internal exam, but cannot remember. KR said that she was uncomfortable during the internal exam because she had a man examining her while naked. KR said she knew she was going to have a vaginal exam. She said there was no speech from him at each stage and she was very sure that she remembered this; it is not possible she forgot.
[203] She did not object to this part of the examination because it was like what any other doctor did.
Breast Examination
[204] KR testified that just before the breast exam, she was lying down with her gown on. She stated she was absolutely sure that he did the breast exam after the vaginal exam, even after it was suggested to her that Dr. Clottey’s practice was always to do a breast exam first.
[205] She could not remember whether Dr. Clottey said anything indicating he was doing a breast exam, but she was not surprised when he started to examine her breasts. She testified that she expected a breast exam to form part of the physical. She does not remember Dr. Clottey saying “I will do one at a time” or asking her to remove her arms from the gown sleeves, but she did admit she could not recall details.
[206] She does remember her arms were positioned above her head. She does not remember if Dr. Clottey asked her to put them there. She does not remember if he was wearing gloves.
[207] KR testified in-Chief that Dr. Clottey examined her breasts under the gown, and that when he examined each breast, that breast would be exposed, one at a time. She was sure that Dr. Clottey started with the left breast, then moved to the right.
[208] KR initially said her eyes were closed during the exam and she was “just going by feel.” At other points in her cross-examination, she said she could not say for sure that her eyes were shut. She said she is sure her eyes were closed at periods of time during the exam but not fully shut the whole time. She could not remember whether she watched Dr. Clottey’s fingers or stared at the ceiling. She thought he used his fingertips going around in a circular fashion on her breast, and that he was moving from outside inwards gradually, starting from the base of the breast, moving in a circular motion, clockwise.
[209] KR testified that, up to this point in the breast exam, she would have been okay with the whole examination if a woman had been present in the room.
[210] KR testified that she had a sensation of Dr. Clottey touching and “pulling” her nipple with his thumb, index and third fingers. She testified in-Chief, and agreed on cross-examination, that it was not aggressive or painful. She said that it felt off and wrong. She testified that Dr. Clottey did not do a rotation around her nipple where he used a thumb and second finger immediately under the nipple to feel for lumps, masses, and discharge. She disagreed with this suggestion, but agreed that after the sensation of her nipple being pulled, she saw Dr. Clottey’s hand come up quickly, and it was likely only a couple of seconds. KR does not recall if she felt pressure underneath the nipple first, and disagrees that it is possible she has forgotten.
[211] KR said that Dr. Clottey did the same thing with both breasts and there was no difference between the examination of each breast. She does not recall how long each breast took. Her evidence was that that she never voiced any concerns about her breasts or discharge to Dr. Clottey
[212] KR does not recall whether Dr. Clottey told her the examination was over or that she could get changed, but knows she did get changed. She recalled that Dr. Clottey gave her requisition forms for blood work and a prescription.
[213] She testified she does not remember the details because she was in shock, but acknowledged there could have been a discussion about what tests he ordered. She admitted on cross-examination that she was not aware that tumours can cause discharge from the breast, but stated that she has never had discharge from the breast and when she saw Dr. Clottey her residual brain tumour, about the size of a pea, was stable.
[214] KR testified that Dr. Clottey did not agree that he asked, or could have asked, about discharge while examining her breasts. She admitted that it would have been okay for a doctor to examine the nipple if they explained the reason for it, like discharge, but that was not the case here because there was no discussion.
Abdominal Exam
[215] KR testified she does not recall an abdominal exam occurring with Dr. Clottey
End of Examination
[216] KR testified that after the breast exam Dr. Clottey left the room and she changed back into her clothing. She received a requisition form for blood work and a prescription for medication. She did not ever go for the blood tests that were ordered, and said at that point she “couldn’t care less” what Dr. Clottey had to say at the end of the appointment about follow-up. She agreed at that point she was angry at Dr. Clottey both for what he did with her breasts, that he was a male doctor, that there was no chaperone during her exam, and that he “snickered” at her in their “meet and greet”.
[217] She testified she cannot recall any further discussion or how long this encounter was. KR said she wanted to get away from him and never come back. She left the room. She never returned to see Dr. Clottey and never got the results from her Pap test.
Reporting
[218] KR testified that she told her mother, boyfriend, and some friends about what happened. She testified that she knew it got reported to the College, but she did not report it herself initially.
[219] KR talked to Dr. Gloria Farhat, her current general physician, about Dr. Clottey’s examinations in December 2012. She testified that she had started seeing Dr. Farhat as a walk-in patient sometimes, once she started seeing Dr. Clottey.
[220] To KR’s knowledge, Dr. Farhat did not make a report to the College based on that discussion. KR did not complain to the College after this discussion, and she agreed that one reason she did not report Dr. Clottey sooner is because of the discussion she had with Dr. Farhat.
[221] KR also saw Kristen Moore, her psychologist. KR testified that she is not aware of the mandatory reporting regime with the College. KR admitted on cross-examination that psychologists, in some circumstances, might have to report, and she knew that Dr. Moore called the College to make inquiries. As a result, she knew that the College knew about this case. She testified in-Chief that before she became aware of the psychologist’s report, she did not know what to do (in terms of reporting).
[222] When asked whether she did not report because she did not know if what Dr. Clottey did was okay or not, KR testified that she did not know if what Dr. Clottey did was okay but “knew it did not feel right.” She testified that she never experienced it before and knew at the time it “wasn’t right.”
[223] KR agreed that nothing further happened with the College until 2016. KR gave a statement to the College on July 28, 2016. She reached out to the College because the College contacted her psychologist, who gave her the College’s number, and then KR contacted the College. She recalled that investigators Ann Atkinson and Pam Greenberg conducted the interview. KR gave the requisition form to the College, which was marked as Exhibit 4. Dr. Clottey originally gave KR the requisition form and KR never went for the tests.
[224] KR agreed that she was trying to be honest and accurate during this interview, and agreed that she said if there was a female there who did what Dr. Clottey did, she would understand. She agreed this was her whole answer. On re-examination, she clarified that she does not think the pulling of the nipple would have been the same to her, if there was a chaperone in the room.
[225] At the end of the College interview, the College told KR the police were interested and gave KR the police’s contact information.
[226] KR gave a statement to the police on August 7, 2016. When the transcript of the police interview dated August 7, 2016 was put to her, she agreed that she was trying to be honest and accurate, and she acknowledged that she did not know at the time whether what Dr. Clottey did was okay or not. She specifically agreed that she did not know whether it was something that new doctors did and, as far as she knew, it could have been.
3.5 Evidence of DM
[227] DM is 35 years old. She is presently a stay-at-home mother to 4 children, and she homeschools them. She lived in Zimbabwe until she was 18, then moved to Dallas in the U.S., before first moving to Canada in 2008. She lived in Mississauga until late 2013, when she moved to Calgary for her husband’s work.
Initial Meeting
[228] DM described becoming Dr. Clottey’s patient in 2013, up until the time she moved to Calgary at the end of that year. She had been looking for a new family doctor as she had some problems with her previous one, who was a female. She mentioned that she found the previous doctor rude and that she had an attitude. Dr. Clottey’s clinic was on her running route and was accepting new patients, so she called in to make an appointment to see if she wished to be a patient in his practice.
[229] She described her first appointment with Dr. Clottey as a “meet and greet”, which occurred on February 5, 2013. She agreed things went well and that he seemed like he was caring and knew what he was doing. As a result, she decided to become his patient. She recalled that at this meeting they discussed having her come in for a complete physical examination, which she agreed to because it had been some time since she had one and it seemed like a good idea. That said, she could not recall specifics of what discussion she had with Dr. Clottey about the physical. She testified that she did not know it would include a breast exam and could not recall if she was told that it would be a “head to toe” exam, including a breast exam and Pap test.
[230] That said, she did not agree with the suggestion that she could (fairly) not recall a lot of details about some of her visits with Dr. Clottey.
Physical Examination
[231] DM testified that she attended for her physical examination and was taken into an exam room by a nurse, who told her to undress and get into a paper hospital gown. She did so, taking off all her clothing. She could not remember where the gown opened.
[232] Despite disagreeing with the suggestion that she had forgotten some details of her visits with Dr. Clottey, DM admitted that while she remembered some talking with Dr. Clottey at the beginning of her physical, she could not recall whether that discussion included any mention of her past health, medical history, medications or her concerns. She also could not recall if Dr. Clottey did a Pap test at this appointment, took specimens, used instruments or used a speculum.
Chaperone/Third Party
[233] DM gave evidence that she expected a chaperone to be present for her physical with Dr. Clottey and it bothered her that no chaperone was present. She described it as a “first red flag” when Dr. Clottey entered the exam room after she had changed, unaccompanied. She based this off of previous examinations with a male gynecologist in the U.S. who would page a nurse when he needed to do a physical exam.
[234] She agreed she had previously thought that, because Dr. Clottey was a new doctor, he might examine without a nurse or chaperone. She also did not testify that she ever communicated to Dr. Clottey her expectation or desire that a chaperone be present.
Breast Examination
[235] DM went on to give evidence about the breast exam that Dr. Clottey performed on her during the physical. She testified that he proceeded directly to asking her to lie down on the exam table and started with a breast examination. She could not recall any discussion about her health, being measured for height and weight by Dr. Clottey or a nurse, having her blood pressure taken or having her heart listened to.
[236] Notably, DM testified on cross-examination that she had never had a breast exam performed on her before by any other doctor and, thus, had nothing to compare Dr. Clottey’s breast exam to.
[237] DM recalled lying down for the breast exam and wearing a gown. She agreed that she understood at this point that Dr. Clottey was going to be examining her breasts, even if she did not know the specifics of what he would be doing. She could not remember whether he gave her any description or talked to her at the start of the exam.
[238] She was sure Dr. Clottey did not ask her to remove her arms from her sleeves in order to do the exam. She did remember needing to be exposed so that he could examine directly on the skin, but could not remember how this came about. She thought her arms were down at the side of her body when the examination was being performed. She then testified in-Chief that Dr. Clottey proceeded to use the palmar surface of his hand being in continuous contact with her breast tissue, moving in a circular motion, and moving her breast around in a circular fashion. She disagreed that he was moving up and down, patting her breasts with the palm side of his fingers. She did not recall any particular pattern that he was using when doing this examination.
[239] She initially described this as feeling like he was “grabbing” her breast, which she acknowledged in cross-examination was a phrase she never used before. She qualified this by saying that what she felt was “aggressive,” and like a lot of pressure, and that it was hard to articulate what happened. She also agreed that she had large breasts, and the pressure was when he had his hand on her breast and moving over her breast area.
[240] DM did not think Dr. Clottey asked her about any family history of breast cancer, or whether she had any lumps, when he did this examination. She initially testified not recalling if he said anything at all during the breast exam. She did acknowledge, when taken to her police interview, that it was true that he would have been saying he was checking her breasts for lumps. She could not recall if he mentioned that he was checking for discharge from her breasts, but acknowledged she could not remember every detail about this.
[241] DM then testified that Dr. Clottey then proceeded to put his fingers on her nipple and twisted it. She demonstrated the motion she was describing and, in cross-examination, agreed that Dr. Clottey used his thumb and index finger, 1 to 1.5 inches apart like a pincer. She said she felt both digits on her nipple, and that Dr. Clottey rotated his hand “like turning a key in a lock” a couple of times so that the orientation of his hand changed, then lifted his hands right up. She said she did not feel pressure or force, and it was not painful to her. Her evidence was that as this happened, she was taken by surprise. She said she looked to see what he was doing and saw his hand rotate and come up off her breast.
[242] In re-examination, she testified that she could actually see his fingers on her nipple as he was doing the twisting motion.
[243] DM’s evidence was that Dr. Clottey proceeded to do the same examination, including what she described with the nipple, on her other breast.
[244] She described her nipples as being a very sensitive part of her body that nobody except her intimate partners had touched, and when she felt Dr. Clottey touch them, she “froze”. She did not agree at first that she had thought this movement could have been Dr. Clottey really checking for something.
[245] She was read her police interview, which she agreed with, and further agreed that she had told the police in reference to the “nipple twisting” that she thought maybe he had really been checking for something. She also said that she kept acting normally after this examination, as if nothing had happened.
Vaginal Examination
[246] DM testified that after Dr. Clottey performed a breast examination, he proceeded right to conducting a vaginal examination. She testified that she did not think Dr. Clottey discussed any issues with her about that area or what he was going to do.
[247] In describing the actual vaginal examination, DM recalled that she was lying down on the exam table and that Dr. Clottey was sitting at the end of the table. She was sure that he remained there throughout the entire exam and did not recall (as was suggested) that when doing the bimanual exam, he moved to be standing at her side. While she said this would make sense to her, what she remembered was Dr. Clottey doing an examination with his fingers while seated at the end of the table where her legs were.
[248] DM also believed that Dr. Clottey did not do a Pap test at this appointment because she is familiar with the feeling of a metal speculum and did not feel it on that appointment. When she was taken to her medical chart showing the results of her Pap test with a service date of May 7, 2013 (aligning with her physical) and Dr. Clottey’s anticipated evidence that he did a Pap test with a speculum, she maintained that she did not remember a speculum being used - even a plastic speculum, as was suggested to her - and also testified that she did not remember him using any instruments at all.
[249] She acknowledged not being able to see what Dr. Clottey was doing during the internal examination. Notably, she also could not remember any light at the end of the exam table, whether there were stirrups and whether or not she used them, whether swabs were taken, whether there was a table for instruments at the end of the exam table, and whether Dr. Clottey wore gloves or used lubricant.
[250] DM testified that she felt that Dr. Clottey was examining her in a way that felt like a lot of pressure, and she described in-Chief that she thought he was trying to check for something in her vagina. She thought it was like a circular motion, moving around to check things. She did not see his hand, so she was going by feel. She said this felt very intense and “unbearable,” and made her feel physically uncomfortable, but again described the physical sensation as Dr. Clottey “trying to feel for something.” In describing this, she said that she felt like she was being “violated” and that Dr. Clottey was “doing something he’s not supposed to be doing” when he was performing an internal examination on her.
[251] She testified that her reference for a proper internal examination was when her obstetrician/gynecologist would do examinations before her babies were born, and further agreed on cross-examination that she was referring to late-term assessments of the dilation of her cervix. She said that Dr. Clottey’s exam felt longer than her normal examinations, which felt to her like a couple seconds of going in, checking and coming out, though she could identify how much longer Dr. Clottey took. She agreed that what she felt Dr. Clottey doing was much deeper than what these previous doctors were doing, and that they had not gone in too far. Similarly, she acknowledged that during pregnancy, her babies’ heads would be down and her cervix would be lower to the vaginal opening than when Dr. Clottey assessed her.
