COURT FILE NO.: CR-910000604

DATE: 20210114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

SHIN WOOK LIM

Defendant

J. Witkin and L. Fineberg, for the Crown

D. Robitaille and K. Flanagan, for the Defendant

HEARD: October 14 and 15, 2020

REASONS FOR DECISION #2

(Similar Fact Evidence and Severance)

MOLLOy J.:

A. INTRODUCTION

[1] Shin Wook Lim is charged on a 15-count indictment with various crimes arising from his sexual abuse of two teenage girls (M.V. and A.E.) while he was their Taekwondo coach. Initially, Mr. Lim was facing only 10 charges, all of which related to the complainant A.E. and which covered the period from January 2015 to July 2017. A.E. went to the police on April 27, 2018 to report Mr. Lim’s sexual abuse of her and Mr. Lim was arrested and charged in May 2018. Subsequent to his arrest, other students coached by him came forward to the police. S.C. provided a statement to police on May 11, 2018. M.V. and E.L. went to the police and provided statements on March 14, 2019. Charges were laid against Mr. Lim as a result of M.V.’s allegations, covering the period from September 2013 to December 2015. However, it was too late to join those charges with the charges involving A.E., as the preliminary hearing on those charges was scheduled to commence in May 2019.

[2] Following the preliminary hearing, Mr. Lim was ordered to stand trial on the 10 counts against him involving A.E. The Crown then preferred an indictment with respect to the five charges involving M.V., with the result that when the case reached the Superior Court there was a 15-count indictment with two complainants. Mr. Lim elected to be tried by a judge without a jury.

[3] Prior to the commencement of the trial, the Crown sought an order that the evidence of M.V. be considered as similar fact evidence in respect of the counts involving A.E., and vice versa (count-to-count similar fact evidence). The Crown also sought to lead similar fact evidence at trial from two other young women with respect to their contact with Mr. Lim while he was their Taekwondo coach: S.C. (who had experienced conduct that the Crown characterized as “grooming” but had not been sexually assaulted) and E.L. (who alleged Mr. Lim sexually assaulted her in his hotel room in Korea when she was 18 years old). No charges were laid in relation to the allegations made by either of those two witnesses.

[4] The defence sought an order severing the counts on the indictment relating to M.V. and to have those counts proceed by way of a separate trial. The defence maintained that Mr. Lim did not intend to testify with respect to the charges involving A.E., but did plan to testify with respect to the charges involving M.V.

[5] The motions proceeded on the basis of police statements and, where available, preliminary hearing transcripts. I made a preliminary ruling that, if looking at the two motions independently, both motions would be successful: the similar fact evidence would be admissible both on a count-to-count basis and from S.C. and E.L., and the defence had also met its onus of establishing that trial fairness required a separate trial for the M.V. counts. Further, I was persuaded that if the M.V. counts were severed, M.V. could not be called as a similar fact witness in support of the A.E. allegations. These were two contradictory results. Therefore, I directed that the trial proceed with the evidence of A.E. and that I would also hear the evidence of S.C. and E.L. At the conclusion of that evidence, if I remained of the view that similar fact evidence from M.V. was admissible (as that could change based on evidence from the other witnesses), I would put Mr. Lim to his election as to whether he would testify in response to the charges involving A.E.

[6] The trial proceeded. A.E., S.C., and E.L. testified. M.V. was the next witness scheduled to testify. But for her evidence, the Crown’s case was concluded. I remained of the view that the similar fact evidence was admissible, subject to weight. At that point I required Mr. Lim to choose whether or not he would testify with respect to the 10 counts against him involving A.E. He indicated that he would not be testifying. At that point, I severed the charges involving M.V. and ruled that she could not be called as a similar fact witness in this trial.

[7] I stated that I would deliver written reasons for these rulings at a later date. Those reasons are set out below. My summary and findings with respect to the evidence of E.L. and S.C. are based on their evidence at trial. Because the M.V. counts will be proceeding to another trial and a similar fact motion is likely in that proceeding, I will not deal with her evidence here, except as required to deal with aspects of the motion involving the other similar fact witnesses.

[8] In a separate decision released at the same time as this one, I found Mr. Lim guilty on all of the counts against him involving A.E. There is some overlap between these two sets of reasons, but both should be viewed as complementary for the sake of completeness.[^1]

B. THE NATURE OF THE SIMILAR FACT EVIDENCE

The Evidence of A.E.

[9] I dealt with the evidence of A.E. in detail in my companion reasons.^2 For reasons stated therein, I found her evidence to be both credible and reliable. For present purposes, I will merely set out a summary of Mr. Lim’s sexual abuse of A.E. and the contexts in which that occurred.

[10] A.E. was born in 1999 and started taking Taekwondo classes at Black Belt World (BBW) in Toronto when she was 11 years old. In January 2013, when she was 13, she joined the High Performance (“HP”) program for elite athletes coached by Mr. Lim, who was an Olympic-level Taekwondo coach. Mr. Lim eventually controlled all aspects of her life, insisting on a strict regimen of dedication to the sport, to the exclusion of all other social activities and, in particular, boyfriends. He insisted on complete trust and obedience. He texted her constantly, often about personal, intimate matters. He instructed her to delete these messages and to hide things from her mother. In one text he sent her when she was about 14 years old, he told her that he loved her, and he told her in person that she was “special” to him. He started calling her into his office for private “chats,” culminating in hugs that were at first brief, but progressed into being quite prolonged.

[11] When A.E. was 15 years old, this conduct progressed to Mr. Lim kissing her and touching her over her clothing. From there it progressed to touching her under her clothing, and then digital penetration. The incidents in his office were frequent. There were also a number of times when he assaulted her in this manner in his apartment. On another occasion he came to her home, knowing her mother was out of the country, and said he wanted to massage her calves to help her with an injury. However, he massaged her whole body, kissed her, and digitally penetrated her.

[12] For each of the summers from 2014 to 2017, A.E. attended an intensive training camp run by BBW in South Korea. During the years 2015, 2016 and 2017, A.E. was sexually assaulted by Mr. Lim in his Korean hotel room. In the 2015 incident, he texted her to come to his hotel room. He kissed her, removed her pants and underwear, and performed oral sex on her. As she was leaving, he put her hand down his pants and made her hold his penis. In 2016, Mr. Lim sent a message to her through one of the other coaches to come to his room. In this incident he kissed her, put her hand down his pants, and forced her to masturbate him until he ejaculated. In 2017, Mr. Lim again texted her to come to his room. He required her to perform fellatio on him and had full vaginal intercourse with her.

[13] Throughout all of these incidents of sexual abuse, Mr. Lim told A.E. that everything he was doing was for her benefit and that these events were designed to build the level of trust between them that would be needed for her to achieve her dreams of being an Olympic athlete. At the time of these assaults, A.E. was between 15 and 17 years old.

The Evidence of S.C.

[14] S.C. was born in May 2002 and started Taekwondo outside Ontario when she was 11 years old. After a couple of training sessions with Mr. Lim in British Columbia where they lived at the time, S.C.’s parents moved the entire family to Toronto in August 2017, just so that she could train fulltime with Mr. Lim at BBW. At the invitation of Mr. Lim, S.C. attended the summer training camp in South Korea in July 2017 and then in September 2017 started at BBW.

