R v. Lai, 2020 ONSC 0231

CITATION: R v. Lai, 2020 ONSC 0231

COURT FILE NO.: 19-0578

DATE: 2020 01 15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Shu-Seng Lai

J. MacDonald , Counsel for the Crown

D. Robitaille and S. Hopkins, Counsel for Mr. Lai

Heard: December 2,3,4,5,9,10,11 and 13, 2019

mossip J.

reasons for judgment

Introduction

[1] Shu-Seng Lai (“Mr. Lai”), is charged with sexual assault against three former patients, S.C., C.B., and L.B.

[2] Mr. Lai is a Traditional Chinese Medicine (“TCM”) practitioner. The complainants were all patients who consulted Mr. Lai and received treatment from him.

[3] The alleged sexual assaults occurred in a clinical setting between the years of 2010 and 2013.

[4] Counsel agreed that the Crown’s Similar Fact Application would be argued at the end of the trial, and at the same time counsel made their submissions on the substantive charges. Depending on my decision on that application, the similar fact evidence may or may not form part of the Crown’s proof of the substantive charges against Mr. Lai.

Legal Framework

[5] Although I will set out the legal principles I applied to specific evidence later in my Reasons, here I set out the fundamental principles that govern my approach to the analysis of the evidence at this trial.

i. Presumption of Innocence and Proof Beyond a Reasonable Doubt

[6] Mr. Lai is charged with sexual assault. Mr. Lai is presumed to be innocent unless and until the Crown has proven his guilt of the offences charged beyond a reasonable doubt. The presumption of innocence is a cornerstone of our criminal justice system.

[7] It is said of the legal principles, presumption of innocence and the standard of proof beyond a reasonable doubt, that they go a long way in ensuring that innocent persons are not wrongfully convicted. It has also been said that a free and democratic society should be more concerned if one innocent person is wrongfully convicted, than if a guilty person is acquitted of a crime.

[8] The legal principle of proof beyond a reasonable doubt is explained to juries in every criminal trial. The following are such instructions taken from: David Watt, Watt’s Manual of Criminal Jury Instructions, 2^nd ed. (Toronto: Carswell, 2015).

The phrase, “beyond a reasonable doubt”, is a very important part of our criminal justice system.

A reasonable doubt is not a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

It is not enough for you to believe that an accused is probably or likely guilty. In those circumstances, you must find him/her/them not guilty, because Crown counsel would have failed to satisfy you of his/her/their guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. Proof beyond a reasonable doubt falls much closer to absolute certainty than to proof of probably or likely guilt.

If, at the end of the case, based on all of the evidence, you are sure that an accused committed an offence, you should find an accused guilty of it, since you would have been satisfied of his/her/their guilt of that offence beyond a reasonable doubt.

If, at the end of the case, based on all of the evidence or the lack of evidence, you are not sure that an accused committed an offence, you should find him/her/them not guilty of it.

[9] This instruction on reasonable doubt given to juries applies to a judge sitting without a jury on a criminal trial.

ii. Essential Elements of the Offence of Sexual Assault

[10] In order for me to find Mr. Lai guilty of sexual assault against any of the complainants, the Crown must prove beyond a reasonable doubt the following elements of the offence:

1. Mr. Lai knowingly touched a complainant;

2. The touching of a complainant was of a sexual nature; and

3. The complainant did not consent to the sexual touching.

[11] With respect to C.B. and L.B., the main issue the defence submits is whether the touching, which forms the basis of the charges, was of a sexual nature.

[12] If I find the touching was not of a sexual nature, I must find Mr. Lai not guilty with respect to these complainants.

[13] If I find the touching was of a sexual nature, the issue of consent to that touching must be analyzed in a medical or clinical context. More will be said about this issue below.

[14] With respect to the complainant, S.C., the defence submits the issue is whether I can be satisfied beyond a reasonable doubt that the events described by S.C. occurred, given the unreliability and incredibility of her testimony.

[15] The Crown submits that I should be satisfied beyond a reasonable doubt of the guilt of Mr. Lai, with respect to each of the named complainants. Based on the evidence and the applicable legal principles, there can be no doubt that the touching of the complainants was of a sexual nature, and that the sexual touching was without their consent. The Crown submits that if I find any of the complainants consented to the touching in question, that consent was obtained by fraud on the part of Mr. Lai. The touching was done as part of a form of treatment, which it was not, and therefore their consent was not an informed or legal consent.

[16] The fulness of the Crown and defence positions will be set out in these Reasons as I deal with the various issues and evidence I had to resolve.

[17] I want to make one final comment on the legal framework within which I must approach the evidence. There was evidence at this trial that all three complainants in 2017 were aware of what is referred to as the “# me-too movement”. All three complainants testified that examples of sexual assault by persons in positions of power and authority were everywhere in social media at the time they reported their allegations to the police, and that they read these stories. They each testified, with different detail, as to the impact of these reports on their decision to come forward to the police with their allegations about Mr. Lai.

[18] The concept of the “# me-too movement”, or the slogan “believe the victim”, have no place in a criminal trial. My only task is to decide if the Crown has proven the guilt of Mr. Lai beyond a reasonable doubt of the charges before the court. I must consider only the evidence I heard at the trial, assessed using the applicable legal principles.

[19] Complainants in a sexual assault trial, like all witnesses, must be treated respectfully, and have their testimony assessed fairly and according to principles applicable to every witness coming to court.

[20] With the above general principles in mind, I turn to the evidence in the case before me, and the application of those principles to the evidence.

Evidence at Trial

S.C.

[21] S.C.’s date of birth is May 4, 1985. She has been a certified professional accountant since 2011.

[22] S.C. first met Mr. Lai in May 2010. She had been referred to him by her osteopath.

[23] S.C. was experiencing infertility for about a year before she went to see Mr. Lai.

[24] S.C. first met Mr. Lai at his clinic on Surrey St. He introduced himself as “Dr”. Lai. She saw him for about two-hours on her first appointment.

[25] She did not really know anything about TCM when she first saw Mr. Lai.

[26] On the first visit he gave her a general health check-up with an emphasis on infertility. He looked at her tongue and read her pulses by putting his hands on her wrists.

[27] At this first meeting he told her about teas and supplements and said that the goal was that with his help, she would become pregnant. She purchased vitamins and products at his office.

[28] She felt very hopeful after her first visit that his work would help her to get pregnant. Mr. Lai was very optimistic that he could help S.C. get pregnant.

[29] S.C. went approximately seven times to see him at his clinic.

[30] Mr. Lai discussed energy work as something that he could do with her. He started talking about energy work on the third or fourth appointment. He said that a block in her energy was preventing her from getting pregnant. He did not tell her exactly what it was. She was interested in energy work because she thought it would help her conceive.

[31] He described energy work by demonstrating it on her. She was standing up and he was beside or in front of her. He rubbed his hand down her arm and across her torso, down the outside of her leg and the inside of her leg, across her torso again, and then the outside of her other leg. She agreed he could do this, and he showed her for a few minutes what energy work would be. She had seen him for about a month when he showed her this demonstration.

[32] He did the energy work in a different room. He told her the energy work could release the blockage.

[33] She trusted Mr. Lai during the time she saw him. She went back to see him after he demonstrated the energy work.

[34] After Mr. Lai asked S.C. if she wanted to do energy work, he asked her if she wanted to come in after hours for additional energy work when the office was closed. He said that it was not something he offered all of his clients and that is why he wanted her to come in after hours. He did not tell her what it would entail. He told her it would help to remove the blockage and she would be able to conceive.

[35] She had been taking teas and supplements for a couple of months. She bought these from his office. She paid for the visits and supplements at the same time.

[36] He did not ask her anything when he talked to her about the energy work. She had seen huge success because she started ovulating after she took the supplements and teas. She trusted him absolutely; she was imagining that she could possibly have a child.

[37] When he offered the extra energy work, she was hopeful and thought it was a good thing for her to do. She thought the energy work would unblock her and help her get pregnant. She did not know how it was going to be done.

[38] When he told her that he did not do the energy work with all of his patients, and he wanted to do it when the office was closed so the other patients did not know about it, she was not concerned about that. It did not cross her mind to be concerned. She trusted him. He said it would be complementary because he was writing a paper on this energy work.

[39] Her assumption was that it would be like acupuncture, or similar to the energy work that he demonstrated on her at his clinic.

[40] On October 25, 2010, at approximately 1:00 p.m. she went to his office.

[41] It takes two hours for her to get to Mr. Lai’s office from where she worked. She arrived around 12:00 p.m. The clinic was locked, and she knocked on the door and Mr. Lai opened it. He took her back to his office. No one else was in the office.

[42] Mr. Lai said that he was going to do energy work that might make her feel uncomfortable. He said she should try to stick with it, and it will help with the blockage. This conversation took place in his office.

[43] She was wearing jeans with a regular top. She did not tell anyone that she was going to the clinic that day.

[44] She started out talking to him in his office. He told her to come to another room and she followed him to the end of the hall. She was standing in the threshold of the other room that he took her to. He was standing by the table. The room was very small, and it was dark. There was a patient’s bed in the room, like an examination table. She had never been in that room with Mr. Lai before. She might have been in that room when some blood work was done on her.

[45] Mr. Lai stood very close to her in the threshold of the door. He started fondling her breasts over her clothes. He then fondled her breasts inside of her shirt. He put his hand inside her pants and his finger in her vagina. He penetrated her with his finger. Her shirt and bra were removed by him. He started sucking on her nipple and penetrating her vagina. She was still standing in the threshold of the door when this was happening.

[46] She did not know he was going to do this. She would never have consented to this touching. He told her the energy was moving. He told her to kiss him passionately. That is when she found her voice and told him to stop.

[47] Her shirt and bra were removed. Her pants and underwear were still on. His hands were still in her pants. He did not wear gloves when he took her pulses or touched her.

[48] He touched her breasts with his hands. He put his finger in her vagina. He did not tell her that he was going to do this. She did not agree that he could touch her breasts, or put his finger into her vagina, or put his breasts in her mouth.

[49] These events went on for approximately five to ten minutes. She was “frozen in time”.

[50] When he asked her to kiss him passionately, she did not do so. When she told him to stop; he did stop. She does not recall him saying anything else. She was still in the threshold of the room and he was inside the room. He did not remove any of his clothes.

[51] She got her clothing and put it back on in the threshold of the examination room. He went to his office while she was putting on her clothes. Her jeans were unbuttoned and pulled down slightly by him.

[52] She felt incredibly violated.

[53] She went back into his office. She did not say anything.

[54] He told her she did a great job and he felt that she could have lasted longer. He felt the energy moving. He was talking very business-like and in a professional, normal way. She did not see him take any notes on October 25. The appointment was complimentary; she did not pay anything for it.

[55] After he spoke to her in his office, she left. She got in her car and drove home. She did not tell anyone what had happened.

[56] She went back to see Mr. Lai in November. She does not know why she went back. She truly believed he would help her conceive a child; that is what she wanted more than anything.

[57] When she went back to see Mr. Lai in November after the October incident, she only saw him in his office; there was no further energy work done. He behaved toward her like a doctor would. He checked her symptoms and gave her a prescription for the teas and supplements.

[58] After the incident in October, she had her guard up, but she had seen changes to her cycles and thought that she could get pregnant.

[59] In November and December of 2010, she was pregnant. She got pregnant at the end of November.

[60] After the October 25, 2010 appointment when she went back to see him, he said that he felt that the energy work had really worked and helped her conceive. She went back three times in November and saw Mr. Lai on those occasions. They were regular appointments where he looked at her tongue and checked her pulses and she bought more supplements. She called the office to tell them she was pregnant. Her pregnancy was not successful.

[61] A few days before Christmas, she called Mr. Lai’s office and said that she was spotting. He was on holidays, so she saw a woman practitioner on December 23, who gave her some more tea.

[62] After the December 23 appointment, she had blood work done, which confirmed that she had a miscarriage. After December 23 she did not go back to see Mr. Lai or anyone else at the clinic.

[63] When she called the office to say she had lost the baby, the receptionist told her that the woman practitioner said to her that she believed S.C. was going to lose the baby.

[64] Mr. Lai called her at her office in February or March. He wanted her to come back to the office and told her that he could help her get and maintain a successful pregnancy. She said that she was not going to go back. He tried to encourage her to do so but she would not go, and she never went back to see him. She did not hear from him after his call.

[65] Prior to contacting the police, in October 2017, she had not told anyone about the incident.

[66] She contacted the police; it was during the “# me-too movement”. She was literally having panic attacks every time she went on social media. She wondered how many other people Mr. Lai had done this to. She decided to come forward to the police.

[67] She does not know C.B. or L.B.

[68] On one other occasion he had asked her to kiss him and she said “no”. She was confused by him asking her this. It happened on the day that he demonstrated what energy work was. She was confused and put it off as a cultural thing; just pushed away that he asked her to kiss him.

S.C. Cross-Examination

[69] Her first contact was with the police on October 18, 2017. She gave a videotaped statement to Sergeant Clark on October 26, 2017.

[70] She works at BDO, which is an international and national accounting firm. She agreed she was active in her community in volunteer organizations. She agreed she has a Facebook account in which she warns people about issues such as, Revenue Canada scams or the danger of children being in car seats with bulky coats on.

[71] Prior to seeing Mr. Lai, she had engaged the services of a naturopath who also performed acupuncture. She was seeing an osteopath. She consulted Mr. Lai because she was looking for a natural alternative to western medicine. She thought he was a doctor of Chinese medicine. She did not think he was a western doctor.

[72] She saw Mr. Lai for the first time on May 11, 2010. She saw him for approximately 90 minutes. They were two separate appointments the same day, separated in time.

[73] She saw Mr. Lai again in June, July, August, September and on October 13, 2010 for 30-minute appointments.

[74] She had been trying to conceive for approximately 1-year before she saw Mr. Lai. She had not been diagnosed specifically with any medical reason for her infertility.

[75] S.C. agreed that in her police statement that she told the police officer that there was one appointment where Mr. Lai asked her for a kiss, and she refused. She thought this was a breach of protocol and it “crossed a line”.

