COURT FILE NO.: 19-0578
DATE: 20210525
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. MacDonald, for the Crown
- and -
SHU-SENG LAI
D. Robitaille and S. Hopkins, for the Defendant
HEARD: January 26, 2021
REASONS FOR SENTENCE
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada
MILLER J.
Overview
Shu-Seng Lai was found guilty, on December 4, 2020 of Sexual Assault of R.N., committed between January 12 and February 12, 1992.
The Facts
(a) Circumstances of the Offence
[1] R.N. attended Mr. Lai’s traditional Chinese medicine (TCM) clinic in Guelph, Ontario on February 12, 1992. She wished to consult with Mr. Lai about low sexual desire R.N. completed a form with her personal information on it which she provided to Mr. Lai. She met with him in his office, then he directed her to an examining room.
[2] Mr. Lai followed R.N. into the examining room and asked her to take her clothes off from the waist down. R.N. asked him for something to cover herself with and he gave her a small hand towel about 12” x 8” in size. Mr. Lai then left the room and R.N. took off her pants and underwear, lay on her back on the table, and put the towel over the exposed part of her body.
[3] Mr. Lai the re-entered the room and wiped R.N,.’s vulva, put his fingers inside her vagina and, when he touched an area inside that she felt was causing arousal, she said, “No. Stop it.” Mr. Lai stopped. He removed his hand from inside of her. He then removed the towel that she had placed over her genitals leaving nothing covering the lower part of her body. Her genitals were exposed. Mr. Lai moved to an area behind R.N.’s head. He told her to get dressed and to go back to waiting room and he would call her into his office. He left the room.
[4] R.N. got dressed, then went out into the waiting room as Mr. Lai had instructed. Mr. Lai called R.N. back into his office. He did not tell her whether he had discovered anything during his examination. He said he would mix up some herbs for her and they would be ready in a day or two. R.N. paid him and then left.
[5] I was satisfied beyond a reasonable doubt that Mr. Lai removed the towel that had been covering R.N.’s genitals without and specifically contrary to R.N.’s consent and that that act objectively violated her sexual integrity. I found beyond a reasonable doubt that the removal of the towel was not part of any legitimate clinical interaction. I was satisfied that all of the elements of sexual assault in relation to the removal of the towel had been proven beyond a reasonable doubt.
(b) Circumstances of the Offender
[6] Shu-Seng Lai is currently a suspended member of the College of TCM Practitioners and Acupuncturists of Ontario. An Internet page printed by an officer investigating Mr. Lai in 2017, and exhibited at trial, describes Mr. Lai as a licensed Practitioner of TCM in Ontario Canada and that:
He is the founder and director of the Oriental Healing Arts Research Institute and the director of The Centre of Integrative Natural Medicine where He has successfully integrated Traditional Chinese Medicine, western science, modern nutritional science and life-style coaching through intense research.
Mr. Lai is one of the leaders of alternative medicine in North America. Western and Eastern physicians regard him as a key consultant and a resource for Chinese herbal treatments for cancer and arthritis patients. Mr. Lai is also an educator and a regular speaker for medical institutes and professionals around the world.
Mr. Lai acts as a consultant to Chinese medicine and Naturopathic doctors for the treatment of many illnesses with a specialty in cancer treatment.
Mr. Lai was appointed by the Minister of Ontario Health to be an advisor for setting the standards for the regulation of TCM and acupuncture; Ontario is now one of the provinces in Canada where TCM and Acupuncture are regulated.
Mr. Lai has a strong belief in giving back to the people. He has been a member of the international Rotary Club since 1992 and has contributed his time and effort to various charitable events and various fundraising for children with challenges.
In 1998, Mr. Lai spent 3 weeks in Taiwan as a volunteer physician for Taiwanese aboriginals in poverty. While he continues to support this cause, he serves as a medical advisor for one of the most remote hospitals in Taiwan, St. Mary's Hospital in Tai-Tung, where medical care is provided to those who live in remote areas and poverty.
Mr. Lai is currently working in Taiwan to cultivate the integration of Chinese Medicine and Western Medicine for cancer treatment and care.
