ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 16-RA19456
DATE: 2019-01-25
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSE HERNANDEZ
Sabrina Goldfarb, for the Crown
Gary Chayko, for the Accused
HEARD: October 22-26, 29-31, and
November 1, 13-14 and 19, 2018 (Ottawa)
REASONS FOR DECISION
C.T. HACKLAND, J.
[1] The accused is charged with 3 counts of sexual assault, contrary to Sec. 271 of the Criminal Code.
[2] The charges relate to the alleged sexual touching of 3 voice students. At the material times they were studying in a music studio where voice lessons were provided to talented young people aspiring to a career in professional opera or classical music. The studio was owned by a woman with a reputation for advanced level teaching of talented novice singers. I will refer to her simply as the studio owner. She engaged the accused to help with the teaching and related activities in her studio, including workshops and preparation of students for concerts and voice competitions.
[3] The accused, who was 69 at the time of the events, had a long career as a musician, singer and voice teacher. At an earlier point in his career he had counselled the studio owner when she had encountered problems with her singing voice. They were the only two instructors in the studio, which was located in the private home of the studio owner. The accused resided at the studio during the week and returned home to his family in another city on weekends.
[4] The accused was also a “healer” and he provided what he referred to as “healing sessions” to some of the voice students, including the 3 complainants. It was during the healing sessions that the alleged assaults occurred.
[5] The Crown called the 3 complainants as witnesses. I will refer to them as A.L., F.R. and M.L. The accused testified in his own defence. The studio owner did not testify. The defence also called an optician who had taken healing sessions from the accused and a letter was filed on consent (ex. 9) from a speech language pathologist who had referred voice students to the studio owner and had taken a healing session with the accused. This evidence suggested that the accused’s healing sessions included a clientele of educated persons.
[6] An important issue in this case is whether the testimony of the 3 complainants can be used as similar fact evidence on a count to count basis. This was opposed by the defence on the grounds that there was collusion between the complainants. It was expressly agreed by counsel for both the Crown and defence that I would rule on this issue as part of the court’s reasons for judgment, rather than during the Crown’s case. I will deal with similar fact evidence and the collusion issue later in these reasons.
[7] The theory of the Crown’s case was that the accused abused his position of authority and trust as a teacher in the studio to manipulate the complainants to participate with his healing sessions. These sessions at some point involved sexual touching of their breasts and genitals under the pretence of therapy.
[8] The accused’s position was that he engaged in healing sessions in good faith with the complainants and with many other people over the years. He denied that he touched the breasts or genitals of the complainants. He testified that his healing techniques or practices did not involve touching anyone’s genitals or breasts. I am satisfied from the evidence of the complainants and the accused that there is no issue in this case about accidental or incidental contact with the breasts and genital areas of the complainants. The accused’s position is that such touching simply did not occur and was not part of his healing sessions.
Evidence of A.L.
[9] A.L. was a student at the studio during her last 2 years of high school and through her undergraduate years of university. In university she pursued a Bachelor’s degree in music, specializing in voice. She was referred to the studio by her high school voice teacher who had been taught by the studio owner. A.L. ultimately left the studio in April of 2016 and went to the police in June 2016.
[10] A.L. first encountered the accused in a summer workshop at the studio where he was an accompanist on piano and a vocal coach. Her regular lessons were with the studio owner. However, as she progressed in her studies the studio owner arranged for her to take some lessons with the accused. A.L. was complimentary about the accused’s voice instruction. At one point she was encountering a recurrence of back pain which had been medically investigated but without any specific diagnosis. The studio owner recommended A.L. try healing sessions with the accused, saying that he had healing powers and had even cured someone of cancer. A.L. had also heard positive talk of the accused’s healing sessions from other students.
[11] The healing sessions took place in a spare bedroom in the basement of the home in which the studio was located. They were normally scheduled in the evening after voice lessons were completed. The sessions were offered without charge by the accused. The scheduling of these sessions was done by the studio owner. The accused and A.L. were alone during these sessions. In the room where the sessions were held there was a single bed, later replaced with a massage table, which was similar in size to the bed. The room also contained a clock and table with a desk top computer.