[76] The request for a kiss came before the October 25, 2010 appointment. She believes it was the appointment immediately before the October 25 appointment; that is her best recollection. She cannot say for certain that it was October 13 but agreed that is the date of her appointment immediately prior to October 25.

[77] She agreed that her complaint to the police came seven years after she says she was assaulted. The assault lasted approximately five to ten minutes. It is now nearly nine years ago.

[78] When she met with the police, she said that she had been suppressing the memory for seven years. She was very good at suppression. She had not told anyone, not even her husband.

[79] In the week between her call to the police and her statement, she agreed that she was trying to figure out how she could get out her story to the police since she had not told it to anyone. She thought her memory had improved over time, because she had time to process the events. In the fall of 2017, her memory of the events had not completely solidified. Some of the events that she talked about became more clear over time, and her memory improved. Her memory improved and became clearer after she spoke to Sergeant Clark. Her memory became clearer at the preliminary inquiry.

[80] S.C agreed that when she spoke to the police officer, some parts of the five to ten minutes events were not clear. She explained that different questions were asked at the preliminary inquiry, and the trial, that caused her to remember different details.

[81] She agreed that at the preliminary inquiry she said she picked her bra up off the floor, but she did not describe that event to the police. In her police statement she said that she was sure her shirt had been removed and she “thinks that her bra came off”.

[82] She testified that at the preliminary inquiry her memory had improved. This was after she had spoken to the police. The memory was there, she just did not realize it at the time, for example the picking up of her bra off the floor. She could not access that memory when speaking to Sergeant Clark. Her memory of picking up the bra came as a result of thinking about it more and she remembered more detail. Even though more time had passed, her memory has improved. The memory she relies on at the trial is her memory of collecting her bra from the floor.

[83] She does not have a memory of Mr. Lai taking her bra off; that is the physical taking of it off. She knows for certain that she did not take her bra off. She remembers picking it up from the floor.

[84] She agreed that she told the police officer that “my shirt came off” and when asked she said, “I think so”. But she agreed she did not tell the police that she picked her bra up from the floor. She cannot say she did not have that memory in the fall of 2017 when she spoke to the police, she just did not tell the police about that memory.

[85] She told the police officer that she could not recall if she kissed Mr Lai on October 13, 2017. She told the police she, “wants to say that, she didn’t”. She agreed this is an example of how she was confused on the issue as to whether she kissed him on that date.

[86] At the preliminary inquiry when being asked these questions, she was having a hard time recalling whether she kissed Mr. Lai or not. This is concerning the October 13, 2010 incident, when she says Mr. Lai asked her to kiss him.

[87] Since the preliminary inquiry, it has become clear to her that she did not kiss Mr. Lai. She agreed in the fall of 2017, when she spoke to the police, she is having trouble remembering the events accurately. She does remember that she thought the request for a kiss was a breach of protocol and a crossing of the line.

[88] She agreed that on October 25 she thought she was going to have acupuncture or “something like that”. In her police statement she did not say that she thought she was going to have energy work done. Her understanding was that Mr. Lai was going to unblock the energy. She thought it was going to be acupuncture.

[89] At trial she testified that she thought the treatment would be acupuncture or energy work. The energy work she was thinking about was like when Mr. Lai touched her legs and arms. She was expecting a treatment where the energy would be moved.

[90] On February 16 she did not call Mr. Lai first and ask him to call her. He called her unsolicited.

[91] S.C. agreed that she is being inundated on Facebook by the “# me-too movement” and about women being the subject of harassment and abuse. She is trying to process what happened to her. She has told no one what happened to her. In the interval she is exposed to social media and her friend’s postings which are exploding about the “me-too movement”. She read all of these accounts before she told the police for the first time about what she said happened to her.

[92] S.C. stated that the memory of what happened to her was always there; she chose not to access it before she went to the police. When she went to the police, she did not deliberately not tell the police about all her memories. She agreed there was some fogginess in her memory. She agreed she was reviewing her memories with the benefit of hindsight.

[93] She also told the police that in hindsight she believed Mr. Lai was “grooming” her. She knew about that term when she was growing up, in relation to children.

[94] She agreed that when she met with the police, she told them that she was questioning everything that had happened to her with Mr. Lai.

[95] She agreed when she was questioned by the Crown at the preliminary inquiry, she did not tell the Crown about Mr. Lai asking her for a kiss before October 25, 2010. She did not tell the Crown that this request was a concern to her and that it was prior to October 25, 2010. At this trial she first told the Crown that there was nothing else that she was concerned about prior to October 25, 2010. Eventually she told the Crown that Mr. Lai had asked her on an earlier occasion to kiss him.

[96] At the preliminary inquiry when she answered questions of the Crown in chief, she did not mention that Mr. Lai had asked her earlier to kiss him. She explained that this was because she was not asked about the earlier request for a kiss.

[97] S.C. agreed that she thought Mr. Lai had “crossed a line” when he asked her for a kiss. She agreed that Mr. Lai told her to keep the October 25 appointment a secret even from her husband. She agreed she knew that the office was closed and no one else would be around. She also knew that she did not have to pay for the appointment.

[98] S.C. agreed that she told Mr. Lai to stop what he was doing, and he did.

[99] S.C. agreed she testified that she did not tell anyone about the October 25 appointment before or after the appointment. She then agreed that she had met an acquaintance in the parking lot before her appointment and told that acquaintance that she had an appointment. She agreed she pointed to the building and said, “I have an appointment at the center for Chinese medicine”.

[100] S.C.’s explanation was that she did not mention she told the acquaintance in the parking lot, because in her mind she was thinking the question was about a workmate or her husband who she might have told about the appointment.

[101] S.C. agreed that in her Outlook calendar for an appointment on December 9, she made a note that she had a “phone consultation with Dr. Lai”. On October 25, she noted that she was “off”, not that she had an appointment with Mr. Lai.

[102] She agreed that, with respect to the appointment on October 25, she trusted Mr. Lai 100%; that was her state-of-mind or she would not have walked into the room. Until this time he had been completely professional with her. She agreed that statement is not entirely true, because she testified that he had asked her for a kiss at the appointment before this one. S.C. explained that she trusted Mr. Lai at this time because of the success she had had with his treatments, and because of how professional he had been with her.

[103] At the trial, S.C. maintained that she trusted Mr. Lai 100%, even though he had crossed a line on October 13, he had asked her to come to the appointment on October 25 and not to tell anyone not even her husband, no one would be in the office, and there would be no charge for the appointment.

[104] After she spoke to the receptionist following her miscarriage in December, she was very angry to hear that the women practitioner had told the receptionist that she believed S.C. was going to miscarry. Because of this betrayal she cancelled all of her upcoming appointments at the clinic.

[105] S.C. agreed that the alleged assault occurred on October 25. She went in to see Mr. Lai on November 4 in his office, just the two of them with the door closed. She went to see him on November 16 and November 25 as well. She increased the frequency she saw Mr. Lai after the alleged assault on October 25. She testified that the increased frequency was Mr. Lai’s suggestion, because the teas were to be taken more often.

[106] She agreed she sent an email to Mr. Lai at his office on November 30 about an upcoming appointment she had with an acupuncturist. She had a question for Mr. Lai because she said that she valued his opinion very highly. She agreed that this email shows that she was ovulating in November.

[107] At the trial she testified that it was her acupuncturist who asked her to reach out to Mr. Lai, as she did in the November 30 email. She agreed she did not say that at the preliminary inquiry. She agreed this is the first time that she has said that.

[108] She denied that it was her that wanted to see Mr. Lai more often after the October 25 appointment and that it was her that initiated the more frequent visits.

[109] She agreed that there is an email dated February 26, 2011 to Mr. Lai’s office referring a woman named Penny Watson to him. She knew Penny because she was married to her boss; the couple was trying to have a baby.

[110] S.C. was also aware that a daughter of a co-worker was trying to have a baby and that teenage girl was seeing Mr. Lai.

[111] S.C. never told anyone that she had been assaulted by Mr. Lai for seven years. During this time, she did not try to persuade anyone from not seeing Mr. Lai. She knew during this time that Penny Watson and Amanda (the daughter of the co-worker Alison), were going to see Mr. Lai. She agreed she could have said they should go and see someone else. She did not retract her recommendation of Mr. Lai to Penny Watson and there was no warning from her to either of these women about Mr. Lai.

[112] She agreed that prior to this trial when she was asked by her co-worker Alison if she had received a call from a lawyer, she said “yes”, and that was not true. She agreed she lied to Alison about that phone call. S.C. testified that she did not want to talk about the assault and that is why she did not warn Alison about Mr. Lai. She agreed she could have lied and warned her without telling her she had been assaulted. She agreed she is capable of lying to Alison.

S.C. Re-Examination

[113] In re-examination S.C. said that she did not warn Alison or Penny because she did not want to talk about what had happened to her.

[114] S.C. testified that she did not go to see any other TCM practitioners because Mr. Lai was supposed to be the expert on infertility; she wanted to get pregnant.

[115] S.C. testified that after the events in October, she continued to see Mr. Lai because she wanted a baby; that was her focus. S.C. trusted Mr. Lai because what he was doing was working; she started to ovulate.

[116] S.C. testified that when she stated she “suppressed” the memory when she had flashbacks, she meant that she tried to think of something else; she did not forget what had happened. When she testified that her memory improved over time, she meant that once she came to the police, she was forced to sit with her memory to process what had happened, and she remembered the events to which she testified.

[117] When she told the police “I am questioning everything that happened”, she meant that with the benefit of hindsight, her going back to Mr. Lai after the October incident would have seemed foolish. She questioned why she went back to his office after the assault.

[118] By saying that Mr. Lai had been grooming her, she meant that when he was moving his hands up and down her body to demonstrate energy work, he was “testing the waters” to see if he could assault her later.

[119] She told the police in her first statement that “he told me he was going to do energy work” on October 25, 2010.

C.B.

[120] C.B. was born June 3, 1978. She is a social worker by profession.

[121] She went to see Mr. Lai in 2009. She had fertility issues for approximately four years. C.B. had heard from someone that she had a successful pregnancy after she saw Mr. Lai. She consulted Mr. Lai for fertility issues.

[122] In 2009 she understood Mr. Lai to be a Chinese doctor. She knew he prescribed herbal teas and medicines. She saw him at his Surrey St. clinic.

[123] The first time she saw him, she believes she saw only Mr. Lai. She filled out some paperwork. Mr. Lai did some tests and went over her weight. When he first met her, he introduced himself as “Dr.” Lai. She knew he was not a western doctor. She believed he was a Chinese doctor.

[124] She discussed with him three kinds of treatments he would use, namely, acupuncture, herbal teas and vitamins.

[125] She paid for the treatments and paid for vitamins and teas at the same time.

[126] She had acupuncture done by another practitioner at the clinic. Dr. Zhou, who was described as an acupuncturist. She saw Mr. Lai at the same appointment when she saw the acupuncturist.

[127] C.B. saw Mr. Lai in his office which had a desk in it. He sat behind the desk and she sat across from him.

[128] The acupuncture was done in a different room. There was a table to lie down on, and with acupuncture supplies in the room.

[129] After seeing him for about three months, she talked to him about other things that were going on in her life; stresses from work, and family. Mr. Lai told her at some point that he would do “energy work” to help her. He talked about doing energy work to assist with the tense areas in her body. He said that it involved massaging the areas to get rid of tension. He told her the massaging would take place below her belly button, into the pubic area.

[130] Mr. Lai told her the energy work was probably something she should not tell anyone about. It was “non-traditional” work.

[131] She did have the treatment as described. She saw him for about six months before she got pregnant. She was taking teas, vitamins and having acupuncture.

[132] The energy work was done in one of the other rooms. She was on a massage table and laid down on her back. She was clothed. He would ask her to undo her pants. He would push (massage) around her belly button, down to her vagina area (pubis). He massaged her with his hands with no gloves.

[133] The massaging went on for about five minutes. She does not recall him saying anything when he was massaging her, the door was closed, he was off to the side of her. She had that same procedure done about two or three times.

[134] She got pregnant in December 2009. She started to see Mr. Lai in June 2009. Any energy treatments she had with Mr. Lai were before she got pregnant. After she got pregnant, she did not have any energy work. She never requested energy work.

[135] They had general discussions about how she was doing and her stress level. He would suggest energy work to help her with stress.

[136] The two to three times she had energy work done, it was the same type of massage; he touched her in the same place. She did not have energy work done or pushing on her stomach after she was pregnant for fear of a miscarriage.

[137] On September 25, 2010 her daughter was born. She went to see Mr. Lai after she was pregnant. She took herbs for the first six weeks then stopped because she developed an aversion to them.

[138] After her daughter was born, for a couple of months she went back to see Mr. Lai for insomnia and anxiety.

[139] She took teas and vitamins for anxiety and insomnia after her daughter was born. She did not have acupuncture. When she went back to see Mr. Lai for insomnia and anxiety, she did not have any energy work done at that time.

[140] In September of 2012, her and her husband decided they wanted to have another baby. She went back to see Mr. Lai for infertility. She took vitamins and tea at that time but not acupuncture. In 2012 she felt very confident with Mr. Lai; she trusted him.

[141] All the treatments for energy work were done on the massage table lying on her back. He was beside her. Other than undoing her pants, she was clothed.

[142] On October 9, 2012, she went in for an appointment. She had a discussion with Mr. Lai, and they talked about her stress levels with work and family. He suggested he do energy work. She did not specifically ask him for energy work. This was in the Morriston, Ontario clinic where he had moved to in 2011. They were in his office and the door was closed.

[143] Mr. Lai said he could do energy work with her again. It would be the same as the other times, massaging the areas that she described, namely, touching below her belly button and gentle massaging with no force applied.

[144] On October 9, he spoke to her about energy work and that is what she thought it would be, like the previous times. She understood it would take place in another room.

[145] Mr. Lai and she went into another room in his clinic; she was standing up. She undid her pants, there was touching of the same area and her breasts as well. He was standing behind her. The touching of her breasts was underneath her clothing. She had on jeans and a sweater. He put his hands up under her sweater and touched her with both of his hands. She is not sure if the bra she was wearing was undone. He was groping; ;the massaging was a rougher touch than previously. The whole thing took approximately five minutes.