Mr. Lai is a grandmaster of one of oldest forms of martial art called Ninjutsu; he holds honorary 10th degree black belt. He has served as a leader of the World Martial Arts Society for many years. He is still teaching Ninjutsu at University of Guelph where he founded this art in 1983. He has thousands of students across Canada and the world.
[7] Counsel for Mr. Lai submitted that the finding of guilt for Sexual Assault will have devastating professional implications for Mr. Lai. They submit that the application of the Regulated Health Professions Act 1991 will mean that Mr. Lai will lose his licence to practice TCM and will have to wait at least five years to re-apply.
[8] Mr. Lai is currently 62 years of age and while not experiencing any underlying health issues would be vulnerable to the transmission and effects of COVID-19 in a prison setting. Counsel advised on the date of sentencing that Mr. Lai has received his first does of vaccine against the virus but is not yet fully vaccinated.
[9] Mr. Lai was given an opportunity to address the Court on sentencing but chose not to do so.
Impact on Victim and/or Community
[10] R.N. presented a Victim Impact Statement in writing, in which she described years of anger, anxiety and depression which she attributes to this incident. These were treated with medication and therapy, the cost of which she was unable to quantify but describes as considerable. R.N. describes this incident as affecting her personal and intimate relationships on a long-term basis.
[11] R.N. reported the matter to police in 1992 but no charges were laid. She then felt fear of retribution following her report to police and again in 2017 when the charge was laid. The fear for her safety continues.
[12] The emotional impact of this event was evident in the manner in which R.N. gave her testimony at trial. While Mr. Lai was found guilty with respect to the towel removal only, R.N. expressed her upset, while testifying, with the particularly humiliating aspect of this part of the incident.
Legal Parameters
[13] In 1992 Sexual Assault was punishable by a maximum term of imprisonment of ten years. Sexual Assault is a primary designated offence pursuant to s.487.04 of the Criminal Code. S. 487.051 provides that a DNA order shall be made for such a designated offence committed at any time. Sexual Assault is a designated offence pursuant to s.490.012 and s. 490.013 (2) (b) of the Criminal Code requires Shu-Seng Lai to comply with the Sex Offender Information Registration Act for a period of 20 years. A s. 109 firearms prohibition is mandatory.
Position of Crown
[14] The Crown seeks a sentence of 60 days incarceration plus three years’ probation. The Crown seeks a DNA order; a SOIRA order and a s. 109 Firearms prohibition.
[15] The Crown submits that a discharge would not appropriately address the principles of general deterrence and denunciation which should be primary sentencing principles in a case of breach of professional trust.
Position of Defence
[16] Counsel for Mr. Lai submit that an appropriate sentence in all of the circumstances would be an absolute discharge. They point to the significant delay between the date of the offence and the prosecution of Mr. Lai and that there is no evidence but that Mr. Lai’s behaviour has been exemplary in the meantime. Further, he has not practiced TCM since his arrest in 2017.
Case Law
[17] The Crown relies on a number of cases in support of their position that there should be a period of incarceration.
[18] As noted in R. v. lm, 2009 ONCA 101, the facts accepted by the trial judge were that while Dr. Im, a medical doctor, was checking a patient’s eyes, he rubbed his penis into her knees. She added that she could feel that that part of his body was hard and when Dr. Im finished and turned around, she noticed that he had an erection. Dr. Im was found guilty and sentenced to a six-month conditional sentence followed by three years' probation
[19] In R. v. Khan, 2016 ONCJ 282, Mr. Khan, a massage therapist, sexually assaulted a patient by touching her breasts and vaginal area during a massage. He was sentenced to six months imprisonment and a conditional sentence was rejected as inconsistent with the fundamental purpose and principles of sentencing in the circumstances of the case, specifically that such a sentence would not adequately address denunciation given the breach of trust. This decision also provides at paragraphs 25-26 a summary of similar cases.
