R. v. Kadirsahib (M.S.), 2013 MBQB 291

• Judge: Saull, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 12, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 291;(2013), 300 Man.R.(2d) 205 (QB)

R. v. Kadirsahib (M.S.) (2013), 300 Man.R.(2d) 205 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JA.019

Her Majesty The Queen (respondent) v. Mohamed Sadhakkathulla Kadirsahib (accused/appellant)

(CR 12-01-32380; 2013 MBQB 291)

Indexed As: R. v. Kadirsahib (M.S.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Saull, J.

December 12, 2013.

Summary:

The accused doctor was charged with two counts of sexually assaulting female patients (L.G. and L.S.). The accused allegedly conducted purported medical examinations on each patient that were not in fact conducted for a medical purpose.

The Manitoba Provincial Court, in a judgment reported at (2012), 277 Man.R.(2d) 157, convicted the accused on the count relating to L.G., and acquitted him on the count relating to L.S. Subsequently, the accused was sentenced to six months' imprisonment followed by 18 months' probation. The accused appealed against conviction and sentence.

The Manitoba Court of Queen's Bench dismissed the appeals.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - A family doctor did not provide a female patient with a gown - He lifted her shirt, removed her bra and felt her breasts in a manner inconsistent with what was required for a breast examination - He also undid her pants, and felt her vagina over her panties - The doctor also massaged her back - The patient was not provided with an explanation as to the purpose of this touching - The doctor testified that he was conducting a particularly thorough examination to isolate alternative causes for the symptoms complained of - Expert witnesses testified that based on the patient's stated complaint and the entries of her medical record, there was no medical purpose for the nature of the examination - The trial judge found the doctor guilty of sexual assault, as the touching was done for a sexual purpose rather than a proper medical purpose - The doctor appealed, arguing that his counsel was "incompetent" in failing to adequately prepare him to testify and in failing to properly cross-examine the Crown witnesses - The Manitoba Court of Queen's Bench dismissed the appeal - The doctor had the burden of proving incompetent representation - No evidence was provided by trial counsel, as the doctor did not waive solicitor-client privilege - The doctor failed to establish the facts upon which the incompetence claim was based - In any event, the doctor failed to establish incompetence or a miscarriage of justice - See paragraphs 72 to 95.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Manitoba Court of Queen's Bench stated that "in order to determine whether an appeal will be successful on the basis of an allegation of incompetency of counsel, the following analysis must be undertaken ... '(1) The factual component: an appellant must establish, on a balance of probabilities, the facts on which the claim of incompetency is based. If that is not established, there is no need to go any further. (2) The prejudice component: if the factual foundation has been made out, the court will, for the purposes of this component, assume incompetence on the part of counsel. ...  At this stage, an appellant must establish, on a balance of probabilities, that the presumed incompetence resulted in a miscarriage of justice. If it did not, there is no need to go any further. (3) The performance component: if it is determined that the reliability of the verdict was affected by the presumed incompetence, the court will then consider whether the actions of counsel were, in fact, incompetent. At this stage of the analysis, the presumption reverts to "a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance" and the onus falls on an appellant to establish that it did not ... Again, that analysis is conducted without the benefit of hindsight.'" - See paragraph 46.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Manitoba Court of Queen's Bench stated that "With respect to establishing the factual foundation of an allegation of incompetent representation, the court in Le set out the following principles: '(1) It is an appellant who bears the onus of submitting evidence to establish the factual foundation underlying the allegation. (2) Unless the trial transcript (unusually) reveals everything about the allegation, it is expected that appeal counsel will make inquiries of trial counsel and apply to present evidence from trial counsel in response. (3) Where the trial transcript and circumstances surrounding the allegation raise a concern about incompetent representation, courts are generally willing to order evidence to be taken from trial counsel prior to making a decision respecting the allegation. (4) However, where the court is satisfied from the trial transcript and other circumstances that no valid concern has been raised, the court will generally determine at this preliminary stage that an appellant has failed to provide the necessary factual foundation. (5) In more practical terms, just because an appellant has sworn to some facts in an affidavit does not automatically mean that a prima facie case has been raised requiring an answer from trial counsel. It all depends on the circumstances.'" - See paragraph 47.

Criminal Law - Topic 670

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Sexual assault defined - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 675

