CITATION: R. v. Lo, 2017 ONSC 4630
COURT FILE NO.: CR-16-1440
DATE: 2017 06 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. VINCENT LO
BEFORE: COROZA J.
COUNSEL: Adam Bernstein, for the Crown
Nathan Gorham, for the Accused
HEARD: June 8, 2017
REASONS FOR RULING
(SIMILAR FACT EVIDENCE AND SEVERANCE)
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.
[1] There are two motions before the Court.
[2] First, Mr. Lo has brought a motion applying for severance under s. 591(1) of the Criminal Code, R.S.C. 1985, c. C-46.
[3] Second, the Crown has brought an application to introduce similar fact evidence between counts. There are three complainants in this case. Each count refers to an allegation of sexual assault by each separate complainant.
[4] In my endorsement on June 7, 2017 I held that the Crown’s application would proceed at the outset of this trial. Both parties agreed that the result of this application would drive the analysis in the severance motion.
Overview (Similar Fact Evidence)
[5] The accused, Vincent Lo, has been charged with three counts of sexual assault involving three separate complainants.
[6] The Crown seeks to have evidence of similar facts between Counts 1, 2 and 3 admitted into evidence as the Crown says there are striking similarities in the facts surrounding the three incidents. For this reason, the Crown has joined the counts on the same indictment.
[7] Mr. Lo opposes the Crown’s request to admit similar fact evidence on the grounds that there is an air of reality to an allegation of collusion between two complainants (A.M. and B.G.) and there is no factual or legal nexus between the three incidents. The accused submits that the prejudicial effect outweighs the probative value of the similar facts.
[8] Mr. Lo submits that I should dismiss the Crown’s application and sever the counts on the indictment. The end result would be a direction that three separate trials be ordered.
The Positions of the Parties
The Crown’s Position
[9] The Crown submits that the particulars of the three sets of allegations are so similar that they merit admission as similar fact evidence. The Crown argues that Mr. Lo’s anticipated defence will be one of denial. The Crown goes on to point that Mr. Lo will undoubtedly attack the credibility and reliability of all three complainants. Evidence ought to be admissible on each count in order to support the credibility of the complainants and to negate any defence of denial.
[10] The Crown further submits that, given the issues to which the similar fact evidence would be proffered, it meets the necessary level of similarity. The Crown argues that the anticipated evidence will demonstrate the following:
(a) The evidence shows Mr. Lo’s specific propensity to engage in sexual misconduct with young men in his care who came to him in a vulnerable position;
(b) All three complainants were 19 year old males at the time of the alleged misconduct;
(c) All three complainants were referred to Mr. Lo and were to receive treatment from Mr. Lo for social anxiety;
(d) For all three complainants, they saw Mr. Lo with other staff in the room;
(e) The initial sessions for all three complainants were purely verbal in nature. It was only at some point after the first session that Mr. Lo began touching the young men;
(f) For all three complainants, while there was reference by Mr. Lo to relaxation techniques, he never told any of them as to the location of their bodies that he would be touching, nor did he seek their permission;
(g) All three men allege that Mr. Lo included shoulder and chest massages that he would conduct while standing behind the patient;
(h) In all three instances of sexual touching, Mr. Lo returned to his chair to finish the session with verbal interaction only;
[11] The Crown contends that these similar facts are reason to join the above counts.
The Accused’s Position
[12] Mr. Gorham submits that there is an air of reality of collusion in this case between two of the complainants (A.M. and B.G.). All three complainants are represented by the same lawyer in a civil lawsuit brought against Mr. Lo. Furthermore, the College of Psychologists launched investigations into the allegations and spoke to both A.M. and B.G..
[13] Mr. Gorham specifically argues that there are three important questions that I must keep in mind:
What impact did the College of Psychologists investigators have on influencing the accounts of A.M. and B.G.?
What impact did the civil lawyer have?
What do A.M. and B.G. actually remember?