[146] He was touching down her pants as far as he could reach with his hands. He did not put his hands in her vagina; the closest he got was to her labia.

[147] He had never done that before. He did not ask if he could touch her there. She did not agree to him touching her there. He did not tell her he was going to touch her there. His hands were just still, they were not moving around.

[148] C.B. testified that Mr. Lai did not ask if he could touch her breasts and she did not agree for him to touch her breasts. He did not tell her he was going to do that.

[149] Mr. Lai was touching all over her chest area as well as her breasts. He was doing the same thing, he was “groping”. He had not done anything similar when he did energy work previously.

[150] C.B. paid for the visit and left the clinic. Driving home she felt like a boundary had been violated. She did not go back to the Morriston clinic after October 9, 2019.

[151] She did not want to see Mr. Lai again after October 9. She was uncomfortable and felt that she had been violated. After October 9 he phoned her at work to speak to her. He asked if she would come back in to see him. He encouraged her to come in and have energy work done in the same cycle time.

[152] C.B. testified that she had a conversation with Mr. Lai about what energy work he would do. She had a conversation about where he would touch her. She asked him “was he thinking he would put his finger into her vagina?” And he said “yes”. She asked, “why would he have to do that?”, the answer was that “it had to do with the roles in her life that she held onto”.

[153] When she got in her car, she felt violated; he had touched her further down her pants with his hands. It felt different than the previous times he did energy work. He didn’t say he was going to do the energy work before he did it, she felt comfortable with what work he did with her previously.

[154] C.B. thinks it was in part because of the work done with Mr. Lai that she got pregnant. She told her husband what she said Mr. Lai did within a week of the events. She also shared it with her chiropractor and spoke to another woman.

[155] She went on anti-depressants in in December 2012 and lost weight.

[156] In November 2017 an article came out in the local newspaper about Mr. Lai. A friend sent it to her and asked her if she had seen it.

[157] On December 17, 2017, she gave her first statement to the police. On January 7, 2018 she gave her second statement. C.B. went to the police because she thought about what had happened to other women from the press release. She went in for a second interview at the end of January 2018 and was asked to look at some entries in her clinical chart.

[158] On November 18, 2009, when she went into Mr. Lai’s office, he explained that energy work was about releasing roles in her life that held tension and that she held tension in her abdomen. He never said it involved touching in her private area. On December 29, 2009, she does not recall requesting energy work at that time. On February 26, 2010, she was pregnant with her daughter, and she did not request energy work. On March 10, 2010, January 7, 2011, and October 9, 2012, she did not ask for energy work. October 9, 2012, Mr. Lai talked about the stresses in her life, and he suggested energy work to help with those stresses.

[159] She also saw an acupuncturist at Mr. Lai’s office and that acupuncturist did not talk to her about energy work.

[160] She does not know S.C. or L.B.

[161] The article in the newspaper caused her to want to come forward, because at that point she knew there were other women who may have been sexually assaulted. The article did not say what the details were regarding the alleged sexual assaults.

[162] After she got the follow-up call from Mr. Lai, she was more convinced than before that something inappropriate had happened. She thought this because of the way that he spoke to her; he seemed to be out of breath.

[163] The last communication she had with Mr. Lai was when he phoned her at work. That was the first time he had called her at work or anywhere else.

C.B. Cross-Examination

[164] She first contacted the police on December 17, 2017 and gave her first statement to the police. She gave her second statement to the police on January 7, 2018.

[165] On October 9, the date she alleges she was sexually assaulted, she was standing when the events occurred. Prior to this date when she had received energy work from Mr. Lai, she was lying down.

[166] Prior to attending with Mr. Lai, she had tried other interventions to deal with her infertility which were based on the western model. She agreed that she was looking for another way to solve her infertility problems which was not the western model.

[167] She knew that Chinese medicine would approach infertility differently.

[168] She agreed that Mr. Lai talked to her about energy work. He did not use Chinese expressions when he talked about this. He told her about alternative medicine treatments such as abdominal massages. She knew that the Chinese model took a holistic approach.

[169] She talked to Mr. Lai about the stresses in her life. He said they were all connected to her infertility. Mr. Lai told her that she had taken on certain roles which were putting stress on her, such as her social worker role, her wife role and her daughter role. The physical reaction to these roles was a tensing of her lower abdominal muscles; this was a manifestation of her anxiety.

[170] When Mr. Lai massaged her from her belly button to the pubic area, this made sense to her. She felt comfortable and consented to this touching. In her mind now, she is not sure if it was “informed consent”. She signed a consent dealing with other kinds of therapies, not energy work specifically.

[171] At the appointments with Mr. Lai, he looked at her tongue and hands. He did a physical exam and took her pulses. She would also talk to him about how she was feeling and her digestion. She understood that he was checking her tongue and taking pulses, as a diagnostic technique in Chinese medicine.

[172] She understood that Chinese medicine included acupuncture, checking her tongue, and taking pulses; lower abdominal massages are not specifically listed as a treatment. She understood that not all of the TCM diagnostic techniques and treatments are set out specifically in the consent form. She agreed she signed a consent form at the outset of her relationship with the clinic.

[173] She agreed that she did not hear in her initial appointment, everything that would be done to her in treatment. Specifically, it was not explained to her that abdominal massage was a traditional Chinese medicine technique, prior the massage being done.

[174] She agreed that at the time Mr. Lai touched her and did abdominal massages prior to her first pregnancy, that she agreed to such touching. When she went back to Mr. Lai in September 2012, she was experiencing stress and infertility. She also was experiencing anxiety because of her stress. She agreed that she and Mr. Lai were dealing with her infertility and stress in September 2012.

[175] In October 2012 she again discussed the stress affecting her, and the roles that she was carrying. This discussion took place prior to the treatment she described on October 9, 2012.

[176] She was asked by Sergeant Clark if she requested the energy work to be done on October 9. She agreed she told the police officer that she did not recall she had asked for energy work. She agreed that Mr. Lai presented energy work as an option for her and that she would have agreed to that work because she wanted to get pregnant.

[177] On October 9 when she went into the room, Mr. Lai asked her to stand up, and she did that. He asked her to undo her pants and she did that. She did not tell him to stop or that she felt uncomfortable. She stayed until the completion of the treatment. At the time of the treatment, she did not know what to think. She described what he was doing as “groping” on her upper body; as rough touching. Mr. Lai’s hands were “cupping and gripping”; they were firm not light. The massage like this happened all over her torso.

[178] C.B. testified that when Mr. Lai placed his hands down her pants, he did not move his hands. He was touching in the area of the pubic bone. The closest thing he was touching was her labia. She agreed that she testified in chief, that he was not actually touching her labia.

[179] When he was doing this touching, Mr. Lai was not exerting any pressure. There were no sexual comments made by him. He was not moaning or groaning.

[180] She agreed that she testified in chief that Mr. Lai placed his hands down her pants; it was close to her labia. The hand was still and near her labia.

[181] When she got into her car, she felt violated.

[182] C.B. testified that this touching was different than the other times that he put his hand down her pants; it was different than when he touched her breasts.

[183] The events took approximately five minutes.

[184] The touching of her breasts could have been first. She cannot remember if her bra was undone and if he was touching over or beneath her bra.

[185] She agreed that she initially told the police that she saw Mr. Lai six weeks after getting pregnant, and that she did not see him after she was pregnant. Upon reviewing her clinical records, she realized she did see him throughout her pregnancy and saw him once a month while pregnant. She testified that she did not recall those appointments when she spoke to Sergeant Clark.

[186] C.B. testified that she has a memory of the energy work being done on her abdomen prior to her becoming pregnant. She has a clear recollection of it being done two to three times. It is possible the energy work occurred more often.

[187] When she went back for a second police interview on January 7, 2018, she was told by Sergeant Clark that the officer had her medical record. She did not review all of her records when she was shown certain entries that Sergeant Clark had questions about. Sergeant Clark read the entries that she had questions about.

[188] In examination-in chief, she said that when Mr. Lai called her after October 9, she asked him about the energy work and what was he thinking he would do. She said that she asked him if he would put his finger into her vagina. When she spoke to Sergeant Clark, she said that the suggestion about the finger in her vagina came from Mr. Lai.

[189] At the preliminary inquiry she testified that there were aspects of Mr. Lai’s telephone call with her that disturbed her. One of those aspects was that he called her at her new place of work and at a new number that she did not think he had. She agreed after looking at her file she realized that she had told Mr. Lai she had a new job and that her new phone number was in the file. She agreed that Mr. Lai’s phone call had bothered her at the time she talked to the police; she was suspicious and had a disturbing feeling that he had her new work phone number. This was on her mind when she spoke initially to the police.

L.B.

[190] L.B.’s date of birth is May 20, 1971. In the summer of 2001, she had some digestive issues and she sought out Mr. Lai because of his traditional Chinese medicine practice. She knew that TCM involved herbs and acupuncture. She found Mr. Lai on Google and went to see him at his clinic in Morriston.

[191] She had stomach issues and was under a lot of stress at the time. She had been to see a naturopath but did not get any relief. L.B. got teas and herbs from Mr. Lai as treatment.

[192] When she went to see Mr. Lai in his office, he called himself “Dr”. Lai. At the time she went to see him she was interested in TCM, she was thinking about going to school to study TCM. She was also attending a school in Kitchener which was teaching alternative medicine. The school in Kitchener, was just for self-interest. The school in Toronto required an application and was an educational course.

[193] L.B. talked to Mr. Lai in December of 2011 about energy courses that she was taking at school. He said that he could help with the courses. She thought he meant he could help her by further educating her about energy work.

[194] Mr. Lai knew that her marriage was challenging. He did not know the details about her marital problems.

[195] Shortly after Christmas 2011, she had a conversation with Mr. Lai about him being able to help her with energy work studies. He never explained what he meant by energy work.

[196] She went to the police in December 2017. She spoke to the police about an incident that happened in February 2012.

[197] A week or two before the incident in February 2012, Mr. Lai said that he could help her with energy work. She thought it would be like the work he did in his office. He said that he did not come to his office on Fridays and that she could come to his home for him to do this work. She made arrangements to go to his home at the end of February.

[198] At this appointment, prior to the late February appointment, L.B. sat across the desk from Mr. Lai; she was more stressed than usual. Mr. Lai rubbed her on the back of her shoulders; he rubbed her shoulders vigorously. He said he could help her with energy work.

[199] She was standing, and he was standing behind her. He referenced the term Qi Gong. She made the assumption that that was what he was doing. He did not tell her he was going to do it before he did. He rubbed her shoulders for just a few minutes and then the appointment ended.

[200] The appointment she made to go and visit him at this home was in mid to end of February. It was in the late morning on a Friday.

[201] At the beginning of the appointment, they talked about how she was feeling. Initially they sat on the couch and had a conversation. They both stood and he was behind her. Mr. Lai rubbed across her back and shoulders vigorously. He told her to breath, relax, lift her shoulders, take deep breaths. He rubbed her shoulders back and forth for a few minutes. He moved to the side of her and had one hand on her back and one hand on her front. He was rubbing her neck and then he moved down. He rubbed there for a few minutes. Throughout all of this he was telling her to breath and relax and to let go. He did not say what he was going to do before he did it.

[202] Mr. Lai started to move down, rubbing back and forth across her breast and pressing; it was not vigorous, it was rubbing. He was using one hand to do that. He touched both breasts with this rubbing.

[203] Mr. Lai told her it was easier to move his hands around her breasts if her bra was off. He asked her to take off her bra and she said “no”. The rubbing was over her clothes. He was still standing to her right. He was “caressing” in her breast area. He did not explain what he was doing while he was rubbing her.

[204] He moved down her stomach, around her waist and was moving back and forth. It was with a lighter touch and it was over her clothes.

[205] When he got to her waist, he asked her to undo her button. She did not respond, so he undid her button. She did not say anything. He did not ask her if he could undo her button. It was the same general movement back and forth.

[206] He was touching her stomach and touching with his one hand and standing to her right using his right hand.

[207] Mr. Lai’s hand went down further; it was touching skin on skin. His hand was under her underwear, and he put his hand on her vagina. He did not ask if he could put his hand on her vagina. He did not tell her he was going to do that. She did not consent to him touching her there. When he touched her, it was the same caressing motion he had been doing all along.

[208] In a few seconds she stepped back. She did not agree to where or how he touched her.

[209] He removed his hand and did up her pants. They made small chit chat.

[210] When he was touching her on her breasts, she testified that she just let it go; she thought it was more of what he had done on her chest before. When he was touching her vagina, she knew a line had been crossed. She just wanted to get out. She never spoke to him again after she left his house.

[211] She did continue to have acupuncture at the clinic. She had bought a package of acupuncture sessions, and she wanted to use them.

[212] He wrote her a letter of recommendation for the TCM school. He wrote the letter before the incident. He gave it to her at the office by hand.

[213] She did not pay for the appointment at the house. There was no discussion about payment; there was no discussion at all. It did not cross her mind about payment.

[214] She does not know S.C. or C.B.

[215] Mr. Lai did not tell her about energy work or anything about the lower chakras in her private area. He did not tell her he was going to do energy work on her. She did not request that energy work be done on her or say that it had been helpful. She did not tell Mr. Lai that she wanted energy work done on December 16. She was shown an entry in her clinical record that indicated she had. She denied this suggestion.

[216] She denied the notation in her record on February 9, 2012 which said that she told Mr. Lai energy work was helpful; that it was the most help to her. She did not tell Mr. Lai that energy work made her feel loved, as it said in the clinical notes.

[217] L.B. testified that she did not propose to have an affair with Mr. Lai, and that in response he told her to focus on her marriage as it said in her clinical record.

[218] Mr. Lai did not wear gloves or any protection when he touched her. Sometimes Mr. Lai wore a doctor’s coat at the clinic.

[219] She did not tell anyone what had happened to her before she went to the police.

[220] She was embarrassed, because at 40 she wondered how did she get herself into this.

