‘Moral sense of obligation’: Complaint filed against judge in Ukabam acquittal

(WARNING: This story contains details that may be disturbing to some readers)

When one of the victims in the Sylvester Ukabam case heard the verdict — that he’d been found not guilty on seven charges of sexual assault — she said she felt violated all over again.

After she read the verdict, she decided to file a complaint against the Court of Queen’s Bench justice — Brian Scherman —  to the Canadian Judicial Council.

The woman was among the five complainants in the case who alleged that Ukabam — in his capacity as a doctor, gastroenterologist and hepatologist — sexually assaulted them.

There is a publication ban against identifying the victims, so the woman’s name is not being used in this story.

Four of the complainants in the case said that during exams, Ukabam touched or inserted a finger in their vagina when it wasn’t called for. One complainant said he’d touched her breasts.

The woman who made the judicial complaint against Scherman felt his reasoning came down to saying she wasn’t a reliable witness because she had female genitalia.

“I found his decision to reflect an underlying attitude of ignorance and misogyny and gender bias that, to me, was so unsettling that I felt compelled to speak up,” the woman said.

In particular, she took issue with the judge accepting the defence’s argument that the victims could have confused rectal penetration with vaginal penetration.

“They’re arguing that because a woman’s rectum and their vagina are so closely situated that it is possible for a woman to basically mix up her vagina with her rectum. And to me that concept is as ludicrous as a man confusing his penis with his rectum. But of course no one would ever call into question a man’s ability to differentiate,” said the woman.

The Canadian Judicial Council has a list of ethical principles for judges and the woman feels Scherman failed to fulfil three of them in this case: The principles of competence, equality and impartiality.

“This is me as a Canadian, as a woman, as a mother of daughters. I have a moral sense of obligation to come forward and speak up about something so appalling. It’s 2022; this shouldn’t be happening,” said the woman.

The council confirmed a complaint had been made against the justice and said it tries to resolve complaints within three to six months. The outcomes could range from nothing to the justice being recommended to take remedial action or training to the council recommending to the Minister of Justice for the judge to be removed.

The woman who filed the complaint said that, based on the way the judge wrote his findings, she wouldn’t be disappointed if he was removed from his position.

“His findings, they reek of misogyny and gender bias and ignorance. They are so appalling that I’m horrified at the idea of him overseeing any other sexual assault case,” said the woman.

The decision

In his decision, the justice writes about the difference between reliability and credibility — that credibility is whether the witness is telling the truth and reliability is whether the witness’ evidence is accurate.

Scherman wrote that while he doesn’t necessarily doubt the women’s credibility — except for the case of one woman who has also filed a civil suit against the doctor — he believes they think that what they said happened really did happen. But the justice said he can’t be sure it really did.

“My conclusion flows from the fact that given the reliability concerns I have with the complainants’ evidence, I cannot be certain that what they perceived was happening, in fact happened,” Scherman wrote in the decision.

Scherman discussed why he had doubts, including that some of the complainants were under light sedation for a procedure, that there were some questions about the women’s memories, and that a doctor he’d certified as an expert said a woman could feel pressure in her vagina but there’s no ability for the inside of a woman’s vagina to feel pain.

Scherman also accepted the defence’s argument that the women could have been mistaken about which opening the exam was being conducted in — despite multiple complainants stating that isn’t something they would confuse.

“(One complainant) stated clearly that there is no question one finger was in her vagina. She agreed she did not see a finger in her vagina but stated a finger in a vagina cannot be mistaken,” wrote the judge.

Scherman did write in his decision about the latter issue, saying he does start from what seems to be a common-sense point that a conscious woman would be able to accurately sense vaginal penetration, but he also referred to other cases where it was discussed whether “common sense” could be relied on.

“As a judge, I am not to permit what I might perceive as a common‑sense conclusion to override or trump other possible conclusions that can reasonably flow from the evidence,” he wrote.

“The defence argues that sensations flowing from rectal examinations could be mistakenly interpreted as vaginal penetration. This raises the issue of whether a judge can or should, in the various circumstances at hand, accept as reliable the complainants’ evidence that what they felt was a finger or fingers in their vagina as a basis to conclude beyond a reasonable doubt that such occurred.”

Ultimately, the judge had too many concerns about the reliability of the complainants and said the Crown hadn’t proved its case against Ukabam beyond a reasonable doubt.