[15] While in Korea in July 2017, S.C. met with Mr. Lim three times in his hotel room, each time late at night and after he texted her to come there. Each time there was nobody else in the room and he closed the door while she was there. She was 15 years old at the time. Obviously, this is highly inappropriate behaviour and shows that Mr. Lim had a poor grasp of the boundaries required in this type of relationship. However, at no time did Mr. Lim ever touch S.C. in a sexual way, nor did he ask her to touch him.

[16] On each of these three occasions in his hotel room, Mr. Lim talked to S.C. about her goals in Taekwondo and what she needed to do to achieve those goals. He told her that her life needed to revolve around Taekwondo, that she should come to him with any problems, and that she should not hang out with teammates as they were a distraction. He was particularly adamant that she not spend time with any of the male athletes. He told her, “You’re not here to get fucked.” S.C. was surprised by the language, but believed Mr. Lim was saying these things for her own benefit, to help her to be better. Much of this instruction to stay away from boys and make Taekwondo her whole life is similar to what A.E. alleged Mr. Lim told her.

[17] I am fully satisfied these meetings took place as described by S.C. She still had the text messages from Mr. Lim on her phone when she was interviewed by the police in May 2018 and they were made an exhibit at trial.[^3] The frequency of these text messages and the personal nature of many of them are similar to what is alleged by A.E., although it does not appear that Mr. Lim ever told S.C. to delete his messages to her. I also note the ease with which Mr. Lim summoned teenage girls to come to his hotel room in a foreign country for long private meetings.

[18] Much of what Mr. Lim said to S.C. about teenage boys is also similar in nature to the manner in which he discouraged A.E. from having anything to do with boys. This is confirmed in his text messages. For example, in a series of texts to S.C. on August 2, 2017, some of the comments Mr. Lim made about boys were:

• Most boys are stupid and not mature.

• So needy and annoying

• Between you and I, I don’t like them. All of them.

• Stupidity and dumbness

• That’s why ignore them and stay far away from them[^4]

[19] Likewise, he instructed her that she should not be doing anything outside Taekwondo, just as he had instructed A.E. A good illustration appears in a text Mr. Lim sent S.C. on August 17, 2017 in which he told her that the only time she should be in a group was when she was training, nothing else, no birthday parties, no sleepovers, no going out to eat with friends.[^5]

[20] One of the things Mr. Lim told S.C. in his hotel room in Korea was that the purpose of her images on social media should not be to advertise Viagra. S.C. said that she thought her images were pretty typical for a 15-year-old girl, but accepted the criticism as being for her own good.

[21] About a month after returning from Korea, S.C. asked Mr. Lim in a text for advice on how to “get guys to stop treating [her] as an object.” She explained that she was only being friendly with them but they kept trying to talk to her even when she told them she was not interested. Mr. Lim told her, “I can help you. Because I help many girls. Trust me.” He told her she needed to “clean up” her image. Some of the advice he gave her was appropriate, e.g. blocking people who were not respecting her, changing her privacy settings, changing her number, and only giving the new contact number to people she knew and trusted. Other comments he made provide an additional illustration of his lack of regard for appropriate boundaries between a person in authority and a young teenage girl. For example:

• You don’t need boys. You need real man.

• Clean yourself up and start new and fresh in Toronto

• Clean your Facebook and Instagram. And make sure no one save you (sic) photos.

• You look really hot. Boys will look at your pictures and do their business.

• It’s your image. Don’t sell yourself cheap. When I saw your (sic) in Facebook I was thinking the same thing. Even though I wasn’t boy.

• [they are] rapping (sic-raping) with their eyes. Trust me I’m man too. It’s true.[^6]

[22] S.C. testified that some of Mr. Lim’s comments made her feel uncomfortable, but that she believed he was protecting her interests. She was never assaulted. She was also clear that she was not pressured by A.E. to go to the police. A.E. told her in a general way that she had been kissed and touched inappropriately by Mr. Lim, but this was after A.E. had already given her own statement to the police. S.C. denied being pressured by A.E. to go to the police.

[23] I found S.C. to be an honest and forthright witness. Much of what she testified about was corroborated by text messages on her phone. I am satisfied beyond a reasonable doubt that her testimony was both truthful and reliable.

The Evidence of E.L.

[24] E.L. was born in September 1998. She is a close friend and former roommate of M.V. (who was previously a complainant in this trial prior to my order severing those counts from this indictment). E.L. previously trained in Taekwondo with M.V. in London, but came to the Toronto BBW studio in 2012 when she was 14 years old. She attended the BBW training camp in South Korea every summer from 2013 through to 2017 inclusive.

[25] E.L.’s testimony as to Mr. Lim’s rules about students’ commitment to Taekwondo is similar to that of both other witnesses. She said she had no other social life. She confirmed the importance of trust and the degree of respect that was given to Mr. Lim by all the students. Mr. Lim required complete trust and complete obedience. All three witnesses gave similar evidence about this. E.L. recalled that Mr. Lim would frequently say in class that they had to do “whatever it takes” to reach their goals. Once he asked her directly if she was prepared to do whatever it takes to get to the Olympics and she answered, “Yes sir, as long as it is not illegal.”

[26] Like the other two witnesses, E.L. testified that she was not permitted to have boyfriends. She said she once had a boyfriend in Grade 11 and Mr. Lim told her she had to break up with him. She testified that Mr. Lim told her, “You are a race car and I am the driver and there is no room for a passenger.” She broke up with that boyfriend, as ordered. However, after she finished high school, she had another boyfriend, but this time did not tell Mr. Lim.

[27] E.L. testified that Mr. Lim never touched her in any inappropriate way prior to the summer training camp in South Korea in 2017. At that time, she was 18 years old. She said Mr. Lim would have been aware of her age, but that when they were in Korea he asked her how old she was and she told him she was 18.

[28] E.L. said she was having emotional issues in the summer of 2017. Just before the training camp in South Korea, she had gone through a difficult breakup with her boyfriend and she was also having some personal problems with family members. In Korea, she asked Mr. Lim if she could talk to him about these personal issues. She said he encouraged the students to talk to him about such things. Mr. Lim called her that night and asked if her roommates were asleep. When she said they were, he told her to come to his hotel room.

[29] Upon her arrival, Mr. Lim handed her a pair of tweezers and told her that before they could talk, he needed her to pluck the grey hairs out of his head. He lay face down on one of the beds and she proceeded to pluck out his grey hairs one by one. (I note that E.L., like A.E., described that there were two beds in the room, one bigger than the other.) I have no doubt whatsoever that this bizarre event occurred as described. It is yet another example of the degree of control Mr. Lim wielded over these young women and his complete lack of regard for appropriate boundaries.

