ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-0330
DATE: 2015/11/16

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL NORRIS

Peter Barnes, for the Crown

Paul Lewandowski, for the Accused

HEARD: October 19 to 23 and 26 to 30, 2015

RULING ON an application to admit similar fact evidence

C. mckinnon j.

Overview

[1] The accused is charged with sexually assaulting five individuals: H.S., A.R., B.W., D.A. and A.R.-D. The alleged assaults occurred during therapy sessions in the context of a therapist-patient relationship.

[2] The Crown seeks to adduce similar fact evidence to apply across the five counts in the indictment. The application was made at the completion of the Crown’s case. Argument was made in writing following the hearing of the evidence.

The Facts

[3] The accused, Michael Norris, is an unlicensed therapist working out of his home in Golden Lake, Ontario. Mr. Norris offered “Cranio-Sacral” therapy (a treatment that focuses on the head and spinal cord), “lymphatic drainage” therapy, “visceral manipulation” therapy, foot reflexology and his own therapy, which included, for want of better description, “orgasm technique” therapy.

[4] Between 2008 and 2013 a number of women complained to the police that Mr. Norris had sexually assaulted them during therapy. Briefly stated, the five complainants testified to the following:

H.S.:

• She is a mature adult who was suffering from chronic pain.
• She attended at Mr. Norris’s home in late 2008 for Cranio-Sacral treatment.
• She was wearing loose yoga pants, which she was asked to remove, as well as her top, leaving her in her bra and panties.
• Mr. Norris remained in the area while she removed her clothing.
• During the session Mr. Norris placed his fingers between her breasts and stated “Woo”.
• Over her stated objections Mr. Norris touched her vagina and clitoris, accessing the area by reaching beneath her underwear.
• Mr. Norris sniffed and licked his fingers after touching her vagina.
• H.S. did not return for any further treatment.

A.R.:

• She is a mature adult who was suffering from severe migraine headaches.
• She attended for a Cranio-Sacral treatment at Mr. Norris’s home in April 2009.
• Mr. Norris had his hands under her bra and cupped her breasts in a manner that A.R. believed to be sexual rather than therapeutic.
• Mr. Norris asked her to take off her pants and her underwear and she refused. When she refused, he advised her that the treatment to her legs would not be successful.
• A.R. did not return for any further treatment.

B.W.:

• She is a mature adult who was suffering from back spasms.
• She attended Mr. Norris’s home in July or August of 2009 for a Cranio-Sacral treatment.
• Mr. Norris asked her to take off her pants and top and asked whether she minded if he stayed while she did that.
• He made comments about her breasts “trying to come out of her bra”. During a particular manipulation he pressed down very hard on both of her breasts.
• Mr. Norris touched her tailbone near her anus.
• Mr. Norris touched her pubic area, along the pubic hairline.
• Mr. Norris mentioned a particular “orgasm technique” involving him touching her fingers, which she declined.
• B.W. did not return for any further treatment.

D.A.:

• She is a mature adult who was suffering from rheumatoid arthritis pain.
• Mr. Norris attended her home to provide her with a Cranio-Sacral treatment.
• D.A.’s friend A.M. was present to learn about Cranio-Sacral therapy from Mr. Norris.
• D.A. was asked to take off her clothing except for her bra and panties.
• A.M. kept offering to cover-up D.A. but Mr. Norris would refuse.
• Mr. Norris touched D.A.’s breasts over her bra.
• Mr. Norris touched her pubic hair.
• Mr. Norris inserted his hand under her underwear and manipulated her labia on two occasions.
• Mr. Norris then smelled his hand and rubbed his hand through his hair.
• Mr. Norris’s hand was very close to her rectum.
• An “orgasm technique” that involved his touching her fingers was recounted to D.A. by A.M., who had learned of it from Mr. Norris at the therapy session.
• D.A. did not seek further treatment from Mr. Norris.

A.R.-D.:

• She is a mature adult who was suffering from chronic headaches.
• She attended for Cranio-Sacral treatments on three occasions at Mr. Norris’s home during June and July of 2010.
• On the third visit Mr. Norris asked her to close her eyes and when she opened her eyes Mr. Norris’s erect penis was close to her face.
• Mr. Norris asked her to put her mouth on his penis and she said “no”.
• Mr. Norris put his erect penis between her feet and masturbated.
• Mr. Norris touched the outside of her breasts.
• Mr. Norris told her that her breasts looked “perkier” after the treatment.
• A.R.-D. did not return for any further treatment.