[12] In her testimony A.L. described how the accused carried out a series of unconventional treatments or therapies on her which over time progressed to sexual touching, digital penetration of her vagina and, on one occasion her anus, and oral sex. The accused provided A.L. with general explanations for some of the therapy but did not tell her specifically what he was going to do in advance of doing it and did not seek her specific consent. She admitted she went along with the therapy and did as she was told because she trusted the accused and believed that she needed to accept this therapy in order to reach her goal of becoming a professional singer. She testified that the sexual touching made her tense and uncomfortable. She understood that some of this therapy was intended to help with her back pain and subsequently some of the sessions were undertaken to help her with a problem she had with anxiety. She also felt that there was subtle pressure from the studio owner to take healing sessions from the accused. She also said that she came to understand from things said to her by the accused himself and by the studio owner, that the accused did not like doctors or prescription medications. In the same way she came to understand that what went on in the healing sessions was intended to remain confidential.
[13] A.L. said that a common approach used by the accused in the healing sessions was to have her lay on the bed on her stomach, back or side, as he would direct, and he would hold his fingers over various parts of her body to transfer heat energy. This was known as “Reike”. Often the accused would also actually touch her with his fingers in a massage like motion. Following the initial sessions, he would have A.L. lay on her side in the bed and he would climb into the bed himself and lie against her on his side making contact between his chest and her back, and holding one of her hands. This was explained by the accused as a means to achieve heat and energy transfer. I would note that the accused confirmed A.L.’s evidence in this regard in his own testimony. He admitted that he was “spooning” A.L. when he lay on his side behind her, pressing up closely up against her. This manoeuvre was later done on the massage table which replaced the bed.
[14] A.L. outlined that after a few months the accused was having her remove her shirt and bra and was touching her breasts, including her nipples. In later sessions he would put his hand inside her underwear, touch her clitoris and on several occasions put his fingers in her vagina. She tried to focus on the ticking of the clock when he did this. She found that by tolerating this for a few minutes and then faking an orgasm, he would stop attempting to stimulate her. She testified that the accused penetrated her vagina digitally 15 – 20 times in various sessions. In the summer of 2013 she said he took her underwear off and performed oral sex on her using his fingers and tongue. This occurred at several sessions. He would tell her to get over to the edge of the bed on occasions when he performed oral sex on her. He told her he liked it better when she was wearing a dress.
[15] Near the end of one of these sessions, she was positioned on her stomach on the massage table when, without warning, the accused penetrated her anus with his finger. A.L. said to the accused she did not want that but “he just kept going…it was so uncomfortable for me”. After this incident she began to decline to be scheduled into the healing sessions. She said she had begun to suffer from anxiety. She felt she was encountering hostility from the accused and the studio owner when she no longer went to the healing sessions.
[16] A.L. also related a number of bizarre conversations with the accused during the healing sessions. He would tell her to “show your passion.” He would say “release” as he touched her. These comments often accompanied the touching of her genitals. He also said he could see things…and that he sensed that she was a lesbian because he detected she had too many male hormones. He also told her that he senses that she had been victimized by some sort of lesbian assault in her home as a child.
[17] A.L. said she was becoming more and more anxious and confused. Ultimately A.L. began to speak to several of the other students, who were also her friends, and came to the belief that she was being mistreated at the studio. She decided to leave and went to the police some two months later. I will return to the circumstances of her departure later when discussing the collusion issue.
[18] I found A.L.’s testimony to be very credible. She presented as a highly intelligent and articulate person. I did not detect any effort to exaggerate or embellish her testimony. She did not display a hostile attitude toward the accused and she willingly acknowledged he helped her so far as the singing lessons were concerned. She seemed to be genuinely struggling to understand how she could have allowed herself to be subjected to what she referred to as “inappropriate touching” in the healing sessions. She stressed that she was completely committed to the goal of becoming a professional singer and would go along with whatever it took to achieve this goal, including participation in the healing sessions. A.L. was subjected to a lengthy and detailed cross-examination without being successfully challenged on any of the key points in her testimony.
Evidence of F.R.
[19] F.R. first came to the studio when she was 16 and in grade 12. She took signing lessons from the studio owner. She was a student at a high school whose curriculum was designed for students with an interest in the arts and she had studied singing and violin for some 5 years and achieved a high level in her musical certification. The accused commented in his testimony that F.R. had a “beautiful singing voice”.
