Sexual assault trial of former Regina doctor considers potential expert witness
WARNING: This story includes details of sexual assault allegations.
The sexual assault trial of a former Regina doctor continued on Monday with the court hearing from a potential expert witness.
The Crown called Dr. Barry Lumb, a gastroenterologist and medical professor from Ontario, to take the stand virtually for a voir dire, to see if he could be considered an expert witness on typical practices and procedures of the profession.
Sylvester Ukabam pleaded not guilty to seven counts of sexual assault levelled against him by five women. Ukabam was a gastroenterology specialist. He is accused of inappropriate actions during physical medical examinations of several women at his Regina practice between 2010 and 2018.
The five women testified last week. Friday’s complainant said she went to see Ukabam for stomach pain, but during an exam he touched and penetrated her vagina.
Crown prosecutor Alexandra Findlay had Dr. Lumb go over the process of becoming a fully accredited gastroenterologist. He spoke about his 38 years of experience in the field and the thousands of patients’ exams and scope procedures he has completed throughout his career.
Lumb was asked about sedation and how common it is in gastroenterology. He said it is common and needed to keep patients comfortable. He said there are two types of sedation - one keeps the patient awake during the procedure and was referred to the doctor as conscious sedation. The other, referred to as deep sedation, leaves a patient unconscious. Lumb said he has been using sedation throughout his career.
When asked by the Crown if he commonly is asked to perform breast examinations, Lumb said no.
“I have had very little indication to perform a breast examination,” he said. “It would be uncommon for a gastroenterologist to carry out routine breast examinations.”
Lumb said to prepare for the trial, he had access to police interviews, complainants’ medical records and reports to the College of Physicians and Surgeons of Saskatchewan (CPSS).
He said he was not familiar with Ukabam before this trial and has no past experience with any of the alleged victims, which he said allows him to remain impartial in the trial.
He prepared his own reports from the evidence he had access to. He completed five reports - one for each complainant.
During cross examination on Monday morning, defence lawyer Aaron Fox questioned Lumb’s ability to remain impartial in the trial. Fox cited changes that had been made to Lumb’s reports on the five alleged victims following interactions with the Crown’s office.
In emails between Lumb and the Crown that were presented in the courtroom, the Crown suggested Lumb should remove certain parts of his drafted reports about complaints to the CPSS and to clarify his opinion in a stronger way.
The emails also suggested that Lumb should remove any reference to Ukabam committing sexual assaults, saying that was “for the jury to decide.”
Fox asked Lumb if his reports had been influenced by emotion.
Lumb said the response that he initially had “perhaps been overly emotional,” but that did not find its way into the final reports.
Fox highlighted an email from Lumb on March 10, 2021 that said “I’m struggling for words to describe my outrage,” at what he had read in the complaints made by the alleged victims.
Crown counsel was given an opportunity to re-examine the witness.
She asked Lumb why the reports from the alleged victims had made him emotional. He said as a practicing gastroenterologist and physician that spends time with trainees, what he had read went far beyond what he would ever expect.
He said his emotional response did not impact his medical opinion on what he has read, and he reaffirmed his ability to remain impartial.
During submissions at the end of the day, Fox said Lumb did not clearly state in his reports that he was clear on what his role in this process was.
Fox read aloud the court rules which state that expert witnesses have a duty to be impartial, independent and unbiased.
“I’m not sure that this witness was aware of that duty,” Fox said. “The concern that you have, is: does this witness understand what his role is?’’
Ultimately, Fox said the defence’s position is that based on the various comments the witness made, the proper ruling would be that he is not an admissible expert witness who can remain impartial.
He said if Lumb is found admissible as a witness, the weight of his statements should be considered.
During her submission, the Crown confirmed that all drafts of Lumb’s reports and any correspondents regarding the reports have been provided to the defence and the court.
She said there was nothing in the correspondence with the Crown that would lead Lumb to form any opinion, other than his own medical opinion from what he read from the evidence.
Findlay highlighted that Lumb had repeated several times, he would enter the trial with an open mind.
“There is no question that Dr. Lumb is properly educated, properly experienced and properly knowledgeable,” Lane said.
Lane said it is possible for Lumb to form his expert opinion and then from that form a personal opinion, while still remaining unbiased.
The judge said he will need the entire day on Tuesday to make a decision on if Dr. Lumb is a qualified expert witness.
Court will resume at 10:00 a.m. on Wednesday.
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