



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doodnaught, 2017 ONCA 781
DATE: 20171013

DOCKET: C58376

Watt, Lauwers and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Doodnaught

Appellant

Brian H. Greenspan and Jill D. Makepeace, for the
    appellant

Elise Nakelsky, for the respondent

Heard: March 6-9, 2017

On appeal from the conviction entered on November 19,
    2013 by Justice J. David McCombs of the Superior Court of Justice, sitting
    without a jury, with reasons reported at 2013 ONSC 8022.

Watt J.A.:

[1]

George Doodnaught was an anesthesiologist. He
    worked at a large general hospital, along with about two dozen other anesthesiologists.
    Each had many patients.

[2]

Some patients complained. About things they said
    happened during surgery. About things that happened over a period of four
    years. About things that, if they happened, amounted to sexual assault.

[3]

The complaints had some common features. Each
    complainant was female. Each had a surgical site below her waist. With the
    exception of one, each had been administered a spinal anesthetic and put under conscious
    sedation. The complainants did not know one another.

[4]

There was one other common feature. The anesthesiologist.
    Every complainant had the same anesthesiologist. And that anesthesiologist was
    George Doodnaught. And no one else.

[5]

George Doodnaughts trial lasted 76 days. He did
    not testify. The trial judge found him guilty of each offence with which he was
    charged: 21 counts of sexual assault.

[6]

George Doodnaught appeals. He says the trial judge
    got it wrong. He seeks a new trial.

[7]

These reasons explain why I have concluded that the
    trial judge got it right and would dismiss the appeal.

The BACKGROUND FACTS

[8]

The grounds of appeal advanced track closely the
    submissions made to and rejected by the trial judge. They are the subject of
    lengthy and detailed reasons which describe the findings of fact essential to
    proof of guilt and the evidentiary stuff of which those findings were made.

[9]

A serial review of the evidence adduced at trial,
    recounting the precise details of each surgery and complaint, and the
    circumstances in which it was disclosed to family members, friends, health care
    professionals and, in the end, to police, would serve no useful purpose. A
    brief overview of the circumstances in which the offences are said to have
    occurred will furnish the background essential to an understanding of the flaws
    advanced as fatal to the conclusion of the trial judge.

The Principals

[10]

George Doodnaught was a senior anesthesiologist who worked at North
    York General Hospital (NYGH) for about a quarter century. He was technically
    skilled and among the most requested of the two dozen anesthesiologists at the
    hospital. According to some medical witnesses, he favoured a touchy-feely
    approach to interaction with his patients, a style that involved closer
    physical contact with patients than other anesthesiologists practised or, in
    some cases, deemed appropriate.

[11]

The complainant patients, all of whom are female, ranged in age from 25
    to 75 at the time of their surgeries.

The Surgeries

[12]

In all but one instance, the surgery in which the offences are alleged
    to have occurred was performed in an operating room at NYGH. The remaining
    count charged an offence said to have been committed during surgery at a
    private clinic.

[13]

The surgeries, all of which were performed under a regional anesthetic
    with conscious sedation administered by George Doodnaught, lasted between one-half
    hour and almost 3 hours.

[14]

In each case, the surgical sites were below the waist of the patient.
    The positioning of the patient on the operating table depended upon such
    variables as the type of surgery, the height and weight of the patient, and the
    surgeons preferred arm level during surgery. The set-up of the operating rooms
    reflected the nature of the surgery, as for example whether it was orthopedic
    or gynecological.

[15]

In every case, the anesthesiologist occupied an area behind draping at
    the head of the operating table where the patients head rested. The draping
    separated the sterile surgical area from the non-sterile area. The anesthesiologist,
    George Doodnaught, worked in the non-sterile area. There, he monitored the
    patients dosage of anesthetics, their vital signs and their level of
    consciousness.

The Operating Rooms

[16]

At NYGH, 12 operating rooms occupy the sides or ends of a sterile
    corridor on a single floor of the hospital. Of the eight operating rooms in
    which the offences alleged here are said to have occurred, two were designated
    as general, with the remainder used for orthopedic, gynecological or urological
    surgery. The layout of each operating room differs. In particular, placement of
    the operating table relative to the doors of the operating room varies.

[17]

The trial judge not only had 3D laser scans converted to video clips of
    each operating room, but took a view of each room, some of which had been configured
    as was typical for the type of surgeries the complainants underwent. He did not
    take a view at the private clinic where one surgery was performed.

Preparing for Surgery

[18]

Nurses bring surgical patients into the operating room and assist them
    onto the operating table. Patients who will receive a spinal anesthetic sit on
    the operating table and lean forward so that the anesthetic can be
    administered. The patient then lies down on the operating table in the position
    selected for her surgery.

[19]

The patients arms are usually placed on padded boards extending from
    the operating table. Sometimes, however, depending on the nature of the surgery
    and the positioning of her body for that surgery, the patients arms may be
    tucked in at the side of her body.

Hanging the Drapes

[20]

After the area or site on the patients body where the surgery is to be
    performed has been prepared, what remains to be done before the actual surgery
    begins is the installation of draping over the patient and operating table. The
    drapes are made of non-transparent material. They function as a barrier separating
    the sterile from the non-sterile area of the operating room.

[21]

Surgical drapes vary in height depending on the preferences of the
    anesthesiologist and the surgeon. For orthopedic surgery, high drapes are
    necessary to guard against the significant risk of infection inherent in hip
    and knee replacement surgery.

[22]

Various witnesses testified at trial that George Doodnaught preferred
    high drapes regardless of the nature of the surgery being performed. He would
    often add a white sheet to the opaque blue draping material to shield the
    surgical site from the patients view.

[23]

As the anesthesiologist in a surgical procedure, George Doodnaught
    would sit or stand on the non-sterile side of the drapes. On the right side of
    the patients head was the machine used to administer and maintain the
    anesthetic. There was also a computer for the anesthesiologists use in the
    non-sterile area. Anesthesiologists were not required to wear surgical masks
    and some, including George Doodnaught, tended not to wear a mask during
    surgery.

[24]

On the sterile side of the draping, the surgeon, the assistant surgeons
    and the nurses stand around the surgical site as the operation unfolds. The
    surgical site is kept to the minimum area required to complete the surgery, especially
    orthopedic surgery, to minimize the risk of infection.

[25]

During surgery, surgeons and those who assist concentrate on the
    surgery itself. The position of the drapes ensures that the surgeon cannot see
    the patients face during surgery. Nor can the surgeon see the anesthesiologist
    during surgery if the anesthesiologist is seated. Even if the anesthesiologist
    is standing, the surgeon may not be able to see the anesthesiologist during
    surgery, depending on the respective heights of the drapes and the anesthesiologist.

Traffic in the Operating Room

[26]

Apart from nurses changing shifts, the surgical team remains static
    during surgery. To the extent that anyone, such as a vendor representative
[1]
or
    nurse, enters or leaves the operating room during surgery, they do so by the
    scrub room or sterile core doors and not by the main doors, which remain closed
    during surgery. This is done to maintain sterility over the surgical field. The
    windows in the doors to the operating rooms are usually, but not always,
    covered to ensure the patients privacy.

[27]

Some movement does take place within the sterile field of the operating
    room while surgery is being conducted, but the surgeon, any assistants and the
    attending nurses (apart from shift changes) remain at the surgical site within
    the sterile area throughout the surgery.