[14] Mr. Gorham goes on to argue that the Crown’s argument respecting the similarity of the allegations is actually very weak. Counsel submits that the real question is whether there was similarity in the original accounts and much of what the Crown argues as similarity ignores the context of these allegations. Mr. Gorham also points out that Mr. Lo was a psychologist for many years and he cannot call 1000 witnesses to testify that they had normal counselling sessions without evidence of sexual abuse. If he did not sexually abuse those patients who fit the same profile, the probative value of these specific allegations loses their value. He points out that there is nothing significant about being alone with the complainants or that that the allegations took place without staff being present. After all, Mr. Gorham argues, Mr. Lo was a practicing psychologist. Additionally, he points that all three complainants share the same civil lawyer in a lawsuit against Mr. Lo.
Severance
[15] Both counsel submit that the result of the similar fact evidence application will impact the result of the severance application. If the similar fact evidence application fails, the Crown concedes that joinder of these counts would compromise the fairness of the proceedings. If the similar fact evidence application succeeds, Mr. Gorham concedes that one trial on all counts is warranted.
The Law of Similar Fact Evidence
[16] The law is not in dispute. It is comprehensively set out in the written materials of both counsel.
[17] Similar fact evidence is presumptively inadmissible and the onus is on the Crown to show on a balance of probabilities that the probative value of the similar fact evidence outweighs its potential for prejudice.
Issue One: Is the Evidence Material?
[18] In my view, the evidence of all three complainants is material in several ways. It relates to the following issues: (i) the Crown theory that a sexual assault occurred to three separate complainants; (ii) rebuttal of a potential defence of incidental touching; and (iii) the credibility of the witnesses.
Issue Two: What is the Probative Value of the Evidence?
[19] The Crown argues that the high degree of similarity between the acts and Mr. Lo’s connection to each complainant leads one to the conclusion that the evidence is probative. As I understand his argument, Mr. Bernstein submits that the more similar the circumstances surrounding the incidents are, the more compelling it becomes to infer that these similarities are attributable to the fact that the witnesses are each speaking the truth. He relies on a number of cases including the Supreme Court of Canada’s decision in R. v. Handy, 2002 SCC 56, [2002] S.C.R. 908.
[20] The probative value of similar fact evidence depends on the “issue in question.” The accounts of each complainant do not have to be strikingly similar because the issue here is not one of identity of the accused (i.e. who committed the acts). The degree of similarity required to give similar fact evidence a high degree of probative force will vary according to the other evidence in this case and the issues raised by the evidence: see R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339 and R. v. Dickinson (1984), 1984 5690 (ON CA), 40 C.R. (3d) 384 (Ont. C.A.).
[21] In this case, it is anticipated that Mr. Lo will deny that there was any sexual contact with any of the three complainants. If there was contact, it is anticipated that Mr. Lo’s position will be that this was incidental as part of therapy.
[22] The actus reus, therefore, is the central issue. The real issue for the jury is to decide is whether the offences alleged by each of the complainants, or any of them, ever actually took place.
[23] This issue in question (i.e. proof of the actus reus) turns on the credibility of the complainants’ evidence of the sexual assaults, and the credibility of Mr. Lo’s anticipated denial. Therefore, in this context, the similar fact evidence is properly admissible to show that Mr. Lo, in closely comparable circumstances, set about touching each complainant in a sexual manner during therapy sessions when Mr. Lo and the complainants were alone.
[24] I agree with the Crown’s submissions referenced above at paragraph 10. The logic of Mr. Gorham’s point that many of the factors argued by the Crown are neutral because they took place in the context of therapy is appealing. However, it seems to me that the Crown’s argument is based on the escalation of touching during the therapy sessions that is similar here.
[25] Significantly, in each case, the complainant alleges that Mr. Lo’s use of therapeutic touch escalated to touching him around the waist (B.G.) or below the waist area (A.M. and T.R.). In each case, the complainants were never asked by Mr. Lo for specific permission to touch a particular location of their bodies. They specifically were not asked if he could touch them around the waist or below the waist.
[26] The probative value of the evidence derives from the improbability that, absent collusion, the three complainants would concoct stories having a similarity to each other. Arguably, the proffered evidence shows a pattern of similar behavior suggesting that each of the complainant’s stories is true. This is not evidence that shows general propensity.
[27] In my view, the evidence is situation-specific propensity and is capable of being considered by the jury as circumstantial evidence to determine the truth of the allegations, i.e. whether Mr. Lo committed the actus reus of the offences.
[28] I find therefore that the probative value of the proposed evidence is high.