[20] F.R. was estranged from her family during some of the time she was at the studio. She was told by the studio owner that she had a natural talent for singing and she began weekly singing lessons with her at the studio. Her goal was to have a career as a professional opera singer. She found the studio owner too “scary…or let’s call it firm”, but she (F.R.) acknowledged that she needed structure and discipline to achieve her goal. She also enrolled in a music program at university but then withdrew.
[21] After about 2 years at the studio F.R. began taking voice lessons with the accused, on the recommendation of the studio owner, who had spoken of the accused in glowing terms, referring to him as Maestro and saying he was “like a God, not from this world”. The studio owner said the accused had healing powers and he had healed her vocal chords at some time in the past. F.R. described her relationship with the studio owner, at least initially, as “kind of a second mother to me”. She came to understand that the accused and the studio owner were intimate. The accused confirmed this in his own testimony.
[22] In due course F.R. was taking one voice lesson each week with the studio owner and one with the accused. Typically her lessons would be just before or just after A.L.’s lessons. The lessons with the accused were given in a room in the basement containing a grand piano. This room was near to but separate from another basement room where the accused’s healing sessions were conducted. As the voice sessions with the accused progressed, the accused spoke of the need for F.R. to “work on her sensuality” and to “get in touch with her feelings” in order to better interpret romantic songs. F.R. testified that during voice lessons the accused began to touch her breasts and cup her vagina with his hand. He said he was “helping her connect with her feelings”. She found that this type of touching was happening at an increasing frequency and she was getting psyched out and felt that she was “choking on her sound”.
[23] F.R. also explained that the inappropriate touching of her breasts and vagina by the accused began after the studio owner came downstairs to the accused’s room one day and said to F.R. and the accused that they had her approval to do whatever was necessary to assist F.R. to connect with her emotions and to improve her sensuality.
[24] In addition to the voice training F.R. began to take healing sessions with the accused. She explained that she did so because the studio owner said he (the accused) worked miracles but cautioned that he did not like doctors or medicines. She further explained that the accused had a technique of healing through the transfer of heat and energy.
[25] F.R. explained that initially the healing sessions involved head and neck manipulation but in due course the accused was discussing intimate matters with her such as her orgasms and on occasion he would have her slide her pants down and put one or two fingers in her vagina. He would say “you need to release”. F.R. said she did not want him to do this and she “just froze”.
[26] F.R. testified that the vaginal touching happened intermittently and in retrospect was all a blur to her. She agreed that she was the one who pulled down her own pants and she did not voice objections to what he was doing. On the other hand the accused did not seek her permission before he digitally penetrated her. She said “I believed and trusted him as a healer.”
[27] F.R. said it was in her second or third year at the studio that she began to interact with the accused. She participated in about 50 healing sessions.
[28] F.R. testified that at one of the last healing sessions the accused had her lay on her stomach and pull her underwear down and then without her consent, inserted his finger in her anus and manipulated her for several minutes. She then used the washroom and on her return she was asked to sing. The accused expressed the view he had not succeeded in correcting her problem and then anally penetrated her a second time. She said this was uncomfortable and painful and she hoped it would not need to happen again.
[29] Not long after this incident F.R. participated in a singing competition in Toronto and when asked where she studied she omitted any reference to her studies with the studio owner and the accused. This greatly offended the studio owner who sent harsh emails to her, inviting her to leave the studio. Shortly after, F.R. decided that she would leave the studio, and there was an unpleasant email exchange. The defence emphasized that F.R.’s emails surrounding her departure did not make any reference to the accused and was apparently not the result of any concerns she may have had about the healing sessions.
[30] This controversy led to F.R. sitting down with A.L. to discuss their concerns about how the studio was being run by the studio owner. However the conversation also turned to the discomfort they both discovered they had with the healing sessions. I will discuss this further in relation to the collusion issue raised by the defence.
