DATE: 20131119

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GEORGE DOODNAUGHT

David Wright and Susan Kim, for the Crown

Brian H. Greenspan and Jill Makepeace, for George Doodnaught

Heard:

January 14,15, 21-28, 30, 31

February 1-5, 11-14, 19-22, 25, 26, 28

March 2, 4-6, 27, 28

April 2-5, 8-12, 15, 22-26, 29, 30

May 2,3,6,7,8-10, 13-15, 21-24, 27-31

June 3,4,5,10,17,24

Sept. 3,4, 2013

REASONS FOR JUDGMENT

J.D. McCOMBS J.

November 19, 2013

I. INTRODUCTION.. 7

II. OVERVIEW... 7

III. POINTS NOT IN ISSUE.. 7

IV. CORE POINTS IN ISSUE.. 8

i. Opportunity to commit the offences. 8

Likelihood of Detection. 8

Physical Impossibility. 8

ii. The Effects of the Drugs: Reliability of Perceptions and Memory of Complainants under “Conscious Sedation”. 8

iii. Similar Fact Evidence: Weight and Impact 9

V. DISCUSSION OF EVIDENCE.. 9

A. Opportunity. 9

a) Overview.. 9

b) Taking a “View”. 10

c) Overview of the surgeries performed and the allegations made. 10

d) The Layout of the Operating Rooms. 10

e) Medical Personnel in ORs, and their roles. 10

1. Sterile Area: personnel and roles. 10

i. Surgeons. 10

ii. Scrub nurses. 10

iii. Student observers. 11

iv. Intent focus of surgical team.. 11

2. Non-sterile area: personnel and roles. 11

i. Circulating nurse. 11

ii. Team Attendants. 11

iii. Vendor representatives. 12

iv. Anesthetic assistants. 12

v. Medical students. 12

f) Entranceways to the ORs. 12

g) Traffic in the ORs during Surgery. 12

h) Draping—separating sterile from non-sterile areas. 13

i) Patient Positioning. 14

(i) Lithotomy position (gynecology) 14

(ii) Trendelenburg position. 14

(iii) Mayo stand. 14

(iv) Cautery Machine. 14

(v) PACU.. 14

j) Physical Impossibility. 15

i. Physical characteristics of the accused. 15

ii. Dimensions of operating tables, patient positioning, and presence of equipment 15

k) Miscellaneous Issues concerning opportunity. 15

i. Scrub pants. 15

ii. Lab coat 15

iii. Reputation for being “touchy-feely”. 15

l) Conclusions re: Opportunity. 15

B. THE EFFECTS OF THE ANESTHETICS ON AWARENESS AND MEMORY.. 16

a) Areas not seriously in dispute. 16

b) Areas in Dispute. 17

c) Crown Experts. 18

i. Dr. Susan Belo. 18

ii. Dr. George Mashour. 19

d) Defence Experts. 20

(i) Dr. Joel Jeffries. 21

(ii) Dr. Alan Aitkenhead. 21

a) Dr. Aitkenhead’s assertion that sexual hallucinations are not rare. 22

b) Misperceptions caused by standard medical practices. 22

c) Unlikelihood of commission of offences without detection. 23

d) Inability to resist 23

e) Conclusion concerning the evidence of Dr. Aitkenhead. 23

(iii) Dr. Orlando Hung. 24

a) The “Bite-Down Reflex”. 24

b) Effects of sedative drugs on levels of awareness and reliability of memory. 24

c) Conclusion re: Evidence of Dr. Hung. 25

C. DISCUSSION OF SPECIFIC COMPLAINTS. 25

Overview of Chronology of Events Leading up to Arrest, Including Discovery by Senior Hospital Management and Police that there had been Three Prior Formal Complaints. 25

General Observations Concerning Specific Counts on Indictment 28

Count 1: Debra Dreise. 28

i. Overview.. 28

ii. Layout of OR5. 29

iii. The Sexual Assault 30

iv. After the Surgery. 32

v. Additional issue—prior inappropriate behavior by Dr. Doodnaught 32

vi. Discussion. 33

Count 2: Jeannine Ashley. 35

i. Overview.. 35

ii. The Sexual Assault 36

iii. After the Surgery. 36

iv. Discussion. 36

Count 3: Taaramatie Ramdin. 37

i. Overview.. 37

ii. The Sexual Assault 38

iii. After the Surgery. 38

iv. Discussion. 38

Count 4: Lana Neal 39

i. Overview.. 39

ii. The Sexual Assault 39

iii. Disclosure Following the Surgery. 39

iv. Discussion. 40

Count 5: Elizabeth MacPherson. 41

i. Overview.. 41

ii. The Sexual Assault 41

iii. Events After Surgery. 42

iv. Discussion. 42

Count 6: Belmira Borges. 43

i. Overview.. 43

ii. The Sexual Assault 44

iii. Events after Surgery—Complaint to Dr. Brock, her Husband and later to Surgical Resident Dr. Warden 44

iv. Discussion. 44

Count 7: Ann Manno. 45

i. Overview.. 45

ii. The Sexual Assault 45

iii. Disclosure following Discharge from Hospital 45

iv. Discussion. 46

Count 8: Carmela Castaldi 46

i. Overview.. 46

ii. The Sexual Assault 47

iii. Events following Surgery. 48

iv. Discussion. 48

Count 9: Lianne Gotkind. 49

i. Overview.. 49

ii. The Sexual Assault 49

iii. Disclosure after Surgery. 49

iv. Discussion. 50

Count 10: Rochelle Geller. 50

i. Overview.. 50

ii. The Sexual Assault 51

iii. Events after Surgery—visit by Dr. Doodnaught and his comments. 51

iv. Discussion. 52

Count 11: Heather Vandewall 52

i. Overview.. 52

ii. The Sexual Assault 53

iii. Events following Surgery: Disclosure to Daughters, Visit and Comments of Accused and Subsequent Report to Police. 54

iv. Discussion. 55

Count 12: Gunda Volz. 56

i. Overview.. 56

ii. The Sexual Assault 58

iii. Events after Surgery. 58

iv. No Disclosure until after Media Report 58

v. Discussion. 59

Count 13: Margot Barnett 59

i. Overview.. 59

ii. The Sexual Assault 60

iii. Events after Surgery—Telephone call from Accused—Disclosure to friend, family member and police 61

iv. Discussion. 62

Count 14: Eleanor Brooks. 62

i. Overview.. 62

ii. The Sexual Assault 63

iii. After the Surgery—Disclosure to friend and subsequent report to police. 64

iv. Discussion. 65

Count 15: Sharon Ferguson. 65

i. Overview.. 65

ii. The Sexual Assault 65

iii. Events after the Surgery—Disclosure. 66

iv. Discussion. 66

Count 16: Laurie Fortnum.. 67

i. Overview.. 67

ii. The Sexual Assault 67

iii. The Evidence of Diana Toma including the Statement made to her by the Accused. 68

iv. Evidence of other medical personnel 69

v. Disclosure following surgery. 70

vi. Discussion. 70

Count 17: Kimberly Wilson. 71

i. Overview.. 71

ii. The Sexual Assault 71

iii. After the Surgery—“don’t go fondling any more doctors”. 72

iv. Disclosure to friend and later to police. 72

v. Discussion. 73

Count 18: Ruth McDonald. 73

i. Overview.. 73

ii. The Sexual Assault 74

iii. Disclosure. 74

iv. Discussion. 75

Count 19: Jessica Cinelli 75

i. Overview.. 75

ii. The Sexual Assault 76

iii. Disclosure. 76

iv. Discussion. 77

Count 20: Judy Whitfield. 77

i. Overview.. 77

ii. The evidence of Dr. Feinberg: “Take that out of my mouth”. 78

iii. The Sexual Assault 79

iv. Disclosure. 79

v. Discussion. 80

Count 21: Farida Mohamed. 81

i. Overview.. 81

ii. The Sexual Assault 81

iii. Disclosure. 81

iv. Discussion. 82

VI. SUMMARY OF FINDINGS ON EACH COUNT.. 82

VII. SIMILAR FACT EVIDENCE.. 83

(i) The Legal Principles. 83

(ii) The Objective Unlikelihood of Coincidence. 84

VIII. CONCLUSION.. 84

I. INTRODUCTION

1. George Doodnaught is an anesthesiologist[^1] facing charges of sexual assault under S. 271 of the Criminal Code. He is accused of assaulting twenty-one female surgery patients over a four-year period ending in February 2010. He allegedly committed the assaults while the complainants were undergoing surgery while in a state of “conscious sedation” under his care.

2. The complainants ranged in age from twenty-five to seventy-five at the time of their surgeries; and their allegations range from kissing them, touching and/or fondling their breasts, to placing his penis in their hands, to inserting his penis into their mouths.

3. Dr. Doodnaught is alleged to have committed the assaults while concealed from view behind draping separating the sterile surgical area from the non-sterile area where he was positioned for the purpose of monitoring the patients’ anesthesia dosages, their vital signs, and their levels of consciousness.

4. In these reasons I conclude that the Crown has established the guilt of the accused on all twenty-one charges.

II. OVERVIEW

5. The twenty-one charges relate to surgeries that took place, with one exception[^2], at North York General Hospital (NYGH).

6. The surgeries consisted of three hysterectomies, fourteen orthopedic procedures (mostly knee or hip replacements); and the remaining four were a bowel stoma revision, a hernia repair, a urethral sling placement, and a liposuction procedure. The surgeries were performed in operating rooms configured for the types of surgery involved.

7. The charges arose after a complaint by Ms. Debra Dreise (count 1) following her hysterectomy surgery on February 11, 2010. Ms. Dreise complained to the hospital and then to the police that the accused had placed his penis in her mouth, fondled her breasts, and kissed her.

8. Investigation of the Dreise complaint revealed that there had been prior complaints against the accused. He was suspended by the hospital and later charged with three sexual assaults[^3]. On March 11, 2010, the day after his arrest, police and NYGH issued press releases. More charges were laid after other complainants came forward.

9. A total of ninety-eight witnesses gave evidence in this seventy-six day trial. The Crown called eighty-one witnesses in its case-in-chief. The defence called thirteen witnesses. The accused did not testify. The Crown called four reply witnesses.

10. I will first identify matters that are not in issue in the case. I will then identify the core issues in this trial and then address each of them in turn.

III. POINTS NOT IN ISSUE

11. The following points are not in issue:

i. No Issue of Identity – the defence concedes that the accused was the anesthesiologist for all of the complainants.

ii. No Allegation of Recent fabrication – the defence has not suggested that any of the complainants fabricated their allegations. Indeed, all but two of the complainants (Ramdin, count 3, and Volz, count 4) complained about sexual assault shortly after their surgeries to family and/or friends, and in some cases, to hospital staff. There had been three prior formal complaints to NYGH against Doodnaught. Two of them had been dealt with internally with no meaningful action taken, and a third had been investigated by the police but no charges were laid. Appendix “A” sets out the history of disclosure of the complainants’ allegations.

iii. No Allegation of Collusion – The defence does not suggest that any complainant’s evidence has been tainted by collusion, either deliberate or unintentional. The nineteen complainants who disclosed the assaults to family or friends shortly after their surgeries were each unaware of any prior complaints against the accused.

iv. No Allegation of Dishonesty of the Complainants – the defence concedes that the complainants each have an honest belief that they were sexually assaulted by the accused during or shortly after their surgeries. The defence position, as I will discuss below, is that their evidence is unreliable rather than dishonest.

IV. CORE POINTS IN ISSUE

12. The defence position is that the alleged assaults did not occur. In determining whether the evidence proves guilt beyond a reasonable doubt, the following core issues must be considered.

i. Opportunity to commit the offences

Likelihood of Detection

13. The defence submits that a variety of factors including the proximity and movement of medical personnel and the nature of the draping make it highly unlikely that the accused could have committed the offences without being seen.

14. The Crown, on the other hand, submits that the accused was able to shield himself from view during the surgical procedures due to the draping and layout of the ORs; and that neither the positioning of the patients nor the limited movement of personnel within the ORs deprived him of the opportunity to commit the assaults on the sedated, passive and vulnerable complainants undetected.

Physical Impossibility

15. The defence also argues that in some cases it was physically impossible to commit the offences, given the position and height of the patients, the height of the operating tables, the presence of equipment impeding access to the patients, the physical dimensions of the accused, or combinations of these and other factors.

16. The Crown, on the other hand, submits that the evidence shows that it was not physically impossible to commit the offences as the defence contends. On the contrary, the evidence shows that there were no physical impediments to commission of the crimes.

ii. The Effects of the Drugs: Reliability of Perceptions and Memory of Complainants under “Conscious Sedation”

17. The defence position is that the anesthetic drugs administered to the complainants dangerously impaired their ability to perceive and reliably recall events. The perceptions and memories of the complainants could easily have been a result of a combination of factors including drug-induced sexual hallucinations, misperceptions due to the accused’s caring and attentive approach, and mistaking appropriate medical practices for sexual assault.

18. The Crown position is that the types and amounts of drugs administered to the complainants were well within established norms routinely administered to thousands of surgical patients under conscious sedation in hospitals around the world over many years. The sedative effects of the drugs did affect the complainants’ ability to perceive and remember details of their surgeries, but not to the extent of rendering them unable to reliably perceive and recall unexpected, intrusive, shocking, and repugnant sexual assaults. As for sexual hallucinations, the Crown position is that with the dosages administered to the complainants, nightmarish ideations of sexual assault simply do not occur.

iii. Similar Fact Evidence: Weight and Impact

19. The defence concedes that the evidence relating to each count is admissible as similar fact evidence on the other counts, but disputes the weight to be given to such evidence and how the evidence should be interpreted.

20. The Crown points to the fact of twenty-one collusion-free female complaints against a single anesthesiologist among over twenty working in the same hospital administering similar drugs in similar dosages, and submits that the objective improbability of that occurring constitutes powerful confirmation of the guilt of the accused on all counts.

V. DISCUSSION OF EVIDENCE

Overview of Approach to these Reasons

21. I will first address the issue of opportunity. In considering whether the accused had the opportunity to commit the offences, I bear in mind that, as I will discuss later, the complainants were sedated, rendering them passive, vulnerable, and unable to offer effective resistance.

22. After discussing the issue of whether the accused had the opportunity to commit the offences, I will discuss the evidence concerning the effects of the anesthetic drugs on the patients’ perceptions, and the reliability of their memories.

23. I will then turn to the specific counts in the indictment. Before discussing the evidence concerning each charge, I will set out a chronology of events and revelations after the complaint on February 11, 2010 that precipitated the investigation that led to the arrest of the accused. I will then discuss the evidence concerning the specific counts in the order they appear on the indictment, with the most recent complaint first.

24. I will then deal with the issue of similar fact evidence and summarize the reasons for my conclusion that the accused has been proven beyond a reasonable doubt to be guilty of all twenty-one charges.

25. I turn now to the first issue; whether the accused had the opportunity to commit the offences undetected by medical personnel.

A. Opportunity

a) Overview

26. In this part of my reasons, I will discuss the issue of opportunity in general terms, then return to the issue where necessary when I discuss the evidence with respect to each count in the indictment.

27. Evaluation of the issue of opportunity requires consideration of many factors, including the layout of the various operating rooms, the presence, locations, and functions of the personnel (surgeons, nurses, vendor representatives, medical students and administrative and supervisory staff) present in the operating rooms, the positioning of the complainants on the operating tables, including the height of the tables, and the height and width of the drapes separating the sterile field from the non-sterile field which included the area at the head of the operating tables where the accused was working.

b) Taking a “View”

28. At the beginning of the trial, at the request of both the Crown and defence, I attended at NYGH and took a “view”[^4] of the Operating Rooms. Several of the relevant ORs had been set up by experienced nursing staff with draping typical for the types of surgeries the complainants underwent. Although I did not treat the view as evidence per se[^5], it was nevertheless of considerable assistance to me in appreciating the mountain of evidence that was adduced concerning the layout and setup of the operating rooms.

c) Overview of the surgeries performed and the allegations made

33. The twenty-one complainants had different types of surgery with different OR staff in different operating rooms. Three had gynecological surgery, fourteen had orthopedic surgery (mainly hip and knee replacements), two had surgery in the general ORs, one in the urology OR, and one had a surgical procedure off-site at the Rice Clinic. Appendix “B” contains a count-by-count list of the types of surgeries, the ORs, and the allegations relating to each complainant.

d) The Layout of the Operating Rooms

29. The relevant operating rooms are ORs 1, 2, and 12 (orthopedics), ORs 4 and 5 (gynecology), ORs 6 and 7 (general), and OR 11 (urology)[^6].

30. Each OR has a shared “scrub room” where medical personnel working in the sterile area are required to “scrub up.” Others, including the anesthesiologist and the circulating nurse (whose role I will discuss later), are not required to scrub up because they will not be entering the sterile area.

e) Medical Personnel in ORs, and their roles

1. Sterile Area: personnel and roles

i. Surgeons

31. The lead surgeon is charted as the “provider”. He or she is generally assisted by at least one other doctor, known as the assistant surgeon or assistant provider. Often there is a post-graduate and/or undergraduate medical student observing and sometimes assisting in the surgery.

ii. Scrub nurses

32. As well, there are one or more “scrub” nurses assisting with the surgery. With rare exceptions, these personnel remain in the sterile field for the entire surgery.

iii. Student observers

33. Occasionally, a medical student is permitted to scrub up and be in the sterile area to observe and sometimes assist. As I will discuss later, this occurred with Ms. Dreise, the complainant in count #1.

iv. Intent focus of surgical team

34. The evidence confirms that during surgery, members of the surgical team in the sterile area are intently concentrated on the surgery. They are not inclined to be looking around the OR at what other people are doing. As I will discuss later, the evidence also satisfies me that the height and width of the draping and the positioning of the various monitors and equipment at the head of the operating table renders it difficult if not impossible to see what the anesthesiologist is doing behind the drapes separating the sterile field from the non-sterile field.

2. Non-sterile area: personnel and roles

35. The anesthesiologist, circulating nurse, team attendants, and vendor representatives all work in the non-sterile area.

36. The anesthesiologist remains in the non-sterile field at the head of the operating table to monitor the patient’s level of anesthesia and vital signs.

i. Circulating nurse

37. The circulating nurse helps in the setup of the ORs prior to surgery. This responsibility includes assisting the anesthesiologist at the beginning of surgery in a variety of ways, including helping to start an IV for induction of anesthetics, placing ECG leads on the patient’s chest area[^7], putting on a blood pressure cuff, and placing a pulse oximeter[^8] on a finger.

38. Once the anesthesia has commenced and the patient is stable, the circulating nurse checks to ensure that all the equipment needed for the surgery is there.

39. The circulating nurse is responsible for maintaining the electronic chart, including the very detailed three-page Operating Room Record.

40. The electronic entries are made on a computer located at the end of the OR away from the head of the bed where the anesthesiologist can see the circulating nurse. Maintenance of the OR record is of obvious importance and I am satisfied on the evidence that it occupies most of the circulating nurses’ time.

41. Among other things, the circulating nurse is expected to record the presence of all medical and non-medical staff, their roles, and when they enter and leave. Unfortunately, however, some of this information is often omitted from the record.

42. The circulating nurse does, however, have other responsibilities, including, if time permits, preparing IV bags and sutures for the next case. In those situations, the circulating nurse will get up from the computer desk and approach the head of the operating table where the supplies are generally located.

ii. Team Attendants

43. Team attendants are generally present only at the beginning and end of the surgery. Their main role is to help with pre-surgery preparation, and patient transfer and positioning. They sometimes enter the OR during surgery if called upon to retrieve a required item.

iii. Vendor representatives

44. Vendor representatives (referred to by medical personnel as “vendor reps”) are involved in orthopedic procedures, mainly hip and knee replacements. Their presence is needed to help ensure that the prostheses or implants are properly assembled.

45. For patient privacy reasons, vendor reps leave the OR while the patient is being draped and catheterized in preparation for surgery, then return when the sterile drapes are in position.

46. Vendor reps generally remain throughout the surgery, standing behind the surgical team, although sometimes they leave if they are covering more than one OR at a time.

47. Vendor reps have no reason to approach the head of the table where the anesthesiologist is located, and the evidence satisfies me that they rarely do so.

iv. Anesthetic assistants

48. Anesthetic assistants were introduced in 2008. Doctor Doodnaught was among a minority of anesthesiologists who did not see the need for them and they seldom came into the ORs when he was the anesthesiologist. When they did come in, he was cordial to them and willing to answer their questions, but if they offered to help, he would thank them and politely tell them that they weren’t needed.

v. Medical students

49. Sometimes a medical student or two would be permitted to observe the surgery from the non-sterile field. They would stand on stools behind the surgical team to better observe the surgery; and they were expected to remain unobtrusive so as not to distract the medical personnel.

f) Entranceways to the ORs

50. Appendix “C” is a three-page chart describing the location of the doors for each OR from the perspective of the anesthesiologist.

51. Each of the eight ORs has three entranceways: through the scrub room, the sterile core[^9], and the main corridor. Six of the eight ORs have all doors at the end of the room away from the anesthesiologist, where he can easily see any comings and goings. Fifteen of the complainants had their surgeries in these ORs.

52. There were four orthopedic surgeries in OR2. The door to the OR2 scrub room has a window and is to the left of the head of the bed. The door to the non-sterile main corridor is behind the anesthesiologist. That door is not used during surgery.

53. There was only one procedure in OR11 (Fortnum—Count 16). This is the only OR where the door to the sterile core was behind the accused.

g) Traffic in the ORs during Surgery

54. People with no business in the ORs are discouraged from entering. If needed, medical personnel would occasionally be called in, for example when team attendants were needed, or if an urgent situation such as cardiac arrest were to arise. There are “call buttons” in each OR and two telephones, one by the circulating nurse’s station at the end of the room opposite the anesthesiologist, and another at the head of the table near the anesthesiologist.

55. Occasionally, a staff member or another anesthesiologist would enter to attend to administrative matters such as passing on the “pick list” (a means of scheduling anesthesiologists), or getting a signature on a cheque. Sometimes, a supervisor would come by. These types of visits were infrequent.

56. The circulating nurse would from time to time approach the head of the operating table, either to get something when asked, or to get things in preparation for the next case if there was time.

57. Although some random traffic is unavoidable and unpredictable, random traffic is infrequent. The accused had been an anesthesiologist since 1981 and had worked at NYGH for about 26 years. He was well familiar with the routines of the OR and hospital administration. As well, his vantage point at the head of the operating table afforded him ample opportunity to see anyone approaching.

h) Draping—separating sterile from non-sterile areas

58. During surgery, the OR has a sterile and non-sterile area. The area of the patient’s body above the sterile surgical site is separated by draping whose main purpose is to prevent contamination of the sterile surgical site.

59. The draping separates the patient’s head and torso from the surgical site. It also separates the anesthesiologist from the surgical site.

60. The height of the draping is determined by the anesthesiologist, who attaches the drapes to the IV poles on either side of the patient at the head of the operating table.

61. The layout and setup evidence came in several ways. Among them was the testimony of experienced surgical staff such as doctors and nurses, who had been present at the surgeries and who knew the typical setup for the particular surgery in question and the preferences of the surgeons and the anesthesiologist, Dr. Doodnaught.

62. There were also hundreds of visual depictions of the OR layouts and setups in the form of photographs and video laser scans tendered by both the Crown and defence.

63. The defence tendered 3-dimensional model video reconstructions of the OR setups, with medical personnel inserted in the videos in the locations asserted by the defence.

