R. v. Lo, 2017 ONSC 5550 — Superior Court of Justice | minicounsel

CITATION: R. v. Lo, 2017 ONSC 5550

COURT FILE NO.: CR-16-1440

DATE: 2017 06 22

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 6, 2017

ENDORSEMENT

(Admissibilty of Exhibit 1)

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] These are my written reasons in relation to the admissibility of Exhibit 1 in these proceedings.

[2] Exhibit 1 is a document that Mr. Bernstein read to the jury on June 16. Exhibit 1 is a redacted portion of a transcript from a College of Psychologists disciplinary hearing held on June 27, 2012. The hearing involved a complaint made against Mr. Lo by A.M. who is a complainant in this criminal proceeding.

[3] Exhibit 1 at this trial is the product of discussion with counsel and the Court. In the presence of the accused, redactions to the transcript of the College hearing were made. The final product was converted into a single document and it was agreed that Mr. Bernstein would read in this document.

[4] In an earlier ruling dated June 6, 2017, I held that the admissions made by Mr. Lo at the College hearing were presumptively admissible and could be considered by the jury in this case. Mr. Bernstein took the position that the evidence of what happened during the College proceeding could be read in as an agreed statement of fact at this trial. Counsel drafted an initial document that could be fairly described as an agreed statement of fact.

[5] Mr. Gorham submits that my ruling means that the admissions can go in before this jury as evidence. Mr. Gorham does not require a witness to testify as to the accuracy of what was said by counsel at the College hearing. However, he does not want the jury to be under the impression that Mr. Lo is formally admitting in this criminal trial that he touched A.M. in the manner described by the lawyers in that hearing.

[6] Mr. Bernstein argues that I have ruled that Mr. Lo made formal admissions at the College proceeding which are presumptively admissible and are admissions against interest in this trial. The jury should be told that at the hearing Mr. Lo made formal admissions.

[7] I agree with Mr. Bernstein that I have ruled the admissions made at the College hearing on behalf of Mr. Lo were formal admissions for the purpose of that proceeding. As a result, the statements made on his behalf at that proceeding are presumptively admissible in this criminal trial as admissions against interest. However, I also agree with Mr. Gorham that the jury must not be given the impression that Mr. Lo is making an admission pursuant to s.655 of the Criminal Code that the touching occurred. It is anticipated that Mr. Lo will testify and deny that any touching of a sexual nature occurred. It is also anticipated that he will deny he made the admissions or qualify what was said on his behalf at the College hearing.

[8] In their text, The Law of Evidence 7th ed, Justice Paciocco and Professor Stuesser write (at p. 161):

“Formal” admissions dispense with the need to prove a fact in issue. In other words, a party is prepared to concede the particular point. The formal admission, once made, is binding on the party and is not easily withdrawn. …In criminal cases the most common “formal” admission is that of the guilty plea. Section 655 of the Criminal Code also allows an accused to admit any fat alleged by the Crown against him.

An “informal” admission is not conclusive proof of an issue, nor does it any way bind the parties; it is always open to be contradicted or explained. [Emphasis added]

[9] By dispensing with the need to call a live witness to introduce what was said at the hearing, Mr. Gorham is making an informal admission. He is waiving the need to call a witness.

[10] What occurred at the College was a plea of no contest to certain counts and a plea of guilty to another count. A joint agreed statement of facts was read in at the hearing. In an analogous situation, an accused’s legally valid guilty plea in a criminal proceeding is admissible in subsequent criminal proceedings at the behest of the Crown as an informal or evidentiary admission: (see the review of these cases by Hill J. in R. v. Baksh (2005), 2005 CanLII 24918 (ON SC), 199 C.C.C. (3d) 201 (Ont.S.C.J.) and R. v. Pentiluk and MacDonald (1974), 21 C.C.C. (2d) 87 (Ont. C.A.), at pp.90-2 (affirmed (1977), 1977 CanLII 20 (SCC), 34 C.C.C. (2d) 1 (S.C.C.)); R. v. Ford, supra, at pp.346-7; R. v. Dobson (1985), 1985 CanLII 3581 (ON CA), 19 C.C.C. (3d) 93 (Ont. C.A.), at pp.94-5 (leave to appeal refused [1985] 1 S.C.R. viii). [Emphasis added].

[11] This is what occurred here. I have ruled that the jury is entitled to consider what was said on Mr. Lo’s behalf before the College as an admission against interest made by him, subject to the right of Mr. Lo to testify that he never made the admission, or to qualify it in some other way (see R. v. C.(W.B.) (2000), 2000 CanLII 5659 (ON CA), 142 C.C.C. (3d) 490(Ont. C.A.), at pp.504-5). Again, Mr. Lo is expected to testify at this trial and, he will be given an opportunity to explain and to qualify the statements made by his counsel at the College hearing.

[12] Therefore, I conclude that unlike formal admissions of fact, Mr. Gorham is agreeing that the transcript of the hearing can be read in by Mr. Bernstein and does not dispute the accuracy of what the Crown will read in. This transcript contains admissions made on Mr. Lo’s behalf by his lawyer. However, for the purposes of this criminal trial, the College admissions are merely items of evidence in this criminal trial available for “self-contradiction” or rebuttal. The jury should not be misled into accepting Exhibit 1 as a formal admission of fact made by the defence in this trial.

[13] In conclusion, I am of the view that the exhibit should not give the impression that this is a formal admission being made by Mr. Lo pursuant to s.655. The jury is entitled to hear what was said on Mr. Lo’s behalf by his lawyer at the College proceeding. It is for the jury to decide whether this was an admission. Like any statement of the accused tendered by the Crown, before the jury can consider the statement, the jury must be instructed to determine, what, if anything the accused actually said. Juries are often told that it is up to them to decide whether they believe the accused made the statement or any part of it.

Coroza J.

DATE: June 22, 2017