



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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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that could identify the victim shall not be published in any document or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. Lo, 2020 ONCA 622

DATE: 20201008

DOCKET: C65179

Watt, Hourigan and Harvison
Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent Lo

Appellant

Nathan Gorham & Breana Vandebeek, for the
appellant

Nicole Rivers, for the respondent

Heard: June 24, 2020 by videoconference

On appeal from the conviction entered on
July 5, 2017 by Justice Steve A. Coroza of the Superior Court of Justice,
sitting with a jury.



Watt J.A.:


[1]

Vincent Lo (the appellant) was a practicing
psychologist. He treated many patients for anxiety. Sometimes, he used
relaxation therapy, in particular, muscle relaxation therapy, as a method of
treatment.

[2]

Relaxation therapy includes touching the
patient.

[3]

Three patients claimed that the appellants massages
progressed from their shoulders to rubbing and caressing their genital areas.

[4]

The College of Psychologists of Ontario (CPO) commenced
disciplinary proceedings against the appellant in connection with the
allegations of one complainant. Based on admissions contained in an Agreed
Statement of Facts, the appellant pleaded guilty to one count of disgraceful
conduct and no contest to a count of sexual abuse of a patient. He was found
guilty of both counts and his licence to practice psychology was revoked.

[5]

The appellant was charged with three counts of
sexual assault. Each count alleged an offence against a different complainant.
The counts were tried together before a court composed of a judge of the
Superior Court of Justice and a jury. The jury found the appellant guilty on
all three counts.

[6]

The appellant appeals his conviction on the
grounds that the trial judge erred in admitting certain evidence and also that
his jury instructions contained inadequacies.

[7]

As I will explain in the reasons that follow, I
would not give effect to any of the grounds of appeal advanced. I would dismiss
the appeal and affirm the convictions entered at trial.

The Background Facts

[8]

The complainants were all a similar age when
they became patients of the appellant. Each presented with anxiety or related
conditions. They attended at different times and were unknown to one another.
Each alleged unwanted touching in his genital area. Each was cross-examined at
length about the circumstances and details of his initial complaint; his
contact with CPO and police investigators, as well as counsel who acted for
each in their separate civil suits; and the evolution of the details of their
complaints described in their evidence at trial.

[9]

The appellant testified at trial. He denied
touching any of the complainants under their clothing or in their genital area.
He acknowledged some touching as part of relaxation therapy but said that any
touching was with the prior express and informed consent of the complainant.

[10]

An overview of the allegations of each
complainant and how they developed during the CPO and police investigations
provides sufficient setting for an understanding of the claims of error being
advanced.

The Complaint of A.M.

[11]

A.M. had suffered from anxiety and
obsessive-compulsive disorder before he was referred to the appellant for
therapy in 2001. He participated in 12 or 13 therapy sessions. After several
sessions involving discussions, the appellant suggested that massages may help A.M.
to relax and visualization would help A.M. respond to his anxiety. A.M. said okay".

[12]

At first, the appellant stood behind A.M. and
massaged his shoulders, arms, and chest. A.M. found these massages relaxing.
Later, however, the massages progressed to A.M.'s chest under his shirt,
including squeezing and pinching A.M.'s nipples. A.M. was not asked for and did
not give permission for these massages.

[13]

In his final therapy session with the appellant,
A.M. wore shorts and a short-sleeved shirt. The appellant, who appeared to
notice his patients attire, began massaging immediately. This time, the
appellant was seated beside A.M. The appellant asked A.M. to put his leg on his
(the appellant's) lap. The appellant massaged A.M.'s leg. As he did so, the
appellant's hand touched A.M.'s penis. The appellant pulled his hand away, then
repeated what he had done, lightly rubbing with one of his fingers. A.M. said, This
is not helping" and got up. He did not return for further sessions with
the appellant.

[14]

A.M. acknowledged that he was aware of the names
of the other complainants, B.G. and T.R., but said that he had not been
provided by police with any details of their allegations.

[15]

In cross-examination, A.M. admitted that he
learned about the existence of the other complainants sometime after the CPO
investigation of the appellant. However, he knew nothing about the use of
relaxation therapy or any touching of genital areas in their cases. He
acknowledged having read the statement of claim filed on his behalf in civil
proceedings. There it was alleged that the appellant's pattern of misconduct
was substantially similar to the allegations of other male patients, including
placing hands down or up the patient's underwear and, in some instances,
massaging or rubbing their genitals.

[16]

A.M. acknowledged that his account of what
happened in his therapy sessions with the appellant changed over time. In his
first complaint to his mother, A.M. did not allege that the appellant touched
his penis. He told the CPO investigator that the appellant touched his penis
once. He told the police the touching occurred twice. At trial, he said it
happened three times, then between once and three times. Although he testified
at trial that the appellant played with and pinched his nipples, he did not
provide these details during the CPO investigation or at the preliminary
inquiry.

[17]

A.M. testified that before he gave his statement
to the police, the investigating officer told him that there were other
complainants who had experienced similar abuse. This confirmed for A.M. that he
had not imagined what occurred with the appellant. He also affirmed that his
mental illness distorted the manner in which he perceived reality, causing him
to think that others were thinking about or laughing at him when they were not.

The Complaint of T.R.

[18]

A crisis worker referred T.R. to hospital
because of T.R.'s general anxiety, shyness, and inability to interact socially.
Later, T.R. was diagnosed as suffering from paranoid schizophrenia.

[19]

T.R. attended ten sessions with the appellant.
The first eight sessions involved discussions about T.R.'s condition. The
appellant suggested general relaxation techniques as a method of treatment.

[20]

In the second last session, the appellant
explained that he would touch T.R. as an extension of breathing exercises. The
appellant rubbed T.R.'s shoulders for about 10 or 15 minutes. T.R. found this
awkward. He could not recall whether they discussed the touching as it
occurred, but he did remember that the appellant told him to relax and think of
his breathing.

[21]

One week later, in their final session, the
appellant spoke about relaxation techniques, then moved behind T.R. to massage his
neck and shoulders. T.R. found this relaxing. The appellant then worked his
hands down T.R.'s back. He placed his hands in the back of T.R.'s pants, as far
down as the seat. He kept his hands there for a few minutes massaging lightly.
Then the appellant moved his hands around to T.R.'s stomach and down into his
pants. The appellant massaged down to T.R.'s lower torso and penis where he
left his hands for five or ten minutes.

[22]

In cross-examination, T.R. acknowledged that the
appellant asked whether he was comfortable with the touching. In his police
statement, T.R. said that he did not recall the appellant touching his
buttocks. He was also asked about inconsistencies in his accounts about whether
he had removed his shirt during the relaxation therapy sessions.

[23]

In examination in-chief, T.R. denied any
interactions with the police or the justice system. Later, he conceded that he
had been charged with uttering threats for which he received mental health diversion.
No conviction was entered. He was also charged with posting nude photographs of
his former teaching assistant at a local university on a publicly-accessible
pornography website.

The Complaint of B.G.

[24]

In 2008, when he was 19, B.G. was referred to
the appellant by his family doctor. B.G. had difficulty concentrating. He attended
about eight treatment sessions. At first, according to B.G., it seemed that he
was being treated for anxiety and depression rather than his inability to
concentrate that had been the reason for his referral. No touching occurred in
the first session as they sat facing each other about two chair lengths apart.

[25]

Some touching occurred in the second session,
but it only involved both men standing facing each other with their palms
facing out. The appellant told B.G. to breathe in and out in order to become
more relaxed.

[26]

In their third session, the appellant massaged B.G.'s
shoulders, placing his hands on B.G.'s chest, both inside and outside B.G.'s
shirt. The appellant moved his hands down to B.G.'s stomach. B.G. was very
uncomfortable, as if he were in shock or frozen. When the appellant finished
the massage, he sat down in his chair. B.G. noticed that the appellant had a
visible erection in his pants that he tried to hide from B.G.'s view.