[252] DM acknowledged that she did not say anything to Dr. Clottey during the vaginal examination, or about the examination, after it had concluded. She also said that while the examination felt uncomfortable, it was not painful, although she felt some pain after the exam.
End of Examination
[253] DM recalls the physical examination concluding, Dr. Clottey leaving the room, and that she got dressed. She remembered Dr. Clottey coming back into the room and giving her some paperwork to have blood work done. She did not think there was any discussion, nor did she testify that she said anything to Dr. Clottey, about the discomfort she experienced.
[254] DM testified that she immediately went home after this appointment.
Subsequent Appointments
[255] DM was asked about occasions when she went back to see Dr. Clottey after her physical in May 2013. In her evidence in-Chief, she could recall that she had injured her knee while running and returned to him for a referral, and also that she went to see him to confirm her pregnancy in the fall of 2013, though she could not remember the specifics of her visits with him when she was pregnant. She also generally recalled there was one visit when she was pregnant when Dr. Clottey recommended a test to check for Down’s Syndrome, that she told him she did not want it done, and that Dr. Clottey seemed agitated about this. She could not recall which visit this was, or indeed how many visits she had with Dr. Clottey after the physical examination.
[256] In cross-examination, she again acknowledged that she went to see Dr. Clottey to confirm her pregnancy and to address her morning sickness. She was clear that in any of the appointments when she went back, she was determined not to have her clothes off, and had made up her mind that she would not have a physical examination with him or any other doctor. Her stated reason for this was that the breast and vaginal examinations that Dr. Clottey had performed had bothered her.
[257] As a result of this plan, she initially testified that she was certain she had not had a breast or vaginal examination again since her 2013 physical with Dr. Clottey, except for just before giving birth to her fourth child. She said she did not go in for another physical with Dr. Clottey. When pressed in cross-examination, she then modified this to be certain that she did not go for another breast exam, and did not recall a vaginal exam, but was certain she did not want Dr. Clottey or any other doctor to perform one.
[258] At this point, DM was taken to her chart, and specifically the “antenatal record” numbered 1 and 2, which showed three pre-natal appointments on October 4, October 10 and November 8, 2013. It was put to DM that Dr. Clottey, in fact, performed a physical examination, including a vaginal examination (Pap test and bimanual exam), and an assessment of the size of her uterus on the October 10, 2013 visit. DM initially said that she did not recall this, thought that uterine size could be done using an ultrasound, and she did not recall Dr. Clottey taking any vaginal swabs.
[259] DM was shown the portions of the antenatal record showing that the cervix, vagina, uterus and adnexae where marked as “normal.” When confronted with Dr. Clottey’s anticipated evidence that he did a complete prenatal physical examination, including a breast and vaginal examination, DM responded that she did not recall or remember this happening, and then, that she could not recall him touching the places that “triggered” her.
[260] DM disagreed that this examination was inconsistent with her evidence that she would not let Dr. Clottey do any kind of physical examination on her again. She also disagreed that, in light of this, she could have been remembering events differently in hindsight, especially now knowing that Dr. Clottey had been criminally charged.
Reporting and Follow-Up
[261] DM testified that she talked to her husband when she got home from the physical with Dr. Clottey and told him some, but not all, of the details of what happened. She said that she did not think about whether to talk to the College of Physicians and Surgeons, the police or anybody else about what happened and did not know what she was supposed to do. She thought that because Dr. Clottey was a doctor, she did not think she would be believed. Her evidence was that she put it at the back of her mind, but did not think about changing doctors. She made a plan instead to not have a physical examination with him and only go see him if she had to.
[262] DM testified that she later found out that Dr. Clottey was charged criminally in early 2017 when her husband saw a television report. She said that all her emotions came back, she experienced shock and relief, and she “started to remember what happened to her.” Her shock was that she could not believe Dr. Clottey had “done it to other people”.
[263] DM then described contacting the police and giving a statement to Detective Clayton on February 12, 2017. She felt like she needed to say something once she heard the news. Her evidence was that she waited a week or two after hearing the news report because she was processing what had happened and eventually decided it was the right thing to do.
[264] It was suggested to DM that she was far more upset and anxious about the May 2013 physical with Dr. Clottey now than she was when it occurred, but she did not agree. That said, she agreed that she was now anxious to the point where she felt she would be “re-traumatized” if she needed to be in the same room as Dr. Clottey, it would be upsetting to look at him, and indeed she testified via CCTV for that reason.
[265] She also agreed that she went back to see Dr. Clottey on multiple occasions after the physical in May 2013 and that she had no problem seeing and talking to him at those visits. She agreed that in these appointments, she acted like nothing had happened.
[266] She disagreed that her anxiety and upset had increased over time on the basis that, in 2013, she was in shock, was trying to understand and comprehend what happened to her, and ended up deciding that she did not want to think about it and put it in the back of her mind. She also disagreed that learning that Dr. Clottey had been charged with sexual assault caused her to become upset and anxious, although she acknowledged that what she felt “became real” at that point.
[267] What she remembered about the news report was that Dr. Clottey was charged with sexual assault involving women, and that certain parts of her memory involving his touching of her nipples that she had “pushed behind her head and didn’t want to think about” all came back to her, and she was very emotional.
3.6 Evidence of TV
[268] TV is 34 years old. She is married and has a two-year-old daughter. She currently works in project management in the health care field.
Initial Meeting
[269] TV became Dr. Clottey’s patient in July 2015. Her evidence was that herself, her husband and her brother-in-law were all looking to consolidate doctors, and they attended Dr. Clottey’s office for a “meet and greet” appointment on July 21, 2015. They had initially planned to go to someone else in Dr. Clottey’s office, but he happened to be available.
[270] TV’s evidence was that she had not had a male family doctor before as an adult, but owing to her history of endometriosis and fertility treatments, she had male doctors as fertility specialists who would do gynecological procedures and exams on her. Incidentally, TV also testified that she was pregnant at the time of the “meet and greet” and would have told Dr. Clottey about her history of endometriosis and that she was under the care of midwives for her pregnancy.
[271] TV testified that the “meet and greet” appointment went very well, as they were able to ask Dr. Clottey about his practice. She described Dr. Clottey as charismatic and he seemed knowledgeable. She also said that her husband and brother-in-law, who was a medical school student who had completed some clinical work at that time, had agreed with that assessment.
[272] TV recalled advising Dr. Clottey that her and her family would discuss whether to begin with him as their family doctor, and that they picked up consent forms at the front desk in case they decided to become his patient. She did eventually formally enroll as his patient.
Subsequent Appointment
[273] TV described next coming to see Dr. Clottey to get a prescription for a breast pump, as her insurance required her to have a physician (and not a midwife) make this prescription. This occurred on September 14, 2015. She again described Dr. Clottey as charismatic and kind of joking with her at this appointment, and she received her prescription.
[274] In her evidence in-Chief, TV then discussed returning for a physical examination on December 12, 2015. She thought she also had an appointment for her daughter when she was 3 months old, though her daughter was born on October 14, 2015. She was sure she brought her daughter in for a check-up at one point.
[275] In cross-examination, TV was taken to her medical chart which showed that she, in fact, had two separate visits with Dr. Clottey in December 2015, and that her physical examination occurred not on December 12, but on December 29, 2015. She agreed that the chart did show two visits, and that the December 12 visit was a post-natal visit that included a discussion about some issues with her health and how she was doing.
[276] She also agreed that she discussed with Dr. Clottey that she had an episiotomy, which had healed by that time, and that she discussed that she had some pain during sex with her husband. She believed that this latter discussion did not occur until during her physical examination and, specifically, the vaginal examination. She did not recall discussing it with Dr. Clottey before that.
Physical Examination
[277] TV testified that when she attended for her physical examination, which she later admitted was December 29 and not December 12, 2015, her expectation was that a gynecological examination would not be included, as she had post-partum follow-up with her midwives and had a Pap test earlier that year as part of her fertility treatments. She thought she would be getting a usual “head-to-toe” examination. She said when she attended that day, her husband and daughter waited in the car.
[278] She recalled being called into a room by a nurse and then taken into another small room to have her height and weight taken. She was returned to the exam room, given a gown, told to change and wait for Dr. Clottey. TV did so, although she believes she left her socks on.
[279] TV recalled Dr. Clottey greeting her and asking her how everything was going. The nurse had left the room in the interim. She recalled telling Dr. Clottey that she had been in midwife care, that she had an episiotomy that had healed, that she had a Pap test earlier that year and that she had been seeing a breastfeeding specialist physician since she had a yeast infection in her breasts and had been taking the medication Fluconazole.
[280] She recalled that Dr. Clottey did not perform a Pap test (on December 12 or December 29, 2015). She also brought up that she had a vaccination after she delivered her daughter in hospital, but did not know what it was. Dr. Clottey said he could identify it through blood work.
[281] TV recalled that Dr. Clottey did not like that she was on Fluconazole and that she should try to get off it as soon as she could. TV testified that the specialist she had been seeing arrived at this treatment after going through lots of issues, but she did not tell this to Dr. Clottey She could not recall further discussion about this. She also acknowledged that other small things could have been discussed.
Breast Examination
[282] TV’s evidence in-Chief was that Dr. Clottey proceeded to examine the yeast infection on her breasts that she described at the beginning of the examination.
[283] In cross-examination, after describing her breast exam, it was put to TV that she underwent a separate physical examination on December 29, 2015. She agreed this was possible and, as reflected in her chart, her evidence about the breast examination she described may refer to a separate December 12, 2015 appointment.
[284] In any event, TV recalled being seated for this examination. Dr. Clottey asked her to remove the top of her gown, which she did, and he began by examining her right breast.
[285] TV recalled Dr. Clottey pointing to her areola and asking her if that was her infection. She recalled answering “no” and being shocked because it was just how her areola looked and she expected that Dr. Clottey would have seen a lot of breasts and would know how an areola looked. She said there was no sign of infection on her areola, and that the infection was right around her nipple which was quite red.
[286] TV also testified in-Chief that she could tell Dr. Clottey was looking for the yeast infection as he did this. She described him pushing around the areola area with his fingers to get a better look at what she was trying to explain to him, and she said she would expect a doctor to do that. She also acknowledged that the infection was not easy to detect, which necessitated her going to a breastfeeding specialist. She was advised by that specialist that issues surrounding nursing were not regularly part of a family doctor’s education. She also agreed that the only signs of the infection were redness at the nipple and a small crease between her nipple and breast. She agreed the infection was not obvious. She also agreed that she could not blame Dr. Clottey for not recognizing the infection immediately.
[287] While she later clarified she thought he had been looking near the edge of her areola, she agreed that Dr. Clottey was looking at the whole area (i.e. her areola and nipple) as part of his examination. She also said that she otherwise had absolutely no concerns about that part of the examination.
[288] Notably, TV also acknowledged in cross-examination that she also had been diagnosed with Raynaud’s Disease of the nipple, an issue with blanching caused by a problem with her blood vessels. She thought this had resolved by the time she saw Dr. Clottey, but acknowledged that this was also a difficult and complicated diagnosis.
[289] Finally, TV described Dr. Clottey proceeding with a “regular” breast examination that she had no concerns with, which she found absolutely normal and professional, and which she thought was him checking for lumps. She recalled still being seated on the exam table and that Dr. Clottey used two fingers moving in a circular motion around her breast. She could not remember all the details about direction, but she thinks he followed a pattern and got close to her armpit area. She thought he was wearing gloves and believed they may have discussed further issues with her Fluconazole.
Other Examinations
[290] TV recalled that Dr. Clottey proceeded to examine her eyes, ears, nose, mouth and throat, and checked her lungs with a stethoscope. She could not recall if he checked her blood pressure or if a nurse had done it before. She recalls Dr. Clottey then asking her to get up on the exam table, put her feet at the end and move down.
[291] She acknowledged having discussed with Dr. Clottey that she had a history of endometriosis and that she had hemorrhoids after giving birth in their initial discussion, and agreed she thought he would be checking that when he asked her to reposition.
Vaginal Examination
[292] TV testified that Dr. Clottey then did a vaginal examination, which made her a “tiny bit” uncomfortable as she expected that he would just be doing a hemorrhoid check. She could not recall using stirrups and thought her knees were bent and her feet flat on the table with Dr. Clottey standing up. He then asked her to move her legs apart and he sat down on a stool. She recalled wearing a gown, but did not think she had a sheet over her as well.
[293] TV also thought he might be looking at her episiotomy, which she had also discussed with him. At that time, she thought maybe that was all okay. Indeed, she recalled him starting this exam by moving her labia and looking at the episiotomy, though she did not recall him talking about what he was doing, which also made her a little bit uncomfortable. She did not recall him using lubricant or saying that it might be cold. On cross-examination, she acknowledged he may have said this and she had just forgotten.
[294] She did, however, recall some discussion with Dr. Clottey about pain during intercourse with her husband. She thought that this discussion happened as Dr. Clottey was going to do the vaginal examination and not at the beginning of the examination. At this point is when she described Dr. Clottey inserting two fingers into her vagina, pushing around, and applying a little bit of pressure. She did not think this was abnormal and understood him to be looking for where the pain was coming from. She described this as his index and middle finger together, with his other two fingers curled into his palm. She could not recall whether she was covered with a drape/sheet, or whether Dr. Clottey used lubricant/gel.
[295] He was asking if what he was doing was hurting. She testified that at one point, he removed his fingers, held them up and said, “See, there’s no pain”, then re-introduced his fingers, probed a little deeper and asked if it hurt, estimating that he went past the lowest knuckle on the middle of the finger, and then again removing them and telling her things should be fine. She agreed that he was trying to reproduce, trigger or identify the pain she had complained of. She said she took him saying “it shouldn’t be painful” to mean that intercourse should not be painful if his examination was not painful.
[296] TV testified that what made her uncomfortable or what did not “feel right” about this part of the exam was just the length of time he took to perform it - both times that he introduced his fingers to examine. She thought it was unnecessarily long and not like the “get in, get out” that examiners usually will do. She acknowledged on cross-examination that the exam may have taken 30 seconds each time his fingers were inside of her, but aside from this length of time, everything was okay about the examination. She agreed that Dr. Clottey looked like he was being thoughtful or trying to figure out what the problem was and she did not find it to be sexually violating. She also agreed that at the time, with respect to this part of the examination, she was thinking that doctors may just do things differently.
