Sask. doctor acquitted of sexual assault charges can still be sued in civil claim, judge rules

Some readers may find details in this story disturbing.

A Regina doctor accused of sexually assaulting patients can still be sued in civil proceedings even though he’s been acquitted of the charges in criminal court, a Saskatoon judge has ruled.

Gastroenterologist Sylvester Ukabam went to trial in 2022 over seven counts of sexual assault stemming from incidents with five separate patients. The women said he vaginally penetrated them or performed breast exams without consent and with no explanation of the medical reasons for the procedures.

None of the accusers can be named due to a publication ban.

At trial, a medical expert testified there would be no reason for a gastroenterologist to examine a woman’s breasts or vagina in the course of their duties.

Ukabam testified he had no memory of the encounters and relied only on his notes from the examinations. He was acquitted by Court of King’s Bench Justice Brian Scherman, who said the women were mistaken about what they felt, because they were under sedation or influenced by the initial complaints in the media. This prompted a complaint against him by one of the accusers.

• Get the CTV News app for Saskatchewan breaking news alerts and top stories 

The Crown lost a subsequent appeal to overturn the doctor’s acquittal, but in February, one patient opted to file a civil claim.

Ukabam asked a King’s Bench judge to strike down the patient’s civil lawsuit since the “essential fact underlying” her claim was already decided in criminal court.

But in a decision earlier this month, Judge Neil Robertson said the lawsuit can proceed.

“The acquittal on the criminal charge is not a bar to the civil claim,” Robertson wrote in his Aug.7 decision.

“The different standard of proof and the civil wrongs alleged mean the claim could succeed, despite the criminal acquittal.”

In criminal trials, the Crown has to prove “beyond a reasonable doubt” that the accused committed an offense — a standard that is near absolute certainty.

In civil cases, a plaintiff only has to prove their case on a balance of probabilities — essentially, that it’s the most likely scenario.

At Ukabam’s 2022 trial, judge Scherman was left with a reasonable doubt that the complainants’ statements — all seven of them — may not be completely reliable.

“The overarching issue in respect of the complainant’s evidence is the reliability of their respective evidence,” he said.

“There is, at minimum, a reasonable possibility that each of the complainants misinterpreted and/or do not reliably remember what occurred.”

In a June 2022 complaint against Scherman to the Canadian Judicial Council, one of the accusers said the judge’s decision reflected an underlying attitude of ignorance, misogyny and gender bias that was deeply unsettling.

In the February Saskatchewan appeal court decision upholding the doctor’s acquittal, Justice Lian Schwann concluded that judge Scherman made some errors by omitting some of the Crown’s evidence, but she was not convinced it would have made a difference.

Ukabam gave up his medical licence in 2018 and opted not to try to return to the profession after the trial.

-With files from Canadian Press and Stefanie Davis