Court File and Parties

COURT FILE NO.: CR-16-1440 DATE: 2017 06 07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Adam Bernstein, for the Crown

• and -

VINCENT LO Nathan Gorham, for the Accused Accused

HEARD: June 6, 2017

REASONS FOR RULING (Admissions at College Hearing)

RESTRICTION ON PUBLICATION

Pursuant to s. 486.4 of the Criminal Code an order has been made prohibiting the publication, broadcast or transmission of any information that could identify the complainants.

COROZA J.

Overview

[1] Mr. Vincent Lo is a former psychologist. He is charged with three counts of sexual assault.

[2] At the time of the allegations he was a practicing psychologist and the three complainants in this case were his patients. One of the complainants, A.M., alleged that Mr. Lo touched him on the shoulders, chest and groin during treatment.

[3] On June 27, 2012, Mr. Lo appeared with legal counsel at a hearing in front of the College of Psychologists. A transcript of those proceedings has been filed. Mr. Lo did not speak at that hearing.

[4] At the hearing an agreed statement of facts (ASF) was filed and read into the record. The agreed facts included:

(a) that throughout treatment, Dr. Lo massaged A.M.'s shoulders; (b) that Dr. Lo touched A.M.'s bare chest and nipple area with his bare hand; (c) during one therapy session in 2002, Dr. Lo placed A.M.'s bare leg on his own and began to massage A.M's bare leg moving up towards the groin area. When A.M. reacted with discomfort, Dr. Lo stopped.

[5] The Crown argues that the admissions made at the disciplinary hearing are admissible in this criminal trial as admissions against interest.

[6] For the reasons that follow, I agree with that position.

Position of the Crown

[7] Mr. Bernstein argues that statements by an accused to people not in authority are presumptively admissible, provided that they are relevant and material. He acknowledges that I retain a discretion to exclude evidence where the probative value is outweighed by its prejudicial effect.

[8] Mr. Bernstein submits that the fact that Mr. Lo was represented by counsel and did not personally make the admission is irrelevant. Counsel points out that counsel at the disciplinary hearing was acting as agent for Mr. Lo. As a result, the submissions and admissions of counsel were the submissions and admissions of Mr. Lo (See R. v. Strand Electric Ltd. (1968), [1969] 1 O.R. 190, at paras.12-13 (C.A.).).

Position of Mr. Lo

[9] Mr. Gorham argues that the Crown cannot establish on a balance of probabilities that Mr. Lo actually admitted the statements. Counsel highlights the following:

• Mr. Lo did not sign the agreed statement of fact.
• Mr. Lo did not say anything at the hearing.
• Mr. Lo's counsel explicitly stated that Mr. Lo was not confirming or denying the allegations of sexual abuse.
• The emails and pre-conference hearing memorandum leading up to the disciplinary hearing suggest that it was never Mr. Lo's intention to admit to the allegations of sexual abuse.

[10] Mr. Lo has testified before me that he did not authorize his lawyer to admit the fact that he touched A.M. in the manner described by the complainant.

[11] Mr. Gorham argues that when I take all of this into account and examine the transcript of proceedings as a whole, I should not be satisfied that Mr. Lo made any admissions against interest. Mr. Gorham further goes on to argue that if the contents of the ASF constitute admissions, Mr. Lo’s legal counsel was acting beyond the scope of her authority and I should not be satisfied that she had the authority to make admissions on behalf of Dr. Lo.

[12] Finally, Mr. Gorham suggests that the probative value of these admissions does not outweigh the prejudicial effect of allowing the jury to consider them.

Analysis

[13] Admissions are presumed truthful and are received as an exception to the hearsay rule as evidence of the truth of their contents: see Justice David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Carswell, 2016) at §27.10.

[14] I agree with Mr. Gorham that a threshold determination must be made that Mr. Lo actually made these admissions. In other words, there must be some basis to support the contention that Mr. Lo actually admitted the allegations of massaging and inappropriate touching at the disciplinary hearing. The Crown, as the party wishing to tender these statements, bears the onus.

[15] This is a crucial issue. If I am satisfied on a balance of probabilities that Mr. Lo was formally admitting certain facts against his interest, then it seems to me that the statements would be presumptively admissible and the jury as the trier of fact should receive them. It would then be for the jury to consider the admissions along with the other evidence to determine innocence or guilt. (See R. v. Evans, [1993] 3 S.C.R. 653; R. v. D. (D.), 2015 ONSC 3667, [2015] O.J. No. 3020, per Fairburn J.).

