



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lai, 2021 ONCA 139

DATE: 20210304

DOCKET: C68031

Doherty, Watt and van Rensburg
    JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Shu-Seng Lai

Respondent

Alexander Alvaro, for the appellant

Matthew Gourlay, for the respondent

Heard: February 26, 2021 by video conference

On
    appeal from the acquittals entered by Justice Nancy M. Mossip of the Superior
    Court of Justice, dated January 15, 2020, reported at
R. v. Lai
, 2020
    ONSC 0231.

REASONS FOR DECISION

[1]

The respondent, a practitioner of Traditional
    Chinese Medicine (TCM), was charged with sexually assaulting three clients.
    The alleged assaults occurred in the course of the respondents purported
    treatment of the complainants. With respect to C.B. and L.B., the defence conceded
    the relevant touching occurred, but argued it was part of an appropriate TCM
    treatment referred to in the evidence as energy work. With respect to the
    allegations of S.C., which the defence conceded did not involve conduct which
    could be described as acceptable TCM treatment, the defence maintained the
    conduct never occurred.

[2]

The appellant did not testify. An expert in TCM
    did testify, describing the accepted treatments and techniques used in various TCM
    treatments, including energy work. The treatments could include touching and
    massaging of a clients chest and touching of the pelvic area, just above the
    vagina. Touching of the vagina or labia was not part of any accepted treatment.
    In any event, whatever the treatment, it was essential that the practitioner
    obtain the clients consent to any touching.

[3]

The trial judge acquitted the respondent on all
    counts. In doing so, she held that the evidence of each complainant was not
    admissible as similar fact evidence on the counts involving the other
    complainants.

[4]

The Crown appeals.

[5]

The appeal focuses primarily on the trial
    judges treatment of one part of C.B.s evidence. C.B. testified that during a
    session involving energy work, the respondent rubbed her breasts under her
    sweater and touched her labia. Shortly afterward, she spoke to the respondent
    on the telephone. According to C.B., the respondent said he wanted her to come back
    for another energy treatment and he intended to put his finger in her vagina.

[6]

The Crown claimed the statement made by the
    respondent was evidence rebutting the defence contention that any touching
    during the prior session involved appropriate treatment. The Crown also argued
    the statement was a tacit admission of the prior assault and an indication of the
    respondents intention to repeat the assaultive conduct, if afforded the
    opportunity.

[7]

The defence argued, among other things, that
    C.B.s evidence concerning the substance of the conversation with the
    respondent was unreliable and should not be accepted as an accurate account of
    the conversation.

[8]

The trial judge reviewed C.B.s evidence at
    length. With respect to her evidence about the phone call with the respondent
    shortly after the alleged assault, the trial judge concluded, at para. 463:

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.

[9]

The Crown submits the trial judge erred in law
    by failing to properly analyze the relevance and probative value of C.B.s
    evidence concerning the statement made to her by the respondent during the
    phone call. The Crown argues the trial judge wrongly limited her consideration
    of the probative value of the evidence to its potential admissibility as post-offence
    conduct going to the respondents state of mind.

[10]

We cannot agree with Crown counsels
    interpretation of the trial judges reasons at para. 463. In our view, in that
    passage the trial judge indicated she was not prepared to accept C.B.s evidence
    as to the content of the conversation she had with the respondent. In short, the
    trial judge could not find the respondent said what C.B. testified he had said
    during the conversation. Absent a finding the statement was made, there was no
    basis upon which to go on and consider the inferences that could or could not
    be drawn from that statement had it been made.

[11]

The trial judge gave two reasons for finding
    that C.B.s evidence concerning the conversation was unreliable (see paras.
    461-62). Both reasons are supported in the evidence.

[12]

It was open to the trial judge to come to the
    conclusion she did in respect of the reliability of C.B.s evidence. More
    importantly, for the purposes of this appeal, her determination as to the
    reliability of that part of C.B.s evidence did not give rise to any question
    of law upon which the Crown could appeal to this court. Deciding what evidence
    to accept as reliable and what evidence to reject as unreliable is an essential
    first step in the fact-finding process. This evidence failed to clear that
    first hurdle. The Crown cannot point to any error in law tainting the trial
    judges finding.

[13]

The Crowns second ground of appeal arises out
    of the trial judges similar fact ruling. The Crown candidly acknowledges this
    ground cannot succeed if the first ground of appeal fails. As we have rejected
    the first ground, it follows that this ground of appeal fails as well.

[14]

The appeal is dismissed.

Doherty
    J.A.
David Watt J.A.

K.
    van Rensburg J.A.