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Evidence and proof - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - A family doctor did not provide a female patient with a gown - He lifted her shirt, removed her bra and felt her breasts in a manner inconsistent with what was required for a breast examination - He also undid her pants, and felt her vagina over her panties - The doctor also massaged her back - The patient was not provided with an explanation as to the purpose of this touching - The doctor testified that he was conducting a particularly thorough examination to isolate alternative causes for the symptoms complained of - Expert witnesses testified that based on the patient's stated complaints and the entries of her medical record, there was no medical purpose for the nature of the examination - The trial judge found the doctor guilty of sexual assault, as the touching was done for a sexual purpose rather than a proper medical purpose - The doctor appealed, arguing that the trial judge erred in placing too much emphasis on the expert evidence, in rejecting his evidence, and in overemphasizing his failure to cross-examine the Crown's witnesses in areas where he later testified - The Manitoba Court of Queen's Bench dismissed the appeal - The trial judge did not believe the doctor's evidence and accepted the evidence of the patient and the experts - The court stated that "based on my review of the entire record, there is no indication that the trial judge misapprehended the evidence put before him or that he erred in his [R. v. D.W.] analysis in any way, shape or form. ...  I am satisfied that the trial judge's assessment of credibility can be supported 'on any reasonable view of the evidence'" - Further, "the cumulative effect of the acts and omissions of the [accused] as found by the trial judge provides a solid foundation for the inference that the [accused] acted for a sexual purpose" - See paragraphs 51 to 71.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - A family doctor did not provide a female patient with a gown - He lifted her shirt, removed her bra and felt her breasts in a manner inconsistent with what was required for a breast examination - He also undid her pants, and felt her vagina over her panties - The doctor also massaged her back - The patient was not provided with an explanation as to the purpose of this touching - The doctor testified that he was conducting a particularly thorough examination to isolate alternative causes for the symptoms complained of - Expert witnesses testified that based on the patient's stated complaints and the entries of her medical record, there was no medical purpose for the nature of the examination - The trial judge found the doctor guilty of sexual assault, as the touching was done for a sexual purpose rather than a proper medical purpose - The trial judge rejected the accused's request for a conditional sentence as being inconsistent with the fundamental purpose and principles of sentencing, including denunciation and deterrence and the breach of trust between doctor and patient - The accused was sentenced to six months' imprisonment followed by 18 months' probation - The Manitoba Court of Queen's Bench dismissed the accused's sentence appeal - The trial judge gave appropriate weight to all of the aggravating and mitigating factors - The court stated that "Where a trial judge has heard trial evidence and evidence led at the sentencing hearing, and properly assessed the appropriate sentencing principles related to the offence before him, considerable deference must be shown to the sentence by the appellate court. Appellate courts should not vary sentences merely because they might have imposed a different sentence had the matter come before them at first instance. It is only where there is an error in principle or where the sentence is clearly unfit that appellate intervention is appropriate. ...  Neither situation arises here." - See paragraphs 97 to 117.

Criminal Law - Topic 7654

Summary conviction proceedings - Appeals - Grounds - Incompetent representation or erroneous legal advice - [See first Civil Rights - Topic 3158 ].

Criminal Law - Topic 7656

Summary conviction proceedings - Appeals - Grounds - Lack of evidence to support finding - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 4351 ].

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - The Manitoba Court of Queen's Bench discussed the rule in Browne v. Dunn, which provided that "if counsel seeks to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the opportunity to address such evidence during cross-examination. The nature of the contradictory evidence must at least be put to the witness during cross-examination by the counsel who plans to lead it" - The modern view of the rule, at least in criminal trials, was that it was best left to the discretion of the trial judge on how to best implement the rule - The court stated that "There are several approved remedies, such as permitting the recall of witnesses (where practicable), refusing to allow the offending party to call the contradictory evidence, or factoring in the absence of cross-examination into the assessment of the weight to be assigned the evidence." - See paragraphs 83 to 84.

Evidence - Topic 4726

Witnesses - Examination - Impeaching credibility - Duty to give witness opportunity to explain - [See Evidence - Topic 4716 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 7].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 44].

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201; 968 A.P.R. 201; 273 C.C.C.(3d) 276; 2011 NSCA 70, refd to. [para. 45].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 45].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 45].

R. v. Le (T.D.) (2011), 270 Man.R.(2d) 82; 524 W.A.C. 82; 2011 MBCA 83, refd to. [para. 45].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 49].

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 50].

R. v. Vuradin (F.) (2013), 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 298 C.C.C.(3d) 139; 2013 SCC 38, refd to. [para. 52].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 203 C.C.C.(3d) 316; 2005 NSCA 162, refd to. [para. 55].

R. v. Hoohing, 2007 ONCA 577, refd to. [para. 56].

R. v. Campbell (R.) (2003), 170 O.A.C. 282 (C.A.), refd to. [para. 56].

R. v. Chittick (D.S.) (2004), 228 N.S.R.(2d) 81; 723 A.P.R. 81; 24 C.R.(6th) 228; 2004 NSCA 135, refd to. [para. 56].

R. v. Mends (L.F.), [2007] O.A.C. Uned. 370; 2007 ONCA 669, refd to. [para. 56].

R. v. Menow (R.A.) (2013), 294 Man.R.(2d) 236; 581 W.A.C. 236; 2013 MBCA 72 (C.A.), refd to. [para. 56].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 65].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 65].

R. v. Rocha (S.) (2009), 236 Man.R.(2d) 213; 448 W.A.C. 213; 2009 MBCA 26, refd to. [para. 67].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 67].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 82].

R. v. McCarroll (M.G.) (2008), 241 O.A.C. 316; 238 C.C.C.(3d) 404; 2008 ONCA 715, refd to. [para. 83].

R. v. Giroux (L.) (2006), 210 O.A.C. 50; 207 C.C.C.(3d) 512 (C.A.), refd to. [para. 84].

R. v. Nagahara (B.M.) (1995), 80 O.A.C. 155 (C.A.), refd to. [para. 102].

R. v. West (D.J.) (2007), 401 A.R. 320; 391 W.A.C. 320; 219 C.C.C.(3d) 207; 2007 ABCA 67, refd to. [para. 102].

R. v. Cameron (D.I.) (1995), 136 Nfld. & P.E.I.R. 105; 423 A.P.R. 105; 1995 CanLII 8967 (P.E.I.C.A.), refd to. [para. 102].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 104].

R. v. R.W.M. (2011), 270 Man.R.(2d) 29; 524 W.A.C. 29; 2011 MBCA 74, refd to. [para. 105].

R. v. E.M. (1992), 58 O.A.C. 149; 76 C.C.C.(3d) 159; 10 O.R.(3d) 481 (C.A.), refd to. [para. 110].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 112].

Counsel:

Breta M. Passler, for the Crown/respondent;

Richard J. Wolson, Q.C., and Laura C. Robinson, for the accused/appellant.

These appeals were heard before Saull, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on December 12, 2013.