[31] A number of emails and text messages between F.R. and the accused were entered into evidence. These messages suggest an inappropriate relationship and support the crown’s theory that the accused was manipulating F.R. The emails show F.R. reporting to the accused about a wide range of very personal and intimate issues from her personal health, to private issues concerning her family and many aspects of her personal life. She was reporting about her emotions, her digestive issues, her anxieties etc., and seeking medical advice. In one series of messages she sought advice and approval from the accused as to whether she should be seeing a doctor for health problems she was experiencing. I regard this correspondence as evidence of an inappropriately intimate relationship between a 69 year old teacher and a young female student in a teacher student relationship.
[32] I found the testimony of F.R. to be highly credible. She had a complex relationship with both the studio owner and the accused. She was respectful of the accused so far as his voice coaching was concerned and seemed more confused than angry over the sexual touching which, at the time it occurred, seemed to be inappropriate but necessary for her professional development. Her memories of the details and timing of the sexual touching were somewhat vague, as might well be expected given the incidents occurred over the course of and were intermittently dispersed during the many healing sessions. The cross-examination of F.R. did not reveal any significant credibility issues.
Evidence of M.L.
[33] M.L. came to the studio in 2013 when she was about 21. She had studied voice with various teachers since she was 12. The studio had been recommended for training in opera and classical music. At the time she believed she wanted to sing opera as a career. She initially studied with the studio owner who she found to be intimidating. She said that after about 2 years at the studio she transitioned to the accused for her lessons, on the recommendation of the studio owner.
[34] M.L. found the accused to be much more soft spoken than the studio owner and more technique oriented. She was in a business program at university at this point. She was taking lessons up to 4 times a week. The accused urged her to be more committed to her singing. He would say that practicing 3 or 4 hours daily was required, that she needed to live and breathe singing and to focus her activities on singing, saying “put your eggs in one basket”.
[35] The accused also told her about himself as a healer. He said God had given him healing powers and he believed he had a number of previous lives and was re-born to guide and heal people. In due course she began taking healing sessions with the accused. She recalled taking about 10 sessions in total. These took place in the evening, after regular lessons.
[36] M.L. explained that her goal in the healing sessions was to help with the anxiety she often felt and to get rid of minor ailments like colds, so that she could perform better. The sessions took place in a basement room near his basement studio. The accused would tell her to lay on her side on the bed or massage table and he would then get into the bed behind her and spoon her. She understood she was receiving a heat transfer from him. They were both fully clothed during this procedure. The accused also touched her on various places he called pressure points on her body. He explained he was transferring heat to energy to help her heal.
[37] M.L. testified that her present view is that the healing sessions did not help her at all, but at the time she had a curiosity about it and knew that the accused was held in high esteem as a musician and a healer.
[38] M.L. testified that “one time it was different”. She described a healing session in which the accused had her lie on her back on the massage table and remove her top and her bra. From a standing position he then proceeded to feel around her breast up to and including her nipples, explaining that this was what he needed to do to make her cough go away. The breast touching lasted about a minute, although her breasts remained exposed for 5 – 7 minutes while he felt for pressure points in her stomach area. She said she felt uncomfortable and scared and kept her eyes closed.
[39] M.L. did not display a hostile attitude toward the accused, although she clearly disliked the studio owner. She said the accused was something of a father figure to her – a person to be trusted, and she regarded him as an effective voice teacher who helped her considerably with her technique.
[40] In my view M.L. gave her evidence in a careful and understated fashion and I detected no effort to embellish or exaggerate. Like the other two complainants she seemed to be struggling to explain how it was that she participated in the healing sessions.
Evidence of the Accused
[41] The accused testified through a Spanish language translator. His answers were often non-responsive. He is currently 73 years of age and was 69 at the time of his interactions with the complainants. He came to Canada in about 1973 from his native Spain. From the time he was a young man he trained in classical music, sang professionally and played a number of musical instruments. He has spent his life in classical music and opera. I accept that he was highly qualified to undertake the voice teaching which he provided to the complainants and other students at the studio.
[42] Much of the accused’s examination in chief was spent discussing his musical background and the various prominent musicians he has interacted with from time to time. As noted, he was called Maestro at the studio, by the studio owner and students. In my view his status and reputation served to partially explain why the complainants did what he asked of them in the voice sessions and in the healing sessions. As noted, the 3 complainants were respectful and complimentary of the accused’s contribution to their voice training.