[30] E.L. testified that after she had finished the plucking, Mr. Lim asked her if she was sore from the training that day. She said that she was and he massaged her feet, calves and hamstrings. This did not seem unusual to E.L. as she said she had seen him do massages like this before in front of everyone. E.L. was vigorously cross-examined about this disclosure of the massage because she had failed to disclose it in prior statements. Defence counsel argued that E.L. only said this because the Crown specifically asked her about it and that this demonstrates what a suggestible witness she is. I disagree. I accept E.L.’s explanation that this detail had escaped her memory when she was giving her statement to the police and that she did not attach any particular importance to it when it popped back into her mind later. When asked about it directly, she recalled it, and answered truthfully. She did not embellish. For example, she did not allege that there was anything untoward about the massage, and indeed there might not have been, were it not for the fact that they were alone in a hotel room, and the conduct that followed the massage. E.L. never suggested that there was anything sexual about the massage and stated, truthfully, that she had seen him massaging other athletes in a similar way in front of everybody. I accept E.L.’s evidence about what happened with the hair plucking and the massage.

[31] E.L. testified that after the massage, she sat at a small table in the hotel room. Mr. Lim again confirmed that she was 18 years old. E.L. talked to Mr. Lim about her personal problems. He told her he already knew about the boyfriend and they talked about trust. He told her she needed to trust him completely to realize her Olympic goals. He then placed his hand on top of hers. She reported that she reacted to this by starting to laugh. I find E.L.’s testimony about this reaction to have the ring of truth. It is not the type of reaction reported by any of the other witnesses, and not the type of reaction any person would make up if fabricating a story of sexual abuse. Again, up to that point, apart from the inappropriateness of the location and time, nothing untoward had happened. However, E.L.’s evidence about what followed from there is an entirely different matter.

[32] E.L. said that Mr. Lim told her to stand up. He hugged her, and asked if it felt awkward. She said that it did. Next, he told her to close her eyes and he stood very close to her face. He asked her if that felt awkward, and she said that it did. He told her he was building trust. He stood with his lips just touching hers. He asked if it felt awkward and she said that it did. He said, “We have to fix that.” Next, he started kissing her. She said she just stood there as this went on. He asked her if it felt awkward and she said that it did. Next, he walked her to the wall beside the door. Her back was to the door. He kept kissing her, to which she did not reciprocate. He started touching her all over her body, put his hand into her pants, and his fingers into her vagina. He then placed her hand on his pants, over his penis. He asked her if it still felt awkward. At this point, E.L. said she told him that it felt less awkward than before, not because it did, but because she wanted it to be over. He then stopped and she left the room. As she was leaving, he told her to delete all the text messages between them from her phone, which she did.

[33] A few days later, Mr. Lim texted E.L. at about 1:00 or 2:00 am. When she responded, he asked why she was still awake and she told him she could not sleep. He told her to come to his room to watch a movie on TV. When E.L. got to his room, they talked for a while about her training goals. He then received a phone call about flight reservations and was talking on the phone while E.L. sat on his bed watching a movie on TV. She testified that she fell asleep and woke up when she felt his hand on her chest. She said she pretended to be asleep and did drift off again. E.L. testified that she then woke up again when she felt him touching her. He took off his pants and motioned for her to take his penis into her mouth. She said she had never done this before and did not want to do it, but he said, “Oh, trust again.” She continued until he ejaculated on himself and then went to the bathroom. She got dressed, explaining that at some point she thought he had “taken her pants off or something.” She went back to her own room at 5:30 am. Mr. Lim told her to delete all their text messages from her Facebook Messenger, which she did. She explained, “I just did what he said because I always did what he said. He was my coach.”

[34] After these incidents in Korea, E.L. continued to train with BBW, and with Mr. Lim. She told nobody about what happened until more than a year had passed. She knew about the charges laid against him as a result of the allegations made by A.E., but had not discussed this with A.E. prior to the charges. E.L. testified that she saw Mr. Lim in his apartment about one week after he had been arrested. She went there with a friend who was also a BBW student. Other people were also there. On that occasion, Mr. Lim told everyone that he could not understand why A.E. would lie about this. He then said that the only thing that would help A.E. was if other people lied about him too. E.L. said that Mr. Lim looked directly at her as he was saying that. She said nothing at the time.

[35] E.L. testified that the first time she realized the seriousness of these interactions with Mr. Lim was about one month after his arrest. She spoke to a couple of friends about it, but did not plan to go to the police because she was 18 years old at the time of these sexual incidents and did not actually say “No” to Mr. Lim’s advances. She also did not want to talk about what happened to her. E.L. and M.V. were close friends and roommates. At around this time, M.V. had disclosed to her parents that she had been assaulted by Mr. Lim. At a Taekwondo tournament in June 2018, M.V.’s mother spoke to E.L. and asked her to say “yes” or “no” to whether something happened to her as well. E.L. testified that she nodded her head, said “Yes” and then started to cry. However, even after that she did not intend to go to the police, believing her case was different because she had been 18 years old.

[36] E.L. was candid about there being rumours flying around the Taekwondo community after Mr. Lim’s arrest. She said that at the tournament in June 2018 it was almost the only topic of conversation. However, she denied ever discussing the details of her interactions with Mr. Lim with anybody. She said she knew it was important not to do that because her mother, who works in a law office, told her that right from the beginning. She said the first time she spoke to A.E. after Mr. Lim’s arrest was in the fall of 2018. At that time, she said A.E. also told her that they should not discuss any details. She acknowledged having a general discussion with A.E. about the charges and her situation and that they did discuss the “trust” issue, but that neither of them discussed the details of what happened to either of them.

[37] M.V. decided to report her allegations to the police. On March 14, 2019, M.V.’s mother drove her daughter from London (where they lived) to the police station in Toronto. E.L. agreed to go along for the drive to provide moral support. Even then, she had not fully decided to provide information to the police. However, she said she had a “feeling in her gut” that she needed to say something. The group picked up A.E. on the way to the station. M.V. gave her statement first, and then E.L. also provided a statement.

[38] E.L., S.C., and A.E. deny ever discussing the details of their individual interactions with Mr. Lim with each other or anyone else. Everyone agreed that A.E. told them she had been told by the police that she should not discuss the details.

[39] E.L. felt constantly pressured by Mr. Lim about her weight. Mr. Lim also would tell her that she would be more attractive if she was skinnier and urged her to dress better and wear makeup. He wanted her to compete in a weight category that was very difficult for her to maintain. She said that even though her doctor advised her against trying to maintain that weight, Mr. Lim was insistent about it. She developed an eating disorder. She also had many struggles with Mr. Lim about it, including an incident in 2018 when she told a teammate after an argument that she hated Mr. Lim.

[40] E.L. was cross-examined about some inconsistencies between her testimony at trial and her statements to the police. I do not find these to be significant enough to undermine the credibility or reliability of the main parts of her evidence. She acknowledged throughout that her memory is “blurry” about the details of the fellatio. In these kinds of situations, it is not unusual for details to be blocked out. E.L. was inconsistent about how her pants came to be off – whether Mr. Lim removed them or if she took them off herself because it was hot. This was not a pivotal detail given the events that transpired, and I do not find this inconsistency undermines the rest of her evidence. Likewise, at the beginning of her police statement, E.L. said that Mr. Lim went to the bathroom first and that when he came back the fellatio occurred. Later in that statement she corrected herself and stated that the fellatio had already happened before he went into the bathroom and that when he came out, she left. She confirmed at trial that this latter scenario was correct and said that she had initially misremembered it. In the initial part of her police statement when she simply related a narrative of what had occurred, she failed to mention that at the time of the first incident Mr. Lim put her hand on his penis. However, later in her statement as the police interviewer was filling in more details with direct questioning, E.L. did disclose touching Mr. Lim’s penis. I attach no significance to the initial omission.

