ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-30000032-00AP

DATE: 20140714

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JI HUA SI

Megan Petrie, for the Crown Respondent

Ronald Lachmansingh, for the Appellant Si

HEARD: March 24, 2014

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4 of the Criminal Code relating to the identity of the complainant.

M.A. Code J.

reasons for judgment

A. OVERVIEW

[1] The Appellant Ji Hua Si (hereinafter, Si) was charged with one count of sexual assault against H.M.Z. (hereinafter Ms. Z.). The offence was alleged to have taken place in May 2009. The Crown proceeded summarily in the Ontario Court of Justice. On December 14, 2012, after a four day trial, Marin J. acquitted Si of sexual assault but convicted him of the lesser included offence of assault simpliciter. On February 15, 2013, sentence was suspended and Si was placed on probation for two years.

[2] Si appealed to this Court against both conviction and sentence. He argued six grounds of appeal. First, he submitted that Marin J. erred in her rulings on two pre-trial Motions, one concerning s. 11(b) of the Charter of Rights and the other concerning the admissibility of “similar fact” evidence. Second, he submitted that Marin J. erred in two rulings made during the trial, one concerning the admissibility of prior statements made by two Crown witnesses and one concerning Si’s need for full reasons on the “similar fact” ruling, before deciding whether he would call a defence. Third, he submitted that the verdict was unreasonable. Finally, he submitted that Marin J. erred in suspending sentence rather than granting a conditional discharge.

[3] I heard the appeal on March 24, 2014 and reserved judgment. These are my reasons for judgment.

B. SUMMARY OF THE FACTS AND THE JUDGMENT AT TRIAL

[4] The particular facts relevant to the six grounds of appeal will be set out below, when addressing each of those discrete arguments. By way of summary of the evidence heard at trial, Si was a seminary student and pastor-in-training at a church in Scarborough. The pastor at the church was Pastor Zhang.

[5] It was alleged that Si had committed a prior assault against one of the female parishioners, X. D. (hereinafter Ms. D.), in August 2007. This was almost two years before the offence charged. The prior assault occurred while Si was ostensibly helping Ms. D. to meditate. It involved Ms. D. squatting while Si placed his crotch on top of her head and applied pressure. Ms. D. complained to Pastor Zhang, who proceeded to meet with Si and inquire into the matter. Si explained to Pastor Zhang that he used this technique in order to simulate the wind and to help Ms. D. urgently “get away from this pressure and also to lead her to remember how her contact with the boyfriend in China … was just … a feeling”. Evidence concerning this prior incident was called by the Crown at trial as “similar fact” evidence, in relation to the subsequent sexual assault alleged by Ms. Z. Pastor Zhang testified at trial that he warned Si that the incident involving Ms. D. was inappropriate and “totally wrong”. Si agreed at the time that it was “inappropriate” and he apologized to Ms. D. Neither Ms. D. nor Pastor Zhang reported the incident to the police at that time.

[6] Almost two years later, in May 2009, the incident with the complainant Ms. Z. occurred. She was also a female parishioner at the church and she met with Si in order to ask questions and obtain help concerning her faith and concerning pre-marital sex. After discussing these issues, Si had Ms. Z. prostrate in prayer on the floor, with her eyes closed, and he pressed his genital area against her head four times. Ms. Z. reported the incident to Pastor Zhang. Once again, he inquired into the matter and met with Si who admitted that “when she was prostrated in prayers … I put her under my crotch”. He also admitted that he put “some pressure on her body”, in order to help her understand the evil and shame of her sins. Si acknowledged to Pastor Zhang that his conduct was “inappropriate”. Pastor Zhang prohibited Si from returning to the church and he reported both incidents to the police. Charges were laid in relation to both incidents, although the Crown only proceeded with the second incident, that is, the one involving Ms. Z.

[7] It can be seen that identity was not an issue in this case. Si admitted the broad substance of the two incidents to Pastor Zhang, both orally when they met and in written statements that Pastor Zhang requested. Pastor Zhang testified at the trial and Si’s oral and written admissions to him were tendered in evidence at the instance of the Crown.

[8] Given that some kind of inappropriate incident was acknowledged, in the case of both Ms. D. and Ms. Z., the main issue at trial was whether the incident charged, involving Ms. Z., was objectively sexual in nature. Issues relating to consent and intent were also raised. Counsel for Si submitted that the incidents were religious exorcisms and that any touching was accidental, or that there was consent to this form of spiritual touching, or that there was mistake of fact as to consent. The defence strongly attacked the credibility and reliability of Ms. Z.’s account.

[9] No defence evidence was called at trial.