Collusion
[29] Where there is air of reality to an allegation of collusion, the onus is on the Crown to establish on a balance of probabilities that the evidence of similar acts is not tainted by collusion, since collusion destroys the probative value of the evidence. Similarity in detail may be accounted for by collusion.
[30] Judges cannot assess objective improbability of coincidence without considering whether the apparent coincidence is the product of collusion and R. v. Handy requires a trial judge to consider collusion as part of the question of admissibility.
[31] Mr. Gorham points out that collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether conscious or unconscious, of tailoring their descriptions of the impugned acts.
[32] Mr. Gorham argues that the Crown cannot establish that the similarities between the different allegations are not the result of the complainants’ involvement in proceedings with the College of Psychologists (College) or a civil law suit. He argues, effectively, that the description of events by A.M. and B.G. was influenced in several different ways: First, through potential exposure to other allegations by the College; and second, through the civil lawyer. Additionally, he argues that the complainant B.G. may have had opportunity be influenced by a subsequent psychologist, Dr. Boritz who told him that there were other complainants.
[33] Again, Mr. Gorham submits that I should focus on three questions:
What impact did the College investigation have on their accounts?
What did the civil lawyer say?
What do A.M. and B.G. remember?
[34] The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. In other words, the burden of putting an issue in play is on Mr. Gorham. In assessing whether there is an air of reality to collusion, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. It is necessary only that the inferences be available and reasonable and not based on speculation.
Was A.M.’s evidence influenced?
[35] I have carefully considered the materials submitted by the parties, which include the preliminary hearing transcripts and the evidence I heard from A.M. on this voir dire.
[36] It is not disputed that by the time they interviewed A.M., the College was aware of the allegation of the complainant T.R.
[37] Mr. Gorham argues that after the college interviewed A.M., his specific allegation of sexual abuse appears to have transformed. It is only after his interview with the College that he alleged a touching of his penis. He points out that A.M.’s memory is poor and that he admits that he did not originally disclose to his mother that his penis was touched prior to contact with the College. Mr. Gorham also points out that the same lawyer has acted for the other two complainants in a civil suit against Mr. Lo.
[38] In my view, while there may be an air of reality to the allegation of collusion sufficient to put the onus on the Crown, there is nothing sufficiently persuasive on this record to trigger my gate-keeping function to exclude this evidence.
[39] There is no evidence of actual collusion in this case and it seems to me that the argument advanced by Mr. Gorham is that the Crown cannot negate a risk or opportunity for collusion. While I agree there is evidence of a risk or opportunity, this does not lead me to conclude that the evidence here has no probative value.
[40] As Binnie J. observed in R. v. Handy at para. 111, 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.
[41] I am satisfied that there is no evidence that A.M. was told or learned anything specific about the allegations of T.R. or B.G.
[42] Mr. Gorham points out a notation in the notes of a College investigator dated October 18, 2010, which suggests evidence of tainting. The notes were created in relation to the investigation into Mr. Lo and A.M. The notes indicate the following entry:
Investigators note: spoke w/BG.
Asked if we can or should tell A.M. that the College is investigating. B.G. said we can, and should.
[43] I am not persuaded that this entry is direct evidence that A.M. was told about the allegations involving B.G. I say this for two reasons.
[44] First, it is unclear on this record that B.G. actually did have contact with the College in 2010. I have reviewed B.G.’s evidence during his preliminary hearing. It is unclear to me whether contact between B.G. and the College took place in 2010. If it did not, it makes no sense that this entry would be describing B.G. because his formal complaint to the College was made in 2012.
[45] Second, even if I were to assume that B.G. was asked by investigators for permission to disclose his complaint to A.M., there is nothing in the notes that indicate the investigators were asking for permission to disclose the details of B.G.’s allegation. Thus, even if I was prepared to accept that B.G. gave the investigators permission to reveal that the College was investigating Mr. Lo as a result of his allegation, it does not necessarily follow that A.M. was told what the specific allegations were about.