[28]

In the non-sterile area, there is no restriction on access or movement.
    However, during surgery the anesthesiologist remains at that location and there
    is little reason for others to attend there.

The Recovery Area

[29]

Once the surgery has been completed, the patient is taken from the
    operating room to the Post-Anesthetic Care Unit (PACU). The anesthesiologist
    and an assistant surgeon or nurse transport the patient to PACU and provide
    relevant information to the PACU nurse who receives the patient.

[30]

Patients under conscious sedation are usually conscious when they
    arrive at PACU. They are awake, converse appropriately, but fall asleep from
    time to time. When the patient is awake, stable and without pain or
    complications, she is transferred from PACU to the Day Surgery Unit for later
    release, or to a hospital room if they are admitted patients.

The Uncontested Issues

[31]

At trial, several issues were uncontroversial. It was common ground
    that:

i.

George Doodnaught was the anesthesiologist during
    the surgeries on all the complainants;

ii.

each complainant honestly believed that she was
    sexually assaulted by George Doodnaught during or shortly after her surgery;

iii.

none of the evidence of any complainant was tainted
    by either deliberate or unintentional collusion; and

iv.

the evidence relating to each count is admissible
    as evidence of similar acts on all other counts.

The Positions of the Parties at Trial

[32]

To better understand the arguments advanced on appeal, it is helpful to
    recall them as first put forward in response to the position the Crown advanced
    at trial.

The Position of the Crown

[33]

At trial, the Crown contended that the testimony of the complainants
    was clear, truthful and reliable, and confirmed by their nearly contemporaneous
    reports to friends and family members. The evidence of similar acts
    demonstrated the improbability, indeed implausibility, of coincidence. The
    expert evidence refuted any suggestion that the dosages of anesthetics
    administered by the accused caused any sexual hallucinations.

[34]

The trial Crown also relied upon evidence of lewd, sexualized comments
    that the complainants reported the accused made during surgery, in recovery
    and, in some cases, during post-operative visits he made to their hospital room
    to inquire about their recollections during surgery. In addition, the Crown
    pointed to the accuseds exclusive opportunity to commit the offences charged,
    coupled with the features of the operating room and its fittings and the
    accuseds familiarity with the routines and processes of the operating room
    that permitted him to remain undetected.

The Position of the Defence

[35]

The defence contended that it was unfeasible for the accused to commit
    the offences alleged in a busy operating room due to the presence, a few feet
    away, of the surgical team, as well as the amount and unpredictability of
    traffic within the operating room itself. In some cases, the defence argued,
    commission of the offence as alleged was impossible because of a constellation
    of factors including the accuseds and complainants sizes and the height of
    the operating table.

[36]

The defence also relied on expert evidence about intraoperative
    awareness and anesthetic-induced hallucinations of sexual interaction, some
    from commonplace events occurring during surgery, as well as of a bite-down
    reflex that rendered implausible some complaints of forced fellatio.

[37]

In addition, the defence challenged the cogency of the evidence of
    similar acts to complete proof of the individual counts. It was the defence
    position that, to the extent that the evidence on any count demonstrated that
    it was impossible for the offence to have been committed as alleged, this
    diminished the probative force of the remaining similar acts and raised a
    reasonable doubt that the conduct alleged was the product of drug-induced
    hallucination, not human activity by the accused.

The Reasons of the Trial Judge

[38]

At the conclusion of argument, the trial judge reserved his decision.
    About two and one-half months later, he provided over 80 pages of single-spaced
    reasons.

[39]

The trial judge began by setting to one side issues about which there
    was no controversy:

i.

George Doodnaught was the anesthesiologist for
    every complainant;

ii.

no complainants evidence was tainted by deliberate
    or unintentional collusion;

iii.

each complainant honestly believed she was sexually
    assaulted by George Doodnaught during or shortly after her surgery; and

iv.

the evidence of each complainant could be applied
    to the other counts of the indictment.

[40]

After pointing out the defence position that the offences alleged did
    not occur, the trial judge turned to what he regarded as three core issues:

i.

opportunity to commit the offences;

ii.

the effect of the anesthetics on the reliability of
    the complainants perceptions and memories; and

iii.

the weight and impact of the evidence of similar
    acts.

[41]

The trial judge first discussed the issue of opportunity in general
    terms, returning later to it in connection with each count. Among the factors
    the trial judge considered in reaching his conclusion about George Doodnaughts
    opportunity to commit the offences were:

i.

the layout of the operating rooms in which the
    surgeries were performed;

ii.

the presence, locations and functions of the
    various personnel in the operating rooms;

iii.

the positioning of the complainants on the
    operating tables, including the height of the tables and the height and width
    of the draping separating the sterile from the non-sterile field;

iv.

door access to and from the operating rooms;

v.

traffic in the operating rooms during surgery;

vi.

the physical characteristics of the accused;

vii.

the clothing worn by the accused during surgery;
    and

viii.

George Doodnaughts reputation for being
    touchy-feely with his patients, especially with his female patients.

[42]

The trial judge rejected the defence submission that in some cases it
    was physically impossible for the accused to commit the acts alleged. George
    Doodnaught was familiar with the surgical procedures and the operating room
    protocols. As an anesthesiologist he worked in the non-sterile area of the
    operating room, shielded from view by draping and medical equipment. He
    occupied a vantage point which, in all but one case, allowed him to monitor
    traffic in the operating room and to see anyone who approached him. During
    surgery, his colleagues were focused on their work. The patients were sedated
    and unable to call for help or offer physical resistance. The trial judge
    concluded that the accused had the opportunity to commit the relatively brief
    sexual assaults without being detected.

[43]

Turning his attention to the effects of the anesthetics on awareness
    and memory, the trial judge identified the subject-matter of dispute; set out
    the positions of the parties; reviewed the salient features of the evidence of
    the experts called on both sides of the issue; and articulated his findings on
    the credibility of the witnesses and the reliability of their evidence.

[44]

The trial judge noted that the complainants levels of awareness varied
    during different periods of their surgeries from asleep but arousable to
    awake and responsive. The trial judge reached his conclusions on the effects
    of the anesthetics on the complainants awareness and memory in these words:

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

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

[45]

After an overview of the chain of events that led up to George
    Doodnaughts arrest, including the inaction of senior hospital staff in
    response to three prior formal complaints, the trial judge examined each count,
    recording his conclusion on the complainants reliability without any reference
    to the evidence of similar acts. Except for three complainants whose evidence
    he found believable, the trial judge was satisfied the evidence of each
    complainant was reliable.

[46]

The trial judge summarized his findings on each count in this way:

The complainants were sedated at the time of
    their surgeries and the sedation no doubt [affected] their ability to
    accurately perceive and remember events.  However, I have found that they
    were conscious and aware during significant parts of their surgeries and were
    able to recall these shocking and abhorrent events.

...

I have concluded that the evidence, viewed
    independently on each count without regard to the other counts, establishes
    that eighteen of the assaults have been proved on the balance of
    probabilities.  I have found the remaining three allegations to be
    believable and I do not reject them.

