Court of Appeal for Ontario

Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 .

Date: 2022-05-03 Docket: C69026

Judges: Doherty, Harvison Young and George JJ.A.

Between: Her Majesty the Queen, Respondent and Shu-Seng Lai, Appellant

Counsel: Matthew R. Gourlay, for the appellant Samuel G. Walker, for the respondent

Heard: April 22, 2022 by video conference

On appeal from the conviction entered on December 4, 2020 by Justice Gisele M. Miller of the Superior Court of Justice, sitting without a jury, with reasons reported at 2020 ONSC 7558.

Reasons for Decision

[1] The appellant, a traditional Chinese medicine practitioner, was charged with sexually assaulting his patient, R.N. He pleaded not guilty, but was found guilty after trial.

[2] The appellant appeals his conviction, advancing these two grounds: 1) The trial judge’s introduction of a path to liability, which differed from the Crown’s theory, rendered his trial unfair; and 2) The verdict was unreasonable.

[3] In February 1992, R.N. scheduled a consultation with the appellant in the hope that he could assist with her low libido. At the appointment, R.N. was directed by the appellant to a treatment room and asked to remove her clothing from the waist down. R.N. complied but asked for something to cover the exposed part of her body. The appellant provided her with a small towel. R.N. testified that the appellant began by wiping her exposed area with something cold and damp and that he then proceeded to insert his fingers into her vagina. R.N. further testified that during the examination the appellant touched her at a spot, and in a way, that aroused her. The examination lasted only a couple of seconds, and when R.N. told the appellant to withdraw his fingers, he did.

[4] After that, the appellant removed the towel from R.N., exposing her genitals. R.N. said that she then heard a snapping sound behind her, which she initially thought was the appellant “flicking” the towel, but when cross-examined conceded that it could have been the sound of him removing gloves from his hands.

[5] R.N. called the police, but no charges were laid. However, 25 years later, in 2017, R.N. learned that the appellant had been charged with sexually assaulting someone else and that the police were requesting information. R.N. once again called the police which led to this charge.

[6] The trial judge divided the appellant’s interaction with R.N. into four distinct categories: 1) touching her exposed body with a damp, cold cloth; 2) the vaginal examination; 3) sexually stimulating R.N. during the vaginal examination; and 4) removing the towel thereby exposing R.N.’s genitals. In the end, the trial judge was not satisfied beyond a reasonable doubt that the appellant’s examination of R.N. was sexual in nature. While she believed R.N., she found that the Crown had failed to establish that the vaginal examination was performed for non-clinical purposes pointing to the appellant’s matter-of-fact demeanour, the setting in which the examination was conducted, the appellant’s immediate withdrawal of his hand when told to do so, and the non-amorous nature of the interaction. She further found that R.N. consented to the vaginal examination and that the consent had not been vitiated by fraud.

[7] In the trial judge’s view, the removal of the towel was different. She found that it was an application of force and done without R.N.’s consent:

I am satisfied beyond a reasonable doubt that [the appellant’s] removal of the towel and exposing R.N.’s genitals, in all of the circumstances, including the clinical setting to that point, objectively violated her sexual integrity. I find beyond a reasonable doubt that the removal of the towel was not part of any legitimate clinical interaction.

[8] It is clear from the record that neither the appellant nor Crown considered the possibility that removing the towel from R.N.’s genitals was the sexual assault charged in the Indictment, at least not until the trial judge steered them there. This theory was advanced by the trial judge only after the evidence was completed and near the end of the Crown’s closing submissions. In fact, before changing course and following the trial judge’s lead, the Crown was crystal clear that the towel incident merely informed the sexual touching. Consider the following exchange between the trial judge and Crown:

Court: Okay. And you haven’t mentioned [the removal of the towel] in your submissions.

Crown: Yes, I should mention that in my submissions. I’m sorry about that. So, the Crown’s position would be that actually informs the sexual touching being sexual in nature, the fact that the towel was removed.

Court: So, I’m asking for your submissions of it independent of what happened.

Crown: Okay. I would submit, I suppose, that that in itself could be a sexual assault, just removing the towel alone, because it violated her sexual integrity at that point. I hadn’t really thought about that until just now, but it certainly could be perceived to be a sexual assault.