Evidence of Possible Collusion

B.T.

[5] B.T. is a registered massage therapist licensed to practice by the College of Massage Therapists of Ontario. He is highly trained and began his practice in October of 1995 in Barry’s Bay, Ontario. He practices in a private clinic with a number of other therapists, including chiropractors and massage therapists, and he also works in palliative care with a number of nursing homes and a hospital. B.T.’s spouse, G.J., who suffers from nerve damage, had heard of Mr. Norris through the grapevine and made an appointment to see him for Cranio-Sacral treatment on May 20, 2008. B.T. accompanied her to the treatment session.

[6] During the therapy session Mr. Norris suggested that G.J. should pretend that his fingers were a penis and that she should stroke it so that pleasing her husband would “no longer be a chore”. She said that she did not wish to stroke his fingers. He then proposed an “orgasm technique” whereby he would count from five to zero in the palm of her hand after which she would have an orgasm.

[7] B.T. testified that he was “stunned, genuinely surprised and disturbed” by this, and that following G.J.’s session, he and G.J. wrote a letter to Mr. Norris, dated May 22, 2008. They subsequently met with him and discussed appropriate boundaries during the course of therapy. Mr. Norris was given a book setting out the ethical constraints on therapists.

[8] B.T. testified that he did not know A. R. or A.R.-D. He has known H.S. but only by the name “D.D.S.” for approximately 40 years. He testified that he has known B.W. for approximately 40 years but that his contact with her was infrequent. He testified that he recollected having a conversation on the street with B.W. and stated that he knew B.W. had previously had a bad experience with Mr. Norris, but that he knew none of the details. He acknowledged that B.W. seemed to be aware that G.J. had also had a bad experience with Mr. Norris but he did not know how B.W. had received the information.

[9] B.T. testified that he had not received any details of the experiences that any of the complainants have had with Mr. Norris and that he would never wish to violate their privacy by prying into such details, nor breach any confidentiality by transmitting to a third party any information that he had received about any alleged sexual assault. He testified that he did not exchange any information as to what happened to B.W. or G.J.

[10] In cross-examination he acknowledged that he probably did encourage B.W. to report her dealings with Mr. Norris to the police. He did not recall the date of his encounter with B.W. on the street in Killaloe, but stated that as at that date, neither he nor B.W. had seen each other “for quite a while”.

[11] He testified that he recalled receiving a phone call from a woman who was clearly in distress and that he now believes that the caller may have been D.A. He did not share any details of G.J.’s experience with this person and does not know how she came to contact him.

[12] He testified that he was the founder and past president of Co-operative Policing in the Killaloe Area (COPKA). Sexual complaints were never discussed at COPKA meetings as they did not relate to COPKA’s mandate, which was to address and improve policing practices in the Killaloe area when the need arose.

[13] B.T. testified that while he knew “D.D.S.” he never discussed the matter with her and does not know the details of her complaint.

[14] He testified that M.K., a colleague who practices acupuncture in the same area, told him that two of her female clients had reported to her that they had bad experiences with Mr. Norris, but that M.K. did not provide him with names or details of the complaints.

H.S.

[15] H.S. saw Mr. Norris on August 24, 2008. She first complained of her treatment on February 23, 2009, to Detective Constable Sue Norris-MacInnis. H.S. testified that she did provide some details of her experience with Mr. Norris to other health care professionals that she was seeing in the period between the time she attended for treatment and the date she reported the matter to the police. She contacted the Sexual Assault Crisis Centre and shared some details of Mr. Norris’s conduct with a woman from the Centre. She received advice that it was a sexual assault and that she should contact the police. Thereafter she provided details of Mr. Norris’s conduct to Detective Constable Sue Norris-MacInnis. However, she decided that she did not wish that a criminal charge be laid against Mr. Norris because she did not want to testify as a witness and felt that she did not want to add any further stress to her life at that point in time.

[16] She followed up her complaint to Detective Constable Norris-MacInnis by contacting G.J. of COPKA because she believed that it might be a matter of interest to COPKA and that this would provide her with closure. At the time she spoke with G.J., G.J. advised her that B.T. and G.J. had provided Mr. Norris with educational information as to appropriate and inappropriate protocols when providing treatment to clients. H.S. testified that she had no discussions with B.T. about this matter and no further discussions with G.J. or anyone at COPKA. She did not provide details of her complaint to G.J. H.S. further testified that she did not know any of the other complainants.