[47]

To determine whether the Crown had proven George Doodnaughts guilt in
    respect of each individual count contained in the indictment, the trial judge considered
    the effect of the evidence on the other counts in accordance with the
    principles relating to evidence of similar acts. He concluded:

There was no collusion. The complainants did not
    know each other.  The drugs administered to them were within established
    norms administered to thousands of consciously sedated patients around the
    world on a daily basis.

The accused was one of roughly 25
    anesthesiologists working at NYGH dealing with patients under conscious
    sedation using similar drugs in similar dosages.  Yet all of the
    complaints of sexual assault are directed only at him.

In my view, it is not merely improbable, but
    virtually impossible, that these collusion-free allegations against a single
    individual could be attributed to coincidence.

The multitude of credible allegations against the
    same individual in similar circumstances constitutes powerful circumstantial
    evidence of guilt.  The possibility of them being attributed to
    coincidence is non-existent.

Viewed separately, the allegations by each
    complainant may not amount to proof beyond a reasonable doubt.  Viewed
    together,

however, there is no rational
    conclusion to be reached other than that guilt has been proved beyond a
    reasonable doubt on all counts.

THE GROUNDS OF APPEAL

[48]

In this court, George Doodnaught recasts the defence he advanced at
    trial. There, he contended that the evidence adduced fell short of establishing
    beyond a reasonable doubt that the offences alleged actually occurred. He
    relied on evidence that cast doubt on his opportunity to commit the offences.
    He pointed to expert evidence about the hallucinogenic properties of the
    anesthetics. He acknowledged the admissibility, but contested the cogency of
    the evidence of similar acts as completing the proof on individual counts.

[49]

In this court, as the appellant, George Doodnaught contends that the
    trial judge erred in rejecting the defence position he advanced at trial;
    failed to adequately explain why he did so; and attributed undue persuasive
    force to the evidence of similar acts.

[50]

Here, the appellants quarrel is not rooted in any legal principle so
    far as I can determine, but rather in the factual findings the trial judge
    made. Those factual findings put paid to the defence position that the conduct
    each complainant honestly believed took place (and which amounted to sexual
    assault) simply never happened. Left intact and provided the reasons given are
    adequate to the task set for them, this appeal cannot succeed.

[51]

In line with the findings the appellant alleges to be flawed, I would
    paraphrase the appellants complaints as falling under three headings:

i.

the opportunity issue;

ii.

the effect of the anesthetics issue; and

iii.

the similar act evidence issue.

Ground #1: The Opportunity Issue

[52]

In addition to the direct evidence provided by each complainant about
    intra-surgery conduct by the appellant which, if established, would constitute
    a sexual assault, the trial Crown relied upon the appellants opportunity, near
    exclusive opportunity, to do what each complainant alleged, to argue that the
    appellants guilt had been established. The nature of the conduct and, more specifically,
    the parts of the bodies involved, pointed to perpetration by somebody at the
    non-sterile end of the operating table, a person not involved at the surgical
    site. The only person who fulfilled these requirements was the appellant.

[53]

The defence acknowledged the appellants role as the sole
    anesthesiologist in each surgery during which the sexual assaults are said to
    have occurred. This acknowledgement carried with it acceptance of the
    appellants opportunity to commit the offences because of his physical
    proximity to the parts of the body of each patient involved in the alleged
    conduct.

[54]

For its part, the defence pointed to several features of the physical
    set up of the operating room; the frequency and unpredictability of traffic
    during surgery; the positioning of the patient on the operating table; the
    clutter in the non-sterile area; and the physical characteristics and clothing
    of the appellant as rendering unlikely, in some cases impossible, the
    commission of the offences as alleged by the complainants.

The Reasons of the Trial Judge

[55]

Before reaching his conclusion on the issue of opportunity, the trial
    judge considered several factors advanced as diminishing the probative force of
    the evidence of opportunity. The layout of the operating rooms, including
    visibility from the anesthesiologists position at the head of the operating
    table. The presence, location and functions of those present in the operating
    room during surgery. The positioning of the patient on the operating table. The
    height of the operating table during surgery. The height and width of the
    drapes separating the sterile and the non-sterile areas. The clothing worn by
    the appellant during surgery. The positioning of equipment in the area occupied
    by the anesthesiologist. The physical dimensions and characteristics of the
    appellant.

[56]

On the issue of opportunity, the trial judge concluded:

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

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

Random visits sometimes happened, but they were
    infrequent.

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

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

I conclude that the accused had the opportunity
    to commit the sexual assaults he is accused of. [Footnotes omitted.]

The Arguments on Appeal

[57]

The appellant says the trial judge failed to consider or to give
    adequate weight or effect to several aspects or features of the evidence
    adduced at trial. This evidence, he claims, neutralized the evidence about the
    appellants opportunity to commit the offences alleged, thus rendered such
    opportunity unavailing as confirmatory of the accounts of the complainants.

[58]

According to the appellant, among the several items or features of the
    evidence that were not considered or accorded their proper due in this
    connection were evidence of:


i.

regular, unscheduled random traffic in and around
    the operating room;


ii.

the inability of the appellant to monitor casual
    traffic, evidenced by reports of nursing staff of having caught him off guard
    during surgery;


iii.

the ability of others to see the appellant despite
    the presence of surgical drapes;


iv.

the obstructive capacity of various pieces of
    equipment in the non-sterile area; and


v.

the type of clothing worn by the appellant during
    surgery.

[59]

These deficiencies, the appellant contends, reflect not only misapprehensions
    of the evidence adduced at trial, but also a failure to provide adequate
    reasons for the purpose of meaningful appellate review. In combination, the
    result constitutes a miscarriage of justice which requires a new trial to put
    right.

[60]

The respondent advances an overarching submission in connection with
    each of the appellants complaints. Whether considered individually or
    cumulatively, the respondent says, the appellants submissions amount to a
    thinly disguised attempt to retry the case, to substitute findings of fact on
    appeal that were available but rejected at trial. And not made at trial because
    of a reasoned and balanced consideration of the whole of the evidence, not
    cumbered by any misapprehension of evidence, palpable and overriding error of
    fact or erroneous consideration or application of legal principle.

[61]

The respondent says that the complaint of inadequate reasons falls on
    barren ground. The reasons are responsive to the issues raised at trial. They
    are sufficient in substance to permit meaningful appellate review. They explain
what
the trial judge

decided and
why
he reached his
    conclusion that the appellants guilt had been established beyond a reasonable
    doubt.

[62]

The respondent points out that the appellants claim that frequent and
    unpredictable traffic in the operating room rendered it unlikely that the
    appellant would take the chance to commit the offence for fear of detection was
    rebutted by a significant body of evidence from nurses and doctors, including
    the Chief of Surgery. This evidence indicated that, during surgery, traffic in
    the operating room was limited. The surgical team remained throughout, bent to
    the task at hand. Random visits were rare and potentially disruptive of
    surgery.

[63]

In a similar way, the respondent contends, the trial judges findings
    that the appellant was in a position to monitor traffic in the operating rooms
    are well grounded in the evidence. Although some nurses testified that they had
    caught the appellant off guard during previous surgeries, it was unclear
    whether those observations were related to any offence with which the appellant
    was charged. What is more, this appears to have happened only four times over a
    four-year period, thus cannot fairly be said to diminish the force of the
    preponderance of the evidence that the appellant was able to monitor traffic in
    the operating rooms.