64. There was vigorous cross-examination about the accuracy and reliability of the photos and videos on the question of whether the accused could have committed the assaults without being seen. That question requires consideration of, among other things, the layout of the ORs, the height and width of the draping separating the sterile area from the non-sterile area, the positioning of the patients, and the positions and sightlines of the medical personnel.

65. Not surprisingly, there was vigorous disagreement between the Crown and defence over the height and width of the draping. The fact that there were twenty-one different surgeries that occurred years ago made it impossible to determine the extent of the draping with precision. The best that could be expected was to obtain a reasonably accurate understanding of the draping in the ORs at the relevant times.

66. The Crown resisted the admissibility of the defence laser scans and 3D model videos, but I ruled them admissible. I found them helpful to me in understanding the defence arguments, but I do not find them helpful as stand-alone evidence concerning the height and width of the draping, or the positioning of the medical personnel.

67. The weight of the evidence supports the Crown’s position that the best evidence of the draping setups and general layouts is found in exhibit 4, video laser scans, and ex. 7, a book of photos of the various ORs taken by detective Gregory Schofield, based on setups by nurse Diana Toma. The general accuracy of these depictions was supported by most if not all of the witnesses. I conclude that they provide a fairly accurate depiction of the typical setup for each of the procedures.

68. I also note that the evidence, including exhibits 4 and 7, shows that the head of the table has monitoring and other equipment nearby that would provide a further visual shield in addition to the draping.

i) Patient Positioning

69. The main goal of patient positioning is to give the surgeons access to the surgical site while also ensuring that the anesthesiologist has ready access to the patient from the end of the table in the non-sterile area. The patient’s physical comfort and safety is of course also a paramount concern.

70. There are seemingly limitless variables affecting patient positioning. Factors affecting the position of the patient include the type of surgery, the height and weight of the patient, and the surgeon’s preferred arm level during surgery. The operating tables are sophisticated devices designed to accommodate these variations. The height and length of the operating tables can be adjusted electronically. Each end of the tables can be lowered to a 90 degree angle, or removed entirely. As well, the tables can be raised or lowered to suit the circumstances of the case.

71. I do not think it helpful to embark on an explanation of the details of patient positioning for the various surgeries. However, it may be useful to identify a few terms that may not be within the knowledge of a lay person:

(i) Lithotomy position (gynecology)

72. For gynecological procedures, patients are often placed in the “lithotomy” position. This is a supine position with the hips and knees fully flexed and the legs strapped in position. The bottom part of the table is lowered by 90 degrees or removed entirely so that the surgical site is at the end of the table and easily accessible to the surgeon. If the patient is short in stature, her head will be further down the bed. In that situation, the anesthesiologist will lower the head of the bed to allow access to the patient’s airway.

(ii) Trendelenburg position

73. With surgery in the abdominal area, the surgical team will often need to move internal organs to gain access to the surgical area. In those cases, the operating table can be electronically tilted back so that the effects of gravity will help move the organs away from the area the surgeons need to access. This tilted-back position is known as the Trendelenburg position.

(iii) Mayo stand

74. The Mayo stand or Mayo tray is used during orthopedic surgery to allow the surgical team easy access to needed equipment. It is placed over the patient’s head or chest area before draping. After draping is complete, the equipment is placed on the top of the Mayo stand on the sterile side of the draping.

75. There was much debate about the height and positioning of the Mayo stands. When the stand is placed over the patient’s head, it must be high enough to allow the anesthesiologist easy access to the patient’s airway. Other than that requirement, the height of the Mayo stand is usually adjusted in accordance with the preference of the surgeon.

(iv) Cautery Machine

76. Cauterization is often used to minimize blood loss. The cautery machine is generally positioned on a mobile stand near the head of the bed. (Ex. 7A photo 4146).

(v) PACU

77. PACU is an acronym for Post-Anesthetic Care Unit. Sedated patients are brought there for monitoring before either being transferred to a hospital room, or discharged from hospital.

j) Physical Impossibility

78. As I indicated earlier, the defence argues that for some of the counts on the indictment, the allegations are simply impossible given the height of the table, the position of the patient, and the height and anatomical characteristics of the accused.

i. Physical characteristics of the accused

79. Dr. Kenneth Gamble, the accused’s personal physician, gave evidence of the accused’s physical characteristics. They are summarized in exhibit 166, and include his height and physical dimensions, including the characteristics of his penis, including skin coloration, length when both flaccid and erect, and distance of the penis from the floor when flaccid and erect.

80. Dr. Gamble testified that the skin colour of the accused’s penis is considerably darker than the rest of his body. He also confirmed that the accused is uncircumcised.

81. It is argued that the anatomical dimensions of the accused including his height and penile length contributed to the impossibility of his committing some of the offences. I will address those issues where I consider them relevant, when I discuss the specific counts in the indictment.

ii. Dimensions of operating tables, patient positioning, and presence of equipment

82. In some of the counts, particularly where it is alleged that the accused paced his penis in the complainant’s mouth, it is argued that, given the height and width of the table, the positioning of the patient, the interference of the armboards, and the presence of equipment at the head of the operating table, the acts were physically impossible. I will deal with those arguments where I consider them relevant, when I discuss the specific counts in the indictment.

k) Miscellaneous Issues concerning opportunity

i. Scrub pants

83. A standard pair of scrub pants of the type typically worn by the accused was introduced at trial as exhibit 10. They have a drawstring with a V-shaped opening on the left side. I have examined exhibit 10 and in my opinion, it would easy to loosen the drawstring and either lower the pants or move the opening to the front in order to expose the penis.

ii. Lab coat

84. There was evidence that the accused commonly wore a long gown or lab coat over his scrubs. It could be cold in the ORs and others working in the non-sterile area often wore them as well. These gowns are readily available to OR staff. Ex. 83b is a photo showing them hanging on hooks in one of the ORs. The gowns open in the front like a bathrobe, and would provide a further shield to detection.

iii. Reputation for being “touchy-feely”

85. Dr. Doodnaught had been an anesthesiologist at NYGH for about twenty-six years. He enjoyed a reputation as a competent, caring and sensitive anesthesiologist. Indeed, he was often asked for when hospital staff or their family or friends were to undergo surgery. His approach, particularly with female patients, was to soothe them by speaking softly to them and often by stroking their cheek or their hair. Several witnesses described his manner as “touchy-feely”.

86. Because he was known for his caring approach, OR staff did not consider it unusual for him to be in very close physical proximity to sedated patients under his care.

l) Conclusions re: Opportunity

87. To a lay person, operating rooms may seem busy and confusing. But the evidence shows that for the medical professionals who work there regularly, the operating rooms are carefully structured, orderly, well-organized environments. The medical procedures are carefully planned and carried out with precision. The highly-trained, skilled, and dedicated medical personnel recognize the serious nature of their work and are intently focused on their responsibilities.

88. The accused was familiar with the routines and patterns of the surgical procedures. With only one exception[^10], his vantage point was such that he could see anyone who approached him.

89. Random visits sometimes happened, but they were infrequent.

90. The draping at the head of the operating tables, and the equipment nearby, shielded the accused enough to allow him to commit the relatively brief assaults without being seen. The surgeons were focused on their work, and the patients were sedated and unable to call for help or to offer effective physical resistance.

91. I am unable to accept the defence submission that in some cases, it was physically impossible to commit the acts alleged. I will discuss the issue of physical impossibility, where relevant, when I address the counts individually later in these reasons.

92. I conclude that the accused had the opportunity to commit the sexual assaults he is accused of.

B. THE EFFECTS OF THE ANESTHETICS ON AWARENESS AND MEMORY

a) Areas not seriously in dispute

93. Patients under conscious sedation have varying levels of consciousness during surgery. At times, their level of consciousness will be ‘aware but docile and tranquil’, and at other times, they will be ‘asleep but arousable’. This was confirmed by the anesthesiologists from NYGH: Drs. Shilletto, Brown, Brose, and Calhoun; and it was not contradicted by the expert witnesses called by the Crown and the defence.

94. Creating amnesia is not the principal aim of sedation, but it is a desirable secondary objective since it reduces emotional trauma to the patient.

95. Complete amnesia is uncommon with patients under conscious sedation.

96. There is nothing remarkable about the types and dosages of drugs administered to the complainants. They were noted by Dr. Doodnaught himself on the Anesthesia Records which were then signed by him. The medical records for each complainant are contained in exhibit 1, in both electronic and hard-copy format. The drugs and dosages noted on the Anesthesia Records have been itemized patient-by-patient in a chart entered as ex. 114. The drugs and dosages noted are well within established norms. Drugs in these quantities have been routinely administered to hundreds of thousands of patients in developed nations throughout the world for many years.

97. With the levels of drugs administered in these cases, no witness had ever heard of a case involving multiple allegations of sexual assault such as what is alleged here.

98. With most if not all of the complainants, there was independent evidence showing that they were awake, aware, and responsive during at least part of their surgeries.

b) Areas in Dispute

99. The defence position is that the Crown’s case for conviction collapses when fair consideration is given to the combination of factors that undermine the reliability of the complainants’ claims of sexual assault.

100. In addition to the previously-discussed position that it was impossible to commit the offences in busy operating rooms with random traffic without being detected, the defence also argues that the reliability of the complainants’ memories has been dangerously undermined by the anesthetics that they received.

101. The defence points out that most of the complainants have fragmented and sometimes demonstrably inaccurate recollections of their surgeries. The defence position is that their fragmented and sometimes inaccurate perceptions demonstrate the general unreliability of their memories.

102. The defence also argues that Dr. Doodnaught’s caring, attentive approach was misconstrued by many of the complainants and has compounded the dangers of distorted memories associated with the anesthetics and has contributed to their honest but mistaken belief that he sexually assaulted them.

103. The defence experts have testified that sexual hallucinations with the drugs used here is well-documented in the literature and could have caused or contributed to the complainants’ honest but mistaken belief that they were sexually assaulted by the accused. Although the documented cases of sexual ideation or fantasy involved much higher dosages, not enough is known about the additive or synergizing effects of combining the drugs. The defence experts say that the combinations of drugs used here may have had a synergizing effect that could have caused or contributed to the complainants’ perceptions that they were sexually assaulted by the accused.

104. The defence also introduced an additional issue, described as a “bite-down reflex”. This phenomenon was described by defence expert Dr. Orlando Hung. The defence argues that the bite-down reflex is common knowledge among anesthesiologists and makes it highly unlikely that the accused would risk inserting his penis into a sedated patient’s mouth.

105. The Crown position is that fragmented and sometimes inaccurate memory is to be expected for patients undergoing surgery with sedation. Compromised memory is understandable, but complete amnesia is uncommon with consciously sedated patients, and the evidence shows that sedated patients are more likely to recall unwanted repugnant sexual assaults than less traumatic events routinely occurring during surgery.

106. The Crown position, supported by its two expert witnesses, is that it is wrong to say that not enough is known about the synergizing effects of the drugs used in these cases. The Crown points to the undisputed evidence of a long history of virtually event-free surgeries on hundreds of thousands of consciously-sedated patients using the same or similar drugs, and submits that it is fanciful to suggest that drug-induced hallucinations could have caused or contributed to false memories of sexual assault on the part of the complainants.

107. The Crown position is that although sexual ideation can be a byproduct of the drugs used here, it happens very rarely and only at much higher dosages. As well, when sexual ideation does occur, it almost always involves benign fantasies, not nightmarish hallucinations of sexual assault.

108. The Crown submits that the opinions of the defence experts are entitled to little or no weight because they are founded on false or biased assumptions, overstate the possibility of sexual hallucinations, and exaggerate or distort the authority of many of the articles they rely on to support their opinions.

109. Furthermore, the Crown submits that if the drugs caused hallucinations of sexual assault, one would expect them to be random. They would come from both female and male patients and would not all be directed at a single anesthesiologist among the approximately twenty-five who were working in the same hospital administering the same drugs and dosages.

110. I turn now to a discussion of the expert evidence.

c) Crown Experts

i. Dr. Susan Belo

111. Dr. Susan Belo, Ph.D. (pharmacology), M.D., FRCPSC, is chief of anesthesiology at Sunnybrook Health Sciences Centre, and an Associate Professor in the Departments of Anesthesia, Medicine and Pharmacology at the University of Toronto, where she has taught for the past twenty-three years. She is a member of the Executive Council of the Department of Anesthesia at the University of Toronto. At Sunnybrook Hospital, she is a member of the Board of Directors, chairs the Credentials Committee, and is a member of the Medical Advisory Committee.

112. Dr. Belo conducts a full-time clinical practice as an anesthesiologist at Sunnybrook. She was permitted to give expert opinion evidence in the fields of pharmacology and anesthesiology.

113. Dr. Belo explained that conscious sedation involves varying levels of consciousness with some diminished cognitive function, but intact respiratory and cardiovascular function.

114. Dr. Belo explained that levels of sedation are quantified by use of the “Ramsay Scale”[^11], a six-point scale recently made a requirement for use by anesthesiologists in charting levels of awareness. The higher the number, the greater the depth of sedation. Patients under conscious sedation will generally be between “2” and “4” at various times during surgery. At “2”, the patient is “co-operative, oriented and tranquil”, at “3”, the patient “responds to commands only”, and at “4”, the patient is arousable and “exhibits brisk response to light glabellar (i.e. forehead) tap or loud auditory stimulus”.

115. Dr. Belo reviewed the charts for each of the complainants and examined the Anesthesia Records prepared and signed by Dr. Doodnaught. Although there were deficiencies in the charting, Dr. Belo was satisfied that the recorded drugs and dosages were within an acceptable range that is commonly and extensively used with patients under conscious sedation throughout the world.

116. Dr. Belo expressed the opinion that with the reported drugs and dosages, the complainants would have been conscious for parts of the surgery and would be able to recall actual events.

117. Dr. Belo testified that she does about 700 cases a year and has done in the range of 17000 cases during her 25 years as a practicing anesthesiologist. At Sunnybrook Hospital, about 15,000 surgeries are done with anesthesia each year, with about 30% or roughly 4500 of them involving conscious sedation.

118. Based on her reading, she understands that about 60,000 people a day undergo anesthesia in the United States and taking Canada’s relative population size into account, she assumes that about 6000 people undergo anesthesia daily in Canada.

119. Dr. Belo testified that she has never heard of a patient alleging sexual assault against an anesthesiologist in her career. She would not expect that the drugs administered to the complainants could cause sexual hallucinations.

120. Dr. Belo was asked to comment on the fact that when complainants reported their concerns to family members, they often immediately discounted the reporting as being the result of the drugs. She testified that in her experience, there is a common misconception among the lay public that anesthetic drugs always alter the perception of events, and therefore people tend to conclude that if something unexpected or out of the ordinary is reported, it must be the drugs.

121. Dr. Belo also testified that she is not aware of a phenomenon known as the “bite-down reflex”. She acknowledged that a patient under general anesthesia with an endotracheal tube down their throat might bite down as they are coming out of the anesthetic, but the phenomenon is uncommon even with intubated patients under general anesthetic. She acknowledged that during an endoscopy procedure where a tube is inserted down the throat of a patient under conscious sedation, an oral airway might be used to protect the tube in case the patient bites.

122. Dr. Belo readily acknowledged that her expertise as a pharmacologist and anesthesiologist tends more toward the hands-on practical realities of the effects of the drugs used during surgery cases. She conceded that her expertise does not extend to include the global medical literature concerning sexual ideation.

123. In summary, Dr. Belo’s evidence is that the drugs administered by Dr. Doodnaught appear to have been within the normal range for patients under conscious sedation. The patients’ sedation would impair their perceptions, but they would be able to recall events during periods of awareness. She would not expect the drugs to cause sexual hallucinations.

124. Dr. Belo’s evidence drew on her personal experience as a practicing anesthesiologist and pharmacologist. With her twenty-five years of experience in thousands of cases, she has never encountered a case involving allegations of sexual assault against a single anesthesiologist.

125. I find Dr. Belo’s evidence to be objective, impartial, and of considerable assistance in understanding issues related to the varying levels of consciousness of the complainants, their ability to recall events, and the likelihood that their memories are the product of drug-induced sexual ideation.

ii. Dr. George Mashour

126. Dr. George Mashour also testified as an expert witness for the Crown. He is an anesthesiologist who also has a Ph.D. in neuroscience. Among his appointments, he is Associate Chair for Faculty Affairs, and an Assistant Professor of Anesthesiology and Neurosurgery at the University of Michigan Medical School and Attending Neurointensivist at the Department of Neurosurgery at the University of Michigan Health Centre.

127. Dr. Mashour has conducted extensive research into the incidence of intraoperative awareness for patients during surgery under general anesthesia and conscious sedation. He has published extensively in these and other aspects of consciousness and anesthesia.

128. He was permitted to give evidence as an expert in the field of anesthesiology and neuroscience.

129. Dr. Mashour made several observations bearing directly on the issues in this case.

130. Dr. Mashour said there was nothing unusual about the drugs reported to have been given to the complainants. Dr. Doodnaught should have recorded the rates of infusion for one of the drugs used (Propofol), but based on all the information, it appears that the dosages were within the normal range for patients under conscious sedation.

131. Patients under conscious sedation with these drugs would experience levels of awareness on a continuum from complete awareness to asleep but arousable.

132. The higher their levels of consciousness, the more likely they would be able to recall undesired and unexpected events.

133. Dr. Mashour’s review of the published material revealed that while sexual hallucinations with the drugs used by Dr. Doodnaught have been reported, they are very rare and involve far higher dosages than were administered by Dr. Doodnaught.

134. In one of his large retrospective studies[^12] conducted in 2009, undesired intraoperative awareness was reported by only seven of 22, 885 patients under conscious sedation, for a rate of 0.03%. Moreover, none of the 22,885 subjects reported anything of a sexual nature.

135. In his published report on the study, and in his evidence, Dr. Mashour identified its methodological limitations, and acknowledged that the reliability of the results of the study likely suffered as a result. The cohort of interviewees had not been asked about sexual issues. They were asked an open-ended question: “did you have any problems with your anesthesia or your surgery?”.

136. Dr. Mashour acknowledged in cross-examination that sexual ideation likely was underreported in the study due to the open-ended nature of the question and factors such as embarrassment and reluctance to discuss sexual matters. He acknowledged that the topic of sexual ideation during sedation may be incapable of proper scientific study.

137. Dr. Mashour noted that 0.52%[^13] of Dr. Doodnaught’s patients claimed to have experienced explicit recall of sexual assault. This figure represents a seventeen-fold higher incidence of undesired awareness with Dr. Doodnaught’s sedated patients than reported by the subjects in Dr. Mashour’s 2009 study.

138. Dr. Mashour testified that even taking into account the shortcomings of his 2009 results, Dr. Doodnaught has a much higher rate of unexpected recall than he would anticipate.

139. Dr. Mashour testified that if the drugs were the reason for the far greater-than-expected rate of unexpected recall, he would not expect them to relate to a single provider, nor all to involve sexual ideation, much less allegations of sexual assault.

140. In his view, the chances that the drugs are the reason for twenty-one allegations of sexual assault against a single provider are “vanishingly rare”.

141. As for the “bite-down” phenomenon, Dr. Mashour agreed that it can occur in situations where a patient under conscious sedation is waking up and an oral airway or suctioning device is inserted into the patient’s mouth.

142. I accept the defence submission that the study of sexual ideation during sedation is not amenable to precise scientific study. I accept that Dr. Mashour’s studies have methodological limitations that make the results less reliable, but they do shed light on the rarity of unwanted awareness in patients under conscious sedation.

143. I conclude that Dr. Mashour’s opinion that hallucinations of sexual assault in patients under conscious sedation is virtually unheard of is entitled to considerable weight.

d) Defence Experts

144. The defence called three expert witnesses, Dr. Joel Jeffries, Dr. Allan Aitkenhead, and Dr. Orlando Hung. Their evidence was heard on a voir dire, with counsel`s agreement that if I rule the evidence admissible, it would apply to the trial itself, subject to the weight to be given to it.

145. The Crown ultimately conceded the admissibility of the evidence of Dr. Aitkenhead and Dr. Hung, subject to argument concerning its weight. The Crown maintained its position that Dr. Jeffries evidence was irrelevant and inadmissible. In the end, I ruled Dr. Jeffries evidence to be admissible[^14].

146. I turn now to the evidence of the three defence experts.

(i) Dr. Joel Jeffries

147. Dr. Jeffries is a very experienced and respected psychiatrist and an expert in the effects of psychotropic drugs on perception and memory. He is not an anesthesiologist and is not an expert on the impact of the drugs administered by Dr. Doodnaught on the reliability of the memories of the complainants. As I indicated above, I ruled his evidence admissible. I admitted it because I felt that it could assist me to understand the effects of psychotropic drugs on perception and memory.

148. With respect, I found Dr. Jeffries’ expressions of opinion lacked the objectivity expected of an expert witness. I will mention only a few of the reasons for my conclusion.

149. Dr. Jeffries expressed the opinion that the synergistic effects of the drugs administered to the complainants could result in sexual hallucinations. He acknowledged that he did not pay much attention to the dosages administered to the complainants in this case. But he also acknowledged that dosages are important in considering the synergizing effect of the drugs and the ultimate issue of their effect on perceptions and memory.

150. The limited research he relied on involved cases where the dosages were much higher than in this case. Although he claimed not to have known whether the doses administered to the complainants were high or low, he said that he thought he had read that they were “low-ish”.

151. I find that Dr. Jeffries ignored evidence that did not support the opinion he wished to advance.

152. Furthermore, Dr. Jeffries’ views were informed in part by assumptions about areas that were outside his expertise.

153. I am unable to give any weight to the opinion evidence of Dr. Jeffries.

(ii) Dr. Alan Aitkenhead

154. Alan Aitkenhead is an Emeritus Professor of Anaesthesia at the University of Nottingham. He was Head of the Division of Anaesthesia and Intensive Care at the University of Nottingham from 1989 to 2010. He is Past President of the Association of Anaesthetists of Great Britain and Ireland and is a founding member and Past President of the European Society of Anaesthesiologists. He was an examiner for the Royal College of Anaesthetists between 1990 and 2002. He has been on editorial boards and acted as assessor for several academic journals, and is the editor of various anaesthesiology texts, including the leading “Textbook of Anaesthesia”, now in its fifth edition. He has published over 120 articles in scientific journals and books, and 19 editorials.

155. Dr. Aitkenhead reviewed the medical charts and the reports of the complainants’ testimony. His opinions are supplemented by reference to publications dealing with the incidence of drug-induced hallucinations.

156. I have concluded that the opinions of Dr. Aitkenhead do not assist me in evaluating the core issue of the reliability of the complainants’ memories of having been sexually assaulted. I will identify some of the areas of Dr. Aitkenhead’s evidence that have caused me to conclude that his opinions should be given very little weight.

a) Dr. Aitkenhead’s assertion that sexual hallucinations are not rare

157. In asserting that sexual hallucinations are not rare with the drugs in use in this case, Dr. Aitkenhead emphasized the limitations in Dr. Mashour’s studies and asserted that they yield misleading results that undermine the reliability of Dr. Mashour’s opinion. I agree that the limitations in Dr. Mashour’s study undermine the reliability of the results, but I am aware of the limitations and not misled by the results.

158. In furtherance of his assertion that drug-induced hallucinations are not rare, Dr. Aitkenhead referred in his report to published studies and articles. I do not intend to review the evidence concerning them, but I am satisfied that the publications cited by Dr. Aitkenhead do not support his contention that drug-induced sexual hallucinations are not rare with the drugs under consideration in this case.