[221] In late November 2017, she saw a news release in Guelph and saw that an acupuncturist in Guelph was charged with sexual assault. The press release said that if you had any information on this issue to contact the police.

[222] L.B. testified that around this time, women were getting a voice. She thought that someone might actually believe woman at this stage. That is one of the reasons that she went to the police.

L.B. Cross-Examination

[223] In 2011 and 2012 she was having difficulties with her husband. She decided to end her marriage in 2013.

[224] She contacted the police in December 2017, and she gave a videotaped statement to Sergeant Clark in December 2017.

[225] She testified that in February 2012 she was 40 years old. She was interested in alternative medicine before she saw Mr. Lai. She prefers alternative methods of medicine over western medicine and believes that the body can heal itself. She was seeing a naturopath, osteopath, massage therapist, and acupuncturist.

[226] She believes in holistic nutrition. She was taking a self-interest course in Kitchener on these topics. She had an interest in her own body and in educational components.

[227] In the winter of 2012, she was learning about chakras. She knew it was based on East Indian tradition.

[228] She knew that TCM and the East Indian tradition dealt with energy areas. She also knew that the root chakra was in the genitals. She was interested in chakra studies and understanding. She knows that energy in TCM is referred to as chi.

[229] She testified that she received a shoulder massage from Mr. Lai on one occasion. She was told that she was holding tension in her neck and shoulders. She testified that she had acupuncture to help with this tension. She knew that the needles were placed in acupoints that follow the meridian and the acupoints are all mapped out in TCM. She also got a Qi Gong massage from Mr. Lai, of her shoulders over her clothes. She understood that massage was more a muscular treatment. She knew that acupuncture had to do with energy.

[230] She did not know at the time that teas were for energy. She knew that herbs were part of the energy remedy. She had some knowledge back then, but she knows more now.

[231] He called the shoulder massage he gave her a Qi Gong massage. He was very professional prior to the incident at his house.

[232] She told Mr. Lai that she was enjoying the TCM course and that was thinking of a career choice in TCM.

[233] The discussion with respect to going to Mr. Lai’s home arose in the context of energy medicine. He was going to teach her about energy medicine and that is why she agreed to meet with him for that purpose. She thought that there would be touching. It did not occur to her that she would be paying for that meeting. The meeting lasted for about 40 minutes in his home.

[234] The energy work did not take that long. They sat on his couch and had a conversation, although she does not recall exactly what they talked about. It is possible they continued the discussion about energy work.

[235] He said that he was going to do some energy work on her. He said he was going to put his hands on her and move the energy.

[236] He put his hands on her chest where the heart chakra is located. The massage was not localized to the heart chakra, it continued downward. He asked her to remove her bra and she said “no”. He said it was impeding the energy work. She agreed that she set that boundary about not removing her bra.

[237] He asked her to undo her pants and she did not say anything. He then undid her pants; she did not say “no”. She agreed that when she got to a place that she was not comfortable with, she stepped back and set a boundary.

[238] When Mr. Lai was doing the chest massage, L.B. just “let it go”. The massage was over her clothes, and it did not cross her mind whether it was appropriate or not appropriate. She was focusing on relaxation.

[239] The goal of the energy work was for relaxation; she agreed she was attempting to relax at this time.

[240] When Mr. Lai was doing the massage, she was trying to relax. She did have questions in her mind, like whether the touching was appropriate or not, and whether the touching was intentional or not. He is telling her to breath and relax.

[241] What he was doing during the massage was consistent with how she thinks this work is done. The massage on her at his house started the same way as it had at the clinic; with a vigorous massage across the shoulders. Mr. Lai was acting calm and normal.

[242] When Mr. Lai got to the root chakra she objected, and he stopped. He did not try to push through and continue with the massage in that area.

[243] She thinks this interaction with Mr. Lai was in the winter of 2012. She went to the police 5 years later in December 2017 as a result of the press release. She thought the timing of the article was perfect with what was going on in the United States with the “me-too” movement. Previously, she thought that she would not be believed. Even now she is not sure if justice will be served. She testified that now she thinks that voices are being heard and people are listening.

[244] Prior to going to the police, she had not told anyone about what had happened.

[245] When she came back for a second interview, on January 10, 2018, Sergeant Clark told her that there were certain portions of her clinical records which raised “red flags” for the officer; that certain entries caused her concern. Sergeant Clark said that she was going to read her these entries. The officer pointed them out to her and read them out loud.

[246] In her second statement to the police when she was asked about these entries, L.B told Sergeant Clark that she disagreed she had said these things that were written in her records.

[247] She agreed that she told Sergeant Clark she thought certain entries were made “after the fact”. She agreed that when she first saw the letter of recommendation written by Mr. Lai that was in her clinical file, she did not think the date on the letter was correct. She also did not think the contents of the letter looked familiar. She agreed at this trial that Sergeant Clark investigated the letter and determined that it was legitimate, and the date and contents were accurate.

[248] She told the police that she tried to avoid Mr. Lai after the incident in the winter of 2012. She agreed that she went back to his clinic for acupuncture, but she did not have any further contact with Mr. Lai.

Sergeant Melanie Clark

[249] She has been with the Guelph Police Services since approximately 2002. She has been a Sergeant in the special victim’s unit since February 2017. She is the officer in charge on this case. She testified that the investigations started on October 18, 2017 when she received a telephone call from S.C. On October 26, 2017, she took a videotaped statement from S.C.

[250] On October 31, 2017 Mr. Lai was arrested for sexual assault against S.C. He was arrested at his clinic in Morriston for this sexual assault.

[251] The clinic receptionist photocopied S.C.’s records and gave them to the police at the time of his arrest.

[252] Following Mr. Lai’s arrest and release from the police station, she did a press release. The press release set out that if anyone had any information about Mr. Lai and the allegations set out in the release, they should contact the police.

[253] The information in the release was that Shu-Seng Lai, the owner of the “Integrated Natural Medicine”, had been arrested and charged with sexual assault against a former patient. A subsequent media release was sent out on November 29. This release set out that two further sexual assault charges were made against Mr. Lai and that the victims were also former patients.

[254] Sergeant Clark testified that she heard from C.B. on December 12, 2017. She took a videotaped statement from her on December 17, 2017.

[255] Sergeant Clark received an email from L.B. on December 1, 2017 and made contact with her on December 11, 2017. On December 22, 2017 she took a videotaped statement of L.B.

[256] Sergeant Clark testified that she re-interviewed both C.B. and L.B. in January 2018. She had received copies of their clinical files from Mr. Lai’s clinic in early January, and she had some questions that she wanted to go over with them about certain entries in their files.

[257] A search warrant for the original clinical files of S.C., C.B., and L.B., was obtained. On July 25, 2018 Guelph Police Services attended at the clinic to locate the original files of these three women, but they were not there. Ultimately, the original files were obtained from the law office of Mr. Lai’s defence counsel.

[258] None of the complainants knew each other nor had they ever seen each other. They did not cross paths when coming to court or coming to see the police or the Crown Attorney.

[259] The original record of C.B. and L.B., were compared with the copy that had been given to Guelph Police Services by Mr. Lai’s clinic. The files contained the same information. There was highlighting and some circling of entries on the original files that did not show up on the copies There was no difference in the writing between the file copies and the original files. The copies that were made were in black and white ink. In the original files, the highlights were in colour.

[260] Sergeant Clark went through all of the highlighting and writing on the original files that were seized.

[261] There were no similar notes about “energy work”, on S.C.’s file as there were on C.B. and L.B.’s files. The copy of S.C.’s file was retrieved from the clinic on October 31, 2017. Copies of C.B. and L.B’s files were retrieved from the clinic in January 2018.

[262] Mr. Lai was arrested for sexual assault against C.B. and L.B. on January 12, 2018.

[263] The reason Sergeant Clark said she interviewed C.B. and L.B. a second time, was because of what she thought were questionable entries, and highlighting, that she saw on their original files. She went through these entries with the complainants in the second videotaped interview.

[264] In cross-examination, Sergeant Clark agreed that S.C.’s file was seized at the same time Mr. Lai was arrested for sexual assault against S.C. There was no opportunity for Mr. Lai to make any changes to her records.

[265] In December 2017, C.B. and L.B. came forward to the police. In December 2017, Sergeant Clark did not tell Mr. Lai that she was investigating him with respect to those two complainants.

[266] She seized a copy of the records of C.B. and L.B. on January 5, 2018. She agreed that they contained the notations regarding energy work. She agreed that Mr. Lai was arrested for the sexual assault against these two complainants on January 12, 2018. The original records of these two complainants were seized on July 25, 2018.

[267] The statements of C.B. and L.B. were disclosed to the defence on February 6, 2018. From that date, the defence was aware that the allegations from these two complainants involved energy work done by Mr. Lai with them. Sergeant Clark agreed that the notations regarding energy work on their records was there before those records were seized.

[268] Sergeant Clark agreed that on July 25, 2018 when the police went to seize the original records of C.B. and L.B. at the clinic they could not find them. On July 26, 2018 defence counsel advised the police that they could come and get the original records of all three complainants from their offices. She agreed that when she compared the copies to the original records, there was no difference in the content of what she saw in the records. The only difference was in the highlighting which could not be seen on the copies but could be seen on the original records.

[269] Sergeant Clark confirmed in cross-examination that it is important to preserve evidence. She confirmed that she was suspicious that Mr. Lai might destroy, alter, or loose the files of the complainants, and she conveyed that concern to a witness.

[270] Sergeant Clark agreed that there were notes in portions of the records that conveyed conversations between Mr. Lai and his patients about energy work. Those portions of the records contradicted what the witnesses had told her.

[271] Sergeant Clark agreed that when she interviewed the complainant C.B. and L.B. in January 2018, it was to go over what she thought were notes “added” in their files. She told them it was to clarify certain entries in their files that she had questions about. The witnesses did not see their whole file prior to the second videotaped interview. The witnesses were directed to certain entries by Sergeant Clark that she had questions about.

[272] She agreed that C.B. told her in the first statement on December 17, 2017 that she was concerned about a phone call from Mr. Lai made after the alleged assault because it unnerved her that he had “found” her. She agreed that there was an entry in her record, made prior to that phone call where C.B. told Mr. Lai about her new job position.

[273] Sergeant Clark agreed that she told C.B. that she wanted to go over some entries in her file because they “raised some flags”. After going through select entries with Sergeant Clark, C.B. agreed that she told the officer that the entries seemed “concocted”, and they were made “after the fact and contrived”.

[274] Sergeant Clark showed C.B. the letter of recommendation as well. She agreed that C.B. questioned the timing of the letter and did not think the contents were accurate. Sergeant Clark agreed that she followed up about this letter and her investigation confirmed the letter was accurate, both as to the date it was written, and the content.

[275] Sergeant Clark agreed that she stated in her email exchange with C.B., “well worth it, if he gets what he deserves”. She said she wrote this to be supportive to C.B., and not to be malicious to Mr. Lai. She agreed that she should not have written it and it was not the most professional message that she has written. She agreed that she is expressing the possible outcome of an investigation, and she should not have done that.

[276] With respect to C.B and L.B.’s original files, Sergeant Clark agreed that she asked about certain entries, because of their content and how they looked. The content was written “a little bit in an inconsistent way compared to the rest of the file”. For example, the comments were written in the margin, off to the side, and somewhat slanted. She agreed that in looking at S.C.’s file there were some entries that looked like that as well.

[277] Sergeant Clark agreed that in C.B.’s records there were other entries besides energy work, that were off to the side and slanted. She agreed that there was also an entry in L.B.’s file that was off to the side and slanted that was not about energy work.

[278] In re-examination she told the Crown that she did not tell C.B. that she thought the entries were “concocted”. She did not prompt either of the complainants to answer in a certain way. The evidence of the complainants on these entries was their independent comments.

Terry Ywai-Tin Hui

[279] Mr. Hui was qualified on consent to give evidence with respect to the practice of Traditional Chinese Medicine, the treatment and diagnosis of ailments using TCM practices and treatments.

[280] Mr. Hui testified that TCM is basically the rebalancing and restoring of the body order to a strong balance so that we will not get sick. If there is an imbalance in the body order, then we get sick. It is a bit like “ying and yang”. TCM deals with “energy flow”. He testified that the theory of TCM is that we live well when our energy is in balance.

[281] There are basically five branches of the treatment modality under TCM. These are:

• Acupuncture;

• Tui Na;

• Herbal Medicine;

• Food Therapy; and

• Qi Gong.

[282] Mr. Hui used a model of a human body to set out the different acupoints on the body and the meridians on the body. That human model was marked as an exhibit at this trial.

[283] Mr. Hui personally does not do acupuncture in a person’s private parts. He testified that in his opinion it is not a safe and ethical treatment, because it is too close to an organ in the body. He also testified that it is not necessary because there is an acupuncture point that would be safer and that will have the same benefit to the patient.

[284] Mr. Hui described Tui Na as a form of massage, when there is “push and grab”.

[285] Mr. Hui described the use of herbal medicines to help with deficiencies in the body. Mr. Hui also uses food therapy to help a person with certain problems.

[286] Mr. Hui uses Qi Gong as a form of exercise to help with energy. A practitioner can use Qi Gong when the patient is standing, sitting or lying. With Qi Gong there can be touching or not touching done above the body.

[287] With Tui Na this is a form of massage, so there is touching. A practitioner can use acupuncture and acupoints to direct their touching with Qi Gong.

[288] For a Qi Gong massage to be really effective, the practitioner should be a Qi Gong Master. Qi uses fingers, thumbs or palms for the massage. There can be touching or not touching of an acupoint. For Qi Gong massage a practitioner can put a needle in, or not use a needle; a practitioner can just touch.

[289] With respect to how practitioners diagnose using traditional TCM this is done when the person comes to the practitioner’s office for the first time. There is an intake form setting out the history of the patient. The practitioner learns about what western medication is being taken and then the practitioner starts the TCM diagnosis.

[290] The practitioner completes the diagnosis by listening, smelling, touching, checking the patient’s tongue, and by taking the patients pulse.