[43] The accused was asked to discuss his healing philosophy and technique. His testimony at times bordered on the bizarre. On the other hand he seemed to believe in what he was saying. He said that he believed God gave him the power of healing. He said he cures people and animals. He claimed to have cured 5 or 6 people of cancer although he cannot remember their names or other details. He has never taken any formal training or study in any of his techniques. Some of the manipulations he does he learned from healers when he was growing up in Spain. He was asked by his own counsel to explain the science behind his healing methods and he responded that he really had no idea.
[44] He explained three of his healing practices. Firstly he does Cranio-Sacral Therapy which involves touching and manipulating the head and neck. He also performs an energy transfer technique where he has his patient lay on their side in bed or on the massage table, after which he also gets onto the bed or massage table and lies on his side spooning or pressing up against the patient, his chest against her back, and holding hands. Asked where he learned this technique, he said his son had told him about it 7 or 8 years ago after taking a course in Arizona.
[45] He said that when he touches a person’s head he can visualize in his own mind red bumps or lesions and he can then hold his fingers over the area of the body where the bump is and he transfers energy until the bump turns from red to blue. Often he will touch the bump to make sure the image in his mind is accurate. He emphasized that the key to this therapy being successful is that the patient must believe in it and believe that he is a healer. He also explained that he performs Reiki which is a heat transfer from his fingers to a person’s body, without touching. He acknowledged in cross-examination that Reiki does not normally involve actual touching but said his method of doing it does involve touching.
[46] The accused essentially confirmed most of what was said by the three complainants about the general tenor of their conversations and what went on in the therapy sessions, including getting into bed with them or onto the massage table, for his energy transfer therapy. However, he denied any touching of their breasts or genital areas or any vaginal or anal penetration and he denied performing oral sex on A.L.
[47] The accused resisted the suggestions made to him in cross-examination that there was impropriety in him engaging in his healing sessions with his students or that there was any concern about intimate contact with these young women in a bed or massage table while they were alone in a secluded room in the basement of the studio. He attempted to suggest that his voice teaching and his healing sessions were two entirely separate matters. He denied he and the studio owner had any special influence over the complainants or that the complainants were encouraged to participate in the healing sessions.
[48] The accused was also vigorously cross-examined about the lack of propriety in involving himself in the medical care and treatment of the complainants and inserting himself into intimate aspects of their home and personal lives, some of which is recorded in the email and SMS messages in evidence. He refused to acknowledge that any of this was problematic. He offered the comment that F.R. was told by him that she should communicate about these personal matters with someone (“in order to get in touch with her feelings”), but not necessarily with him. He also asserted that the complainants could have brought their boyfriends or others into the healing room if they had any concerns.
[49] The court was left with the impression from the accused’s testimony that he was an individual with great self-confidence but with little sense of propriety or boundaries. He believed himself to be a god-given healer who was free to practice any kind of intimate therapy on these three young and impressionable students who were under his influence and authority. In my opinion his testimony and the attitude he displayed is corroborative of the complainants’ recollections of their experiences in the healing room.
Similar Fact Evidence and Collusion
[50] The Crown submitted the evidence of the three complainants should be assessed by the court not only individually but as similar fact evidence on a count to count basis. This was in the context that the issues in this trial are essentially (1) the credibility of the accused in his denial of the sexual touching and (2) whether the alleged sexual assaults actually occurred in the healing sessions.
[51] The case law establishes that similar fact evidence is presumptively inadmissible due to its inherent prejudice. However the cases point out that the risk of prejudice is considerably attenuated in a judge alone trial and particularly when the evidence is that of the other complainants in the charges before the court.
[52] In this case the evidence of the three complainants is of considerable probative value. The chance of three voice students being sexually touched in virtually identical circumstances, as a matter of coincidence, is extremely remote. The probative value of such evidence far outweighs any inherent prejudice to the accused. I find that the proposed similar fact evidence is relevant to the specific propensity of the accused to sexually touch young women in his healing sessions.
[53] Defence counsel properly conceded that the evidence of the three complainants could be accepted on a count to count similar fact basis were it not for circumstances of collusion which the defense submits exists in this case. Specifically the defence argues that the three complainants either intentionally or unintentionally colluded in regard to their evidence, prior to going to the police.