[46] Nor am I persuaded that the fact that the complainants share the same civil lawyer means that they were told the details about the allegations. It seems to me that the civil lawyer would want to ensure that the account of each complainant was not tainted in advancing a civil claim. Surely, discussing with each complainant the specific allegations of the others could result in weakening their lawsuit. I observe that both A.M. and B.G. testified at the preliminary hearing and on this voir dire both of them have asserted that they did not know the status or the details of the lawsuits other than their own.
Was B.G.’s evidence influenced?
[47] B.G. did not report the allegations to the police immediately. It was only after he disclosed the allegation to a subsequent therapist (Dr. Boritz) that the allegation against Mr. Lo came to the attention of the College and the police. Mr. Gorham raises the point there is evidence on this voir dire that suggests B.G. was told by Dr. Boritz and investigators that Mr. Lo was already being investigated and that there were other complainants. Mr. Gorham’s view is that this is further evidence of collaboration or concoction.
[48] It is also pointed out by Mr. Gorham that B.G. has admitted to “digging around” and finding something on the internet about another complainant. His prior statement to the police also discloses that he told the police that he found something on an internal database.
[49] It is Mr. Gorham’s position that prior to his complaint to the College B.G. was unsure about inappropriate touching, but after speaking to College investigators he had no doubt about the touching. He argues that tainting is very real in the case of B.G.
[50] Mr. Gorham argues that the defence are in a difficult situation because the Crown has not called any of the investigators on the voir dire. He points out that the College file pertaining to B.G.’s complaint says nothing about B.G. having a discussion with his therapist Dr. Boritz. Furthermore, there is nothing in the file that discloses the contents of the College’s first conversation with B.G.
[51] I am not persuaded by this argument in relation to B.G. There is nothing sufficiently persuasive on this record to preclude the admission of the similar fact evidence in question. While there was an opportunity for contact and an opportunity for College investigators to disclose to B.G. that there were other complainants, there is no actual evidence that details of the other allegations were disclosed to him. Indeed, at the preliminary hearing B.G. specifically denied that he received information about the other allegations. B.G. admitted he asked College investigators for information. However, he explained that the investigators told him they could not tell him anything.
[52] Again, while there may be an air of reality to inadvertent tainting, the Crown has satisfied me that there is no evidence that B.G. was told or learned anything specific about the allegations made by T.R. or A.M.
[53] As for the fact that B.G. had told the police that he examined an internal database, this evidence does not make any sense. B.G. qualified that somewhat by testifying that he found out about the other complaint on the internet. There is no evidence that what he actually viewed were the specific details of the complaint. I also find it hard to accept that he would be able to search an internal database of complaints by the College. It seems likely that B.G. looked on the internet and that there was some type of notice put out to the public that Mr. Lo was being investigated but not necessarily the details of the complaint. Indeed, B.G. testified to this issue on the voir dire and I accept that he did not view or learn specific details of the other complaint.
[54] Again, even though the same lawyer acted for B.G. and the other complainants in the civil lawsuits, there is no evidence that B.G. would have been told about the specific allegations of the other complainants. He testified at the preliminary hearing that he did not know if information from his lawsuit was being used to help others in their lawsuits. He also specifically denied that he knew details about the other allegations.
Conclusion re: Collusion
[55] In the end, while I am satisfied that Mr. Gorham has met his burden in demonstrating that there is possible inadvertent tainting, this is not dispositive of the issue. On this voir dire, the Crown has met his onus on a balance of probabilities that the evidence of similar fact is not tainted by collusion. Where the evidence shows only the opportunity for collusion or collaboration possibly tainting the evidence, then the matter should be left to the jury. The jury must consider the effect of the possible collusion when deciding the weight to be given to the similar fact evidence. (see R. v. Dorsey, [2012] O.J. No. 1377 (C.A.)).
Issue Three: Prejudicial effect
[56] Prejudice, in this context, encompasses both “reasoning prejudice” and “moral prejudice.” According to R. v. Handy, the potential prejudice to Mr. Lo is assessed by considering:
Reasoning Prejudice: The risk of distracting or confusing the trier of fact, or of undue consumption of time, and the danger that the trier of fact may have difficulty disentangling the subject matter of the charges from the similar fact evidence.
Moral Prejudice: The risk of convicting the accused because he is a “bad person” rather than based on proof that he committed the offence.
[57] In this trial, the risk of both reasoning and moral prejudice is something that I must consider carefully.