[27]

In later sessions, the touchings continued for
longer periods. Sometimes, the appellant would reach down to the waistband of B.G.'s
boxer shorts, but not leave his hand there. In the final session, the appellant
put his hand further down into B.G.'s shorts touching his pubic bone and hair,
but not B.G.'s penis, for a few seconds of feeling and caressing. Each session
ended with a conversation.

The Evidence of the Appellant

[28]

The appellant, then 61 years old, testified on
his own behalf. Until his position was eliminated by funding cuts, he had been
the Director of Psychology at a local hospital. He entered private practice where
he treated thousands of patients who suffered from anxiety. His professional
interest was the interaction between mind and body.

[29]

The appellant explained that one of the
therapeutic techniques he used was progressive muscle relaxation. This
technique, referred to as the Jacobson technique, requires a patient to tense
an area of their body, then to consciously relax that area. This increases the
patient's awareness of tension in that area and helps them focus on relaxing. Which,
in turn, assists in better communication.

[30]

The appellant testified that, from time to time,
he would touch a patient to help them in progressive muscle relaxation. A light
touch on the part of the body the patient was trying to relax helped the
appellant gauge tension and the patient focus on tightening and relaxing the
particular muscle. He relied on a variety of academic literature to support the
view that some physical contact between practitioner and patient is at once
ethical and proper during cognitive behavioural therapy.

[31]

According to the appellant, he obtained the
consent of each complainant before any physical contact. Although he could not
recall the specifics of each session, he testified that all physical contact
was for the purpose of achieving therapeutic objectives. He denied ever having
touched any of the complainants under their clothing or for a sexual purpose.

The Grounds of Appeal

[32]

In this court, the appellant advances three
grounds of appeal. Two are concerned with the admissibility and use of
evidence, the third, with the trial judge's instructions to the jury. In
particular, the appellant says that the trial judge erred:

i.

in admitting evidence of disciplinary
proceedings against the appellant at the CPO;

ii.

in permitting across counts use of the evidence
of each complainant; and

iii.

in failing to properly instruct the jury on the
appropriate use of evidence of collusion among the complainants in assessing
whether the Crown had satisfied the burden of proof.

Ground #1: The Admissibility of Evidence of Disciplinary
Proceedings

[33]

Before his criminal trial began, the governing
body of the appellant's profession, the CPO, commenced and concluded
disciplinary proceedings against him based on the complaint of A.M. The
appellant pleaded guilty to one count (dishonourable or disgraceful conduct),
and no contest to another (sexual abuse). The prosecutor withdrew a third count,
sexual harassment.

[34]

The hearing panel entered findings of guilt on
the counts of dishonourable conduct and sexual abuse. In a joint submission on
penalty, the parties agreed that the appellant would:

i.

be reprimanded and the reprimand reported on the
College's register;

ii.

undertake and agree to resign from the College,
confirm that he was not registered and would not apply for registration as a
psychologist anywhere in the world; and

iii.

deposit $10,000 to be applied to the victims
therapy fund as needed.

The hearing panel gave effect to the
joint submission and imposed the penalty counsel had proposed.

[35]

The trial Crown sought to have evidence of the
disciplinary proceedings admitted at trial as an admission against interest.
Defence counsel opposed the application. Some further background is necessary
to better understand the nature of this dispute.

The Disciplinary Proceedings

[36]

In November 2010, an investigator from the CPO
contacted A.M. who alleged that the appellant had touched his penis during a
counselling session. Investigators then seized the appellant's file relating to
A.M. Shortly thereafter, the CPO started disciplinary proceedings.

[37]

The notice of hearing served on the appellant
alleged that he massaged A.M.'s shoulder, back, chest, and penis. In a written
response to the allegations, the appellant explained that he used progressive
muscle relaxation therapy for patients with anxiety who had trouble relaxing.
From time to time, this involved light physical touch. This type of treatment
was not only ethical, but also supported by academic literature.

[38]

The appellant denied that his hands were
anywhere near A.M.'s groin or under his shirt, on his chest or his nipples. A.M.
consented to the appellant's touching of his shoulders and knees.

[39]

The College received a second complaint of
similar allegations from B.G. Prosecutors agreed that they would not proceed on
B.G.'s allegations if those relating to A.M. were resolved without a contested
hearing.

The Allegations

[40]

In late June 2012, the formal hearing into A.M.'s
allegations began. The notice of hearing alleged that the appellant was guilty
of professional misconduct. The particulars included:

i.

abuse and sexual abuse of a patient;

ii.

failure to maintain the standards of the
profession, including sexual harassment of a patient; and

iii.

engaging in disgraceful, dishonourable or
unprofessional conduct.

The Appellant's Pleas


[41]

The appellant, through counsel, entered pleas of
guilty to engaging in disgraceful conduct and of no contest to abusing and
sexually abusing a patient. The prosecutor withdrew the allegation of sexual
harassment.

The Agreed Statement of Facts

[42]

The Agreed Statement of Facts filed at the
hearing recounted that the appellant massaged A.M.'s shoulders without
maintaining appropriate boundaries. On one occasion, the appellant touched A.M.'s
bare chest and nipple area with his hand, and on another, massaged A.M.'s bare
leg as it rested on his own leg. The appellant moved his hand up A.M.'s leg
until it touched his patient's groin area. When A.M. reacted with discomfort,
the appellant stopped the massage.

The Submissions of Counsel

[43]

The prosecutor concluded her reading of the Agreed
Statement of Facts in these words:

These, Mr. Chair, are the uncontested facts as
alleged by the College and agreed to by the Member and upon which, or at least
not contested by the Member and upon which the College relies to make out the
allegations of both sexual abuse and disgraceful, dishonourable or
unprofessional conduct.

[44]

Counsel for the appellant added:

Just a couple of things that I would like to
point out. And one is the effect of a no contest plea.

So we have, as youve seen in the statement of
agreed facts, we have got the formal admission of the facts, paragraphs that
were numbered 14 through 19, but more properly are 1 through 6, and if you were
to compare those admissions of fact to the allegations, it is our submission,
our joint submission, that these facts combined give you a sufficient basis to
support the guilty plea for allegation three in the notice of hearing, which is
with regard to the disgraceful conduct allegations.

Now, in terms of no contest, what the no
contest -- the effect of no contest is that Dr. Lo is neither admitting nor
denying the allegations of sexual abuse.

The
prosecutor concluded:

So we have a no contest plea to the
allegations of sex abuse, but the joint submission is that -- the joint
expectation is that you will, nonetheless, find that he is guilty of that
allegation.

[45]

At the request of the hearing panel, independent
legal counsel provided the panel with a definition of sexual abuse. The prosecutor
then concluded:

The only submission that I would make in
response to that is to reiterate my previous assertion that the facts, as they
have been laid out before you, do make out the allegation of sexual abuse,
particularly with respect to the touching of the finger, of the Member's
finger, on the patient's groin area and the touching by the Member of the
patient's bare chest and nipple area with the hand, and it would be my
submission that that touching of that nature in the context in which it
occurred does make out an allegation of sexual abuse and does make out a
finding of sexual abuse.

Counsel for the
appellant added:

We have nothing to add. As you know, there is
no contest to that allegation.

The Findings of the Committee

[46]

The Committee found the appellant guilty of
sexual abuse and engaging in disgraceful conduct. The prosecutor withdrew the
count alleging harassment.

The Application at Trial

[47]

At trial, the Crown applied to introduce
admissions made on the appellant's behalf by his counsel in the disciplinary
proceedings before the CPO. The Crown contended that this evidence was
admissible as admissions against interest".

[48]

The appellant testified on the admissibility
inquiry. He said that he did not authorize his lawyer to admit the fact that he
touched A.M. in the manner described in the Agreed Statement of Facts.