Collusion
[54] The Court of Appeal has recently outlined the proper approach to dealing with allegations of collusion in the context of admitting similar fact evidence, see R. v. Wilkinson, 2017 ONCA 756. I will review the evidence on alleged collusion below. However it is helpful to first review the correct analytical framework.
[55] The court held in Wilkinson that where there is an air of reality to the issue of whether there has been collusion, whether it is conscious or unconscious collusion, then the burden of proof shifts to the Crown to disprove that the proffered evidence has been tainted by collusion, on a balance of probabilities. Failure to meet this burden means that the similar fact evidence is not to be admitted. Even if the Crown meets this burden and the similar fact evidence is admitted, it remains for the trier of fact to determine if or to what extent any collusion may affect the weight to be accorded to such evidence.
[56] The rationale for this approach can be appreciated from five explanatory passages from Wilkinson, as follows:
(1) Although collusion is a feature of probative value, it is singled out for special consideration at the admissibility stage. It is not simply part of the overall balancing undertaken by the trial judge; instead, the Crown must disprove the possibility of collusion. Justice Binnie articulated the test in Handy, at para. 112:
Accordingly where, as here, there is some evidence of actual collusion, or at least an "air of reality" to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth.
(2) The dividing line between cases in which collusion is a live issue, and cases in which it is not, is the presence of an “air of reality.” As Binnie J. held in 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.” In that case, the Court agreed that there was something more – an air of reality, based on a financial incentive on the part of the complainant;
(3) The Court in Shearing also addressed the issue of collusion. As Binnie J. held, at para. 44:
The evidence here is far more speculative than in Handy. In that case, there was consultation between the complainant and the similar fact witness prior to the alleged offence about the prospect of financial profit. Here, there is some evidence of opportunity for collusion or collaboration and motive, but nothing sufficiently persuasive to trigger the trial judge’s gatekeeper function. There is no reason here to interfere with the trial judge’s decision to let the collusion issue go to the jury. He instructed the jury to consider “all of the circumstances which affect the reliability of that evidence including the possibility of collusion or collaboration between the complainants”. He defined collusion as the possibility that the complainants, in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar or more convincing. It was for the jury to make the ultimate determination whether the evidence was “reliable despite the opportunity for collaboration” or that “less weight or no weight should be given to evidence which may have been influenced by the sharing of information”. [Italics in original; underlining added.]
(4) However, decisions from this court support the view that actual collusion and unconscious collusion ought to be treated the same way at the admissibility stage. In R. v. F. (J.) (2003), 2003 52166 (ONCA), 177 C.C.C. (3d) 1 (Ont. C.A.), Feldman J.A. discusses both types of collusion, at para. 77:
The trial judge's finding that B.H. was sincere, a "straight shooter", and not influenced by E.T. and the others, fails to take into account that collusion and discussion among witnesses can have the effect of tainting a witness's evidence and perception of events innocently or accidentally and unknowingly, as well as deliberately and intentionally. The reliability of a witness's account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people's stories, which can tend to colour one's interpretation of personal events or reinforce a perception about which one had doubts or concerns. [Emphasis added.]
(5) R. v. B. (C.) (2003), 2003 32894 (ONCA), 171 C.C.C. (3d) 159 (Ont. C.A.) fosters the same approach. As the court said at paras. 40-41:
Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. In this case there was evidence of, or at least the opportunity for collusion in the various discussions regarding the incidents reported by the complainants. Furthermore, taken together with the anger regarding the dismissal and pay issues between one complainant and the appellant and the joint lawsuit by the complainants for damages, there was clearly an air of reality to the possibility of collusion in this case.
It was therefore incumbent on the trial judge, in considering the admissibility of the similar fact evidence, to determine whether he was satisfied on a balance of probabilities that the evidence was not tainted by collusion. In his ruling admitting the similar fact evidence, the trial judge did specifically refer to the fact that the witnesses had discussed some of the evidence with each other. [Emphasis added.]
[57] In a case such as this where the complainants’ evidence is already admitted in relation to the individual counts, the question of whether their evidence will be admitted on a similar fact basis on all three counts would normally be decided following a voir dire or at the close of the Crown’s case or alternatively, as here, on a consent basis, as part of the court’s decision following the completion of evidence.