[10] Marin J. reserved judgment at the end of the four day trial and delivered thorough written Reasons for Judgment one month later, on December 14, 2012. Her Reasons made many detailed references to the Transcript of trial evidence and to the Exhibits. Marin J. had ruled the “similar fact” evidence admissible, in a short oral ruling at the end of the Crown’s case. She provided detailed reasons for this oral ruling in her written Reasons for Judgment. She went on to note certain “troubling” aspects relating to Ms. Z.’s credibility and reliability but concluded that Si’s admission to Pastor Zhang was consistent with Ms. Z.’s account of the incident and that the “similar fact” evidence was “so bizarre and repugnant that coincidence is beyond improbable”. In all these circumstances, Marin J. held that the complainant was generally credible and reliable and that the Crown had proved intentional touching in the manner described by Ms. Z.

[11] Nevertheless, Marin J. had a reasonable doubt as to whether the touching was objectively sexual. She noted, in this regard, that Si was consistent in his explanations of both incidents, to the effect that he was merely “simulating pressure” as part of a religious practice or exercise. Finally, Marin J. concluded that there was “no admissible evidence” of consent, or honest belief in consent, to a religious exorcism that would involve Si placing “his crotch on her head as part of a ritual to cast out her demons”. There had been no prior discussion or mention of any such practice, before Si began touching the complainant, and Si did not suggest that there had been any such prior discussion in the subsequent explanations that he provided to Pastor Zhang. In all these circumstances, as noted previously, Marin J. acquitted Si of sexual assault but convicted him of assault simpliciter.

C. THE SECTION 11(B) CHARTER ARGUMENT

[12] In my view, the ground of appeal alleging a violation of s. 11(b) of the Charter of Rights is without merit. The trial before Marin J. was Si’s second trial. At his first trial, Borenstein J. had granted a s. 24(1) stay of proceedings based on his finding that Si’s s. 11(b) right to trial within a reasonable time had been violated. There had been total delay of seventeen and a half months, at the time of the first trial, and Borenstein J. held that eleven and a half months was systemic delay. He also found some actual prejudice to Si’s s. 11(b) interests. As a result, he stayed the proceedings.

[13] The Crown successfully appealed. Kelly J. of this Court set aside the stay and ordered a retrial, finding that the actual amount of systemic delay was nine and a half months. Even this calculation, on appeal, was generous to the Appellant as it included one month of delay that was required in order to schedule a judicial pre-trial. More recent authorities have been clear that this kind of delay is part of the inherent time requirements of the case, that it is not systemic delay, and that it carries neutral weight in the s. 11(b) calculus. See: R. v. Khan (2011), 2011 ONCA 173, 270 C.C.C. (3d) 1 at paras 44-55 (Ont. C.A.); R. v Tran et al (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177 at para. 34 (Ont. C.A.); R. v. Nguyen (2013), 2013 ONCA 169, 2 C.R. (7th) 70 at paras. 53-60 and 72 (Ont. C.A.). I am satisfied that the only period of unreasonable delay, at the time of the first trial, was eight and a half months of systemic delay.

[14] Furthermore, it is significant that defence counsel had not raised any issue concerning s. 11(b) delay, when scheduling the first trial. Borenstein J. found that “defence counsel served a voluminous s. 11(b) application the night before trial”, that the “late filing of the s. 11(b) application derailed this trial and most of the delay [after the first trial date] was caused by that fact”, and that “the manner in which [Si] brought the s. 11(b) application virtually assured further delay in this case … [and] raises the question of whether he was concerned about the delay in this case or was suffering prejudice, as he now claims”. In determining whether counsel’s conduct, in delaying the first trial, can be attributed to the client, see R. v. Kugathasan, (2012), 2012 ONCA 545, 297 O.A.C. 314 (C.A.). Kelly J. agreed with Borenstein J.’s finding that there was, nevertheless, some prejudice to Si’s “security of the person” interests, due to “stress and anxiety while awaiting trial”.

[15] Given the above record, I am satisfied that there was no proper basis for finding any violation of s. 11(b) of the Charter at the time of the first trial. The argument at the second trial before Marin J., and before me on appeal, focused on two periods of delay that relate exclusively to the second trial. Kelly J. released her written Reasons for Judgment, ordering a re-trial, on March 19, 2012 (which was one week after the hearing of the appeal). In the concluding paragraph of her Reasons, she gave the parties thirty days to appear back in the Ontario Court of Justice. The Crown proceeded expeditiously and had the Information before Downes J. on April 3, 2012, that is, within two weeks. Si also proceeded expeditiously and he had counsel appear in Court that same day, ready to set a date for trial. Counsel for the parties agreed that four days was required for the re-trial and Downes J. set November 5, 7, 8 and 9, 2012 as the new trial dates. He also set July 31, 2012 as the date for Si’s renewed s. 11(b) Application, which counsel had announced when setting the new trial date.

