Hard cross-examination at Whatcott trial: Defense attorney undermines medical expert’s testimony that questions accuracy of Bill’s flyer

Pro-LGBT infectious-disease physician vs skilled defense lawyer

October 20, 2021

Ontario Superior Court, the scene of an absurd criminal trial - over the text of a flyer!

The trial of pro-family activist Bill Whatcott continues in Toronto. As we reported in our first installment, Bill is charged with “willful promotion of hatred” for passing out controversial flyers during the 2016 Toronto Gay Pride Parade.

It’s stunning (and frightening) that the Canadian government is going to these extreme lengths over a flyer that in the U.S. (and most places) would simply have been considered an annoyance at most, not a high-profile felony that carries prison time.

Bill Whatcott (center) and friends outside the courthouse.

The trial began on Oct 4. During the following three sessions (Oct. 11, Oct. 15, and Oct. 18) the Crown (i.e. prosecution) brought in a medical expert witness. The intent was to verify that Bill’s flyer was medically false. And in their minds, that would prove it was motivated by “hate.”

Bill’s flyer included these statements:

The Crown’s expert witness was Dr. Mona Loutfy, an infectious disease specialist who has a practice caring for people with HIV.

The Crown's medical expert, Dr. Mona Loutfy.

Dr. Loutfy works at the Maple Leaf Medical Clinic in Toronto. The clinic, which focuses on LGBT patients, enables promiscuous and risky homosexual sex practices through medication. This certainly exposes her bias. The clinic also conducts research on HIV and other sexually transmitted diseases and infections.

First day of testimony

On the first day of testimony, Dr. Loutfy answered fairly easy, leading questions about the flyer from the Crown prosecutor. She focused on recent research on homosexual health risks and treatment options, which may or may not have been available to a lay person in 2016 (when the flyer was written). Unlike Bill, she painted a rosy picture as to why HIV/AIDS and STDs are not as big a threat for homosexual and bisexual men they once were (due to vaccines and treatments now available).

Her attempt to discredit Bill’s information often seemed overly picky. For example, she stated that the sentence “This virus leads to anal warts and anal cancer” is not accurate and instead should read, “This virus could lead to anal warts and anal cancer.” She made one glaringly inaccurate statement, claiming that the photo of anal warts could be of a female, not a male. But clearly the photo shows male genitalia. This was a troubling mistake for a medical professional, to be sure.

Nevertheless, after the first day, the prosecution no doubt thought Dr. Loutfy had done her job as a medical expert debunking Bill’s flyer.

Days two and three – cross-examination by Bill’s lawyer

On the two remaining days of her testimony, Dr. Loutfy was cross examined by Bill’s lawyer, John Rosen. This was a real treat to hear. As we reported earlier, Rosen is no run-of-the-mill lawyer, like pro-family people usually have in these situations. He is universally considered to be the top criminal defense lawyer in Canada.

Attorney John Rosen

Dr. Loutfy had worked to discredit Bill’s statements, but Rosen produced abundant evidence that his claims were well within the realm of credibility.

Rosen had clearly done his homework. Over those two days of cross-examination, he sliced and diced the doctor’s testimony. He exposed numerous flaws in her reasoning and in her choice of studies to cite. For example, she claimed that Bill’s use of the word “nearly” was incorrect because the statistic was “only” 92% instead of 98%. At one point she said that “all of” and “100%” did not mean the same thing. In addition, Rosen forced her to admit that Bill’s photo of anal warts actually was of a male, not a female, as she had previously stated.

Rosen’s incisive cross-examination of Dr. Loutfy was so enthralling that we include a more thorough report below.

At the end of the third day of Dr. Loutfy’s testimony, the credibility of Bill’s flyer was established as pretty solid. It’s not perfect, but given that Bill is not a physician and understood the information from a layman’s perspective, it’s pretty close. The doctor’s criticisms of it were mostly based on semantics, opinions, and emphasis. And she referred to studies and data that the average person would not have access to. It was an exciting two days to listen to.