[58] Based on the evidence I will now summarize, I accept the defence position and hold that there is an air of reality that the complainants colluded, I think unconsciously, with the result that the Crown must disprove collusion on the balance of probabilities, as in Wilkinson. For the reasons explained below, I conclude the Crown has met that burden and I admit the evidence on a similar fact count to count basis and I evaluate the alleged collusion or interactions between the complainants as a matter of weight.
[59] The evidence of all 3 complainants reveals that they were friends and understandably shared a love of classical music and an interest in events at the studio where they saw each other frequently and participated in workshops, competitions and other studio activities. The evidence reveals that they each decided to leave the studio in or around April of 2016. They went to the police and provided statements in June of 2016, in A.L.’s case, in August of 2016 in F.R.’s case and in September of 2016 in M.L.’s case.
[60] The three complainants were carefully cross-examined on the circumstances of their leaving the studio and the interactions they had prior to going to the police. The triggering event appears to have been the studio owner’s angry and aggressive reaction to what she perceived to be F.R.’s failure to promote or disclose her relationship to the studio when she was interviewed after participating in a music competition in Toronto. The studio owner saw this as a betrayal and invited F.R. to consider leaving the studio. This event was widely discussed in the studio and it led to the 3 complainants and one other student to have a meeting at a restaurant to discuss the situation.
[61] Interestingly the unhappiness of the complainants was focused on the studio owner who they saw as autocratic, emotional and negative in her dealings with them. At the restaurant meeting they recounted and shared their recollection of incidents with her, of which the Toronto competition controversy was the most recent. A.L. told the others that she had been unhappy at the studio and had been thinking about leaving for some time. She expressed the opinion that the studio had a “cult like” atmosphere.
[62] A.L.’s recollection of the restaurant meeting was that F.R. had arranged it so she could explain why she was quitting the studio. Part of the conversation was about F.R. being sexually touched by the accused. A.L. said this conversation brought home to her that inappropriate touching by the accused was happening to someone else and she found herself talking about her own experiences. She decided she needed to leave the studio herself and she then told her parents about the situation which resulted in her father sending an email to the studio saying that she was leaving.
[63] The restaurant meeting was the subject of further questions in cross-examinations. A.L. admitted that during this luncheon meeting, in response to F.R. asking if “anything inappropriate had happened with Jose”…she told F.R. about the genital touching. After the restaurant meeting she and F.R. went to F.R.’s apartment and had a further discussion including details of the sexual encounters they had experienced with the accused. A.L. said she and F.R. “hung out” several times before she went to the police on June 3, 2016.
[64] F.R. also testified about the restaurant meeting. She testified she arranged the meeting because she wanted to talk about the controversy surrounding the Toronto competition and about her concerns with the environment at the studio. She said she had the urge to ask A.L. about a question the studio owner had once asked her about whether she knew anything about A.L. being touched by the accused. She and A.L. then began talking about what had happened to them with the accused “…it just clicked that what had happened was not alright or O.K.” She and A.L. then went to her (F.R.’s) apartment and had further discussions about the accused touching them…including the details of where he touched them and they discussed “how they could have let it happen”. F.R. then told her boyfriend that she felt she had been a victim of sexual assault and he suggested she tell her mother. She did not share details of the touching with her boyfriend.
[65] Shortly after this, F.R. and A.L. met F.R.’s mother at a local restaurant to tell her of their concerns. They did not go into specifics about the touching but F.R.’s mother encouraged them to go to the police. F.R. subsequently told A.L. she intended to go to the police but first was going to go to France for a pre-arranged visit to see her dad and sister who lived there. At that time A.L. gave her the name of a police detective.
[66] M.L. testified that she had decided to leave the studio in late 2015. She felt that a hostile environment had developed for which she blamed the studio owner. She felt she was being treated disrespectfully and “yelled at” by the studio owner. She said this amounted to emotional abuse. In contrast she was complimentary about the accused who she saw as more of a supportive father figure although she had concerns about the healing sessions which made her uncomfortable.