A.R.

[17] A.R. was treated on April 29, 2009. Immediately following the treatment, she advised her best friend N.O.M. of the details of her complaint on her cellphone while driving home from the treatment with Mr. Norris. The complainant D.A. is N.O.M.’s mother-in-law. A.R. knows D.A. However, she testified that she did not speak to D.A. about what had happened to her during her treatment until December 2013. She testified that she shared no details with D.A.

[18] A.R. testified that she knew B.W. as A.R. was a customer in the store in Cobden where B.W. worked. She testified that neither she nor B.W. had shared with each other any details of their dealings with Mr. Norris. She testified that she first realized that B.W. was a complainant in the case when they both arrived to testify at the preliminary inquiry in May 2014. She testified that neither she nor B.W. discussed their evidence with each other prior to testifying at the preliminary hearing and that they have had no discussions since. She testified that with the exception of D.A. and B.W. she does not know any of the other complainants in the case, nor does she know B.T. or G.J.

B.W.

[19] B.W. saw Mr. Norris on July 29, 2009. She first provided a detailed account of her complaint on August 7, 2009, to Detective Constable Sue Norris-MacInnis. The statement was videotaped. She testified that following her treatment from Mr. Norris, she told her employer at the store in Cobden where she was employed that she had been to see Mr. Norris for treatment. She made no negative comments about Mr. Norris on that occasion. Her employer told her that she saw a therapist named P.L. B.W. assumed that her employer must have mentioned to P.L. that B.W. had been treated by Mr. Norris. Her employer returned from an appointment with P.L. with the information that P.L. had advised that there had been a meeting of licensed therapists and that there was a concern raised about Mr. Norris treating patients inappropriately and that B.W. should consider contacting B.T.

[20] B.W. testified that at that point she “had not fully processed” what had happened to her, and wanted to be certain about her negative feelings. She subsequently spoke to B.T. but did not provide him with any details of her experience. She recollects bursting into tears during the conversation with B.T. and that the conversation lasted only minutes. She believes that B.T. must have told her that there was a current police investigation going on and asked if she would be willing to speak to the police.

[21] B.W. testified that B.T. may have given her the name of the investigating officer, Detective Constable Sue Norris-MacInnis. She contacted the detective, who was the first person to whom she provided a detailed statement as to what occurred during the treatment session with Mr. Norris. Having given her statement to the police, she was unwilling to become a witness in a criminal prosecution and the matter went no further at that time. However on August 21, 2009, Mr. Norris attended at the store in Cobden where B.W. worked, following which she sent him a registered letter warning him not to contact her again or attend at her place of employment. B.W. also advised her employer not to go with her daughter for treatment to Mr. Norris and also advised her pharmacist not to refer people to Mr. Norris.

[22] During the year 2014, Constable Tamara Dubé received complaints from D.A. and A.R. and reopened the investigation. She contacted B.W. and by this time B.W. was willing to testify as a witness.

[23] She testified that she had not shared the details of her encounter with anyone but Detective Constable Sue Norris-MacInnis. She testified that she did not know A.R.-D. She believes that A.R. may have dropped into the store as a customer but stated that she has not discussed this matter with A.R. and was shocked to see A.R. at the preliminary hearing and realize that she was also a complainant. She does not know any of the other complainants.

[24] B.W. testified that she knows B.T. and has met G.J. She knows that G.J. is the partner of B.T. but did not know her by name before the court proceeding. B.W. testified that she recollects speaking with B.T. outside a hardware store in Killaloe on one occasion and that G.J. was with him. She recollects that B.T. told B.W. that it was too bad that no one would come forward. The meeting occurred after the time when B.W. had provided Detective Constable Norris-MacInnis with a statement detailing her complaint with respect to Mr. Norris.

D.A.

[25] D.A. was treated by Mr. Norris on December 19, 2013. She first provided a detailed account of her complaint on December 20,2013, to her relative, C.S. Both C.S. and D.A. testified that D.A. gave a detailed account of her treatment to C.S. within 24 hours of the treatment. When D.A. spoke to her daughter-in-law, N.O.M., and informed her that she had been assaulted by Mr. Norris, her daughter-in-law informed D.A. that A.R. also had a complaint about Mr. Norris. D.A. believes that she spoke to her daughter-in-law after she spoke to Constable Tamara Dubé but is not certain of that.