[16] Much time was spent during oral argument on the interpretation of the ASF that was introduced during the disciplinary proceeding. I have carefully reviewed what was read into the record by the College prosecutor and what was said by Mr. Lo's counsel.

[17] It is clear that the ASF was agreed to by Mr. Lo. The fact that he did not sign the ASF is irrelevant, because I am satisfied that the emails exchanged between Mr. Lo and his legal counsel in the days leading up to the hearing reveal that Mr. Lo knew what was contained in the ASF. In those emails, he was explicitly told that ASF would include A.M's version of events.

[18] In my view, the real question is whether Mr. Lo formally admitted certain facts by proceeding with the ASF at the hearing. I am persuaded by Mr. Bernstein's submissions that Mr. Lo, did, indeed formally admit that he touched A.M. in the manner described.

[19] In law, admissions are either formal or informal. The Honourable Mr. Justice S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds., McWilliams' Canadian Criminal Evidence, 4th ed., loose-leaf (Aurora: The Cartwright Group Ltd., 2008) vol. 1, describes a formal admission as follows, at 22:30:

A formal or judicial admission, agreement that the admitted fact is true, cannot be contradicted by the accused once made without leave of the court to withdraw the admission. "Judicial admissions are not evidence at all ... they are formal concessions ... or stipulations by a party or counsel that have the effect of withdrawing the fact from issue and dispensing wholly with the need for proof of the fact." In other words, a formal admission amounts to conclusive proof of the admitted fact carrying with it a "prohibition of any further dispute of the fact … and of any use of evidence to disprove or contradict it". ….

[20] Informal admissions, on the other hand, are described in McWilliams', at 22:30:

An informal or evidentiary admission of fact, including a prior guilty plea or factual matters expressly admitted by a party may not be conclusive and may be otherwise contradicted or explained in the evidence at trial. Therefore, unlike formal admissions of fact, an informal admission "is merely an item of evidence" available for "self-contradiction" or rebuttal.

[21] Mr. Bernstein in very able submissions argues that it is clear from the transcript that Mr. Lo was "formally admitting" the facts. He submits that the situation in this case is not analogous to an “informal admission” where counsel agree that a witness allegation can be read in and the opposing party does not wish to impeach or contradict the credibility of the witness by other evidence. He points to the following statements made by the prosecutor for the College (at Exhibit F) that demonstrate there was no qualification to the ASF:

Mr. Chair, the facts which I am about to read underpin the allegations of the disgraceful, dishonourable and unprofessional conduct and sexual abuse allegations upon which the College intends to proceed and upon which we will be asking you to make findings.

The statement of agreed facts regarding patient Mr. M. is as follows: The Member, Dr. Vincent Lo, hereby formally admits the following facts… [Emphases added]

[22] Mr. Bernstein also highlights the following statements made by Mr. Lo's counsel when the ASF was read in by the prosecutor:

So we have, as you've seen in the statement of agreed facts, we've got the formal admission of the facts, paragraphs that were numbered…..and if you were to compare those admissions of fact to the allegations, it is our submission, our joint submission, that these facts combined give you a sufficient basis to support the guilty plea for allegation three in the notice of hearing, which is with regard to the disgraceful conduct allegations.

[Emphases added]

[23] I agree with Mr. Bernstein that what is set out in the transcript is plain and obvious. Dr. Lo was admitting to certain facts. However, this does not end the matter. I agree with Mr. Gorham's equally able argument that I should be very cautious in considering these phrases in isolation.

[24] First, Mr. Gorham points out that the prosecutor for the College stated the following after she read in the ASF:

These, Mr. Chair, are the uncontested facts as alleged by the College and agreed to by the Member and upon which, or at least not contested by the Member and upon which the College relies to make out the allegations of both sexual abuse and disgraceful, dishonourable or unprofessional conduct. [Emphases added]

[25] Second, Mr. Gorham highlights the following comments made by Mr. Lo's lawyer after the ASF was read in:

Now, in terms of no contest, what the no contest-the effect of no contest is that Dr. Lo is neither admitting nor denying the allegations of sexual abuse.