[41] Given the passage of time and the stressful nature of the events, it is not surprising to find some inconsistencies and difficulty remembering details. A standard of perfection in initial disclosure is not required before victims of abuse are to be believed. Neither is a perfect, crystal clear memory of every single thing that happened, preserved over time. E.L.’s memory of the core events remained solid and consistent throughout. I find her evidence as to the essence of these events to be reliable.

[42] I also find E.L. to be a credible witness. I detected no level of animosity towards Mr. Lim. She had some disagreements with Mr. Lim towards the end of her time at BBW. She struggled to reach the weight he expected her to maintain. She disagreed with his instruction to attend training when she was sick. Towards the end, she also resented the extent to which he controlled her life and her relationships. However, I do not believe for a moment that she fabricated these incidents in order to support other complainants, nor did she have any kind of malicious motive against Mr. Lim. I found her to be an honest witness who tried her best to give a truthful account of what happened, to the best of her recollection.

[43] I believe her evidence and I find it to be reliable. I find that Mr. Lim did engage in kissing and groping her, while telling her it was a trust-building exercise essential to advancing her Taekwondo goals. I also find that on the second occasion when she was in his room, he groped her again while she was asleep and required her to perform fellatio on him, again telling her it was building trust. I believe her testimony that she deleted the text messages between her and Mr. Lim because he told her to do so.

Allegations Made by M.V.

[44] Because I ultimately decided not to admit the evidence of M.V. at this trial, I will review only the general nature of her allegations. M.V. joined the HP group coached by Mr. Lim when she was 12 years old. He texted her frequently, often about personal things, and told her to delete the texts. He told her they had to build trust between them. She had a boyfriend at one point, but lied to Mr. Lim about it, because she knew he would not permit it. In 2013 (when M.V. was 13), she pulled a groin muscle during a competition in Mexico. Mr. Lim told her it would be better if he massaged it, rather than going to see a doctor there. In the course of that massage, he put his fingers under her shorts and underwear and digitally penetrated her.

[45] M.V. lived in London with her family. Her family members were also active in Taekwondo and her parents were friends with Mr. Lim. When M.V. came to Toronto to train, she would often stay overnight at Mr. Lim’s apartment. Mr. Lim would also sometimes visit London and would stay in her parents’ home. On a number of occasions when staying at Mr. Lim’s apartment, M.V. woke up in the night to find Mr. Lim putting his hands under her shirt and touching her stomach and breasts. Once he untied her pants. On one occasion in her own home, Mr. Lim came into her room and kissed her lips for an extended period. Throughout all of these incidents, M.V. pretended to be asleep.

C. SIMILAR FACT EVIDENCE – LEGAL PRINCIPLES

[46] Similar fact evidence is presumptively inadmissible because of the danger that the trier of fact will engage in improper general propensity reasoning, something along the lines of, “he did bad things before, so he probably did this bad thing too.” The rule against admitting such evidence is not absolute. In some circumstances, similar fact evidence may be admitted to prove an issue at trial – sometimes the identity of the perpetrator, and other times to prove that the accused committed the act of which he is accused. It is the latter category that applies in this case. There is no issue about Mr. Lim’s identity. The issue is whether the evidence of the individual complainants that he committed the acts alleged is sufficiently credible and reliable to support a conviction.

[47] Almost every discussion of similar fact evidence begins with the Supreme Court of Canada’s landmark decision in R. v. Handy, 2002 SCC 56.[^7] In Handy, the Supreme Court recognized that there will be circumstances where evidence of other discreditable conduct is such that, absent collusion, there can be no plausible innocent explanation for the similar fact evidence and it would defy common sense to suggest this could just be coincidence. The Court gave as an example the infamous 1894 case of Makin, in which the death of one small child buried in the accused’s backyard might be said to be from natural or accidental causes, but not so when there are numerous dead bodies in that backyard and in the backyards of previous residences of the accused.[^8]

[48] The Supreme Court provided a succinct articulation of the test for admissibility of such evidence in a given case, stating that the Crown must establish on a balance of probabilities that “the probative value of the evidence in relation to a particular issue outweighs its potential prejudice.”[^9]

[49] Handy provides a three-stage process for determining whether similar fact evidence should be admitted in a particular case:

(1) Assess the probative value of the evidence. The first step is to identify the issue to which the similar fact evidence is said to be relevant. Then it is necessary to assess the cogency of that evidence. Any possibility of collusion, collaboration or tainting of the evidence must also be considered, as this would diminish the ability of the evidence to rule out coincidence.

(2) Assess the prejudicial impact of the evidence. This involves a consideration of moral prejudice (the danger of general propensity reasoning) and reasoning prejudice (the danger that the triers of fact will be dragged off into a complicated and distracting set of other facts, rather than stay focused on the issue before them).

(3) Weigh the probative value against any likely prejudice to the accused if the evidence is admitted.

[50] In considering the cogency of the evidence at the first stage (probative value), it is necessary to consider the connectedness between the similar fact evidence and the circumstances of the charge against the accused, including:

(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.[^10]

[51] Recently, the Ontario Court of Appeal referred in R. v. Bent to the analysis in Handy as providing a “structure for a consideration of the admissibility of the [similar fact] evidence.”[^11] The Court of Appeal elaborated on the assessment of the probative value of the evidence identified in Handy as the first stage of the analysis. In particular, the Court of Appeal stated that the probative value analysis includes four inquiries:[^12]

(1) Does the evidence relate to a specific issue, other than that the accused is a person of bad character?

(2) Is the evidence tainted by collusion, which undermines the improbability of coincidence?

(3) What are the similarities and differences between the evidence that forms the basis of the charge and the proposed similar fact evidence?

(4) How strong is the evidence that the similar acts occurred?

[52] With respect to the third inquiry, the Court of Appeal in Bent reiterated the test for cogency set out in Handy (see para. 49 above) and noted that not all of these factors will exist or be necessary in every case.

[53] With respect to the fourth inquiry, the Court of Appeal identified the following factors to be considered:

• have the allegations been admitted in prior proceedings?

• are the allegations the subject matter of outstanding charges?

• by what method of proof are the acts to be proved?

• can the trier of fact fairly assess the evidence in the context of the trial without

undue distraction?