[26] D.A. testified that she knows B.T. and G.J. and that she has spoken to them. She informed B.T. that she had been assaulted by Mr. Norris but did not provide details, nor did B.T. provide any details with respect to G.J. He told her that it was a private matter. D.A. then spoke to G.J., who gave her comfort.

[27] D. A. testified that at the time of these phone calls in and around the Christmas period she was drinking heavily and does not recollect specifically when she spoke to which individuals. The sequence is unclear and she is blurry as to the details of the conversations. She recalls giving some details about her treatment to B.T. When she was speaking to G.J. she was inebriated. She was certain, however, that she did not tell any family members until after Christmas because she did not want to ruin their Christmas.

A.R.-D.

[28] A.R.-D.’s third treatment occurred in the latter part of July 2010. She first provided a detailed account of her complaint on March 6, 2014, to Constable Tamara Dubé. She testified that she does not know any of the other complainants in the case or B.T. or G.J. She testified that very shortly after the date of her third visit, she told her co-worker C.G. that something had happened on her last visit with Mr. Norris, without providing details, and that neither he nor his wife should go back to Mr. Norris for any further treatment. Subsequently, she asked C.G. to inform Mr. Norris to never return to the store where she worked. C.G. complied with that request.

[29] Information that Mr. Norris had been charged with a number of counts of sexual assault was communicated through the newspapers on February 20, 2014. A.R.-D. testified that following Mr. Norris’s arrest, she read an account in the newspaper and made full and frank disclosure of what had happened to her to her then boyfriend. She was separated from her husband at the time. She said that her boyfriend was the first person to whom she had ever provided details. She testified that after considering it “for about a month” she decided to contact the investigating officer and provide a statement.

Issues:

1. Do the facts as recounted by the various complainants amount to “similar facts”?
2. If the facts as recounted by the complainants can be characterized as being “similar facts”, is there an air of reality to the defence submission that the complainants colluded so as to make the factual similarities suspect?
3. If there is an air of reality to the possibility of collusion, has the Crown disproved collusion on a balance of probabilities?

The Applicable Law

[30] Evidence of a “similar act” contained in one count of an indictment is presumptively inadmissible for consideration in relation to other counts in the indictment: R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 48 [“MacCormack”].

[31] In order to permit evidence of a “similar act” in one count to be admitted for consideration on another count, the court must be satisfied, on a balance of probabilities, that the probative value of the evidence outweighs its potential prejudicial effect: MacCormack, at para. 48.

[32] In other words, there is a narrow exception to the presumption of inadmissibility where the similar fact evidence is so highly relevant and cogent that its probative value outweighs any potential prejudicial use. Probative value exceeds prejudice where the force of similar circumstances makes coincidence improbable or defies other innocent explanation. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudicial effect and thereby justifies its reception: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 41 and 55 [“Handy”].

[33] In determining probative value the court must consider the issues that the similar fact evidence is probative toward, the identification of similarities and differences between the counts, the strength of the evidence and the possibility of collusion, all of which are then weighed against the prejudicial effect: Handy, at paras. 102-136.

[34] In the case of a similar fact application on a multiple count indictment, the issue to be resolved is whether the evidence regarding other counts has sufficient probative value to support a legitimate chain of reasoning furnishing evidence on any individual count: R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at para. 34.

[35] Where the evidence of similar acts is tendered in support of the fact that the acts occurred rather than to establish the identity of an accused person, it is not an invariable requirement that there be a “striking” peculiarity or unusual distinctiveness underlying the events being compared. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused’s conduct in closely defined circumstances. There need not be a “signature”: Handy, at para. 81.

[36] In cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents. The fact that one complainant was kissed as compared to another being fondled may not have a whole lot of significance; the allegations all pertain to acts of a sexual nature. The fact that one assault occurred in the basement as opposed to the other that occurred in the bedroom may not be of consequence on the question of probative value; the different location may simply be attributable to a different opportunity for privacy: R. v. L.B. (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), at para. 37.