[26] Mr. Gorham argues that cumulatively these passages suggest that Mr. Lo's counsel explicitly qualified any purported admissions of fact at the hearing.

[27] I have considered Mr. Gorham's very forceful argument carefully. I am not persuaded by the argument. It seems to me that when I examine the entirety of the proceedings, Mr. Lo, through his counsel, made a number of formal admissions of fact.

[28] First, he admitted that he massaged the shoulders of A.M.

[29] Second, he admitted that he touched A.M's bare chest and nipple area.

[30] Third, he admitted that he placed A.M's bare leg on his own and began to massage the leg upwards to the groin area.

[31] What Mr. Lo did not formally admit were the inferences that could be drawn from the admitted facts. In other words, he did not admit that all of the above was sexual in nature. I find that Mr. Lo's counsel qualified the inferences that could be drawn from the facts but she did not qualify the admission of certain facts. I find support for this conclusion in the transcript. At one point during her submissions, counsel for Mr. Lo said the following:

Now, in terms of no contest, what the no contest-the effect of no contest is that Dr. Lo is neither admitting nor denying the allegation of sexual abuse. ….The allegation is that the behavior and touching described in paragraphs C and D were not of a clinical nature appropriate to the service provided. That is not part of the agreed statement of facts and that is something that, if we had a contested hearing, that would have been a matter that may well have been in dispute.

But the fact of the matter is you don't have any evidence before you saying it was of a clinical nature and you don't have any evidence saying it wasn't of a clinical nature. So we have a no-contest plea to the allegations of sex abuse, but the joint submission is that-the joint expectation is that you will, nonetheless, find that he is guilty of the allegation. [Emphases added]

[32] When counsel is referring to “it” in the aforementioned passage, she is referring to the touching as disclosed in the ASF. It is evident that while Mr. Lo did not contest the fact that he touched A.M., he disputed that such touching was sexual in nature and for therapeutic purposes. Indeed, Mr. Lo retained an expert, Dr. Pollock who provided him with an opinion that therapeutic touch was permitted and supported his position.

[33] In the end, I agree with the Crown that the transcript at the disciplinary hearing is clear. Mr. Lo, through his counsel was admitting to the facts but was not formally admitting the inferences that could be drawn from the admitted facts. He did not plead guilty to allegations that this touching constituted sexual abuse. Instead, he chose to plead no contest and the College made findings on the basis of the ASF.

[34] The fact that Mr. Lo pleaded no contest to counts alleging sexual abuse is not dispositive on this issue. The issue is whether the formal admissions of fact are admissible. In my view, they are and the Crown is permitted to submit the admissions before the jury.

Was Counsel acting outside of her Authority as Agent?

[35] Mr. Lo, at the time of the formal admission of fact, was represented by legal counsel. Mr. Gorham submits that counsel would have been acting outside her authority by formally admitting the allegations made by A.M.

[36] In support of this submission, Mr. Lo testified on this voir dire. Mr. Lo submits that it was never his intention to admit formally that he touched A.M. in the manner alleged by A.M. Furthermore, he also points out that it is clear in the pre-hearing conference memorandum filed with the College that he explicitly denied touching A.M. in the manner alleged by him.

[37] I do not accept Mr. Gorham’s argument for the following reasons.

[38] First, while I agree that the position taken in the pre-hearing memorandum is explicit, there was a formal admission of fact that admits to the touching at the subsequent hearing which occurred two months later. Indeed, leading up to the hearing, there were emails (Exhibits D and E) exchanged between Mr. Lo and his counsel that contain the following references:

The panel receives the ASF first. Then they make their finding of guilt. The effect of no contest is you will be found guilty, no question about it, because the panel has an ASF that includes M's version of what happened, and you are not contesting it. (Exhibit D, June 5, 2012 at 4:38 p.m.)

The panel can't be told any facts other than what is in the ASF. So this means they won't know about the other anonymous complaint and they won't know the version of facts that we presented at the PHC. Their decision is based on the ASF. I can however make the argument that your non-contesting of the sex abuse allegation means that M is spared from testifying. That may cause the panel to be somewhat charitable towards you. (See Exhibit E, email June 26, 2012 at 10:17 a.m.) [Emphases added]

[39] In my view, these emails suggest that Mr. Lo knew what was going to be formally admitted in the ASF. Indeed, what was admitted in the ASF was not a denial that the touching had taken place. Mr. Lo is an articulate, intelligent and well-educated man. The emails do not reveal any concern by Mr. Lo that the ASF was inaccurate or that the admissions should be qualified. In the end I am satisfied that there was nothing unequivocal in the exchanges between Mr. Lo and his lawyer.