[64]

Neither did the positioning of the surgical equipment, nor the fact
    that a nurse was able to see the close proximity of the appellants head to
    that of a patient, diminish the availability of the drapes as a protective
    barrier to shield against detection. The only way a nurse was able to see the
    relative positions of the heads of the appellant and patient was to move around
    from her usual position in the operating room.

The Governing Principles

[65]

The determination of this ground of appeal turns on the application of
    well-settled principles to the evidence adduced and the findings made by the
    trial judge. It is helpful to begin with a reminder about the role of evidence
    of opportunity in proof of guilt, thereafter, with a canvass of the principles
    that control allegations of misapprehension of evidence, unreasonable findings
    of fact and the adequacy of reasons.

Evidence of Opportunity

[66]

Where conduct occurs and the Crown alleges that a particular person did
    it personally, not through an agent or some other instrumentality, it seems
    obvious that the persons physical presence, within the proper range of time
    and place, forms one step on the way to proof that the person is responsible
    for the conduct. In this respect, we should bear in mind that where and when
    some offences are committed can be established with greater precision than
    others.

[67]

It necessarily follows that evidence which shows or tends to show that
    an accused was present at or near a place at or near the time an offence was
    committed is relevant, material and
prima facie
admissible. Said in
    another way, evidence of opportunity alone, and not exclusive opportunity, is a
    sufficient showing of relevance and materiality to render it
prima facie
admissible.
    Evidence of opportunity typifies the concomitant use of circumstantial
    evidence: Peter Tillers, ed.,
Wigmore on Evidence
, vol. 1A (Toronto:
    Little, Brown and Company, 1983), at §131, p. 1704
.

[68]

The circumstances involving opportunity will vary according to the
    facts of individual cases. It is self-evident that evidence of opportunity
    alone is not sufficient to establish the guilt of an accused beyond reasonable
    doubt:
R. v. Ferianz
,

[1962] O.W.N. 40 (C.A.)
,
at p.
    42. And it is always open to a party, such as an accused, to adduce evidence
    explaining away opportunity. Such as by evidence of lack of physical capacity,
    or by evidence that tends to show the equivalent (or better) opportunity of
    others:
Wigmore
,

at § 132, p.

1706. See also,
R.
    v. Minhas
(1986), 29 C.C.C. (3d) 193 (Ont. C.A.), at p. 219.

[69]

Evidence of opportunity, insufficient on its own to establish guilt
    beyond reasonable doubt, may also have a different complexion placed upon on it
    by other evidence, as for example, evidence of skill, expertise, physical
    capacity, or possession of tools by which an offence was committed:
R. v.
    Davison
(1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 436-437;
R. v.
    Syms
(1979), 47 C.C.C. (2d) 114 (Ont. C.A.), at p. 116.

See also,
Wigmore
,

at §§ 83-88, pp. 1599-1604. In a similar way, the
    principle of explaining away opportunity may permit the introduction of
    evidence of lack of skill, expertise, physical capacity or tools:
Wigmore
,

at § 132, p. 1706.


[70]

Evidence of mere opportunity to commit an offence is one thing,
    evidence of
exclusive
opportunity to commit an offence quite another.
    Indeed, evidence of exclusive opportunity, on its own, may be sufficient to
    prove the guilt of an accused beyond a reasonable doubt: See,
R. v. Imrich
,
    [1978] 1 S.C.R. 622, affirming (1974), 21 C.C.C. (2d) 99 (Ont. C.A.).

Misapprehension of Evidence

[71]

A misapprehension of evidence may involve a failure to consider
    relevant evidence; a mistake about the substance of evidence; a failure to give
    proper effect to evidence or some combination of these failings:
R. v.
    Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. To succeed
    before an appellate court on a claim of misapprehension of evidence, an
    appellant must demonstrate not only a misapprehension of the evidence, but also
    a link or nexus between the misapprehension and the adverse result reached at
    trial.

[72]

To determine whether an appellant has demonstrated that a
    misapprehension of evidence has rendered a trial unfair and resulted in a miscarriage
    of justice, an appellate court must examine the nature and extent of the
    misapprehension and its significance to the verdict rendered by the trial judge
    in light of the fundamental requirement of our law that a verdict must be based
    exclusively on the evidence adduced at trial. The misapprehension of evidence
    must be at once material and occupy an essential place in the reasoning process
    leading to the finding of guilt:
Morrissey
,

at p. 221.


[73]

The standard set for misapprehension of evidence to warrant appellate reversal
    is stringent. An error in the assessment of the evidence will amount to a
    miscarriage of justice only if striking it from the judgment would leave the
    trial judges reasoning on which the conviction is based on unsteady ground:
R.
    v. Sinclair
,

2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

[74]

Where an appellant alleges a misapprehension of evidence, an appellate court
    should first consider the unreasonableness of the verdict rendered at trial. A
    verdict may be unreasonable because it is one that could not have been reached
    by a properly instructed trier of fact acting reasonably, or because it can be
    seen from the reasons of the trial judge that the verdict was reached
    illogically or irrationally, in other words, due to fundamental flaws in the
    reasoning process:
Sinclair
,

at paras. 4, 44.

[75]

Where an appellant succeeds in establishing that a verdict is
    unreasonable, an appellate court will enter an acquittal. On the other hand,
    where the appellate court is satisfied that the verdict is not unreasonable,
    the court must determine whether the misapprehension of evidence occasioned a
    miscarriage of justice. An appellant who shows that the error resulted in a
    miscarriage of justice is entitled to a new trial:
Morrissey
,

at
    p. 219.

Inadequate Reasons

[76]

A trial judges reasons rendered at the end of a criminal trial must be
    sufficient to fulfil their functions of:

i.

explaining why an accused was convicted or
    acquitted;

ii.

providing public accountability; and

iii.

permitting meaningful appellate review.

See,
R. v. R.E.M.
,

2008
    SCC 51, [2008] 3 S.C.R. 3, at para. 15.

[77]

Our approach to an assessment of the sufficiency of reasons is both
    functional and substantive. We are to read them as a whole, in the context of
    the evidence, the arguments and the trial, with the appreciation of the
    purposes or functions for which they are delivered:
R.E.M.
,

at
    para. 35. We do not view them on a stand-alone, self-contained basis or analyze
    them as if they were instructions to a jury. To the extent the why for the
    verdict is discernible in this way, the reasons are sufficient:
R.E.M.
,
    at paras. 17-18, 37.

[78]

The purposes of reasons are fulfilled where the reasons, read in
    context, show
why
the judge decided as he or she did. The object of
    reasons is not to show
how
the judge arrived at his stated conclusion
    in a watch me think fashion. Rather, reasons show
why
the judge
    decided as he or she did
: R.E.M.
,

at paras. 17-18.

[79]

A trial judge is not bound to expound upon the uncontroversial or elucidate
    what is understood and accepted by the parties, whether the subject-matter be
    legal principle or evidence. Nor is the trial judge required to detail his or
    her finding on each piece of evidence or controverted fact, provided an appellate
    court can logically discern the findings linking the evidence to the verdict:
R.E.M.
,

at paras. 19-20.