[291] Once all of that has been done, then the practitioner is able to diagnose the patient and come up with a treatment plan.

[292] Mr. Hui testified that professional standards of practice for TCM became codified and came into effect in January 2013. These standards cover the treatment and diagnosis in the practice of TCM.

[293] On the subject of communication between a TCM practitioner and the patient, the standard sets out that it is important to obtain the consent of the patient to collect information, to touching the person, and to touching certain acupoints. Prior to the regulation, there were no standards that were applicable to practitioners.

[294] In Ontario, a TCM practitioner cannot refer to himself as “doctor”. At some point in the future he will be able to do so. Prior to 2013, a practitioner was not supposed to call himself “doctor”.

[295] The term “chakra” is not a TCM term. It refers to energy work and comes from the East Indian culture. The term energy work is used in TCM. It helps to rebalance energy. He personally does not say “energy work” to his patients. He refers to the treatments of acupuncture, Qi Gong and Tui Na. He testified that if a practitioner is touching a patient, taking a pulse, doing Tui Na or acupuncture, they do not use gloves.

[296] If a practitioner is doing Tui Na, they do not usually tell the patient to take their clothes off. Qi Gong often involves putting the hands above the surface of the body. If he is doing acupuncture, for example on the upper back, he might have a patient roll up their shirt. He always tells his patients to wear something loose to his office so he can have them move up their clothes easily.

[297] He does not do acupuncture in the vagina or on the labia. There are no acupoints in those areas. Touching of the vagina and the labia is not a diagnosis or treatment procedure in TCM.

[298] Mr. Hui testified that he would treat infertility in a patient with acupuncture, herbal tea, Tui Na and Qi Gong.

[299] He would use herbal medicine if a patient was having emotional issues.

[300] He testified that Tui Na massage is a form of energy and it is a type of Qi Gong work.

[301] If a patient is suffering from infertility, he would do a Tui Na massage in the lower and upper abdomen, the lower leg, and foot. He uses chi; he does not use a massage. He puts his hand over the whole area. He prescribes tea and lets the patient unblock by themselves. He believes in self-healing.

[302] Mr. Hui uses herbal therapy, acupuncture, Tui Na and Qi Gong for stress and anxiety.

[303] As a treatment for digestive issues, Mr. Hui uses Tui Na on the stomach. He uses acupuncture to treat infertility. If a practitioner is doing Qi Gong for infertility, when they are touching the stomach, there is no movement of the hands. In his experience, Mr. Hui testified that acupuncture usually solves the problem. He testified that there is no reason to touch a woman’s breasts for infertility, stress or anxiety.

[304] Mr. Hui agreed that there are acupoints on a woman’s breast. He does not do acupuncture on a woman’s breast. He would do acupuncture in a safer area, such as on her foot or hand; acupuncture in those areas is just as effective. Mr. Hui agreed that there is an acupoint between a woman’s breast; acupuncture there can be used as a treatment for stress. It is very “strong” to put a needle in that area.

[305] It is possible to do Tui Na on the breasts, but it is not necessary. He never touches the breast area. If he did think it was necessary, he would tell the patient first.

[306] A practitioner has to be very experienced to do massage and acupuncture on the breasts, as it is hard to find the acupoints. Acupoints on a woman’s breasts are related to women’s problems. If a practitioner does acupuncture on the liver, spleen and kidney meridians, this will usually help with women’s problems.

[307] Mr. Hui testified that he always tries to do the most safe, effective and ethical treatment. That is why he does not choose to do a massage on a woman’s breast.

[308] The lowest acupuncture point on a woman’s body is the Ren-2 acupoint. Mr. Hui pointed this acupoint out on the model. He also pointed out the Ren-1. These acupoints are in the lower abdomen/pubic area. Mr. Hui testified that he never uses the Ren-1 acupoint. If he was going to use that acupoint, he would show the patient a picture of where it is located and make sure they are comfortable with him touching that point.

[309] Mr. Hui testified that with respect to Tui Na massage and Qi Gong, the patient could be sitting, could be standing, or could be lying on their back or on their side, when this treatment is given. It depends on what the practitioner is doing and what part of the body they are massaging. If a practitioner wants to deal with Ren-1, the patient would be lying on their back because the practitioner does not want to confuse that acupoint with one in the buttock area.

[310] Mr. Hui finds teas and herbs warm up the womb and assist with infertility issues.

[311] If he was doing Tui Na massage on a women’s breasts, he would explain what he is doing, and he would get the patient’s consent. Mr. Hui would also offer other choices. If the patient really wants the practitioner to touch the breast, he would try not to touch the nipple, because it is very delicate, and he does not want to cause health troubles. He wants to do the safest treatment possible.

Terry Ywai-Tin Hui Cross-Examination

[312] Mr. Hui agreed that prior to 2013, some TCM practitioner’s used the title “doctor”, even though they were not supposed to. He also agreed that in some jurisdictions, he could be called a doctor.

[313] Mr. Hui agreed that some western patients do not like the taste of herbs and therefore the practitioner would use acupuncture with that patient.

[314] Mr. Hui agreed that in the guidelines for TCM practitioners from the College, they do not tell a practitioner how to complete a diagnosis of a patient. He agreed that there is not a set of rules on how to do that. He uses his knowledge and experience when he diagnoses a patient. It is also not spelled out in the guidelines exactly how to do Tui Na and Qi Gong work on a patient. He agreed that education and training would help a practitioner find the area of a specific acupoint. The practitioner has to feel the area to accurately locate an acupoint.

[315] Mr. Hui agreed that the Deadman text on acupuncture is recognized as an authoritative text on acupuncture. He also agreed that Tui Na can stimulate and give a patient more “chi”.

[316] He agreed that a practitioner who is not a Qi Gong master can give a Tui Na massage, but it is not as good as if the person was a Qi Gong master. One of the goals of Tui Na massage is to restore balance in the body. Some Tui Na massage is performed with full force, and some is performed softly.

[317] Mr. Hui testified that in order for a practitioner to learn about Tui Na massage, they have to practice and demonstrate and watch others perform it. He agreed that students practice on each other. He also agreed that Tui Na massage can be performed fast or slow. Some Tui Na massage can be as short as a minute, and some can be longer. Tui Na massage can be performed on top of clothes, but that thick clothing makes it harder to feel and find the acupoint that the practitioner is looking for. He agreed that gloves are not required for Tui Na massage.

[318] Mr. Hui agreed that “Tui” is “pushing”, and “Na” is “grapping”; this is a hand technique that is employed in Tui Na massage. The grabbing can be done along the meridian that you are working on in the body. He agreed that grabbing is appropriate on occasion. The practitioner is the one who decides what is necessary. He also agreed that Qi Gong pushing, and grabbing is a technique.

[319] At the trial, Mr. Hui looked at various video demonstrations of Qi Gong and Tui Na massage. These video demonstrations were embedded in an electronic version of the Deadman’s text. I ruled Mr. Hui could look at these videos. The expert was asked to comment on whether the techniques in the videos were legitimate TCM techniques.

[320] Mr. Hui watched the videos and testified that what he observed are recognized Tui Na techniques. The videos were marked as exhibits; both the hard copy observed and the USB stick with the videos on them.

[321] Mr. Hui agreed that there was only so much that a practitioner can learn by looking at a patient. A practitioner has to touch the patient to find a particular acupoint. The video he watched gives a general idea of where an acupoint is located. However, the practitioner has to touch that area of the body to find the acupoint more accurately.

[322] Mr. Hui was shown the exhibit of the human body and directed to Ren-1 which is in the pubic area. That point is on the conception meridian which runs all the way up to Ren-17, which is just below the lip in the middle. To accurately detect an acupoint on that meridian, the practitioner needs to touch the patient. He agreed that sometimes the practitioner needs to move the person’s body in order to find the acupoint.

[323] Mr. Hui agreed that a practitioner can ask the patient to move their clothing up or down, as a form of “draping”, and that form of draping is approved by the College. He also agreed that it may be necessary to unbutton a pant button to access an acupoint.

[324] Mr. Hui testified that with respect to Ren-2 it is in the superior border of the pubic symphysis. That is where that acupoint is located. It joins the two pubic bones where they curve under. The symphysis joins the bones curving under. To find Ren-2 accurately, the practitioner needs to touch or feel for the acupoint.

[325] Mr. Hui observed a video from the Deadman’s text, showing where Ren-2 is located. He agreed that that is the general idea of where Ren-2 is located. A practitioner would have to touch the patient to accurately find this point. He agreed that Ren-3 is located just above Ren-2 and that the video gives a general idea as to where that acupoint is located. He agreed needles could be used is this area, but he does not do so.

[326] Mr. Hui testified that he uses herbs and acupuncture to treat an infertility problem. He agreed that he treated one woman with Qi Gong in her lower abdomen for infertility.

[327] Mr. Hui agreed that Tui Na could be used in the lower abdomen to look for an acupoint. He agreed that this could be used to treat infertility, as long as the practitioner knew what he was doing.

[328] In re-examination with the Crown, Mr. Hui testified that the best place to find an acupoint on the abdomen is if the patient is lying in the subline position on their back. He testified that if you are looking for acupoints, the practitioner should tell the patient where the acupoint is. The practitioner should ask the patient if they are okay with touching there or putting acupuncture needles there.

Karlie Sutherland

[329] Ms. Sutherland is the current office manager at Mr. Lai’s clinic. She came to court to testify on an issue with respect to the admissibility of a telephone message book from Mr. Lai’s clinic, under s. 30 of the Canada Evidence Act (“CEA”).

[330] At the request of defence, a hearing was held pursuant to s.30(6) of the CEA. This witness testified and was cross-examined on the practice of using telephone notebooks in Mr. Lai’s clinic in the ordinary course of business. Following this evidence, and with the consent of the Crown, the telephone book was admitted, pursuant to s. 30 as a business record for Mr. Lai’s clinic.

[331] Counsel agreed that the book was admissible pursuant to s. 30. Counsel could make submissions on the weight to be given to this evidence, the inferences that I could draw from this evidence and the use that I could make of this evidence at the trial.

[332] The relevant evidence the defence requested was an entry on February 16, 2011.

[333] On February 16, 2011 there was an entry in the book “S.C. called while you were on lunch”. The message was intended for Mr. Lai.

[334] Ms. Sutherland agreed that she does not know what the entry means in terms of who called who, or if S.C. was returning Mr. Lai’s call, or if she was calling first. She has not seen the book prior to today.

Authorities.

i. Sexual Assault in the Medical Context

[335] The offence of sexual assault is the same no matter the location or circumstances. There are however certain factors that must be considered when the sexual assault is alleged to have occurred between a patient and her doctor.

[336] The Crown did not argue that a practitioner using TCM treatments should be considered differently than a doctor using western medicine treatments. The Crown’s position is that what Mr. Lai did was not legitimate TCM treatment but was a sexual assault.

[337] The Crown also did not argue that the complainants had not consented to Mr. Lai touching them for appropriate clinical touching or diagnosis.

[338] In a recent decision, R. v. R.K., 2018 ONSC 2590, Justice de Sa, had to consider whether a doctor improperly touched two separate complainants during the course of medical examinations he carried out on them.

[339] I agree with the following paragraphs from the above decision as to what I must consider in deciding if the touching in question was of a sexual nature:

89 … all the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainant's sexual integrity.

90 As the Supreme Court explained in R. v. Litchfield, the importance of looking to all the circumstances surrounding an accused's impugned conduct is particularly important where the allegation is made in the context of a doctor-patient relationship. In this context, the complainant has consented to some touching but not to touching of a sexual nature: in such a case, the court must have at its disposal as much relevant information as possible in order to determine whether the conduct was of a nature to which the complainant did not consent.

92 Where the nature of the touching was not for a valid medical reason, a patient's decision to comply with a request will not amount to a valid consent (See 273.1(2)(c) of the Criminal Code). It must not be forgotten that a patient is in a position of vulnerability when he/she is in the care of a medical professional. As recognized in Norberg v. Wynrib, a doctor is in a position of trust in relation to a patient. He/she assumes a measure of control over the patient's body, and accordingly he/she must exercise that control over the patient purely in the interests of the patient and with the patient's consent. [Citations omitted].

[340] In an earlier decision from the Court of Appeal, R. v. Orpin, 2002 CarswellOnt 1327 (ONCA), the court was reviewing the convictions against a psychotherapist accused of sexual assault against five former patients. There were allegations of sexual assault both within the therapeutic relationship of doctor/patient, and allegations that occurred outside of the therapeutic relationship. At paragraph 13, Finlayson, J.A. the court, distinguished the issue of consent as it applied to both of those contexts:

13 In the case at bar, the judge made a number of fatal errors in relation to the charge on consent. He failed to instruct the jury that its first task was to determine whether the criminal acts alleged in fact occurred. He then should have instructed them to distinguish between the alleged sexual acts that occurred within the therapeutic relationship and those which occurred outside of the therapeutic relationship. His instruction failed to specify that in order to convict with respect to the acts that occurred within the therapeutic relationship, the jury would have to determine that the complainants consented to the therapy and that it was not bona fide therapy because to the extent the jury found the complainants consented to treatment, that consent would only have extended to acts done for a bona fide therapeutic purpose. Finally, the trial judge failed to instruct the jury that in relation to those alleged acts, if any, which the jury found occurred outside of the therapeutic relationship, that they were to approach those acts as they would sexual assault in any other case: i.e. by determining whether the complainants gave valid consent.

ii. Touching in Circumstances of a Sexual in Nature

[341] In R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, the accused was alleged to have sexually assaulted the complainants when they attended at his office for medical diagnosis and treatment. The patients had consented to being touched on their body, but the consent was based on the touching being for valid medical purposes.

[342] Litchfield set out the starting point for the nature of the offence of sexual assault, as well as the specific issues related to a sexual assault in a doctor/patient relationship.