159. The publications cited by Dr. Aitkenhead involve allegations of sexual assault where the dosages were significantly higher than the dosages administered to the complainants in this case; and even with those higher dosages, the incidence of hallucinations of sexual assault was still very low.

160. Furthermore, in one publication cited by Dr. Aitkenhead in support of his contention that sexual hallucinations are not rare[^15], it turned out that the report was referring to benign and pleasant sexual ideations, quite unlike the types of allegations made by the complainants in this case.

161. Dr. Aitkenhead acknowledged that he is unaware of any cases where anything like the numbers of allegations in this case have been made, much less allegations directed at a single individual, and in circumstances where, as in this case, the drugs and dosages were within commonly-used ranges for patients undergoing surgery under conscious sedation.

b) Misperceptions caused by standard medical practices

162. Dr. Aitkenhead suggested that standard medical practices can be misperceived by patients who are in a state of diminished consciousness.

163. He suggested, for example, that allegations of oral sex have often been associated with insertion of a plastic airway into the mouth. I appreciate that misperceptions of that kind can occur, but the evidence satisfies me that they would be very rare. Furthermore, in this case, there is no evidence to suggest that artificial airways were ever used with any of the complainants. Indeed, the Anesthesia Reports prepared and signed by Dr. Doodnaught have a place for the anesthesiologist to indicate if an artificial airway was used, and Dr. Doodnaught never once made an entry indicating that an oral airway device was used.

164. Dr. Aitkenhead said that the BP (blood pressure) cuff placed on the patient’s arm automatically inflates at intervals, and this can cause the arm to move and be misinterpreted as masturbation. I find this opinion speculative, inconsistent with the evidence, and unreasonable.

165. Dr. Aitkenhead testified that adjustment of ECG leads or movement of instruments resting on a patient’s chest can be misconstrued as breast fondling. The evidence in this case shows that ECG leads rarely require adjustment and there is no evidence suggesting that ECG leads were adjusted in any of the cases involving the twenty-one complainants.

c) Unlikelihood of commission of offences without detection

166. Dr. Aitkenhead’s opinion that the allegations in this case are the product of sexual fantasy is based in part on his opinion that it was impossible to commit the sexual assaults without detection. Although Dr. Aitkenhead has extensive experience as a clinician in operating rooms and has visited similar facilities in many parts of the world, he did not familiarize himself with the specific evidence concerning the layout, draping, presence and function of medical personnel at NYGH. I acknowledge his expertise, but with respect, having heard and examined the evidence of opportunity in detail, I cannot give weight to his opinion that these assaults could not have been committed without detection.

d) Inability to resist

167. At paragraph 62 of his report (exhibit 206), Dr. Aitkenhead rejected the notion that conscious sedated patients could be unable to move or cry out:

Most of the patients were sedated; their accounts indicate that they believe that they were not unconscious at the time of the alleged sexual assaults. Many were talking to Dr. Doodnaught and were therefore able to communicate and were capable of movement. Despite the fact that some of the patients indicated that they attempted to verbally or physically resist the assault, they were incapable of responding. This is inconsistent with their stated awareness. (my emphasis)

168. Dr. Aitkenhead adopted that statement in his testimony[^16]:

…it seems to me that they were saying that they were unable to

respond because they couldn't move, when in fact at that level of

awareness, in my opinion, in a sedated patient it is perfectly possible

for the patients to move, to speak, to shout, to attract attention, and to

resist an assault.

169. Dr. Aitkenhead did not refer to any published report to support his opinion that for sedated patients who were not unconscious, it would be “perfectly possible” for them to move, speak, shout and resist an assault. I was not made aware of any published reports supporting Dr. Aitkenhead’s assertion. The only reports that I have been made aware of tend to support the contrary position—that many conscious sedated patients experience awareness with an inability to move or cry out[^17].

e) Conclusion concerning the evidence of Dr. Aitkenhead

170. Dr. Aitkenhead’s opinions overstated the findings contained in the publications he relied on. He ignored or dismissed reports that did not accord with his opinions and did not identify reports supporting them.

171. In suggesting that patients can mistake insertion of an oral airway for oral sex, he failed to take into account the fact that Dr. Doodnaught’s own Anesthesia Reports indicate that no oral airway devices were used with any of the complainants. His suggestion that intermittent inflation of a BP cuff could be mistaken for masturbation was speculative and unhelpful. .

172. I am unable to rely on the opinion evidence of Dr. Aitkenhead.

(iii) Dr. Orlando Hung

173. Dr. Orlando Hung is an anesthesiologist with a degree in pharmacy. He is a full Professor in the Departments of Anaesthesia, Surgery and Pharmacology at Dalhousie University. He is widely published, and a sought-after speaker.

174. Dr. Hung has specific expertise associated with airway management, and is co-author of a book on the subject, entitled Management of the Difficult and Failed Airway.

175. Dr. Hung was tendered as an expert in anaesthesiology, clinical pharmacology, pharmacy and airway management.

176. Dr. Hung gave evidence in two principal areas: The “bite-down” reflex, and the effects of the drugs administered to the complainants on the reliability of their memories. I will address the “bite-down” issue first.

a) The “Bite-Down Reflex”

177. Dr. Hung drew on his specific expertise in airway management to express his opinion that patients under conscious sedation can bite down with extreme force when something is inserted in their mouths. He also testified that this phenomenon is common knowledge within the field of anesthesiology. The defence has asserted that the bite-down reflex would be a powerful deterrent to anyone considering inserting his penis into the mouth of a patient under conscious sedation.

178. Having considered Dr. Hung’s testimony in the light of the testimony of other anesthesiologists who gave evidence at trial, I conclude that the bite-down phenomenon occurs only when an oral airway device such as a laryngeal mask or an endotracheal tube has been placed down the throat of the patient. When the device is being removed from the throat of the patient, as they are waking up from a general anesthetic or heavy sedation, patients may well commonly bite down hard, as Dr. Hung suggests. However, this phenomenon is irrelevant to the issues presented in this trial. In this trial there is no evidence that even hints that any of the complainants ever had an artificial airway placed down their throats.

179. I do not accept the evidence of Dr. Hung that the bite-down phenomenon can occur when something is placed in the mouth of a consciously sedated patient. I accept that some patients who are sedated but aware will resist the insertion of something into their mouths, and I do not discount the possibility that they could bite down, but the evidence suggests that sedated patients whose state of awareness is “2” or more on the Ramsay scale will be placid and docile, and will be unable to offer meaningful resistance to unwanted events such as sexual assault.

180. I find the bite-down reflex issue to be irrelevant to the issues presented by this case.

b) Effects of sedative drugs on levels of awareness and reliability of memory

181. Dr. Hung agreed that based on his review of the medical charts and the preliminary inquiry testimony of the complainants, their levels of consciousness varied from awake to asleep, but generally, they would have been at a level of consciousness of between “2” and “3” on the Ramsay scale.

182. Dr. Hung stated that his review of the literature reinforces his opinion that sexual fantasy is possible with the levels of drugs administered to the complainants in this case. He frankly acknowledged that allegations of this type in these numbers with these drugs, all directed at the same individual, is virtually unheard of, but he was firm in his opinion that sexual hallucination cannot be discounted as a possible explanation for the complaints against Dr. Doodnaught.

183. Dr. Hung also discussed the amnesic effects of the drugs and suggested that if Dr. Doodnaught had wanted to make sure the patients didn’t remember what had happened to them, he could have increased the likelihood of amnesia by increasing the infusion levels of Midazolam.

184. Dr. Hung agreed that complete amnesia is rare for patients under conscious sedation. He also agreed that emotionally significant, traumatic events such as sexual assault are more likely to be recalled.

c) Conclusion re: Evidence of Dr. Hung

185. I found Dr. Hung to be not only knowledgeable, but objective and fair. I reject the Crown submission that his opinions lacked objectivity.

186. However, Dr. Hung’s evidence does not cause me to doubt that patients under conscious sedation are able to reliably recall emotionally traumatic events. And the “bite-down” phenomenon has no application to the issues in this case.

CONCLUSION CONCERNING THE EFFECTS OF THE ANESTHETICS ON AWARENESS AND MEMORY

187. The anesthetic drugs administered to the complainants in this case had the effect of altering their perceptions and contributing to compromised and fragmented memory. The complainants were in a state of sedation in which their levels of awareness varied during different periods of their surgeries. Sometimes, they were asleep but arousable; sometimes they were awake and responsive; and sometimes they were aware but unable to meaningfully respond to unwanted and unpleasant stimuli.

188. Although the drugs the complainants received had amnesic effects, complete amnesia is not common for patients under conscious sedation. And negative stimuli are more resistant to the drugs’ amnesic effects than routine, benign stimuli.

189. Put more plainly, the complainants were aware at times during the surgery, but unable to put up much resistance to unwanted events. They were able to perceive and to remember if they were subjected to sexual assault during the periods when they were awake and aware.

C. DISCUSSION OF SPECIFIC COMPLAINTS

Overview of Chronology of Events Leading up to Arrest, Including Discovery by Senior Hospital Management and Police that there had been Three Prior Formal Complaints

190. Before discussing the evidence specific to each count in the indictment, it may be helpful to pause to briefly discuss how the three prior formal complaints had been disposed of, and how they came to light only after the complaint by Ms. Dreise following her surgery on February 11, 2010.

191. I have already pointed out that in the four years prior to Ms. Dreise’s complaint, there had been three formal complaints of sexual assault against the accused in which no action was taken against him. As appendix “A” shows, the first complaint was made by Farida Mohamed (count 21) in February of 2006, The second complaint was made by Betty Bell[^18] in August of 2007, and the third complaint was made by Laurie Fortnum (count 16) after her surgery in December 2008[^19].

192. However, as I will discuss, none of the prior complaints had been made known to senior hospital management.

193. When the Dreise complaint was made, the hospital’s chief of staff was Dr. Donna McRitchie. She was chair of the Medical Advisory Committee (MAC). The MAC sits at the top of hospital management. It oversees physician credentialing, quality of patient care and other important issues, and reports directly to the NYGH’s Board of Directors.

194. Dr. Steven Brown was chief of anesthesiology. He had held the post since July of 2006. He was chief when the Bell and Fortnum complaints were made, and was well aware of them as were other senior hospital staff. Although the Mohamed complaint had been made and dealt with a few months before Dr. Brown became chief, he knew about it because his predecessor, Dr. Derek Shilletto, had briefed him about it.

195. A few days after the Dreise complaint was made, a meeting was held, and it was then that Dr. McRitchie and her senior colleagues learned for the first time that there had been three prior formal complaints against Dr. Doodnaught.

196. Dr. Brown was asked to provide a written report by the end of the week, containing all information about prior complaints against Dr. Doodnaught, whether documented or not.

197. After Dr. Brown’s report was received and reviewed, Dr. McRitchie held a large meeting of all the OR staff on Wednesday February 24, 2010. Sixty to eighty people were present. She advised the group that there had been an allegation against “one of our anesthesiologists of a sexual assault during the course of an operation.” She did not name Dr. Doodnaught. She told OR staff to be cooperative with police and with the “CPSO” (College of Physicians and Surgeons of Ontario), and to come forward with any information they have. At the same time, she emphasized privacy and confidentiality concerns, and asked staff not to discuss the allegation in email.

198. That same day, Dr. Brown sent an email (ex. 61) to colleagues in his department. It named Dr. Doodnaught as the object of the complaint and urged support for “George.” I have set out excerpts from it:

…[t]here has been a serious allegation from a patient leveled at Dr. Doodnaught. The police and CPSO are involved. A comprehensive internal review of the complaint has been completed. There may be media involved in the coming days.

…we need to support George in any way we can during the investigation.

…requests for statements or information need to be forwarded to me, then I will consult with Corporate communications and the hospital lawyers. It is best for the hospital AND George if information is exchanged in a standardized controlled fashion. Please do not make any comments to the police and/or lawyers going forward.

199. The sending of the email by Dr. Brown was a serious concern to Dr. McRitchie. Not only had Dr. Brown sent it contrary to her stated wishes, but also its content went against her request to respect privacy and confidentiality and for OR staff to cooperate with police and the CPSO and come forward with any information.

200. In addition to concerns about failure to disclose prior complaints, and the sending of the inappropriate email, Dr. McRitchie had another serious concern about Dr. Brown having approved Dr. Doodnaught’s annual renewal applications while knowing about prior complaints against him.

201. A brief explanation of the renewal application process will help explain Dr. McRitchie’s concern.

202. Each doctor with privileges at NYGH is an independent practitioner who must apply annually for reappointment. The doctor must fill out and sign a five-page form[^20] asserting that its contents are true and accurate and acknowledging that misstatements or omissions may be cause for refusal or suspension of reappointment.

203. The doctor seeking reappointment signs the document then gives it to the chief of the department for his or her signature.

204. Under the heading “Practice Review” on page 3 of the renewal application, question 4 asks the renewal applicant:

Have you been the subject of any hospital inquiries or investigations regarding concerns about your privilege status, competence, quality of care or other conduct affecting your professional performance? Yes/No

205. Dr. McRitchie testified that when a department chief signs off on a reappointment form, it signifies agreement that to the best of his or her knowledge, the answers on the form are accurate. The MAC ultimately approves each reappointment, and places great reliance on the reappointment forms signed by the applying doctor and the chief of the department.

206. An excerpt from the NYGH General Policy Manual was introduced as exhibit 54. It sets out the mandatory policy concerning reports of sexual abuse of patients. Page two of the excerpt refers to the crime of sexual assault, and states:

A staff member must report any incidents observed, suspected or reported to them where a patient has been the subject of assault/abuse to his/her unit Administrator/Department Director, who will investigate and take suitable action…” (emphasis added)

207. Exhibits 53A-E are four renewal application forms signed by Dr. Doodnaught. On each form, Dr. Doodnaught lied when he answered “no” to the question about whether he had been the subject of any inquiries or investigations. Three of the four forms were dated in either late January or February of the years 2007, 2008, and 2009 and were signed off on (i.e. approved) by Dr. Brown when he knew that Dr. Doodnaught had falsely stated in the reappointment application forms that there had been no prior complaints against him. The fourth renewal form is dated January 11, 2010 (a month before the final complaint that led to the investigation and the criminal charges against Dr. Doodnaught). It was signed by Dr. Doodnaught but not by Dr. Brown.

208. On February 26, 2010, two days after the OR staff meeting, Dr. Brown was asked to step down as chief of anesthesiology to allow for a “more fulsome evaluation of his leadership” by the senior team, the MAC, and the hospital Board.

209. Dr. Sylvia Brose became interim chief of anesthesia.

210. On March 10, 2010, Dr. Doodnaught was arrested and charged with three counts of sexual assault.

211. On March 11, 2010, police and NYGH issued press releases. Subsequently, the other complainants came forward.

212. I turn now to a discussion of the specific counts in the indictment.

General Observations Concerning Specific Counts on Indictment

213. Although the indictment spans four years, reaching back from February 10, 2010 to February 3, 2006, the allegations dramatically increase in frequency. Fifteen of the most recent counts arose in the last six months covered by the indictment, while the six earlier counts are spread out over three and one-half years.

214. Before beginning my discussion of the evidence and arguments respecting each count, I point out that many of the procedures and the types of allegations are similar. Also, counsel made similar arguments for many of the counts.

215. I will restrict my discussion of the evidence and the arguments relating to each count to the features I consider important in explaining the reasons for my conclusions.

216. Many of the medical witnesses gave evidence concerning more than one procedure, while others gave evidence of general application to all counts.

217. Although I intend to restrict my discussion of the evidence and arguments to the features I consider important, some counts require more detailed discussion than others.

218. I will discuss the specific charges in the order they appear on the indictment. In this part, I will discuss the evidence of each count in the context of my earlier conclusions about opportunity, anesthetic levels, and their effects on levels of consciousness. I will, however, consider each count separately.

219. I will leave consideration of the probative effect of similar fact evidence out of my evaluation of the evidence respecting the individual counts.

220. After I have completed my discussion of the evidence concerning each individual count and my conclusions on each count, I will then turn to the issue of similar fact evidence.

221. I turn now to a discussion of the evidence concerning each count in the indictment.

Count 1: Debra Dreise

i. Overview

222. Ms. Dreise underwent a complete abdominal hysterectomy on February 11, 2010. She was thirty-nine years old. She was understandably very anxious. She had been told that she had a large mass adhering to several of her organs and the surgery would be difficult; and she was further concerned because she had been told there was a good possibility that as a result of the surgery, she might have to wear a colostomy bag. Moreover, she had only one kidney, having donated a kidney to her husband. As well, she still had stitches from breast reduction surgery a few weeks previously.

223. While waiting on the gurney outside the OR, her surgeon, Dr. Paul Shuen, spoke to her and tried to put her mind at ease. A couple of nurses also spoke to her. Dr. Doodnaught met with her and offered reassuring words. He advised her that she would be given a spinal epidural and told her that if there were problems or she experienced discomfort, he could easily convert to general anesthetic.

ii. Layout of OR5

224. Before discussing Ms. Dreise’s evidence concerning the alleged sexual assault, I will give an overview of my understanding of the layout of the OR, the positioning of the patient, the height and width of the draping, the position of monitoring and other devices, and the presence of the medical personnel during surgery. This overview comes from various witnesses including Dr. Melanie Campbell, who performed the surgery under the supervision of Dr. Shuen, circulating nurses Manalo-Layug, Jais Mathew, and Velasquez-Wong (who relieved each other during the operation), nurse Laura Cameron (the scrub nurse), and two medical students, Daniel Vilensky and Ryan Austin.

225. The surgery was performed in OR 5, one of the rooms configured for gynecological surgery. Various monitoring devices, including the anesthesia monitor, were near the head of the bed. A cautery machine was positioned for intended use during surgery. Nurse Manalo-Layug testified that it would have been placed close to Ms. Dreise’s left side, near the head of the bed for the surgeon’s use. Exhibit 4, the video laser scan, provides a good indication of its size.

226. Ms. Dreise was asked to sit on the operating table and lean forward while being supported as the spinal/epidural was administered. Dr. Doodnaught was wearing green scrubs. She could not recall him wearing a surgical cap. She could see his face clearly as he was not wearing a mask. He was likely wearing a lab coat over his scrubs.

227. Ms. Dreise lay down supine on the operating table immediately after receiving the spinal injection. Her arms were strapped to armboards extending roughly at right angles from the table. A blood pressure cuff, pulse oximeter, and three ECG leads were applied.

228. Before the surgery began, a catheter was inserted, as is common for this type of surgery. A white sheet is normally attached to the IV poles to reduce anxiety for the patient[^21]. It is usually removed when the sterile drapes are erected.

229. The sterile draping was applied in the usual way, and separated the sterile area below the patient’s breasts from the non-sterile area. Various witnesses testified that Dr. Doodnaught had a preference for higher draping. I am satisfied that the drapes were high enough that Ms. Dreise could not see the surgical team, although occasionally she could see the top of someone’s head.

230. When Dr. Doodnaught was standing, his head and perhaps his shoulders could be seen over the top of the drapes, and he was therefore able to see the surgical team including the circulating nurse who for most of the surgery was at the other end of the operating room at the computer used to input data into the operating room record. All three doors to the OR were at the end of the OR opposite Dr. Doodnaught. From his vantage point standing behind the drapes, he could see anyone approaching the head of the bed, or entering or leaving the OR.

231. The anesthetics used were noted on the anesthesia record prepared and signed by Dr. Doodnaught. As with the other complainants, the dosages noted were within established norms. They brought Ms. Dreise to a state of conscious sedation, rendering her placid and perhaps somewhat disinhibited.

232. Ms. Dreise was conscious and talking during parts of the operation. She could hear the surgical team talking but not what they were saying. At other times, she was in a “twilight” state.

233. Ms. Dreise described the draping as being like a tent. She testified that she had the sensation of being on an angle, with her head lower down. This recollection is consistent with the operating table being lowered at the head of the bed to allow gravity to move the organs and allow greater access to the surgical site. This position is known as the “Trendelenburg” position. Importantly, the anesthesia record prepared and signed by Dr. Doodnaught confirms that Ms. Dreise was in the Trendelenburg position for part of the operation. Dr. Melanie Campbell, the resident who performed the surgery with the supervision and assistance of Dr. Shuen, testified that although she had no specific recollection of asking that Ms. Dreise be placed in the Trendelenburg position, it was likely to have happened, given the difficulty of the surgery. Ms. Dreise’s accurate recollection of being in the Trendelenburg position supports the inference that she was conscious and aware for at least parts of the two-hour surgery.

234. Dr. Doodnaught indicated on the anesthesia report that Ms. Dreise wore an oxygen mask. He also noted that ventilation was spontaneous. Ms. Dreise recalled wearing a mask, but testified that it was removed by Dr. Doodnaught. Dr. Campbell, who performed the surgery, testified that she was intently focused on the complicated surgery, and if the mask was removed she wouldn’t be aware of it. Dr. Campbell testified that removal of the mask may or may not result in a drop in oxygen levels for the patient. It depends on the patient.

iii. The Sexual Assault

235. After getting the spinal and lying down, Ms. Dreise lost consciousness and her next recollection is opening her eyes, seeing a blue screen in front of her, and feeling her right breast being fondled. He was massaging, tweaking her nipples and caressing both breasts at the same time, on the top of her breasts. This lasted about 2-3 minutes. It seemed to her as if he was sitting. She remembers thinking “I do not believe this is happening to me”, and closing her eyes.

236. Her next recollection is feeling almost as if she was being smothered. She opened her eyes and the accused was leaning over the top of her, kissing her with his tongue in her mouth, swirling it around. Her head was back, turned to the right; he was coming over her right shoulder, still at the top of the bed and to the right. She said to him, “What about the other people?” and he lifted his head and said, “Don’t worry, I know how to be discreet.” She didn’t respond and closed her eyes. She could not believe this was happening. She felt as if the kissing lasted about 2-3 minutes.

237. Ms. Dreise next recalls feeling as if she was gagging. Her head was turned to the left and he had his penis in her mouth. She saw the shaft of his penis: brown skin, veins. She could smell him, smell his body, and remembers it turning her stomach. She looked up and saw his face and that he was leaning or resting on the screen with his left arm. She saw his wedding ring glinting in the light and thought, “You bastard.” His right hand was on his hip. He was wearing green hospital scrubs. He was moving his hips in and out very slowly, rhythmically. He was standing on her left side. This seemed to last about 2-3 minutes. She could hear people talking but can’t recall anything specific.

238. Her next recollection is hearing staples being put in. She spoke up and said she didn’t want any staples. She testified that they stopped and explained everything to her – that it left a nicer finish and a cleaner scar – and she consented. She did not know how much time had passed between the accused’s penis being in her mouth and hearing the staples. Her recollection about a discussion about the use of staples was confirmed by other witnesses and supports the inference that she was conscious during parts of the surgery.

239. Dr. Melanie Campbell, the surgical resident who performed the surgery with the supervision and assistance of Dr. Shuen, recalled an unusual event about midway through the surgery. She testified that she heard Ms. Dreise say what she initially thought was “How are my tubes?” She thought Ms. Dreise’s comment was a reference to her fallopian tubes. Dr. Campbell testified that she turned to Dr. Doodnaught, made eye contact with him, and said “Did she say, ‘how are my tubes?’” Dr. Doodnaught replied that she had said “how are my boobs, as in b-o-o-b-s”, and went on to state that she had recently had breast surgery. Dr. Campbell was satisfied with the answer and moved her surgical instruments further down away from Ms. Dreise’s chest area. Although Ms. Dreise had no recollection of this exchange, it supports the conclusion that she was conscious during the surgery.