Coming up next

The next session of the trial will take a different turn. Another expert witness, Dr. Douglas Farrow from McGill University, will be delivering testimony on Bill’s flyer from a religious viewpoint. It will certainly be interesting.

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Detail on John Rosen’s cross-examination of Dr. Loutfy

At one point during the long day of back-and-forth on HIV/AIDS medical facts, Bill’s attorney John Rosen interjected, “We’re not here for a medical malpractice suit.” But that’s exactly what it seemed like to the observer. On trial for the LGBT-activist audience is the technical medical accuracy of Bill’s flyer. So what Rosen was attempting to prove was that nothing in Bill’s flyer was misrepresenting the information publicly available to the layman.

While the expert witness, Dr. Mona Loutfy, wanted to quibble with statements, Rosen kept his questions pointing to valid concerns Bill had for the health of homosexual men.

First, there was a discussion of the Canadian government’s own HIV/AIDS surveillance report from 2016, the year of Bill’s flyer handed out at Toronto Pride event. The report showed that Canada’s incidence of new HIV diagnoses that year was actually higher than in the previous four years, and actually higher than several other first-world nations (Netherlands, Germany, Sweden and Finland). Rosen quoted the document which began, “HIV and AIDS are a continuing international epidemic.” Specific to Canada:

The doctor wanted to downplay those numbers and said that Canada was “doing pretty well” in its fight against HIV. Her emphasis was that an HIV diagnosis is no longer a death sentence due to highly effective antiretroviral therapies (ART medications).

Rosen then brought up U.S. data, based on a population ten times Canada’s, which was also reporting troubling data at that time (with 38,700 new HIV diagnoses that year). The CDC’s report on 2016 numbers [Vital Signs: HIV Transmission Along the Continuum of Care — United States, 2016 | MMWR (cdc.gov)] explains that medical treatments (ART) could substantially improve life for a person with HIV and could halt transmission to others. But a large proportion of HIV-positive (about half) were not virally suppressed and could spread the disease to others. MSM accounted for 73% of HIV transmission. So Rosen asked if sex between men, anal sex in particular, is potentially unsafe.

The doctor quibbled that “unsafe” is not a medical term, and that she could not make a generalized statement that sex between two men is safe (or unsafe) without knowing exactly which two men were in question.

Attorney Rosen then asked if there might be a sense among the MSM on ART medications that they no longer have to worry about spreading HIV. The doctor said “No; many MSM understand they need to be on PrEP.” (PrEP is a preventative daily tablet to prevent contracting or spreading HIV).

But if they don’t know enough about their risk or what’s available, what then, he asked. And what of the worry that ART (for someone diagnosed with HIV) itself carries side effects, some of which can be serious (re: situation in 2016). The doctor disagreed: “No, it saves lives.”

Rosen said that it’s true that by 2016, Truvada (PrEP drug) had been around for about 12 years. But ART, according to a legitimate layman’s understanding (especially in 2016), could have many adverse effects. He referred to a U.S. report which explained that many HIV patients may not adhere to their ART regimen due to side effects.

The doctor responded that the report’s statement that “… long-term complications of ART can be underestimated…” was a “subjective judgment.” Rosen noted that while that may be true, this information appeared on a legitimate scientific website where people look up such information. So it is an ongoing issue for patients.

The doctor agreed that there’s a lot that must be monitored with HIV patients: Their viral load (checked every six months), ART side effects and interactions with other drugs, co-morbidities, etc.

Rosen pointed to Bill’s flyer which listed “common side effects” of ART. The doctor disputed the word “common” given today’s ART drugs. Rosen asked what a person would see if they looked up side effects on the CDC site in 2016. He reminded the doctor that the trial is dealing with what happened in 2016, not 2021. She claimed a lot of articles came out in 2017 on the issue, though similar information was available in 2016. She agreed the CDC’s wording in its listing of side effects under the heading “common &/or severe” does not distinguish the difference for the layman.