[49]

The Crown contended that evidence of the
disciplinary proceedings was relevant, material, and admissible as an admission
against interest by the appellant. That the admission was actually made by
counsel for the appellant is of no moment. Counsel made the admission with full
authority to do so. The admission fell well within the scope of that authority.
The evidence is of significant probative value. Any incidental prejudice can be
overcome by instructions to the jury about the available uses of this evidence.

[50]

Defence counsel opposed the introduction of this
evidence. The appellant made no admission himself. He said nothing. His
pre-hearing conduct demonstrated unequivocally that he did not intend and would
not admit sexual abuse. He testified that his lawyer had no authority to make
the admissions she did at the hearing. And even if the evidence satisfies the
requirements for an admission, it should be excluded because its prejudicial
effect exceeds its probative value.

The Ruling of the Trial Judge

[51]

The trial judge admitted the evidence.

[52]

The real question, the trial judge said, was
whether the appellant formally admitted certain facts by proceeding with the Agreed
Statement of Facts at the hearing. After reviewing the entirety of the
disciplinary proceedings, the trial judge was satisfied that the appellant,
through his counsel, formally admitted:

i.

that he massaged A.M.'s shoulders;

ii.

that he touched A.M.'s bare chest and nipple
area; and

iii.

that he placed A.M.s bare leg on his own and
began massaging A.M.s leg up towards his groin.

[53]

The trial judge concluded that counsel made
these factual admissions on the appellant's behalf and was acting within the
scope of her authority when she did so. She provided effective assistance. The
trial judge rejected the appellant's evidence to the contrary. What counsel did
not admit were the inferences that could be drawn from those admitted facts.

[54]

Satisfied that the proposed evidence was
relevant, material, and admissible, the trial judge conducted a cost-benefit
analysis to determine where the balance between probative value and prejudicial
effect settled. The evidence was probative and reliable because it was an
admission against the appellant's interest. Any reasoning prejudice was minimal
and could be alleviated by instructions to the jury about the permitted and
prohibited use of the evidence.

The Arguments on Appeal

[55]

The appellant accepts that a party's admissions
are admissible in evidence when tendered by the opposite party. The party
tendering the admission must establish, on a balance of probabilities, that the
party made the admission and that its probative value exceeds its prejudicial
effect. A decision to admit an admission into evidence is a question of law reviewable
on the standard of correctness. A substantial component of the inquiry into
admissibility focuses on the weighing of various relevant factors. Provided the
trial judge considers and makes a reasonable assessment of the relevant factors
and does not materially misapprehend the evidence, the judge's assessment of
those factors is subject to deference.

[56]

The appellant says the trial judge made several
errors in reaching his conclusion about admissibility. First, he failed to
consider the overriding factor that the appellant did not instruct his lawyer
to admit the facts as true. The appellant gave uncontradicted evidence to this
effect on the admissibility inquiry. The appellant did not sign the statement
of facts or say anything at the hearing. It follows that the Crown did not
establish, on a balance of probabilities, that the appellant admitted the facts
alleged at the hearing.

[57]

In addition, the appellant continues, the trial
judge erred in using criminal law concepts of formal and informal admissions in
interpreting what occurred at the disciplinary hearing. Different principles
apply to administrative disciplinary proceedings where pleas of no contest may
be entered. There was also some ambiguity in what occurred at the hearing as
between an admission of fact and a failure to contest a fact contained in the Agreed
Statement of Facts.

[58]

The appellant argues that the trial judge
considered irrelevant factors, such as the appellant's failure to object when
the prosecutor read the Agreed Statement of Facts into the record, failed to
take relevant factors into account when evaluating the probative value and
prejudicial effect of the evidence, and engaged in impermissible speculation
about the extent of counsel's admissions on the appellant's behalf.

[59]

The respondent says that a partys admissions
against interest, whether formal or informal in nature, are admissible as an
exception to the hearsay rule. Their admissibility is a product of the
adversary system and does not depend on any showing of necessity and reliability.
Formal admissions in prior proceedings, which could not be contradicted there,
are admissible as informal admissions in subsequent proceedings where they may
be contradicted by the party against whom they are tendered.

[60]

Considered in their entirety, the respondent
contends, the statements contained in the Agreed Statement of Facts constituted
formal admissions in the disciplinary proceedings. Their title says as much.
They were unambiguous. Counsel described them as a formal admission of
facts" and they were worded as admissions". The dispute was not
about the underlying facts, which were admitted, but about whether the facts
admitted could be characterized as sexual abuse" for disciplinary
proceedings purposes. That they did so was not admitted, but not contested.

[61]

The respondent points out that the distinction
between formal and informal admissions is not a criminal law" concept, as
the appellant contends, but rather is an evidentiary principle. The
availability of a no contest" plea does not eliminate the concept of
formal admissions. Here, the appellant formally admitted facts before the
disciplinary body. That formal admission is an informal admission in subsequent
criminal proceedings and was properly admitted at the appellant's trial.

[62]

In the respondent's submission, the trial judge
correctly concluded that counsel for the appellant at the disciplinary
proceeding was acting within the scope of her authority when she formally
admitted the Agreed Statement of Facts. The trial judge rejected the
appellant's testimony to the contrary. He was entitled to do so. His reasons
are free of error and his finding is entitled to deference, as is his
conclusion that the probative value of the admissions exceeded their
prejudicial effect. Any potential prejudice caused by the reception of this
evidence was extinguished by the trial judge's careful instructions to the jury
about their handling of this evidence.

The Governing Principles

[63]

Evidence is receivable in a criminal trial if it
is relevant, material, and admissible. Neither at trial nor in this court is
there any controversy about the relevance or materiality of this evidence. The
issue is one of admissibility, more specifically, whether the evidence in
question satisfies the rule governing admissions.

What is an Admission?

[64]

In traditional terms, an admission could be
described as a statement of an opposing party offered in evidence against that
party. A statement can include an express oral or written assertion or implied
from nonverbal conduct intended by the party as an assertion. See,
Federal
Rules of Evidence
, 28 U.S.C. rr. 801(a) & 801(2) (5th Supp 2011). See
also,
Robert P. Mosteller et al,
McCormick on
Evidence,
8th ed. vol 2 (Thomson Reuters, 2020), at pp. 273-74.

The against interest" Requirement

[65]

At trial and in this court, the parties referred
to the admissibility rule as that which governs admissions against
interest". This qualified descriptive sometimes appears in decisions of courts
of high authority. See, for example,
R. v. Terry
, [1996] 2 S.C.R. 207,
at para. 28.

[66]

The additional without interest" qualifier
confuses admissions with declarations against interest. Each is a discrete
exception to the hearsay rule, if admissions are hearsay at all: see,
R. v.
Evans
, [1993] 3 S.C.R. 653, at pp. 662-64. Admissions are often against
their maker's interest. Were they otherwise, the opposing party would be
unlikely to tender them as part of their case. But they need not be against
interest. And they need not satisfy any of the requirements for declarations
against interest, as for example, the unavailability of the declarant:
McCormick
at pp. 557-59.

Who can make admissions?

[67]

For the most part, admissions are made by the
party against whom they are offered in evidence. But they may also be made by
an agent within the scope of their authority:
R. v. Strand Electric Ltd
.,
[1969] 2 C.C.C. 264 (Ont. C.A.), at p. 268;
Metro Conference Centre Inc. v.
Hunter
, 2016 ABCA 83, at para. 42. Counsel acting for an accused may also
make admissions on behalf of the accused:
English v. Richmond
, [1956] S.C.R.
383, at paras. 4-5. Section 655 of the
Criminal Code
expressly
authorizes counsel to admit any fact allegedfor the purpose of dispensing
with proof thereof".