240. Dr. Campbell and the surgical team were intently focused on the surgery and did not notice any movement of the drapes or any unusual behavior by Dr. Doodnaught that caused her concern, nor did the other witnesses who were present during all or part of the Dreise surgery.

241. Ms. Dreise was not shaken in thorough cross-examination. She testified that when the accused’s penis was in her mouth, her head was turned to her left. He was standing at the edge of the drapes. His shoulders and arms were still:

He was moving his hips. His shoulders and arms are not really moving. He is not thrusting. He is not doing anything like that. He is moving very slowly[^22].

242. Two third-year medical students were present during the surgery. They are now both graduate doctors. Dr. Daniel Vilensky was called by the Crown. He testified that he was there for a rotation with his fellow student, Ryan Austin. They both wanted to observe the surgery but there was only room for one of them to be scrubbed in. They had a quick game of “rock, paper, scissors” to see who would get to scrub in. Vilensky won and scrubbed in. He said that Austin was standing on a stool behind him outside the sterile area for at least part of the surgery, but he was unsure how long he was in the room. Vilensky was scrubbed in and focused on the surgery and did not notice any conduct on the part of Dr. Doodnaught that caused him any concern.

243. Dr. Ryan Austin was a defence witness. He is a high-school friend of Dr. Doodnaught’s son and was his classmate from grade seven through high school. He knew Dr. Doodnaught because he had spent time at his home and had occasionally played golf with him.

244. Dr. Austin had been told by Dr. Vilensky in March of 2010, about a month after the Dreise surgery, that the police had contacted him. He told Dr. Vilensky that he had not been contacted by police and asked him to let them know he was there for the surgery and to contact him if they wished.

245. Dr. Austin was not noted on the OR chart, but the evidence shows that these omissions are not uncommon, particularly for observing students not directly involved in the surgery. Dr. Austin testified that he was in the OR for the entire procedure. He said that he was standing on a 4 ¾” stool about a foot and a half to two feet behind Dr. Vilensky. Dr. Austin is tall, between 6’3” and 6’4”. He marked exhibit 175, a diagram of the layout of OR5, indicating where he was standing.

246. Dr. Austin testified that he had a direct line of vision to the head of the table. The anesthetic machine was adjacent to him on his left. The sterile curtain covering the sterile field and over the patient’s head area was just to the right. Between the anesthetic machine and the IV pole that was used to hang the sterile curtain, he could see the edge of the bed as well as the edge of the right side of the patient’s head.

247. Dr. Austin testified that he recalled speaking with Dr. Doodnaught several times throughout the operation. He could not recall specifics of their conversations but since they share a mutual love for golf, “that would have been one of the many topics that we had branched on”[^23].

248. Dr. Austin did not see anything of concern during the operation, nor hear any unusual talking or utterances by either Dr. Doodnaught or Ms. Dreise[^24].

249. Although he had an interest in plastic surgery and is currently a resident in plastic surgery, Dr. Austin had no recollection of the considerable care that was taken to the cosmetic implications of the surgery, in light of Ms. Dreise’s abdominal scarring from prior surgeries.

250. In general, Dr. Austin had cloudy recall of the specifics of the surgery despite its difficulty and the complications faced by the surgeons.

251. None of the medical personnel saw Dr. Doodnaught engaging in conduct that caused them concern.

iv. After the Surgery

252. Ms. Dreise’s next recollection is being in the recovery room, also known as PACU. The PACU record indicates that her blood pressure was low and she required an oxygen mask, but she was “awake” within 15 minutes of her arrival there[^25]. Also, Dr. Doodnaught marked Ms. Dreise as postoperatively “awake” on his Anesthesia Record[^26].

253. Ms. Dreise testified that while she was in the recovery room, she had an oxygen mask on and the nurse was telling her to breathe. Dr. Doodnaught was there, then the nurse left for a few minutes and Dr. Doodnaught grabbed her hand and leaned close to her and said: “as soon as you were out, the first thing you reached for was my dick.”[^27]

254. Ms. Dreise’s husband came sometime after Dr. Doodnaught had left, and she told him what happened. He said, “are you sure it wasn’t the drugs?” and she said “no, this happened.”

255. The next morning, she awoke in her hospital room to Dr. Doodnaught caressing her left cheek. He asked her questions about whether she had had any adverse reaction to the anesthetic, and she said no. She testified that she clearly remembers thinking “Oh my God, he has found me.” He left, then returned, apologized for leaving, and asked whether she remembered anything that had happened the previous day. Ms. Dreise testified that she immediately got scared. She told him “no, I don’t remember anything.”

256. As soon as Dr. Doodnaught left, Ms. Dreise asked the nurse the name of the doctor. The nurse said she’d only been at NYGH for a few months and didn’t know but would find out. Ms. Dreise then called her husband and told her about Dr. Doodnaught’s visit and he said, “Oh my God, he did it.”

257. When the nurse returned, Ms. Dreise told her “the whole story.” The nurse said she would report it to the charge nurse. Ms. Dreise then recounted the visit from Dr. Steven Brown, and the subsequent events that led to her making a formal complaint to police.

v. Additional issue—prior inappropriate behavior by Dr. Doodnaught

258. Nurse Laura Cameron, who was the scrub nurse in the Dreise surgery, also testified that a couple of years earlier, in the winter of 2008, she had witnessed behavior by Dr. Doodnaught that caused her concern. A female patient was in OR 12 with a fractured right arm. Nurse Cameron was the circulating nurse. She was at the computer and had a question concerning whether the patient had allergies. She wanted the chart and Dr. Doodnaught had it, so she came toward the head of the bed. When she was by the foot of the bed, she saw his head appear. His eyes were large and he looked startled. She continued to walk towards the head of the bed, and as she neared, he was reaching underneath the gown he was wearing and tying his pants. It made her suspicious of him. She “thought he was doing something to himself in the operating room which was inappropriate”.[^28]

259. At that point, Dr. Rumble, the surgeon, called her because he wanted an instrument. As she walked toward the sterile core to get the instrument, she looked back. The patient’s face was turned to the left and her mouth was open. When she returned, Dr. Doodnaught was seated and the patient’s face was in an upright position.

260. Nurse Cameron testified that although she was taken aback by this behavior, she didn’t speak to anyone about it because she didn’t think she had enough evidence to do anything. She agreed in cross-examination that after the incident, she was more vigilant when working with Dr. Doodnaught.

vi. Discussion

261. Although the evidence of nurse Cameron about inappropriate behavior in 2008 is troubling, I do not place weight on it in determining the reliability of Ms. Dreise’s evidence or the evidence of any of the other complainants. Nurse Cameron did not report her observations at the time. It is not known which surgery it was and I have not heard any other evidence about it.

262. In the circumstances, I think it would be unfair for this evidence to be used to weigh against the accused when evaluating the evidence of Ms. Dreise or to consider it as similar fact evidence. I do accept the defence position, however, that Ms. Cameron’s evidence concerning heightened vigilance should be considered when evaluating the evidence from the defence perspective.

263. The totality of the evidence shows that Ms. Dreise was conscious and aware during significant parts of the surgery, as well as postoperatively in the PACU. The drugs administered to her were within the normal range, and it is highly unlikely that her perception of sexual assault by Dr. Doodnaught was the product of either drug-induced hallucination or misperceptions caused by his warm, caring manner and his close physical proximity to her.

264. I also accept Ms. Dreise’s evidence that Dr. Doodnaught spoke to her in the PACU after the surgery, and that he made the comment “as soon as you were out, the first thing you did was reach for my dick.” This sexual comment was made when Ms. Dreise was marked as aware on both the PACU record and by Dr. Doodnaught himself on the Anesthesia Record. The fact that the statement was made reinforces my conclusion that Ms. Dreise’s evidence is reliable.

265. The defence submits that it was physically impossible for the accused to insert his penis into the patient’s mouth because of the height and width of the table, and the physical dimensions of Dr. Doodnaught. With respect, the submission ignores the fact that Dr. Campbell’s preferred hand position of 45.75” relates to the height of the surgical site, not to the height of the table. It does not take into account that for a period of time during the surgery, the head of the operating table was lowered to the Trendelenburg position. The evidence supports the conclusion that with Ms. Dreise’s head turned to the left, her mouth would be close enough to the left edge of the operating table to allow Dr. Doodnaught to insert his penis.

266. The defence submits that exposure of the penis was impossible while wearing scrub pants. I do not agree. As I have previously stated, I have examined exhibit 10, a typical pair of scrub pants, and in my opinion, it would be a simple matter to loosen the drawstring and either lower them or move the side opening to the front. Dr. Doodnaught regularly wore a lab coat over his scrubs. The coat would shield him from view if he were to loosen his scrubs and expose his penis.

267. The defence submits that it is inconceivable that the acts alleged could occur in a busy operating room without anyone seeing or without resistance from the patient that would be noticed. I reject that submission as well. I have already explained that I consider the best evidence of typical setups for the various procedures to be contained in the video laser scans (ex. 4), and the book of photos (ex. 7). Those exhibits persuade me that Dr. Doodnaught was concealed behind a drape that was high enough and wide enough that no-one could see him without approaching and looking over the top of the drape.

268. Dr. Doodnaught was standing a good part of the time and could see what others were doing. He had been an anesthesiologist for about 30 years and had been at NYGH for 26 years. He was familiar with the surgical procedures and would know when it was safe to commit the relatively brief assaults without being seen. His patients, including Ms. Dreise, were sedated, passive and disinhibited. He had control over their level of anesthesia and would have known that they could not openly resist. He relied on the amnesic effects of the drugs to shield him from complaints.

269. I am unable to give any weight to the evidence of defence witness Dr. Ryan Austin. He has a cloudy recollection of the Dreise surgery. He did not recall the unusual “how are my boobs” comment from Ms. Dreise, nor the exchange between Dr. Campbell and Dr. Doodnaught about Ms. Dreise’s comment, yet he claimed to have specific recall of the extent if not the content of his many conversations with Dr. Doodnaught during the surgery.

270. I find that, despite his height and the fact that he was standing on a stool, he could not see what Dr. Doodnaught was doing behind the drape. While it is plausible to think that since he knows Dr. Doodnaught, he exchanged pleasantries with him at the beginning of the surgery and perhaps at the end, I reject his testimony that he was chatting with him about golf and other things while the surgical team was intently focused on the challenging, serious surgery.

271. Ms. Dreise was awake and talking during portions of the surgery. There was evidence from Dr. Brose that when a patient is under conscious sedation, there is less banter because of a concern that the patient will hear it. None of the other witnesses support Dr. Austin’s evidence concerning ongoing conversations between himself and Dr. Doodnaught.

272. It is unreasonable to think that banter between Ryan Austin and Dr. Doodnaught during difficult surgery with a patient under conscious sedation would be tolerated.

273. The defence argues that it would be beyond reckless for the accused to insert his penis into a patient’s mouth because the risk of a forceful bite-down reflex was “common knowledge.” I have already dealt with that submission when discussing the expert evidence. The bite-down phenomenon occurs relatively rarely, in cases where the patient has been intubated or had an artificial airway inserted into the larynx. It does not occur with patients under conscious sedation who, like Ms. Dreise, have not been intubated. The evidence satisfies me that insertion of the penis into the mouth of a sedated, docile patient does not create the risk of a bite-down reflex.

274. The defence submits, in the case of Ms. Dreise, as with all of the other complainants, that if the assaults occurred, it makes no sense that Dr. Doodnaught would fail to try to cover up by administering more Midazolam to induce amnesia. He provided a low dose of only 1.25 mg. While there is superficial merit to this submission, it is also true that the amnesic effects of Midazolam vary depending on the complainant. Given my findings concerning Ms. Dreise’s allegations, I can only conclude that Dr. Doodnaught either miscalculated or was careless about the amnesic effects of the drugs administered to Ms. Dreise.

275. I find the evidence of Ms. Dreise concerning sexual assault by the accused to be reliable.

Count 2: Jeannine Ashley

i. Overview

276. Ms. Ashley received a right hip replacement performed by Dr. Hossein Mehdian in OR 2 on February 10, 2010, the day before the Dreise surgery. She was brought into the OR at 11:53 a.m. and transferred to PACU at 1:45 pm. The surgery itself lasted about an hour and a half. The draping was typical for orthopedic setups. The door to the scrub room is on the left of the operating bed. Personnel entering the OR from the scrub room would be able to see the head of the table. There are double doors behind the bed leading to the non-sterile main corridor. They are not generally used during surgery, but in this case, an x-ray machine was brought in about halfway through the surgery because Dr. Mehdian wanted to ensure that the prosthesis was properly seated. As is the general practice when an x-ray is performed during surgery, the medical personnel stepped out of the OR for about 20 seconds in order to avoid exposure.

277. Ms. Ashley was positioned on her left side for the surgery. The bed was in the lowest possible position at the request of Dr. Mehdian. Her body was stabilized with a chest rest and frames at her front and back to ensure no movement at the surgical site. Her right arm rested on a pillow and her lower left arm was likely almost horizontal to her body.

278. In addition to Dr. Doodnaught, the OR Record shows that six people were present in the OR during most of Ms. Ashley’s surgery: Dr. Mehdian, two assistant providers, one scrub nurse, one circulating nurse[^29], and a vendor representative.

279. Dr. Mehdian was called as a defence witness. He had no specific recollection of the Ashley surgery. He testified that for hip replacements, one assistant would be to his left and the other would be on the other side of the table. The scrub nurse would normally be at the foot of the table. Dr. Mehdian marked ex. 151 showing the locations of the medical personnel. The Mayo stand would typically be placed above the chest area of the patient[^30].

280. Ms. Ashley testified that she was very anxious. Her husband had recently passed away during surgery. She had had prior surgeries with anesthetics but had not experienced any odd reactions.

281. Before she was brought into the OR, Dr. Doodnaught came out and spoke to her. She was crying and explained that she was scared because her husband had had surgery and had passed away. He reassured her repeatedly that she had nothing to worry about and that he would make sure she was comfortable. He explained that she would be getting a spinal and would be in a state of semi-consciousness.

282. She recalled going into the OR in the wheelchair, using a step to get onto the table, sitting on the table, and having the IV placed in her left hand by the anesthesiologist. She tried to explain to him that usually they have a hard time doing that. He put it in and explained that she would be going to a very light sleep. He said after she kind of fell asleep they would use a needle that would freeze her from about the chest down. She does not recall getting the needle.[^31]

283. She does not recall the draping but the evidence suggests that it was typical for this type of surgery. She wasn’t looking around. She recalls the catheter being inserted but not the BP cuff or where her arms were.

ii. The Sexual Assault

284. She fell asleep while lying on her back with Dr. Doodnaught standing to her left. She had no recall of being placed on her side with her right hip up.

285. Her next recollection is waking up with Dr. Doodnaught’s penis in her mouth. She was on her back and her head was turned to the left. She was thinking “Oh my God, what is happening?” She wanted to keep her mouth shut but she couldn’t. She wanted to scream her head off but she couldn’t do anything.

286. A little while later it happened again – the penis going into her mouth. It happened 3-4 times in total. She fell asleep in between the incidents but woke up when she could feel him putting his penis in her mouth. She does not know how long it was in her mouth. She cannot recall being touched by his hands when his penis was in her mouth.

287. Her eyes were not open; she was too scared.

288. She also recalled feeling his hand on her breast. She recalled thinking “oh my God, what will he do next?” At one point he kissed her on the lips.

289. During the sexual assaults, he repeatedly said “don’t worry, I’ll take good care of you.”

iii. After the Surgery

290. She disclosed the sexual assault to her friend Charlyn Roberts shortly after the surgery, and later, to her sister. Ms. Roberts wanted to tell someone, but Ms. Ashley was frightened and worried that people would tell her she was crazy, that she had been under anesthetic. Ms. Roberts’ recollection of when the details were disclosed differed from Ms. Ashley’s recollection, but it is clear on the evidence that the disclosure was made shortly after the surgery.

291. Ms. Ashley spent about a week at NYGH and another week in a rehabilitation centre before going home.

292. She testified that when she saw the news report on TV and saw his picture:

And I was like shocked. I thought: Oh, my God, that's him. And it said that there was a few other women that had came forth, and I said, "Well, there's a God above, there is a God above," because like I said if he's done it to me he probably done it to other people[^32].

293. She called her girlfriend Ms. Roberts and later, after it was already in the news, she contacted her surgeon, Dr. Mehdian, who was concerned and sympathetic. He told her he would contact the College of Physicians and Surgeons, and advised her to contact police, which she did.

iv. Discussion

294. The defence position is that the sexual assaults did not occur. The bite-down reflex is relied on, as is the issue of lowering the scrub pants to expose the penis. I reject those arguments for the same reasons as I gave with respect to Ms. Dreise.

295. The defence submits that Ms. Ashley’s allegations are implausible, physically impossible and could not have been committed without detection.

296. The draping was standard for this type of surgery and prevented anyone in the sterile area from observing the assaults. The computer where the circulating nurse sits to enter data into the chart was easily observable by Dr. Doodnaught. The scrub room door in OR 2 is located where the head of the bed could be seen. It follows that the scrub room door could also be seen by Dr. Doodnaught, who could glance there before moving to the side of the table to place his penis into the patient’s mouth. During these relatively brief assaults, his back would be facing the scrub room, thereby preventing anyone from observing what he was doing. He likely was wearing a lab coat, which further shielded his groin area from view.

297. In support of the assertion that Ms. Ashley’s claim that she was sexually assaulted is unreliable, the defence points to her lack of recollection of other events during the surgery as well as being mistaken about lying on her back when the assaults were allegedly committed.

298. Ms. Ashley’s description of being asleep and waking up is consistent with what one would expect for a patient under conscious sedation with the drugs she received.

299. Given that Ms. Ashley was sedated, it is understandable that her recollections are sometimes inaccurate. As I have stated previously, I accept that the amnesic effect of the drugs is reduced when a patient under conscious sedation experiences unexpected, shocking and intrusive events. It is one thing for Ms. Ashley to be mistaken about whether she was lying on her back and quite another to be wrong about being subjected to forced fellatio while unable to defend herself.

300. The defence further submits that it is illogical that Ms. Ashley was able to recall the assaults, yet was unable to recall events in the PACU, at a time when she was recorded as being conscious.

301. I note that the PACU records chart Ms. Ashley’s level of consciousness as “2”, which is described on the PACU chart as “awake, converses appropriately, and falls asleep at intervals.” This description is consistent with Ms. Ashley’s foggy recollection of being in the PACU.

302. As with Ms. Dreise, the defence submits that it makes no sense that Dr. Doodnaught would fail to try to cover up by administering Midazolam to induce amnesia. He provided only a single dose of only 1.5 mg. I do not give effect to this submission for the same reasons I stated when referring to Ms. Dreise.

303. As with Ms. Dreise, the drugs administered to Ms. Ashley were within the normal range, and it is highly unlikely that her perception of sexual assault by Dr. Doodnaught was the product of either drug-induced hallucination or misperceptions caused by his warm, caring manner and his close physical proximity to her.

304. I find Ms. Ashley’s account of being sexually assaulted by the accused to be reliable.

Count 3: Taaramatie Ramdin

i. Overview

305. Ms. Ramdin, a 44-year-old retail store manager, underwent a vaginal hysterectomy on February 8, 2010 performed by Dr. Owolabi in OR 4. Ms. Ramdin testified that Dr. Doodnaught briefly fondled her left breast while simultaneously kissing her.

306. With a vaginal hysterectomy, the patient is in the lithotomy position with the end of the table dropped to allow the surgeon access to the surgical site.

307. Ms. Ramdin has a foggy recollection of other events during the surgery. She recalled being in the lithotomy position with the draping in place so that she could not see the medical personnel at the foot of the bed. She recalled being catheterized. She did not recall how many people were in the operating room.

308. She testified that the accused was wearing a white lab coat. She agreed that she had initially had an oxygen mask placed over her face but that it was not on when the sexual assault took place. She recalled “off-white mesh” going up, and then she fell asleep.

ii. The Sexual Assault

309. Ms. Ramdin testified that when she woke up near the end of the surgery, the accused was standing behind her reassuring her that everything would be okay and asking if she was all right. She testified that her eyes were partly open, and she remembers him leaning over her, kissing her, and massaging her left breast. The kissing and breast massaging didn’t last very long.

310. Ms. Ramdin testified that she remained conscious as she was wheeled into the recovery room. She did not tell anyone about what she had experienced because she was embarrassed. Her state of mind was, as she later recalled it: “oh my God, I was having this crazy dream and it felt so real.” She said that in the days after the surgery, although it felt real, “I tried to block it out of my head.”

311. The OR chart shows that the scrub nurse was Ms. Salanga (head nurse for gynecology). Nurses Cameron and Manalo-Layug took turns as the circulating nurse. There is nothing in the charting to suggest that the circulating nurse had occasion to approach the head of the table. As the Crown points out, the instrument count sheet (ex. 33) shows that the only items added during the procedure were “vag strips” and “blades”, which nurse Manalo-Layug testified were kept in a cupboard near the circulating nurse’s station.

312. The chart also shows an anesthesia assistant, Tamiza Hemani, as being present. Exhibit 116 is an agreed statement of fact indicating that Ms. Hemani has no recollection of the procedure but may have been present briefly to tell Dr. Doodnaught she was available if he needed assistance.

iii. After the Surgery

313. Ms. Ramdin was visited by her sister and mother before being discharged from hospital on February 10, two days after her surgery and the day before the Dreise surgery. She did not disclose the assault because she was embarrassed and she didn’t want to tell anyone what happened to her. Her state of mind was “oh my God, I was having this crazy dream and it felt so real.” She said that in the days after the surgery, although it felt real, “I tried to block it out of my head.”

314. About a month later, her mother called to say there was a news report about a situation with a doctor at NYGH. Ms. Ramdin said she had a bad feeling and when she watched the news and saw that Dr. Doodnaught had been charged, it made her think again about her experience.

315. Ms. Ramdin testified that when she saw him on television “it was everything I had felt the day of my surgery sort of confirmed in my head that there was something did happen.”

316. Ms. Ramdin contacted police and was interviewed on March 26, 2010, about six weeks after her surgery.

iv. Discussion

317. Ms. Ramdin is one of only two complainants[^33] among twenty-one who did not disclose the sexual assault to anyone after the surgery. Her explanation that she was embarrassed and didn’t want to tell anyone is understandable, believable, and consistent with the experience of many sexual assault victims who are reluctant to come forward and disclose their abuse. Her evidence is that she believed that what she had perceived was real: “oh my God, I was having this crazy dream and it felt so real.” She said that in the days after the surgery, although it felt real, “I tried to block it out of my head.”

318. When her mother called about a month after the surgery to tell her about the news report, she “had a bad feeling”, and when she saw the accused on television, it confirmed in her mind that what she had perceived had actually happened. I find this explanation of her state of mind to be plausible and understandable.

319. The alleged assaults could easily have been carried out by the accused without detection as he was shielded from view behind the draping. Ms. Ramdin was sedated and unable to respond, and the medical personnel were focused on their work.

320. Although Ms. Ramdin’s recollection of peripheral events was foggy, her recollection of unwanted sexual assault is more likely to be reliably recalled.