[16] Marin J. heard the renewed s. 11(b) Application on the scheduled date, well in advance of the trial, and dismissed it that same day in a brief oral ruling. She then provided thorough written Reasons for Judgment on September 19, 2012. Counsel for Si took the position before Marin J., and before me, that there were only two periods of delay relating to the second trial and they should both be characterized as either Crown delay or systemic delay. The first period is the two weeks from March 19 to April 3, 2012. Counsel submitted that it was delay caused by the Crown’s failure to have the Information back in the Ontario Court of Justice on an earlier date. Defence counsel had notified the Crown that he was available to appear in court as early as March 22, 2012, that is, three days after release of Kelly J.’s judgment on appeal. Counsel submitted that the second period of delay, from the April 3 set date appearance before Downes J. to the November 5, 2012 trial date, was caused by the Court’s failure to provide earlier trial dates. Defence counsel had advised Downes J. that he had available dates “in each of the months leading up to trial”, beginning on April 4, and that he was “ready for trial”.

[17] Marin J. held that an initial intake period, following a successful appeal, is part of the inherent time requirements of the case. See: R. v. Konnifis, [1996] O.J. No. 3961 at para. 15 (S.C.J.). Like Kelly J., she would have allowed about a month, in the particular circumstances of this case, to get the matter back before the trial court ready to set a date for trial. The staff of the two separate courts needed time to transfer the trial exhibits and the Information back to the Ontario Court of Justice. The Crown had to determine the availability of its witnesses, prior to setting a trial date. The Crown also had to determine which witnesses would need interpreters. Counsel for both parties needed to confer with each other, in order to determine whether any admissions would shorten the time needed for a second trial or whether some evidence from the first trial could be tendered in the form of a transcript. Finally, both counsel needed to determine whether any pre-trial Motions would be brought at the second trial, thus requiring additional court time. These are all inherent time requirements of the case that would easily justify some period of neutral or necessary delay. I agree with Marin J. that none of the initial two week period of delay is unreasonable.

[18] As to the second period of delay, which is seven months, Mr. Lachmansingh (counsel for Si) took the same position before Marin J. that he had taken before Downes J., when setting a date for trial. As Marin J. put it:

“Counsel for the Applicant submits that he did not require any time to clear his calendar or to prepare for the retrial. He asserted his immediate availability for trial commencing the day after the first appearance date on April 3, 2012.”

[19] Marin J. did not accept counsel’s position. She held that, in a case of this nature, “the applicant required some preparation time between the setting of the date and the trial itself, despite assertions to the contrary”. She also held that the Crown required some time to prepare its “similar fact” application and some time to interview and prepare its witnesses for testifying. She allowed one month of neutral or necessary delay for all these purposes, as part of the inherent time requirements of the case. This left six months of systemic delay, caused by the court, when setting a date for the re-trial.

[20] In my view, Mr. Lachmansingh should never have made the submissions that he made concerning his “immediate availability”. They were either irresponsible or disingenuous. In R. v. Lahiry et al (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525 at para. 33 (S.C.J.), it was stated that:

“… counsel are frank and forthright and they state when they are available. As officers of the Court, counsel have always acted with integrity, in my experience, in stating when they are actually ready and available to conduct the trial. It would be a very serious violation of counsel’s ethical duties if the Court was ever misled on this point.”

[21] In the present case, it is apparent from the record that Mr. Lachmansingh was not immediately ready to commence the trial on April 4, 2012, contrary to what he told Downes J. when appearing to set a date on April 3, 2012. In the first place, his s. 11(b) Application Record and Factum had not been prepared or filed. One essential transcript was ordered by counsel on April 11, 2012 and it was certified by the Court Reporter on April 26, 2012. The s. 11(b) Notice of Application was dated July 11, 2012. The Applicant Si’s twenty-three page s. 11(b) Affidavit was prepared and sworn on July 12, 2012. It attached sixteen documentary exhibits. Counsel’s seven page s. 11(b) Affidavit was also prepared and sworn on July 12, 2012. It too attached a number of documentary exhibits. Counsel then prepared and swore a two page supplementary s. 11(b) Affidavit on July 13, 2012. By the time all these documents had been prepared, the thirty day filing period required by the Criminal Proceedings Rules had elapsed and counsel had to seek an abridgement of the Rules, in order to have the s. 11(b) Application heard as scheduled on July 31, 2012. In addition, when the Crown filed its “similar fact” Application on September 24, 2012, more than thirty days in advance of the trial date and in compliance with the Rules, the defence needed six weeks to prepare its response dated November 4, 2012. In other words, the defence response was filed on the day before the November 5, 2012 trial date, once again, in violation of the Rules.