[58] Mr. Bernstein, without attempting to minimize the allegations, argues that these specific sexual assaults placed on a spectrum of seriousness are characterized as “low level” sexual assaults. Therefore, the risk that a jury might find Mr. Lo as a particularly heinous or deviant individual who deserves to be punished is low. I agree with this submission. Moral prejudice can be alleviated with jury instructions that explain to the jury that if the Crown has proven beyond a reasonable doubt that Mr. Lo committed the acts alleged in any offence charged, they are not to use the evidence of that conduct to conclude or help them conclude that the accused is a person of general bad character or disposition who likely committed the acts charged in any count because of that bad character or disposition.
[59] I am also of the view that reasoning prejudice can be alleviated by a number of limiting instructions. Such instructions would include the following cautions.
[60] First, I should caution the jury not to jump to the conclusion that if one complainant is telling the truth, then the others must be telling the truth as well.
[61] Second, I should tell the jury not to jump to the conclusion that because the complainants allege similar conduct, that they all must have occurred if any one of them is proved. Rather, it is up to the Crown to prove each charge independently of the other.
[62] Third, they must be instructed that if they conclude that the accused did the acts alleged in any offence charged, then they must not punish him for that conduct by finding him guilty of any other offence just because he did those other acts.
[63] Fourth, I should tell the jury that if they are not able to conclude that the acts charged in some or any count are so similar to those charged in another that they show a pattern of similar conduct, they must not use the evidence on those charges in reaching a verdict in any other charge.
[64] Fifth, the jury should be told that whether or not they use the evidence of any complainant to help them decide whether any other complainant is telling the truth, they must not find Mr. Lo guilty of any offence unless the Crown has satisfied them beyond a reasonable doubt that the offence charged actually took place and that he did it.
Balancing Probative Value versus Prejudice
[65] In conclusion, the similar fact evidence is highly probative of the actus reus of the offences, which in turn depended on the credibility of the complainants’ evidence about the sexual assaults. The proffered evidence showed that Mr. Lo pursued a consistent course of touching that escalated to something sexual in nature to patients to whom he stood in a position of trust. This evidence is properly admissible to assess the complainants’ credibility, Mr. Lo’s position as to the touching, and to assist in proving that the sexual assaults occurred as described by the complainants. The connecting factors among the three complainants are strong and the probative value of the evidence “clearly outweighs” its prejudicial effect.
[66] I grant the Crown application.
The Law of Severance
[67] Section 591 of the Criminal Code governs the joinder of counts in an indictment.
[68] The onus is on Mr. Lo to show on a balance of probabilities that the ends of justice require severance.
[69] Courts have identified a non-exhaustive list of factors that can be weighed when deciding whether or not to sever, balancing the prejudice to the accused and the public interest in a single trial. The list of factors has been canvassed by the Supreme Court of Canada in R. v. Last, 2009 SCC 45. The factors include:
(1) the factual and legal nexus between the counts;
(2) general and real prejudice to the accused;
(3) the complexity of the evidence;
(4) whether the accused wishes to testify on one count but not another;
(5) the possibility of inconsistent verdicts;
(6) the desire to avoid a multiplicity of proceedings; and
(7) the use of similar fact evidence at trial.
Balancing the Factors and Assessing the Interests of Justice
[70] In this case, Mr. Gorham quite properly in my view, concedes that if the Crown’s application for admission of similar fact evidence succeeds, the application for severance fails. I agree with that concession and I dismiss the severance application. There is a strong factual and legal nexus and in light of my ruling on the Crown application there is a strong truth seeking interest and desire to avoid multiple proceedings. I agree with both counsel that the result of that application leads to a dismissal of the severance application.
Conclusion
[71] For the above reasons, the application by the Crown to admit similar fact evidence is admitted and the application by the accused to sever counts 1 to 3 is dismissed.
Coroza J.
DATE: June 12, 2017
CITATION: R. v. Lo, 2017 ONSC 4630
COURT FILE NO.: CR-16-1440
DATE: 2017 06 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. VINCENT LO
BEFORE: COROZA J.
COUNSEL: Adam Bernstein, for the Crown
Nathan Gorham, for the Accused
ENDORSEMENT
COROZA J.
DATE: June 12, 2017