[297] Notably, she also acknowledged that the previous gynecological examinations she had by other doctors were not done for the purpose of examining a complaint of pain with intercourse, even if she had mentioned this before.
Rectal Examination & Hemorrhoids
[298] TV testified that Dr. Clottey then went on to do a rectal examination to check for hemorrhoids. She did not think that he initiated a discussion about this before proceeding to do it, but she did say that she thought he would be checking there when he first asked her to move to the end of the exam table because of her complaint of hemorrhoids. She described him having his hand reached across her vagina, having one finger in her anus, and his thumb resting on her clitoris, at the same time.
[299] TV said she was not able to see how Dr. Clottey’s hand was positioned. She agreed his thumb was not rubbing on her clitoris.
[300] In terms of the actual examination, she did recall that Dr. Clottey’s finger was, in fact, moving around to feel her anus for hemorrhoids. She also recalled Dr. Clottey saying something like “yes, you have hemorrhoids” during this part of the examination.
[301] In cross-examination, she acknowledged that the length of the hemorrhoid check was what she expected, maybe 10 to 15 seconds, and that it did not go on for a long time.
[302] TV’s evidence was that all she could focus on was Dr. Clottey’s thumb on her clitoris during this examination and that her mind was racing. She recalled that at this point of the examination, her thoughts shifted from “maybe this is his way of doing things” to “no, this is wrong” and that she and her daughter could no longer attend Dr. Clottey’s office. She did not think there was any reason for his hand and thumb to be positioned how they were.
[303] She did, however, testify both in-Chief and on cross-examination that Dr. Clottey’s thumb on her clitoris would move when his hand moved to do the anal examination of her hemorrhoids, and indeed that his thumb was moving along with how his fingers were moving in her anal canal. In-Chief she testified that his finger may have been rotating almost 180 degrees. She agreed that what she felt to be his thumb moving could have been caused by how his fingers were moving. She agreed he was not keeping his thumb still on her clitoris, nor was he rubbing it.
[304] TV did not say anything to Dr. Clottey as this was going on. She thought he was a professional, well reviewed and well educated, and thought that, due to his Hippocratic Oath, he would not have been doing what she thought he was; it was an accident. She described being “50/50” in thinking about what was happening to her, and that her mind was racing trying to figure out what was happening, so she did not say anything.
[305] She also did not know if she had any physical reaction. She was trying to figure out if it was an accident or if it was “what was really going on.”
[306] She later said in re-examination that while no words were coming out of her mouth, her “gut” was telling her it was wrong and she was rationalizing or trying to make excuses in her head for what was happening.
[307] TV also agreed in cross-examination that she previously questioned whether what Dr. Clottey was doing could have been accidental in terms of the contact with her clitoris, and she had made that statement to the police. She explained that she was trying to rationalize his actions in her head and that it was through subsequent conversations with others when she learned that a doctor’s thumb should not be on the clitoris; an “absolute no,” in her words. She also acknowledged going back and forth in her head a lot about this issue, and that she was “half and half” in her mind about what had happened, whether Dr. Clottey had acted deliberately, or whether it was an accident.
End of Examination
[308] TV recalled that Dr. Clottey ended the examination by confirming that she had hemorrhoids and discussed possibly giving her a prescription. She sat up, whereupon he proceeded to the computer to prepare the prescription and a requisition for blood work, asking her to make a follow-up appointment for the results. She did not recall any other discussion about the examination that Dr. Clottey had performed. She proceeded to get dressed, but could not remember if she was instructed to do so.
[309] TV proceeded to make a follow-up appointment before leaving the front desk and going to her car.
Reporting and Follow-Up
[310] TV described explaining to her husband what happened in her appointment with Dr. Clottey when she got back to her car after her appointment. She had made up her mind to find a new doctor for herself and her daughter despite not being sure if Dr. Clottey had acted accidentally. She also alluded to her experience with her brother-in-law and her breast feeding specialist.
[311] TV did, in fact, return to Dr. Clottey’s office on January 12, 2016 and expected to meet with him to find out her blood work results, which she agreed she would not have done if she did not have doubts about what Dr. Clottey had done. Because she needed to wait so long, and her daughter was in the car, she left without seeing Dr. Clottey and informed the front desk that she no longer wanted to be his patient, which she described as the primary goal of her attendance that day.
[312] She also agreed that it ultimately took for a news report about Dr. Clottey to come out, which she read in late 2016, for her to know that what Dr. Clottey had done was not an accident, and that “what she had experienced happened.” She said the news article “hit her like a ton of bricks”.
[313] She remembered thinking “maybe this wasn’t so innocent after all.” She felt that once other people complained of sexual assault, that what she had experienced had actually happened. She said she now felt that Dr. Clottey had done this deliberately, after having struggled with whether it was, in fact, accidental, and that this view was confirmed after reading a news report in the paper. She agreed that she thought if other women had thought the same thing about Dr. Clottey’s examinations, then he must have been acting deliberately.
[314] TV stated that she did not initially complain to the College of Physicians and Surgeons because, as a result of her extensive education and training in health, including health law courses, she thought it would be really hard to prove anything and she would go through everything with the College to get nothing at the end of the day.
[315] She also explained not reporting initially to the police because she continued to question everything in her head, including that Dr. Clottey had extensive training, a career and a family, and she felt she could not report him and put all of that on the line when she still had doubts and did not know “confidently” what he had done.
[316] She agreed that she did eventually speak to Detective Clayton on November 25, 2016 after reading the news article. She described being alerted to the news by a co-worker of her husband who heard it in the news. Again, she described that the article made her feel like it was not in her head and it “validated” everything she felt. Therefore, she felt like she needed to contact Detective Clayton in part so that whatever woman had complained about Dr. Clottey would know for sure that something had happened to her.
3.7 Evidence of Dr. Clottey
Dr. Clottey’s Training and Background
[317] Dr. Clottey pursued his initial schooling in Ghana, and attended medical school in Ghana from 1979 to 1986 where he obtained his medical degree. He then went on to do a required one-year internship at a teaching hospital focusing on obstetrics and gynecology, and pediatrics. Following completion of his internship, he went to practice in a rural Catholic mission hospital in eastern Ghana from 1987 to 1990. He was one of four physicians who worked at that hospital: two specialists (a general surgeon and an obstetrician/gynecologist) and two generalists (including himself).
[318] Dr. Clottey described the Catholic mission hospital as being very busy and, as a result, he would see and treat any kind of medical issues. During emergency call shifts, he would also do a variety of emergency procedures and interventions, including obstetrical and gynecological emergencies. He testified that after a period of training, he would conduct a number of gynecological and surgical procedures on his own, including caesarean sections and ruptured ectopic pregnancies.
[319] Because he was in a very busy rural hospital that was resource poor, Dr. Clottey would have to rely heavily on his clinical skills to conduct investigations and diagnoses. While he had access to a small lab and, at one point, an x-ray machine, he had no ultrasound or CT scan. As a result, he noted the need to get a very good history and conduct thorough physical examinations to ensure that he did not miss anything. He had to gather thorough clinical information in order to make diagnoses and recommend next steps. To Dr. Clottey, this emphasized the importance of relying on clinical acumen.
[320] Dr. Clottey described that he also worked as a district Medical Officer of Health while in Ghana, which cultivated an interest in public health. He was sponsored by the mission hospital and Ministry of Health in Ghana to attend Harvard University where he obtained a Master’s Degree in Public Health in 1991. Though he returned briefly to Ghana as part of the conditions of that sponsorship, he returned to the United States with the Ministry’s permission. His wife had lost their first child in Ghana and he felt that he could obtain better medical treatment for her in the United States.
[321] Dr. Clottey worked briefly for international public health organizations in the United States before getting recruited to be the Medical Officer of Health in North Battleford, Saskatchewan and later Saskatoon. He held this position until 1999, when he moved to a job with Health Canada in part because there were more professional opportunities for his wife in Ottawa. He was with Health Canada (later the Public Health Agency) for 8 years, and directed divisions focused on diabetes, scientific evidence and the World Health Organization.
[322] During his employment in the public health field, Dr. Clottey was not engaged in clinical practice. He decided he wanted to return to clinical practice and, in 2007, there were openings for international medical graduates in residency programs. Dr. Clottey was accepted into a residency in the University of Toronto’s Community Medicine Program, (which became the Public Health and Preventive Medicine program). This was a five-year program. The first two years consisted of a family practice residency which Dr. Clottey completed at St. Michael’s Hospital in Toronto. He described that this residency consisted of rotations through various specialties, including surgery, internal medicine, obstetrics and gynecology, and geriatrics.
[323] After two years in this residency, he was able to become certified with the Canadian College of Family Physicians which allowed him to work independently as a family physician while he continued to complete his fellowship in Public Health and Preventive Medicine, which he did in 2012.
[324] Dr. Clottey described being allowed to practice pursuant to an “under-serviced areas program” that the Ontario Ministry of Health had in place for internationally-trained physicians, which at the time, included Oakville.
[325] He worked in the evenings at walk-in clinics until he ended up meeting Jody Mangiardi through a colleague. He then began working at Bristol Family Physicians part time in late 2010 or 2011 mostly in the evenings as well.
[326] Dr. Clottey noted that during his residency at St. Michael’s Hospital he would have been observed conducting physical examinations, including pelvic examinations, by supervisors or preceptors. He was never taught or trained specifically on his methods for conducting bimanual examinations, and he was never instructed about the placement of his thumb while he performed these examinations. He was also never instructed that he should take specific care to be aware of where his thumb was and deliberately take efforts to avoid touching the clitoris.[^4]
Dr. Clottey’s Clinical Practice
[327] Once Dr. Clottey started his clinical practice at Bristol Family Physicians (“Bristol” or the “Clinic”), he worked in a Family Health Group, seeing both rostered and walk-in patients. He moved from part-time to full-time at some point in 2011, although he was able to choose his own hours.[^5]
[328] He described that he started by using paper charts, switching to an electronic medical records (EMR) system when the Clinic switched over in 2014. He explained that patients’ paper charts would be on the door of an exam room when he came in, and he would record information in the chart as his appointment went on. At times, though, depending on how busy he was, he may finish recording some of the information later on. He said once the Clinic switched to EMR, his practice was essentially the same only that he would enter the information into a computer in the exam room.[^6]
[329] He candidly acknowledged that, especially earlier on in his practice, he would only chart negatives (i.e. normal findings) if they were significant, a practice he has since changed.[^7] Notably, while Dr. Rudner characterized this as a “recordkeeping omission,” he also felt it to be acceptable given that it was common practice among physicians not to document significant negatives.[^8]
[330] At Bristol, Dr. Clottey described the practice for appointments as having a nurse or receptionist bring patients into one of four exam rooms, asking patients what they were there for, take some basic measurements like height, weight and vital signs, and, for a physical exam, providing them with a gown to change into before the physician entered.[^9]
[331] Dr. Clottey described that for new patients, he would generally have patients come in for two visits. At the first visit he would do a “meet and greet.” It was important to Dr. Clottey to understand what his patient’s concerns are, but he would also tell them about his general philosophy, that he tends to be a thorough physician, and would indicate to the patient that he recommends they undergo a complete physical assessment so that he had a comprehensive picture of their health. He explained that this would involve the patient coming in for a head-to-toe physical, which for female patients would include a breast and pelvic exam with a Pap test, as well as some investigations. He would then recommend that they come in to discuss the results and come up with a plan.[^10]
[332] Dr. Clottey would not tell patients that this examination was mandatory in order to become his patient, only that it was recommended, and that most patients did follow this recommendation.[^11] He would not deny care, or not take someone on as a patient, if a patient declined to undergo a comprehensive physical exam with him.
[333] He also acknowledged that during the “meet and greet,” female patients have in the past expressed discomfort about having a male physician. He said he would make sure the patient would understood he respected their wish if they truly wanted a female physician. There were female physicians available at the Clinic. However, he would also explain that if they remained open to him being their doctor, he knew of previous patients who had both male and female doctors with good results if they still wanted to proceed with him.[^12]
[334] He also indicated that he would generally want to get as much information about a patient’s prior health as he could, including requesting charts from a patient’s previous physician, though often patients would not follow through on this, the previous physician would not send or provide the chart or it would simply not be available by the time the physical exam was conducted.
[335] He acknowledged that he would not necessarily get into that at the “meet and greet,” but it would come up as part of his more detailed assessment as part of the physical.[^13]
[336] As part of that discussion, Dr. Clottey said he would take efforts to discern from his female patients when they last had a Pap test. Although Paps were part of his routine screening physical exam, he would not do one if the patient did not need one or was not in the age group for a Pap test.[^14]
[337] Dr. Clottey explained that the Clinic did not have a specific policy about chaperones, aside from there being a sign up in the examination rooms suggesting to patients that they could request one. He candidly could not recall when they were put up, and did not simply adopt the evidence he heard from Jody Mangiardi and Gladys Mabborang who thought they went up around 2012-2013.[^15] Aside from the sign, Dr. Clottey did not describe his routine as including a specific invitation for a chaperone. However, he would have taken from the fact that he explains to female patients at the “meet and greet” that he would do a breast and pelvic exam, as well as his routine discussions during a physical, that they would be aware of the examinations he would do.[^16]
[338] In light of that, if a patient specifically requested a chaperone, he would ask someone to come in if they were available, unless it was impossible when the Clinic was short staffed. He later explained, both in direct and cross-examination, that if this was the case (as with the patient KR) he would explain the situation to the patient, and if the patient insisted that they wanted a chaperone, he would not proceed with the exam if one were not available.[^17]
Aspects of Dr. Clottey’s Routine Physical Examination
[339] Dr. Clottey described his procedure for a routine physical exam of a female patient at length, starting with the initial steps taken by the nurse. Patients would be instructed by the nurse to change into a blue paper gown and were also given a white paper drape. They would change into that blue gown alone. After this was done and the nurse had taken initial information from the patient, the nurse would confirm the patient is changed and then call Dr. Clottey in.[^18]
[340] Dr. Clottey would then enter the room, sit at the desk, confirm that the patient was there for a physical, and then start collecting information for the Cumulative Patient Profile (“CPP”) which is a summary of the patient’s health, family and social history, immunizations, and the like. The patient is gowned and seated usually on the exam table during this discussion.