The Types of Admissions

[68]

Admissions may be formal or informal. In
criminal proceedings, the
Criminal Code
recognizes two formal
admissions:

·

a plea of guilty; and

·

an admission of fact under s. 655.

A plea of guilty is a formal in-court
admission by an accused that they committed the offence to which the plea has
been entered. It also constitutes a waiver of both an accused's right to
require the Crown to prove its case beyond a reasonable doubt and related
procedural safeguards, some of which are constitutionally protected:
R. v.
Lopez-Restrepo
, 2018 ONCA 887, 369 C.C.C. (3d) 56, at para. 23, citing
R.
v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519.

[69]

In the proceedings in which they are entered,
formal admissions are conclusive of the facts admitted. They are not subject to
contradictory proof. On the other hand, informal admissions are not conclusive:
Glover v. Leakey
, 2018 BCCA 56, 7 B.C.L.R. (6th) 1, at paras. 28-30.

Admissions Made in Other Proceedings

[70]

Sometimes, formal admissions made in prior
proceedings may be tendered and received in evidence in later proceedings. For
example, a plea of guilty in a prosecution for a provincial or criminal offence
may be received in evidence in subsequent civil or criminal proceedings.

[71]

In
English
, English was charged with
dangerous operation of a motor vehicle under the
Criminal Code
. Part
way through Englishs trial before a magistrate, the Crown Attorney, who
considered that the evidence did not support the charge, withdrew the count of
dangerous operation. English pleaded guilty to a count of careless driving
under the
Highway Traffic Act
, R.S.O. 1950, c. 167. At the joint trial
of three civil actions for damages arising out of the motor vehicle accident,
English was cross-examined on his plea of guilty to careless driving in the
earlier proceeding. The evidence was held to have been properly admitted as
showing conduct by English which, on its face, was inconsistent with his
testimony at the civil trial where he denied negligence: at paras. 4, 5, and 24.

[72]

In
R. v. Dietrich
, [1970] 3 O.R. 725,
(C.A.),
leave to appeal to S.C.C. refused [1970] S.C.R. xi,
Dietrich pleaded guilty to non-capital murder when arraigned on an indictment
charging him with capital murder. A conviction of non-capital murder was entered,
and a life sentence was imposed. At the time of trial, no statutory provision,
such as current s. 606(4), permitted entry of a plea of guilty to an included
or other offence arising out of the same transaction as the offence charged.
Dietrich's appeal was allowed, and a new trial ordered:
R. v. Dietrich
,
[1968] 2 O.R. 433 (C.A.).

[73]

At Dietrich's second trial, Crown counsel closed
his case by reading to the jury portions of the transcript of the first trial,
including the plea of guilty to non-capital murder and some details about the
reasons for its entry. On an appeal from the conviction entered at the
conclusion of the second trial, this court held that this evidence had been
properly received as an admission:
Dietrich
, at p. 56. See also,
R.
v. W.B.C.
(2000), 142 C.C.C. (3d) 490 (Ont. C.A.), at paras. 59-60, affd
2001 SCC 17, [2001] 1 S.C.R. 530.

[74]

Leaving to one side its availability in
professional disciplinary proceedings, such as those before the CPO, a plea of no
contest" or, more fully,
nolo contendere
, is not available to an
accused in criminal proceedings. As s. 606(1) of the
Criminal Code
makes clear, an accused called upon to plead in criminal proceedings may plead
guilty, not guilty, or the special pleas authorized by Part XX and no others.
See,
R. v. G. (D.M.)
, 2011 ONCA 343, 105 O.R. (3d) 481, at para. 39.

[75]

Nolo contendere
,
translated from the Latin, I do not wish to contend", is a formal plea
available in some jurisdictions under specific enabling legislation. By
entering this plea, a defendant neither contests nor admits guilt of the
offence to which the plea is entered:
G. (D.M.)
, at para. 44. A
procedure with some affinity to what ensues after a
nolo contendere
plea
has developed in this province. Its purpose is to preserve a right of appeal from
a decision on a contested pre-trial motion that would be lost if a plea of
guilty were entered. The procedure involves:

i.

a plea of not guilty;

ii.

an Agreed Statement of Facts establishing the
essential elements of the offence(s) charged;

iii.

no submissions on proof of guilt by the accused;
and

iv.

entry of a conviction.

See,
Lopez-Restrepo
, at para.
25 citing
R. v. Falkner
, 2018 ONCA 174, at para. 92.

The Rationale for Admissions

[76]

Some controversy exists about the basis upon
which admissions are received in evidence in criminal proceedings. Are they
received as an exception to the hearsay rule? Or are they not hearsay at all?

[77]

In
Morgan
'
s
view, admissions are received as an
exception to the hearsay rule. But this requires proof of necessity and
reliability or a listed exception that meets those requirements. However, the
admissions rule furnishes no objective guarantee of trustworthiness. The
declarations may be self-serving when made. The declarant need not have
firsthand knowledge of the matters admitted. And the declarant is available,
sitting in the courtroom: Edmund M.
Morgan
,

Basic Problems of Evidence

Joint Committee on Continuing Legal Education of the American Law Institute and
the American Bar Association (1963), at pp. 265-66.

[78]

Wigmore
contended that a party's declaration had a special value when
offered against the party. Admissions meet the requirement of the hearsay rule.
The declaration is that of the opponent who does not need to cross-examine
himself: John H. Wigmore,
Wigmore on Evidence
, volume 4
(Chadbourn Rev., 1972), at § 1048,
p. 5.

[79]

Strahorn classified all admissions offered
against the party, whether words or acts, as conduct offered as circumstantial
evidence, rather than for its assertive testimonial value. The circumstantial
value lies in its inconsistency with the partys claim at trial: John S. Strahorn
Jr., 
A Reconsideration of the Hearsay Rule
and Admissions

(1937) 85 U. Pa. L. Rev. 484, at p. 576.

[80]

In
Evans
, Sopinka J. said that the
rationale for admitting evidence of admissions has a different basis than the
other hearsay exceptions, if the evidence is hearsay at all. Admissions do not
require independent circumstantial guarantees of trustworthiness. It is enough
that the admissions are tendered against the party making them. Thus,
admissibility is grounded on the theory of the adversary system; that what a
party has previously said (or done) can be admitted against that party in whose
mouth it ill lies to complain of the unreliability of their own statements:
Evans
,
at para. 24.

[81]

In subsequent authorities, the Supreme Court
appears to confirm that admissions are received as exceptions to the hearsay
rule. Unless made to persons in authority, an accused's admissions are presumptively
admissible:
R. v. T. (S.G.)
, 2010 SCC 20, [2010] 1 S.C.R. 688, at para.
20;
R. v. Mapara
, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 31;
R.
v. Terry
, [1996] 2 S.C.R. 207, at para. 28;
R. v.  Waite
, 2014
SCC 17, [2014] 1 S.C.R. 341, at paras. 3-4.

[82]

An admission tendered by the opposite party that
is relevant and material may be excluded where its prejudicial effect exceeds
its probative value:
Terry
, at para. 28.

The Principles Applied

[83]

As I will explain, I would reject this ground of
appeal. I am satisfied that what occurred at the disciplinary hearing before
the CPO was properly characterized as an admission when tendered at the
appellant's criminal trial and was correctly received in evidence. My reasons
involve a series of steps.

[84]

First, I am satisfied that the Agreed Statement
of Facts tendered in the disciplinary proceedings and the representations of
counsel at the hearing are properly characterized as an admission for the
purposes of the criminal prosecution about which we are concerned.

[85]

In the Agreed Statement of Facts, the appellant
admitted his conduct with A.M. What he admitted in those proceedings was
relevant, material, and properly admissible as a formal admission in those
proceedings to establish the allegations of unprofessional conduct and sexual
abuse of a patient made against him. What he admitted there, when tendered by
the opposing party  the Crown  at his subsequent criminal trial engaged the
principles applicable to admissions.