• will the defence be able to fairly respond to the allegations in the context of

the prosecution?[^13]

[54] Where the similar fact evidence is relied upon as relevant to the actus reus, i.e. that the conduct alleged actually happened, the same degree of similarity between the different acts will not be required as would be the case where identity is the issue and the way in which the offence was committed is said to be a unique modus operandi. In R. v. J.M., 2010 ONCA 117, the Ontario Court of Appeal held that the similarity could be between the circumstances in which the criminal acts occurred rather than the details of the acts themselves. In that case, the similar fact evidence was from two individuals who were sexually assaulted at separate times while in a temporary foster placement by the father of their foster mother. Watt J.A. stated as follows:

The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proferred (sic) and the other evidence in the case: Handy at para. 78. Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused’s conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences: Shearing at paras. 48 and 50. The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.[^14]

[Emphasis added, citations omitted]

[55] In R. v. Gilbert, 2015 ONCA 927,[^15] the accused was a high school music teacher charged with sexual exploitation of one of his Grade 9 students by kissing her on two separate occasions. He denied ever kissing her. The trial judge (Sproat J.) admitted similar fact evidence from another student and found that the accused had kissed that student “at a conservative estimate” approximately 40 times while he was her teacher. When ruling on the admissibility of that evidence, Sproat J. held that it was relevant with respect to the actus reus of the offence, whether the kissing of the complainant in that case had actually taken place. In his reasons for convicting the accused, Sproat J. stated:

The similar fact evidence demonstrates that three to four years previously the accused had a character trait or propensity to, on approximately 40 occasions, engage in sexual contact with a student when the student offered it or asked for it.[^16]

[56] On appeal, the accused argued that the trial judge had thereby used the similar fact evidence for the improper purpose of impugning the accused’s character. The Ontario Court of Appeal rejected that argument. Laskin J.A. held:

I do not agree with this submission. The trial judge cautioned himself that he could not use Petit’s evidence as evidence of Gilbert’s bad character:

The evidence of the previous year student is also a form of discreditable conduct. I caution myself that it cannot be used to reason that the accused is a bad person and therefore more likely to have committed the offence charged or that the accused is a bad person who should be punished for conduct not before the court.

The trial judge properly limited his use of the similar act evidence to showing that Gilbert had a “character trait”, or a specific propensity, to “engage in sexual contact with a student when the student offered it or asked for it.” That character trait, which the trial judge found had not changed, was relevant to his determination that the kissing had taken place.[^17]

[57] In Handy, the Supreme Court of Canada referred to the double inferences that can appropriately be drawn from similar fact evidence, first with respect to a specific propensity of the accused to behave in a certain way in certain circumstances, and second, that this propensity gives rise to the further inference that he acted in this manner towards the complainant.[^18] The Court noted that, “[i]n any case, the strength of the similar fact evidence must be such as to outweigh ‘reasoning prejudice’ and ‘moral prejudice’. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence.”[^19]

[58] In R. v. Bent, the Court of Appeal described the admissibility for that purpose as follows:

The first question in relation to probative value addresses the issue to which the similar fact evidence is directed. What is it intended to prove? The Crown argued that the similar fact evidence was directed to the actus reus. It would enable the jury to make the “double inference”: first, the inference that the respondent had a sexual attraction to young teenaged girls, a method of approaching them and gaining entry to their homes and a propensity to sexually assault them. Second, that this propensity gave rise to the further inference that he proceeded in that fashion with the complainant in this case. Thus, the evidence would be used to establish the actus reus – that the appellant sexually assaulted K.A. Indirectly, it would support K.A.’s credibility by confirming her evidence that the sexual assault occurred in the manner she described.[^20]

[59] Drawing such inferences is not the same as drawing an inference of guilt based on the general propensity of an accused or his bad character. That type of reasoning is prohibited.

D. ANALYSIS – ADMISSIBILITY OF SIMILAR FACT EVIDENCE

Probative Value

[60] In my view, the proposed similar fact evidence is relevant to the central issue at trial, which is whether the sexual abuse alleged by A.E. actually happened. The assaults on each of A.E., E.L., and M.V. show Mr. Lim’s proclivity for sexual gratification by exerting his power over the teenage girls he was coaching. This rebuts Mr. Lim’s general denial of such conduct, as well as the objective unlikelihood that the similarities of these circumstances could be mere coincidence.

[61] The evidence is also admissible to support A.E.’s account of the circumstances leading up to the assaults, an environment created by Mr. Lim in which he was respected and trusted and obeyed without question. He sent repeated text messages to the witnesses, controlling all aspects of their lives, and insisting on their complete trust in him if they wanted their dreams of competing in the Olympics to come true. It was this environment that enabled Mr. Lim to prey on A.E. with impunity and prevented her from even realizing the nature of what was actually going on.

[62] S.C., E.L. and A.E. described similar circumstances of this control. Apart from E.L., all the witnesses received inappropriate messages of a personal nature. With the exception of S.C., Mr. Lim told all of the witnesses to delete messages he sent to them. All four witnesses reported Mr. Lim’s insistence that they stay away from boys and his intrusions on their privacy about such matters. S.C., E.L. and A.E. all reported being summoned to his hotel room in Korea for private sessions with him behind a closed door. All reported private sessions with Mr. Lim which involved intrusive, personal, and inappropriate discussions in his hotel room (and elsewhere), demonstrating Mr. Lim’s complete disregard for proper boundaries between an adult coach and young girls in his charge.

[63] I recognize, as argued by the defence, that many of these circumstances of control exercised by Mr. Lim would be aspects of any elite training program dedicated to producing Olympic athletes. I also accept that much of the proposed evidence of S.C. can be explained as what one would expect of a very close coach/student training relationship. I do not necessarily accept that all of these circumstances of control are evidence of Mr. Lim “grooming” a potential victim for future sexual abuse. Some of it was simply part of the training. For example, Mr. Lim’s analogy to the athlete being a race car and him being the driver, and they needed to trust him completely, was something he said regularly, and was not necessarily an aspect of “grooming.” However, quite apart from any sexual connotations, the evidence of the level of control Mr. Lim wielded is relevant to understanding the circumstances in which A.E. found herself when Mr. Lim made sexual advances upon her. All four witnesses gave similar evidence on this point, which for the most part is not denied by the defence. Rather, the defence seeks to challenge the motivation behind such control, which it is argued is “normal” for a high-performance/Olympic-level coach and athlete relationship. The extreme degree of trust and deference to Mr. Lim is important to understand A.E.’s reaction to what was happening, and these circumstances are confirmed by the other three witnesses. Again, absent collusion, this cannot be coincidence.

[64] However, notwithstanding the defence submission, in my view, the tone and content of many of the communications from Mr. Lim and the nature of the relationships he sought to form with these witnesses cannot be described as “normal,” or, if it is “normal” in the sense that it happens all the time (about which I heard no evidence), that does not make it acceptable.

[65] I also recognize that there are many dissimilarities in what happened to these four witnesses. Because I severed the counts involving M.V., I will not deal with the similarities/dissimilarities between her allegations and those of A.E. With respect to the other three witnesses, many of the sex acts were different in nature. S.C. was not touched sexually at all. Many of the common features between E.L. and A.E. could fairly be described as generic.

[66] E.L. had none of the preludes leading up to full sexual assault or the grooming behaviour that were reported by A.E. However, both A.E. and E.L. were sexually violated by Mr. Lim in his hotel room in Korea. One striking similarity between the assaults reported by those two witnesses is the rationale advanced by Mr. Lim for his assaultive behaviour towards them, which he told them was for their benefit so that he could build up a level of trust and comfort necessary for them to achieve their Olympic goals. In the absence of collusion, this is highly unlikely to be a coincidence.

[67] With respect to the relevant factors listed in Handy as being considerations at this stage of the test:

(1) The acts are proximate in time. A.E. alleged an escalating pattern of assaults starting in 2015 and culminating with the assaults in the hotel room in Korea in the summer of 2017. E.L. also reported assaults in the hotel room in Korea in the summer of 2017. All of the witnesses described the nature of the controlling conduct of Mr. Lim throughout the same period of time.