[22] When I confronted Mr. Lachmansingh with the above facts, during oral argument of the appeal, he conceded that the s. 11(b) Application had not been prepared by April 4, 2012, when he claimed to be ready to proceed with the trial. Indeed, he advised me that counsel for Si were still considering whether to bring the s. 11(b) Application, at the time of the set date appearance before Downes J. In my view, and just like any responsible counsel, it is apparent that Si’s lawyers needed time to do the necessary factual and legal preparation of a constitutional motion, and then they needed some further time to reflect on whether it had sufficient merit to justify filing it and arguing it in court. These essential aspects of preparing a case for trial are all part of its inherent time requirements. Marin J. was overly generous to Si, in my view, in allocating only one month for preparation time. The defence alone required at least one month to prepare its s. 11(b) Application and to respond to the “similar fact” Motion. The Crown also required time to respond to the s. 11(b) Application and to prepare its own case. I would have allocated at least two months as neutral preparation time, and perhaps more, based on the record in this particular case. See: R. v. Thomas, 2011 ONSC 7005 at paras. 65-68, per. MacDonnell J.

[23] The Applicant Si was cross-examined at length on his sworn assertions of actual prejudice to his s. 11(b) interests, especially during the seven and a half month post-appeal period. All of Si’s previous bail conditions had been removed by this stage of the proceedings. Marin J. carefully analyzed Si’s claim of prejudice to his “security of person”, in particular, his assertion that his health had recently deteriorated in a dramatic fashion. She concluded that his claims were “greatly exaggerated” and “insincere” and that he was “embellishing the impacts of delay upon his health”. In the result, she found that “actual prejudice … is of a very limited nature in the post-appeal stage”. None of these factual findings concerning prejudice have been challenged on appeal.

[24] In her conclusion, Marin J. noted that the total systemic delay of fifteen and a half months (nine and a half months at the first trial and six months at the second trial) was less than in many of the reported cases dealing with re-trials. She also noted that the justice system gave the case priority and expedited the re-trial, as required by the governing authorities. Given the strong societal interest in trying sexual assault cases on the merits, given the length of the systemic delay in this case, and given the state of the record concerning prejudice, Marin J. concluded that there was no s. 11(b) violation at the time of the re-trial. See: R. v. Potvin (1993), 83 C.C.C (3d) 97 (S.C.C); R. v. Yakymiw (1993), 68 O.A.C. 237 (C.A.); R. v. Follows [2013] O.J. No. 5790 (S.C.J.); R. v. Konnafis, supra; R. v. Spencer, 2004 ONCJ 416; R. v. Brown, 2005 ONCJ 310; R. v. Giroux, 2006 ONCJ 90.

[25] I am satisfied that Marin J. made no legal error in her analysis of the s. 11(b) Application. Indeed, as already noted, her assessment of the length of systemic delay prior to the re-trial was generous to the Appellant. In addition, her factual findings concerning prejudice disclose no palpable or over-riding factual error. In short, I agree with Marin J.’s conclusion that there was no violation of s. 11(b) of the Charter in this case. See: R. v. Schertzer et al (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at para. 71 (Ont. C.A.). Accordingly, this ground of appeal cannot succeed.

D. THE SIMILAR FACT RULING

[26] The trial judge’s ruling, admitting “similar fact” evidence, is entitled to a “high degree of deference”. It involves balancing or weighing probative worth against prejudicial effect, in the context of the issues at trial, and it can only be reversed if there is legal error, an unreasonable finding of fact, or misapprehension of the evidence. See: R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 at para. 73 (S.C.C.); R. v. James (2006), 2006 33664 (ON CA), 213 C.C.C. (3d) 235 at para. 33 (Ont. C.A.); R. v. Cresswell, 2009 ONCA 95, [2009] O.J. No. 363 at para. 7 (C.A.).