[86]

Second, the admission in the disciplinary
proceedings was an admission made by counsel for the appellant and thus an
admission of the appellant. She was authorized to act for him in those
proceedings. Their email exchanges amply demonstrate the fact and scope of her
authority. Making admissions of fact for the purposes of that hearing fell
squarely within that authority. The decisions in
English
,
Dietrich
,
and
W.B.C
. make it clear that
the admissions of counsel are those of their client.

[87]

The trial judge held an inquiry into the admissibility
of this evidence. The appellant testified that his counsel had no authority to
make the admissions the Crown sought to adduce in evidence. For reasons that
are free of error, the trial judge rejected the appellant's evidence.

[88]

Third, the formal admission of the facts
contained in the Agreed Statement of Facts was conclusive of those facts at the
hearing before the CPO. The plea of guilty to unprofessional conduct
acknowledged the effect of the admissions on proof of that count. The no
contest" plea to sexual abuse left at large, at least in a literal sense,
whether the admissions constituted sexual abuse. But it did not alter the
fundamental nature of the Agreed Statement of Facts as admissions. And as
counsel observed, it preordained a finding of guilt of sexual abuse.

[89]

Fourth, evidence of informal admissions, as with
any item of evidence tendered by a party in a criminal case, must be relevant,
material, and compliant with any governing rules of admissibility. The
admissions were relevant. They tended to show conduct by the appellant that
formed the
actus reus
of sexual assault. This also met the requirement
of materiality. The evidence was tendered by the opposing party. This satisfied
the rule of admissibility governing admissions, a rule that is either the
product of the adversary system outside the framework of hearsay exceptions, or
its own exception not requiring additional proof of necessity and reliability.

[90]

As relevant and material evidence compliant with
the controlling admissibility rule, the admissions tendered by the Crown were
receivable at trial unless their probative value was outweighed by their
prejudicial effect. The trial judge conducted a cost-benefit analysis and
concluded that probative value predominated. His conclusion is entitled to
deference. It is not cumbered by legal error, or misapprehension of evidence
and is reasonable.

[91]

In this case, the prospect of reasoning
prejudice as a result of the admissions contained in the Agreed Statement of
Facts was minimal. The subject-matter of the admissions was neither more nor
less than the testimony of A.M. before the jury. The admissions were contained
in an agreed statement of fact that made no mention of any extrinsic activity
of a similar nature. The trial judge's instructions explained the permitted and
prohibited use of this evidence. There was no risk that the introduction of
this evidence would distract the jurors from their proper focus on the charges.

[92]

Further, the risk of moral prejudice, that is to
say, of an unfocused trial and wrongful conviction, was unlikely. This evidence
did not show disreputable tendencies apt to induce a forbidden chain of
reasoning. It was the subject of A.M.'s evidence at trial and of the jury
instruction that enjoined propensity reasoning.

[93]

I would not accede to this ground of appeal.

Ground #2: Evidence of Similar Acts

[94]

This ground of appeal challenges a decision of
the trial judge to permit across counts use of the evidence of each
complainant. Some additional background is helpful to an understanding of the
error asserted.

The Procedural Background

[95]

At the outset of the trial, defence counsel
sought an order of severance that would require a separate trial on each count.
The Crown applied for a ruling permitting across counts use of the evidence of
each complainant. The trial judge decided, in accordance with the submissions
of defence counsel, that the Crowns application would proceed first since its
result would likely be dispositive of the defence motion for severance.

The Positions of the Parties at Trial

[96]

At trial, the Crown contended that the defence
advanced was a denial of the conduct alleged to constitute the
actus reus
of the offences charged. The defence also involved an attack on the credibility
of each complainant and the reliability of his testimony. The conduct alleged
in each count was sufficiently similar to permit across counts use because it
showed a specific propensity on the part of the appellant to commit the very
offences charged. The evidence also tended to support the credibility of the
complainants and the reliability of their accounts.

[97]

Defence counsel responded that the evidence of
the complainants was not sufficiently similar to warrant across counts use.
Further, there was an air of reality to an allegation of collusion arising out
of contact between and among the CPO investigator, A.M. and B.G., and the civil
lawyer who acted for all three complainants in their individual actions against
the appellant. The cogency of evidence of similar acts arises because of the
improbability of coincidence. Collusion negates this improbability, thus the
probative value of the evidence. It follows that the evidence of each should
not be admitted across counts and the counts should be tried separately.

The Ruling of the Trial Judge

[98]

In his written reasons, the trial judge found that
the evidence of each complainant was relevant and material on the counts
involving the other complainants. The evidence assisted in proof of the
actus
reus
of the other counts, rebutted and anticipated a defence of an
innocent touching, and assisted in the assessment of the credibility of the
complainants.

[99]

Satisfied that, used across counts, the evidence
was relevant and material, the trial judge then turned to the issue of
admissibility which he acknowledged involved the assessment and balancing of
probative value and prejudicial effect. He considered that the evidence had
significant probative value since it disclosed a situation-specific propensity
to commit the
actus reus
of the offences charged.

[100]

The trial judge then examined the impact of evidence of collusion on
the probative value of the evidence. He was satisfied that there was an air of
reality to the claim of collusion. This required the Crown to negate collusion
on a balance of probabilities. He was satisfied that there was no evidence of
actual collusion, only evidence of a risk or opportunity, which the Crown had
disproven on a balance of probabilities. There was no evidence of actual
disclosure of the contents of other complainants' statements to individual
complainants and no evidence of a collusive taint to the account of any
complainant.

[101]

The trial judge then examined the prejudicial effect of admitting
the evidence across counts. He considered the likelihood and extent of both
reasoning and moral prejudice if the evidence were admitted across counts. He
concluded that the prospects of either were not great and could be alleviated
by specific jury instructions about the use of this evidence. The probative
value of the evidence clearly outweighed its prejudicial effect, thus it would
be admitted.

The Arguments on Appeal

[102]

The appellant begins with a reminder about the presumptive
inadmissibility of evidence of similar acts. The rule is only overcome when the
probative value of the evidence outweighs its prejudicial effect. This requires
a careful, case-specific analysis of probative value, prejudicial effect, and
where the balance between them settles. It is well established that collusion
destroys the basis of admissibility  the improbability of coincidence.

[103]

In this case, the appellant continues, the trial judge found an air
of reality to the claim of collusion. This shifted the onus to the Crown to
negate collusion on a balance of probabilities. But the trial judge applied the
wrong test. Instead of requiring the Crown to disprove collusion on a balance
of probabilities, the trial judge shifted the onus to the appellant, whom the
judge required to prove actual collusion on a balance of probabilities.

[104]

The appellant says that two additional errors further flawed the
trial judge's conclusion to admit the evidence across counts. In assessing prejudicial
effect, the trial judge improperly minimized the character of the sexual
assaults and used this to find a minimal risk of prejudicial reasoning were the
evidence to be admitted. The trial judge also erred in dealing with the
application on a pre-trial motion when the evidence of each complainant
continued to evolve as the trial progressed.

[105]

The respondent accepts that evidence of similar acts is
presumptively inadmissible unless the Crown establishes, on a balance of
probabilities, that the probative value of the evidence exceeds its prejudicial
effect. Further, the probative value of the evidence comes from the
improbability that similar conduct is the product of coincidence. It
necessarily follows, the respondent concedes, that potential collusion among
similar act witnesses is an important factor in determining admissibility
because of its tendency to negate the improbability of coincidence that is the touchstone
of admissibility. However, where the evidence does not go beyond an opportunity
for collusion, it is best left for the jury to decide in assessing weight. A
trial judge's decision on this issue, as here, is entitled to deference.

