 |
| John L. Hill |
The events began with allegations by C.W., who, on Oct. 3, 2016, attended Ateyah for back pain and later claimed that Ateyah conducted an ungloved, medically unnecessary vaginal examination. Three days later, she filed a complaint with the College of Physicians and Surgeons of Ontario (CPSO), triggering an investigation, a discipline hearing and practice restrictions prohibiting Ateyah from being alone with female patients.
Another patient, S.F., alleged that between 2008 and 2017, Ateyah performed inappropriate breast and genital exams and ordered unnecessary Pap tests after her hysterectomy. The CPSO reviewed her complaint but did not refer it to its Discipline Committee. By 2017, information about earlier allegations (Patients A and B) and practice restrictions were publicly available on the CPSO website and could also be found through general internet searches.
uniquepixel: ISTOCKPHOTO.com
The trial judge allowed the Crown’s application, finding strong similarities among the allegations, including unnecessary intimate examinations, failure to wear gloves, absence of chaperones and fabricated medical reasons. She also concluded that there was no collusion among complainants and that the probative value of the evidence outweighed any prejudice.
After assessing credibility, the trial judge rejected Ateyah’s evidence and found most complainants credible and reliable. She concluded that convictions on most counts were independently supported, though the similar fact evidence further reinforced the findings.
Ateyah appealed his conviction and sentence. The Ontario Court of Appeal delivered its reasons on April 21 (R. v. Ateyah, 2026 ONCA 287).
The majority of the three-judge panel dismissed the appeal in 39 paragraphs. Justice David Paciocco dissented in part, using 115 paragraphs to explain his position.
His dissent is compelling. It outlines the case and focuses on the trial judge’s handling of cross-count similar-fact evidence. Ateyah’s appeal challenged the trial judge’s broad ruling that evidence from each count could be used to support all others. The dissenting judge identified problems with that ruling, particularly whether the allegations were truly similar and whether the complainants’ accounts were independent (i.e., not influenced by collusion or “tainting”). Despite these concerns, the dissent concludes that the errors affected only two counts. Most convictions were upheld because the judge did not improperly rely on cross-count evidence in reaching them. However, the conviction involving one complainant (Count 5) is tainted by flawed reasoning regarding independence and should be set aside and retried. Another count (Count 19) is partly affected, but the conviction stands on other valid findings, though the sentence may need adjustment.
Justice Paciocco explained the governing legal principles. He emphasized that accused persons cannot be convicted on the basis of general bad character (the “prohibited inference”) and that similar fact evidence is normally inadmissible unless its probative value outweighs its prejudicial effect. Its usefulness depends on logical inferences, particularly whether similarities between allegations make coincidence unlikely and whether the complainants’ accounts are truly independent. If there is a realistic possibility of collusion or tainting, the Crown must disprove it; otherwise, the evidence cannot be used across counts.
The dissent emphasized that, despite a broad ruling admitting cross-count similar-fact evidence, the trial judge largely did not rely on it to convict the defendant. For 14 counts, she reached guilty verdicts without using that evidence, and even her alternative reasoning relied only on limited, appropriately similar clusters of evidence, not the universal approach. Therefore, any error in the overarching admissibility ruling did not affect those convictions.
However, for two counts (C.W. in Count 5 and S.H. in Count 19), the trial judge relied on cross-count evidence, making the independence of the complainants’ accounts critical. The dissenting judgment agreed there was no meaningful risk of intentional collusion (except in the mother-daughter case, which was adequately addressed). It rejected arguments about fabricated “me too” allegations or failures in credibility analysis.
The key error lies in the judge’s handling of unintentional or inadvertent tainting, particularly exposure to information from the CPSO website and the media. The trial judge reached a general conclusion that the Crown had disproved tainting, primarily because she believed the website lacked specific details. The dissent found this reasoning flawed because several complainants had direct or indirect exposure to potentially influential information, especially from the CPSO website. Further, the judge ignored or misapprehended evidence that detailed allegations were accessible and could have shaped witnesses’ memories. The absence of clear evidence about what complainants saw should have counted against the Crown, which bore the burden of disproving tainting. The judge improperly relied on speculation and gaps in the evidence and failed to analyze tainting on a complainant-by-complainant basis.
For Count 5 (C.W.), the conviction depended heavily on similar-fact evidence. Because that evidence may have been tainted and the Crown failed to disprove it, the conviction was unsafe and must be set aside, with a new trial ordered. For Count 19 (S.H.), the judge erred in relying on one complainant’s (C.G.’s) potentially tainted evidence regarding a breast examination. However, the conviction still stands because it is independently supported by another sexual assault finding (the Pap test). That said, the sentence may need revision because it was based on both findings.
In conclusion, Justice Paciocco would have allowed the appeal in part, overturning Count 5 and ordering a new trial. He would have upheld all other convictions, including Count 19, and invited further submissions on sentencing for Count 19 because of the identified error.
The majority dismissed the appeal in full, rejecting the dissent’s view that any convictions or sentences should be disturbed. They agreed with the dissent that the trial judge made no errors on the first three grounds (no unfair prejudice, proper use of acquitted-count evidence and sufficient similarity between allegations). However, they rejected the dissent’s conclusion that the trial judge erred on the key issue of unintentional or inadvertent tainting.
According to the majority, the trial judge properly found that the Crown disproved tainting on a balance of probabilities. The Crown was not required to introduce the actual CPSO website or media content into evidence; it was sufficient to rely on the complainants’ testimony about what they saw. The evidence showed that the complainants were exposed only to general information (e.g., that there were allegations of improper pelvic exams), not specific details that could distort their memories.
The trial judge’s reasoning must be read as a whole, including her credibility findings, which supported the conclusion that the complainants’ accounts were both independent and reliable.
The majority emphasizes that similar fact rulings are owed significant deference on appeal. The trial judge carefully assessed each complainant’s evidence, including potential exposure to outside information, and reasonably accepted their accounts as truthful and untainted.
As a result, there was no error in admitting similar fact evidence to convict on Count 5 (C.W.) or to support findings on Count 19 (S.H.). Even if there had been an error regarding the breast-touching finding for S.H., it would not have affected the sentence because the sentence was driven primarily by the more serious vaginal assault, and similar sentences were imposed in comparable cases.
In the end, despite the careful analysis in the dissent, all convictions and the overall sentence were upheld.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness, (Durvile & UpRoute) has been shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.