[40] Second, I cannot make a finding that legal counsel representing Mr. Lo at the hearing was incompetent. Mr. Lo does not advance such a claim and the fact that legal counsel could have been more precise at the hearing as to what was being formally admitted (facts) and what was being denied (inferences of sexual abuse) does not equate to incompetence.

[41] Third, while there was no functional equivalent of a section 606 Criminal Code of Canada plea inquiry at the hearing, there is no ambiguity about what occurred at the hearing in relation to the ASF. The ASF was jointly submitted by all parties to the panel at the hearing without any qualification. That ASF appears to me to be the product of careful discussion with Mr. Lo. Furthermore, he sat through the proceedings with his lawyer. There was no objection when the prosecutor read the ASF into the record. Nothing in the record of proceedings suggests that the submissions made by counsel at the disciplinary hearing on behalf of Mr. Lo were made without lawful authority.

[42] In conclusion, I am satisfied that Mr. Lo formally admitted the facts in the ASF read in and filed at his disciplinary hearing but denied the inferences of sexual abuse that could be drawn from those facts. There is a distinction between these two things and for the purposes of admissibility, I am satisfied that there is evidence that Mr. Lo made formal admissions of fact at that hearing.

Probative Value v. Prejudicial Effect

[43] Provided they are relevant and material, admissions or statements made by an accused against interest are admissible. There is really no serious issue that these statements are relevant and material. They form the basis of the allegation. Of course, I retain a discretion to exclude evidence where the prejudicial impact of the evidence outweighs its probative value. This requires engaging in a "cost benefit analysis": (See R. v. Hart, [2014] 2 S.C.R. 544; R. v. Mohan, [1994] 2 S.C.R. 9, at 21).

[44] The first step is to assess the value of the proposed evidence.

[45] I have no difficulty in concluding that this evidence is very probative. The probative value derives from their reliability. Admissions are presumptively admissible on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements: Evans, supra, at para. 28.

[46] In other words, the persuasive force derived from the admission is that it is against the party's self-interest. There is nothing about the hearing that suggests that the admissions made in the ASF were unreliable. Mr. Lo was represented by counsel, he did not object, and he made it clear he was admitting certain facts but not the inferences that could be drawn from the facts. All of this was done to support the pleas entered at the disciplinary hearing.

[47] The second step is to look at prejudice. In terms of prejudice, I am mindful that if the jury hears the context of how the admissions were made (i.e. in the context of a disciplinary hearing) the spectre of reasoning prejudice may arise. The jury may indeed potentially lose focus or will be distracted away from the criminal charges before the court and perhaps make the leap that because Mr. Lo's license was revoked because of an admission of facts of inappropriate touching at a disciplinary hearing, he therefore committed sexual assault.

[48] When I balance and conduct a cost-benefit analysis, I find the admissions are admissible. In my view, the risk of prejudice can be mitigated by excluding certain pieces of particularly prejudicial evidence that are unessential to the narrative. Indeed, Mr. Bernstein submitted that much of this can go in by way of an agreed statement of fact without reference to the plea of guilty nor the ultimate disposition. Moreover, I would have to provide a limiting instruction as to use of the admission and this will go a long way to attenuating any prejudicial effect of this evidence.

Conclusion

[49] The law permits the Crown to introduce Mr. Lo's previous statements against interest at his criminal trial. It will be for the jury to decide if he made the admissions and if so, what inferences they will draw from this evidence. In this case, I am satisfied that it is open to Mr. Lo who has made the admission to testify that he never made this admission or to qualify the admissions in some way: (See R. v. C. (W.B.), [2000] O.J. No. 397 (C.A.)).

[50] The admissions of fact advanced at his disciplinary hearing are admissible at this criminal trial.

Coroza J.

Released: June 7, 2017

COURT FILE NO.: CR-16-1440 DATE: 2017 06 07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN - and - VINCENT LO REASONS FOR RULING COROZA J. Released: June 7, 2017