[106]

In this case, the respondent says, the trial judge recognized the
role of collusion in the determination of probative value and in the
admissibility analysis. The trial judge found an air of reality to the
allegation of collusion, settled the burden and standard of disproof on the
Crown, and found the standard met. Probative value was properly calibrated. The
claim that the trial judge reversed the burden of proof is put to rest when the
reasons are read as a whole.

[107]

According to the respondent, the analysis of prejudicial effect is
equally free of error. The gravity of the offences revealed by the evidence of
similar acts is a relevant factor in an assessment of moral prejudice, the risk
of conviction based on bad personhood. As the gravity of the allegedly similar
acts increases, so does the likelihood of the prohibited form of reasoning.

[108]

In the absence of error in evaluating the constituent elements of
probative value and prejudicial effect, the trial judge's conclusion about
where the balance between them falls is entitled to substantial deference in
this court. The manner in which the application was heard did not cause any
miscarriage of justice. After all, the request to have the admissibility issue
determined on a pre-trial application was that of the appellant, as it would
have a dispositive impact, or nearly so, on the appellant's pre-trial
application for severance.

The Governing Principles

[109]

The principal focus of the appellant's argument is on the impact of
the potential for collusion on the admissibility decision and the trial judge's
handling of that issue. The parties share much common ground on the controlling
principles but diverge on the result of their application in this case.

[110]

Evidence of similar acts is circumstantial evidence. Like other examples
of circumstantial evidence, it gives rise to inferences. It is subject to a
general rule of presumptive inadmissibility. The exclusionary rule sets its
face against the use of character evidence as circumstantial proof of conduct
on a specific occasion. The rule bars an inference from the similar acts that
an accused has the propensity or disposition to do the type of acts charged and
is thus guilty of the offence(s) charged:
R. v. Handy
, 2002 SCC 56, [2002]
2 S.C.R. 908, at. paras. 27, 31;
R. v. Perrier
, 2004 SCC 56, [2004] 3 S.C.R.
228, at para. 17.

[111]

Evidence of similar acts engenders both reasoning and moral
prejudice. Reasoning prejudice refers to the confusion that may result from a
multiplicity of incidents and the tendency of a lay trier of fact to put more
weight on the evidence than is logically justified. Moral prejudice has to do
with the danger of conviction based on bad personhood, a chain of reasoning our
law abjures:
Handy
, at para. 31.

[112]

To overcome the rule of presumptive inadmissibility of similar acts,
the onus is on the Crown to satisfy the trial judge, on a balance of
probabilities, that the probative value of the evidence on a particular issue
outweighs its prejudicial effect, thereby warranting its admission:
Handy
,
at paras. 47, 55;
Perrier
, at para. 18.

[113]

Since the admissibility of evidence of similar acts depends on the
improbability of coincidence, any evidence that tends to negate this
improbability is important in the admissibility analysis. Evidence of actual
collusion or evidence that provides an air of reality to an allegation of
collusion tends to do so. It then falls to the Crown to satisfy the trial
judge, on a balance of probabilities, that the evidence of similar acts is not tainted
with collusion. In these circumstances, the evidence of similar acts would be
admitted with the ultimate determination of the persuasive force of the
evidence left for the jury to decide:
Handy
, at para. 112;
R. v. Shearing
,
2002 SCC 58, [2002] 3 S.C.R. 33, at para. 41.

[114]

When considering moral prejudice arising out of the reception of
evidence of similar acts, the nature of the conduct evidenced by the similar
acts is a factor to consider. The more inflammatory that conduct, the more
likely a conclusion based on bad personhood:
Handy
, at paras. 83, 100,
and 140.

[115]

On the other hand, reasoning prejudice involves the distraction of
jurors by the cumulative force of evidence about so many allegations from their
task of determining guilt of the offences charged. Arguably, the likelihood of
reasoning prejudice may be diminished where the evidence of similar acts is not
extrinsic to the offences charged, rather is co-extensive with them:
Shearing
,
at paras. 69-70.

[116]

A trial judge's decision about where the balance falls between
probative value and prejudicial effect is accorded a high degree of deference
in this court absent an error in law or principle, a misapprehension of
material evidence, or a decision that is plainly unreasonable:
R. v. Araya
,
2015 SCC 11, [2015] 1 S.C.R. 581, at paras. 31, 38;
Shearing
, at para.
73.

[117]

The final points concern the timing of the inquiry into the
admissibility of evidence of similar acts.

[118]

Where the similar acts are alleged as part of a multi-count
indictment and the accused seeks severance of the counts, consideration of the
admissibility of evidence of similar acts across counts is an important factor
in the severance analysis. A ruling permitting across counts use of evidence of
similar acts favours a joint trial since the evidence on all counts will be
adduced in any event:
R. v. Last
, 2009 SCC 45, [2009] 3 S.C.R. 146 at para.
33. See also,
R. v. Arp
, [1998] 3 S.C.R. 339, at para. 52. The timing
of the motion is left to the sound discretion of the trial judge:
Last
,
at para. 34.

[119]

A ruling made at one point in a criminal trial may be revisited
later in the proceedings should circumstances change and warrant a
reconsideration:
R. v. B. (H.)
, 2016 ONCA 953, 345 C.C.C (3d) 206 at para.
51, citing
R. v. Adams
, [1995] 4 S.C.R. 707, at para. 30;
R. v. Le
,
2011 MBCA 83, 270 Man. R. (2d) 82, at para. 123 leave to appeal refused, [2011]
S.C.C.A. No. 526.

The Principles Applied

[120]

In support of his submission that the trial judge erred in
permitting use of the evidence of each complainant across counts, the appellant
points to three specific errors. I would not give effect to any of them.

[121]

The appellant says that the trial judge failed to properly evaluate
the evidence of potential collusion between or among the complainants in
determining whether to permit across counts use of their evidence. In my
respectful view, the reasons of the trial judge, read as a whole as they must
be, do not reveal the error alleged.

[122]

The trial judge began his analysis with a correct statement of the
rule that evidence of similar acts is presumptively inadmissible and the burden
and standard of proof required to engage the inclusionary exception to that
rule. He examined the relevance and materiality of the evidence. He concluded
that it was relevant to assist in proof of the
actus reus
of the
offences charged and to rebut the anticipated denial or assertion of incidental
touching by the appellant. These were material issues at trial.

[123]

In his admissibility analysis, the trial judge noted that the
admissibility of evidence of similar acts is based on the improbability of
coincidence. He recognized that evidence of collusion, whether potential or
actual, could negate the improbability of coincidence and require exclusion of
the evidence. He found no evidence of actual collusion but accepted that there
was an air of reality to an allegation of potential collusion. On more than one
occasion, he correctly described the burden and standard of proof imposed on
the Crown to rebut collusion on a balance of probabilities.

[124]

The trial judge was satisfied that the Crown had met its burden of
rebutting the possibility that collusion was the genesis of the similar
accounts of the complainants. Collusion did not render the evidence
inadmissible across counts although it was left to the jury as a factor for
them to consider in assessing the weight to be assigned to the evidence.

[125]

The trial judge's conclusion about the admissibility of the evidence
of the complainants across counts, in particular, the impact of the potential
for collusion on admissibility, is largely fact-driven. It is not cumbered by
legal error or any material misapprehension of the evidence. Nor can the
decision to admit the evidence be characterized as plainly unreasonable. This
claim of error fails.

[126]

The second error the appellant alleges as a fatal blow to the
admissibility analysis relates to the trial judges characterization of the
conduct as low level sexual assaults". In doing so, he took into account
an irrelevant factor in his assessment of prejudice.

[127]

In my respectful view, this argument fails for at least two reasons.

[128]

The assessment of the prejudicial effect of an item of evidence
tendered for admission is a case-specific, fact-driven exercise. There are no
bright line rules. There is no mathematical or scientific formula to gauge
potential prejudice. In the result, the assessment of the ear and eyewitness to
the proceedings in which the evidence is tendered is accorded substantial
deference on appeal.