[27] In my view, the Appellant Si’s arguments on appeal simply repeat arguments made at trial, when challenging the admissibility of the “similar fact” evidence. Marin J.’s careful reasons do not disclose any legal error, unreasonable findings, or misapprehension of the evidence. She set out the applicable legal framework correctly, derived from R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.) and R. v. Shearing, supra. She found that the Crown had negatived collusion between Ms. Z. and Ms. D., on a balance of probabilities, given their completely independent complaints to Pastor Zhang. She found that the evidence was “probative of the actus reus” and was “highly probative of the defendant’s state of mind”, given that both incidents shared “distinctive features consisting of allegations of squatting on the head of a submissive woman in circumstances of spiritualism and trust”. She found that any prejudice was minimized by the fact that neither incident was more inflammatory than the other, it was a judge alone trial, and there was little time consumption or distraction from the central issue. In relation to this latter point, Ms. D.’s “similar fact” evidence was admitted in the form of a transcript from the first trial. Marin J. then concluded that the “highly cogent” evidence of the incident involving Ms. D., with its “minimized” prejudice, was admissible.

[28] The Appellant submits that Ms. D.’s “similar fact” evidence was “completely dissimilar” from the complainant’s evidence, that it simply bolstered Ms. Z.’s credibility, that it was the product of collusion, and that there was weakness in the Crown’s proof that the “similar fact” incident even occurred. None of these four arguments has any merit, in my view. As to the first two points, the trial judge listed the substantial similarities between the two incidents, while acknowledging that minor differences existed on points of detail. She stressed, in this regard, that identity was not in issue and that the relevance of the evidence was to proof of actus reus and mens rea. I am satisfied that the evidence had real probative value in relation to these issues. I agree with the trial judge that the evidence of the two incidents indicated that Si “had a propensity to intentionally touch women in a distinctive way for a sexual purpose during the course of providing individualized spiritual guidance”. In addition, Pastor Zhang’s reprimand and Si’s apology, after the 2007 incident with Ms. D., had considerable probative value in relation to any defence claim of honest belief in consent at the time of the 2009 incident with Ms. Z. In short, this was not evidence of some general propensity, based on dissimilar incidents, that merely bolstered credibility through impermissible reasoning.

[29] The Appellant’s argument concerning collusion is equally without merit. Ms. D. and Ms. Z. admittedly met at church and had lunch together, on one occasion, after Pastor Zhang had told the congregation that there had been two complaints concerning Si, without disclosing any of the details. It was also admitted that at their lunch meeting Ms. Z. told Ms. D. some of the details relating to the incident involving Si and her. Ms. D. was more circumspect, simply saying that her incident with Si was something similar, without disclosing the details. What is critically important is that this admitted opportunity for collusion occurred after both Ms. D. and Ms. Z. had independently disclosed to Pastor Zhang and after they had both provided Pastor Zhang with written accounts of the two separate incidents. The defence was able to show that Ms. D.’s account evolved somewhat, in that it became more detailed, after her lunch meeting with Ms. Z. The trial judge addressed the issue concerning these more recently disclosed details and found that they were explained by Ms. D.’s natural reticence and embarrassment, when she initially reported the matter to Pastor Zhang. The trial judge also noted that the added details did not make Ms. D.’s account more similar to Ms. Z.’s account. The trial judge concluded on the issue of collusion:

“In my view, there is no air or reality to the complaint of collusion. Even if there were, I am satisfied on all the evidence that the Crown has proved on a balance of probabilities that Ms. D.’s testimony was not the product of collusion, innocent or otherwise.

Both women in their initial complaints to their pastor describe the defendant essentially sitting on their heads while their eyes were closed and each was in a submissive position to him. The conduct complained of is distinctive and unusual. Each complaint was made independently, before either woman was aware of the other’s existence or another complaint ... Although the luncheon discussion provided Ms. D. with the opportunity to tailor her account to conform to details she learned from the complainant, I am satisfied that she did not do so.” [Emphasis added.]

[30] The above reasoning, in my view, is entirely consistent with the principles set out in R. v. Handy, supra at para. 111, and in R. v. Shearing, supra at paras. 44-5, concerning the trial judge’s role as “gatekeeper” when evidence of potential collusion arises.

[31] The Appellant’s final argument is that there was a lack of proof as to whether the “similar act” even occurred. This submission cannot be sustained. As noted previously, the Appellant Si admitted to Pastor Zhang that Ms. D. had “squatted down”, that he then crossed “on top of her head back and forth”, that he applied “some pressure”, and that it was “inappropriate behaviour”. He then wrote a letter of apology to Ms. D., admitting his “very inappropriate behaviour” and “confessing my sins”. Pastor Zhang testified that Si specifically admitted to “using his private parts to touch … inappropriately”. In these circumstances, there was substantial proof of the “similar fact” incident, in addition to Ms. D.’s own evidence. Indeed, Ms. D.’s evidence, on its own, was likely sufficient to satisfy this one consideration relating to the admissibility of “similar fact” evidence. See: R. v. Handy, supra at paras. 133-5.

[32] For all these reasons, the ground of appeal concerning the admissibility of “similar fac