(2) There are both similarities and differences in the sexual conduct alleged, as discussed above.

(3) A.E. reported numerous instances of assault, continuing over time. E.L. reported two incidents, both in the hotel room in Korea in 2017. The pattern of activity was not the same.

(4) The complainants were all teenage girls being coached by Mr. Lim. They all reported his controlling and intrusive behaviour, requiring them to have no social life other than Taekwondo. His intrusion into their personal lives was complete and consistent with all of them and his inappropriate sexually charged text messages were common between A.E. and S.C. All of them reported constant text messaging with Mr. Lim. Much of the conduct, and all of the most serious sexual conduct, occurred away from parental control, such as in Mr. Lim’s hotel room in Korea.

(5) The most distinctive features underlying the events are: the extreme control exerted by Mr. Lim over all aspects of the complainants’ lives; the use of the hotel room in Korea for intimate private discussions with all the complainants and sexual assault of two of them; and the explanation given to two of them that these assaults were part of a trust-building exercise for their benefit and necessary for them to develop the level of trust in their coach to be successful Olympic athletes.

(6) There are no relevant intervening events or other factors.

[68] With respect to the strength of the similar fact evidence, a factor referred to in Bent, I note that the evidence of S.C. is corroborated to a considerable extent by text messages sent to her by Mr. Lim. A.E. also had a number of text messages on her old phone that provide corroborative evidence, particularly with respect to the inappropriate social boundaries and level of control exerted by Mr. Lim, his attempts to sideline parents, and his direction that text messages between them must be secret and erased after they are read. Apart from that, the sexual assaults reported by both A.E. and E.L. depended on their credibility and reliability as witnesses. Both were impressive witnesses. This is not the kind of strong evidence where there has been a prior conviction based on the conduct alleged to be similar. However, neither is it frail. At the time when I initially admitted the similar fact evidence, I considered it to be sufficiently strong and consistent to warrant its admission.

[69] As indicated above in my review of the evidence at trial, as I now write these reasons at the conclusion of the trial, I am satisfied beyond a reasonable doubt as to the truth and reliability of the interactions both S.C. and E.L. testified they had with Mr. Lim. The evidence is very strong.

Collusion

[70] Where there is an air of reality to the prospect of collusion, the Crown must prove on a balance of probabilities that the evidence was not tainted by collusion before the similar fact evidence can be admitted. Here, all of the witnesses were acquainted with each other to varying degrees as all were part of the small group of elite athletes coached by Mr. Lim at BBW. All of them reported that they had virtually no social life outside Taekwondo. They trained together constantly, travelled together to competitions and training camps away from home, and corresponded on social media with each other regularly. There were many opportunities for them to collude with each other. It is well settled in the case law that a mere opportunity to collude is not sufficient to reject the similar fact evidence. Actual collusion or tainting of the evidence is required.

[71] However, I accept the defence position that the surrounding circumstances in this case suggest more than mere opportunity to collude. After she had given her own statement to the police, A.E. spoke to S.C. about whether she had any untoward experiences with Mr. Lim, and it was a result of that discussion that S.C. went to the police. Similarly, M.V. and E.L. came forward with their disclosures of abuse after hearing about the charges against Mr. Lim and after there was considerable gossip about the matter within the tightly knit Taekwondo community. They spoke with A.E. before going to the police and A.E. went with them to the police station (along with M.V.’s mother) when they gave their statements to the police. In my view, these circumstances give an air of reality to the defence argument that the similar fact evidence is tainted by collusion, whether deliberate or unconscious, such that the onus is properly placed on the Crown to establish the absence of collusion on a balance of probabilities.

[72] At the time this motion was argued, and before I heard any evidence, I found that this onus was met based on what witnesses had said about this issue when interviewed by police or testifying at the preliminary hearing. There was nothing about the evidence of any of the witnesses to suggest their testimony was tainted in any way. They all denied discussing their evidence with the others, apart from very brief and general statements about what had happened to them, without details. Further, there were enough dissimilarities in what they said occurred to support the Crown’s contention that these were independent unsullied recollections. Also, there were no shadings or changes in anybody’s evidence over time to conform with the evidence of any other witness.

[73] At the conclusion of all of the evidence and argument, having now heard the testimony of each of A.E., E.L., and S.C., I am even more strongly of the view that there was no collusion, whether conscious or unconscious. All of the witnesses testified to that effect, and all were forthcoming about the extent to which information was learned or exchanged. To the extent any witness heard about what another witness had experienced, it had no impact on that witness’ testimony at trial.

[74] First of all, I rule out deliberate collusion absolutely. A.E. came forward on her own to report her experiences with Mr. Lim to the police. Nobody else in the Taekwondo community knew about this until after it happened. To the extent there were changes in A.E.’s evidence over time, those changes have been because of mere omissions to mention something previously, or as a result of fading memory.[^21] None of these changes were motivated to make her evidence more similar to that of another witness, nor do they achieve that effect.

[75] In any event, if four witnesses set out together to fabricate evidence in order to falsely accuse Mr. Lim of sexual assault, surely they would come up with stories that were more similar than they actually are. The differences in each of their experiences underscores that their stories were not deliberately concocted, but rather stand as unique experiences, albeit with similar circumstances.

[76] Likewise, the three witnesses who came forward after Mr. Lim was already charged do not describe the same pattern of behaviour involving long-term, escalating acts of sexual abuse described by A.E. If the witnesses set out to support A.E. by inventing stories about Mr. Lim, I would expect more actual support in terms of their narrative.

[77] I completely rule out deliberate collusion to manufacture similar evidence against Mr. Lim. The real question is whether the accidental receipt of information about somebody else’s experiences could have coloured or tainted the evidence of any of the witnesses.

[78] I have ruled this out with respect to the testimony of A.E. Apart from minor inconsistencies, her version of the events involving Mr. Lim has not evolved over time, nor has it been embellished or shaded to match the evidence of other witnesses.

[79] The remaining issue is whether the evidence of either S.C. or E.L. may have been tainted, even unconsciously, by their discussions with any other witness (including M.V.), or by gossip or rumours in the community.

[80] Defence counsel portrayed A.E. as a “cheerleader” who rounded up witnesses to support her claims against Mr. Lim. I do not accept that characterization. A.E. first disclosed Mr. Lim’s abuse to a friend. She testified that the issue that tipped the balance for her in terms of reporting what Mr. Lim had done was her friend’s question about whether she thought Mr. Lim might have done something like this to anybody else. She immediately thought about S.C. and wondered if this had happened to her. She did not speak to S.C. until after she had given her own statement to the police. She testified, and I accept, that the police cautioned her about being careful not to talk about the details of her evidence with anybody else and that she was mindful of that advice. A.E. called S.C. out of concern for her welfare. She told S.C. that she had been touched inappropriately by Mr. Lim and asked if anything had happened to her. S.C. told A.E. about receiving text messages, and actually read one of them to A.E., at which point A.E. stopped her and said that she should not tell her any details. A.E. gave information to S.C. about how to contact the police and who to speak to if she decided to give a statement. Both S.C. and A.E. confirm that this was the extent of the information exchanged. Both denied that A.E. pressured S.C. to go to the police. I believe them.