321. Based on the evidence, I find that the assault likely occurred.

Count 4: Lana Neal

i. Overview

322. Ms. Neal, a 50 year-old TTC bus driver and mother of two adult daughters, had right hip replacement surgery performed by Dr. Michael West in OR 2 on February 2, 2010. She recalled being outside the OR on a gurney. She did not recall speaking with Dr. Nicholas Christidis, a defence witness and one of the two assistant surgeons. Dr. Christidis testified that he conducted a preoperative interview with her and described her as behaving in a flirtatious manner. Ms. Neal recalled speaking to her surgeon, Dr. Michael West. She was crying from anxiety and grief over the recent death of her husband. She also recalled Dr. Doodnaught, who was wearing a blue surgeon’s gown. He asked her if she was okay, she told him her husband had passed away, and he was supportive and reassuring.

323. She recalled being rolled into the OR and receiving an epidural. She recalled that there were other surgical staff present. She recalled being put on her back and then she was put to sleep.

ii. The Sexual Assault

324. Her next recollection is waking up on her left side facing Dr. Doodnaught who was standing next to her. He told her he had inserted the catheter and liked the way she looked down there and that he was shaved too. He said “do you want to see mine?”, and then he undid the tie on his scrub pants, and “stuck his penis in my mouth.” She recalled looking down and having the perception that she was naked. She said that she did not see him insert his penis in her mouth, but saw him pull it out. She also recalled him touching her breasts with both hands. At that time, he was beside her closer to her head. She was in and out of consciousness while the assaults were happening.

iii. Disclosure Following the Surgery

325. Ms. Neal’s next recollection is waking up in the OR after the surgery was over. Dr. Doodnaught was still standing beside her and she told him that she had to see him; that he needed to come to her room the next morning so she could talk to him.

326. She had only a vague recollection of going to the recovery room and then to her hospital room, because she was in and out of sleep.

327. Her next recollection is waking up in her semi-private hospital room. Her sister and sister-in-law were there, as well as her hospital roommate, Joyce MacKay. She was in pain and sleepy and did not disclose what happened to her until the next day.

328. Ms. Neal told her hospital roommate about it the next day. She sent text messages to two friends, Chris Jardim and Karen Bowen, telling them what she thought had happened.

329. That same day, Ms. Neal received a visit from Dr. Doodnaught. She told him she wasn’t doing well and confronted him about the sexual assault. I reproduce a portion of her testimony:

When he came into my room he stood in front of my bed, by the

foot frame, and he asked me how I was doing, and I

automatically said to him that I wasn't fine, and he asked

why, and I said because I think this is what happened during

surgery.

…I told him directly: That I felt like I was giving you a blow-job.

And he says "no", he says "that never happened", I said, "Yeah, but it's real."

…it was a very short conversation, and he just said that I was dreaming, that it couldn't have happened, that I -- that I put his -- that he said to me that also that he put the catheter inside me and that I stuck his thumb in my mouth[^34].

330. After Dr. Doodnaught left, Ms. Neal told her roommate the content of the discussion. Later, she told her friend Chris. She testified that she was joking around with it, not wanting to believe it was real, because “he’s a doctor. It’s private. You don’t do things like that.”

331. Ms. Neal testified that Dr. Doodnaught came back to her room again the next day and asked if she was still thinking the same thing. She said yes and he said it was a dream and she said no, it’s very real. He said she was hallucinating and she confronted him again saying that she knew it was real.

332. At some point Ms. Neal shared all of this with her friend Karen. Ms. Neal did not tell her family because it was embarrassing and “in our religion everything is hush hush”[^35].

333. Ms. Neal saw the news reports on TV and immediately contacted police. She had always believed that she had been assaulted.

334. Ms. Neal’s evidence about disclosure of the alleged sexual assault and what Dr. Doodnaught said to her during his two visits to her hospital room was confirmed by the three people she made the disclosures to: Crown witnesses Joyce Mackay, Karen Bowen, and Chris Jardim.

iv. Discussion

335. Ms. Neal was in and out of consciousness during her surgery, so it is understandable that her recollection of peripheral matters is foggy. In a state of sedation with varying levels of awareness, it is not surprising that she had the impression that she was naked when she perceived that the accused had inserted his penis into her mouth and fondled her breasts.

336. The draping was standard for a hip operation. It provided a good shield for the accused. OR 2 is smaller than the other orthopedic operating rooms, and its scrub room door is to the left of the operating table where the head of the bed can be seen. However, Ms. Neal’s evidence is that the assaults were brief in duration and took place when the accused was standing to her left wearing a blue lab coat with his back to the scrub room door. Even if someone were to enter the scrub room, they would be unable to see the assaults being committed.

337. I find strong corroboration of the reliability of Ms. Neal’s account in her evidence about Doodnaught commenting on her shaved pubic area and telling her that he was shaved too.

338. I accept the evidence that Ms. Neal told Dr. Doodnaught she needed to talk to him about what happened in the OR and asked him to come to her room. Her evidence that he came to her room on two occasions was confirmed by Ms. Neal’s hospital roommate, Ms. MacKay, an impressive and straightforward witness. I find significance in the fact that the accused visited Ms. Neal on two occasions to discuss her allegations and in the manner in which he dealt with them.

339. I accept Ms. Neal’s evidence that when she confronted Dr. Doodnaught about the forced fellatio, he told her it was a dream or hallucination and said that his thumb had been in her mouth.

340. There was no medical reason for him to have his thumb in her mouth. By suggesting that she had mistaken his thumb for his penis, he acknowledged that he had removed her oxygen mask, and he acknowledged that a part of his body had been in her mouth.

341. The accused told Ms. Neal that she had mistaken his thumb for his penis. If the bite-down reflex was a real concern, it would be a deterrent to insertion of his thumb in his patient’s mouth.

342. The effect of the media reports about the arrest of Dr. Doodnaught was not to cause Ms. Neal to change her mind about what she believed had happened. The reports provided confirmation of her belief and removed all doubt in her mind. She acted promptly in bringing her complaint to the attention of the authorities.

343. I find Ms. Neal’s allegation of sexual assault to be reliable.

Count 5: Elizabeth MacPherson

i. Overview

344. Ms. MacPherson was 48 years old when she had bi-lateral knee replacement surgery performed by Dr. Rumble in OR 12 on January 15, 2010. Her medical history included hypertension, sleep apnea and gastroesophegal reflux disease. She had had two prior surgeries with general anesthetic with no unusual recollections.

345. She met with Dr. Doodnaught at the preoperative meeting. He reviewed the medications she was on, and discussed general health questions, including the implications of her sleep apnea.

346. She was told that she would get a spinal epidural that would paralyze her from the waist down, a nerve block after surgery for pain control, and conscious sedation – she wouldn’t hear, see, or smell anything during surgery, but she wouldn’t be completely anesthetized. She was also advised that she would get some medication before the surgery for nausea and pain.

347. On the day of the surgery, she arrived early, took some pills, got changed, and eventually waited on a gurney in the hallway. Dr. Doodnaught came out to talk and then he asked her if she could walk into the OR by herself, which she did. She does not recall talking about anesthetics at that time. She recalls Dr. Doodnaught as pleasant. Dr. Doodnaught and a male associate gave her the anesthetic. One person was in front of her, stabilizing her, and the other was behind her giving her the needle. She recalls it took two attempts to go in. Then she lay down flat on her back. That’s about all she remembers until she woke up. She does not recall getting an IV, BP cuff or any other monitors, nor seeing draping.

ii. The Sexual Assault

348. When she woke up, she was still on her back. Dr. Doodnaught was kissing her on her lips, brushing her hair from her forehead with his right hand, and rubbing her left breast with his left hand over her gown. He asked her, “Are you okay?” or “Is this okay?” She thought he was talking about waking up, and said, “Yes.” He was to her left, above her shoulder. She does not know if he was standing or seated. She had opened her eyes, probably when he started kissing her and talking to her, and saw his face bent over hers. Otherwise, she just saw the ceiling.

349. The kiss was lips to lips; she does not recall any pressure or tongue. The kiss and rubbing of the breast were brief. She was uncertain whether there was more than one kiss.

iii. Events After Surgery

350. Her next recollection is waking up in the recovery room. She didn’t have any visitors that day. Dr. Doodnaught charted her as “awake” postoperatively (ex. 1A p. 1813), and PACU nurse Heather Crawford charted her with level 2 awareness (i.e. “awake, converses appropriately, falls asleep at intervals”).

351. The next day, her friend Carolyn Stevens called to ask how the surgery had gone. Ms. MacPherson told Ms. Stevens that she had had this crazy dream that when she was waking up from the surgery, her anesthesiologist kissed her. She did not tell Ms. Stevens about the breast fondling.

352. Ms. MacPherson testified that although it seemed real that this happened, she thought it must have been a dream because she didn’t think it was possible for it to have happened. She “didn’t think there was an opportunity where I would have been alone in the room with him, that there were the surgeon and all the rest of the assistants, and that, you know, how could it possibly have happened. That was the main reason.”[^36]

353. In any case, Ms. MacPherson wanted to laugh it off as a crazy dream and she and Ms. Stevens did not speak about it again.

354. After hearing that Dr. Doodnaught had been arrested, Ms. MacPherson thought maybe it wasn’t a crazy dream after all, since other people had experienced the same thing.

355. She tried to call the hospital to confirm that it was Dr. Doodnaught who had been her anesthesiologist, but they said they couldn’t tell her. She was fairly certain, but she wanted confirmation because she didn’t want to get someone in trouble who hadn’t done anything. They told her to call the police, which she did.

iv. Discussion

356. The draping was typical for a bilateral knee replacement and afforded a sufficient shield to permit the brief assaults to take place without detection. Exhibit 7G photo 4235 taken in OR 12 shows the general layout for this procedure and the position of the medical personnel. Part of the head of the person standing where the anesthesiologist would stand can be seen over the top of the drapes between the IV poles in the background of the photo:

357. The levels of drugs administered were unremarkable. In OR 12 the anesthesiologist can see all the entry doors (see ex 7G photo 4235, and Appendix “C”). I am satisfied that the Mayo stand would not have impeded the accused’s ability to commit the assaults.

358. Other witnesses present for the surgery included the scrub nurse, Ms. Mathew, the circulating nurse, Ms. Velasquez-Wong, and the surgical assistant, Dr. Nicholas Christidis. None of them had an independent recollection of the surgery. However, the alleged assault was relatively brief and could easily have occurred without detection by others present in the OR.

359. I find the evidence of Ms. MacPherson to be reliable.

Count 6: Belmira Borges

i. Overview

360. Ms. Borges had a right total knee replacement on January 6, 2010 in OR 12 performed by orthopedic surgeon Dr. Robert Brock. She was 62 years old, 4’10” tall and weighed 141 pounds.

361. Ms. Borges recalled many of the pre-operative procedures in the OR (IV, ECG leads, nasal prongs, etc.). She described being in a state of semi-consciousness, consistent with a patient under conscious sedation. The draping and patient positioning was normal for the surgery being undertaken. Ms. Borges is short in stature. Several witnesses testified that where the patient is short, it is standard practice for the anesthesiologist to lower the head of the bed to allow access to the patient.

362. The drugs administered were within accepted norms.

ii. The Sexual Assault

363. Ms. Borges testified that she was sufficiently aware that she could hear the noise during surgery. She testified that it was after that that she felt the hands of some person back and forth all over her breasts. She described it as an “abusing massage.” That made her wake up more and she realized what was happening to her. She was upset and wanted to scream for help. Then he kissed her and whispered in her ear “Mrs. Borges you asked for a kiss.” That made her feel even worse and made her wake up more and more. When asked about the kiss, she stated that it was “like a kiss for sex.”

iii. Events after Surgery—Complaint to Dr. Brock, her Husband and later to Surgical Resident Dr. Warden

364. Her next recollection is waking up in the hallway and a nurse telling her that she had wakened up early.

365. Her husband testified that he saw her at that hospital after the surgery, but she was upset and didn’t want to talk. She didn’t say anything to him about the assault.

366. Ms. Borges testified that she cried all night from the pain and the abuse and all night she was thinking that she had to talk to Dr. Brock (her surgeon) in the morning.

367. The first day after the surgery Dr. Brock visited her with two students. She didn’t have the courage to tell him what happened. He asked her how she was doing and she said “not too good.” He said he would visit the next day.

368. The following morning, Dr. Brock came by with a student. Ms. Borges asked to speak to him in private and told him about the assault. Dr. Brock told her she was dreaming. She was crying and saying she was not dreaming. Dr. Brock told her he would speak to Dr. Doodnaught about it. After he left, Ms. Borges told her husband what had happened.

369. The evidence shows that Dr. Brock did nothing about the complaint. He testified that his reaction to Ms. Borges’ complaint was total disbelief. He had worked with Dr. Doodnaught for twenty years. He was aware of his reputation and had never heard about any prior complaints against him: “not a word, not a whiff, nothing.”

370. Ms. Borges had relied on Dr. Brock to follow up on her complaint, but nothing happened. So she raised the issue again on February 18, during a post-operative follow-up visit to Dr. Brock’s clinic. She spoke to Dr. Julia Warden, a resident doctor who she recalled having been present during her surgery. Dr. Warden was aware of her prior complaint and said that she would speak to Dr. Brock again about it.

371. Dr. Warden confirmed this conversation in her testimony and that she did speak to Dr. Brock immediately thereafter. However, nothing was done by him about it until after the OR staff meeting on February 24 when he learned about an allegation of sexual assault against an unnamed physician. At that point, he decided that things had changed and so he reported the Borges complaint, first to chief of surgery Dr. Stan Feinberg and then to Dr. McRitchie, chair of the MAC.

372. When Dr. Doodnaught’s arrest was announced in the media, Ms. Borges immediately contacted police and was interviewed two days later on March 13, 2010.

iv. Discussion

373. The accused had the opportunity to commit the offence without being seen by anyone in the OR. The assaults were brief and Ms. Borges was sedated but sufficiently aware to know what was happening to her. The drugs she received were within established norms, and did not give rise to a risk that she had hallucinated or dreamt about being sexually assaulted.

374. I find Ms. Borge’s evidence to be reliable.

Count 7: Ann Manno

i. Overview

375. Ms. Manno, age 65, had surgery for a left ankle fracture in OR12 on the morning of December 31, 2009. It was New Year’s Eve and the hospital had low staff levels. Only one operating room was being used. The surgery was performed by Dr. Hossein Mehdian.

376. Ms. Manno had good recall of events leading up to the surgery. She recalls being taken to the OR on a gurney and speaking to the anesthesiologist in the OR. She was lying in a position where the orthopedic surgeon was on her left side near her foot. She chatted with Dr. Doodnaught at some length. She told him she had obstructive sleep apnea. She felt she was in the hands of a competent professional. She felt as comfortable as could be expected.

377. Once she received the spinal, she was numb from the waist down. She believes she quickly became unconscious after the spinal.

378. She believes Dr. Doodnaught was on her right side, but can’t be certain.

ii. The Sexual Assault

379. The next thing she recalls is being on the gurney and Dr. Doodnaught saying “hold this.” She complied and placed her left hand on what seemed to be his penis. It was semi-erect, and felt rubbery, pliable. She immediately realized what it was, and said that the touching didn’t seem to last for more than a blink. Then she lapsed back into unconsciousness. She did not see the penis.

380. She knew it was Dr. Doodnaught because she recognized his voice from their earlier conversation.

381. She testified that when this happened, she was on the gurney, not in the OR. The light was dimmer than in the OR. No beds were nearby. She was not in the recovery room. She was between the OR and the recovery room, alongside a wall. The gurney was stationary.

382. The chart shows that at 10:15 a.m., the same time as the operation ended, she was received in the recovery room on a stretcher with Dr. Doodnaught. When patients are transferred by gurney, the sides are up for patient safety. With rare exceptions, two people transfer the gurney.

383. She woke up in the recovery room. Her husband was there. Dr. Doodnaught came in, saw that he had brought crutches, and demonstrated how to use them. She thought, what an unusually caring doctor.

384. She acknowledged that her recollection of events is foggy, especially after she received the spinal.

iii. Disclosure following Discharge from Hospital

385. It didn’t really come back to her that she had touched a penis until after she had left the hospital. She testified that after she got home, she “had this funny dream, and I thought ‘pfft, dream’, but it was quite vivid”, so she told her friend, Maria Schabelski, about it when she visited a few days later. She needed to unload and set it aside – it was a strong impression that she needed to share with someone. She didn’t tell her husband because she thought she had hallucinated it.

386. She and her friend laughed it off. We thought it was a dream. She asked herself “how could that possibly have taken place to an old lady like me?” She said that “not in a hundred million years I thought that would happen to me.” She thought she was in a safe environment.

387. A couple of months later, her husband saw the news and said “that’s your doctor.” She decided she needed to tell him because she thought there “might be some reality there.” She told him that unless she speaks to a professional she won’t know whether this was fact or fiction.

388. When she heard the news and saw that others had complained, she felt that unless she told her husband and spoke to professionals, she wouldn’t know whether it was fact or fiction. Now, she is sure it was fact, because it was so vivid that it couldn’t be a dream.

389. Dr. Mehdian testified that he has no specific recollection of this surgery. He explained the standard procedures and the locations of the various people who would have been present. He marked them on exhibit 152. The height of the drape would be adjusted by the anesthesiologist. Ms. Kathy Williams was the circulating nurse. She has no recollection of the surgery. She said the draping would not need to be very high for an ankle. When a patient is transferred by gurney to PACU, two people are always present and the sides are up.

390. Nurse Laura Cameron was present for a period of time as the circulating nurse. As noted earlier, she testified that she had observed what she thought was an inappropriatee act by Dr. Doodnaught in 2008, and although she did not report it, she became more vigilant when she was working with Dr. Doodnaught. She was not asked about the Manno surgery when she gave evidence at this trial so I infer she saw nothing untoward about his behaviour.

iv. Discussion

391. There are obvious problems with Ms. Manno’s recollection of the events that day. The evidence suggests that the alleged assault is unlikely to have occurred in the hallway between the OR and the PACU. Ms. Manno experienced her vivid dream after she left the hospital. She believed it to be a dream and not a fact. However, that belief was due in part to her belief that something like that would never happen to her, especially in a hospital during surgery. She believed it could not have happened, therefore it must have been a dream.

392. When I consider that her perceptions were compromised by sedation, and that unwanted and instrusive sexual assault is more likely to be recalled than other less shocking events, I find that her evidence that she was sexually assaulted has the ring of truth. It is plausible and I do not reject it.

Count 8: Carmela Castaldi

i. Overview

393. Carmela Castaldi had bowel stoma revision surgery performed by Dr. Feinberg in OR 6 on December 11, 2009. She alleges that during her surgery, the accused sexually assaulted her by placing his penis in her mouth and kissing her.

394. Ms. Castaldi is the youngest of the twenty-one complainants—she was 25 at the time.

395. Ms. Castaldi has serious health problems. She had been diagnosed with Crohn’s Disease at age 14, and has had over a dozen surgeries since then. Dr. Feinberg, (chief of surgery and program medical director for surgery), had taken a special interest in caring for Ms. Castaldi; he considers her to be quite intelligent and cooperative in the face of such serious medical difficulty.

396. Ms. Castaldi had had stoma revision surgery the day before, on December 10. She experienced very severe postoperative pain, and given her medical history, Dr. Feinberg was very concerned about possible serious infection and a possible return of the infection known as necrotizing fasciitis (flesh-eating disease) that had threatened her life a few months earlier.

397. Dr. Feinberg’s concern led him to conclude that he needed to explore the surgical site further and perform a further stoma revision. He scheduled emergency surgery the next day, December 11. Dr. Doodnaught was the scheduled anesthesiologist.

398. The December 10 surgery had been conducted under general anesthetic by a different anesthesiologist. Dr. Feinberg told Dr. Doodnaught that he preferred general anesthesia again. Dr. Doodnaught disagreed, suggesting that it was undesirable for Ms. Castaldi to have general anesthesia two days in a row. Dr. Feinberg was unhappy with this point of view, but deferred to Dr. Doodnaught’s expertise as the anesthesiologist.

399. Ms. Castaldi had active Crohn’s disease, which involves a compromised immune system and had led to serious gastrointestinal problems requiring major surgery a few months earlier. Her situation was further complicated by the fact that she was an “MRSA” patient. MRSA is an acronym for a type of bacteria that is resistant to common antibiotics. With MRSA patients, extra care is taken to ensure that the antibiotic-resistent bacteria is contained. The medical personnel in the non-sterile area are expected to wear yellow MRSA gowns, as well as surgical gloves and masks.

400. Ms. Castaldi met Dr. Doodnaught outside the OR. He told her he was going to do an epidural. She started crying. She didn’t want an epidural; she knew it was going to hurt. Dr. Doodnaught said it would be fine. He was trying to reassure her. She did not recall discussing her MRSA.

401. She recalled Dr. Feinberg and Dr. Doodnaught discussing the issue of whether the surgery should be performed with an epidural or general anesthetic. She recalled entering the OR, sitting on the bed, getting the epidural, then lying back on the bed with her arms strapped on the armboards. She recalls a BP cuff being placed on one arm and a pulse oximeter on her finger. Her IV was already in place. She recalled a small pillow being under her head. She did not recall a mask being placed on her.

402. She recalled seeing Dr. Feinberg and nurses wearing gloves, bandana-style hats and masks.

ii. The Sexual Assault

403. Her next recollection is becoming aware that she was being kissed passionately on the lips. It felt like she was dreaming. It was real, but like a blur. She saw his face and saw he was not wearing a mask. She was going in and out of consciousness. She then felt something going into her mouth. She knew it was a penis because it was erect. The penis went into and out of her mouth. She saw it coming from the opening in the centre of his scrubs. It went from kissing, to his penis in her mouth, to kissing, to his penis in her mouth. This pattern happened more than once, but she has no specific recollection of how many times. It felt like a long time.

404. Ms. Castaldi believes that Dr. Doodnaught was seated to her left throughout the assaults. She said that he was “really, really, really really close” to her.

405. Dr. Feinberg recalled the surgery. He confirmed that the patient’s arms were extended on boards, and that the draping was normal. He remembers seeing Dr. Doodnaught standing at the head of the table, looking over the drape and watching Dr. Feinberg intently as he operated. He asked Dr. Feinberg a couple of questions about the procedure. He recalls this because it was unusual – usually the anesthesiologist is sitting at his computer. If Dr. Doodnaught had been seated, Dr. Feinberg would not have been able to see him.

406. He does not recall being able to see Ms. Castaldi’s head during the operation. He would have asked for the drapes to be raised if that were the case, because he wouldn’t want to see the patient’s face during the operation.

407. Defence witness Kathy Williams was the circulating nurse. She had “somewhat” of a recollection of the surgery. She did not see or hear anything untoward.

iii. Events following Surgery

408. Ms. Castaldi told a friend, Michelle Bigelow, that something weird had happened. She told Ms. Bigelow that she felt like she was kissing somebody, like there was a penis in her mouth. Her friend told her, Carmela, you’re hallucinating, you’re on painkillers, you’re on morphine right now. The friend told her, “No, no, you’re joking.” She did not tell anyone at the hospital because she thought she was hallucinating, that it was a dream. Her girlfriend had said it was a hallucination, and Ms. Castaldi did not think there was any way this could have happened during her surgery.