[341] Dr. Clottey would then move on to his Preventive Care Checklist (“PCC”) form which has a number of domains to help assess the patient’s current status. Dr. Clottey would proceed to gather information from the patient about their health following the PCC format, including a history, discussion of lifestyle issues, and “functional inquiry” which addresses specific areas and systems of the body. He explained that only if a patient had an issue in a certain area would he write down what that issue was.[^19]
[342] Dr. Clottey explained that this “discussion” part of the exam could be quite conversational. Depending on the issues to explore and information he had to gather from a particular patient, he estimated it could take anywhere from 15 to 30 minutes.[^20]
[343] Dr. Clottey explained that his normal routine, once the discussion was completed, was that he would tell his patients how he was going to perform it, i.e. as a “head to toe” exam, starting while the patient was sitting and then while lying down for parts of the exam.
[344] He would ensure he got an indication of concurrence or consent from the patient before proceeding, then would start with the taking of blood pressure, examining the head, eyes, ears, nose and throat, and do a visual inspection of the legs, while the patient was seated.[^21]
[345] He would then listen to the heart and lungs under the paper gown, and will get the patient’s assistance to adjust the gown to allow him to access to listen to the chest area because the sound of the paper gown will otherwise interfere. Once he has done that, the patient will put the gown back in place.
[346] Dr. Clottey then tells his patient that he will do another set of examinations with them lying down, consisting of the breast, abdominal and pelvic exam, in that order. He would invariably inform the patient that these exams will be conducted at each stage of his tests.[^22]
Dr. Clottey’s Method and Routine for Breast Examinations
[347] Dr. Clottey begins the breast exam by telling his patient a few general comments about the exam, including that he generally goes around the breast from the outside of the breast to the inside arriving at the nipple area. If appropriate for the patient, he will also mention mammograms. He will get consent from his patient to proceed, and then gets their cooperation to remove one arm from the gown to expose one breast. He generally starts examining the patient’s right breast, which is closer to him. He also explained patients will sometimes just expose both breasts at this time, but that it is the patient’s choice to do so.[^23]
[348] Dr. Clottey then begins his examination by inspecting the breast. He then proceeds to palpation and will rub his hands together to warm them a little bit first. He asks his patients to place their arm (beginning with the right) behind their head so he can see the axilla area, and palpates the tail of the breast and axilla. He will then proceed to palpate in a spiral fashion from the periphery of the breasts, in a circular motion towards the centre, using the palmar surface of his middle three fingers on the right hand, using gentle pressure but at times pressing deeper depending on the breast tissue. He also said for large pendulous breasts, he may use a second (left) hand to help support the breast to get a better palpation with his right hand. He uses this maneuvre to feel for masses.
[349] Dr. Clottey also described a set of routine questions he will ask patients in sequence as he is palpating the breast. These questions are: (1) Remind me if you have a family history of breast cancer, (2) Have you seen or noticed any masses in your breasts? and (3) Have you seen or do you have any discharge coming from your nipples? Dr. Clottey asks these questions to help situate and give context to his exam. Generally, he is quite close to the areola when he is finished asking them.[^24]
[350] As Dr. Clottey approaches the centre of the breast, he uses a method to palpate the tissue underneath the nipple, using his index finger and thumb. He will separate those fingers by 1 to 1.5 inches and place then at the edge of the areola, applying gentle pressure downwards while also bringing the fingers together, to feel for tissue underneath the nipple.[^25] The pressure can vary depending on the anatomy and nodularity of the breast. In addition, variations in consistency of breast tissue and patient sensitivity can also affect the degree of pressure used or perceived by the patient. In the latter case, the same degree of pressure can feel different for a patient who has physiological (e.g. menstrual cycle) or subjective reasons for feeling more sensitive.[^26]
[351] His purpose for doing the examination this way is that it allows both to feel for masses underneath the nipple area, but also for him to check for discharge, because his fingers will also be over the ducts that would express discharge on palpation. He would not touch the nipple itself in this maneuvre.[^27]
[352] Dr. Clottey will initially do this maneuvre on the 12-6 o’clock axis, then lift his hand to remove his fingers, rotates his hand 90 degrees, then places the same fingers at the 3-9 o’clock axis and does the same maneuvre. Dr. Clottey indicated he would not “dwell” in that area because it is sensitive and he would also try to make the movements fluid.[^28]
[353] He described this as a useful method because concentric palpation may not identify tissues directly underneath the nipple, which is an area known to have a high incidence of pathology. Because discharge can also be expressed in that area, he “combines the technique” to investigate both issues at once.[^29]
[354] While he said a check for discharge can be especially important if a patient has conditions or lesions that can cause discharge or galactorrhea, he also includes it as part of his routine screening breast exam. In accordance with his training in Ghana, he believes that it is important to screen for discharge even in the absence of a specific complaint.[^30]
[355] Dr. Clottey described being taught to examine the breast this way, relying on his training, and that he used this approach through his residency training at St. Michael’s Hospital. He also indicated a reliance on the 8th edition of the Bates textbook as support for his technique.[^31]
[356] Dr. Clottey was clear that he does not put his fingers directly on the nipple when doing this maneuvre, and he does not twist, pull, tug or yank the nipple.[^32]
[357] This represents the conclusion of Dr. Clottey’s breast exam, which he invariably does before the abdominal and internal exams. He tells the patient he is done, has them re-gown, and then inspects and palpates the abdomen, focusing on the internal organs like the spleen and the liver. He then proceeds to do a pelvic exam.
Dr. Clottey’s Method and Routine for Pelvic Examinations
[358] Dr. Clottey’s pelvic examination involves inspection, a speculum examination and a bimanual examination. When he has completed his abdominal exam, he will inform the patient that they are at the stage of the appointment for a pelvic exam, remind them of the components of the pelvic exam, including that the speculum component will involve the taking of three specimens (swabs). At this time, he expects the patient will communicate any concern they have, or he will try to elicit it. He then will invite the patient to position herself with her buttocks towards the end of the table, where he will be seated.[^33]
[359] Though Dr. Clottey has stirrups, he does not always use them, and for most patients he will ask them to place their feet together and splay their knees apart, helping them where necessary. He will don gloves on both of his hands and position himself on a stool at the foot of the exam table.
[360] Dr. Clottey has shorter fingers, such that he uses a small glove size (a 6 or 6.5) to fit his fingers even if it is tight on the rest of his hand. The speculum, swabs and other materials are generally set up on a tray in front of him.[^34]
[361] Once he is positioned, Dr. Clottey will use a lamp and adjust it so that it points at the introitus (the entrance to the vagina) of the patient. He adjusts the drape over the patient’s knee and will usually do an examination of the external genitalia to visualize the perineum and vulvar area. He may use his gloved finger to part the labia and move some structures to assist in visualization. Occasionally he may palpate the Bartholin’s glands or other glands, or do a more detailed inspection and palpation if he thought he saw a lesion. This part of the exam is usually a brief inspection with some palpation to make sure he is appreciating everything.[^35]
[362] Dr. Clottey then asks the patient if it is all right to proceed and will introduce the speculum. He has only ever used plastic specula at the Clinic. He demonstrated one in court and it was entered as Exhibit 17.
[363] In order to pass the speculum, he will ensure the blades are closed, inform the patient he is about to use it and that she may feel it. Once she is aware, he will use the thumb and index finger of his left hand to open the labia, then will put the speculum in at an angle to minimize discomfort and adjust it into place in order to see the patient’s cervix between the blades, repositioning the light if necessary.
[364] Once he has secured the cervix, which at times requires additional maneuvring, he takes three swabs: one for gonorrhea and chlamydia, one for vaginal secretions, and then the Pap test using a cytobrush. He has taken these three swabs consistently since he was in Ghana, as well as at St. Michael’s Hospital. Once finished with the swabs, he informs the patient that he is done and then removes the speculum.[^36]
[365] Dr. Clottey then advises his patients he is going to do a bimanual exam and that it involves him putting two fingers inside the vagina to feel for masses, and will often make a bit of a joke when he applies lubricant (gel) to his fingers to the effect that it is a little cold and they should not “hit the roof.” He feels that this joke may help reassure the patient or put them at ease.[^37] He will usually position himself at the patient’s right side, with her head to his left. Using the index finger and thumb of his left hand, he will open the labia, and with the lubricated gloved right hand, he will first insert the middle finger into the introitus, pressing downwards to make some room, then introduce the index finger of the same hand into the vagina.[^38]
[366] At this time, and throughout the bimanual exam, Dr. Clottey has his thumb abducted (pointing up when his fingers are first inserted into the vagina) with his ring and pinky fingers tucked or flexed into his palm.[^39]
[367] Dr. Clottey will first try to identify the cervix to orient himself, then on the patient’s right side he will try to feel for the adnexa (where the ovaries are). His left hand is placed on the abdomen of the patient on the same side to palpate and feel the structures between his hand. He then slowly runs the palmar surface of his examining fingers along the right vaginal wall as part of the screening pelvic exam to feel for any masses or lesions, which requires him to move his hand out of the vagina slightly.[^40]
[368] Dr. Clottey then rotates his hand outwards, away from himself, so that his thumb crosses the midline, to palpate the left adnexa and the deep structures in that area. Then, in order to feel the left vaginal wall with the palmar surface of his fingers to allow for a better appreciation, he rotates back inwards (towards himself) about 270 degrees around, crossing the midline, so that his thumb is pointing downwards. He then runs his fingers along the left vaginal wall to palpate.[^41]
[369] Dr. Clottey then rotates his hand 90 degrees so that his palm is facing the floor and the palmar surface of his examining fingers face down. He does this to examine the posterior vaginal wall, feeling underneath the cervix.[^42] After that, he rotates his hand and wrist 180 degrees, again so that his thumb crosses the anterior midline and his palm faces upwards, to examine the anterior vaginal wall. He may do additional palpation and reach deeply to assess the bladder area. His non-examining left hand will still be on the patient’s lower abdomen, above the pubic bone.[^43]
[370] The last thing Dr. Clottey will examine is the uterus. He will bring his fingers out of the vagina a little bit, then insert them deeper and posterior to the cervix with the goal of lifting the uterus up towards his left palpating hand, which applies additional pressure and allows him to appreciate the size and surface of the uterus and determine if there are any nodules.[^44] He is then finished the exam.
[371] He expects that he may take longer than other family physicians to do this exam, as not all of them may examine every structure; he thought because of his training and reliance on clinical evaluation, he may be more thorough and feel for more things.[^45]
[372] Dr. Clottey estimated that the entire pelvic examination, from when he first starts readying his equipment to when he concludes the bimanual examination, takes about 6 minutes. The actual speculum and bimanual exam likely take about half that time, or 3 minutes. The speculum exam and taking of swabs takes up about 2 minutes, and the bimanual may take about a minute.[^46]
[373] Dr. Clottey stressed that this was a general guide, but the timing could vary from patient to patient depending on a number of factors. It could take longer, for example, if they were tense and needed to be asked to relax; if they were overweight or the structure of their internal organs was such that it was harder to feel those structures; or if he thought he detected pathology, which he might want to get a better appreciation for.[^47]
[374] Dr. Clottey explained that throughout this examination he is not thinking consciously about his thumb because he is more focused on trying to ensure he is finding the right structures and trying to find and assess any pathology that may be present. Though he is aware that the clitoris is a sensitive anterior structure, he was never specifically instructed, either in Ghana or in his residency, to avoid the anterior structures. He has continued to examine the same way consistently since that time period without it being brought to his attention.[^48]
[375] Indeed, he was never aware his bimanual examination was causing clitoral touching until some discomfort was brought to his attention by RS. It was never his intention to cause any clitoral touching. He knows it is not something that should be done if one is aware of it and can avoid it. He testified that if he was aware of it, he would have apologized or changed whatever he could to avoid it.
[376] He acknowledged that, having heard the statements and evidence of these patients, it is possible that he could have unintentionally touched their clitorises as he was moving his hand during the bimanual examination. He expressed that he felt badly about it because it is not his intention, as a doctor, to cause his patients upset.[^49]
[377] He was adamant that he never had any sexual intention during a breast or vaginal exam, and never sought out to sexually gratify himself during those examinations.[^50]
Sequence of Criminal Charges
[378] Dr. Clottey was first arrested in August 2016, in relation to the allegations of two complainants, RS and KR. At this time, the last examination complained of chronologically was RS’s examination on June 20, 2016.
[379] Dr. Clottey was arrested at the Clinic when he arrived to work and he spent the night in jail. He was released on bail the next day. He was arrested again in November, 2016 in relation to GO’s complaint. Then he was arrested three more times, in December 2016, January 2017, and February or March, 2017, in relation to the complaints of TV, IF and DM respectively. On the latter occasions, he surrendered himself at the Halton Regional Police Station.[^51]
[380] On each of his 5 arrests, Dr. Clottey was interrogated. He was also fingerprinted 3 times in total.
[381] During the course of his arrests and after receiving disclosure, he became aware of some complainants having previously spoken to the College of Physicians and Surgeons. Specifically, GO made a complaint to the College in 2013, and in 2014 the College was contacted about an incident with KR in 2012, however, he did not hear anything about these concerns or complaints until his arrests in 2016.
[382] Dr. Clottey noted that since those complaints were first made, he had been identified by the College as being approved as an assessor of other physicians and his name was published in the College’s publication called Dialogue. He had no idea there were any concerns or issues expressed with the College during this time.[^52]
3.8 Expert Evidence
[383] The evidence of the Crown and defence experts on general matters of medical practice and the conduct of physical examinations is presented in this section. Their opinions with respect to the individual complainants are discussed in the Analysis section below.
Dr. Kimberly Wintemute
Background and Qualifications
[384] Dr. Wintemute was an expert called by the Crown to give opinion evidence in the practice of family medicine. She is a family practitioner who practices in North York and has privileges at that hospital, where she does obstetrics. She was qualified to give opinion evidence in the area of family medicine, including clinical breast and gynecological examinations, and the clinical justification for those examinations.