[81] Although S.C. knew that Mr. Lim had touched A.E. “inappropriately,” she has never once alleged that this happened to her. S.C. has never had contact with M.V. and had no contact with E.L. prior to going to the police in May 2018. Towards the end of 2018, she had a general discussion with E.L. about the fact that E.L. had also been touched inappropriately by Mr. Lim, but this was after S.C. had given her own police statement. S.C.’s testimony at the preliminary inquiry in May 2018 and at the trial before me was not different from what she told the police in May 2018. Therefore, even if she did receive information about details from E.L. (which both deny), it had no impact on her evidence. I therefore find that S.C.’s evidence was not tainted in any way, consciously or unconsciously, by collusion.

[82] Likewise, I can rule out any suggestion that E.L. was tainted in her evidence as a result of S.C. telling her anything.

[83] Both E.L. and A.E. testified that they were conscious of the importance of not discussing details (E.L. having received this advice from her mother who worked in a law office, and A.E. having been told that by the police). I accept their evidence. I find that the details were not discussed and that E.L. did not know any of the particulars of the assaults on A.E. prior to giving her own statement to the police. I also find that E.L. was not pressured by either M.V., M.V.’s mother, or A.E. into giving a statement to the police. She did so voluntarily because she thought it was the right thing to do.

[84] It is not essential to my decision in this case to rule on whether E.L.’s evidence about what happened to her was potentially tainted by anything she heard from M.V., and because this issue may arise in the subsequent trial into the charges involving the assaults on M.V., I will not conduct a full analysis of it here. Suffice to say that I am aware of no evidence to suggest that was the case, although I did not hear testimony from M.V. and do not want to be definitive. In any event, to the extent there could have been unconscious tainting, it would not have been with respect to any aspects of E.L.’s evidence that are similar to that of A.E.

[85] Accordingly, I find no collusion, deliberate or otherwise, to taint the evidence of either of the similar fact witnesses who testified in the trial before me. The strength of their evidence is therefore not diminished.

Prejudicial Effect

[86] The prejudice that is relevant in this context is not whether the accused has an increased risk of conviction if the evidence if admitted. Rather, the concern is about moral prejudice, the risk of a wrongful conviction as a result of a “forbidden chain of reasoning [by inferring] guilt from a general disposition or propensity.”[^22] The case law is clear that it is necessary to consider the potential prejudicial impact of the similar fact evidence, even in a judge alone trial. However, that impact is substantially diminished when there is no jury.

[87] The danger of moral prejudice is greater when the similar fact evidence is morally worse than the conduct giving rise to the charges before the court. In this case, the reverse is true. The conduct alleged by S.C., although highly inappropriate, was not criminal in nature. The conduct alleged by E.L. is certainly more serious than by S.C., but not as serious as the abuse alleged by A.E. There were only two occasions when E.L. was assaulted and she was 18 years old at the time, whereas the abuse of E.L. started when she was only 15 and continued for two years. Being 18 at the time of these incidents, E.L. was capable of giving or withholding consent. She did not say “No,” nor did she physically resist what Mr. Lim did. However, neither did she give actual consent to what Mr. Lim did, and she was clearly in a vulnerable position, alone with Mr. Lim in a hotel room in a foreign country, and in circumstances where Mr. Lim was in a trust relationship with considerable authority over her. He used that trust relationship to achieve his ends, convincing her that this was a trust-building exercise to get her to a level where she could be a successful Olympic athlete. His conduct was a serious violation of that trust relationship, but was not as physically intrusive as his violation of A.E., did not involve as many incidents, and did not start at such a young age.

[88] I am aware it may be tempting for some to jump to conclusions based on the bad character of an accused. However, I am aware of that danger and will be careful not to go down that path. I will instruct myself to consider only the evidence for the purpose for which it is tendered. As stated by the Crown in its factum:

The evidence sought to be admitted in this case is not being admitted to show a general disposition or propensity to engage in sexual misconduct but rather to show the Respondent’s “specific propensity to engage in penetration with young girls” or a “situation-specific propensity” or an underlying unity or system or course of conduct, providing a connecting link between them so that each story renders the next story more probable.[^23]

If the use of the evidence is restricted in that manner, there is no danger of moral prejudice.

[89] With respect to reasoning prejudice, the evidence of the two proposed witnesses was not extensive and there was no substantial effect on the trial. The defence was fully prepared to deal with both witnesses.

[90] Therefore, I find the likely prejudice from the admission of the evidence to be minimal.

Balancing Probative and Prejudicial

[91] The proposed similar fact evidence is strong. It is highly relevant to the issue of the circumstances in which the abuse against A.E. arose, and shows a propensity by Mr. Lim to prey on teenage girls with whom he is in a close coach/athlete relationship of trust. This is not the kind of evidence with high probative value that shows almost “cookie cutter” conduct between multiple victims. However, where identity is not the issue, this aspect of similarity in the evidence is less important. The evidence has relevance for the purpose for which it was tendered. There is little, if any, prejudice as a result of its admission.

[92] I therefore find the evidence to be admissible.

E. DEFENCE MOTION TO SEVER COUNTS

[93] The defence countered the Crown’s motion to admit similar evidence with a motion to sever the counts on the indictment relating to M.V. and to proceed to trial first with respect to the charges involving A.E.

[94] The onus is on the accused to establish that severance is in the “interests of justice.”[^24] The non-exhaustive list of factors to be considered in determining what is in the interests of justice are set out in the oft-cited decision of the Supreme Court of Canada in R. v. Last, 2009 SCC 45, as follows:

(a) the general prejudice to the accused;

(b) the legal and factual nexus between the counts;

(c) the complexity of the evidence;

(d) whether the accused intends to testify on one count but not another;

(e) the possibility of inconsistent verdicts;

(f) the desire to avoid a multiplicity of proceedings;

(g) the use of similar fact evidence at trial;

(h) the length of the trial having regard to the evidence to be called;

(i) the potential prejudice to the accused with respect to the right to be tried within a reasonable time;

(j) and, the existence of antagonistic defences as between co‑accused persons.[^25]

[95] Of these factors, items (c), (e), (i), and (j) have no application. There is only one accused, so no possibility of inconsistent verdicts, antagonistic defences, or one accused testifying against another. Likewise, the complexity of the evidence is not really relevant here. The accused undertook to waive any rights under s. 11(b) of the Charter arising from the delay in reaching trial on the other counts as a result of any severance.

[96] Notwithstanding the submissions of defence counsel, I do find that there is a factual nexus between the two sets of counts. This, and the desire to avoid a multiplicity of proceedings, point towards a single trial. I have found the similar fact evidence to be admissible. This also supports a single trial; with two trials there will be considerable duplication, with the likelihood of all witnesses having to testify twice (assuming the judge who hears the second trial is of the same view as I am about the admissibility of the similar fact evidence). There is no moral prejudice to the accused in having both sets of charges heard together when there is already a determination that count-to-count similar fact evidence is admissible, which is the case here.

[97] Accordingly, every factor that applies supports one trial, with one exception: whether the accused intends to testify on some counts, but not others. Mr. Lim asserted that he planned not to testify with respect to the charges involving A.E., but that he felt he had no choice but to testify, and intended to testify, in defence of the charges involving M.V.