[67] M.L. acknowledged that she engaged in a number of conversations with A.L. and F.R. about their experiences at the studio, including discussion of the discomfort they all felt about the healing sessions. She acknowledged that A.L. and F.R. had disclosed that the accused had touched their breasts and genitals. She said these references were in general terms and without specifics. She was unaware, prior to being asked in cross-examination, that there were any instances of oral sex or anal penetration. She acknowledged that when she had told F.R. that the accused had touched her breasts, some two years previously, F.R. had re-assured her it was simply part of the healing session.
[68] In summary, the departure from the studio of all 3 complainants in the spring of 2016 was the result of their concerns about the hostile atmosphere engendered by the studio owner. The complainants were friends and, at least in the case of A.L. and F.R., felt the need to talk about their experiences and whether they did in fact need to leave the studio. In that context they discussed the healing sessions with the accused and their feelings of discomfort about the touching of their genitals. It would appear that only at this point did they come to view the touching as improper, rather than merely uncomfortable and stressful, and as a matter that needed to be reported to the police. Their conversations served to validate their suspicions of impropriety and these concerns were reinforced by A.L.’s mother’s advice to go to the police. As well F.R. and A.L., for the first time came to appreciate the level and details of sexual touching that the other had experienced.
[69] However, in my opinion, there is no evidence that the three complainants in their several discussions about their experiences with the accused in the healing sessions, decided to misrepresent or embellish their recollection of events or to do anything other than tell the truth to the police and to this court. What these conversations did do, (accepting their evidence in this regard), is bring home to them the realization that they had been assaulted by the accused in the healing sessions, rather than simply being subjected to touching that was uncomfortable and unnecessary.
[70] Applying the principles outlined by the Court of Appeal in Wilkinson, the conversations involving the complainants do provide an air of reality to the defence argument that collusion may have occurred. However, I find that the Crown has discharged its burden of establishing on the balance of probabilities that there was no actual collusion in the sense of falsifying or exaggerating their evidence of the events, even unconsciously or unintentionally. Accordingly, I will admit the similar fact evidence.
[71] It was apparent from the accused’s evidence that he observed no boundaries in his healing sessions and saw no need for them. He refused to acknowledge any problem with providing unproven intimate heat or energy transfer therapies to his young students who were “encouraged” by both himself and the studio owner to participate. He saw no problem in getting into bed with them in an isolated bedroom in the basement of the studio, in involving himself in their medical care, in inserting himself into their personal and family relationships (as seen in highly inappropriate email and text messages) and by manipulating these women who depended on his guidance to reach their goal of becoming professional opera singers. In the face of this conduct it is difficult to accept his statement that he would never touch his students in a sexual manner.
[72] For the reasons discussed previously, I accept the evidence of all 3 complainants and I am satisfied on all of the evidence that the Crown has proven beyond a reasonable doubt that the accused sexually assaulted each of the complainants as charged in the 3 counts on the indictment. Specifically, the accused sexually assaulted A.L. in the healing sessions when he, on several occasions touched her breasts, her clitoris and pubic area and digitally penetrated her vagina and on one occasion her anus and performed oral sex on her during several of the healing sessions. I find that the accused sexually assaulted F.R. when on several occasions during the healing sessions he touched her breasts and pubic area and digitally penetrated her vagina and on one occasion her anus. I find that the accused sexually assaulted M.L. when, on a single occasion, he touched her exposed breast.
[73] I would emphasize that the evidence of the 3 complainants and that of the accused, was very similar about nearly all aspects of the studio, the voice lessons and, most significantly the healing sessions. The one crucial conflict in the evidence was the accused’s denial that he ever touched the complainants in their vaginal area or penetrated them digitally or performed oral sex. He said his relaxation and heat transfer therapies would not and did not include touching of these areas and absolutely did not occur. I disbelieve the accused and accept the evidence of the complainants that this touching did occur. I am further satisfied beyond a reasonable doubt that the touching occurred was for the accused’s sexual gratification and not as part of any legitimate therapy.
[74] The accused is found guilty on all 3 counts of the indictment.
Mr. Justice Charles T. Hackland
Released: January 25, 2019
COURT FILE NO.: 16-RA19456
DATE: 20190125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSE HERNANDEZ
REASONS FOR JUDGMENT
Hackland J.
Released: January 25, 2019