[385] She also acts as an assessing physician for the College where complaints are made against doctors involved in her area of expertise. She will then provide an opinion to the College concerning whether the examinations were necessary or properly done after reviewing the subject physician’s charts and records and the details of the complaint. Some of her duties require her to testify at hearings of the CPSO.[^53]
[386] Her practice consists mainly of female patients, so she performs many breast and pelvic exams on a daily basis. She has had teaching responsibilities with the University of Toronto since 2003 and has received awards of excellence for her clinical teaching.[^54] She has been involved with the Choosing Wisely Canada campaign as a primary care co-lead since February 2015. That is a national campaign that focuses on improving quality of care through education, engagement and dialogue with physicians.[^55]
Opinion
[387] Dr. Wintemute testified that it can be considered good practice to perform a complete physical on a new patient. While there has been a shift in thinking in recent years about the necessity of annual health exams (AHEs), inevitably doctors and patients do these exams more often than may really be required; some patients still want an annual health exam.[^56] In cross-examination, Dr. Wintemute acknowledged that even now it is not considered bad practice to perform health exams on patients close to annually.[^57]
[388] Regarding Pap tests, the guidelines changed in 2013 such that Pap tests are now only recommended to be done every three years, if there are no abnormalities. While OHIP had paid for annual Pap tests, it stopped doing so in 2013 and will only pay for the test to be done every three years unless there are abnormalities, in which case it will pay for more frequent Pap tests. There now may be an “uncoupling” of the AHE and the Pap test, as some patients still want an annual health exam but OHIP only pays for Pap tests to be done every three years.[^58]
[389] Dr. Wintemute also discussed some best practices around chaperone use and draping. She stated that chaperones should be offered to patients, although they are not legally required. Resource issues make it difficult for most doctors to have a chaperone routinely available for all intimate exams in female patients.[^59]
[390] Dr. Wintemute also discussed some of the differences between a family practice and a specialist practice like that of Dr. Covens. In her view, since Dr. Covens sees patients on referral, he would tend to be assessing and treating a different patient population than a family doctor. He would be seeing patients who are more likely to have, or be suspected of having, pathology/disease. A family doctor, on the other hand, often sees healthy patients and does more routine screening. Dr. Wintemute felt that Dr. Covens would not necessarily have to make the same kinds of decisions on a daily basis as would a family doctor and would not be conducting annual health exams on healthy patients.[^60]
Role of Best Practices and Standards
[391] In discussing the differences in the approaches taken by herself and the defence experts in this case, Dr. Wintemute would draw a distinction between what may be “acceptable” and what is “appropriate.” The former is more inclusive and forgiving.[^61] She acknowledged that there is a curve regarding quality of medical care, with some physicians at the far right end practicing at the highest level and striving for best practices and, at the other extreme, those who are practicing poor quality medicine. Then there is everything in between, including “average” doctors who are neither the best, nor the worst.[^62]
[392] She herself is involved in teaching residents and aspires to best practices. Her consideration of the care provided takes into account “best practices,” as well as a number of other factors.
[393] Dr. Wintemute agreed that guidelines are just one part of what informs best practices in family medicine. Guidelines are designed to improve practice and are akin to recommendations, but do not have the force of law. Regarding physician awareness of the performance of unnecessary tests, such as too-frequent Pap tests, Dr. Wintemute agreed that it can take time for new initiatives to filter down to the profession and be widely adopted.[^63]
Breast Examination
[394] Dr. Wintemute testified that while some doctors still routinely perform clinical breast exams as part of the AHE, this issue has been in a state of flux and some doctors no longer perform them. Rather, they simply order a mammogram instead. The breast exam should at least be offered to female patients.[^64] Dr. Wintemute agreed that a breast exam should always be done if a patient has a problem or symptom relating to that area or it can be done as part of a preventative health care visit or an AHE.[^65]
[395] Dr. Wintemute described a complete breast exam, noting that there were different methods for certain parts of it. A patting motion with the pads of three fingers, applying pressure in concentric circles, is a proper method of examining the breast.[^66] She agreed in cross-examination that there were varying degrees of pressure that should be used, depending on the circumstances. Larger breasts may require more pressure during palpation, and breasts can also be of different consistencies, altering the degree of pressure to be applied. She noted that firmer tissue with more nodularity may be harder to examine. Also, patient sensitivities vary.[^67]
[396] Dr. Wintemute stated that the area under the nipple and areola is the second most common area for breast cancer, so it is important to check that area for lumps.[^68] Checking for discharge is also acceptable, even if a patient has not complained about discharge.[^69]
[397] Dr. Wintemute described putting pressure downwards on the nipple/areola area to check for pathology, but agreed in cross-examination that Dr. Clottey’s described method was reasonable, and so was squeezing the actual nipple itself.[^70] She would have thought, however, that the complainants would have recognized what Dr. Clottey was doing if he had done what he describes. She could see how his described method could be interpreted as a pinch or squeeze, but had trouble seeing how it could be interpreted as a twist, pull or yank.[^71] The use of the pincer-like position of the thumb and forefinger with gentle pressure inwards and downwards at 3-9 o’clock and then at 12-6 o’clock, would be reasonable.[^72]
[398] Dr. Wintemute relied on a YouTube video that was based on the Bates text and method of clinical examination to demonstrate an acceptable approach to the clinical breast examination.[^73]
Gynecological Examination
[399] Dr. Wintemute then described a complete vaginal exam from start to finish. While she agreed that there would be some rotation of the examiner’s hand during a bimanual examination, she testified that her approach, and current teaching, was to try to avoid any contact between the examiner’s thumb and anterior structures, most notably, the clitoris.[^74] Dr. Wintemute tucks her thumb out of the way because holding the thumb cocked at 90 degrees could lead to clitoral touching.[^75] She also teaches trainees to be very careful to avoid touching the clitoris.[^76] She was not aware of what Dr. Clottey’s training had been.
[400] Dr. Wintemute acknowledged that if the examiner was not aware or conscious of the thumb position, clitoral touching could occur, but that would most likely happen when the thumb crossed the midline, and would be expected to be brief, not sustained or repetitive. Contact could also occur in a more sustained way if the examiner was reaching in deeply to palpate the internal organs such as the uterus.[^77] Dr. Wintemute testified that the thumb might touch the anterior structures if the doctor was “really reaching” or “really trying to feel something way up there,” or the examiner’s fingers were short. The doctor should communicate with the patient in that case, and say something like “I’m noticing something there. It’s a long reach and this might be uncomfortable,” for example, or might apologize.[^78] It may also be hard for the examiner to get his/her thumb out of the way while palpating something on the right vaginal side wall, and contact with the knuckles of the third and fourth fingers is also possible during parts of the exam when the wrist is rotated.[^79]
[401] Dr. Wintemute agreed that palpation of internal structures can be more difficult or take longer in an overweight woman, if pathology is detected, if a patient is menopausal, post-menopausal, or if a patient is tense.[^80]
[402] Dr. Wintemute was clear in her evidence that it was very difficult to see how there could be sustained, constant, and continual touching of the clitoris during a bimanual exam, as the hand and examiner’s fingers would be moving around at different angles.[^81] She therefore postulated the scenario of the examiner’s other hand coming down to touch the clitoris as the examining hand moved, checked and probed, in order to attempt to explain what two of the complainants (IF and GO) described.[^82]
[403] Dr. Wintemute relied on a YouTube video demonstrating how to conduct a vaginal exam.[^83] That video, which she said she thought showed a reasonable technique and “reasonable approach,”[^84] also showed an external genital exam, with the examiner’s gloved fingers separating the labia, and palpating around the clitoris, urethral meatus, and vaginal opening. A pincer-like action of the fingers was used in the video to examine the Bartholin’s glands.
[404] Dr. Wintemute testified that it was not possible to get a good sample of transformation zone cells for a Pap test without using a speculum.[^85]
[405] Dr. Wintemute agreed that she had assumed that the complainants’ description of the events was accurate, and that she did not have Dr. Clottey’s descriptions of what he did or indeed any of his evidence, when she prepared her opinion.[^86]
Dr. Allan Covens
[406] Dr. Covens was qualified as an expert in obstetrics and gynecology, and provided his opinion both on whether the examinations that Dr. Clottey performed on the six female patients in this case were clinically justified, and whether they were performed in a clinically acceptable manner.
Background and Qualifications
[407] Dr. Covens has an impressive clinical, teaching and academic practice. He received his medical degree from the University of Toronto in 1983 and his specialist qualification in obstetrics and gynecology from the University of Western Ontario in 1988. He obtained a further sub-specialization in gynecologic oncology at both the University of Toronto and McMaster University, in 1989 and 1990, and is currently a Fellow of the Royal College of Surgeons of Canada.
[408] Dr. Covens has been a full Professor in the Department of Obstetrics and Gynecology at the University of Toronto Faculty of Medicine since 2002, having previously held associate and assistant professorships, and has been chair of that department since 2016. He also directed the Gynecologic Oncology fellowship program from 2004 to 2016.[^87]
[409] Dr. Covens’ wealth of experience in gynecology, and gynecologic oncology in particular, is evident in the numerous committees, editorial boards and task forces that he has participated in throughout his career. He has also been consistently recognized by members of his profession since the beginning of his career for the quality of his research and teaching, culminating in the receipt of the Presidential Medal from Gynecologic Oncologists of Canada in 2013, essentially, a “lifetime achievement award”.
[410] Dr. Covens’ experience also demonstrates his knowledge and contribution to the development of research and guidelines for cervical cancer screening and treatment. In particular, Dr. Covens served as a co-chair for a cervical cancer task force for the National Cancer Institute (USA), and was a co-chair for human health resource planning with Cancer Care Ontario. He has also published 137 peer-reviewed manuscripts, and has presented, taught and offered clinical workshops in locations around the world.[^88]
[411] In addition, Dr. Covens is currently an active staff member in, and the head of, Gynecologic Oncology at Sunnybrook Health Sciences Centre in Toronto where he maintains a clinical practice. He has also held staff privileges at a number of other university-affiliated and community hospitals.
[412] Though Dr. Covens is not a family medicine physician, he is exceptionally well qualified to comment on the performance of, and indication for, internal examinations on female patients. In terms of his clinical practice, Dr. Covens regularly conducts gynecological examinations during the six colposcopy clinics he runs every month, which are focused on the investigation, treatment and follow-up of patients with abnormal Pap tests. He also has a weekly gynecologic oncology clinic. In these clinics, he conducts full gynecologic exams on a regular basis, and also breast exams from time to time, particularly on his cancer patients.[^89]
[413] He clarified in cross-examination, that while he sometimes is looking for specific pathology when he does bimanual exams, this is not always the case, but he has done “regular” bimanuals as well.[^90]
[414] In his colposcopy clinic, he sees patients who in many cases are referred by family physicians with abnormal Pap tests and often follows these patients as they go back and forth from their family physician. As he testified, this affords him a good understanding of the frequency with which family physicians are conducting Pap tests on their patients, as he will often get a patient’s complete or recent Pap history as part of the referral package.[^91]
Opinion
[415] Dr. Covens offered the general opinion that the examinations that Dr. Clottey conducted on the six female patients at issue in this case were conducted in a reasonable medical manner. He testified that the threshold for a family doctor to examine a patient should be low in the sense that a thorough history and physical examination will generally lead a physician to an appropriate plan for further investigation and avoid over-reliance on diagnostic imaging and investigations.[^92]
[416] He also said that it would be reasonable for a family physician to do a complete physical examination in a variety of circumstances, including when a patient is new to one’s practice or as part of an annual health exam or review.[^93] All of the full physical examinations in this case, involving both a breast and vaginal examination, met one of these criteria.
[417] On the latter issue, Dr. Covens testified that he relied both on the disclosure including the patients’ statements to the police and College, their patient charts from Dr. Clottey’s office, and information he obtained from Dr. Clottey including at one in-person meeting on April 21, 2017.[^94] He indicated that he relied on and tried to “mesh together” all of this information to come to his opinion.[^95]
Breast Examination
[418] Having relied on this information, and the evidence from testimony of the witnesses at trial that he reviewed, Dr. Covens accurately conveyed Dr. Clottey’s methods for performing a breast examination, including the use of his index finger and thumb, placed 1 to 1.5 inches apart on the distal edge of the areola, to palpate under the areola to look for both masses and discharge.[^96] He fairly acknowledged that he could not say if a patient’s areola varied substantially in size whether Dr. Clottey would move his fingers to the edge of the areola or, if the areola was quite large, put them closer to the nipple.[^97]
[419] Dr. Covens agreed both that it was important to examine in that location, and while there were various techniques to do so , including palpating directly on the areola and nipple as if it were regular breast tissue, Dr. Clottey’s method was a reasonable way to conduct a breast exam.[^98]
[420] Dr. Covens also opined that, having read the complainants’ descriptions of their breast exams with Dr. Clottey, they could very well have perceived his quick palpation at the edge of the areola between two fingers, then releasing, lifting his hand and moving 90 degrees to re-palpate between the same two fingers, as a pulling or twisting motion.[^99]
[421] On cross-examination, he said that while, in his view, it was not necessary to examine patients for nipple discharge absent any patient complaint, there was a benefit to ensuring nothing was omitted, particularly if it formed part of a physician’s routine. He did not think it was wrong to check a patient for discharge as part of a routine examination.[^100]
Gynecological Examination
[422] Dr. Covens also accurately summarized the approach Dr. Clottey takes to his internal examination, including the examination of the external genitalia, the speculum examination, in which he procured swabs and did a Pap test, and his method of conducting a bimanual examination.
[423] Dr. Covens understood that Dr. Clottey keeps his thumb abducted throughout the bimanual examination and generally described the placement or rotation of Dr. Clottey’s examining fingers of his right hand to examine the fornices and adnexae, vaginal walls, cervix and uterus as Dr. Clottey had described.[^101] Notably, he said in cross-examination that he would describe the technique as the same as what 95% of physicians who perform bimanuals would use, and it is consistent with his own technique.[^102]
[424] Notably, Dr. Covens testified that it was reasonable to check vaginal walls as part of a bimanual exam, as it can be easier to pick up abnormalities than simple visualization. He also testified that examiners can rotate their hands in a variety of ways based on preference, but the use of the palmar surface of the fingers for palpation is preferable.
