WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

DATE: 20210304 DOCKET: C68031

Doherty, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Shu-Seng Lai Respondent

Counsel: Alexander Alvaro, for the appellant Matthew Gourlay, for the respondent

Heard: February 26, 2021 by video conference

On appeal from the acquittals entered by Justice Nancy M. Mossip of the Superior Court of Justice, dated January 15, 2020, reported at R. v. Lai, 2020 ONSC 231, 2020 ONSC 0231.

REASONS FOR DECISION

[1] The respondent, a practitioner of Traditional Chinese Medicine (“TCM”), was charged with sexually assaulting three clients. The alleged assaults occurred in the course of the respondent’s purported treatment of the complainants. With respect to C.B. and L.B., the defence conceded the relevant touching occurred, but argued it was part of an appropriate TCM treatment referred to in the evidence as “energy work”. With respect to the allegations of S.C., which the defence conceded did not involve conduct which could be described as acceptable TCM treatment, the defence maintained the conduct never occurred.

[2] The appellant did not testify. An expert in TCM did testify, describing the accepted treatments and techniques used in various TCM treatments, including “energy work”. The treatments could include touching and massaging of a client’s chest and touching of the pelvic area, just above the vagina. Touching of the vagina or labia was not part of any accepted treatment. In any event, whatever the treatment, it was essential that the practitioner obtain the client’s consent to any touching.

[3] The trial judge acquitted the respondent on all counts. In doing so, she held that the evidence of each complainant was not admissible as similar fact evidence on the counts involving the other complainants.

[4] The Crown appeals.

[5] The appeal focuses primarily on the trial judge’s treatment of one part of C.B.’s evidence. C.B. testified that during a session involving “energy work”, the respondent rubbed her breasts under her sweater and touched her labia. Shortly afterward, she spoke to the respondent on the telephone. According to C.B., the respondent said he wanted her to come back for another energy treatment and he intended to put his finger in her vagina.

[6] The Crown claimed the statement made by the respondent was evidence rebutting the defence contention that any touching during the prior session involved appropriate treatment. The Crown also argued the statement was a tacit admission of the prior assault and an indication of the respondent’s intention to repeat the assaultive conduct, if afforded the opportunity.

[7] The defence argued, among other things, that C.B.’s evidence concerning the substance of the conversation with the respondent was unreliable and should not be accepted as an accurate account of the conversation.

[8] The trial judge reviewed C.B.’s evidence at length. With respect to her evidence about the phone call with the respondent shortly after the alleged assault, the trial judge concluded, at para. 463:

The evidence as to the phone call and its contents did not assist me one way or the other as to the nature of the touching that occurred on October 9, 2012. I cannot rely on C.B.’s testimony as to what was said on that call and attribute a “guilty mind” to Mr. Lai as suggested by the Crown.

[9] The Crown submits the trial judge erred in law by failing to properly analyze the relevance and probative value of C.B.’s evidence concerning the statement made to her by the respondent during the phone call. The Crown argues the trial judge wrongly limited her consideration of the probative value of the evidence to its potential admissibility as post-offence conduct going to the respondent’s state of mind.

[10] We cannot agree with Crown counsel’s interpretation of the trial judge’s reasons at para. 463. In our view, in that passage the trial judge indicated she was not prepared to accept C.B.’s evidence as to the content of the conversation she had with the respondent. In short, the trial judge could not find the respondent said what C.B. testified he had said during the conversation. Absent a finding the statement was made, there was no basis upon which to go on and consider the inferences that could or could not be drawn from that statement had it been made.

[11] The trial judge gave two reasons for finding that C.B.’s evidence concerning the conversation was unreliable (see paras. 461-62). Both reasons are supported in the evidence.

[12] It was open to the trial judge to come to the conclusion she did in respect of the reliability of C.B.’s evidence. More importantly, for the purposes of this appeal, her determination as to the reliability of that part of C.B.’s evidence did not give rise to any question of law upon which the Crown could appeal to this court. Deciding what evidence to accept as reliable and what evidence to reject as unreliable is an essential first step in the fact-finding process. This evidence failed to clear that first hurdle. The Crown cannot point to any error in law tainting the trial judge’s finding.

[13] The Crown’s second ground of appeal arises out of the trial judge’s similar fact ruling. The Crown candidly acknowledges this ground cannot succeed if the first ground of appeal fails. As we have rejected the first ground, it follows that this ground of appeal fails as well.

[14] The appeal is dismissed.

“Doherty J.A. “David Watt J.A.” “K. van Rensburg J.A.”