[80]

Where credibility is a determinative issue, a judges findings are
    subject to deference and appellate intervention should be rare. Although the
    reasons must explain
why
the evidence failed to raise a reasonable
    doubt, the reasons need not be so detailed that they permit an appellate court
    to retry the case on appeal. The reasons need not establish that the trial
    judge was alive to and considered every crumb of evidence, or answered each and
    every argument advanced by counsel:
R.E.M.
,

at para. 32;
R.
    v. Dinardo
,

2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 26, 30.

[81]

In our review of reasons for sufficiency, we begin from a stance of
    deference toward the trial judges findings of fact. Absent palpable and overriding
    errors by a trial judge in his perception of the facts, his or her findings are
    to be respected. We must ask whether the reasons, considered with the
    evidentiary record, the submissions of counsel and the live issues at trial,
    reveal the basis for the verdict rendered. We look at the reasons in their
    entire context to see whether the trial judge appears to have seized the
    substance of the matter:
R.E.M.
,

at para. 55.

The Principles Applied

[82]

For several reasons, I would not give effect to this ground of appeal.

[83]

In this case, the Crown alleged that the appellant committed the
    offences charged as a principal. As a result, the Crown was required to prove,
    if it could, that the appellant was present at the time and in the place where
    the offences were committed. The primary evidence upon which the Crown relied
    was the direct testimony of each complainant who described what had happened to
    her during surgery.

[84]

As in any case in which an accuseds personal presence when and where a
    crime has been committed is required to establish guilt, the Crown relied on evidence
    of the appellants opportunity to commit the offences to assist in the proof of
    guilt. Evidence of the opportunity of an accused to commit an offence is an
    item of circumstantial evidence that enhances the likelihood that the person
    with that opportunity  the accused  committed the offence. While evidence of
    bare opportunity to commit an offence is not, without more, sufficient to
    establish guilt, to the extent that the evidence shows or tends to show
    exclusive opportunity, different considerations apply.

[85]

In this case, the appellant does not, indeed cannot deny his
    opportunity to commit the offences charged. After all, the parts of the body of
    each complainant touched or affected were all at or in close proximity to the
    head of the patient and of the operating table on which she rested. The only
    place from which access could be gained to these areas of the patient was from
    the head of the operating table, in the non-sterile area behind the surgical
    drapes. And the only person who occupied that area in each surgery was the
    anesthesiologist. And that anesthesiologist was the appellant. In all 21 cases.

[86]

As he was entitled to do, the appellant sought to explain away the
    evidence of opportunity, perhaps more accurately, exclusive opportunity. He
    sought to do so by pointing to evidence that tended to show, in some cases, the
    physical impossibility of him taking advantage of the opportunity and, in
    others, the unlikelihood of his doing so because of the likelihood of
    detection.

[87]

In this court, the appellant claims that the trial judge mishandled and
    failed to adequately explain his assessment of five items of evidence. Of those
    items of evidence, three relate to the likelihood of detection, thus cannot be
    said to diminish the near exclusive opportunity of the appellant to commit the
    offence. The other two tend to rebut opportunity, but were rejected by the
    trial judge.

[88]

The insuperable impediment the appellant faces in advancing this
    argument is that the trial judge made and adequately explained findings of fact
    that are rooted in the evidence adduced at trial, free of any misapprehension
    and palpable and overriding error and thus beyond the scope of appellate
    intervention.

[89]

The trial judge rejected the appellants argument that frequent,
    unscheduled and unpredictable traffic in the operating room told against the
    likelihood that the appellant would commit the offences alleged. The trial
    judge found that such traffic was in fact infrequent and was, for the most
    part, easily observable by the appellant from his vantage point behind the
    surgical drapes at the head of the operating table.

[90]

The trial judge also found as a fact that the surgical drapes and
    medical equipment provided a shield for the appellant and did not render it
    impossible for him to have done the things alleged by each complainant. The
    trial judge also found that the surgical staff were focused on their surgery,
    at the surgical site, and not on the appellant or his activities on the
    non-sterile side of the drapes.

[91]

These findings of fact were open to the trial judge. They are firmly
    tethered to the evidence given at trial and not cumbered by either
    misapprehension or palpable and overriding error. They are entitled to
    deference in this court.

[92]

Worthy of reminder in connection with this ground of appeal is the
    added advantage of the trial judge in taking a view of all but one of the
    operating rooms in which the relevant surgeries occurred, to assist his
    understanding of the evidence adduced and arguments advanced at trial.
    Doubtless this aided his appreciation of the evidence. Our lack of an equivalent
    opportunity underscores the wisdom of appellate deference to the findings of
    fact made by the trial judge.

[93]

Nor should we lose sight of the role of evidence of opportunity, or of
    exclusive opportunity, in proof of guilt. Neither is an essential element in
    the offences charged. Neither need be proven beyond a reasonable doubt.
    Evidence of opportunity and of exclusive opportunity are pieces of
    circumstantial evidence available for consideration by the trier of fact,
    together with the rest of the evidence, in its assessment of the adequacy of
    the Crowns proof. It is for the trial judge to determine the weight to be
    assigned and the inferences to be drawn from this evidence and the evidence as
    a whole.

[94]

To the extent the appellants complaint about the trial judges
    treatment of the evidence of opportunity rests on a claim of inadequate
    reasons, it fails. The trial judge understood the issue, considered the
    evidence relevant to its determination, made findings of fact available to him
    on the evidence adduced at trial and explained why he did so. He seized the
    substance of the matter. He was required to have done nothing more.

Ground #2: The Effects of the Anesthetics Issue

[95]

The second ground of appeal targets the trial judges understanding,
    treatment and findings in connection with the expert evidence about the effects
    of the anesthetics administered to the complainants. That evidence was
    concerned with the likelihood that patients under the influence of these anesthetics
    would hallucinate about sexual experiences and bite down on any object inserted
    in their mouths when under anesthesia.

The Reasons of the Trial Judge

[96]

The trial judge devoted several pages of his reasons to the evidence
    about the effects of anesthetics on awareness and memory.

[97]

At the outset of his reasons on this issue, the trial judge described
    several subjects about which there was no serious dispute:

i.

patients under conscious sedation have varying
    levels of consciousness during surgery, including aware but docile and
    tranquil and asleep but arousable;

ii.

creating amnesia is not the principal aim of
    sedation, but is a desirable side effect;

iii.

complete amnesia is uncommon for patients under
    conscious sedation;

iv.

the drugs and dosages administered by the appellant
    are commonly used in developed nations around the world and are well within
    established norms; and

v.

no witness had ever heard of a case of multiple
    allegations of sexual assault on patients administered the level of drugs
    administered here.

[98]

The trial judge then turned to the areas in dispute between the
    parties.

[99]

The trial judge examined the expert evidence in connection with the
    defence argument that it undermined the complainants claims of sexual assault.
    He noted the claim that the complainants fragmented and sometimes inaccurate
    perceptions demonstrated that each was testimonially unreliable. The trial
    judge also referred to the defence submission that the anesthetics caused the
    complainants to misconstrue the appellants caring and attentive approach toward
    his patients as sexually assaultive behaviour. The trial judge considered the
    defence claim that the combination of drugs may have had a synergizing effect,
    the full extent of which is not known, that could have caused or contributed to
    the complainants perceptions of sexual assault. He also discussed evidence
    that the bite-down reflex, which the defence argued was common knowledge among
    anesthesiologists, rendered it highly unlikely that the appellant would have
    inserted his penis in a patients mouth as several complainants testified.