[425] Finally, he noted that there could well be a need to probe or reach deep in the vaginal canal to maximize the benefit of what one can feel and appreciate, noting the limitations of the examiner’s finger size and the increased difficulty if a patient was larger or obese.[^103]
[426] To assist the Court and augment his opinion, Dr. Covens presented five photographs taken of him and a consenting patient in the operating room focusing on the placement of the examining hand and fingers during a bimanual examination.[^104] Exhibit 22E showed his right hand with his thumb cocked at a 90 degree angle to his fingers, which he said demonstrated the typical hand and finger positioning for a bimanual examination for most physicians, including himself, that he was aware of, and it was consistent with Dr. Clottey’s approach.[^105]
[427] Dr. Covens had never personally seen anybody bend or tuck their thumb out of the way when doing a bimanual exam. He felt that it would prevent the examiner from getting their fingers further into the vagina, because the flexed thumb would interfere with the examiner’s efforts to palpate inside the vagina.[^106]
[428] On a related issue, Dr. Covens was challenged in cross-examination about whether the fourth and fifth flexed fingers of the hand would, in fact, “stop” the examining hand before the examiner’s thumb could be pressed against the vulva or clitoris. Dr. Covens showed this to be false for multiple reasons. First, the fingers are not inserted directly on a horizontal plane, but somewhat downwards and inwards, so that the thumb would be angled forward (towards the patient) and on a similar vertical plane to the fourth and fifth flexed fingers. Second, the perineum and buttocks where the fourth and fifth fingers would contact are soft and flexible tissues, as opposed to the pubic bone above the vagina, which the thumb will contact and stop the hand from probing more deeply into the vagina. As a result, in fact, Dr. Covens noted that the thumb may well be the limiting factor for the examining hand when probing deeply during a bimanual examination as he described, and in those circumstances, there are multiple instances where contact between that thumb and the patient’s clitoris could occur.[^107]
[429] In describing the other photographs he took, Dr. Covens demonstrated and opined upon the circumstances in which an examiner’s hand could come into contact with the clitoris. Exhibits 22A and C showed his thumb to the right and left of the patient’s clitoris as he examined the right and left fornices, respectively. He noted that most physicians will examine the left fornices by rotating their hand as shown, outwards and away from themselves, and in doing so will cross the midline. In this scenario, unless the examiner is conscious to pull their hand out somewhat, the thumb would have some contact with the clitoris as it crosses from right to left.[^108]
[430] Dr. Covens did not think that Dr. Clottey’s thumb was likely to have stayed fixed on the clitoris throughout a bimanual examination because there would have to be movement of his hand and the thumb as he examined the areas he needed to.
[431] While he thought the contact could be a little more sustained than a brief touch if Dr. Clottey was unaware of the issue, he suspected that “constant pressure” was just a matter of patient perception. He fairly acknowledged in cross-examination that, if there was, in fact, constant or continuous contact between Dr. Clottey’s thumb and a patient’s clitoris, it would not have been appropriate.
[432] On that issue, Dr. Covens’ evidence indicated that it would not be unusual for Dr. Clottey not to have been aware of the position of his thumb. He noted that he spoke with five other gynecologic oncologists and a clinical associate he works with at Sunnybrook about how their thumb would be placed during a bimanual exam, and that none of them were consciously aware of where their thumb was, such that they had to close their eyes and do a “phantom exam” to determine it.[^109]
[433] Dr. Covens then discussed Exhibit 22B, and the close-up of that photograph at Exhibit 22D, which showed his thumb right over the patient’s clitoris. He described this as a “neutral position” where the examiner’s fingers would be in an ideal position to examine the internal midline structures, i.e. the uterus and cervix, as well as potentially the anterior and posterior vaginal walls. He opined that if one were not conscious of one’s thumb, it would likely rest in that position.[^110]
[434] This discussion led to Dr. Covens’ opinion that inadvertent contact with the clitoris could occur during the bimanual exam and, in particular, would be likely when palpating in the midline (the posterior vaginal wall, cervix, and uterus), and right and left adnexae, though it could also occur when one was rotating one’s hand.[^111]
[435] In fact, Dr. Covens suspected that “[contact with the clitoris] occurs commonly, much more than we think or acknowledge”.[^112] He suspected that, given the nature of the rotation and palpation that occurs as part of a bimanual exam, it likely happens often and patients just pass it off. Finally, he opined that contact between the examiner’s fourth and fifth flexed fingers and the clitoris could occur when Dr. Clottey rotated his hand to examine the left vaginal wall (i.e. when his thumb is pointing down or posteriorly).[^113]
[436] In light of all the circumstances discussed, Dr. Covens opined that Dr. Clottey’s description of how he performed a vaginal exam was reasonable. He also testified that he viewed Dr. Clottey’s estimate of six minutes for the entire vaginal examination (including preparation, some discussion and all components of the examination), and 2.5 to 3 minutes for the actual physical examination (speculum and bimanual), to be reasonable. He also indicated that he would not fault a physician for taking a little longer. He testified that, in his experience, there is generally a difference between what patients and physicians perceive in terms of the length of examinations.
[437] Dr. Covens noted that, in his own education, he never had anybody indicate to him that he should avoid touching the clitoris with his thumb during a bimanual exam. Furthermore, he never had occasion to mention it to a student or resident in his own teaching, or observed anything more than inadvertent clitoral contact, though he would have said something if he observed it to be an issue. Because he mainly teaches residents, he also took efforts to contact the heads of undergraduate teaching in Obstetrics and Gynecology at the University of Toronto, and at Sunnybrook, who also were not aware of any teaching materials that specifically discuss that issue.[^114]
Chaperone
[438] Dr. Covens noted that, in his clinical hospital practice, he did not regularly have a chaperone present for pelvic exams and did not have any signs up indicating that one was available or acceptable. He indicated he would not deny one to a patient who wanted one, but he said it was not a requirement.[^115]
Dr. Howard Rudner
[439] Dr. Rudner was qualified to give expert opinion evidence in the area of family practice.[^116] He provided an opinion, as he was asked to do, regarding whether the examinations Dr. Clottey performed on the six female patients that gave rise to criminal charges were justified in the circumstances, and those examinations were conducted in a manner consistent with a proper examination.
Background and Qualifications
[440] Dr. Rudner has maintained a family medicine practice in the Greater Toronto Area for over 30 years, first obtaining his professional certification in 1985, and has had an office at Bayview and Eglinton Avenue since 1991. He has been a Fellow of the Canadian College of Family Physicians since 2004. He described that he maintains a general family practice, looking after patients of all ages with a variety of acute and chronic conditions.[^117] As he described in cross-examination, he provides comprehensive gynecological care to his patients[^118] and routinely conducts internal examinations (up to several times daily) as part of full physical exams. This practice changed, however, in 2016 when the Canadian Task Force provided guidance that breast and pelvic examinations were no longer required as part of annual health exams.[^119]
[441] He is on active staff at the North York General Hospital, one of a number of hospital appointments he has held, including as associate staff at both the University Health Network and the Sunnybrook Health Sciences Centre.[^120] In addition, he has had a long-standing and active teaching practice, having been an Assistant Professor at the University of Toronto Faculty of Medicine, Department of Family and Community Medicine since July 1988. As he described, that position involves both teaching in the field by supervising medical students (clinical clerks) and residents in his practice and giving lectures and seminars on clinical practice and also medical-legal issues.[^121] He also has been involved in clinical research in areas relating to chronic disease, work which becomes authority for the development of practice guidelines.
[442] Dr. Rudner has extensive experience assisting the profession and the legal system by acting as a monitor, assessor, examiner and expert witness. He described acting as a practice monitor for the College of Physicians and Surgeons of Ontario since 2002, which involves remedial supervision to physicians dealing with standard of practice issues. He has also had various roles relating to quality assurance at the CPSO, acting as a peer assessor working directly with physicians to review their charts and discuss opportunities for remediation, sitting on the review panel for physicians confronted with concerns about their skill, judgment and standard of care, and as an examiner for the physician review program, for physicians looking to return to independent practice after going through the quality assurance process.[^122]
[443] Finally, Dr. Rudner has acted as an Examiner for the Medical Council of Canada to conduct standardized examinations of medical school graduates, in order to become licenced for independent practice in Canada. Similarly, he acts as an examiner in OSCE (Objective Structured Clinical Examination) methods for international medical graduates seeking licensure.[^123]
[444] As a result, I find that Dr. Rudner has a unique ability to comment upon acceptable practices for clinical examination that are germane to Dr. Clottey’s conduct in the examinations and appointments at issue in this case.
Opinion
[445] Dr. Rudner offered the general opinion, based on all the information he received, that each of the breast and internal examinations that Dr. Clottey conducted on the six female patients in this case were done for legitimate clinical purposes and had a valid clinical rationale. He also opined that each of the examinations were conducted in a reasonable, acceptable and comprehensive fashion.[^124]
Basis for Opinion
[446] As Dr. Rudner explained both in-Chief and in cross-examination, his opinion was based upon the evidence that Dr. Clottey provided to him, and testified to in Court, about how he conducted his breast and internal examinations and why he did those examinations in each instance. He also relied upon the disclosure consisting of the complainants’ statements to the police and, in some cases, the CPSO and the patients’ charts.
[447] He received information from Dr. Clottey at one in-person meeting on March 24, 2017, lasting approximately three hours, and in the form of two synopses from counsel, one dealing with Dr. Clottey’s methods for breast examination and one dealing with aspects of the internal examination related primarily to Dr. Clottey’s timing.[^125]
[448] Dr. Rudner described having formed an initial opinion based on his review of the complainants’ statements and charts,[^126] and that quite reasonably, he wanted to meet with Dr. Clottey to obtain an overview of his training and practice, and effectively “quiz” him, akin to a peer assessment, for further information about how he performs the examinations in question and his rationale for doing them.[^127] This information would not have been otherwise available to Dr. Rudner, and he felt he required Dr. Clottey’s point of view to deliver his opinion.[^128]
[449] Dr. Rudner made his best efforts to recollect the discussions during that meeting, as he took no notes[^129]in that context. He also made efforts to recall the circumstances related to his receipt of the synopses discussed in cross-examination.
[450] Finally, Dr. Rudner disclosed that he made several successive drafts of his report to respond to new information he received and, in particular, when he received both an initial and amended report from the Crown expert, Dr. Wintemute.[^130]
[451] The Crown sought to establish the inference, in cross-examination, that Dr. Rudner was a partisan or unbiased expert through a line of questioning about what Dr. Rudner relied upon and his experience as an expert witness.
[452] As Dr. Rudner acknowledged, he assumed that the information provided as to how Dr. Clottey actually performed his examinations was truthful. To that end, his opinion on the stand was based both on what he learned originally but also upon the evidence Dr. Clottey gave under oath in court.[^131] Dr. Rudner was thus able to give a detailed and accurate description of how, from Dr. Clottey’s perspective, he conducted his breast, internal and rectal examinations, which allowed his opinion to respond to the evidence before the Court. If anything, this should increase, rather than diminish, the weight to be assigned to his opinion. There is always some additional detail and nuancing provided to descriptions given previously, once a witness testifies under oath and is asked many questions, including on cross examination. It is not unreasonable for experts to take the slightly more detailed or “fleshed out” version into account.
[453] In addition, no adverse inference should be drawn from the fact that Dr. Rudner has a history of working with defence counsel, including Dr. Clottey’s counsel, in College and criminal matters. A large portion of Dr. Rudner’s extra-clinical work has been as an objective assessor and examiner of other physicians relating to their professional standards and skills, and there is no basis upon which to suggest he would be less than objective as an expert in this proceeding. Indeed, as he testified in cross-examination and re-examination, he has acted as an expert in civil medical malpractice proceedings for lay plaintiffs and against physicians on many occasions, and has been retained by a large number of law firms on both sides of the bar to provide expert opinions and testimony.[^132]
[454] I do not accede to the suggestions of the Crown that Dr. Rudner was a biased and non-independent witness and that little or no weight should be afforded to his opinion.
[455] Ms. Mackenzie’s objections to Dr. Rudner’s testimony are set out in pages 67 to 78 in her written submissions and will be dealt with briefly in my analysis.
Breast Examination
[456] Dr. Rudner recounted his understanding of Dr. Clottey’s general approach for performing a breast examination, which generally accorded with Dr. Clottey’s description at trial. In particular, he described Dr. Clottey’s standard practice of asking patients three questions as he conducts the breast examination, about a family history of breast cancer, noticing any lumps or masses and noticing any discharge from the nipple. He also noted that it may be appropriate, as he thought Dr. Clottey would have, to change the amount of pressure used depending on the patient, their history and concerns, their sensitivity and their breast size.[^133]
[457] Dr. Rudner also correctly described what Dr. Clottey’s evidence was about how he examines for discharge and masses under the nipple by placing his thumb and index finger 1 to 1.5 inches apart at the outside edge of the areola where it overlaps with normal breast tissue, at 2 axes, the 12 and 6 o’clock position, then lifting and rotating to the 3 and 9 o’clock position, by applying gentle downwards and inwards pressure, bringing both of his fingers together and also pressing against the chest wall.[^134]
[458] Dr. Rudner’s opinion was that Dr. Clottey’s described approach, both his palpation with the palmar surface of the second, third and fourth fingers and the maneuvre used to check for masses and discharge under the areola, was a reasonable and acceptable way to examine a patient’s breast. He also thought it was reasonable to do a check for discharge even in the absence of patient complaint as a screening maneuvre.[^135]
[459] Dr. Rudner was able to demonstrate, from both YouTube videos and text, that there are, in fact, a variety of reasonable ways to examine the breast and the nipple/areola area in particular, of which Dr. Clottey’s was but one. These videos, produced by Texas Tech in the United States, Warwick Medical in the UK, and what Dr. Rudner understood to be a Middle-Eastern centre using the OSCE format, were described as being representative of a variety of acceptable methods for palpation and checking for discharge, which included palpation directly on the nipple and areola with the palmar surfaces of three fingers, pressure from the index finger on the areola abutting the nipple to check for discharge and squeezing directly on the areola and, in one case, the nipple itself to check for discharge.[^136]
[460] Though Dr. Rudner clarified in cross-examination that he would not necessarily check for discharge on every occasion or follow everything in these videos, he agreed it was reasonable to do so and indicated that if there was a concern about cancer or if he detected a lump or something symptomatic, he would check for discharge by directly squeezing the nipple.[^137]
[461] The upshot of Dr. Rudner’s opinion, based on his experience and from these sources, was that they collectively supported that Dr. Clottey’s technique was recognized as an examination both for masses under the nipple and areola and as a check for discharge. Though he was cross-examined on the theory that no source, and particularly Dr. Clottey’s reference of the 8th edition of Bates, actually indicated exactly what Dr. Clottey did as being a reasonable check for both masses and discharge and that Dr. Clottey’s technique was unusual in that sense, Dr. Rudner quite fairly explained why he felt these materials did, in fact, support Dr. Clottey’s technique.