[98] None of the relevant factors listed in Last are considered to be determinative of the issue of severance. However, the case law establishes that the testimonial intention of the accused must be given “significant weight” in this analysis.[^26]

[99] The burden is on the accused to establish that his stated subjective intention of testifying is “objectively justifiable” by demonstrating “that the circumstances objectively establish a rationale for testifying on some counts but not on others.”[^27] Most decisions involving this factor turn on whether or not the accused’s stated testimonial intention can be seen as objectively reasonable.

[100] I accept that there is a rational, objective basis for the accused to conclude that he had a defence available with respect to the charges involving A.E. without needing to testify, but that he is in a different position with respect to the charges involving M.V. There was a preliminary inquiry for the charges involving A.E., with full opportunity to obtain discovery of the case and cross-examine the complainant. The defence believed there were grounds to challenge her testimony based on inconsistencies in her evidence, and the circumstances surrounding when she first made disclosure about what she said Mr. Lim had done. The defence also intended to challenge the reliability of her evidence due to tainting from a paper she had written in a criminology class involving sexual assault convictions against a Taekwondo coach in Winnipeg, and her interactions with the other similar fact witnesses. The defence further challenged the credibility of A.E.’s evidence based on her involvement with the CBC in relation to a documentary they were doing about sexual abuse in sport, and her motives to fabricate. At the time of the severance motion before me, these grounds for challenging A.E.’s credibility and reliability seemed to be supported by evidence, and indeed these arguments were ultimately advanced at trial. It is not for the trial judge to second guess the wisdom of an accused person’s decision not to testify. He has a right to remain silent and require the Crown to prove the case beyond a reasonable doubt. There was an objectively justifiable basis for believing that the perceived weaknesses in A.E.’s testimony would be sufficient to raise a reasonable doubt without the accused testifying.

[101] The situation with respect to the charges involving M.V. are somewhat different. She gave a statement to the police, but there was no preliminary hearing. The Crown preferred an indictment on those charges and joined the two sets of charges in the same indictment. Therefore, the defence has less material to work with in respect of the M.V. charges, and it would be reasonable for Mr. Lim to expect that it would be necessary to take the stand and deny her allegations.

[102] A further complication if I severed the M.V. counts is that it would then be contrary to the interests of justice to have M.V. testify in this trial as a similar fact witness. The Ontario Court of Appeal ruled in R. v. Dorsey, 2012 ONCA 185[^28] that once severance is ordered based on the accused’s intention to testify with respect to some counts, but not others, it defeats the purpose of the severance order to allow similar fact evidence from the complainant in the severed counts. Thus, if I were to sever the counts because Mr. Lim wanted to testify on the M.V. counts and remain silent on the A.E. counts, but then permitted the Crown to call M.V. as a similar fact witness to support A.E.’s evidence, Mr. Lim would be in the same conundrum – having to decide as between his right to silence and his right to make full answer and defence. In Dorsey, the Court of Appeal found that allowing the similar fact witness from the severed counts to testify in these circumstances was a reversible error. Therefore, if I sever the M.V. counts, the Crown will be deprived of a source of evidence upon which the Crown would otherwise be entitled to rely.

[103] Although testimonial intention is not a determinative factor, and although all of the other relevant factors supported a single trial, I found that the strength of this factor was sufficient to require severance in the interests of justice. There was other similar fact evidence available for the Crown to rely on in the first trial involving A.E. The testimony of M.V. would have provided further support for the surrounding circumstances of control and absolute trust, but there was ample other evidence on that issue. Some of the particular incidents of sexual assault described by M.V. were not similar to what A.E. experienced, so she would not have been a crucial witness in that regard. The implications for Mr. Lim if I did not grant severance would be that he would have to choose between conflicting constitutionally entrenched rights. Given the similar fact ruling, it would not even be practical for him to testify only as to the allegations made by M.V. and remain silent about the other evidence. In my view, his fair trial rights with respect to the allegations made by M.V. outweighed the merits of having a combined trial.

F. CONCLUSION

[104] At the end of these motions, I found myself facing two conflicting conclusions: (1) similar fact evidence was admissible, including count-to-count similar fact evidence in respect of the M.V. and A.E. allegations; and, (2) the interests of justice required that the M.V. counts be severed so that Mr. Lim could exercise his right to silence in respect of the A.E. counts.

[105] Obviously, deciding whether or not to testify is a fluid thing and a previous decision to remain silent could well change at the end of the Crown’s case. Accordingly, I directed that the Crown call A.E., followed by all of the evidence relevant to the charges involving A.E., before calling any other evidence. I advised the defence that I would be putting Mr. Lim to his decision at that point. If he decided he was not going to testify, that would be the end of the evidence at this trial and I would sever the counts involving M.V., which would then be tried separately. However, if at that point he had decided to testify in response to the A.E. charges, there would no longer be a rational basis to sever the M.V. counts. If he made that election, I would have permitted M.V. to then be called as a witness in this trial.

[106] In the result, the evidence of A.E., S.C., and E.L. was completed. Mr. Lim maintained his position that he would not testify. I therefore severed the five counts involving M.V. to be tried separately at a later date, and ruled that M.V. could not testify as a witness in this trial. Final argument followed, at the conclusion of which I reserved my decision on whether Mr. Lim was guilty or not guilty of the charges left on the indictment before me.[^29]

Released: January 14, 2021

COURT FILE NO.: CR-910000604

DATE: 20210114

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

SHIN WOOK LIM

Defendant

REASONS FOR JUDGMENT

MOLLOY J.

Released: January 14, 2021

[^1]: R. v. Lim #3, 2021 ONSC 35.

[^3]: Exhibit 18.

[^4]: Exhibit 18, Tab 15.

[^5]: Exhibit 18, Tab 21, pp. 144-145.

[^6]: Exhibit 18, Tab 21.

[^7]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[^8]: Ibid, at para. 45.

[^9]: Ibid, at para 55.

[^10]: Ibid, at para. 82

[^11]: R. v. Bent, 2016 ONCA 651, at para. 35.

[^12]: Ibid, at paras. 38-44.

[^13]: Ibid, at para. 44.

[^14]: R. v. J.M., 2010 ONCA 117, at para. 91.

[^15]: R. v. Gilbert, 2015 ONCA 927.

[^16]: Ibid, at para. 71.

[^17]: Ibid, at paras. 72-73.

[^18]: Handy, at paras. 26-29, 42.

[^19]: Ibid., at para. 42.

[^20]: Bent, at para. 50.

[^21]: See R. v. Lim #3, 2021 ONSC 35, at paras. 95-102.

[^22]: Handy, at para. 139.

[^23]: Crown Factum on Similar Fact Evidence, para. 112; R. v. R.B., 2005 30693 (ON CA), 77 O.R. (3d) 171 (C.A.), at paras. 10-11.

[^24]: Criminal Code, R.S.C. 1985, c. C-46, s. 591(3).

[^25]: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18.

[^26]: Ibid, at para. 27

[^27]: Ibid, at para 26

[^28]: R. v. Dorsey, 2012 ONCA 185, at paras. 47, 48 and 50.

[^29]: I found Mr. Lim guilty on all counts, for reasons delivered at the same time as these: R. v. Lim #3, 2021 ONSC 35.