[20] In R. v. M.L. 2018 ONSC 7355, the accused was a health care professional who provided various massage and acupuncture treatments. He sexually assaulted a patient by massaging her chest and breast area, as well as her groin and touched her vagina, his finger penetrating the labia. On the summary conviction appeal of this matter, the appellate court indicated that the three month term of imprisonment imposed was below the appropriate range. The Court noted that in similar cases, involving breach of trust sexual assaults by health care professionals, prison terms between six and 14 months had been imposed.
[21] In R. v. Alasti 2011 BCSC 824, an unlicensed massage therapist at a spa touched the outside of a client's vagina, then digitally penetrated her vagina. The assault caused the victim pain and vaginal bleeding, which required her to go to a hospital for medical attention. The summary conviction appeal court held that a sentence of 18 months' incarceration and two years' probation was not an unfit sentence.
[22] Counsel for Mr. Lai provided a number of cases in which discharges were granted, even for cases of sexual assault.
[23] General principles in respect of the granting of discharges are set out in R. v. Fallofield (1973) 13 C.C.C. (3d) 450 (B.C.C.A.) and in R. v. Hayes, [1999] O.J. No. 938 (S.C.J.) A discharge will almost always be of benefit to an offender but is not always in the public interest.
[24] R. v. Henry, 2019 ONSC 4978; R. v. Berseth, 2019 ONSC 888; R. v. Reyes-Borgwardt, 2010 BCSC 1594; R. v. Tillman, 2010 SKPC 2; R. v. Burton, 2012 ONSC 5920; and R. v. Elmazini, 2019 BCSC 41 are all cases in which discharges were granted and/or upheld on appeal in for sexual assault. Although Tillman and Elmazini involved a trust relationship between employer and employee, none of these cases involved a trust relationship between health care practitioner and client/patient.
[25] Both the Crown and counsel for Mr. Lai provided cases in which the impact of COVID-19 was taken into consideration on sentencing, and given more or less weight depending on the circumstances. My conclusion having considered those cases is that the impact of COVID-19 is a factor to be taken into consideration on sentencing, but is not determinative as to whether or not incarceration will form part of the sentence.
[26] In R. v. Laurin [2020] O.J. No. 1266, the sentencing judge (on an unrelated offence), made the following comments in respect of the COVID-19 pandemic and its effects on prison inmates at paragraphs 13 and 14:
What to do in response to the pandemic when sentencing a defendant can be challenging and difficult. On the one hand, sentencing principles, such as denunciation and deterrence, must be respected…On the other hand… Covid-19 might very well become a significant challenge for which institutions must contend. In light of much-publicized reports of questionable, if not disgraceful, conditions at some detention centres in recent times, it gives a sentencing judge pause to consider how the pandemic will play out within their walls. However, one must hope that the gravity of the current pandemic situation and the scrutiny that will be on our jails will ensure that considerable attention is paid to maintaining the health and well-being of inmates.
[27] On the evidence before the Court and my own observations it is evident that: the pandemic is not over; there continue to be pandemic restrictions throughout Ontario and Canada; and, despite increasing numbers of vaccinated persons in the general and prison populations there is increased vulnerability to contracting the virus in institutional settings such as prisons.
Mitigating Factors
[28] The offence was of brief duration and did not involve direct touching of R.N.
[29] Mr. Lai was not prosecuted for this offence until 1992. While R.N. reported the matter to police at the time, police chose not to lay a charge until 2017.
[30] Mr. Lai has otherwise been a contributing member of society both locally and abroad. He has no criminal record.
[31] A number of character letters were filed on Mr. Lai’s behalf.
[32] Mr. Lai’s daughter, a medical student, described him as a dedicated father, husband, son and healer, “cherished by patients, family and friends alike”. She indicated that Mr. Lai is a kind and loving person who has devoted his life to the community and spoke to the hours Mr. Lai has spent volunteering medical care in rural Taiwan and at Rotary Club fundraisers and time spent on weekends making home visits to his palliative patients. She also indicated that while unable to continue practicing TCM with criminal charges outstanding, Mr. Lai worked with his associates to ensure his patients are still cared for and do not feel abandoned and has “gone out of his way” to ensure his staff would not lose their jobs or be negatively affected by his departure.