[462] First, he noted that the image from the 8th edition of Bates cited by Dr. Clottey[^138] did not make sense to him as being limited only to an assessment of mobility of masses. His view was corroborated by the fact that the same image was used in a different location with a different caption in the 12th edition of Bates.[^139]
[463] Second, although he acknowledged that Bates did not indicate that the diagram referred to an examination for discharge, he did point out that the DeGowin reference described a similar technique of squeezing the nipple and areola between the thumb and index finger to check for discharge, albeit with those fingers directly on the areola.[^140] The third “Let’s Talk Medicine” YouTube video shown by Dr. Rudner also demonstrated a similar maneuvre being used to check for discharge on the model’s left breast.
[464] In light of the above, Dr. Rudner believed there could have been some misperception by some of the complainants, particularly RS, IF and KR, who described a “squeezing” and a “pulling” of their nipples from the inward and downward pressure, and the lifting and rotating of hands, that Dr. Clottey uses with IF.[^141] He also thought that DM’s description of her nipple being twisted like a “key in a lock” could be a misperception of Dr. Clottey’s standard examination. Moreover, her discomfort during the palpation of her breasts could be a result of the deeper pressure Dr. Clottey was required to apply because she had large breasts.[^142]
Gynecological Examination
[465] Dr. Rudner was also able to accurately recount Dr. Clottey’s description of how he conducts a bimanual examination, including the inspection, speculum procedure with the taking of swabs and a Pap, and the bimanual examination, in some degree of detail.[^143] As he explained, he found this technique to be not only acceptable, but also, in terms of the bimanual examination, consistent with his own technique.[^144] He recalled not needing or requesting information from Dr. Clottey or his counsel about Dr. Clottey’s technique because when the two of them met he was satisfied with the explanation he was given.
[466] As Dr. Rudner testified, he did later receive a synopsis which mainly described Dr. Clottey’s timing for various aspects of the vaginal examination. He explained that, although the synopsis was sent to him without a specific request, he did have outstanding questions about the length of time Dr. Clottey spent. From that synopsis, and Dr. Clottey’s evidence, Dr. Rudner understood that Dr. Clottey spent about six minutes for the entire vaginal examination (starting from draping the patient, having a discussion and preparing), and about three minutes for the examinations themselves, with about half that time for the bimanual. He found these time estimates to be reasonable.[^145] He also noted that if a patient was tense, it could prolong the exam because the examiner needs to examine through muscle to assess the various structures.[^146]
[467] Dr. Rudner also opined that the thumb of the examiner’s hand could come into contact with a patient’s clitoris during the bimanual examination. He testified that he had an appreciation for how Dr. Clottey’s thumb, in particular, could have made that contact in two circumstances.
[468] First, given Dr. Clottey’s shorter finger size, if he had to press deeply to examine midline structures (the cervix and uterus), his thumb could have touched the clitoris.
[469] Second, since he moves his hand from right to left and up and down repeatedly as he does the bimanual examination, Dr. Rudner also thought Dr. Clottey could have inadvertently touched the clitoris at those times.[^147] In fact, Dr. Rudner thought it was likely that he himself had made inadvertent contact with patients’ clitorises during bimanual exams as he also has shorter fingers. He did fairly acknowledge, however, that he had never received a complaint or concern about his own bimanual examinations.[^148]
[470] Based upon Dr. Clottey’s examination technique, Dr. Rudner testified that it would have been very unlikely for his thumb to have had a constant, sustained or continual pressure on the clitoris if his hand was moving around to examine various parts of the vagina.[^149]
[471] It is also of note that since Dr. Rudner only taught and supervised clinical clerks and residents, he could not comment on what students are taught in clinical examination courses about where to place their thumbs.[^150] He did agree that these types of examinations were sensitive and patient comfort would be a key consideration for medical students, but his evidence generally helps establish that a resident would not be specifically trained on placement of their thumb or avoidance of the clitoris when doing a bimanual examination.
4.0 LAW & ANALYSIS
[472] A central issue in this case is credibility. To arrive at my decision, I have analyzed the evidence presented in this case with the following principles in mind.
[473] One, the accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. The burden of proof remains on the prosecution throughout the trial. The accused has no burden to disprove any elements of the charges. The standard of proof that the Crown is required to meet in any criminal trial is a very high one indeed.
[474] The standard more closely approaches absolute certainty than the standard of proof on a balance of probabilities. In R. v. Starr, Mr. Justice Iacobucci stated:
In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:
If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed....[^151]
[475] In this case, the defendant has testified and called evidence. I am mindful of the dictates of the Supreme Court of Canada in R. v. W.(D.).[^152] There, Justice Cory for the majority indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant’s evidence is believed.
[476] The defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence, but his evidence raises a reasonable doubt with respect to his guilt.
[477] Thirdly, even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.
[478] In assessing a witness’s credibility and reliability, I must consider the witness’s perception, memory and sincerity. I must consider the witness’s ability to observe, store, recall and report evidence accurately, reliably, and truthfully. I must consider the witness’s interest or bias, if any, including animosity. In assessing evidence of a witness, I try to listen carefully to their testimony and make observations of the witness while they are on the stand. I have to take into account that appearing and testifying in court can be a very stressful occasion for many persons and that witnesses can exhibit this in many different ways.
[479] As a result, I do not place as much weight on a witness’s appearance or demeanour on the stand than the analysis of their evidence. I prefer to apply a threefold test to the testimony of the witness. I look to see if the testimony is internally consistent, that is, does the evidence fit together and is one piece of their evidence consistent with another; secondly, is the testimony of a witness externally consistent, does it fit with other known or accepted facts, does it fit in with other evidence or testimony that is accepted or believed; finally, does the testimony have a ring of truth to it, does it stand the test of common sense.
[480] In short, the real test is in determining if the evidence of the various witnesses is credible the question is, is it in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place, and in those conditions.
[481] I can accept some, all, or none of a witness’s evidence and I am required to weigh all of the evidence. This is not a credibility contest where I have to pick the version of one witness and, by doing so, reject that of another.
[482] Though I may not aver to every witness who testified in this trial or to every exhibit filed or every submission made by the parties, it does not mean that I have not considered that evidence in arriving at my judgment.
(i) Reliability And Credibility Must Be Considered
[483] It is fundamental that, in considering witnesses’ evidence, this Court must consider both credibility – i.e. whether the witness is speaking the truth as the witness believes it to be – and reliability – i.e. the ability to accurately observe, recall, and recount the events in issue. The distinction between credibility and reliability is addressed by Justice Doherty of the Ontario Court of Appeal in Regina v. Morrissey:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. Accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall, and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned about the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however still be unreliable.[^153]
[484] Inconsistencies on significant matters fundamentally undermine the reliability of a witness’s evidence. The fact that a witness appears to believe what he or she is saying, or even appears to be “sincere, “truthful” and “honest”, does not make the witness’s account reliable.[^154] As noted by Justice Finlayson in the Court of Appeal for Ontario:
The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanor and credibility are not the only issues. The reliability of the evidence is what is paramount. So far as Mrs. Goebel is concerned, her evidence is inherently hard to credit, and should have been subjected to closer analysis. For the purposes of this case, I adopt what was said by O’Halloran, J.A. speaking for the British Columbia Court of Appeal in Faryna v. Chorny (1951), 1951 CanLII 252 (BC CA), 4 W.W.R. (N.S.) 171 at page 174...:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.[^155]
[485] Inconsistencies in a witness’s evidence should cause the trier or fact to doubt the reliability of the witness’s evidence. The trier of fact must look at the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable. Inconsistencies on material issues should be especially concerning to the trier of fact.[^156] The trier of fact must look at the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable.[^157]
[486] There is no onus on Dr. Clottey to prove his innocence or to explain away the complaints made against him. Simply because a witness has no obvious motivation to lie does not mean that the witness’s evidence is reliable or credible.[^158] As the Ontario Court of Appeal recently noted:
...the absence of any apparent motive to lie is an unreliable marker of credibility. There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility. Consequently, it is generally an unhelpful factor in assessing credibility.[^159]
5.0 THE LAW
Requirements For A Finding Of Sexual Assault
[487] Sexual assault is defined as intentional, non-consensual touching, occurring in circumstances of a sexual nature. Whether circumstances of a sexual nature are present in a given situation is determined on an objective test by the trier of fact.[^160]
[488] No specific sexual intent or motivation is required for a finding of sexual assault. However, the intent of the accused is one of several factors to consider in determining whether the alleged conduct is sexual, including the situation in which it occurred, any words and gestures accompanying the act.[^161]
Impact of Medical Context
[489] Doctor-patient sexual assault cases are somewhat different from other sexual assault cases because there can be legitimate medical reasons for a practitioner to examine a patient’s sexual organs. So the “part of the body touched”- admittedly a relevant factor as per Chase - requires contextual consideration.
[490] So long as the practitioner has a valid medical purpose and, objectively, a legitimate reason for examining the breast or genital area, then unless the touching is of a sexual nature, the part of the body touched is of less significance in the analysis. That is why the British Columbia Court of Appeal in R. v. Buna and the Supreme Court of Canada in R. v. Litchfield have emphasized that in order to convict a physician in this context, the doctor’s touching must have been of a sexual, and not simply medical, nature; the doctor’s touching must have been used to “sexualize” the interaction.[^162]
Legitimate Medical Purpose
[491] R. v. Maurantonio raised the question of what a patient actually consents to during a medical examination. That case stands for the proposition that patients can only provide consent to a bona fide medical examination, conducted for a legitimate medical purpose.[^163]
[492] The experts in this case supported that the breast and internal examinations were clinically reasonable; that is, there was a legitimate rationale for performing them. Furthermore, Dr. Clottey’s own evidence supports that he had an honestly held belief that the examinations were clinically indicated.
[493] The appropriate question to ask is whether the examinations were “medically justifiable” or “clinically reasonable” rather than “clinically necessary,” as doctors may often disagree as to whether a medical test or exam is strictly necessary or not.
[494] As Justice Epstein stated recently for the Ontario Court of Appeal in a successful appeal from conviction of Dr. Daniel Marshall for sexual assault based on a single historic genital examination of an adolescent boy, it is relevant to consider whether the accused physician honestly believed that the examination in question was clinically justified.[^164] In that case, not only did the accused physician hold an honest, subjective belief as to the medical purpose for the genital exam, but also, that belief was medically objectively supportable.
[495] If the practitioner’s honest belief as to whether the examination would or could be clinically useful was not relevant, physicians could be held criminally liable simply for honest errors in judgment as to whether an examination was actually necessary, irrespective of their bona fide intentions. This would subject physicians to an impossibly high standard. Even in civil negligence law, physicians are not liable for such errors.[^165]
[496] Those criminal cases where the doctor’s evidence that he had a medical rationale for touching of a patient’s intimate area were rejected, make it plain that the doctor’s professed “honest belief” in that medical rationale was rejected as being simply not credible.
[497] Ms. Stephenson’s position is that, based on both objective and subjective factors, Dr. Clottey’s actions and intentions in examining the areas in question were reasonable, not simply pretexts for sexual gratification as the Crown argues.
Whether Examinations Were Sexual in Nature
[498] In regard to the issue of the bona fides of the medical examinations conducted in this case, one must not only consider whether there was a legitimate medical purpose, but whether the examinations had a “sexual character” to them. As stated in R v Litchfield:
Hope J. began to commit errors over the course of his ruling on the motion. First, he stated that in relation to consent, the Crown had "to prove beyond a reasonable doubt the procedures carried out were not appropriate or necessary for diagnostic or treatment purposes". There are two errors in this statement. First, proof beyond a reasonable doubt is not an element of the test for a directed verdict; the proper test is some evidence. Second, the Crown did not have to submit evidence proving that the procedures were not appropriate or necessary for diagnostic or treatment purposes. What the Crown had to lead was evidence that the conduct of the respondent had a sexual character in addition to whatever medical character that conduct might have had.[^166]
[499] Patient perceptions, while obviously relevant, are not determinative. In this case, it is critical that there is credible evidence from all the experts that inadvertent clitoral touching can occur during vaginal exams if, as in Dr. Clottey’s case, the examiner is not consciously aware of the potential for that touching or of where the thumb of the examining hand is at all times. Incidental, unintended touching cannot, in law, constitute an assault, either sexual or otherwise.
[500] Regarding the breast exams, the method described by Dr. Clottey for examining immediately under the areola, as illustrated in Bates, is an acceptable, legitimate method of examination. As well, quite apart from evidence about the conduct in question itself, one must also have regard to the overall context, what was said during the exams, the medical charts and the surrounding circumstances.
[501] Where there was a legitimate medical rationale for the examination, and the examination was not performed in a sexual fashion, there can be no finding of a sexual assault.
Consent
[502] The mens rea for the offence of sexual assault is the “intention to touch, knowing of, or being reckless of, or wilfully blind to, a lack of consent.”[^167]
[503] Even if the complainants consented to having their breasts examined, they never consented to having their nipples pulled or twisted, or their clitorises touched. These two issues must be considered separately, as the former was a conscious deliberate touching, while the latter, according to the defence position, was non-volitional touching.
[504] Regarding the former issue, there is no authority for the proposition that a doctor is required to explain every single aspect of every component of an examination of a body part or area. If a patient consents to having a breast exam, as all the complainants did in this case, then the patient consents to having every component of the breast exam performed so long as the latter is clinically reasonable or acceptable and performed for a legitimate clinical purpose.
[505] A patient’s query or failure to appreciate the medical purpose for one aspect of an examination does not render either the examination itself, or the consent provided to that examination, invalid.
[506] The law of informed consent has no application in the criminal context; it is a civil concept and nowhere is it referenced in the Code. The Court of Appeal in R. v. Orpin noted that the trial judge made several errors in his charge to the jury, which included telling the jurors to consider whether “informed consent” was provided, rather than the very different tests for consent set out in the Code.[^168]
[507] Regarding the touching of the clitoris, if I find that it was inadvertent, then an essential element of the offence of assault is not made out, as the latter requires intentional touching. The issue of consent is irrelevant in those circumstances.