[343] Iacobucci, J. wrote for the majority about the nature of the offence of sexual assault at paras. 12-13:

12 The sexual aspect of a sexual assault forms part of the actus reus; there is no requirement that a person accused of sexual assault have any mens rea with respect to the sexual nature of a sexual assault. This was the holding of this Court in R. v. Chase, which decided that sexual assault is a crime of general intent and that the Crown did not have to prove a specific intent with respect to the sexual nature of the assault. As McIntyre J. wrote for the Court at p. 302:

The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual ... It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

13 The test to be applied in determining whether an accused's conduct had the requisite nature to constitute a sexual assault is therefore an objective one. As this Court indicated in Chase, all the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainant's sexual integrity. It is therefore important in individual cases that courts not create unnecessary barriers to considering all the circumstances surrounding conduct which is alleged to constitute a sexual assault. This is particularly true where the complainant has consented to some touching but not to touching of a sexual nature: in such a case, the court must have at its disposal as much relevant information as possible in order to determine whether the conduct was of a nature to which the complainant did not consent. [Citations omitted.]

[344] In a recent Court of Appeal decision, R. v. Trachy, 2019 ONCA 622, Benotto, J.A. wrote the following about the offence of sexual assault principles which are relevant to this case:

73 The objective test requires the court to look to all the circumstances surrounding the conduct to determine on an objective basis whether it was of a sexual nature and violated the sexual integrity of the complainant: R. v. Litchfield. While the intent or motive of the accused may be a factor in considering whether the conduct was sexual in nature, the Supreme Court in Chase went on to state, at p. 302:

It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

74 The mental element in sexual assault and indecent assault is the intention to touch. Proof of sexual purpose is not required because the "factors which could motivate sexual assault are said to be many and varied . . . To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment", which is to protect the sexual integrity of all persons: Chase, at pp. 302-303. As the Supreme Court stated in R. v. Ewanchuk at para. 28:

Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy . . . It follows that any intentional but unwanted touching is criminal.

81 … There was no analysis with respect to the sexual integrity of the complainants and whether that integrity was violated by the respondent's touching of their breasts. The trial judge did not address the position of trust between the child-students and their teacher. He did not address the sexual nature of the touching.

84 As Lutoslawski makes clear, the sexual nature of the touching is determined by an objective standard. The question is whether a reasonable observer would perceive a sexual or carnal context to the touching in light of all the circumstances. [Citations omitted].

iii. Reliability and Credibility of a Witness

[345] There is probably no criminal trial which requires the assessment of the credibility and reliability of witnesses’ testimony more than in a sexual assault case. It is trite law to state that a sexual assault case is not decided by comparing the defence evidence with the Crown evidence. The outcome of this case does not depend on my decision as to what is more likely to have happened. This case, like all criminal trials, depends on whether, after considering all of the evidence at the trial, the Crown has proven the guilt of Mr. Lai beyond a reasonable doubt with respect to each complainant.

[346] In order to reach my decision, I must assess the credibility and reliability of the witnesses who testified at this trial. What does that mean?

[347] The distinction between “credibility” and “reliability” has been discussed in evidence texts and jurisprudence for decades. The following definition of those two determinations was set out clearly by Blair, J.A. in R. v. Sanichar, 2012 ONCA 117:

36 Here, a regular theme in the trial judge's acceptance of the complainant's testimony was that she was "sincere," she was "honest," she was "doing her best to be truthful." But he does not appear to have focused on whether her testimony was reliable or accurate. David M. Paciocco and Lee Stuesser describe the distinction between "credibility" and "reliability" in this context as follows in their text, The Law of Evidence, rev. 5th ed. (Toronto: Irwin Law, 2010), at p. 29:

"Credibility" is often used to describe the honesty of a witness. "Reliability" is frequently used to describe the other factors that can influence the accuracy of testimony, such as the ability of the witness to make the relevant observation, to recall what was observed, and to communicate those observations accurately.

[348] The court in Sanichar, stressed that it was crucial for a trial judge to assess both these attributes of a witness’ testimony. As trial judges tell juries, an otherwise credible witness may give unreliable testimony for one reason or another. Of course, the application of those definitions to the testimony I heard at trial is at the heart of assessing whether I can rely on that testimony.

[349] Appeal courts have provided guidance on what can and cannot enhance a witness’ credibility and/or reliability. I will set out a few examples here.

[350] Importantly, trial judges must not ignore “troubling aspects” of a witness’ evidence; they must address them and make a finding about that evidence (see R. v. R. (D.), 1996 207 (SCC), [1996] 2 S.C.R. 291).

[351] A trial judge must consider the following, among other questions when assessing a witnesses’ testimony.

1. Consistency of the witnesses’ evidence:

• Internally;

• Between examination-in-chief and cross-examination;

• With other witnesses/documentary or physical evidence;

• Is there a prior inconsistent statement;

• Is there an explanation for any inconsistency?

2. Is the witnesses’ evidence inherently plausible?

3. Did the witness answer the questions asked or was the witness evasive, unresponsive, or argumentative?

[352] A recent Court of Appeal for Ontario decision brings home the fatal error in reasoning a trial judge makes when that judge makes findings of credibility on assumptions that are unsupported by the evidence. The court in R. v. Cepic, 2019 ONCA 541, set out the difference between that chain of reasoning and when a trial judge draws conclusions based on the evidence.

[353] In Cepic, at paras. 22 and 23, Benotto J.A. sets out this difference as follows:

[22] Likewise, in G.H., the trial judge considered evidence from the appellant about how he and the complainant behaved and measured that evidence against common sense and human behaviour. The trial judge did not reach outside the evidence to make credibility findings based on generalizations about the sexual behaviour of men and women. Finally, in F.B.P., the trial judge’s inference that it would be implausible for the complainant to have had sex with the appellant on a public balcony was not central to the rejection of the appellant’s evidence but in any event was based on the evidence.

[23] Here, the trial judge’s repeated use of words like “implausible” and “nonsensical” to characterize various aspects of the appellant’s testimony is untethered to an evidentiary base. It reflects a conclusion based almost entirely on an assumption about what a young woman would do in this context. And the context was significant: a women’s only party in a highly sexualized environment involving alcohol and male dancers. [Citations omitted].

[354] Further, as set out in R. v. Marshall, 2017 ONCA 801, at para. 70, I must fairly consider and assess evidence in support of the innocence of Mr. Lai which arises in both the Crown’s evidence and the defence evidence.

iv. Delayed Disclosure/ Incremental Disclosure/How Sexual Assault Victims Behave

[355] The relevance of the impact of delay in disclosure of sexual abuse, which also includes the issue of incremental disclosure of sexual abuse allegations, has, since at least the year 2000, been held not to need an expert to explain to a trier of fact. The majority in the often-quoted Supreme Court of Canada decision of R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, wrote:

65 A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[356] It is crucial that I do not rely on myths or stereotypes about how victims of sexual assault would or should behave. To do so is an error of law.

[357] At para. 10 of R. v. A.B.A., 2019 ONCA 124, Pardu, J.A. for the court wrote:

10 Inherent in this approach is a comparison of the complainant's behaviour to what the trial judge viewed was "appropriate" behaviour that the trial judge would have expected of an adult threatened with a sexual assault or a victim of sexual assault. The issue here was not what steps the complainant should have taken to protect herself, but, rather, whether she consented to sexual activity with the respondent.

[358] Impermissible stereotyping about how witnesses should behave, or give evidence, with no evidentiary foundation, is always a problem. Making findings of credibility and reliability on such stereotypes in most cases is a reversible error.

[359] Lastly, in the context of a sexual assault trial, R. v. Nyznik, 2017 ONSC 4392, Molloy, J. wrote the following about the issue of reliability and credibility, specifically with respect to a complainant’s testimony which describe her allegations of sexual abuse:

[15] Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness' evidence — whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.

[16] It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.

[360] The courts have set out the dangers of relying on demeanour evidence, or general statements about a witness and how they came across in a trial when testifying. Judges assess how a person who is a complete stranger to them, is telling their story; a judge knows virtually nothing about the sincerity or honesty of that witnesses’ testimony based on their demeanour. Relying on indicia that may be misleading as to the reliability or credibility of a witnesses’ testimony does not ensure the truth-seeking function of a criminal trial.

[361] In R. v. Norman, 1993 3387 (ON CA), 16 O.R. (3d) 295, Finlayson, J.A. for the court wrote:

55 I do not think that an assessment of credibility based on demeanour alone is good enough in a case where there are so many significant inconsistencies. The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount. So far as Mrs. Goebel is concerned, her evidence is inherently hard to credit, and should have been subjected to closer analysis. For the purposes of this case, I adopt what was said by O'Halloran J.A., speaking for the British Columbia Court of Appeal in Faryna v. Chorny:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [Citations omitted].

Analysis & Decision

[362] I have set out the legal principles driving my analysis and decision. I will set out the authorities and my decision on the similar fact application of the Crown first.

Similar Fact Application

[363] The admissibility and relevance of similar fact evidence is well articulated in appellate jurisprudence. The application of those principles to the facts in a particular case is the challenge.

[364] The Crown seeks to admit as similar fact evidence, the allegations made by the three complainants, in relation to the other counts in the indictment, or a cross-count use of the similar fact evidence.

[365] The evidence of other discreditable conduct of an accused in a similar fact application is circumstantial evidence that is presumptively inadmissible. The Crown must establish that the likely probative value will outweigh the potential prejudice.

[366] In a recent appellate decision, the court enunciated principles with respect to similar fact evidence that flow from prior S.C.C. decisions on this issue. I found this recent summary helpful in assessing the Crown’s application.

[367] In R. v. Durant, 2019 ONCA 74, Watt, J.A. wrote about this evidence:

[80] Evidence of similar acts or extrinsic misconduct is a kind of character

evidence: bad character evidence. It invites a trier of fact to conclude from specific prior incidents of misconduct that an accused is a person of a certain character or disposition. And then to use that character or disposition to support an inference of guilt of a specific offence or offences with which that accused is charged.

[83] The rationale or principles underlying the exclusionary rule are the key to its exclusionary exceptions. The exclusionary rule is based upon the presumed predominance of prejudicial effect over probative value. The exception is engaged when the presumption is rebutted. This occurs when the probative value of the evidence overcomes its prejudicial effect, that is to say, the moral and reasoning prejudice associated with it: Handy, at para. 42. The inferences sought to be drawn must accord with common sense, intuitive notions of probability, and the unlikelihood of coincidence: Handy, at para. 42.

[98] This admissibility rule, the similar act rule, permits across-counts use of

evidence provided the evidence discloses a sufficient similarity in which the

manner in which each offence was committed to render coincidence improbable. When the issue on which the evidence is offered is identity, the degree of similarity required between the acts is often described as “striking” or the requirement as one of “strikingly similar” acts.

[99] The similarity between or among acts must be so unique that common sense makes it inexplicable on the basis of coincidence. The evidence must go beyond showing a mere tendency to commit crimes of this kind and be positively probative of the crime charged.

[101] The decision in Arp teaches that in assessing the similarity of the acts, a trial judge should only consider the manner in which the acts were committed and not evidence of the accused’s involvement in those acts. And it is the manner in which the acts were committed that must measure up to this demanding standard of similarity when the evidence is proposed for admission on the issue of identity. [Citations omitted].

[368] In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, Binnie J. set out a non-exhaustive list of factors that a trial judge could use to consider the “cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn”. These were listed at para. 82 of Handy:

82 The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts;

(2) extent to which the other acts are similar in detail to the charged conduct;

(3) number of occurrences of the similar acts;

(4) circumstances surrounding or relating to the similar acts;

(5) any distinctive feature(s) unifying the incidents;

(6) intervening events;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

[369] Counsel agree that the Crown must first identify the “issue in question” to which the similar fact evidence relates.

[370] Counsel disagree as to whether the issue in question was properly identified by the Crown, and if the similar fact evidence’s probative value, with respect to the identified issue, outweighs its prejudicial effect.

[371] I must first decide if the Crown has correctly identified the issues in question that the evidence relates to. If the evidence cannot be used to support such issues, it is not relevant and is inadmissible. Such evidence is bad character evidence and its prejudicial effect outweighs its probative value.

[372] The Crown submits that the similar fact evidence is material to the following issues in questions:

• Proof of the actus reus;

• Proof of the mens rea;

• To rebut a defence of innocent association;

• To rebut the defence of consent or mistaken belief in consent;

• To support the credibility of the complainants; and

• To undermine any denial of Mr. Lai.

[373] The defence submits that the issues in question, set out by the Crown above, are framed too broadly.

[374] The allegations of the complainants, C.B. and L.B. are similar to each other, but dissimilar to S.C.

[375] The main connecting factor between C.B. and L.B.’s allegations are that the complainants were both patients of Mr. Lai and the touching was in the lower abdomen, near or, if accepted, on the vagina/labia area. The admitted touching of the lower abdomen area was done as treatment and/or a demonstration of energy work by Mr. Lai on the complainants.

[376] There are admittedly other connecting factors, such as the proximity in time, where and how they were touched, and the number of times they were touched.

[377] The allegations of S.C. are of more explicitly sexual conduct. The conduct is alleged to have occurred in Mr. Lai’s clinic, while the office was closed. The defence does not suggest that the misconduct by Mr. Lai, as described by S.C., is any form of TCM treatment. The defence position is that the conduct did not occur.

[378] The onus is on the Crown to demonstrate the admissibility of the evidence with respect to one count to assist in the proof of the offence in the other counts in the indictment.

[379] I am satisfied that the evidence is not admissible for this purpose.

[380] The issue in question with respect to C.B. and L.B. is whether the touching was sexual in nature. The defence admits the touching of these two complainants in the lower abdomen area occurred. The issue is was the touching of a sexual nature. I agree with defence counsel that any similarities in the touching of these complainants could favour the defence position that the touching was of a clinical nature. This evidence is not probative as to the inference the Crown asks me to draw, namely that the nature of the touching by Mr. Lai was sexual.

[381] In R. v. Clottey, 2018 ONCJ 536, Justice Brown grappled with the same issue of alleged inappropriate touching in a medical context. At paragraph 854 he wrote:

854 The key question in the analysis is: "What inferences does the proposed evidence support"? As stated by Binnie J. in R. v. Handy, "the inferences sought to be drawn must accord with common sense, intuitive notions of probability, and the unlikelihood of coincidence". These criteria do not support any inference of sexualized touching in this case. Common sense and probabilities support medical, rather than sexual, touching.