[33] Mr. Lai’s wife, who also worked for a short time at his clinic, spoke of the care and integrity he exhibits toward his patients and his passion for healing people. She describes him as “always respectful, fair, honest, loving and caring” and also noted that he used to travel every year to the most remote areas in Taiwan to provide food and medical care to Taiwanese aboriginal people.
[34] Marinko Cvjeticanin, a Psychotherapist, spoke of his professional and personal relationships with Mr. Lai over 20 years. He describes Mr. Lai as a “ caring, kind and generous” man about whom he has heard only positive and respectful comments about Mr. Lai’s work and care he demonstrated with his patients.
[35] One of Mr. Lai’s martial arts students – for 29 years – indicated that Mr. Lai has given him personal support and taught him about fairness, taking responsibility for his actions and how to have compassion for and forgive others.
[36] The defence also relies heavily on the fact that a conviction for Sexual Assault will have significant implications for Mr. Lai on a professional basis under the Regulated Health Professions Act 1991. They submit that, effectively Mr. Lai will lose his ability to practice TCM in Ontario and this is an important collateral consequence to his finding of guilt.
Aggravating Factors
[37] This was a situation of a breach of trust between a health care practitioner and his patient. R.N. presented with a deeply personal problem that she trusted Mr. Lai to address in a professional way. Instead he violated that trust and caused her to feel humiliated and frightened.
Principles of Sentencing
[38] I have considered the principles of sentencing set out at s. 718, s. 718.1 and s. 718.2 of the Criminal Code, including s.718.2(b) which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[39] As a first offender with otherwise admirable antecedents, rehabilitation for Mr. Lai is an important sentencing principle. However, in a breach of trust situation such as this, it is important that the sentence appropriately address general deterrence and denunciation. In the circumstances here I do not conclude that individual deterrence is a primary sentencing concern.
[40] Having considered the unusual circumstances of this offence, Mr. Lai’s personal circumstances and the impact of the COVID-19 pandemic I conclude that an absolute discharge, or indeed any discharge would not be in the public interest. The breach of trust as between health care professional and patient requires a sentence that will adequately address the sentencing principles of general deterrence and denunciation and I conclude that a discharge would not do in the circumstances of this case.
[41] I agree that the Crown has identified an appropriate range of sentence for this offence, but in all of the circumstances I conclude that general deterrence and denunciation can be accomplished if the sentence is served conditionally.
Final Decision
[42] Shu-Seng Lai is sentenced to a conditional sentence of 60 days. He is report within two working days to a conditional sentence supervisor and be under the supervision of that person or their designate. He is to remain on or in his residential property at all times except for medical emergencies. He may also leave his residence in order to attend for his second vaccination against COVID-19; to report to his conditional sentence supervisor; to attend on June 1, 2021 to comply with the DNA order; and to comply with the SOIRA order. During the conditional sentence he may not practice TCM even remotely.
[43] The conditional sentence will be followed by three years’ probation. Mr. Lai must report to a probation officer within two days of the commencement of probation, and be under the supervision of that person or their designate. He must attend counselling or treatment as recommended by his probation officer and sign any releases necessary for the probation officer to monitor his progress. Shu-Seng Lai must not contact R.N. directly or indirectly. He may leave the province or country, with the permission of his probation officer, in order to visit family.
Ancillary Orders
[44] As Sexual Assault is a primary designated offence there will be an order authorizing the taking of the number of samples of bodily substances from Shu-Seng Lai that are reasonably required for the purpose of forensic DNA analysis, pursuant to s.487.051(1) of the Criminal Code.
[45] There will be a mandatory order pursuant to s.109 of the Criminal Code, prohibiting Shu-Seng Lai from possessing any firearm, other than a prohibited firearm or restricted firearm, any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[46] There will be an order pursuant to s.490.012 and s. 490.013 (2) (b) of the Criminal Code requiring Shu-Seng Lai to comply with the Sex Offender Information Registration Act for a period of 20 years.
MILLER J.
Released: May 25, 2021
COURT FILE NO.: 19-0578
DATE: 20210525
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
Shu-Seng Lai
REASONS FOR SENTENCE
MILLER J.
Released: May 25, 2021