[129]

It is beyond controversy that deference gives way in the face of an
error in principle in the probative value-prejudicial effect analysis, such as
consideration of an irrelevant factor. This brings me to the second reason for
rejecting this ground of appeal  the absence of any error in principle.

[130]

As
Handy
teaches, the seriousness of the conduct disclosed
by the evidence of similar acts is a relevant consideration in assessing the
moral prejudice associated with its reception:
Handy
, at paras. 40,
83, and 100. Moral prejudice refers to the prospect that a conviction will be
based on bad character, not conduct. As the seriousness of the conduct
increases, there seems more likely to be a proportionate enhancement in
recourse to forbidden propensity reasoning. It would seem all the more so in
cases, unlike this, of extrinsic similar acts the gravity of which far exceeds
those charged. In this case, all the conduct is of equivalent gravity.

[131]

The final error alleged has to do with the procedure followed on the
admissibility inquiry, in particular, it's timing. In my respectful view this
claim is without merit.

[132]

In a pre-trial application, the appellant sought severance of
counts. An important consideration in determining whether the interests of
justice required severance, a departure from the general rule of a joint trial
of all counts, was whether the allegations of each complainant would be
admissible as evidence of similar acts across counts. Crown counsel sought to
have the evidence of each complainant admitted across counts as evidence of
similar acts.

[133]

The trial judge acceded to the request of defence counsel to have
the Crown's application proceed first. The determination of the admissibility
issue, defence counsel acknowledged, was, for practical purposes, dispositive
of the severance motion. Having adopted this course at trial, it ill lies in
the mouth of the appellant to complain of error. In addition, the determination
of when, how, and in what sequence motions and applications will be heard and
determined at trial is a matter for the sound discretion of the trial judge.
That decision is subject to deference here.

[134]

It is also worthy of note that the appellant did not ask the trial
judge to revisit his admissibility ruling later in the trial as a result of a
change in circumstances. That he did not do so is not dispositive of a lack of
prejudice from the procedure followed at his own insistence, but it affords
cogent evidence that very experienced counsel did not consider it so.

Ground #3: Inadequate Jury Instructions on Collusion

[135]

The final ground of appeal alleges inadequacies in the trial judge's
charge on how jurors were to evaluate evidence of potential collusion between
and among the complainants. The issues raised may be adequately framed by a
brief reference to the trial proceedings and the ruling of the trial judge on
the issues reargued here.

The Essential Background

[136]

The evidence at trial revealed that A.M. and B.G. were interviewed
by the same CPO investigator. Each was interviewed separately at a different
time.

[137]

In spring of 2010, a CPO investigator began her investigation into
the allegations of A.M. They met at least once before A.M. made a formal
statement recounting his allegations. They also spoke on the telephone on
several occasions, but A.M. could not recall the details of those discussions.
The defence at trial alleged that A.M. said nothing about the appellant
touching his penis until after he had spoken to the CPO investigator.

[138]

In 2011, B.G. told others that the appellant had not sexually
assaulted him. He spoke to the CPO investigator later in 2011 and in 2012 but
could not recall what the investigator had said to him. Later, he told police
that the investigator had heavily, heavily implied" that there were other
complainants. B.G. alleged that the appellant pinched his nipples and put his
hands down B.G.s boxer shorts.

[139]

Both A.M. and B.G. denied that the investigator provided them with
the details of any other complainants' allegations. Defence counsel argued that
the details of the alleged assaults had been shared by the CPO investigator,
police, and civil counsel who represented each complainant in his individual
civil suit against the appellant.

[140]

Neither the CPO investigator nor civil counsel were called as a
witness at trial.

The Request for Instructions

[141]

In their closing addresses, both counsel commented on the failure of
opposing counsel to call the CPO investigator as a witness at trial.

[142]

Defence counsel asked the trial judge to include two instructions in
his charge to the jury:

i.

that jurors were entitled to draw an adverse
inference from the failure of the Crown to call the CPO investigator as a
witness; and

ii.

that civil counsel owed a duty of candour to
share information with each complainant about what the other complainants had said.

The Ruling of the Trial Judge

[143]

The trial judge declined to include either requested instruction in
his charge.

[144]

The trial judge found Crown counsel's closing address problematic
because counsel had suggested that defence counsel could have called the CPO
investigator as a defence witness. Such a comment had the potential to reverse
the burden of proof. However, the trial judge declined to include an adverse
inference instruction in his charge because:

i.

the investigator was not under the exclusive
control of the Crown;

ii.

it could not be assumed that the investigator
would be favourably disposed towards the Crown; and

iii.

the Crown had discretion as to which witnesses
it would call to unfold the narrative of relevant events.

[145]

The trial judge also declined to instruct the jury about the duty of
disclosure imposed on civil counsel. The judge reasoned:

i.

that there was no evidence about the scope of counsel's
duty in the circumstances;

ii.

that he was not convinced that the duty of
candour was as broad as counsel alleged;

iii.

that there was no evidence of an ethical duty to
share confidential information among clients; and

iv.

that the trial judge proposed to instruct the
jury about the effect of the complainants' assertion of solicitor-client
privilege on the ability of the defence to challenge their evidence.

The Arguments on Appeal

[146]

In this court, the appellant reiterated the argument he advanced at
trial in respect of each instruction.

[147]

The appellant says that the combined effect of several factors
required an instruction that the jury could draw an adverse inference from the
Crown's failure to call the CPO investigator. It was a reasonable assumption
that the investigator would be favourably disposed towards the Crown. She
investigated the complaints of A.M. and B.G. The Crown had access to her
because the information she obtained was shared with the police and Crown. She
was uniquely situated to corroborate the accounts of A.M. and B.G. and the Crown
provided no explanation for failing to call her as a witness.

[148]

As for the second instruction, the appellant says that civil counsel
had a professional obligation to share information received from each
complainant with the others because it was critical to her ability to provide
effective representation to each client. This was a joint retainer. The duty of
candour required disclosure. And that was an important factor for the jury to
consider in assessing the credibility of each complainant and the reliability
of his evidence.

[149]

The respondent begins with a reminder that a trial judge has broad
discretion about what to include in a charge to the jury and how to express
what is said. The parties are entitled to a proper charge, not a perfect charge
that meets every party's ideal. Looked at functionally, this charge satisfied
those requirements.

[150]

In this case, the respondent says, the trial judge fully equipped
the jury to consider the possible influence of collusion on the credibility of
the complainants and the reliability of their evidence. The charge specifically
invited the jury to consider the change in the complainants' accounts after A.M.
and B.G. had contact with the CPO investigator. The trial judge made specific
reference to the fact that the same lawyer represented all three complainants
in their individual civil actions against the appellant. The judge rehearsed
the evidence of B.G. that police had shown him the statements of others.

[151]

The respondent argues that the circumstances of this case did not
warrant an instruction that jurors could draw an adverse inference from the
Crown's failure to call the CPO investigator as a witness. A.M. and B.G. were
unshaken in their denials that the investigator had provided them with details
of the other's account. T.R. had no contact with the investigator.

[152]

In addition, the respondent continues, an instruction inviting an
adverse inference from failing to call a witness is a rare exception, not the
general rule. It is only to be given with great caution in cases in which a
party fails to produce a witness who is reasonably assumed to be favourably
disposed towards the party or within the exclusive control of that party. The
Crown had no special access to or exclusive control over the witness. Nor could
it reasonably be assumed that the witness was favourably disposed to the Crown.
There was no promise by the Crown to call this witness and no need to do so in
order to properly to unfold the narrative of relevant events.

[153]

The respondent also rejects any suggestion of error from the failure
to give an instruction advising the jury about the duty of civil counsel in the
circumstances. The representation presented a conflict between the duty of
confidentiality and that of candour. The instruction given was adequate. To say
more risked an invitation to the jury to speculate.