Honest Belief in Consent
[508] It is further submitted by the defence that Dr. Clottey honestly and reasonably believed that the complainants consented to all of the examinations he performed. The defence of honest belief in consent requires that the accused took reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.[^169] This possibility of honest belief in consent is evaluated from the perspective of the accused, but considered in light of other objective factors regarding the provision of consent.[^170]
[509] The “circumstances known to the accused” when evaluating his belief in consent must take on a different character in this case. The interpretation of consent in a medical examination where a doctor has a legitimate reason to be examining an intimate area, and provides an explanation for it in advance, is different from a non-medical context where silence and mere passivity as between partners to sexual activity cannot necessarily be construed as consent.[^171] For example, it is not at all similar to the circumstances in Ewanchuk, where a man was speaking to a teenage woman in a trailer, as the man in that situation would have no reason to be touching intimate parts of the body unless the complainant was agreeable to the sexual activity.
[510] Dr. Clottey took reasonable steps, given the medical context, to ensure that female patients consented to his examinations. He explained what kind of exams he would be performing, both initially in the prior “meet and greet” for new patients and again while conducting the physical exam during the appointment in question.
[511] In the absence of an objection to proceeding following his explanation to the patient, Dr. Clottey was entitled to assume that he had the patient’s consent. For example, he could fairly assume that a patient was agreeing to have her breast examined as she cooperated in pulling one arm out of her gown in accordance with his request following his explanation, or if she moved her buttocks down to the end of the exam table with her knees bent after his request that she do so, to permit the vaginal exam to occur.
[512] Furthermore, Dr. Clottey generally tended to do far more than simply explain that he was going to do a breast or a vaginal exam. As the evidence in this case clearly reveals, he tended to explain steps as he went along, even though this is likely far more than what is or was legally required.
[513] The preponderance of the evidence clearly demonstrates that consent was given to the examinations of the breasts and genitalia. In the case of the vaginal exam of TV, the evidence was conflicting as to whether she knew that she would be having a vaginal exam. However, TV had forgotten many aspects of the visits, so her recall about that issue is questionable.
[514] Even assuming for the moment that the evidence regarding consent being granted was not as strong as it was in this case, the evidence regarding Dr. Clottey’s efforts to explain in advance what he was doing suggests that he did take reasonable steps to ensure that consent was given. The fact that without exception (except for RS at one point in the vaginal exam) patients did not express concerns or stop the exams, and cooperated with his requests, is consistent with and supportive of Dr. Clottey having an honest belief that consent had indeed been provided. One has to realistically consider what a busy physician must be expected to do in regard to ensuring that consent is given. Explaining generally at a prior encounter what is involved in a complete exam, then again at the outset of the exam, as well as more specifically during parts of it, should be sufficient.
Dr. Clottey’s Charting and Evidence of Usual or Routine Practice
[515] Dr. Clottey gave evidence about his encounters with the six complainants based largely on his routine or invariable practice in performing physical examinations on female patients. In most cases, he did not have a specific or independent recollection of the patients or encounters in question, which occurred between 1.5 to 6 years prior to his testimony.
[516] Where a physician gives evidence that they take a certain course of action as an invariable practice, this should be given a large degree of weight based upon the probability that this habitual course will have been followed in the case in issue.
[517] If a person can say of something he regularly does in his professional life that he invariably does it in a certain way, that surely is evidence and possibly convincing evidence that he did it that way on the day in question.[^172]
[518] In civil jurisprudence in Ontario, this principle has been repeatedly adopted and confirmed, including by Nolan J. in the case of Turkington v Lai:
I am satisfied that the case law has established that when a physician has no specific recollection of this or her dealings with a patient, he or she is entitled to testify as to what his/her ordinary or invariable practice is. That evidence is considered strong evidence that the physician acted the same way on the same day in question.[^173]
[519] As a result, it is neither surprising nor impermissible that Dr. Clottey testified in the majority of instances based on what he believed he would have done, relying on both his usual practice and his chart, in the absence of any specific recollection. It would not otherwise be possible for a physician like Dr. Clottey to recall details of relatively straightforward patient encounters that took place years prior, especially when nothing was drawn to his attention at the time that would make things stand out in his mind.
[520] In cross-examination, Dr. Clottey was admonished to be clear about the source of his evidence, whether he had an independent recollection, a refreshed recollection based upon a review of the patient’s chart or having heard their evidence, or was testifying based on what he believed he would have done.
[521] As he explained, in many instances he relied on what was refreshed, what he remembered, what he charted and was “putting it all together” to give his evidence. He took efforts to explain where extrinsic evidence refreshed his memory on portions of an encounter he did not independently recall, such as leaving the room and his phone ringing during GO’s exam. His reliability or credibility should not be impugned for not precisely prefacing the basis for each piece of evidence he provided about these patient encounters.
6.0 ANALYSIS OF EVIDENCE
RS
[522] Dr. Clottey became RS’s physician in October, 2014. He performed a complete physical examination on RS on November 11, 2014[^174] in respect of which she has no complaints. He did not perform a Pap test during that examination, deferring it until February 28, 2015.[^175] That examination also did not upset her.
[523] In late 2015 and into 2016, RS had several appointments in which her thyroid status was discussed, and also some complaints. RS was known to have anxiety, and had been prescribed Paxil.[^176] Initially in cross-examination she denied that she had any concerns as reflected in her chart, including about missed periods, but then acknowledged otherwise after being shown her chart. RS’s memory was often not the best, as this example demonstrates.[^177]
[524] She had requested a referral to a gynecologist, which Dr. Clottey and the chart indicated was because of her missed periods. RS recalled wanting the referral because of general issues. She was then age 49. The chart, as confirmed by Dr. Clottey, indicated that RS was complaining of some fatigue and bloating during an appointment on May 30, 2016.[^178] Also according to Dr. Clottey and the chart, there was a prior a discussion about RS coming in for a complete physical exam, which she had agreed to do.[^179] The complete physical exam then took place on June 27, 2016.
[525] RS agreed that she later thought that it was wrong for Dr. Clottey to have had her come in for a physical exam on June 27, 2016. She indicated at trial that she did not see why she needed a physical exam when she had simply wanted to see if her thyroid replacement medication needed adjusting.[^180] In her mind, that would not require a physical exam. Again, RS has forgotten aspects of the visits which tended to explain and support why the decision to perform the complete physical exam was made.
[526] Dr. Covens specifically testified that a physical examination was reasonable in the circumstances. Dr. Rudner felt this (and the exams performed by Dr. Clottey generally) were also reasonable, particularly because Dr. Clottey had to do his own complete assessment of RS’s health before considering whether her request for a gynecology referral was necessary.[^181]
[527] It is the events of June 27, 2016, that led to RS contacting the police.
[528] RS’s memory for events is not only flawed in some aspects, but also her memory is self-serving and selective. RS’s reliability as a witness must seriously be questioned. Not only are there major inconsistencies in key aspects of her evidence which demonstrate a willingness to completely “re-characterize” the same event in a dramatically different way, but her answers reveal a lack of objectivity, unreasonableness, and a negative bias towards Dr. Clottey’s actions and intentions that can only signal the need for extreme caution when interpreting and analyzing her evidence.
[529] She recalls Dr. Clottey being late for the appointment on June 27, 2016, which was at 10:30 in the morning, causing her to have to wait for about 20 to 30 minutes. She was told by the nurse that he had forgotten the appointment, but that he was on his way.[^182] She distinctly recalls being dressed in her street clothes when Dr. Clottey entered the room, although she said that after the initial discussion with Dr. Clottey, he left the room to allow her to undress and put on a gown.[^183] Dr. Clottey recalls that RS was already changed into a gown at the time he first entered the room, which was consistent with usual clinic practice.[^184] Accordingly, the two witnesses’ evidence differs on this point, but there may be no way of determining whose recollection is accurate except that standard clinic practices support Dr. Clottey’s recollection.
Initial Discussion and Timing
[530] The first part of the appointment was spent discussing RS’s health and other issues with Dr. Clottey She describes this several times as being a long conversation, “too long…almost for me” in her words,[^185]in which Dr. Clottey asked her a lot of questions and explained a lot of things. Menopause was discussed.
[531] Elsewhere in her evidence, she said that she felt that it was a good conversation.[^186] However, at one point in her testimony, she stated that the discussion only lasted 10 minutes.[^187] This is inconsistent with her own testimony in which she said that the discussion part of the appointment lasted “maybe four, five times longer” than it usually did,[^188] was “too long”, and was “not natural” or “not normal” because of the length of time spent.[^189]
[532] RS did not initially recall discussing issues regarding her son and a friend whom she felt had betrayed her, but did not deny in cross-examination that this could well have happened.[^190] Therefore, given the health issues that were also discussed, even on RS’s own evidence, RS’s time estimate of 10 minutes for this part of the visit is likely inaccurate. It is far more likely that this part of the visit lasted closer to 25 to 30 minutes, if not more. There are, therefore, internal inconsistencies within RS’s own evidence requiring that one approach it with caution.
[533] Later, RS went so far as to say that it was wrong and abusive that Dr. Clottey had spent so much time with her,[^191]and she suggested that the timing and length of the whole appointment was opportunistic. Dr. Clottey explained in his evidence why he had booked the appointment himself on a Monday morning, a day when he did not usually work; he wanted the complete assessment to be done before he left for Ghana in the summer.[^192] However, he then mistakenly forgot about the appointment until he received a message from the clinic that RS had arrived and was waiting.[^193] As a matter of common sense, it seems highly unlikely that Dr. Clottey would simply forget about the appointment if he had been motivated by opportunism, as RS now believes to be the case.
[534] Following the interview portion of the appointment, Dr. Clottey proceeded to perform the physical examination. He took RS’s blood pressure, as well as listened to her heart, according to her. Dr. Clottey said that he examined all the systems in the usual manner.
Breast Examination
[535] RS confirmed in her evidence that Dr. Clottey told her that he was going to examine her breasts before doing so.[^194] In her testimony at trial, RS was unhappy about the manner in which the breast exam was performed. After one breast was exposed, Dr. Clottey examined the outer part of the breast in a circular fashion, palpating with the palmar surface of his fingers while moving inwards. This part was like other breast exams she had had in the past.[^195] However, she then described Dr. Clottey’s fingers “squeezed hardly…(her) nipple” and “like squeezing … a lemon,”[^196]which she claimed caused great pain. She said he told her that he was “looking for discharge.”[^197] He did the same thing with both breasts. She thought that he used his thumb, index and middle fingers, with the thumb coming together with the fingers.[^198] She stated that she was shocked, that it was “too much,” and that she said “oh my God, it’s too painful.”[^199] She said that this had never happened before with Dr. Clottey during a breast exam. Dr. Clottey testified simply that he did his breast exam in the usual way, in accordance with his routine.[^200]
[536] However, when taken to her College interview of June 30, 2016, which was a mere three days after the examination in question took place, RS had to agree that she had not even brought up or raised the breast exam with the investigator, let alone any problems with it or concerns regarding it. It was the investigator who raised the issue with her. When asked about the breast exam by the investigator, RS described it as having been done in what seemed to be a very careful manner, which was “not that intense,” and that she “didn’t see anything different at that moment” about it (in comparison to other breast exams). She said that she “cannot say anything clear” about it.[^201] She also did not say anything or show any pain to Dr. Clottey during this exam.[^202]
[537] RS explained this inconsistency as being due to how trauma affects people and that it can take some time before a victim realizes and appreciates what actually happened.[^203] In that regard, RS indicated that her memory for the events in question was better 1.5 years later than it was 3 days later because she was initially in shock.[^204] I find that it is more likely, as was put to her in cross-examination, that the more time she spends thinking about the events in question, the worse they become in her mind.
[538] The excerpts read to her from pages 18 to 21 of her College interview are not suggestive of a witness whose description is altered by being “in shock.” To the contrary, those excerpts tend to demonstrate an honest attempt to be accurate, fair and balanced in describing the appointment on June 27, 2016.
[539] In fact, RS’s description of the breast exam to the College and the description she gave later are dramatically different and completely inconsistent. Both simply cannot be true and they cannot be reconciled in any rational fashion. When confronted with this substantial inconsistency, RS stated that while her College statements were “true,” they were “not accurate.”[^205] True, but not accurate is difficult to comprehend. Either the exam was different from prior exams or it was not. Either it was unusually intense, painful and aggressive or it was not. These dramatically different descriptors of the same event, coupled with RS’s explanation for the inconsistencies, is very material to her reliability and also credibility as a witness. It tends to make me question whether she was also exaggerating profoundly in her description of the vaginal exam where she utilized similar descriptive language.
[540] It is not Dr. Clottey’s position that nothing happened during the examination of June 27, 2016 that caused RS to be upset. Clearly, she was upset when she left the office because of what happened during the vaginal exam which caused her to contact authorities. However, in analyzing and assessing what actually took place, the degree of force used, the level of “aggressiveness,” the nature of the touching, the description of her reaction and of how Dr. Clottey appeared to her, one must take her evidence very cautiously. This is but one reason that causes me to believe that there is very likely a significant level of exaggeration, distortion and dramatization in her description of what she claims to have perceived and experienced.
Gynecological Examination
[541] For the vaginal exam, RS stated that she was 100 per cent certain that Dr. Clottey did not perform a speculum exam. While she expected him to do that, she said it never happened. At the time she made the statement that she was 100 per cent certain, RS was reminded that she was under oath.[^206] As the experts then testified, it would have been extraordinarily difficult, if not impossible, to obtain the Pap test results that are displayed in the chart (which included cells from the transformation zone) had a speculum not been used.[^207] It is not unreasonable that RS was mistaken on this issue. What is more concerning is RS’s professed level of certainty while under oath, about an issue on which she is almost certainly incorrect. The latter bears on her reliability and perhaps credibility.
[542] Dr. Clottey told her he was going to use gel, which might feel cold,[^208] and she even questioned why he was using gel. She testified that she felt that there was something wrong and unusual about that.[^209] This demonstrates her bias and lack of objectivity about the whole series of events.
[543] During the bimanual exam, although she felt that Dr. Clottey was checking her vagina, RS described him using a lot of force and testified at length that the movement of his hands was strong, painful and forceful. She felt that the examination was very intense, and at one point she felt that she was about to faint and that it was too long, too much, too painful. [^210]
[544] Dr. Wintemute and Dr. Rudner confirmed that there can be a vaso-vagal reaction, specifically syncope or fainting, during a bimanual exam when the cervix is touched, so the fact that RS may have felt as though she were about to faint is not necessarily indicative in and of itself of an excessive amount of force being used or of her being in extreme discomfort.[^211]
[545] Moreover, Dr. Rudner and Dr. Covens indicated that a finding of a bulky uterus, as noted in RS’s chart, means Dr. Clottey may have spent longer on the bimanual examination to try to characterize the size of the uterus,[^212] He would have needed to palpate deeply