[100]

The trial judge reviewed the competing expert evidence and recorded his
    findings in respect of each witness.

[101]

Dr. Susan Belo, Chief of Anesthesiology at Sunnybrook Health Sciences
    Centre, a practising anesthesiologist with 25 years of experience who has
    administered anesthetics to about 17,000 patients, testified for the Crown. She
    gave evidence that the drugs and dosages administered by the appellant would
    have left the complainants conscious for parts of the surgery with the ability
    to recall events that occurred during the surgery. Although her expertise did
    not extend to the global medical literature about sexual ideation during
    anesthesia, she had never heard of a patient, or multiple patients, making allegations
    of sexual interference by an anesthesiologist. She would not expect the dosages
    of drugs administered in this case to have caused sexual hallucinations.

[102]

The trial judge summarized his conclusions about Dr. Belos evidence
    in this way:

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

[103]

Dr. George Mashour, an anesthesiologist and neuroscientist who teaches these
    specialties at the University of Michigan Medical School, testified for the
    Crown. He has conducted extensive research into the incidence of intraoperative
    awareness of patients during surgery under general anesthesia as well as under conscious
    sedation.

[104]

Dr. Mashour testified that in one study of almost 23,000 patients under
    conscious sedation, only seven reported undesired intraoperative awareness. None
    reported anything of a sexual nature. The reports here represented a
    seventeen-fold higher incidence than in Dr. Mashours study. If the drugs were
    the cause, Dr. Mashour would not expect all the incidents to relate to a single
    anesthesiologist. As for the chances that the drugs were the reason for the 21
    allegations of sexual assault against a single anesthesiologist, Dr. Mashour
    described them as vanishingly rare. He also agreed that the bite-down
    phenomenon can occur when a patient under conscious sedation is waking up and an
    oral airway or suctioning device is inserted in the patients mouth.

[105]

In connection with the evidence of Dr. Mashour, the trial judge
    concluded:

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

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

[106]

Dr. Joel Jeffries, an experienced and respected psychiatrist and an
    expert in the effects of psychotropic drugs on perception and memory, testified
    for the defence. Dr. Jeffries is neither an anesthesiologist nor an expert on
    the impact of the anesthetics administered in this case. He testified that the
    synergistic effects of the drugs administered here
could
result in
    sexual hallucinations. But Dr. Jeffries admitted that he paid little attention
    to the actual dosages administered to the complainants in this case, despite acknowledging
    that dosages are important in assessing synergistic effects. The trial judge found
    that Dr. Jeffries lacked the objectivity expected of an expert witness in part
    because he ignored evidence that did not support his opinion. The trial judge
    concluded that he could not give any weight to Dr. Jeffries evidence.

[107]

Dr. Alan Aitkenhead, an Emeritus Professor of Anaesthesia at the
    University of Nottingham, published author and past examiner for the Royal
    College of Anaesthetists, testified for the defence. He asserted that sexual
    hallucinations are not rare with the anesthetics administered here. But the
    publications summoned by Dr. Aitkenhead to support his conclusion involved
    dosages significantly higher than those administered in this case. Even with
    higher dosages, the incidence of hallucinations of sexual assault was very low.
    Dr. Aitkenhead acknowledged that he was unaware of any cases where anything
    like the number of allegations in this case have been made, much less
    allegations directed at a single individual with dosages well within
    commonly-used ranges for patients undergoing conscious sedation.

[108]

Dr. Aitkenhead also expressed the view that patients in a state of
    diminished consciousness can misperceive standard medical practices as sexual
    improprieties. He suggested that the insertion of a plastic airway into a
    patients mouth, the placement of a blood pressure cuff on a patients arm, and
    the adjustment of ECG leads or movement of instruments resting on a patients
    chest could be misconstrued as oral sex, masturbation, and breast fondling.
    However, the trial judge noted that no artificial airways were used in any of
    the complainants surgeries, and no ECG leads were adjusted. The trial judge
    was also satisfied that Dr. Aitkenheads example of the blood pressure cuff was
    inconsistent with the evidence and unreasonable.

[109]

Dr. Aitkenhead also based his conclusion that the allegations here are
    the product of anesthetic-induced sexual hallucinations on the impossibility of
    committing the offences without detection. His opinion on this issue was less
    than fully informed because he had not familiarized himself with the layout of
    the operating rooms, including the draping, and the presence and function of
    medical personnel in each.

[110]

The trial judge found that Dr. Aitkenhead advanced opinions that did
    not accord with the findings in the publications he sought to rely on. He
    ignored or dismissed reports that did not support his position and failed to
    identify an evidentiary basis for his opinions. The trial judge concluded that
    he was unable to rely on the opinion evidence of Dr. Aitkenhead.

[111]

Dr. Orlando Hung, an anesthesiologist with a degree in pharmacy, a
    published author and professor in the Departments of Anesthesia, Surgery and
    Pharmacology at Dalhousie University, testified for the defence about the
    bite-down reflex and the effects of the anesthetics administered here on the
    memories of the complainants.

[112]

Dr. Hung gave evidence that patients under conscious sedation can bite
    down with extreme force when something is inserted in their mouths. This phenomenon,
    he testified, was common knowledge among anesthesiologists. The trial judge
    explained his rejection of Dr. Hungs evidence on this issue in these terms:

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

[113]

Dr. Hung testified that sexual fantasy was possible with the level of
    drugs administered to the complainants in this case. However, he acknowledged
    that allegations of this type, in these numbers, with these drugs, all directed
    at the same individual, were virtually unheard of. Although the trial judge found
    Dr. Hung to be knowledgeable, objective and fair, Dr. Hungs evidence did not
    cause the trial judge to doubt that consciously sedated patients can reliably
    recall emotionally traumatic events.

[114]

The trial judge went on to state his findings about the effects of the
    anesthetics on awareness and memory:

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

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

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

The Arguments on Appeal

[115]

The appellant says that fundamental to the defence position was the
    bite-down phenomenon or reflex, something well-known to anesthesiologists and
    a powerful deterrent to inserting a body part, such as a tongue or penis, into
    the mouth of a consciously sedated patient. Dr. Hung, the only airway expert
    who testified at trial, said that this phenomenon or reflex may occur in consciously
    sedated patients, although it is less frequent than in patients who are under
    general anesthesia with artificial airways inserted in their mouths. The appellant
    says that the trial judges rejection of this evidence, in the absence of evidence
    to the contrary, was at once unreasonable and indicative of conclusion-driven
    reasoning.

[116]

The appellant contends that the trial judge also erred in rejecting the
    testimony of Dr. Aitkenhead that consciously sedated patients would have the
    ability to move or cry out if they were indeed conscious, contrary to what the
    complainants themselves testified. In addition, the appellant urges, the trial
    judge erred in rejecting the defence evidence, or in resolving the conflicts in
    the evidence, about the synergistic effects of the anesthetics on awareness and
    memory.

[117]

The respondent counters with the overarching submission that the
    appellant is simply inviting the retrial on appeal of factual determinations
    contested but lost at trial.