The Governing Principles

[154]

The parties' entitlement in a charge to the jury is uncontroversial.
It is not perfection. Neither party is entitled to more, nor less, than a
properly instructed jury:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at paras.
2, 62;
R. v. Flores
, 2011 ONCA 155, 269 C.C.C. (3d) 194, at para. 92.

[155]

Equally uncontroversial is the proposition that the Crown is
generally free to exercise her discretion to determine who are material
witnesses essential to the unfolding of the narrative. This discretion will not
be interfered with unless the Crown has exercised it for some oblique or
improper motive. The Crown need not call all witnesses who may have relevant
testimony if such testimony is not essential to the narrative:
R. v. Yebes
,
[1987] 2 S.C.R. 168, at pp. 190-91. See also,
R. v. Cook
, [1997] 1 S.C.R.
1113, at paras. 30-31;
R. v. Jolivet
, 2000 SCC 29, [2000] 1 S.C.R. 751,
at para. 14.

[156]

Sometimes, a judge may instruct the jury about its authority to draw
an adverse inference from the failure of the party to call a witness or produce
other evidence. This principle derives from ordinary logic and experience.
Although an adverse inference may be drawn against a party for failure to call
a witness reasonably assumed to be favourably disposed to that party, or one
who has exclusive control over the witness, an adverse inference should only be
drawn with the greatest of caution: R. v.
Ellis
, 2013 ONCA 9, 113 O.R.
(3d) 641 at paras.
45-49;
Jolivet
, at paras. 37,
39;
R. v. Zehr
(1980), 54 C.C.C. (2d) 65 (Ont. C.A.), at p. 68.

[157]

In connection with the allegation that the trial judge erred in
failing to instruct the jury that the civil lawyer had an obligation to share
any relevant information she obtained from any client with the others, it is
helpful to consider the scope of the duties of candour and confidentiality.

[158]

A lawyer has a duty of candour with the client on matters relevant
to the retainer. This requires the lawyer to inform the client of information
known to the lawyer that may affect the interests of the client in the matter. Put
in another way, this requires the lawyer to disclose any factors relevant to
the lawyer's ability to provide effective representation:
Canadian National
Railway Co. v. McKercher LLP
, 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 45.
This duty is frequently engaged in situations in which acceptance of a retainer
will require a lawyer to act against an existing client:
McKercher
, at
para. 46;
R. v. Neil
, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 19.

[159]

A lawyer also has a duty of confidentiality towards the client. This
requires the lawyer to hold in strict confidence all information concerning the
business and affairs of the client acquired in the course of their professional
relationship and not to divulge that information unless expressly or impliedly
authorized to do so by the client. The lawyers duty of candour towards one
client must be reconciled with the obligation of confidentiality towards
another:

McKercher
, at para. 47. See also,
Strother
v. 3464920 Canada Inc.,
2007 SCC 24, [2007] 2 S.C.R. 177.

The Principles Applied

[160]

As I will explain, I would not give effect to either complaint. I
agree with the conclusion of the trial judge on each issue and, in large
measure, with his reasons.

The Adverse Inference: The Failure to Call the CPO
Investigator

[161]

As a matter of first principle, Crown counsel is under no obligation
to call a witness they consider unnecessary to the unfolding of the narrative
of the case for the Crown. To the extent that the failure to call a particular
witness leaves a gap in the Crown's proof of some essential element, the Crown
bears the risk of an adverse finding of which the accused is the beneficiary.
The trial judge made this consequence clear to the jury in his charge.

[162]

No bright line rule requires inclusion of an adverse inference
instruction anytime a witness defence counsel considers should have been called
by the Crown is not called. The basic principle is to the contrary: the adverse
inference instruction is the exception, not the rule. It is an exception that
is only invoked with great caution because it may have a serious and
unwarranted impact on the jury's assessment of the credibility of the witnesses
who testify and may distract from an informed analysis of the evidence as a
whole.

[163]

Whether to include an adverse instruction is a determination that
falls within the discretion of the presiding judge. In the absence of an error
of law or principle, a material misapprehension of any relevant evidence, or a
decision that is plainly unreasonable, the exercise of that discretion is
entitled to deference in this court. No such error, misapprehension, or
unreasonableness has been established here.

[164]

Finally, the absence of a specific adverse inference instruction did
not leave the jury unschooled about the impact of the interaction of the
complainants with investigators and the prospect of contamination of their
evidence.

[165]

The trial judge instructed the jury that although Crown counsel was
not required to call the CPO investigator, the Crown was required to prove its
case beyond a reasonable doubt on the evidence it chose to introduce at trial.
When considered together with the instructions on reasonable doubt, in
particular, that a reasonable doubt may be based on the absence of evidence,
the jury would understand that the failure to call evidence may mean that the
evidence did not prove the offences alleged to the standard of proof required.

[166]

The final instructions also pointed out that the accounts of two
complainants, A.M. and B.G., changed after they met with investigators. This
was a factor left to the jury to consider in assessing whether the appellant's
guilt had been proven beyond a reasonable doubt.

[167]

To counteract Crown counsel's submission in his closing address that
the appellant could have called the CPO investigator as a witness, the trial
judge made it clear that the defence was under no obligation to do so.

[168]

This claim of error fails.

The Disclosure Obligations of Civil Counsel

[169]

At trial, defence counsel sought an instruction that civil counsel,
who acted for each complainant in his individual civil action against the
appellant, had an obligation to share any relevant information she received
from each client with the others. The trial judge refused to include such an
instruction for several reasons he included in a post-verdict endorsement.

[170]

As I will briefly explain, I would not give effect to this claim of
error. In my view the trial judge was correct in not including such an
instruction in his charge.

[171]

First, the principle of law upon which the appellant sought to have
the trial judge instruct the jury is of doubtful validity.

[172]

The duty of candour was not the only obligation at work here. The
lawyer's concurrent representation of the three complainants in related but
separate lawsuits against the appellant implicated two competing professional
obligations on the lawyer's part. The duty of candour and the duty of
confidentiality.

[173]

The lawyers duty of candour towards each client precluded her from
withholding information relative to the retainer with her client. But where the
lawyer represents different clients on separate but related lawsuits, her duty
of candour is put in conflict with her duty of confidentiality to each
individual client. The duty of confidentiality allows for disclosure with the
express or implied authorization of the client. Without that authorization, the
duties remain at odds with one another, barring disclosure.

[174]

In addition to the questionable accuracy of the broadly stated
principle trial counsel sought to have the trial judge put to the jury, such an
instruction would inevitably lead to impermissible speculation by the jury.
Whether counsel understood her professional obligations. Whether she complied
with them. Whether she obtained a waiver. The nature of any information she
provided.

[175]

The complainants did not waive their solicitor-client privilege at
trial. The jury would hear no evidence about what had actually happened between
lawyer and client. Not from the lawyer. And not from the client. The
instruction sought would engender idle speculation and deflect the jury's
attention from the real issues in the trial.

[176]

Further, the instruction sought was unnecessary in light of the
trial judge's charge on the relevance of the common representation on the issue
of collusion. The trial judge told the jury that the common representation of
the complainants in the civil actions was a factor for them to consider in
assessing the possibility of collusion as a reason underlying their similar
allegations against the appellant. The trial judge also told the jury that the
complainants' refusal to waive solicitor-client privilege prevented defence
counsel from testing their denials of discussing the accounts of their fellow
complainants with civil counsel.

[177]

In the result, I am satisfied that the non-direction of which the
appellant complains did not amount to misdirection or otherwise compromise the
jury's ability to fairly evaluate the complainants testimony and the
appellant's assertion of its collusive origins.

Disposition

[178]

For these reasons, I would dismiss the appeal.

Released: DW October 8, 2020



David
Watt J.A.

I agree. C.W. Hourigan J.A.

I agree. Harvison Young J.A.