The questioning turned to life expectancy of someone with HIV. Rosen cited Hogg’s well-known 2008 article in The Lancet which looked at 14 different studies between 1996 and 2005:

The doctor said that this study wasn’t just looking at the effectiveness of ART. Rosen pointed out the article said that ART has brought marked improvement in life expectancy for HIV-positive persons, but HIV is considered a long-term chronic condition. Even with ART treatments, there is still a large discrepancy between the general population and those with HIV. The article said that “cohort studies must continue to monitor long-term effects and toxicity” of ART, meaning long-term effects in 2008 were not yet understood.

The doctor responded that statements like that in such studies are “subjective.” Rosen asked why people with HIV on ART still live one-third fewer years than non-infected people. The doctor answered that this study did not look at causes of mortality. Rosen asked if it could be toxicity of the ART treatments. The doctor said that all medications need to be monitored, and the study doesn’t say that toxicity is contributing to mortality.

Rosen skipped ahead to a 2015 study by Patterson, et al. of the HIV-positive population in Canada. It argued that despite the widespread availability of ART, life expectancy of this group remained lower than that of the general population due to HIV and many other conditions – some listed in Whatcott’s flyer (“HPV of the rectum … anal warts and anal cancer … Chlamydia, Cryptosporidium, Giardia lamblia, Herpes, Cystoisospora belli, Microsporidia, Gonorrhea, Hepatitis A, B & C, and Syphilis”). The study also notes that many persons were “lost to follow up” and that mortality could even be higher (meaning, average life expectancy lower). The Patterson study states:

Dr. Loutfy said the study does not look at toxicity of ART, though other studies do. Rosen asked if that information was available in 2015. She answered that “toxicity” and “side effects” are the same thing. She responded that life expectancy for HIV-positive population is about five years lower than the general population.

Monday, Oct. 18, 2021

The morning began with a discussion of the anal warts photo in Whatcott’s flyer. Attorney Rosen asked Dr. Loutfy if it was a photo of anal warts on a male. She said it could also be vaginal warts. (She had also said that on Day One of her testimony.) But Rosen asked her to take a closer look: the scrotum is obvious. The doctor said, “OK, I can see that in the color copy. It could also be anal cancer.” She said anal warts don’t kill you; they are considered more a “cosmetic” issue and can be treated. But anal cancer is serious and would require chemotherapy or radiation.

Rosen emphasized he wanted to “clarify that is a picture of anal warts.” She agreed. Rosen noted that anal warts and the more serious condition of anal cancer are caused by HPV (Human Papillomavirus). The doctor agreed: It is caused by one specific genotype of HPV, and that 88% of anal cancers are caused by HPV. Rosen asks about her taking issue with the flyer’s statement:
“Studies in San Francisco and Vancouver have found nearly 100% of HIV+ [HIV-positive] homosexuals and 67% of HIV- [HIV-negative] homosexuals are infected with HPV of the rectum.”

She said she discussed that statement in her report to the Court. She then surprisingly interjected: “We don’t use the term ‘homosexual’ – it’s considered discriminatory. So the current language is ‘gay and bisexual men’.” Rosen responded, “That’s a choice of the medical profession, like MSM or G, L …” The doctor continued, “The concept of equitable and non-discriminatory language is warranted in the medical field.”

Rosen explained that unlike her report, the flyer says “nearly” – so asked if those statistics are substantially correct. She quibbled over the meaning of “nearly”: it implies 98-99% to her, and the study with the highest rate is 92-93%. And 67% is wrong, she said, because the highest number is 57%.

Rosen next backed up the flyer with Dr. Joel Palefsky’s research from University of California-San Francisco. Palefsky is a leading researcher on HPV. His 2010 paper states that genital warts from HPV lead to substantial morbidity and ill health.