409. Ms. Castaldi complained to the police after Ms. Bigelow advised her of the news reports about Dr. Doodnaught. Ms. Bigelow called and said I’m sorry, I’m sorry, you were right, you were not hallucinating, and directed Ms. Castaldi to a website where they found information about Dr. Doodnaught. She gave a statement to the police in Markham that day.

410. Ms. Castaldi agreed that she told police that “the only way I didn’t know I was hallucinating was when I saw what happened, I wasn’t the only girl he did it to.” She also told police, “It still feels like a dream. It’s like a kick in the face now … it’s a reality.” She was speaking about hearing that others had complained.

iv. Discussion

411. Given Ms. Castaldi’s circumstances, it is not surprising that her recollection of peripheral events is cloudy. The defence points out that it was physically impossible for the accused to commit the offence while seated as Ms. Castaldi recalls. Dr. Feinberg, however, recalls Dr. Doodnaught standing for a significant part of the surgery, taking an unusual interest in the procedure.

412. Ms. Castaldi recalled seeing Dr. Feinberg’s face during the assault. Dr. Feinberg, on the other hand, testified that he does not recall seeing Ms. Castaldi’s head during the procedure, and if he had, he would have asked for the drape to be raised because he wouldn’t want to see the patient’s face during the operation.

413. I accept Dr. Feinberg’s evidence and conclude that the accused was standing during much of the surgery and that Dr. Feinberg could not see Ms. Castaldi’s face.

414. The MRSA gowns tie in the back and extend to just below the knees. A typical MRSA gown was introduced as exhibit 167. I have examined it, and I conclude that, contrary to the defence position, it can easily be lifted up to allow for loosening the scrub pants drawstring and exposing the penis. With her head turned to the left, Ms. Castaldi’s mouth would be close enough to the edge of the bed to allow the accused to insert his penis. Although Dr. Feinberg was working on the surgical site close to the draping, it was high enough and wide enough that neither he nor other medical personnel could see what Dr. Doodnaught was doing. The accused had the opportunity to commit the alleged sexual assaults without detection.

415. The defence also submitted that the fact that Ms. Castaldi was an MRSA patient would be a powerful deterrent to the commission of the offence. Dr. Feinberg stated in examination in chief that being MRSA positive would not interfere with normal sexual activity. This observation was not challenged in cross-examination.

416. Ms. Castaldi had the perception that she had been sexually assaulted. The evidence shows that she was conscious during parts of the surgery. She told her friend that something weird had happened, but together they concluded that it must have been a hallucination because she did not think something like this could happen during surgery.

417. It was only after the media reports when Ms. Castaldi learned that there were other complainants that she realized that what happened to her in OR 6 on December 11, 2009 was not a hallucination.

418. I find Ms. Castaldi’s evidence concerning the sexual assault to be reliable.

Count 9: Lianne Gotkind

i. Overview

419. Ms. Lianne Gotkind was 28 years old when she had ACL (anterior crusciate ligament) repair on her left knee performed by Dr. Robert Brock on December 8, 2009 in OR2. She alleges that the accused kissed her on the lips and briefly brushed her breast. Her recollection of preoperative events was clear but she does not recall the surgery itself.

420. She recalled waiting on the bed in the hallway. A nurse came by, then Dr. Brock had her sign consent forms, and Dr. Doodnaught came out to talk to her as well.

421. Dr. Doodnaught introduced himself and told her she would be getting a spinal. He said, “You’ll feel great, and you’ll have great dreams.” They discussed things unrelated to surgery, including Tiger Woods and his affairs. Dr. Doodnaught said his only mistake was getting caught. Ms. Gotkind found him laid back, at ease, and took his remarks as just joking with her.

422. Inside the OR, she recalled seeing Dr. Brock, two nurses, and maybe others. She was aided by a nurse while Dr. Doodnaught gave the spinal. She lay down, put her arms to the side for the BP cuff and IV and pulse oximeter. She had a mask on her face just prior to surgery. She couldn’t feel the position of her legs. She doesn’t recall any draping at any point.

423. Dr. Brock testified that he remembered the procedure. He marked exhibit 39 indicating the location of medical personnel and the positioning of the patient for this type of surgery.

424. For this surgery, the end of the table is dropped with the patient’s legs over the end of the table with the feet pointing at the floor.

425. Dr. Brock did not observe anything unusual during the procedure.

426. Dr. Nicholas Christidis was the surgical assistant. He testified that he has no independent recollection of this operation. He marked exhibit 163, indicating the positions of parties during a typical ACL surgery in OR 2.

ii. The Sexual Assault

427. Ms. Gotkind woke up to being kissed on the cheek and mouth. She heard, “Wake up sweetie, the surgery is over.” She opened her eyes and saw Dr. Doodnaught standing above her head. The kiss on the lips was brief, and was accompanied by kisses on both cheeks.

428. She also felt a hand briefly run over her breasts, a momentary swipe.

iii. Disclosure after Surgery

429. The next thing she recalls is waking up in the recovery room. Her mother and mother-in-law came in. She told them she thought the anesthesiologist woke her up by kissing her. Her mother-in-law laughed and said she must be hallucinating. Once her mother-in-law left and her husband came in, she told him the same thing.

430. Dr. Doodnaught came into the recovery room. Her mother and mother-in-law were there. He said everything was okay because she was able to move her toes. He didn’t say anything with respect to the drugs or anything inappropriate.

431. She saw the news of the allegations against the anesthesiologist while she was exercising at home on her stationery bicycle. She went up to tell her husband, but he had already received a text from a friend who worked at NYGH. She called the hotline the next day.

432. She testified that she always believed that what she perceived was true, but because of her mother-in-law’s reaction, she had tried to put it out of her mind. When she saw it on the news, she knew it was true after all.

433. Ms. Gotkind’s husband, Darryl Singer, testified that when he saw his wife after her surgery and asked her how she was, she said fine, but told him that she was wakened up from her general anesthetic by her doctor in a very non-traditional way. She said he kissed her on the cheek and forehead and said “wake up sweetie, the surgery’s over.” She also said that before the end of the surgery she felt a hand inside her top.

434. Mr. Singer testified that his wife was prompted to come forward by a combination of factors: The news report gave the name of the doctor and that he was either being arrested or investigated; a friend of theirs who worked at NYGH discussed the situation with her; and his wife was distraught because she realized that what she had been trying to put out of her mind had actually happened.

435. Ms. Gotkind’s mother-in-law, Hindy Singer, also testified and confirmed Ms. Gotkind’s and her husband’s account and said Ms. Gotkind was quite distressed and mentioned it several times and her voice was raised. She said that Ms. Gotkind persisted in talking about it for days.

iv. Discussion

436. The evidence shows that Ms. Gotkind believed she had been assaulted at the end of her surgery, but was deterred from coming forward because of the reaction to her disclosure by her mother-in-law and the others. Her mother-in-law had suggested she was hallucinating. She never doubted that she had been assaulted. The news reports confirmed her opinion and led to her coming forward.

437. The evidence concerning this brief assault has the ring of truth. The brevity of the assault made it unlikely that anyone would detect it.

438. I find Ms. Gotkind’s evidence to be plausible. I do not reject it.

Count 10: Rochelle Geller

i. Overview

439. Ms. Geller had a left knee replacement performed by Dr. Michael West in OR 2 on December 1, 2009. She was 60 years old at the time of surgery.

440. In the hallway beside the OR, she met Dr. Doodnaught. He introduced himself as her anesthesiologist, and said she would get an injection in her back which would freeze her from the waist down.

441. She has no recollection of Dr. West marking an “X” on her knee in the hallway, nor speaking to Dr. Christidis about her medical history.

442. When she was on the operating table, she bent over, Dr. Doodnaught injected her, told her to just relax and then they would start the operation. She doesn’t recall anyone being in front of her during the spinal.

443. The last thing she remembers at that point is them laying her down on the table.

444. She has no recollection of things being placed on her arms, or the oxygen mask. She recalls an IV connector being put in before she went into the OR.

445. She doesn’t remember the draping going up or the catheter going in.

446. Shaun Bracken, the vendor rep, Elizabeth Olcott, the PACU nurse, and Dr. Nicholas Christidis, the surgical assistant, all testified that they had no specific recollection of the Geller case. Dr. Christidis marked Ex. 164 indicating his evidence concerning typical positioning of medical personnel and patient for left knee replacement.

ii. The Sexual Assault

447. Ms. Geller remembers waking up during the surgery. She asked Dr. Doodnaught how come she was awake, and he said that he had to wake her up because she had shallow breathing. He was speaking in a normal voice. She said, Oh, I’m awake now, I don’t feel anything. She couldn’t believe that she was actually awake.

448. She testified that she heard the saw and asked whether they were in the middle of the operation. Dr. Doodnaught said yes. She believed the surgeon was there, but she didn’t see him because there was something covering her. She tried to look down but couldn’t see anything. A barrier was blocking her view. She didn’t recall seeing any draping nor seeing any blue. She recalled no colour.

449. Dr. Doodnaught was chatting to her a bit. Then he came around the back and put his hands around the back of her gown and she thought that he was checking something on her chest. She didn’t think much of it the first time. It lasted 5-10 seconds.

450. Then he came back and talked some more. It seemed to her like they were discussing personal things. She doesn’t remember wearing a mask at this point. She can’t recall details of their discussion but agreed that they had both been joking around.

451. Then he came behind her head. She felt his body pressing up against the back of her head. She felt his hands go under her gown. This time was different. He grabbed her breasts with both hands and squeezed them. The squeezing lasted 10-15 seconds. It was skin to skin contact. She realized this was not just checking. This was not right.

452. She was in a state of shock and didn’t know what to do. He stopped, came around her left side, checked some things, and said, “I think now I’m going to put you back under”, and that’s all she remembers. She just went unconscious again.

453. She believes her arms were at her sides during the assault. She recalls her head at the top of the table.

454. She doesn’t recall a Mayo stand and doesn’t have any real recall of the people in the room.

iii. Events after Surgery—visit by Dr. Doodnaught and his comments

455. Her next recollection is waking up in her hospital room she shared with other patients. She does not recall the recovery room, despite her being recorded as a consciousness level “2” upon arrival.

456. Her then husband came to visit her in the late evening. He was very upset because he had had a big accident in the States. She didn’t want to say what had happened and instead consoled him, telling him not to worry. She was still concerned about what had happened to her, though.

457. Dr. Doodnaught came to her room the next day, probably in the afternoon. He asked if she remembered who he was and she said yes, the anesthesiologist. He asked if she remembered that she had asked him to come and visit her. She said she didn’t remember. He said, Yeah, you asked me to come visit you. Remember, I woke you up and we were talking. She said that they were chatting and laughing. He said that they were having quite a personal conversation and she was telling him lots of personal stuff. She said she didn’t know what they were talking about and he said don’t worry, everything will be kept in confidence. She wondered about that, but didn’t say anything. He said, if you come back for the other leg, ask for George, maybe I can do it. She thought that was strange.

458. Then he left, and she started thinking that what she remembered really did happen. She wasn’t dreaming. She thought his comments about keeping it in confidence were about how they did something, let’s keep it quiet, that kind of thing.

459. Shortly after Dr. Doodnaught left, her friend Ted Berger called. He asked how she was and she told him, Ted, you’re not going to believe this, but I think I was molested during my surgery. She told him that at first she thought it couldn’t be but now she knows for certain that he did it. Dr. Doodnaught’s visit was what prompted her to tell Berger about it. He said that she should go tell someone, report it. She asked who she would tell and he said nurses or doctors. She said they come and go and she was in pain. He said that maybe he could come and help her, but he never showed up. She was kind of hurt and upset with him. They aren’t on the greatest of terms right now.

460. She decided to keep it to herself. She told a few people that the anesthesiologist visited her in her room and they thought it was strange. She didn’t want to tell her husband, as he was in too bad a shape and from a different culture; she didn’t want to get him worked up.

461. It was in her mind the whole time she was in the rehab centre. She wasn’t in great shape mentally after that; she had quite a few confrontations with family and friends and was angry and upset. It took her quite a bit of time to recover.

462. She had put it to the back of her mind, but then saw it on the news and told her husband. He and others were upset she hadn’t said anything before. She said she didn’t think anyone would believe her.

463. After seeing it on the news, it confirmed in her mind that she hadn’t been dreaming the whole thing. She felt like a victim. She called the police on March 11, 2010, the same day as the press conference. Constable Rita James confirmed that she and a fellow officer had a brief interview with her about a half-hour after she called police. On March 24, she gave a more detailed statement to police.

iv. Discussion

464. The drugs administered were within established norms and were highly unlikely to produce hallucinations, particularly involving sexual assault. Ms. Geller testified that she was wakened in mid-surgery and remembers the sound of sawing as her knee was being operated on. It was then that she was sexually assaulted. It is hardly surprising or significant that her memory of peripheral events is foggy. She disclosed her allegations to her friend that night.

465. Ms. Geller was fully awake when she was visited by the accused the next day in her hospital room. During that visit, the accused told her that during the surgery, they had a great personal conversation and that she was telling him a lot of personal things about herself. He told her that everything she had said to him would be kept in confidence. Understandably, this reinforced Ms. Geller’s belief that something very wrong had taken place during her surgery.

466. When she heard about Dr. Doodnaught’s arrest on the news, it confirmed in her mind that what she believed she had experienced had actually happened. She immediately called police.

467. I find Ms. Geller’s account to be reliable.

Count 11: Heather Vandewall

i. Overview

468. Ms. Vandewall was 53 years old when she had left knee replacement surgery performed by Dr. John Faulkner in OR1 on November 16, 2009. She alleges that the accused placed his penis in her hand during surgery.

469. She went to the hospital with her then boyfriend, John Goddard and her daughter Kristen. She has good recall of preoperative procedures. She was anxious and recalls meeting Dr. Doodnaught while she lay on a gurney outside the OR. He was reassuring and although she does not recall discussing the anesthetic plan, she understood from her earlier preoperative anesthesia consultation that she would be receiving an epidural. She recalls that Dr. Faulkner spoke to her in the hallway as well and tried to put her at ease with humour and by making a joke based on the fact that Ms. Vandewall’s GP is Dr. Faulkner’s wife. He said “okay, folks, we are going to get this done. Look at who her doctor is. We don’t want to have any issues here today.”

470. She recalls walking into the OR with a nurse and sitting on the bed, which to her seemed “really high.” She is roughly five feet tall.

471. When she walked in, the bed was to her left, from foot to head. There was a curtain around the bed. The curtain went from the head of the bed to the left, then turned and went down the length of the bed, and then turned again toward the foot of the bed, though the curtain wasn’t fully pulled to the foot of the bed. She was unsure whether the curtain went behind the head of the bed. There was a stool where Dr. Doodnaught was sitting. She cannot recall any blue draping on the bed, or anyone in the OR at that time other than Dr. Doodnaught (after the nurse who brought her in left, which occurred before the spinal).

472. She got on the table. Dr. Doodnaught was in front of her. He said to lean into him with both arms. She felt him put something into her left arm. He told her to count backwards from 10; she cannot remember anything past 9.

473. Galina Amal, the scrub nurse for the Vandewall surgery, testified that she had no specific recall of the surgery. The OR records show that there were many people in the room. She agreed that the charts are not always accurate respecting the times when people enter and exit and that the circulating nurses don’t put the times down for the vendor representatives.

474. Dr. Dan Cohen was Dr. Faulkner’s surgical assistant. He testified that he has no recall of this operation. He testified that he is familiar with the staff he was working with that day. He said that the patient and medical staff positioning would be fairly standard. Although he couldn’t remember the precise locations of staff, he drew a diagram based on standard practice for this type of surgery. The diagram, exhibit 169, shows the general positions of the surgeon, surgical assistants, and other medical personnel.

475. The senior (first) surgical assistant would be opposite the surgeon. In all of these operations, given his seniority, he is the first assistant.

ii. The Sexual Assault

476. The next thing Ms. Vandewall recalls is “the episode of panic.” She felt like she was in a movie. She was stressed, her heart was racing, and she felt her left hand enclosed around something. She tried to move her hand away and heard, “No no, no no, don’t do that, you’re doing a great job.” Her eyes were tightly closed. She heard the voice saying that same phrase – “No no, no no, don’t do that, you’re doing a great job” – over and over again. She heard this when she was trying to release the object in her hand but could not do so. It was Dr. Doodnaught’s voice. She realized that the object she was holding was getting larger. She was panicking, like trying to get out of a room but she couldn’t, even though she was a strong person. She then heard, “That was great.” She then drifted off.

477. The object in her left hand was cylindrical. It was smooth, soft at first, and then it hardened up. At that point, she realized that it was a penis. She did not feel anything else in her hand other than the penis. She does not recall the object moving back and forth.

478. During the incident, she believed her hand was moving, partially opening and closing, and sort of cupped, encircling the object, with the opening of her hand and her thumb slightly downward. She believed that her arm was by her side, fully extended. Counsel agree that based on her recollection of the position of her arm, the bottom of her hand was 8 inches from her knee, 27 inches from her foot, and 3 inches from her hip. She cannot recall exactly where her arm was, but it was closer to her side than a 90 degree angle.

479. She never opened her eyes and thus never saw a penis during the operation.

480. She didn’t know how long it went on, but in her mind it felt like forever.

481. When he was making those comments, Dr. Doodnaught’s voice grew in excitement. The tone changed, but the voice did not become louder.

482. She has no memory or knowledge of her position on the bed. She did not believe she was on her side. She did not know in advance that her left foot would be placed in a boot-like contraption at the foot of the bed.

483. She has no memory or knowledge of other individuals in the OR aside from Dr. Doodnaught and Dr. Faulkner (at the end of the surgery).

484. Her next memory after drifting off was coming to and hearing Dr. Faulkner saying the surgery had gone well, that the suturing would leave a clean scar, and joking that her boyfriend John owes him golf balls (the boyfriend worked at Golftown at the time). She thinks this was in the OR. She did not notice any draping. She was just focused on Dr. Faulkner’s face and voice. She wanted to get to where her family was. She was still in such a panic state because she knew something had happened. She closed her eyes.

485. In cross-examination, Ms. Vandewall testified that her perception was that when she had the accused’s penis in her hand, her arm was by her side, rather than resting on the armboards. In her perception, her hand was about eight inches away from her side. She also could not recall whether she was lying on her back or in a sitting position.

486. She does not recall being in the recovery room despite the PACU record indicating that she was awake.

iii. Events following Surgery: Disclosure to Daughters, Visit and Comments of Accused and Subsequent Report to Police

487. Her next recollection is being wheeled down a hallway on the floor that her room was on and seeing her two daughters, Amanda and Kristen, at the end of the hallway. They came to the side of her bed and said, “You made it.” Ms. Vandewall said, “I just masturbated someone in the OR.” Her daughters said “Mom” and were horrified. They said she was just coming out of surgery and needed to rest. They took her into her room. She said again, “I just masturbated someone in the OR. Something inappropriate happened.” Then she threw up. Her daughters were horrified again. They said maybe it was the drugs. They said that they’d come back tomorrow. The nurse came in; she threw up again; and she just laid there, so upset, crying, and drifted off again. She couldn’t sleep. She was afraid to close her eyes. She knew something had happened and didn’t want to be there.

488. The following afternoon Dr. Doodnaught came in. She was shocked to see him and was rude and said, “What are you doing here.” He said he wanted to see her boyfriend John. She asked why, and he said, “I wanted to tell him he was a lucky guy.” Dr. Doodnaught then left. She was stunned. She did not tell others that Dr. Doodnaught had come in and said that, because she wasn’t going to embarrass herself further by disclosing this comment.

489. Later on that day, her daughter Kristen and friend Sharon Forfar came to see her. She told them, “I’m telling you again, something inappropriate happened.” Sharon also thought it was the medication. At that moment, Ms. Vandewall decided she must be crazy. Nobody believed her. She decided not to talk about it again. Although, once more, at the time she was being discharged, she told her daughters that she knew in her heart that something had happened, but she knew they didn’t believe her. She mentioned it to John Goddard, her then-boyfriend, once, but he looked at her in disbelief and said “I don’t even know how to help you”, so she never spoke about it again until March 2010.

490. She did not think about telling the hospital – thinking that if her own family didn’t believe her, what are the chances anyone else would?

491. In March 2010, abour four months after the surgery, she was visiting her friend Sharon’s home. Sharon’s mother came in ranting about how you can’t even go to a hospital anymore. Sharon’s mother pointed to the television and Ms. Vandewall saw Dr. Doodnaught’s picture and NYGH. She turned to Sharon and said, “Oh my god. I wasn’t wrong.” She thought she was going to throw up. She went home, threw up, and started to “cry beyond belief.”

492. The same day, she called her daughters separately and told them she wasn’t wrong, it was on the news. One of her daughters provided her with a phone number to call – a witness line or Crimestoppers or similar.

493. She called the number. They called her back and requested that she come in for an interview. She gave a statement to police.

494. She was contacted by NYGH. The person told her she needed to come in and pick up some papers they needed to release. When she did not go in immediately, they called her again.

495. Ms. Vandewall’s daughter Amanda Vandewall testified and confirmed that she and her sister visited her mother in the afternoon after her surgery. When she went into the room her mother said, “He made me masturbate him.” Her mother had never used that word before. It made Amanda feel a little awkward. Amanda and her sister told her mother she was a little groggy coming out of surgery. She was “groggy, not like upset or anything like that” – she was just coming off the anesthetic so she was a bit groggy and a little bit tired.

496. She did not really take her mother’s comment at face value, nor did her sister.

497. Her mother may have mentioned it one more time. Amanda thinks she actually said, maybe it was the anesthetic, everybody’s different, and just explained it away.

498. In March 2010, Amanda spoke to her mom when the story broke. She sent the information to her, saying, this is real, this happened. This is him. She and her sister asked if their mom had reported it and her mom got in contact with people who put her in contact with the police.

499. Ms. Vandewall’s friend Sharon Forfar testified that she visited her on Tuesday, the day after the surgery. She came with Kristen, the complainant’s daughter. When Kristen went to get coffee, Ms. Vandewall asked her whether she had ever experienced sexual dreams during surgery. Sharon said no and asked why. The complainant said that she felt like she had “given somebody a hand job.” They discussed it and the complainant said it was very vivid; she truly thought something happened. In the hospital, she said that she thought maybe she was a bit affected by the anesthetic. Sharon described her as “freaked out.” They tried to make light of it and sort of laughted it off as a dream or something.

500. The complainant made a couple of comments about it over the next few weeks. They didn’t really discuss it after that, maybe in a joking way, until it came on the news.

501. In March 2010, the complainant and Sharon met up. Sharon’s mother was watching the news. When the TV talked about an anesthesiologist at NYGH, the complainant said, “I knew it happened. I knew it happened. I’m not crazy.” She got up and left shortly thereafter.

iv. Discussion

502. The defence placed considerable emphasis on the physical impossibility of the accused committing the offence with Ms. Vandewall’s left arm positioned at her side. However, her perception of the position of her left arm is in contrast to the evidence of Dr. Cohen, one of the surgical assistants. He testified that although he has no specific recollection of this procedure, the draping and positioning of medical personnel would be standard for a left ankle replacement. Exhibit 7B, photos 4168 and 4169 are standard setups for this procedure. They show the armboards extended behind the draping and depict the standard draping. Finally, the Opertating Room Record (ex. 1A, p. 8774) reveals that Ms. Vandewall’s arms were secured by safety straps.