[382] In my view, the evidence sought to be introduced as similar fact evidence is equivocal on the main issue to be resolved regarding these two complainants, was the touching by Mr. Lai sexual in nature? This evidence could equally give rise to an inference that the touching was part of clinical treatment, and not of a sexual nature.

[383] The evidence of these complainants does not assist in proof of the Crown’s case on that issue. The similarities in the evidence with respect to these two complainants that the Crown relies on, such as being patients, touched by Mr. Lai in the lower abdomen area as TCM “energy work”, which occurred in a clinical setting or context, is largely “neutral”. These similarities are not disputed. These similarities are not probative on the main issue with respect to these complainants, namely was that touching of a sexual nature.

[384] Further, the evidence of C.B. and L.B. is too dissimilar to the evidence of S.C. as to what she testified Mr. Lai did to her, to assist the Crown as probative evidence that the conduct S.C. described occurred.

[385] As the defence submitted, S.C.’s allegations are “explicit and inflammatory”. The details she described are a “stark contrast” to the description of what C.B. and L.B. say Mr. Lai did to them.

[386] As set out in Handy, I must consider the cogency of the similar fact evidence in relation to the inferences the Crown asks me to draw from that evidence, and in addition assess the strength of the proof of the similar facts themselves.

[387] The factors Handy suggests might be considered by me are set out above. As I have set out, I find that, in considering those factors, the evidence is similar to a certain extent, but it is not probative to the main issue I have to decide with respect to C.B. and L.B. The evidence of those two complainants is too dissimilar to the evidence of S.C. to be admissible as similar fact evidence in the count related to her.

[388] As courts have said, if the allegations are generic in nature, the probative value of similar fact evidence is greatly reduced; the prejudicial effect of using such evidence as similar fact evidence is obvious; the potential for propensity based reasoning to a finding of guilt is heightened.

[389] I am not satisfied that the Crown has established the probative value of the similar fact evidence to an issue I must decide. The prejudicial effect of applying the evidence from one count as proof of the allegation in another count outweighs any slight probative value that the Crown identified in her application.

[390] The similar fact application of the Crown is dismissed.

Substantive Charges

S.C.

[391] I do not dispute that S.C. sincerely believes her evidence to be true. Further, I agree with the Crown that S.C. appeared to be forthright, and a “formidable” witness as the Crown described her.

[392] With respect to S.C., the defence concedes that if I am satisfied beyond a reasonable doubt that the events occurred as S.C. described, Mr. Lai is guilty of sexual assault.

[393] The reliability of S.C.’s memory of the events is a relevant factor in my assessment of the acceptance of her evidence as to what she said Mr. Lai did to her.

[394] When S.C. first went to the police with the allegation against Mr. Lai, she stated that she had been suppressing the memory of what happened to her for seven years. S.C. had not told anyone what had happened, not even her husband.

[395] S.C. testified that the events on October 25, 2010 lasted 5 to 10 minutes and that she had not thought about them for seven years before she first went to the police.

[396] S.C. testified that prior to going to the police she was inundated with postings on Facebook by the “# me-too movement”, and about women being the subject of harassment and abuse. She was inundated by the stories from her friends and by other women in the news.

[397] She first called the police in 2017, prior to her interview with Sergeant Clark. She agreed that between her call to the police and her first videotaped statement, she was trying to figure out how she should get out her story to the police since she had not told it to anyone.

[398] S.C. testified that she thought her memory had improved over time because she had more time to process the events. She said that in the fall of 2017, when she first went to the police, her memory of the events had not completely solidified. Some of what she said happened became clearer over time; her memory improved. Her memory became clearer after she spoke to Sergeant Clark. It became clearer after the preliminary inquiry.

[399] S.C. testified that when she first spoke to the police officer, some parts of the 5 to 10 minutes of the events were not clear to her. S.C. explained that when different questions were asked, this caused her to remember different details.

[400] S.C. agreed that between her first phone call with the police and her first videotaped statement, she was trying to process the memory of what happened to her. She agreed that she was exposed during that time to social media and friends’ posts about the “# me-too movement”. She had read all those accounts prior to going to see the police.

[401] S.C. said that prior to 2017, whenever she had a “flashback” about the events, she would suppress the memory. She testified that her memory of what happened was always there, she chose not to access it before she went to the police. When she went to the police, she did not deliberately not tell the police about all her memories. She agreed there was some “fogginess” in her memory. S.C. agreed she was reviewing her memories with the benefit of hindsight.

[402] For the following reasons I found the testimony of S.C. to be unreliable on the main issue of what she said Mr. Lai did to her in his clinic on October 25, 2011.

1. The kiss request/trust in Mr. Lai.

[403] I do not find that the evidence of a request for a kiss, on October 13, 2010, by Mr. Lai, prior to the appointment at which the sexual assault is alleged to have occurred, is a collateral issue. The Crown submits that it is a collateral issue and I should ignore any difficulties with this evidence. I find this evidence was an example of the frailties in C.B.’s memory of events that she said occurred just one week prior to the alleged sexual assault.

[404] S.C. agreed at the trial that her memory when she first spoke to the police about the events which occurred on October 13, 2010 was unclear and confused. Although S.C. could not say for certain the date, which does not in and of itself detract from the reliability of this evidence, S.C. testified that she believed the appointment, where the request for a kiss by Mr. Lai was made, occurred at the appointment immediately before the October 25, 2010 appointment.

[405] The evidence with respect to the request for the kiss was inconsistant. S.C. told the police that Mr. Lai, prior to October 25, 2010, had asked her for a kiss, and she had refused. At that appointment, he had demonstrated energy work on her by rubbing his hands up and down her legs and arms and across her torso. S.C. testified that she thought this request for a kiss was a breach of protocol, and it “crossed a line”.

[406] S.C. testified at the preliminary inquiry that she was having a hard time recalling whether she kissed Mr. Lai on October 13, or not. She told the police that she would like to “think” she did not kiss Mr. Lai. She also testified that she was confused by Mr. Lai asking her for a kiss. She said she just pushed it away; wrote it off as a cultural thing.

[407] S.C.’s memory as to whether Mr. Lai asked her for a kiss on October 13, 2010, and whether she did kiss him is confusing and not reliable. S.C.’s evidence on this kiss request affected other testimony she gave at the trial.

[408] S.C.’s testimony that she thought Mr. Lai had “crossed a line” when he asked for a kiss, is not consistent with her testimony that on October 25, 2010, she trusted Mr. Lai 100%, and that he had been entirely professional with her before October 25, 2010. Those two statements cannot both be true. S.C. was confronted on the fact that these two views of Mr. Lai did not make sense, but S.C. would not concede any difficulty with this testimony. This is a factor a trial judge must consider when assessing the reliability of a witnesses’ testimony. I find her testimony on the kiss request is not reliable.

2. The telephone call after the alleged assault.

[409] S.C. testified that Mr. Lai called her at work on February 16, 2011, unsolicited, and interrupted her during a busy time at work.

[410] S.C. denied that she left a message for Mr. Lai at his clinic on February 16, 2011.

[411] The telephone record for Mr. Lai’s clinic was admitted on consent as a business record pursuant to s. 30 of the Canada Evidence Act.

[412] The Crown submitted that the notation that S.C. called Mr. Lai on February 16, 2011 in the record book, and on a piece of paper stapled to that page in the book is suspicious. The Crown submits I cannot rely on it as evidence that S.C. called Mr. Lai that day.

[413] Defence counsel submitted that I can use this evidence to draw the inference that S.C. called Mr. Lai at the clinic that day, but that is as far as I can likely go with the evidence.`

[414] I find that a reasonable inference to draw from the telephone record from Mr. Lai’s clinic, is that S.C. did call Mr. Lai’s clinic that day. She may have been returning his call, or she may have called him first. Although she eventually said to defence counsel, when pressed on this issue, “anything is possible”, her testimony that she would not equivocate on, was that she did not call his clinic on February 16, 2011. On the evidence, I find that is not true. This is another example of the unreliability of S.C.’s testimony.

3. The bra evidence.

[415] S.C.’s testimony with respect to her bra is also inconsistent. This testimony reflects poorly on S.C.’s memory of what she testified happened on October 25, 2010.

[416] In her first statement to the police, S.C. told Sergeant Clark that she “thinks” her bra was removed. She did not say at that time that she picked her bra up off the floor; she said she picked her shirt up off the floor.

[417] At the preliminary hearing, she testified that she had a memory of picking her bra up off the floor after she had been assaulted.

[418] At the trial she testified that she cannot say how her bra came off. She said that she had no memory of Mr. Lai taking her bra off. She also said she “knows for certain” that she did not take her bra off. At the trial she said she remembers picking her bra up off the floor.

[419] S.C.’s memory about the bra, whether it was taken off and by whom is an example of the frailty of her memory of the events of October 25, 2010. This testimony is another example of the unreliability of S.C.’s testimony as to what she said Mr. Lai did to her.

4. Explanations as to problems with her testimony.

[420] S.C. did not respond well when she was confronted by defence counsel with certain testimony she gave to the Crown or gave on a previous occasion. Her responses, when confronted with alleged inconsistencies, demonstrate that S.C. is prepared to make up evidence as she testifies. That finding undermines the reliability of her testimony on the issue in question I must decide, as well as the overall reliability of her testimony.

[421] For example, although it may seem like a minor issue, S.C.’s testimony as to whether she told anyone that she was going to see Mr. Lai that day was inconsistent, and when confronted on this evidence, her answers to explain any inconsistencies seemed contrived.

[422] On October 25, S.C. ran into an acquaintance in the parking lot of Mr. Lai’s clinic, Stephanie. At the trial she testified she did not tell anyone she was going to see Mr. Lai that day.

[423] Defence counsel confronted her with her statement to the police when she told Sergeant Clark that she had run into a friend in the parking lot of the clinic. S.C. agreed she did run into this acquaintance, and admitted she told Stephanie that she had an appointment and “pointed” to the clinic office. She specifically denied that the told this person that she had an appointment at the “Integrative Centre of Chinese Medicine”. She acknowledged, when she read her statement to the police on this issue, that she had in fact told Stephanie the name of the place where she was going that day.

[424] S.C.’s explanation as to the difference in this testimony was that she was not specifically asked about telling an “acquaintance”. She thought the question related to her telling people at work or her family. She agreed that Sergeant Clark wanted to speak to Stephanie to corroborate her account of the appointment that day. She also said at the trial that she was not certain if she had given the name of the clinic to Stephanie. The prior statement to the police that she was shown demonstrated she did give the name of the clinic to Stephanie.

[425] S.C. testified that she may have misunderstood the question from the Crown when she was asked if anyone knew about her appointment with Mr. Lai that day and she said, “no”. I find that this evidence was an example of how S.C. was prepared to make things up on certain issues and the evidence was an example of the unreliability of some of S.C.’s testimony.

5. Contacts with Mr. Lai after the October 25, 2010.

[426] S.C.’s testimony as to the increase in her contacts with Mr. Lai after the events on October 25 was also inconsistent and at times seemed contrived. I was unable to determine if S.C. was lying or her testimony is just unreliable on this issue.

[427] After the events on October 25, S.C. went from seeing Mr. Lai approximately once a month, or once every three to four weeks, to seeing him every second week. These increased appointments were confirmed by S.C.’s clinical records and by her testimony at trial.

[428] When first confronted by this evidence, S.C. said that she increased the frequency in her appointments because she was not ovulating. She agreed with the contents of an email she sent to Mr. Lai on November 30, 2010 which said she ovulated “last Tuesday”, that is November 23, 2010.

[429] S.C. also testified that it was Mr. Lai who recommended that the appointments be closer together. She was referred to the bottom of her November 30, 2010 email where she wrote “tell Dr. Lai I am not obsessing”. This statement suggests that she is reaching out regularly to talk to, and see Mr. Lai, at this important time in her journey to become pregnant; not the other way around.

[430] In the November 30, 2010 email, S.C. asks Mr. Lai for advice with respect to her work with an acupuncturist. When confronted with this evidence at the trial, for the first time S.C. testified that it was her acupuncturist who asked her to reach out to Mr. Lai. This explanation in response to questions by defence as to her continued contact with Mr. Lai, and her reliance on the advice of Mr. Lai, after October 25, 2010, does not make sense compared to her email November 30, 2010. S.C. appears to have made this evidence up to explain what could be perceived by me as awkward evidence of her behaviour and attitude toward Mr. Lai after a very significant sexual assault. This is a further example of me being unable to determine if S.C. is lying or her testimony is just unreliable on this issue.

[431] Defence and Crown both agree that witnesses are not to be judged by a standard of perfection. I cannot assess S.C.’s testimony to that standard.

[432] When there are gaps in a witness’s memory, or inconsistencies, I should look for an explanation for such weaknesses in her testimony.

[433] If the explanations of S.C. for problems in her evidence cause me concern, or seem made up, the reliance on S.C.’s testimony to meet the criminal standard to convict Mr. Lai is problematic.

[434] S.C.’s testimony is that she repressed the events which she said occurred for seven years, nine years by the date of trial. She had not told anyone what she says happened to her on October 25, 2010.

[435] Prior to going to the police, part of the awakening of her memory was triggered by everything she was reading and hearing about on social media. I do not take anything from this fact that her awareness of sexual assault issues makes S.C.’s testimony less believable or reliable.

[436] I am suspicious that something inappropriate occurred on October 25. I am even suspicious as to why Mr. Lai arranged with S.C. to have a closed office appointment, when no one else was in his office. I am confident S.C. went to his clinic that day. I do not think S.C. imagined that appointment. Her travel log book confirms she went to Mr. Lai’s clinic that day.

[437] What I am not certain about is what happened on October 25 at Mr. Lai’s clinic. Suspicion is not good enough.