[118]

The respondent points out that the appellant accepts that the bite-down
    reflex most frequently occurs in patients under general anesthesia where laryngeal
    masks or endotracheal tubes have been inserted in the patients airway. Biting down
    is not as common in conscious sedation where, as here, no artificial airway is
    involved. Dr. Hungs opinion about this prospect was contradicted by the
    testimony of practising anesthesiologists whose evidence the trial judge accepted.
    Even without this contradictory evidence, the trial judge was not bound to
    accept the opinion of Dr. Hung.

[119]

The respondent says that the trial judge was entitled to reject the
    opinions of Dr. Aitkenhead whose testimony, as the trial judge explained,
    overstated the findings in the studies on which he relied and failed to take
    into account opinions from other qualified sources that did not coincide with
    his own.

[120]

According to the respondent, it was open to the trial judge to conclude
    that, to the extent that sexual hallucinations occur in anesthetized patients,
    the anesthetic dosages significantly exceed those administered here. Further,
    the hallucinations tend to be of benign, not unwanted sexual experiences. The
    trial judge was also right to decide that claims of the synergistic effects of
    the various anesthetics were unsupported by reliable studies or research.

The Governing Principles

[121]

The principles that inform decisions when an appellant complains of
    misapprehension of evidence and the adequacy of reasons have already been canvassed.
    No useful purpose would be achieved by their repetition here.

[122]

Three brief points will suffice.

[123]

First, as with the testimony of any witness, a trial judge may accept
    some, none or all of the opinions offered by expert witnesses within their
    fields of expertise.

[124]

Second, and again as with the testimony of any witness, a trial judge
    need not believe or make findings of fact based on the testimony of an expert witness
    simply because no witness is called by the opposite party or evidence adduced
    to contradict it:
R. v. Moke
(1917), 28 C.C.C. 296 (Alta. S.C., A.D.),
    at p. 300.

[125]

Third, experts give evidence. Triers of fact, not experts, decide the
    issues to which the evidence of the experts relates. Triers of fact retain the
    power of decision, whether the trier is a judge sitting alone or a jury. While
    it is true that findings of fact must be grounded in the evidence and reasonable
    inferences drawn from it, the trier of fact, not the expert, has the final say.

The Principles Applied

[126]

As I will explain, I would reject this ground of appeal.

[127]

At trial, the defence adduced expert evidence for two discrete
    purposes:

i.

to raise a reasonable doubt that the conduct which
    each complainant genuinely believed and testified had occurred never took place,
    because it was the product of the anesthetics administered by the appellant;
    and

ii.

to raise a reasonable doubt about the occurrence of
    many of the events of which the complainants testified because, as an
    anesthesiologist, the appellant would have been aware of the bite-down reflex
    and would not have inserted his penis into any complainants mouth, even if he
    had the opportunity to do so, for risk of injury.

[128]

This ground of appeal founders for several reasons.

[129]

First, it was for the trial judge to determine the weight he would
    assign to the evidence given at trial, including the testimony of the experts
    called by the parties. The trial judge was an eye and ear witness to the
    testimony of the experts. It was for him to say to what extent, if at all, he
    found each expert credible and their evidence reliable. He did just that. His
    reasons belie any misapprehension of the evidence. They are not tainted by any
    legal or palpable and overriding error. They are entitled to deference in this
    court, a consequence that no argument of the appellant has dislodged.

[130]

Second, it was open to the trial judge to conclude that the hallucinogenic
    properties of the anesthetics could not account for the events reported by the
    complainants. To the extent that these anesthetics could give rise to such
    unfounded perceptions, the dosages involved were significantly greater than the
    levels administered here. The synergistic effects of the combination of
    anesthetics were far from clear according to the evidence admitted at trial.

[131]

The opinions summoned by the appellant must also be considered in the
    context provided by the balance of the evidence. Twenty-one complainants.
    Strangers to each other. No evidence of collusion. Incidents taking place over
    a period of four years. Two dozen other anesthesiologists in the same hospital.
    But only one  the appellant  whose female patients were induced by anesthetic
    cocktails to report intraoperative events that never happened.

[132]

Third, the expert evidence about the conduct reported by the
    complainants being the product of anesthesia revealed differences of opinion. It
    was for the trial judge to assess this conflicting evidence and record his
    findings. He rejected the evidence of Dr. Aitkenhead and offered cogent reasons
    for having done so. I am unable to tease out of the trial record any basis upon
    which this court can interfere.

[133]

Fourth, in connection with the evidence of Dr. Hung about the
    bite-down reflex, several features of that evidence caused the trial judge to
    reject it. Dr. Hung acknowledged that the reflex was most common in cases in
    which a patient was under general anesthesia and an artificial airway inserted
    in his or her mouth. In none of the cases that formed the allegations against
    the appellant was the patient under general anesthesia. And no complainant was
    fitted with a laryngeal mask or endotracheal tube. Dr. Hung described sexual
    ideation as occurring with much less frequency in cases of conscious sedation.
    Despite this relative infrequency, 21 complainants, all under conscious
    sedation, administered and controlled by the same anesthesiologist, reported
    unwanted sexual contact. The trial judge was entitled to reject Dr. Hungs
    evidence on the basis of its inherent implausibility.

[134]

Finally, the suggestion that the trial judge was bound to accept the
    opinion of Dr. Hung in the absence of contradictory evidence called by the
    Crown is unavailing. As a matter of principle, this submission is unsound. A
    trier of fact is under no obligation to accept the evidence of any witness,
    whether of fact or of opinion, simply because it has not been contradicted by
    the testimony of another witness.

Ground #3: The Similar Act Evidence Issue

[135]

The final ground
    of appeal fastens on the trial judges use of evidence of similar acts across
    the counts contained in the indictment in determining whether the Crown had met
    the standard of proof required of it on the individual counts.

[136]

To appreciate
    the argument advanced on this issue, it is helpful to recall the positions of
    the parties at trial and the reasons of the trial judge explaining his use of
    the evidence of similar acts before venturing into the arguments advanced on
    appeal and a brief discussion of the governing principles.

The Positions of the Parties at Trial

[137]

At trial, the
    parties occupied common ground that the evidence on each individual count could
    be applied as evidence of similar acts across the 21 counts contained in the
    indictment. The weight to be assigned to this evidence, the parties agreed, was
    for the trial judge to determine.

The Reasons of the Trial Judge

[138]

The trial judges lengthy reasons proceed through several steps and
culminate
in the findings of guilt on each count of the indictment.

[139]

The
    trial judge began by setting out the uncontroversial issues. He then identified
    the position of the defence as a submission that the conduct that the
    complainants honestly believed had occurred did not take place for two
    principal reasons:

i.

the synergistic effects of the anesthetics administered by
    the appellant either produced or caused each complainant to misinterpret commonplace
    events during surgery as unwanted sexual misconduct;
and

ii.

despite the opportunity or near-exclusive opportunity to commit the
    offences, the appellant did not do so because of the likelihood of detection by
    others present in the operating room; the
probability of
injury from the bite-down reflex; and in some cases at least, the physical
    impossibility of committing the offence in the manner alleged by the
    complainant.

[140]

The trial judge rejected the position of the defence, not only as a
    matter of general principle, but also in connection with each individual count.
    He reached this conclusion before considering the evidence of similar acts. Satisfied
    that a case of probable guilt had been established on each count on the basis of
    the evidence related to that count, the trial judge then turned to the evidence
    of similar acts to determine whether the Crown had met the standard of proof
    required on each count.