[37] Although the court must not grant a similar fact evidence application where it would result in the admission of evidence whose prejudicial effect exceeds its probative value, the interests of justice also require that relevant evidence whose probative value exceeds its prejudicial effect not be excluded. Justice includes society’s interest in getting to the truth of the charges as well as the interests of both society and the accused in a fair process: Handy, at para. 150.

[38] A trial judge cannot assess “the objective improbability of coincidence” between the events being compared, and thus, the probative value of the evidence, without addressing the issue of whether the apparent “coincidence” is in fact the product of collusion. If collusion is present it destroys the foundation on which admissibility is sought, namely that the events are too similar to be credibly explained by coincidence: Handy, at paras. 104 and 106.

[39] Collusion has been defined as the possibility that complainants, in sharing their history with one another, intentionally or unconsciously change or modify their evidence so that their testimony will seem more similar and thus more convincing. Collusion need not be deliberate and includes complainants sharing the details of what happened, such that the independence of their recollections may be impacted: R. v. Bryan, 2011 ONSC 2447, at para. 141.

[40] In determining whether an air of reality exists as to the possibility of collusion, the trial judge must look beyond evidence of mere opportunity. The communication at issue must concern the sharing of details of the evidence and cannot be mere communication in passing. The issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually best be left to the jury: Handy, at para. 111.

[41] It is not incumbent on the defence to prove collusion. The onus is on the Crown to satisfy the court that there was no improper collusion: Handy, at para. 113.

Application of the Law to the Facts of this Case

Identification of the Issue on which the Proffered Evidence is Probative

[42] In this case the Crown seeks to lead the similar fact evidence to meet the anticipated defences of whether the intimate physical contact described by each complainant was inadvertent in the course of acceptable treatment or whether it was an unlawful sexual assault. It is argued that the similarity of the evidence of the complainants regarding repeated contact with their breasts and vaginal areas rebuts the possibility that the complainants were mistaken as to the sexual character of the acts. The fact that similar incidents occurred involving five different people tends to rebut the possibility that the touching was inadvertent or accidental.

[43] Secondly, the Crown seeks to lead the similar fact evidence to meet the anticipated defence as to whether the acts as described by the complainants happened at all. It is argued that the similarity of the evidence of each of the complainants supports the conclusion that the acts occurred as described by the complainants. It would be an improbable coincidence that five complainants who had not colluded could fabricate evidence that happens to be so similar. It is submitted that the evidence of each complainant is sufficiently similar to render improbable a defence that the acts did not occur.

[44] Put simply, the inference that is sought to be drawn is that since the accused had previously assaulted someone in a very similar fashion, it is likely that the current complainant is being truthful about the nature of the assault in question. The strength of the inference is based on the improbability of coincidence.

[45] The defence, on the other hand, submits that the acts described by the five complainants are insufficiently similar to support a similar fact argument, that the similarities that do exist between the complainants’ evidence support an inference of collusion and that the evidence of A.R.-D. constitutes an aberration that would lead to insurmountable prejudice and propensity reasoning, were her evidence permitted as being similar fact evidence.

Similarities and Differences between the Complainants’ Evidence

[46] The Crown submits the following similarities:

(a) The victims are all middle-aged women.

(b) At the time of the incidents, the women were seeking Cranio-Sacral therapy from Mr. Norris for pain unrelated to their breasts or vaginas, and were not seeking treatment for sexual issues.

(c) The incidents occurred during most of the women’s first and only treatment sessions with Mr. Norris, the exception being A.R.-D. who received three treatments, the offending one being the third.

(d) H.S., B.W. and D.A. were not given privacy to disrobe, nor provided with a cover sheet.

(e) Mr. Norris made inappropriate sexual comments to several of the women, thus importing sexual content into a professional relationship. To D.A. and B.W. he described a technique whereby he rubs a woman’s fingers to bring her to orgasm. Mr. Norris asked A.R.-D. to read books with sexual content. Mr. Norris told A.R.-D. that her breasts looked “perkier” after the treatment.

(f) Mr. Norris sniffed and licked his fingers after touching H.S.’s vagina and he sniffed and rubbed his fingers through his hair after touching D.A.’s labia.

(g) Mr. Norris touched the breasts of all five women.

(h) Mr. Norris touched the vaginal area of three of the women (H.S., B.W. and D.A.).

(i) Mr. Norris touched the anal region of two of the women (B.W. and D.A.).

(j) Mr. Norris