[438] The expert, Mr. Hui’s evidence does not assist with respect to the count related to S.C. There is no suggestion by the defence that the conduct S.C. described occurred on October 25, 2011, was a form of TCM treatment. The defence position is that the misconduct as alleged did not occur. If I am satisfied beyond a reasonable doubt that it did, then Mr. Lai is guilty of sexual assault with respect to S.C.

[439] As Molly, J. wrote near the end of her reasons in Nyznik, at para 198:

[198] It is possible to make a finding of sexual assault based solely on the uncorroborated evidence of one witness, usually the complainant. Indeed, it is typically the case that there will be no other witnesses, and often the case that there will be no corroboration on the material points. However, where there are frailties in the complainant's evidence, as is the case here, it is useful to look for corroboration. In the case before me, the complainant's evidence is too fraught with problems to stand alone. I have looked in vain for corroboration.

[440] I have considered the rest of the evidence from the trial, in addition to S.C.’s testimony. I have set out the reasons why I found some of S.C.’s testimony to be unreliable. Based on this finding, I cannot rely on S.C.’s evidence to convict Mr. Lai of sexual assault. The rest of the Crown’s evidence does not cumulatively meet the burden on the Crown to prove a sexual assault occurred.

[441] I am not satisfied beyond a reasonable doubt that Mr. Lai sexually assaulted S.C. on October 25, 2010 in his clinic.

[442] Mr. Lai is found not guilty of the charge in count one.

C.B.

[443] The evidence with respect to C.B. of Mr. Lai’s alleged misconduct is entirely different than that alleged with respect to S.C.

[444] The defence position with respect to C.B. is that I should have a reasonable doubt that the touching C.B. described to the police and to the court, was of a sexual nature. If I am not satisfied beyond a reasonable doubt, on that issue, I must find Mr. Lai not guilty.

[445] As set out in the case law cited above, the assessment of the alleged misconduct is an objective one, taking into account all of the circumstances in which the touching took place.

[446] The Crown’s position is that the evidence should satisfy me beyond a reasonable doubt that the touching was of a sexual nature.

[447] On this count, and that related to L.B., the evidence of the expert is relevant to the assessment of the nature of the touching that occurred to both complainants. I will deal with the relevant testimony from Mr. Hui on this issue, with respect to C.B. and L.B., together.

[448] Mr. Hui confirmed that Tui Na or Qi Gong treatment is appropriate for cases of stress, anxiety and infertility. Mr. Hui described how these treatments could be performed. He also reviewed videos of demonstrations of the massages, and the demonstration of how to find the “general” location of certain acupoints by feeling the patient.

[449] C.B. described where Mr. Lai touched her as follows:

• His hands were down all the way they can go without having to go up around the corner and into her vagina.

• He did not go into her vagina.

• He was nearest to her labia.

• He was “by” her labia.

[450] Mr. Hui agreed that undoing a patient’s pants to do lower abdomen massage work is an acceptable method to “drape” a patient for privacy.

[451] Mr. Hui described the one hand technique in TCM, as “cupping and gripping”. He said that this technique was not light; it was firm. The practitioner can place his hands down the patient’s pants; he does not move his hands or his fingers; he pauses with his hand in the pants.

[452] Mr. Hui agreed that some Tui Na massage is done when the practitioner is standing behind the patient and that is an appropriate technique.

[453] Mr. Hui described the location of acupoint Ren-2, as being exactly at the point before the pubis begins to curve under the body.

[454] Mr. Hui testified that the lower abdomen acupoints are appropriate locations for Tui Na and Qui Gong massage, addressing infertility. He testified that Tui Na massage on the chest and breasts are appropriate locations to help with anxiety.

[455] With respect the touching of C.B. that was alleged to be a sexual assault, I find the following evidence leaves me in doubt as to whether the touching was of a sexual nature.

• The length of time of the touching which was approximately five minutes; this was an appropriate length of time for a massage according to the expert.

• Mr. Lai only used his hand; the expert testified that wearing gloves while doing a massage was not required.

• Standing behind and off to the side of C.B. was appropriate according to the expert.

• There were no sexual indicia by Mr. Lai. He was entirely professional before, during and after the massage.

[456] There were some minor inconsistencies and unclear memory of the events when C.B. testified at the trial. For example, she could not remember the order of the touching, whether the touching on her chest was under or over the bra, and whether her bra was done up or undone.

[457] C.B. also was wrong about going back to see Mr. Lai after she became pregnant. She admitted to defence counsel that she did see Mr. Lai monthly during her pregnancy. She agreed she could not recall her conversations with Mr. Lai at these appointments.

[458] Overall, C.B. did the best she could to remember events that occurred five years before she first went to the police. C.B. said that after the events of October 9, 2012, she felt uncomfortable with Mr. Lai; she felt she had been violated.

[459] C.B. described a telephone call with Mr. Lai after October 9, 2012, at which time he asked her to come in for more energy work. C.B. told the police that this call convinced her Mr. Lai had done something wrong on October 9, 2012, by the way he was talking and breathing on the phone call.

[460] C.B. agreed that she gave different evidence as to who suggested there would be touching of her vagina at a subsequent appointment. She told the police it was Mr. Lai who suggested this digital penetration. At the trial, in examination-in-chief, she testified that she was the one who asked if there would be digital penetration at a follow-up appointment.

[461] This phone call was unsettling to C.B. for the reasons set out above, but also because she was “unnerved” that Mr. Lai knew about her new place of work and her new work phone number. She agreed with defence counsel that this information was given to the clinic by her, and there was nothing suspicious about Mr. Lai having this information.

[462] The evidence as to the phone call and its contents did not assist me one way or the other as to the nature of the touching that occurred on October 9, 2012. I cannot rely on C.B.’s testimony as to what was said on that call and attribute a “guilty mind” to Mr. Lai as suggested by the Crown.

[463] I have no reason to reject C.B.’s testimony as to how she felt after her October 9, 2012 meeting with Mr. Lai.

[464] As Justice de Sa wrote in R.K. at para. 102:

102 I have no doubt that the complainants perceived the touching as "sexual", and that they did not consent to "sexual" touching. However, their perception of the nature of the touching may have been largely influenced by their expectations at the time. Both complainants were not expecting their chest area to be examined. … The unexpected "touching" was disturbing to both of the complainants. However, this perception is not sufficient to satisfy me that the "touching" was of a sexual nature in this particular context.

[465] I am certain that C.B. accurately testified that Mr. Lai did not describe in detail where he was going to do the massage, nor ask her for specific consent to touch the areas he touched. Mr. Lai may well have not met the current standards that TCM practitioners should follow when dealing with a patient and undergoing treatment on a patient.

[466] I have reviewed the clinical records of C.B. and have considered the inferences that the Crown has asked me to draw from certain entries in C.B.’s records. These entries suggest that Mr. Lai discussed energy work with C.B., that C.B. requested energy work from Mr. Lai, and that he described what he was going to do when he did energy work treatment. C.B. denied the accuracy of these entries, both to the police and at this trial.

[467] The Crown asks me to infer from how these entries were made, that is in the margin, the fact the entries were highlighted or circled, and the content of the entries, that Mr. Lai had a “guilty mind”; that he was trying to “cover his tracks,” by making these entries after the fact, and before the police seized C.B.’s records.

[468] The Crown concedes that neither she, nor the court, can have any idea when these entries were made. The Crown asks me to infer they were made after Mr. Lai was arrested and charged with sexual assault with respect to S.C., but prior to his arrest with respect to C.B. or L.B.

[469] There was other evidence at the trial that suggested the additions were similar to other writing made by Mr. Lai in his clinical records, which was not related to energy work. There was also similar writing in S.C.’s clinical records, which were seized before C.B. and L.B.’s records were obtained by the police.

[470] I agree with defence counsel that to use the entries as requested by the Crown would be dangerous. I find such use would be inviting speculation on my part, not proper inferences based on accepted facts.

[471] The Crown submits that on the issue of consent, I could find Mr. Lai guilty of simple assault, even if I am not satisfied beyond a reasonable doubt that the touching was sexual in nature. I do not agree.

[472] The Crown submits that C.B. did not consent to the touching which gave rise to the charges because it was not touching as a technique done in proper treatment on C.B. The Crown submits that any consent given by C.B. was under fraudulent pretences and is therefore not valid consent to the touching that occurred.

[473] If I find, or have a doubt, that the touching was part of a legitimate treatment, and therefore have a doubt the touching was of a sexual nature, the issue of consent vitiated by fraud, or consent where there has been a breach of authority, are not relevant considerations for me to resolve. If the touching was for a clinical purpose, it was not criminal conduct. If I have a reasonable doubt that the touching was for a clinical purpose, Mr. Lai must be acquitted.

[474] I am not convinced Mr. Lai conducted his treatment of C.B. with the professional standards he should have. C.B. had legitimate feelings and concerns about the treatment he performed on her.

[475] However, when I consider all of the evidence at this trial, I have a reasonable doubt that the touching was of a sexual nature. Further, with respect to the included offence of assault, I find that since I have a reasonable doubt that the touching was of a sexual nature, and therefore was possibly for a clinical purpose, that touching was done with C.B.’s consent.

[476] Mr. Lai is found not guilty of the charge in count two.

L.B.

[477] The evidence of Mr. Hui applies to the charge against Mr. Lai with respect to L.B. as well.

[478] L.B. was invited to Mr. Lai’s home in the context of him assisting L.B. with her study of energy work. L.B. agrees that she had the energy work discussions with Mr. Lai because of the studies she was undertaking regarding TCM, and a chakra course.

[479] L.B. attended at Mr. Lai’s house to learn more about energy medicine, not for treatment. She testified that the massage Mr. Lai did on her on the day in question was both consistent with their previous discussion, and similar to a massage she had received at Mr. Lai’s clinic previously.

[480] L.B. testified that she knew the root chakra is located at the genital area.

[481] L.B. told Mr. Lai that she would not remove her bra when he asked her to as he was massaging her. She testified that when he was touching her breast during the massage, she was unsure if the touching was intentional or unintentional. She did not know if the touching was appropriate or not.

[482] When Mr. Lai got to a point of touching her below her lower abdomen, when she felt uncomfortable, she stepped back. L.B. testified that Mr. Lai’s hand was on her vagina. When he touched her there, it was for a few seconds, and then she stepped back. Mr. Lai immediately stopped. Mr. Lai was acting calm and normal. L.B. testified that she believed a line had been crossed, and she wanted to get out. She left and did not meet with Mr. Lai again.

[483] L.B. agreed that she had not told anyone about this incident prior to going to the police. She was embarrassed and wondered how she got herself into this position as a 40-year-old. L.B. testified that she had not told anyone about this incident until she spoke to Sergeant Clark which was after she saw the press release about Mr. Lai. This was five years after the incident. As set out in R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, standing alone, delay in reporting sexual abuse is not a factor I can rely on in assessing the credibility of a complainant.

[484] L.B.’s attendance with the police was as a result of the press release which stated that Mr. Lai had been charged with sexual assault against former patients. She was aware of the “# me-too movement” going on at the same time. She testified that she thought the press release was “pretty perfect”. By this she meant that as a result of this movement, voices are being heard and people are listening. This is also a neutral piece of evidence with respect to my assessment of the credibility of L.B. and the other complainants.

[485] I agree with the Crown that it would be speculation on my part to use this evidence as a factor in assessing the credibility of any of the complainants.

[486] The clinical records with respect to L.B. have entries in them similar to C.B.’s records. The Crown asks me to draw the same inferences as to the guilt of Mr. Lai with respect to this circumstantial evidence. For the reasons I set out with respect to C.B., I decline to use that evidence as requested by the Crown.

[487] There was no evidence that Mr. Lai was aroused or showed any other indicia that the touching was of a sexual nature. Mr. Lai was calm and acted normal throughout his work with L.B. He respected all boundaries L.B. set. This is of course just one factor for me to consider in decing whether the touching was of a sexual nature, but it is a factor I may consider, along with the rest of the circumstances in which the touching occurred.

[488] L.B. testified that while she was being touched on her breast, she was unsure if the touching was intentional or not and whether it was appropriate or not. I am unsure as well. Further, in all of the circumstances I am not sure if Mr. Lai touched L.B. on the vagina; and if he did if it was intentional and of a sexual nature.

[489] When I consider all of the evidence with respect to L.B., I am not satisfied that the touching that forms the basis of the alleged sexual assault was of a sexual nature.

[490] For the same reasons I set out for C.B., the issue of consent to touching, and whether Mr. Lai should be found guilty of simple assault is resolved as the defence submitted. The touching was with consent if I find, or have a doubt, it was for clinical treatment.

[491] I am certain that L.B. wondered at the time if what Mr. Lai did to her was a sexual assault. I am also certain that in the fall of 2017, she may have become convinced that what Mr. Lai did to her was a sexual assault. I do not think L.B. made up her apprehension of Mr. Lai’s behaviour at the time.

[492] As with C.B. I doubt the conduct of Mr. Lai would meet the professional standards for a TCM practitioner that are now codified. Mr. Lai did not treat either L.B. or C.B. as he should have, certainly with respect to his communication with them as to what he was doing and, or ensuring that he had their consent for him to be touching near their private parts.

[493] I am not however deciding if Mr. Lai acted professionally or appropriately, prior to, or at the time of, touching L.B. Mr. Lai’s conduct must be assessed solely in the context of a clinical relationship with L.B. and the treatment he carried out on her and whether his touching of her was of a sexual nature.

[494] When I consider all of the evidence with respect to L.B., I cannot be satisfied beyond a reasonable doubt, that Mr. Lai’s touching of L.B. was of a sexual nature. I have dealt with the consent issue, and the included offence of simple assault above. As with C.B., I have a reasonable doubt that the touching, was of a sexual nature, and therefore was possibly for a clinical purpose, and was done with L.B.’s consent.

[495] Mr. Lai is therefore found not guilty of the charge in count three.

Final Decision

[496] Mr. Lai is found not guilty of the charges in counts, one, two and three.

“Justice Mossip”

Justice N.M. Mossip

Released: January 15, 2020

COURT FILE NO.: 19-0578

DATE: 2020 01 15

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Shu-Seng Lai

reasons for judgment

Mossip J.

Released: January 15, 2020