503. To illustrate the point, I reproduce Ex. 7B photo 4169:

504. The accused had the opportunity to commit the alleged offence without detection. The levels of drugs administered to Ms. Vandewall were within accepted norms. Given that she was under sedation, it is not surprising that her recollection of peripheral events is foggy or non-existent, while her recollection of awakening to being sexually assaulted is clear.

505. The visit by the accused to Ms. Vandewall’s hospital room the following day, and his comment that he had hoped to meet her boyfriend John to tell him he’s a lucky guy, also tends, to a limited extent, to favour the reliability of Ms. Vandewall’s claim of sexual assault.

506. Ms. Vandewall was distressed after the surgery and disclosed the events to her daughters, her friend Ms. Forfar, and her boyfriend John. They all told her that it was likely the drugs. She always believed that the assault occurred but did not report it to authorities because she concluded that if her friends and family didn’t believe her, no-one would. It was only when the press release brought things into the open that Ms. Vandewall felt that her claim of sexual assault would be taken seriously.

507. I find that the evidence of Ms. Vandewall that she was sexually assaulted by the accused is reliable.

Count 12: Gunda Volz

i. Overview

508. Ms. Gunda Volz, a 71 year-old retired lab technician, had left hip replacement surgery on October 22, 2009 performed by Dr. Maurice Bent in OR 1.

509. She had had a right hip replacement in 2007. The same type of anesthetic was used then – epidural plus sedatives.

510. She took some mild sedative before the surgery. She was apprehensive. When she was waiting outside the OR, Dr. Bent came by to speak with her and reassure her.

511. Dr. Doodnaught introduced himself to her in the hall, they went over her records. At some later point, Dr. Doodnaught said, “When you are under anesthesia, I’m in total control of you. I can put you in a deep sleep or a light sleep. I can do it whenever I want.” This upset her, but she didn’t say anything. She didn’t know why it was important for him to say that. She asked him his name again – she doesn’t know why. He said he was Dr. Doodnaught.

512. She walked into the OR with the assistance of an attendant. She was nervous because of all the people and equipment so she “put blinders on.” She got on the table with Dr. Doodnaught behind her. Her gown was undone at the back and she got the epidural. It was painless. She does not remember anything after that until waking up during the operation because Dr. Doodnaught was speaking to her.

513. She does not remember being positioned or her position on the operating table. She does not recall seeing drapes, nor getting the IV, catheter, BP cuff, having an oxygen mask on at any point, or any other steps or equipment.

514. Bienvenido Parrenas, the first relief circulating nurse, testified that he has no recollection of the Volz surgery.

515. Dr. Bent, the surgeon in the Volz case, testified as a defence witness. He has worked with Dr. Doodnaught for about twenty-five years, almost on a weekly basis.

516. Dr. Bent confirmed Dr. Doodnaught’s reputation as a caring and competent anesthesiologist, and said that he and his colleagues were always pleased if they learned that he was to be the anesthesiologist on a particular day.

517. Dr. Bent said that he and Dr. Doodnaught do not socialize, apart from three or four rounds of golf over the years, and hospital social events.

518. Dr. Bent testified that over the past seven to ten years, spinal anesthesia with some sedation has become widely accepted. He said that Dr. Doodnaught was ahead of his time in taking this approach much earlier than many of the other anesthesiologists and it was an excellent approach.

519. He testified that his daughter had had surgery with Dr. Doodnaught as her anesthesiologist and had been very caring and solicitous to her, including rubbing her cheek, which she found comforting at the time. Dr. Bent said that he is not in a position to see how Dr. Doodnaught might behave with the patients he’s operating on “because there are drapes between us.”

520. Dr. Bent testified that he had no specific recollection of the Volz surgery, but based on the OR records, it appeared to have been uneventful.

521. During examination-in-chief, Dr. Bent marked a diagram of OR 1 to indicate where he and his colleagues would have been standing for the surgery. It was entered as ex. 159 and shows that the closest surgical assistant would be standing by the patient’s shoulder. In cross-examination, he acknowledged that he had positioned himself and his colleagues incorrectly. The surgical assistant to his right would be at the thorax level of the patient, not the shoulder, while he (Dr. Bent) would be level with the hip. On the diagram, that meant moving the markings down about one-half an inch. The patient’s head would be at the top of the table right at the end or just over it. He was asked to mark another diagram (ex. 160) to reflect the errors.

522. He acknowledged that with a shorter patient (Ms. Volz’s height is 5’ 7”), a portion of the table may be removed to ensure the patient’s head is at the end of the bed.

ii. The Sexual Assault

523. Ms. Volz’s next recollection after getting the epidural is hearing a voice saying, “You are a sexy lady. Do you do blow jobs?”[^37] She recognized the voice as Dr. Doodnaught’s. It was coming in front of her and to the side, like someone was beside her, bending over and talking to her. She can’t say which position her head was in then.

524. Right after, she felt both breasts being squeezed hard. It really pained her. She remembers grimacing, trying to cry out, trying to move away with her upper body. She felt hands; it was skin to skin. She does not think there were other objects being pressed against her. She can’t recall if there was something against her back or in her hands as well.

525. When that stopped, there was something pressed against her mouth. She clenched her teeth and pressed her lips together to prevent it from entering her mouth. Her eyes were closed and she did not see what it was. It felt like flesh, warm and soft. While it was all happening so fast, she thought it was a penis because of Dr. Doodnaught’s earlier comment about blow jobs.

526. After the object stopped pressing against her mouth, she turned her head to the right and saw the tip of his penis at the opening of his pants, in the middle of his pants where a fly would be.

527. After seeing the penis, she closed her eyes. She tried to say, “You are taking advantage of me”, but the words did not come out.

iii. Events after Surgery

528. Her next recollection is waking up in the recovery room. A nurse was speaking to her. At some point Dr. Doodnaught came into the recovery room with another patient. She glared at him but did not say anything about her anger. Dr. Doodnaught came over to her, said he had given or prescribed her a drug (she cannot recall the name), and said, “You’re gonna be all right.” She was overcome with emotion – anger, fear, bewilderment.

529. She does not recall how the table looked or anything that happened between the sexual contact and her waking up in the recovery room.

530. In March 2010, when she was sitting in the kitchen with her husband, she heard a news report about an alleged sexual assault at NYGH. Once she heard Dr. Doodnaught’s name she broke down and cried and told her husband what had happened. She contacted the police soon after.

531. She did not tell anyone about the assault until after hearing that he had been charged.

532. She was always convinced it happened but she had one percent of doubt that maybe it was “a configuration of my mind.” She felt no-one would believe her and she found it difficult to conceive that it was possible in an OR with other people around.

533. Ms. Volz’s husband, Anton Volz, testified that he visited her in her hospital room after the surgery. They didn’t speak much at that point, as she had just had major surgery. She didn’t say anything about having been assaulted during her operation.

iv. No Disclosure until after Media Report

534. In March 2010, at about 7:30 a.m., Mr. Volz was in the kitchen after breakfast listening to the Andy Barry show on the CBC. His wife was in the living room. On the news, there was something about a doctor being charged at NYGH. His wife heard the news and came in. She said, “Did they mention North York General Hospital? Did they mention Dr. Doodnaught?” He didn’t quite catch the name but thought it was “Goodnaught” (sic). He said yes. She became quite emotional and was crying. She started to tell him something that had happened that she hadn’t told him about before.

535. Ms. Volz told him in general terms what had happened: that the doctor had said something to the effect of you’re one sexy lady, did she do blow jobs or good blow jobs. She thought he tried to put his penis in her mouth but she resisted.

536. He asked her why she didn’t tell him about this before. She said she thought she could manage it herself.

537. They did some research on the internet about the situation, found the information, and after that they called the police. There was a number to call if you had been a victim.

v. Discussion

538. I find it entirely understandable that Ms. Volz decided not to tell anyone because she thought no-one would believe her. As with Ms. Ramdin (the complainant in count 3), who also did not tell anyone about her experience, her explanation for not doing so is understandable.

539. The drugs administered were within the normal range. Ms. Volz’s foggy recollection of events is to be expected. However, as I have stated previously, I accept that unwanted, shocking and intrusive events—such as the assault alleged here—are more likely to be recalled.

540. The configuration of the draping, the positioning of the patient, and the positions of the surgical staff as depicted in ex. 160 (the amended diagram marked by Dr. Bent), all support the inference that no-one would be able to see what was going on behind the draping.

541. The defence argues that the positioning of the armboards, the IV poles, and the distance from the side of the operating table to the patient’s mouth when her head was facing to the right, all render it impossible for the alleged offence to have taken place. I do not accept the argument that it was physically impossible to commit the offence as alleged.

542. At the same time, there are obvious frailties in the account of Ms. Volz and I approach her evidence with caution. I find Ms. Volz’s evidence to be plausible and I do not reject it.

Count 13: Margot Barnett

i. Overview

543. Ms. Margot Barnett, a retired owner/operator of vocational schools, had double knee replacement surgery performed by Dr. Hossein Mehdian in OR1 on September 22, 2009. She was 75 years old.

544. She testified that she was delighted, “ebullient” to be having the surgery, not apprehensive as recorded on the chart. She had gone through a year of being almost totally immobile and was anxious to be able to return to the things she enjoyed, such as working in her garden.

545. While waiting by the OR, Dr. Doodnaught approached, introduced himself, and said he would be the anesthesiologist. He proceeded to put her at ease, saying she would be in good hands. He asked her if she was British; she responded that she was Irish. He said he’d gone to school in Scotland. He asked her what she hoped for after surgery. She said she had a big English garden and was an avid gardener, but hadn’t been able to do it for a year, and she was interested in getting her life back. They talked about the garden in quite a bit of detail. Dr. Doodnaught said he’d like to see her garden. She thinks she told him how many children she had. She told him she was a widow.

546. She cannot recall speaking to Dr. Mehdian or a nurse.

547. She did not recall a spinal being discussed or any particular drugs being mentioned, but she recalled Dr. Doodnaught saying that there would be drugs that some people reacted to with hallucinations, weird dreams, but not to worry about it, and if it happened to her she should not be too concerned.

548. She was wheeled into the OR on the gurney. About four or five other people were around the bed at that time. After being transferred onto the operating table and lying on her left side, the drug was administered, though she couldn’t see who was doing it. She believed she was getting a spinal. She believes a mask was put on her face. She does not recall any other procedure.

549. Bienvenido Parrenas was circulating nurse during the Barnett surgery. He had no recollection of it. Zahra Ramji-Hiri was 2^nd^ relief circulating nurse and also had no recollection of the case.

550. Dr. Hossein Mehdian was called by the defence. He has no specific recollection of this operation, but described the normal patient positioning for this type of surgery.

551. The patient would be down at the bottom of the bed with the feet dangling over the side. If the patient was 5 feet 3 inches tall, as this patient was, there would be a fair distance between the patient’s head to the top of the bed.

552. In this case, both legs were being operated on. The legs would be in the foot locker one at a time.

553. The arms would be placed on the side of the patient on two arm holders.

554. For the first part of the operation, Dr. Mehdian is on the stool. For the second part, he isn’t. He also moves around from side to side during the operation.

555. The scrub nurse will change positions throughout the operation, from the left lower corner on the foot side to the right lower corner.

556. The surgical assistants usually stay in the same spot throughout the case – either opposite the surgeon or beside him.

557. The medical records show that there was an observer present during this surgery. Dr. Mehdian guesses that the observer would have been either at the foot of the table or to the side, at least 6 feet back. He marked See Ex. 153, a diagram indicating where everyone was likely positioned.

ii. The Sexual Assault

558. After receiving the spinal and lying down, the next thing Ms. Barnett recalled is becoming conscious. She could see and hear. The first thing she recalled was something like light, or a curtain, floating in front of her eyes. She heard a voice say turn your head, I want you to put this in your mouth. The voice was coming from the side, somewhere between her head and shoulder. Her body felt paralyzed; she had no sensation. But she could and did move her head to the left. She was looking slightly upwards and backwards.

559. She believes she was flat on her back with her head on a pillow. She does not recall being positioned at the end of the table or legholders.

560. She saw Dr. Doodnaught. He was standing slightly back from her head but had her head turned so she could see his face. He was wearing a cap. Initially she could not recall him wearing a mask, but in cross-examination, agreed she had the impression he had on a mask. His torso and body were beside her face, very close to her.

561. When he said, “I want you to put this in your mouth”, she couldn’t see what he was referring to; she was looking up at his face. She knew it was his penis – she’s been married for 50 years. It was nothing like the plastic oropharyngeal airway (Ex. 25). It was erect. It entered her mouth. She felt it go in; her mouth was open. She does not know whether there was any motion; she didn’t feel anything and went out of consciousness.

iii. Events after Surgery—Telephone call from Accused—Disclosure to friend, family member and police

562. The next thing she recalled was being in a hospital room being lifted from a gurney to the bed. Her sister and friend were there.

563. After, she thought to herself, how could you be right, because how could it happen in a place like that. There would be a lot of people around there, and so it would be impossible. If it was impossible then it didn’t happen. That is how she coped with the situation for a long time.

564. She perceived that he was alone, but she knew otherwise. As she reflected on it, she didn’t know whether the anesthesiologist could be seen by others.

565. She thought it was impossible because she had total trust in the medical profession; there were other people in the room; she did not think there was a barrier between the patient and the operating staff. If it was impossible, then it didn’t happen. Therefore it must have been a hallucination.

566. She saw Dr. Doodnaught again later that day or the following day. He came to the foot of her bed and asked how she was feeling. She said she was in pain but okay. She thinks that was the extent of it. He did not stay long and she thinks he was checking to see if she was comfortable, which was nice. But she had an instinctive recoil when seeing him.

567. Her conclusion that this had to have been a hallucination changed several weeks later when she received a phone call at her home. The caller said he was from North York General Hospital and that they needed information about her health card. Ms. Barnett said she didn’t give that kind of information over the phone and that in any event, they had the information already. At that point, the caller introduced himself as Dr. Doodnaught, and reminded her that he had been her anesthesiologist and said that he needed the expiry date for the health card. She told him she had the old red card and it didn’t have an expiry date.

568. Ms. Barnett was upset. She knew immediately that Health Card information was not the real reason for his call. It frightened her. There was some discussion about physio and her progress. She said things were going well. He then reminded her of the conversation in the hallway about the garden and asked whether she was okay to do her gardening. He then told her that she had invited him over to see her garden. She was “totally aghast.” She did not remember inviting him over to see her garden; it’s not something she would do to a strange man. She responded, saying, “There’s nothing to see. Everything’s dead in the garden. If I said something to give you the wrong impression or that was inappropriate, I apologize. I had already had some anaesthetic.” She said goodbye and hung up.

569. After the conversation, she was terrified. She knew he wasn’t calling about the Health Card. He was calling about coming to see her. She had been having recurring thoughts about what had happened during the surgery and it was very, very terrifying.

570. Before the call, she had persuaded herself that it had to have been a hallucination. After he brought up the obviously fabricated reason to call her, and because it was inappropriate and unethical, she realized that she had been kidding herself and it actually had happened.

571. She had no further contact with Dr. Doodnaught after this call.

572. She had told her sister that she had had hallucinations in the OR. She didn’t go into details but her sister knew it was erotic. She may have just had a laugh saying she must have made a fool of herself. She also told her sister about the phone call from Dr. Doodnaught shortly after it happened.

573. She came forward to authorities after her sister advised her that the doctor that she had told her about had been arrested for allegedly sexually assaulting women in his OR. It confirmed for Ms. Barnett that it was not the drugs. It made everything real because it was affirmed.

574. All she knew about the other complaints was that there were allegations of sexual abuse.

iv. Discussion

575. The defence advances similar arguments as with the other complainaints. I find that Ms. Barnett’s perception that she was sexually assaulted is not a result of drug-induced hallucination either alone or in combination with perceptions due to his hands-on, caring approach. I find that the acts complained of were not physically impossible and that they could easily be committed without being seen by OR personnel.

576. The telephone call made by the accused several weeks after the surgery initially purporting to be for the purpose of getting Health Card information, then for the purpose of securing an invitation to Ms. Barnett’s home, is also a real concern. Just as Ms. Barnett did, I find that it affords strong evidence tending to confirm the reliability of her perception that she was sexually assaulted by the accused.

577. I find Ms. Barnett’s allegation of being sexually assaulted by the accused to be reliable.

Count 14: Eleanor Brooks

i. Overview

578. Eleanor Brooks, a senior administrator with a Toronto-based engineering company, was 51 years old when she had abdominoplasty (liposuction) performed by Dr. Sean Rice at the Rice Clinic.

579. Ms. Brooks has had extensive experience with anesthetic drugs in the past. Mostly she was nauseous after surgery but otherwise had no side effects. She was conscious with good recall after the prior surgeries. She had been in a twilight state before for colonoscopies. She would drift off after they injected the anesthetic, but wasn’t totally asleep. She’d still be very conscious of what was going on around her.

580. She did not have a pre-op consultation before the surgery, but Dr. Rice told her that she would have a twilight sleep – she wouldn’t be totally conscious but would drift in and out. They did not speak about freezing, blocks, or a spinal.

581. She had had a mastectomy in 2001 that left her with nerve damage to her left breast. She can feel pressure when someone is touching her, but she can’t feel pain in that breast.

582. The day of the surgery, she recalls getting the IV in Dr. Rice’s office. Dr. Doodnaught put it in. Once the medicine started going in, she lost consciousness.

583. Alison Duncan was the circulating nurse for the Brooks procedure. She testified that she has no specific recollection of the case.

584. According to the chart, there were four medical personnel present for Ms. Brooks’ procedure: Nurses Duncan and Brown, and Drs. Rice and Doodnaught.

585. Nurse Duncan provided a diagram of the Rice Clinic as it was in 2009 (Ex. 120A) and was shown a series of photographs of the Rice Clinic (Ex. 120).

586. She confirmed that the anesthesiologist determines the height of the drapes and clips them to the IV poles.

587. As circulating nurse during a liposuction procedure, she hooks up all the equipment, replaces fluids as necessary, gathers whatever Dr. Rice needs. Generally, she’d be at the foot of the bed or at the scrub sink, cleaning instruments.

588. The patient is draped for the procedure. However, because the liposuction incisions are so tiny, it’s not difficult to maintain sterility, and sometimes the drapes are up and sometimes they are down. Often they don’t worry about it, because it is such a small incision.

589. For a “slimlipo” procedure, typically, the draping on the patient is put below the breast and above the pubic bone. The patient’s gown would be taken off and placed above, on her breasts.

590. Typically, the breasts are not within the operative field for the upper abdomen. They would be on the other side of the drape.

591. After the surgery, the recovery room nurse would come into the OR and the nurses and the anesthesiologist would transfer the patient from the bed to the gurney and through the double doors to the PACU.

592. The anesthesiologist would typically check on the patient in the PACU.

ii. The Sexual Assault

593. Ms. Brooks regained consciousness after what seemed a short time. She felt someone’s hand down the front of her gown, feeling her breast.

594. She knew it was the anesthesiologist. He was standing above her head and she could see his arm coming over her right shoulder, and could see her gown coming up a bit where his arm was under it.

595. At first she thought he was checking her heart with a stethoscope, but then his hand moved to her right side and she became aware that he had no stethoscope and was squeezing her right breast. She had felt pressure when he was feeling the left breast but when he moved to the right she could feel that it was his hand squeezing her breast, not a stethoscope. There was maybe 5 seconds between touching one breast and touching the other. She thought he was comparing her breasts – she has implants – and she mumbled, trying to say “stop it, get away from me.” Then she felt herself going out again. She believes he gave her a boost of the anesthetic at that point.

596. When she came to, his hand was still on her breasts, rubbing and squeezing them. She doesn’t know how long it lasted. He was in the same position as before, with his arm over her right shoulder, coming across her shoulder. She heard herself mumbling again, and then went back out.

597. When she came to, his hand was still under her gown. She tried to lift her right hand to smack him but she couldn’t. She didn’t see whether her arm was restrained by anything.

598. In chief and initially in cross-examination, she said he touched both breasts all three times. She said that the second time, he touched both breasts, back and forth. She also said that the third time, he similarly touched both breasts. When confronted in cross-examination with her police statement, in which she said that the first time it was both breasts and the second and third times it was just the right breast, she adopted her police statement. She said she was erroneous when she had said that both breasts were touched all three times.

599. She had awoken a few other times and he was not touching her. She can’t say when these instances were in relation to the three times that she woke up when he was touching her breasts. She recalls feeling pressure in her abdomen from the surgery, but no pain.

600. There was a pale blue or pale green sheet between her and Dr. Rice and the nurse. She doesn’t recall seeing the draping going up before going to sleep. It went vertically up from her waist area.

iii. After the Surgery—Disclosure to friend and subsequent report to police

601. She woke up in the recovery room. She was nauseous and took some gravol, which made her dizzy and sleepy. Dr. Rice came in, told her things went smoothly, wrote out a prescription for pain medication, asked if she had any questions – the usual procedure.

602. Her friend, Jude Noble, drove her home. She did not tell Ms. Noble anything then; she was still nauseous and lay down on the back seat for the ride home. She then went straight to bed.

603. She spoke to Ms. Noble a few days later. Ms. Noble encouraged her to complain. Ms. Brooks thought about if for a couple of days and concluded that no one will believe this. It’s his word against mine, and you can’t fight doctors. They discussed it briefly a couple more times but Ms. Brooks decided to move on. She figured that she had been under anesthetic, it was her word against his, he was a doctor, and she wasn’t sure she had the energy to go through the pain of it all.

604. She didn’t mention anything to Dr. Rice at a follow up 13 days after the procedure or another follow up in December 2009.

605. She knew it wasn’t a dream, because she knew from experience the difference between being semi-conscious because of the anesthetic and dreaming, and this wasn’t a dream. During the assault, she was aware, angry, and wanted to stop him but couldn’t.

606. She learned of the charges against Dr. Doodnaught from CP24 while at Ms. Noble’s house. She thought that it must be the same guy. (She hadn’t seen a picture, and had seen her anesthesiologist’s face only briefly when he had a mask on.) She waited about 4 weeks, then called Dr. Rice’s office and confirmed that Dr. Doodnaught had been the anesthesiologist for her procedure. Dr. Rice encouraged her to go forward with it. She signed a waiver permitting him to speak with the police, who contacted her.

607. Ms. Brooks gave a statement to police on May 26, 2010. In the interim between seeing the news report and asking Dr. Rice who her anesthesiologist was, she had met with Dr. Rice and said she was pleased with the procedure and had no issues. She waited for 4 weeks because she didn’t want to look as if she was jumping on the bandwagon. Once she found out it was the same doctor, she got mad.

608. Judith Noble testified that she took her friend Ms. Brooks to the Rice Clinic for the surgery and picked her up after it, later that day.

609. Ms. Brooks was very groggy when Ms. Noble picked her up, so there wasn’t much conversation. She dropped her off and made sure she was comfortable, and called her that evening to check in.

610. Ms. Noble called the next day and that’s when Ms. Brooks told her that she felt she had been assaulted by the anesthesiologist during the surgery. Ms. Brooks said that he had felt her breast when she was being put out the first time. She was very certain that it happened and that it was the anesthesiologist. Ms. Noble asked if she was going to speak to Dr. Rice or call the clinic and Ms. Brooks said she was going to. She didn’t seem at all hesitant.

611. Ms. Noble said that it was about a week later that Ms. Brooks was at her house and the media reports came on about Dr. Doodnaught. Ms. Brooks identified the man on the TV and Ms. Noble asked her whether she was going to contact Dr. Rice. Ms. Brooks said she was. Ms. Noble estimates that a day or two after that conversation, Ms. Brooks called Dr. Rice’s office and asked the girls there whether it was the same anesthesiologist who did her procedure.