[141]

In finding guilt established on each count beyond a reasonable doubt,
    the trial judge concluded:

There was no collusion. The complainants did not know each
    other.  The drugs administered to them were within established norms
    administered to thousands of consciously sedated patients around the world on a
    daily basis.

The accused was one of roughly 25 anesthesiologists working at
    NYGH dealing with patients under conscious sedation using similar drugs in
    similar dosages.  Yet all of the complaints of sexual assault are directed
    only at him.

In my view, it is not merely improbable, but virtually
    impossible, that these collusion-free allegations against a single individual
    could be attributed to coincidence.

The multitude of credible allegations against the same
    individual in similar circumstances constitutes powerful circumstantial
    evidence of guilt.  The possibility of them being attributed to
    coincidence is non-existent.

Viewed separately, the allegations
    by each complainant may not amount to proof beyond a reasonable doubt. 
    Viewed together, however, there is no rational conclusion to be reached other
    than that guilt has been proved beyond a reasonable doubt on all counts.

The Arguments on Appeal

[142]

The appellant
    acknowledges that evidence of similar acts is circumstantial evidence available
    for consideration by the trier of fact in deciding whether the conduct alleged
    in fact occurred. Said in another way, in some cases, evidence of similar acts
    may assist in completing proof of the
actus reus
of an offence.

[143]

That
    evidence of similar acts meets the threshold for admissibility, the appellant
    contends, does not relieve the trial judge of the obligation to consider its
    weight or persuasive force in relation to the other counts. And where the
    evidence on individual counts renders the conduct physically impossible or
    highly unlikely, these factors diminish the
probative
value
    of the evidence on individual counts and of the evidence of similar acts as a
    whole. The trial judge failed to take these factors into account, thus
    overvalued the
probative
value of the evidence.

[144]

The
    respondent acknowledges that evidence of similar acts is
prima facie
inadmissible.
    Its admission is exceptional and limited to cases in which its
probative
value exceeds its prejudicial effect. A trial judge
s
    determination of the preponderance of probative value over prejudicial effect is
    entitled to deference on appeal. Here, the parties agreed that the across-count
    use of the evidence was justified as an exception to the general exclusionary
    rule.

[145]

To invoke
    similar act reasoning, the respondent continues, the Crown is not required to
    prove each count beyond a reasonable doubt. No standard of proof applies to the
    use of evidence, or to evidence itself. Standards of proof apply only to issues
    of fact. The force of the evidence subsists in reasoning through probability
    and the unlikelihood of coincidence. Separate allegations can support each
    other and satisfy the standard of proof, even where a reasonable doubt may
    exist in relation to each when considered in isolation.

[146]

In this case,
    the respondent says, the trial judge considered and rejected the probability of
    coincidence as the cause of the complaints. The appellant conceded
    admissibility and left weight at large for the trial judge to determine. The
    trial judge did so. Repetition here of the same argument advanced and rejected
    at trial is to no avail.

The Governing Principles

[147]

A brief trawl
    through the mire of precedent yields a catch of basic principles that inform
    our decision on this allegation of error.

[148]

We begin with a
    basic rule of exclusion  that evidence of similar acts, whether of other
    counts or extrinsic misconduct, is presumptively inadmissible. This presumption
    is rebuttable if the Crown can establish that in the circumstances of the case,
    on a balance of probabilities, the probative value of the evidence in relation
    to the issue on which it is tendered outweighs its potential prejudice and
    thereby justifies its reception:
R. v. Handy
,

2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.

[149]

The
    policy basis for the exception is that the deficit of probative value weighed
    against moral and reasoning prejudice on which the rule of
prima
    facie
inadmissibility is grounded is reversed.
    Probative value exceeds prejudicial effect because the force of similar
    circumstances defies coincidence or other innocent explanation:
Handy
,

at para. 47. Like any item of circumstantial evidence, the cogency of
    evidence of similar acts rests entirely on the validity of the inferences it
    could be said to support on the issue it is offered to prove:
R. v.
    Shearing
,

2002 SCC 58, [2002] 3 S.C.R. 33, at para. 31.


[150]

Third, because
    the probative value of evidence of similar acts as circumstantial evidence rests
    on the unlikelihood of coincidence, it makes no sense to require an allegation
    to be proven beyond a reasonable doubt as a prerequisite to access by the trier
    of fact to the evidence. Standing alone, evidence of similar acts may fall
    short of proving guilt beyond a reasonable doubt. But the evidence can be
    relied upon to assist in proving another allegation beyond a reasonable doubt
    in combination with other evidence:
R. v. Arp
,

[1998] 3 S.C.R. 339, at para. 66.

[151]

Fourth, evidence of similar acts may be used to assist in proof of the
actus
    reus
of an offence:
Handy
,

at paras. 78-80;
Shearing
,

at para. 46.


[152]

An
    important connecting factor in the similar act analysis is the number of
    complaints. Here we have 21 complainants, all telling a similar story about
    their anesthesiologist. Absent collusion or some other form of tainting, of
    which the parties agree there is none, the possibility of a mistake or
    misinterpretation, especially when anesthesia-induced sexual ideation is rejected,
    seems remote:
R. v. Thomas
(2004),
    190 C.C.C. (3d) 31 (Ont. C.A.), at para. 28.


[153]

A final
    point concerns deference. The assessment of probative value and prejudicial
    effect, as well as the determination of where the balance between these
    competing values settles, involves the exercise of judicial discretion and, correspondingly,
    significant deference on appellate review:
Shearing
,

at para. 73.


The Principles Applied

[154]

I would not accede
    to this claim of error.

[155]

The argument
    advanced here arises in a context circumscribed by the positions taken at
    trial.

[156]

The defence
    advanced at trial, reduced to its simplest terms, was that the offences alleged
    never occurred, despite the complainants generally held beliefs to the
    contrary. The appellant acknowledged that the evidence on each count could be
    applied across counts as evidence of similar acts. It necessarily follows that
    the appellant accepted that:

i.

the probative value of the evidence of similar acts exceeded its
    prejudicial effect; and

ii.

the
evidence of similar acts was admissible to complete
    proof of the
actus reus
of each offence charged.

What remained for the trial judge to
    determine was whether this combination of the evidence of similar acts and the
    account of each individual complainant proved the appellants guilt on each
    count. The trial judges finding of adequacy is a quintessential finding of
    fact that is subject to significant deference in this court.

[157]

Further, to be
    admissible as evidence of similar acts, evidence of other conduct need not satisfy
    a specific standard of proof. When evidence of similar acts is introduced, it
    is the improbability of coincidence that gives the evidence its probative
    force. The submission of the appellant fails to pay heed to this principle.
    Even if a reasonable doubt existed in relation to each allegation considered in
    isolation, the individual allegations remain mutually supportive and capable of
    establishing proof beyond reasonable doubt.

[158]

In the end, as
    it seems to me, the revival of this argument first made at trial must suffer
    the same fate as its forbearer. Deference is due the trial judge.

conclusion

[159]

For these reasons, I would dismiss the appeal.

Released: DW Oct 13, 2017

David Watt J.A.
I agree. P. Lauwers J.A.

I agree. Grant Huscroft J.A.





[1]

During hip and knee replacements, vendor representatives
    circulate among operating rooms to ensure proper assembly of the prosthesis