Dr. Loutfy then emphasized that HPV is a bigger problem in women, though she admitted HPV in men is a serious issue. Rosen then cited one conclusion by Palefsky:

But Dr. Loutfy continued to bring up the women’s health issue, and responded that the second statement (on rates of HPV-related cancers in men and women) is untrue, and such cancers are five-fold lower among men than women (in Canada). She accused Palefsky of engaging in “creative writing” to “sound more inflammatory.” She did agree that the incidence of anal cancer is increasing among both men and women (about 80% per year recently). Rosen quoted further from Palefsky:

Dr. Loutfy then agreed it is a serious issue. Rosen again quoted Palefsky:

So, among MSM the incidence is higher than the general population, Rosen noted. Dr. Loutfy responded yes to “higher,” but no to “common.” She again stated that Palefsky engaged in “creative writing” where he wrote, “HIV-positive MSM are at even higher risk of anal HPV infection, with nearly all having HPV, often with multiple HPV types.” Next, there was disagreement over the meaning of “nearly all,” or whether “all” and “100%” mean the same thing.

Rosen next citeed a study by Gilbert, et al. from Vancouver. By its title, it is clear there is an HPV issue among MSM: “Feasibility of incorporating self-collected rectal swabs into a community venue-based survey to measure the prevalence of HPV infection in men who have sex with men.” [Abstract: M. Gilbert, Sexually Transmitted Diseases, 2011, https://pubmed.ncbi.nlm.nih.gov/21934574/ ] 

Discussion continued on a meta-analysis (looking at multiple studies) showing HPV is behind 88% of anal cancers. Various sources agree that HIV-positive MSM are at much higher risk for developing anal cancer given their typical practice of anal sex and multiple partners. Dr. Loutfy questioned the idea that all MSM engage in anal sex.

She continued to try to deflect by claiming women have higher rates than men for chlamydia, but did not deny that MSM have higher rates than other men. She admitted that MSM have very high rates of gonorrhea and syphilis.

Dr. Loutfy said her clinic’s patients on ART do not present with the three parasitical diseases mentioned in the flyer: cryptosporidium, cystoisospora belli, and microsporidia. She stated that MSM not on ART are at “potential risk” for these. Rosen asked about fecal matter playing a role in acquiring these diseases since MSM frequently engage in anal contact (where the parasites live). Dr. Loutfy agreed there is a risk with oral/anal sex, or if feces are somehow spread and get into the mouth.

She agreed that Hepatitis A, B, and C are a possible risk for MSM, but less so now because Hep A and Hep B have vaccines. Fecal matter (encountered in anal sex) is a factor in Hep A and B. Hep C (which has no vaccine but recently is treatable) is transmitted through blood but can be “sexually transmitted” among MSM. Hep C can also be transmitted through injected drug use which a significant subset of MSM engage in. (Fisting, which increases the risk for Hep C, was not brought up by either Rosen or Loutfy, though she did mention “higher risk sexual activity” in passing.)

Rosen asked Dr. Loutfy: In general, are MSM are at high risk for acquiring the diseases named in the flyer, with the exception of the parasitical diseases?

She explained that in her written report, she agrees on gonorrhea and syphilis, HPV, and anal cancer. But she again emphasized that for chlamydia, “women are at increased risk.” (It was still not clear why that was relevant, or whether or not she believes MSM are at greater risk than other men.) She disagreed on Hep A, B, and C. She doesn’t see the named parasitical diseases in her practice. For giardia, MSM are at risk but it’s not that common. Herpes affects all individuals. “So for the [flyer’s] comment in its entirety, I’d say no, it’s not accurate.”

Rosen responded, “So it’s a problem of semantics.” (The Judge cut him off.)

The prosecutor ended the morning testimony with a few questions. He asked Dr. Loutfy to clarify that the flyer does not include the three most common opportunistic infections for a weakened immune system seen among MSM: pneumonia, meningitis, toxoplasmosis. The doctor noted that the medical profession is moving away from the distinction high risk vs. low risk. She claimed condom use can make MSM sex 100% safe. She downplayed the side effects of ART. (The prosecutor used the word "homosexual" and Dr. Loutfy did not correct him.)

We believe that the net effect of Rosen’s in-depth review of the medical literature supports the information in Whatcott’s flyer. This is especially true given that Whatcott exhibited a layman’s reasonable understanding of the medical literature. The expert witness, Dr. Loutfy, hemmed and hawed in her effort to minimize the fact that MSM are at higher risk for serious disease, especially compared to other men.