The judge of a Manitoba sexual assault case declined to follow the reasoning of a Saskatchewan judge who ruled on a similar case. skpoli
This advertisement has not loaded yet, but your article continues below.Scherman found that the similarities in the evidence of the complainants in the Ukabam case — with the exception that four of five alleged he digitally penetrated their vaginas — were generic to their being patients of the former gastroenterologist.
This was among a list of reasons for his denial of the Crown’s application, which also included stand-alone concerns about the reliability of the complainants’ testimony and the unique circumstances of each complaint. “Individual evidence cannot logically be bootstrapped from unreliable up to reliable because others have made the similar allegations, when the reliability of those other allegations is also in question,” he wrote. “I am unable to conclude that the force of similar circumstances logically defies innocent explanation on the part of Dr. Ukabam.”Article content In the Manitoba case, family doctor Arcel Bissonnette faces five counts of sexual assault. Each of five complainants testified to being sexually assaulted during a medical appointment. In that case too, the Crown asked the judge to allow similar fact evidence. The defence was opposed to this and held up Scherman’s decision, as well as another case, for Bond’s consideration. “Defence counsel urged me to follow the approach taken by the trial judges in those cases, with an emphasis on two aspects. One is in relation to the analysis of similarities between the complainants’ allegations. The other is in relation to the assessment of the likelihood of coincidence. With respect, I decline to follow the approach taken in those cases to these issues,” Bond wrote.Article content She went on to write that while she agrees generic similarities alone may not carry much weight, “coupled with the specific allegations of sexual touching, they become part of the pattern of conduct that the Crown seeks to establish.” On coincidence, she said Scherman and the judge of the other case appeared to do rough mathematical calculations “of the probability of founded versus unfounded allegations of sexual assault made by patients against a busy medical doctor.” Scherman had noted Ukabam did thousands of examinations over 17 years in his assessing whether “similarities exist as to make coincidences or innocent explanation improbable.” Bond wrote that in her view, the guiding case law on the issue of similar fact evidence does not seek a “mathematical” approach, but rather “ the application of logic, common sense, and human experience to the assessment of the improbability of coincidence.”Article contentIn the case before me, one complainant’s allegation of touching of a sexual nature not consented to in the context of a medical examination might be explained as a misunderstanding, misperception, faulty memory, or fabrication on the part of the complainant. However, five allegations of similar conduct in similar circumstances seem as a matter of common sense, logic and human experience unlikely to be coincidental,” she concluded. She clarified that did not mean she had found the pattern of conduct to be proven, but she accepted the Crown’s application for the admission of similar fact evidence.
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