612. When confronted with the fact that the surgery was in September 2009 and the news release was in March 2010, she said that she doesn’t remember the dates clearly, as it’s been a while now.

iv. Discussion

613. As with the other complainants, the assault alleged by Ms. Brooks could easily have occurred without detection. Ms. Brooks had experience with conscious sedation from numerous prior procedures. She knew what to expect regarding her level of awareness. She knew the assault occurred and told her friend about it shortly thereafter. Her failure to report it to the authorities is understandable. I find her evidence that she was sexually assaulted by the accused to be reliable.

Count 15: Sharon Ferguson

i. Overview

614. Ms. Sharon Ferguson, a payroll administrator for an oil company, was 49 years old when she underwent a total abdominal hysteretomy performed by Dr. Titus Owolabi on August 17, 2009 in OR4.

615. She got some type of medication before the surgery. She met Dr. Owalabi, in the hallway by the OR. He introduced her to a resident doctor and Dr. Doodnaught who reassured her that he would take care of her.

616. Once in the OR, she was assisted to get onto the table. Dr. Doodnaught went behind her. The spinal needle hurt a lot. She laid back. She recalls an IV in her left hand, though doesn’t know when it went in. She recalls draping, though her recollection is foggy. The draping was maybe 4 feet in front of her.

617. Lynne Manalo-Layug, the scrub nurse in the Ferguson case, has no specific recall, nor did the circulating nurse, Galina Amal.

ii. The Sexual Assault

618. Ms. Ferguson remembers someone groping her, touching her, kissing her on both cheeks and grabbing and squeezing her breasts. It was skin to skin contact. The whole time, it felt rushed.

619. At one point after that, she was holding his penis in her right hand. She asked him, “Do I have to do this?” She asked him that more than once. He said, “Yes, it is part of your healing. It’s part of your surgery”, so she continued to hold it. She felt like if she did not continue, she wouldn’t come out of it. She only remembers holding the penis once.

620. It was in her right hand. She can’t remember how it got in her hand, whether she reached for it or he placed it there. She doesn’t know how long she held it, but long enough to realize she didn’t want to and to ask on more than one occasion, “Do I have to do this?” She had her eyes open for most of it, because she saw him. She didn’t see his penis though, and doesn’t remember looking at his face.

621. She testified that she was upright, in a sitting position, when the assaults took place. Her feet were on the bed, but she was in an upright position. She doesn’t know if she was on a gurney or the operating table. She thinks the surgery was over. Dr. Doodnaught was standing to her left and her right hand was across her body, to her left side. Dr. Doodnaught was right beside the bed.

622. Her next recollection is him leaning over her, while she was lying down, and asking him, “What happened?” She was then fully aware of everything; she felt like there was a snapping of fingers and she was fully awake. She kept asking him what just happened. She also asked whether she was talking out loud. She wanted clarification. He said, “Don’t worry, don’t worry, yes you were talking.” She said, “Oh my god, what did I say” and he then reassured me by saying, “you were just mumbling.” She still kept saying, “What did I say?” He said, “Don’t worry” and then leaned over and in a soft voice, whispered “What happens in Vegas, stays in Vegas.”[^38] Her state of mind was one of shock and embarrassment that she may have said and done sexual things.

623. She reacted that way because it was so real, and she wanted answers. She was hoping that he would reassure her that she hadn’t held his penis, but then he said the Vegas remark.

624. She felt awful. She wondered if the nurses knew. She was so ashamed.

iii. Events after the Surgery—Disclosure

625. When her boyfriend came in, she told him “the strangest thing happened to me. It was sexual.” She didn’t give him details, but she felt horrible and told him, I’m never coming back to this hospital. She said to herself, they are all going to know it was her carrying on in the OR. She spoke about it with her boyfriend some more and with some other people, but not to any great degree.

626. She did not tell the hospital staff because she felt that they had heard what she said and had seen the actions and gestures she was performing.

627. She thought that maybe she was the one who behaved badly in the OR. She was embarrassed.

628. Later, she heard on the radio that a doctor at NYGH was charged with something sexual, and she thought, what? She called her boyfriend, they discussed it, she couldn’t remember the name of her anesthesiologist exactly, and she said she wanted to speak to her family doctor, which she did about a week later. Once she confirmed it was the same doctor, she knew it was real.

629. Lloyd Winston Earle, Ms. Ferguson’s boyfriend, visited her after the surgery. She told him there were some funny things going on, some sexual things that she couldn’t understand. She didn’t tell them exactly what they were. She also told him she had asked whether this was part of the treatment and the accused had said “yes.” She also said that the accused had said to her “what happens in Vegas, stays in Vegas.”

630. She told him that when she came out, she felt ashamed and would not like to see that doctor again.

631. She continually talked about the experience with Mr. Earle. She was nervous and wanted to tell her doctor. She did eventually tell her family doctor.

iv. Discussion

632. Ms. Ferguson’s recollection of events is foggy but the memory of the assault remains vivid. The OR was configured for gynecological surgery and the draping is such that OR staff would not be able to see what was happening behind the drapes. The accused had ample opportunity to place his penis in Ms. Ferguson’s hand. I accept Ms. Ferguson’s evidence that she was awake and aware and indeed did hear the accused lean forward and whisper “what happens in Vegas stays in Vegas.” This statement, in the context in which it was made, clearly had sexual connotations and supports the inference that some sort of sexual activity had taken place. Ms. Ferguson had thought perhaps she had initiated the activity and that it was somehow her fault. That is of course irrelevant, because if the accused acquiesced in the activity when the complainant was sedated and in no position to give informed consent, sexual assault has occurred.

633. The defence submits that Ms. Ferguson’s recollection of events, which involves her being in a sitting position, shows that the assault could not have occurred.

634. The drugs administered to her doubtless affected her perception and recollection of events. However, as I noted earlier, acts such as those alleged here are more likely to be recalled.

635. After considering the evidence relating to this count, I find Ms. Ferguson’s core allegation of sexual assault to be reliable.

Count 16: Laurie Fortnum

i. Overview

636. Ms. Fortnum’s complaint is the one I referred to earlier that was reported to police in January of 2009, and resulted in an investigation with no charges laid.

637. She was 48 when she had a “urethral sling” procedure performed by Dr. Flax in OR11 on December 16, 2008. The purpose of the procedure is to prevent recurring urinary incontinence. To test the success of the surgery, the patient is asked to cough toward the end of the procedure and for that reason, light sedation is appropriate.

638. She wasn’t that nervous prior to the operation. She had had surgery before and knew that she would be getting an epidural. She knew that she would have to be brought out of sedation in order to cough during the procedure.

639. Dr. Doodnaught and Dr. Flax came by prior to the procedure when she was in the hallway. Dr. Doodnaught put his hand on her shoulder in a reassuring manner. He spoke to her alone. He introduced himself to her, said she’d be getting an epidural plus light anesthetic, and he’d keep her comfortable. Dr. Doodnaught told her she’d be brought awake to cough – she was not sure but this conversation must have been in the hallway as well.

640. After getting her epidural, she can recall a white screen going up and being attached to a chrome pole with things that looked like clothespins. She believes the sheet went up from her navel, straight up, to about 3 feet high. Her arm was out at about a 90 degree angle. She doesn’t recall her lower body being positioned, insertion of the catheter, or people other than Dr. Flax, Dr. Doodnaught, and one nurse being in the room.

ii. The Sexual Assault

641. She came to during the operation and was being kissed by Dr. Doodnaught. It was “like French kissing.” His tongue was in her mouth. This lasted between 30 seconds to a minute, then she was unconscious again.

642. She became aware again and he had a hand on her breast and was kissing her at the same time. His hand was under her gown. He definitely touched her left breast, possibly both, and he was caressing and rubbing. The rubbing seemed to last about 30 seconds to a minute.

643. She wasn’t aware of anything else, any sounds in the background.

644. She is a little bit unsure of the order of things, but there was another time when he was just fondling her without also kissing. This definitely wasn’t the first couple of times she came awake though. The fondling happened at least twice.

645. When he was kissing and fondling her, he was bent over her. Her eyes were sometimes closed and sometimes open.

646. She came to at least two more times. One time she saw him taking his penis out of his pants. He twisted the opening of his pants from the side to the front. His penis was about 5 inches long and lighter than the rest of his skin.

647. On two or three occasions, she came to with his penis in her mouth. She frankly acknowledged that in her disinhibited state, she was responding sexually. His penis wasn’t fully erect and seemed to be uncircumcised and it seemed that he didn’t have any hair on his scrotum. The skin colour of his penis was lighter than the rest of his body. He wasn’t moving his body. Each insertion of his penis seemed to last a minute or so. She didn’t think he ejaculated.

648. When his penis was in her mouth, it seemed like he was right up to the operating table. He was on her left side. Her head was kind of turned to the left. She testified at the preliminary inquiry that he was between the extended arm pad and the operating table, below the arm pad. That was her best recollection at that time. She now does not recall exactly where he was in relation to the arm pad.

649. He spoke to her during the operation. He said, “You reached for me as soon as you went under.”

650. He said he didn’t think that I would like sex that much. He said this when he was fondling her. He asked her if she was going to “suck him off.”

651. He asked her when her husband wasn’t there (at home). She told him her husband was dead. She felt that he was trying to clarify when she’d be home alone. He said he’d come over and give her a good fuck. At some point she told him that she was living with someone (her children).

652. She asked him, “Can anybody hear us?” He said no. At one point she asked him if he did this all the time. He said, “Not always.” All of these exchanges were in a normal voice, but he was up close, so it wasn’t loud, it was in quieter tones.

653. After all of the sexual contact, she was brought awake and asked to cough 2 to 3 times.

654. The accused told her at least three times to make sure she didn’t tell anybody. She believes he made this comment when he was pushing her on the gurney into the recovery room. He was kind of leaning over and speaking in a normal, but quiet, voice. It seemed like they were alone.

655. In the recovery room, he was reassuring and said he’d see her later. She thinks he said he’d call her (this comment may have been in the recovery room or on the way there). She assumed he meant at home. She didn’t see Dr. Doodnaught again.

656. When the sexual contact was happening, it wasn’t alarming to her. She agreed with her statements in her police interview that she was “ok” with him kissing her, she was kissing him back, and she was not scared. The next day, she realized that it was something that she hadn’t consciously agreed to and it upset her a lot. She called a social worker because she knew she had to speak to someone. She believed it really happened; there was nothing to it that was dreamlike.

iii. The Evidence of Diana Toma including the Statement made to her by the Accused

657. Diana Toma was the scrub nurse for the Fortnum procedure. She has specific recall of most of it because normally those procedures are done in the cysto suite, and as a result of the complaint by Ms. Fortnum, she was interviewed by police shortly after the procedure.

658. Nurse Toma said the procedure was routine; the draping was routine.

659. She recalls Dr. Flax asking Ms. Fortnum to cough. She believes she was asked about three times. They all tried – Dr. Doodnaught was asking her to cough. They had to wake her up. She did cough, every time.

660. She was the scrub nurse, and her duties included holding the retractor (a heavy device) and suction. It required concentration.

661. Nurse Zahra Ramji-Hirji was the circulating nurse; she was mostly at the computer. She was relieved by Parrenas; he was at the computer too.

662. Nurse Toma could hear Dr. Doodnaught speaking to Ms. Fortnum, but not what he was saying. She could only hear when she was in the “upper area” away from the surgical site. When she was in the upper area she could also hear Ms. Fortnum speaking, but not exactly what they were saying. She thinks they were taking about everyday stuff.

663. The procedure was 54 minutes long. She was at the lower end of the bed for the last 5-20 minutes. She would have been in the upper area until about 5 minutes before the patient was be asked to cough.

664. When nurse Toma was near the head of the bed, standing on a stool, she and Dr. Doodnaught had a conversation. They were about a foot away from each other. When she was speaking to him, she was facing him. He was standing beside the IV pole while he spoke to her. This was at the beginning of the operation. She also recalls talking to him later on, when she was moving towards the end of the bed. She was looking at him then as well. It was a very brief exchange. Shortly after that, the patient had to cough.

665. She heard Dr. Doodnaught speaking to the patient during the surgery.

666. Dr. Doodnaught seemed normal; nothing unusual.

667. After the procedure, Dr. Doodnaught told her, “she grabbed my balls.” Nurse Toma had not seen that happen. He seemed a bit shaken. She asked if he was okay and he said yes. He didn’t mention it again that day.

668. A couple of days or weeks later Dr. Doodnaught approached nurse Toma and said, “Remember that patient who grabbed my balls? You won’t believe what happened. She reported me to the police and the police officer would like to talk to you. Do you mind talking to them?” She said of course not, she would talk to the police. Dr. Doodnaught gave her the officer’s name and said he was a very nice man. She didn’t ask for more information and he didn’t give it. At the moment, it wasn’t that shocking. Surgeons are sued quite often.

669. The police had come for a view of the OR on January 22, 2009. This was roughly around the time Dr. Doodnaught spoke to her.

670. She had a phone conversation with the officer on January 29, 2009. It was quite brief. Julie Zen and Renee Blomme were there; she requested there be witnesses to the call. The officer asked her if she noticed anything out of the ordinary during the case. She chose to answer “no” and not to disclose the statement Dr. Doodnaught had made to her that “she grabbed my balls.” The reason she gave for her failure to disclose the statement was because the police officer didn’t ask, and because she doesn’t see the expression “she grabbed my balls” as unusual because when people are drugged they do things. However, she had never heard an anesthesiologist say this type of thing to her before.

iv. Evidence of other medical personnel

671. Bienvenido Parrenas was the circulating nurse first relief and Tosia Campbell was a team attendant during the Fortnum procedure. They had no recollection of the Fortnum case, but Ms. Campbell provided some evidence concerning the comings and goings of medical personnel. In OR 11 the sterile core door is behind the anesthesiologist. As a team attendant she is there at the beginning and end of the procedure and comes in when a call bell is used to summon her. However, periodically she will come into the OR without being called.

672. Zahra Ramji-Hirji was the circulating nurse for the Fortnum case. She has no recollection of the case. She confirmed that in OR11 the computer is on wheels and they can move it around to a degree, to change the angle of it. She testified that during a urethral sling procedure, the degree of awareness and level of conversation varies. The patient will be able to cough and is often heard talking.

v. Disclosure following surgery

673. Rebecca Blencowe is a registered social worker who knew Ms. Fortnum through a family support group she was affiliated with.

674. Ms. Fortnum called her the day after the surgery and told her she had been sexually assaulted by Dr. Doodnaught.

675. Ms. Blencowe confirmed that when Ms. Fortnum described the events, she was lucid, factual, not confused about whether it happened. She was, however, confused about whether she had consented and that others had been in the room. She felt that she may have agreed that she likes sex when asked by Dr. Doodnaught.

676. Ms. Blencowe told Ms. Fortnum that no matter what, there is no way that she could have consented.

677. They discussed reporting it on December 17 as well as at her home. Ms. Fortum was concerned that she wouldn’t be believed and it wasn’t worth the risk.

678. The day after that (December 18), she complained to her family physician, Dr. Rachlis.

679. She called the police early in the new year. Two officers came to her home, then a few days later she went into the station and gave a video statement. Some time later she was advised by the police that they would not be investigating further. Ms. Fortnum was very upset because her fear of not being believed had come true.

680. After that, she contacted the College of Physicians and Surgeons. She wanted her complaint on the record. The person described the process for formal complaints. She doesn’t particularly remember saying that she’d consider her options. She said they advised her it would be on his record if someone else complained.

vi. Discussion

681. The defence position is that the offence was physically impossible because of, among other things, the positioning of the patient, the length of the accused’s penis, and the impediment caused by the armboards, the IV poles, and the monitoring equipment.

682. The defence also points to Ms. Fortnum’s recollection that the colouration of the accused’s penis was lighter than the rest of his body, in contrast to the evidence of the accused’s physician who testified that the accused’s penis was considerably darker than the rest of his body.

683. Moreover, the defence argues that given the allegations of repeated acts of fellatio and evidence of sexual conversation, it is highly unlikely that the offences could be committed without detection. As well, the defence reminds that the position of the sterile core door in OR11 is behind the head of the bed, and its location increases the risk of detection.

684. I do not accept these arguments. The evidence is that the sterile core door behind the head of the table in OR11 is often covered with a privacy pad. Moreover, there was evidence that persons entering OR11 during surgery more often would use the scrub room entrance. The accused’s habit of wearing a hospital gown over his scrubs would shield exposure of his penis.

685. I accept that the anesthetic drugs had an affect on Ms. Fortnum’s memory and perceptions (she was incorrect in her recollection concerning the skin coloration of his penis compared to the rest of his body, but she was correct in her recollection that he is uncircumcised). However, I am satisfied that the drug levels administered to Ms. Fortnum—and indeed, the other complainants—did not cause hallucinations of sexual assault.

686. I am satisfied that Dr. Doodnaught commited the assaults and accompanied them with sexual comments. His statement to nurse Toma after the surgery that “she grabbed my balls” tends to support the reliability of Ms. Fortnum’s account of the events.

687. I am satisfied that her allegation of being sexually assaulted by the accused is reliable.

Count 17: Kimberly Wilson

i. Overview

688. Ms. Kimberly Wilson was 48 years old when she had a left knee replacement performed by Dr. Orsini in OR1 on July 2, 2008.

689. The events leading up to the surgery were routine. She recalls speaking to some doctors in the hallway by the OR, including Dr. Doodnaught. She was apprehensive and told him she wanted general anesthetic. He explained that they didn’t do it that way but that she would be comfortable and highly sedated and wouldn’t feel a thing.

690. She walked into the OR. There were a few people inside. She had an IV put in her left hand. She believes a catheter was inserted when she was standing up, leaning back against the table. She was given an epidural while leaning forward. She does not recall that there were two attempts to give the spinal. She doesn’t recall the application of the BP cuff, pulse oximeter, and ECG leads. She also does not recall seeing any draping, being positioned at the end of the bed, or the sterilization of the surgical site.

691. She lay down on the bed, put her left leg in the brace, and had her arms strapped down and almost straight out, perpendicular to her body.

692. Dr. Dan Cohen was the surgical assistant in the Wilson case. He has no specific recollection of this operation. Given the documentation, he would have done a pre-operative examination on the day of the surgery just outside of the OR. It would have taken him 5-10 minutes to complete. As the second-most senior surgical assist in this operation, he would be placed next to the surgeon. He’d be toward the arm rest, in the patient’s underarm area, with the surgeon closer to the foot of the bed. The armrest would be touching his hip or thigh, and he would be right against the operating table.

ii. The Sexual Assault

693. Ms. Wilson testified that she woke up periodically throughout the surgery. She could hear doctors asking for instruments and feel pressure on her leg. At one point, probably the second time she woke up, she realized Dr. Doodnaught’s body was leaning against her left hand. He was standing behind her left arm. At first, she thought he didn’t realize it, so she tried to move her hand away. He moved it back to its original position, palm facing up. Then she could feel his genitals in her hand. He was moving side to side, pressing against her hand in a grinding motion. Her impression was that it was for more than a minute.

694. She went unconscious again. When she came to, he was rubbing his genitals against her hand and using his hand to move her fingers, massaging his genitals. There was pressure on the side of her hand and his genitals were resting on her palm. She could feel his testicles. She can’t say how long this lasted, but had the impression it was for more than a minute. They did not exchange any words.

695. She went unconscious again. Then she heard Dr. Doodnaught saying “it’s time to wake up.” She saw the ceiling but not the drapes. He was still rubbing against her hand and moving her fingers. She could feel some of what the other doctors were doing – one pressing his elbow against her stomach, pulling the skin together on her leg, the pressure of a staple going in. She heard Dr. Orsini say to another doctor, “Can you finish up here?” and the other doctor saying “yes.” She couldn’t see the other doctors.

696. Some time after she felt the last staple go in, Dr. Doodnaught said quietly that she had been fondling his gonads throughout the surgery. She didn’t know what “gonads” meant and later had to look it up. Later on he leaned down and said she was fondling his privates throughout the surgery. She said “I’m sorry. That really does not sound like me. I don’t understand why that was happening”. The accused just “did a slight laugh and said ‘it is an occupational hazard”[^39].

697. She does not recall whether she ever felt his penis. In her original TIPS report she said she woke up with the doctor’s penis in her hand. She does know whether his testicles were exposed or surrounded by cloth.

iii. After the Surgery—“don’t go fondling any more doctors”

698. Her next recollection is of Dr. Doodnaught taking her to the recovery room and asking her how she felt. She said she felt ill. A nurse came over and told her that Dr. Doodnaught would stay with her because of her low blood pressure. He gave her some medication and stayed with her until she began to feel better.

699. Just before he left he said, “Don’t go fondling any more doctors” and gave a slight laugh. She said she was sorry and that didn’t sound like her.

700. Dr. Doodnaught came back again later that day to check her blood pressure but there was no further conversation about what had happened.

iv. Disclosure to friend and later to police

701. Ms. Wilson testified that she told her friend Debbie Farrell that Dr. Doodnaught had hold her she had been fondling his gonads during the surgery. She can’t recall telling her any more than that. She started to cry and changed the subject. She thinks this happened in the van on the way home from the hospital. She said it quietly because her daughter was in the back seat.

702. Debbie Farrell’s recollection of the disclosure was different from Ms. Wilson’s. She testified that the day after Ms. Wilson’s surgery, as soon as her daughter left the hospital room, Ms. Wilson called her closer and said that in the OR the anesthesiologist had fondled her, had touched her breasts. Ms. Farrell was shocked. She asked whether there was a nurse in the room, how could it happen. Ms. Wilson said there was a nurse there but that the accused seemed to know when she wasn’t looking. They discussed whether she should report it and she said she wanted to think about it. She was in a lot of pain at the time.

703. They never discussed it in more detail after that. They just referred to it as ‘the thing that happened’.

704. Ms. Wilson’s explanation for not making a complaint poignantly captures her state of mind[^40]:

I was too afraid to while I was in the hospital, because I didn't know how the staff would react, because he was a doctor and I was just a patient. And I was wholly dependent on them because of the type of surgery. I – I couldn't even go to the washroom without assistance.

And then, when I got home I was just too ashamed and embarrassed to tell anybody.

705. Ms. Wilson called the tipline on March 22, 2010, about ten days after the arrest and the news reports. She knew of the allegations against the accused but didn’t come forward right away because she wanted to consider it all and didn’t really want to go through the court system.

v. Discussion

706. This was routine knee replacement surgery with standard levels of sedation. The draping provided an adequate shield to permit commission of the alleged assaults. The surgery was in OR1, where the accused could see all the entry doors from his vantage point. Ms. Wilson’s perceptions were no doubt affected by the medications (for example, she thought the catheter was inserted while she was standing up), but not to the extent that she would hallucinate sexual assault or the sexual comments made by the accused in the operating room. Moreover, the accused’s comment in the recovery room “don’t go fondling any more male doctors” was made when Ms. Wilson’s level of awareness was higher than in the operating room. I find that the statements were made and that they provide strong support for the inference that sexual impropriety took place during surgery.

707. Ms. Wilson frankly acknowledged that she initially felt that she was to blame—that she had done something wrong.

708. Ms. Wilson disclosed the assault, but not the details, to her friend shortly after the surgery. She did not report it because she thought she would not be believed, and because she was ashamed and embarrassed. However