[9] Not surprisingly, the appellant’s trial counsel objected arguing that finding her client guilty on a new theory of liability, introduced at that late stage, would be unfair. The trial judge addressed counsel’s concerns, but ultimately dismissed them concluding that, since the one count had not been particularized, and as the towel removal had always been a significant part of R.N.’s description of these events, the defence had a full and fair opportunity to test the evidence.

[10] In rejecting trial counsel’s arguments, the trial judge said:

Counsel for [the appellant] acknowledged that R.N.’s description of the removal of the towel has always been part of her account of the incident. Counsel was not caught by surprise by R.N.’s testimony in that regard. The indictment was not particularized. The details of the removal of the towel were always a significant part of the Crown’s case, relied on by the Crown in support of their argument that all of [the appellant’s] touching of R.N. was sexual in nature.

Counsel for [the appellant] carefully cross-examined R.N. on her account of the towel being removed and indeed got R.N. to agree in cross-examination that the sound she heard after the towel was removed might well have been the sound of gloves being removed rather than the sound of a towel being snapped. In all of the circumstances I am satisfied that counsel for [the appellant] had a full and fair opportunity to test the evidence.

[11] With respect, the trial judge’s conclusions set out above are not supported by the record. The defence, and indeed the Crown, were clearly caught by surprise by the trial judge’s suggestion that the removal of the towel could constitute the actus reus of the sexual assault alleged in the Indictment. It is also inaccurate to suggest that the removal of the towel played a “significant part” in the Crown’s case during the trial. The evidence relevant to the removal of the towel was minimal. There were perhaps five questions asked in-chief on the topic, and only one asked in cross-examination. Finally, there was no basis to suggest that counsel for the appellant at trial “carefully cross-examined” the complainant on her account of the removal of the towel. Counsel asked one question in cross-examination about the towel, and even that one question was not about the appellant removing it.

[12] Nor is the trial judge’s finding that the appellant suffered no prejudice by the introduction of a new theory of liability during argument, supported by the record. The trial judge fell into error by introducing the new theory when she did, in the way she did, and by finding the appellant guilty on that new theory. The appeal must, therefore, be allowed.

[13] We fully appreciate that a trial judge is not tethered to only those theories advanced by the parties: R. v. R.H., 2022 ONCA 69, at paras. 19-20; nor are they confined to the role of a mute, passive observer: R. v. Felderhof (2004), 68 O.R. (3d) 481 (C.A.), at para. 40. We also recognize that defence counsel could have sought to re-open the case and continue her cross-examination of the appellant or call further evidence. That said, “[t]rial fairness considerations may intervene and foreclose consideration of alternative base of liability inconsistent with the way the parties have conducted their respective cases”: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 161. This is one of those cases because, while the Crown did adduce evidence about the towel being removed, it was clear to everyone involved that the fundamental issue, from beginning to end, was whether the vaginal examination was a sexual assault. There was no ambiguity about this. It was understood by all.

[14] We must also reject the Crown’s argument that any potential prejudice to the appellant could have been avoided had counsel applied to reopen the evidence. Reopening the evidence will, in some cases, overcome potential prejudice. In this case, however, the theory of liability introduced by the trial judge at such a late stage was so dramatically different from the basis on which the case had been litigated that it rendered the possibility of reopening the evidence for further cross-examination of the complainant, and perhaps additional evidence, an inadequate and unrealistic remedy.

[15] In the end, the trial judge’s decision to inject this new source of liability transformed the towel removal from something that merely informed the appellant’s conduct, into a basis, standing alone, to ground a finding of guilt.

[16] This was a drastic change, made far too suddenly, and too late in the proceedings. While we have not dealt with the argument about the reasonableness of the verdict based on the removal of the towel, we do observe that the submissions of both counsel on that issue demonstrate the myriad of important evidentiary questions left unanswered on the minimal evidence introduced at trial on that issue.

[17] For the reasons set out above, the appeal is allowed, the conviction is quashed, and a new trial is ordered.

“Doherty J.A.”

“A. Harvison Young J.A.”

“J. George J.A.”